## The Honorable James M. Rosenbaum, United States District Judge for th e 1 

## District of Minnesota, sitting by designation. The Honorable Jean C. Hamilton, Chief United States District Judge for th e 2 

## Eastern District of Missouri. United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-1613

___________ Kelvin Malone, * Plaintiff-Appellant, *

v. * District Court for the Daniel Vasquez, Warden, San * Quentin State Prison; Jeremiah W. * (Jay) Nixon, Missouri Attorney * General, * Defendants-Appellees. *

* Appeal from the United States

* Eastern District of Missouri.

*

___________ Submitted: May 19, 1997 Filed: February 26, 1998

___________ Before MURPHY and HEANEY, Circuit Judges and ROSENBAUM, District Judge. 1

___________ MURPHY, Circuit Judge. Kelvin Malone, who was convicted of murder in Missouri and sentenced to de ath, appeals from the denial by the district court of his petitio n 2 for a writ of habeas corpus under 28 U.S.C. §2254. We affirm.

## -2- I.

KelvinMalone was convicted of the 1981 murder of William Parr, a 62 year old taxi driver in Berkeley, Missouri, a St. Louis suburb. Richar d Elder, a fellow Ye llow Cab driver, testified at Malone’s trial that around 11: 45 p.m. on March 17, 1981, he was waiting in the cab line at th e Greyhound B us Terminal in St. Louis. Parr was first in line, and Elde r heard the dispatch er tell Parr to pick up a package at First National Bank for delivery. The bank was less than three blocks from the bus terminal, and such deliveries were top priority. Parr left for the bank immediately. Elder passed the bank about four minutes after Parr left on the delivery run and saw Parr's cab parked in front of the bank with the dome light on.

About a block from the bank at the corner of Sixth and Locust, Elder
sa w a black man with a suitcase trying to hail a cab. Elder late r identified this man as Kelvin Malone. On his way home that night, Elde r heard the dispatch er repeatedly calling Parr with no answer. Daniel Ward, a First National Bank employee, testified that he left the bank at 1:00 a.m. and saw a cab parked out front with a black man sitting in the back seat.

Pol ice later found an abandoned cab at 6105 Avila in Berkeley. A local resident rep orted seeing a Yellow Cab turn onto Avila at around 1:20 a.m. on March 18. Later that morning police found Parr's body in Entrance Park in Berkeley. Parr had been shot and was lying face down with bloo d coming fro m his nose and right ear. He was taken to Christian Northeas t Hospital where he was pronounced dead on arrival.

There was evidence that Kelvin Malone had arrived in St. Louis fro m California on the evening of March 17 with a suitcase and two .25 caliber pistols. Around 1:30 a.m. on March 18, Emmanuel Bego, who lived wit h Michael Crenshaw in Berkeley, heard a knock at the door. Bego hear d Crenshaw say "Kelvin" when he went to the door, but Bego did not see who was there. Later that day Crenshaw left for California

## Malone was convicted of the murders of Myrtle Benham and Minnie White. In 3 

## the guilt phase of t

he Benham trial there was also evidence that Malone had kidnaped Leroy Combs at gunpoint in Santa Maria, California on March 11, 1981 and t hat he and Crenshaw murdered Jim Rankin (who disappeared from a Kansas City parking lot on March 18, 1981). -3- with Malone in Crenshaw’s car. After they de parted, Bego found a Greyhound bus ticket in the basement for a trip leaving Los Angeles on March 15, with scheduled arrival in St. Louis at 12:40 a.m on March 18.

Califo rnia police found Malone and Crenshaw asleep in Crenshaw's car in San J ose on March 24 and asked for identification. The men drove of f instead and were apprehended after a high speed chase. The officers found
a small suit case and two loaded .25 caliber pistols in the car. Thre e bullets test fired from one of these guns were later compared to a .2 5 caliber slug taken from Parr's brain. Initial comparisons with the naked eye by St. Louis police were inconclusive, but an FBI ballistics examiner using a comparison microscope determined that all four bullets came from one of the guns which Malone had carried when he arrived in St. Louis and which were found in the car at his arrest.
Missouri charged Malone with the murder of William Parr. By the time of the trial on this charge in 1984, Malone had been convicted and sente nced to death in California for two murders that took place in that state just a few days after Parr was killed in Missouri. Counsel was appointed in the 3 Parr case on November 28, 1983, and Malone di rected him to move to trial as quickly as possible; counsel began to meet wi th Malone about a month before trial commenced on March 26, 1984, and began detailed trial preparation two weeks before trial. In preparation for trial , counsel reviewed with Malone police reports, his earlier psychological examination, and other types o f inf ormation. Malone presented no evidence during the guilt phase of hi s tr ial, and the only evidence he presented during the penalty phase wa s expert testimony by

## Counsel stated at oral argument that he understood federal habeas proceedings 4 

## were pending on Malone’s California convictions. -4- Professor James Gilsinan that the death penalty is not an effectiv e deterrent. He als o offered the testimony of Father Francis Cleary related to historical justifications for the death penalty, but it was not recei ved. Malone d irected his attorney not to contact members of his family abou t mitigating evidence because he wanted to avoid causing them additional p ain. Malone was convicted on March 30, and on the next day the jury returned a verdict of death. He chose not to appear at sentencing on April 26, 1984, when he was sentenced to death. He was then returned to California where he remains incarcerated. 4

Malon e’s direct appeal of his Missouri conviction was unsuccessful

. State v. Malone , 694 S.W.2d 723 (Mo. 1985) (e n banc). He then sought state postconviction relief under Missouri Criminal Procedure Rule 27.26. Malone
v. State , 747 S.W.2d 695 (Mo.Ct. App. 1988). His original petition wa s dismissed without prejudice because he was not in Missouri custody at the time it was filed and Rule 27.26 had a custody requirement. He late r refiled his petition under Rule 29.15 after it replaced the earlier rule. The new rule did not require Missouri custody , and the trial court rejected the petition on the merits. Malone appealed to the Missouri Supreme Court which remanded for factual findings on whethe r Malone had complied with the Rule 29.15 requirement that a petitioner verify that the filing contained all his claims and that he understood they were otherwise waived. The t rial court was instructed to make findings on whether this verificatio n require ment had been met and on whether the prosecution had exercise d racially motivatedperemptory challenges. The court found that Malone had
no t verified his petition and therefore dismissed it for lack o f jurisd iction. The Missouri Supreme Court affirmed, Malone v. State , 79 8 S.W.2d 149 (Mo. 1990) (en banc), and later dismissed as moot Malone’ s petition to recall the mandate and reinstate his appeal.

## -5- Malone then filed this petition for a writ of habeas corpus. He cited over sixty grounds for relief, some of which had been raised in state court and many o f which had not. The district court denied his petition afte r determining that most of the claims were procedurally barred because Ma lone had failed to verify his petition as required by Rule 29.15 and had als o failed to pr esent many of the claims in state court. After a thoroug h review of the record, the court also concluded that his claims failed onthe merits and later denied Malone’s motion to alter or amend the judgment.

II.

The st ate argues that not all of Malone’s claims are properly before the court b ecause of the content of his notice of appeal. The distric t court order denyin g his petition and considering all his claims was issued on December 4, 1995, but the notice of appeal focuses on a January 17, 1996 order denying his motion to alter or amend th e judgment. The notice stated that he was appeal ing, “...from the final order and judgment issued by the Honorable Judge Jean C. Hamilton on January 17, 1996. This judgment an d order denied Mr. Malone’s habeas corpus claim s of constitutional error....” Malone’s notice of appeal indicates he intended to appeal both the denial of his post-judgment motion and the district court’s rulings on hi s constitutional claims. It is appropriate in these circumstances to cons true his notice of appeal as encompassing both orders. See Sweet v. Delo , 125 F.3d 1144, 1148 (8th Cir. 1997). Because of Malone’s apparent intent t o appeal both from the judgment denying his petition as well as the subseq uent order, we waive th e strict requirements of Rule 3(c). See Fed. R. App. P. 2.
Malone wishes to raise many issues on appeal, including vari ous claims of ineffective assistance of counsel. He alleges trial counsel wa s ine ffective in the guilt phase of his trial for failure to call tw o witnesses who would have testified that they could not identify the black man they had seen in Parr’s cab, to call United States District Judge Ge orge F. Gunn to testify that he was not harmed during an armed

## -6-

rob beryby Malone, to introduce evidence of a polygraph suggesting tha t Malone did not com mit one of the California murders, to prepare adequately for trial, to obtain a stipulation or testimony that two police officer s found initial ballistics comparisons inconclusive, and to object to evid ence of a towel used to wipe prints from Parr’s ca b and to evidence that he gave
a fals e name when arrested, to an improper closing argument, to th e exclusion for cause of a potential juror based on his refusal to consider the death penalty, and to several jury instructions. He argues that hi s trial c ounsel was ineffective in the penalty phase for not presentin g mit igating evidence from his family and not obtaining a new psychiatri c examination or using the results of his California exam. Malone argues that app ellate counsel was ineffective by not raising on direct appeal ever y issue raised in his postconviction litigation.
Malone also raises claims of pros ecutorial misconduct. He claims the prosecution should not have introduced eviden ce of his prior convictions or misleading testimony by California prosecutor Gary Admire that Malone ha d admitted in his California trial that he had been in the vicinity where Parr
was kill ed. He also says the prosecution improperly bolstered th e credibilityof prosecution witnesses, argued facts not in evidence, an d mentioned that he had admitted being near the crime scene, that the jur y could act on the b asis of personal feelings or the general need to prevent crime, and that he bore the burden of proof.
Malone also presents claims that his right to due process wa s violated by excuse o f a venire member for cause based on his refusal to conside r application of the death penalty, by informing the jury of his prio r convict ions, and by improper instructions on mitigating and aggravatin g factors. In addition, Malone argues that the prosecutor exercise d pe remptorychallenges based on race in violation of his right to equa l protection.

A.

## These ineffective assistance claims include failure to object to introduction of 5


## a Grey hound bus schedule and to an improperly empaneled jury, failure to preserv e issues for appeal, and moving to strike venire member Berits for cause. (The latte r claim is puzzling since th e record shows that defense counsel objected to Berits being removed for cause

because of her claim that her employer would not release her from work.) The a bandoned claims regarding jury selection are allegations that the venir e

6 

## panel was not a fair cross section of the community, jurors were improperly excused without cause, a separate jury was not selected for the penalty phase of trial, and the venire panel was not sworn before voir dire. -7- Mal one has abandoned several of the claims made to the district court by not pre senting them in his appellate brief. Jasperson v. Purolate r Courier Corp. , 765 F.2d 736, 740-41 (8th Cir. 1985). The abandoned claim s incl ude claims that he was denied due process and equal protection b y Missouri’s dela y in bringing him to trial, that he was improperly forced to choose between a speedy trial and sufficient time for his appointed counsel to prepare for trial, that the Rule 29.15 requirement that pro se pet itioners
ver ifytheir postconviction relief petitions violated his rights under th e fifth, si xth, and fourteenth amendments, and a claim that the prosecutio n wi thheld potentially exculpatory information. Malone has also abandone d several claims of ineffective a ssistance of trial counsel, claims regarding 5 juryselection, two claims of prosecutorial misconduct based on delay o f 6 tri al and introducing hypnotically refreshed testimony, and a claim tha t per mitting Gary Admire to repeat Malone’s testimony from his Californi a trials violated his right against self incrimination. Other abandone d claims include ineffec tive assistance by state postconviction counsel, a violation of his right to confront and cross-examine witnesses through the lack o f preparation by trial counsel, failure to instruct the jurors on their ability to consid er in mitigation all factors of Malone’s character, and imprope r instructions about the burden of proof and the weighing of aggravatin g factors. The law favors an adversarial presentation of issues in order t o conserve judicial resources and to ensure that cases are resolved in th e context of an actual dispute. Flast v. Cohen , 392 U.S. 83, 96-97 (1968). The issues

## We have reviewed these claims nonetheless, and they would fail in any event 7 

## because of other procedural bars or on the merits.
These claims are that counsel was ineffective by failing to prepare adequately 8 

## fo r trial; to investigate state witnesses; to prepare for the cross examination of Gary Admire, to present the results of Malone’s polygraph test; to call Judge Gunn; to object to evidence of the false name he gave at arre st, a towel used to wipe prints from Parr’s cab, and his prior crimes; to object to the composition of the jur y panel or the exclusion of a potential juror based on his opposition to the death penalty or improper closin g argument; to use the California psychological report; and to assess independently his mental health. These claims are that the prosecutor engaged in misconduct by introducin g 9 

## misleading evidence and evidence of Malone’s prior crimes and by an improper closing argume nt (arguing that Malone had the burden of proof, that the jury could act o n personal feeling or general desire to enforce the law, arguing facts not in evidence, and bolstering the credibility of state witnesses). -8- not presented in Malone’s brief should the refore be treated as abandoned and they need not be discussed. Jasperson , 765 F.2d at 740-41. 7

B.
Missouri argues that Malone’s constitutional claims may not be reached
on the merits because they were not properly presented for review in stat e court. Several of Malone’s claims were never brought in the Missouri courts at all, while others were contained in petitions that did not comply wit h Missouri Criminal Procedure Rule 29.15 requiring verification. Malon e responds that his claims were properly pre sented, or alternatively, that any deficiencies in presentation may be excused.

Claims that have not been presented for state court review ar e defaulted. Sweet , 125 F.3d at 1149; Nave v. Delo , 62 F.3d 1024, 1030 (8th Cir

. 1995). Malone never sought state court review of thirteen claims o f ineffective assistance of trial counsel, seven claims of prosecutoria l 8 misconduct, a claim that the trial court was inconsistent 9

## Malone claims that the jury was improperly instructed that it must unanimously 10 

## find partic ular mitigating factors and not instructed on the limits Missouri imposes on weighing aggravating and mitigat ing factors and that all elements of the crime and any aggravating factors must be found beyond a reason able doubt. Malone also alleges his trial counsel was ineffective in failing to object to these errors at trial. Malone claims counsel erred in his failure to subpoena witnesses who saw a 11 

## black man in Parr’s cab, depose Richard Elder, obtain expert tes timony on hypnotically refreshed testimo ny, contact Crenshaw to testify, obtain stipulations or testimony that initial ballistics tests w ere inconclusive, call his family to testify in mitigation, and use his existing psychological report or obtain a new one. -9- in overseeing t he striking of jurors for opposition to the death penalty, a claim that his right to confront and cross -examine witnesses was violated by tri al counsel’s lack of preparation, four claims of improper jur y instruction, and a claim that his death sentence resulted from the use of 10 unconstitutional aggravating circumstances.

The state also contends Malone failed to comply with Missouri Supreme Court Rule 29.15, which requires a petitioner to verify that the petitio n contains all of his claims and to acknowledge that any not included ar e waived

. The purpose of the rule is to ensure that all claims can b e considered in one pr oceeding so verification is not just a meaningless procedural device. Kilgore v. St ate , 791 S.W.2d 393, 395 (Mo. 1990) (en banc)

. The state trial court made a factua l finding that Ma lone had not verified his petition, and the Missouri Supreme Court rel ied on that finding when it dismissed the petition for lack o f jurisdiction. Malone , 798 S.W.2d at 151.

Malone's coun sel conceded at oral argument that under " the letter of the law" the claims raised in his state postconviction

petition were procedurally barred, but he argues that they should be considered nonetheless . These claims i nclude ineffective assistance of trial counsel, a claim that the prosecution violated his right to equa l 11 protection by exercising peremptory jury strikes on the basis of race, that the court

## Malone claims that Elder’s identif ication and hypnotically refreshed testimony 12 

## of ano ther witness should not have been admitted and that he was prevented fro m sol iciting the testimony of Emmanuel Bego about Crenshaw’s whereabouts to sho w that the latter was not available to testify. He claims that evidence of his Californi a death s entence should not have been admitted during the penalty phase and that th e testimony of Father Cleary was improperly excluded. -10- made erroneous evidentiary rulings, that Missouri improperly delayed his trial, and that the venire panel was not 12 sworn prior to voir dire.

In ord er for a state procedural rule to prevent federal review o f Malone ’s constitutional claims it must have been firmly established , regularly followed, and readily ascertainable when it was applied to him

. Ford v. Georgia , 498 U.S. 411, 423 (1991). This court has previously held that th e verification requirement of Rule 29.15 is an independent an d adequate state procedural bar. See Oxford v. Delo , 59 F.3d 741, 745 (8t h Cir. 1995). It is an independent state basis for decision because it i s neither intertw ined with, nor dependent upon, federal law, Ake v. Oklahoma , 470 U.S. 68, 75 (1985), and an adequate basis because it meets the Fo rd test. At the time Mal one’s petition was dismissed for failure to comply with Rule 29.15, the Missouri verification rule was firmly established and cons istently enforced under the rule and its predecesso r. Malone , 798 S.W.2d at 151; see also Mills v. State , 769 S.W.2d 469, 470 ( Mo.Ct. App. 1989); Riley v. State , 588 S.W.2d 738, 741 (Mo.Ct. App. 1979); St ate v. Rector , 547 S.W.2d 525, 526 (Mo.Ct. App. 1977). The rule was readily ascertainable as well. Rul e 29.15(d) clearly stated that a "movant shall declare" that all his cl aims are included and th at those not included are waived. Mo. R. Crim. P. 29.15(d). It also referred petitioners to Criminal Procedural Form No. 40, a sampl e form for a Rule 29.15 petition which included a verification statement with a blank for the petitioner’s signature.

The claims included in Malone’s unverif ied state petition may not now be considered on the merits because the bar in Rule 29.15 is an independent, adequate

## -11-

state ground for decision

. Oxford , 59 F.3d at 745. This panel is bound by that holding unless the court en banc were to reco nsider the issue. Campbell v. Purkett , 957 F.2d 535, 536 (8th Cir. 1992). The dissent argues that the rule was not clearly established and regularly f ollowed at the time it was applied to Malone, but that argument is not persuasive. Both at the time Malone’s unverified petition was filed and at the time it was considered by the state courts Missouri had consistently treated the failure to verify as a jurisdictional defect that prevented consi deration of a peti tion. See State v. Vinson , 800 S.W.2d 444, 447 (Mo. 1990) (e n banc); Malone v. State , 798 S.W.2d at 151; Reynolds v. State , 783 S.W.2d 500 (Mo.Ct. App. 1990); Sheperd v. State , 637 S.W.2d 801, 803 (Mo.Ct. App . 1982); State v. Rector , 547 S.W.2d 525, 526 (Mo.C t. App. 1977). All but one of the
cases the dissent cites in support of its argument that the rule wa s un settled were decided after Malone failed to comply with the verificatio n requirement and after the rule had been applied to him.
The lone case the dissent relies upon that had been decid ed at the time Malone’s petition was considered by the st ate courts does not help him. See Rodden v. State , 795 S.W.2d 393 (Mo. 1990) (en banc). The merits of a n unverifie d petition were considered in Rodden , but in that case involvin g Rule 27.26 the state had not objected to the lack of verification until an appeal was filed. Since Rule 27.26 placed no time limit on amendments, an unverified peti tion could be amended to include verification in the absence of an objection. Id at 395. The Rodden court held that such an objection had to be made before the petition reached an appellate court. Because of the state’s fai lure to make a timely objection in Rodden , the merits had to be reached. The court expressly distinguished the new Rule 29.15, whic h placed a time limit on amendments strict limitation on the time to amend a petition in order to comply with the verification requirement and mad e verification a jurisdictional prerequisite that could be raised at any time. Id

. Failure to verify within the time allowed under Rule 29.15 is treated
as a jurisdictional defect barring consideration of the petition no matte r when the objection is made. Id , citing Kilgore , 791 S.W.2d 393 and R eynolds , 783 S .W.2d 916. Malone failed to comply with this jurisdictiona l prerequisite by not filing

## -12-

a verified Rule 29.15 motion even though v erification was a well settled and consistently ap plied rule at the time. There is therefore no inconsistency between his cas e and Rodden because they were decided under different rules with different limitations on verification.

The dissent argues that Malone’s failure to verify his petition doe s not amou nt to procedural default because the fault was that of hi s pos tconviction counsel and subsequent Missouri cases required a remand i n such circumstances to explore fault, but these cases were not decided until after Malone’s petition was rejected. There is no entitlement t o po stconviction counsel, Coleman v. Thompson , 501 U.S. 722, 755 (1991), an d any failure of Malone’s counsel to satisfy the requirements of Rule 29.15 is not a basis to excuse the procedural bar. Id .; Nave ; 62 F.3d at 1034. In anyevent, Malone was not prejudiced by the failure to comply with th e verification re quirement because the state court did consider and reject on the merits all the claims he raised. Almost all of the claims Malone attempts to assert in his habea s pe tition have been procedurally defaulted. This includes both those neve r presented to the state courts, Sweet , 125 F.3d at 1149; Nave , 62 F.3d a t 1030; and those which were raised in his u nverified postconviction petition. We are bo und by the state court’s factual finding that Malone failed t o comply with the verification requirement of Rule 29.15, 28 U.S.C. § 2254(e)(1 ), and by our precedent in Oxford that the Missouri verificatio n require ment is a firmly established rule of state procedure that bar s consideration of a petition for habeas corpus unless there has bee n compliance. 59 F.3d at 745.

C.

Unless Malone can demonstrate cause and prejudice to excuse hi s default, M urray v. Carrier , 477 U.S. 478, 488 (1986), or a fundamenta l miscar riage of justice, Schlup v. Delo , 513 U.S. 298, 316 (1995), federa l habeas review is unavailable because the final state court to review hi s cla ims clearly and expressly relied on an independent, adequate procedura l rule to dismiss them. Harris v. Reed , 489 U.S. 255,

## -13-

261 (1989); Wai nwright v. Sykes , 433 U.S. 72, 87 (1977). Malone asserts he
can show cause to overcome the default in three ways. He claims he wa s unable to comply with Missouri procedure because he was mentally ill , in carcerated in California, and received ineffective assistance from hi s trial and postconviction counsel.
Establishing cause requires a showing of some external impediment that frustrates a pe titioner’s ability to comply with the state procedural rule. Murray , 477 U.S . at 488. The record in this case includes no evidence that
men tal illness hindered Malone’s ability to consult with counsel, fil e pleadings, or otherwise comply with Missou ri requirements for postconviction relie f so mental illness is not cause to excuse his procedural default

. Garrett v. Groose , 99 F.3d 283, 285 (8th Cir. 1995) (conclusive showing o f incompetence is necessary). While being i ncarcerated in California may have made filing his petition in Missouri slightly more cumbersome, Malone has not shown it interf ered with his ability to file. His California incarceration did not amount to state interference with his access to the courts and i s therefore not cause. See e.g. , Lamp v. State of Iowa , 122 F.3d 1100, 1105 (8th Cir. 1997) (no cause where petitioner’s access to court is not b locked); Cf

. Amadeo v. Zant , 486 U.S. 214, 220-221 (1988) (deliberately withholdin g evidence of a plan to exclude black jurors constitutes cause). Any error by Malone's postconviction counsel could not be cause because there is n o con stitutional entitlement to post-conviction counsel. Coleman , 501 U.S

. at 755. Si nce the alleged errors by his trial counsel did not impede hi s ability to comply with the verification re quirement of Rule 29.15, they also are not cause. Murray , 477 U.S. at 488; Lamp , 122 F.3d at 1105.

Even if Malone were to show ca use to excuse his procedural default, he has not shown actual prejudice. Any error by Malone's postconvictioncounsel is i rrelevant since there is no entitlement to counsel at that stage

. Col eman , 501 U.S. at 755. Malone asserts that the ineffectiveness of hi s tr ial counsel prejudiced him by the failure to present mitigating evidenc e or to raise all the issues included in his federal habeas petition. No duty exists to raise every nonfrivolous issue that is available, however,

## -14-

Lamp , 122 F.3d 1106, and Malone was not pr ejudiced by counsel’s decision not to raise every conceivable claim. Malone’s asserted mental illness an d California incarceration did not prejudice him because he has not shown that they interfered with his ability to comply with Rule 29.15 or otherwise seek postconviction relief. Lamp , 122 F.3d at 1105.
Malone also argues that his pr ocedural default should be excused under the fundamental miscarriage of justice exc eption. To invoke this exception, Malone must demonstrate that new evidence unavailable at the time of tria l makes his actual innocence of the crime sufficiently likely to warran t consideration of his procedurally barred claims. Schlup , 513 U.S. at 315

. Malone has not presented any such evidence. He merely asserts in his brief that “[c]onstitutional errors, primarily attorney failure to investigate , probab lycaused his death sentence.” This is insufficient to make out a gateway claim o f actual innocence under Schlup , let alone the more exacting standard for a substantive claim of actual innocence. Id at 317. Because Malone has not made a showing of cause and prejudice or actual innoc ence, the claims presented in his unverified state post-convictio n motion are procedurally barred from further review.

III.

A.

Of the ov er sixty claims Malone presented in his initial habea s petition and the almost thirty he has pursued on appeal, only his claim of ine ffective assistance by appellate counsel is not procedurally barred

. Missou ri has waived the procedural bar that would otherwise apply to thi s claim. Malone states that the failure of his appellate counsel to raise on direct appeal all those issues included in his postconviction submiss ions was below the objective standard of competence for counsel. The district

## -15-

cou rt dismissed this claim because it was not presented with sufficien t argument or facts to support it.

We af firm the district court’s disposition of this claim. Claim s argued with no specificity are waived. Sw eet , 125 F.3d at 1159. A claim of ineffective assistance of counsel requires a showing that deficien t performance by counsel prejudiced the defendant by depriving him of a fai r trial with a reliable result. Strickland v. Washington , 466 U.S. 668, 68 6 (1984). Malone has cited no specific error by his appellate counsel, nor has he demonstrated that the failure to raise every conceivable claim prejudiced him. Eve n were we to credit Malone’s generalized claim, the failure o f appellate couns el to raise all conceivable arguments is not in itself error and the claim would fail on the merits. See Lamp , 122 F.3d at 1106.

B.

The dissent concludes at least two of Malone’s claims are no t procedurally barred and should succeed on the merits. These are claims that the prosecution violated Malone’s right to equal protection through racially bas ed peremptory challenges and that he received ineffective assistance o f counsel at the sentencing phase by failure to contact his family to testify or to introduce an existing psychological report or obtain a new one. Even if these claims could be considered on the merits, they would fail.

Alth ough Malone made a prima facie Batson claim by establishing tha t he is black andthat the prosecutor engaged in a pattern of striking blacks from the jury, Batson v. Kentucky , 476 U.S. 79, 96 (1986), he failed to rebut the prosecutor's proffered racially neutral reasons for those strikes

. Purket t v. Elem , 115 S.Ct. 1769, 1771 (1995). The state trial cour t considered and rejected this claim three times: on Malone's motion to quash the jury at the conclusion of voir dire, on his motion for a new trial, and on remand from the Missouri Supreme Court. On remand the court specifically found that the prosecutor had race-neutral reasons for his peremptory

## The prosecutor said venire member Henderson was stricken because she had 13 

## been the victim of an armed robbery, and none of the white jurors noted by the dissent had personally been the victim of a violent cri me. Venire member Goode was stricken because he seemed familiar to th e prosecutor and was the son of a minister. Although a white venire member who had spent seven years i n the seminary was not stricken, he did n ot have the additional characteristic of being familiar to the prosecutor. Th e prosecutor said he struck venire member S immons because he resided in Berkeley and the prosecutor believed f

rom his experience it was not a good idea to have jurors who were familiar with the area of a crime. -16- strikes and that Malone had not shown those reasons to be pretextual. Review of this claim i s controlled by these factual findings which we must presume to be correct. 28 U.S.C. § 2254(e)(1); Purkett , 115 S.Ct. at 1771-72. We have also carefully considered the record of the proceeding and agree wit h the state court’s conclusions. 13

Malone also claims his counsel was ineffective in the sentencing phase of his trial by failing to contact his family about testifying and by failing to obta in a new psychological examination or to introduce an existin g psychological r eport. Malone specifically told his attorney not to contact family members to avoid causing them more pain. Malone of course would have been in the best position to know how his family reacted to his troub les with the law, and Missouri rules of professional responsibility provide tha t attorneys should, "defer to the client reg arding such questions as...concern for third parties...." Mo.R.P.C. 1.1. A professional guideline is a relevant
measur e to evaluate counsel’s performance. Strickland , 466 U.S. at 688

. Addit ionally, during Malone's Missouri postconviction proceeding his tria l counsel testified that he had talked with Malone's father and sister prio r to the Parr trial and that he thought he h ad spoken with the mother as well. He also had before him the record of the penalty phase of the Californi a trial which contained family testimony about Malone's upbringing an d backgroun d, including his violations of the law from an early age. Th e deci sion not to call family members to testify in mitigation has bee n recogn ized as a "strategic decision" that is "normally left to counsel' s judgment." Fretwell v. Norris , 1998 WL

## -17-

35 83, *6 (8th Cir. 1998) (internal citations omitted). As to th e psychological e vidence, the record does not indicate that Malone behaved in a manner sugges ting the need for a new examination, and his existing report
con tained potentially damaging evidence relating to his misconduct in Sa n Quentin and his extensive criminal history.
Counsel's decisions thus appea r to fall within the range of reasonable representation, Strickland , 466 U.S. at 68 6; see also Hayes v. Lockhart , 852 F.2d 3 39, 348 (8th Cir. 1988), but even if we presume his attorney' s performance was deficient, Malone has not shown prejudice. Counsel conceded at oral argumen t that at least one of the four aggravating factors found by the jury was valid, and this is sufficient to support a death sentence under Missouri law. State v. Kenley , 693 S.W.2d79, 82 (Mo. 1985) (en banc). The facts of the Parr murder suggested a callous indifference to the life o f another, and the jury heard evidence that at age twenty Malone had bee n involved in multiple murders over the course of several days. When t estimony by Malone's fam ily was considered in a hearing on his Rule 29.15 motion, it demonstrated that Malone was involved in criminal activity at a young age and tha t he had consistently demonstrated anti-social behavior. His existin g psychological report showed that he had pr essured other inmates to get their food and had physically threatened guards in jail. Such evidence of a troubled background and violent behavior i s "by no means uniformly helpful." Burger v. Kemp , 483 U.S. 776, 793 (1987). In light of the whole record any mi tigating evidence from family members about his upbringing an d psychological difficulties would not have made a different sentenc e suf ficiently likely to support an ineffective assistance of counsel claim

. Id at 694.

IV.

Kelvin Malone has brought many claims in this habeas petition, bu t alm ost all of them were never properly presented to the state courts, an d Malone has not shown he can meet any excep tion to excuse the procedural bars to consideration of these claims. His single unbarred claim has not bee n stated with sufficient specificity to be

## -18-

considered. After thorough consideration of the record, we affirm th e judgment of the district court. HEANEY, Circuit Judge, dissenting.
I respectfully dissent. The all-white jury that convicted Kelvin Malone, a 20-year-old black male with a tenth grade education , was empaneled in violation of Batson v. Kentucky , 476 U.S. 79, 89 (1986) (holding that equa l protection clause forbids prosecutor to cha llenge potential jurors solely on account of race). Moreover, Malone was denied the eff

ective assistance of counsel at the penalty phase of his trial. Each of these constitutional error s constitutes an independent basis for the issuance of a wr it of habeas corpus, and both issues were properly preserved for review by this court. For these two reasons, I w ould remand this case to the district court with directions to issue a writ of habeas corpus ordering the state court to vacate Malone’s sentence and conviction. My understanding of t he history of this dispute, as well as the controlling law, is somewhat different than that of the majority and is set forth below.

I.

On March 31, 1984, an all-white jury in the Circuit Court of St. Louis County, Missouri found Kelvi n Malone guilty of the March 17, 1981 murder of William Parr, a white St. Louis cab driver. Malone, a black male,
was twenty years old on the date of the offense. He had a tenth-grade education. On April 1, 1984, the jury recommended

a sentence of death for the offense. After the Missouri court imposed sentence on April 26, 1984, Malone was returned to California, where he remains on death row for a murder he committed in that state.
The trial court appointed William Aylward, St. Louis County Assistant PublicDefender, to represent Malone on November 28, 1983. He did not begin work on Malone’s case, however, until about two weeks before the trial was scheduled to start.

## -19-

Before trial , Aylward talked with Malone on several occasions and reviewed the police records, but he failed t o intervie w any of the witnesses identified in the police reports or by Malone. He did not offer any evidence at trial. The state was represented at the two-day trial by two prosecutors.

At the penalty phase of the trial, the public defender presented no witnesses to humanize Malone or t o explain the circumstances of his life leading to his crimes. He cal led only one witness, an academic who testified that there was no evidence to support the view that the death penalty is an effective deterrent. Malone unsuccessfully appealed his conviction and sentence to the Missouri Supreme Court. State v. Malone , 694 S.W.2d 723 (Mo. 1985) (en banc).
On July 3, 1986, Malone’s counsel filed an initial motion for post-conviction relief under Missouri Supreme Court Ru le 27.26 (repealed 1988). Following consultation with new appointed counsel, Malone filed an amended Rule 27.26 motion on March 13, 1987. Twenty-two claims were raised in this motion, including claims that the state use d its peremptory challenges to strike all blacks from the jury and that Malone’s counsel was ineffective at the penalty phase of the trial for failing to investigate or present mitigating evidence. On June 30, 1987, the state filed a mo tion to dismiss Malone’s Rule 27.26 motion; because Malone was in custody in California rather tha n Missouri, a Rule 27.26 motion did not lie. The district court dismissed the motion with the simple words “s o ordered.” The Missouri Court of Appeals affirmed, stating that dismissal did not prejudice Malone’s right to file a motion under the newly adopted Rule 29.15 so long as he filed on or before June 30, 1988. Malone v. State , 747 S.W.2d 695, 701 (Mo. App. 1988).

On May 24, 1988, Malone’s counsel filed a Rule 29.15 motion for post-conviction relief assertin g essentially the sa

me claims set forth in his amended Rule 27.26 motion. On July 21, 1988, Malone’s counsel filed an amended Rule 29.15 motion incorporating by reference all claims raised in the May 24th motion and stating

## The motion court relied on the report of the trial judge to the Missouri Supreme 14 

## Court, item E5, to suppor

t this finding. For whatever reason, item E5 was not made a part of the record submitted to our cour t, but we have subsequently obtained a copy of that report and it is properly considered as a part of the record. -20- additional facts in support of some of the claims. Following a January 12, 1989 evidentiary hearing, the motion court denied each of Malone’s claims on the merits.
With respect to Malone’s claim under Batson , the motion court stated that Malone was not a member of a racially-cognizable gr

oup as required by Batson because his mother was white and his father was black. The court stated that nei ther Batson nor its progeny had recognized a person of mixed racial heritage as being a member of a racially-cognizable group. As an additional basis of decision, the motio n court held that blacks were not intentionally excluded from the jury. In so doing, the court relied on the trial judge’s report to the Supreme Court of Missouri that reached the same conclusion. According to the motion court, thefindings by the judge who witnessed the entire jurys e lection procedure resolved the issue as to whether blacks were excluded from the jury panel in favor of the state and these findings precluded further review of this issue through res judicata. 14
Malone appealed to the Misso uri Supreme Court. During the appeal, the state challenged for the first time Malone’s original and amended Rule 29.15 motions as insufficient under Rule 29 .15(d) because they were unverified. See Malone v. State , 798 S.W.2d 149 , 150 (Mo. 1990) (en banc). The Missouri Supreme Court, stating that it was faced with an incomplete record with respect to the Batson claim and the verification issue with regard to ineffective assistance of counsel, remanded the matter to “the trial court to conduct an evidentiary hearing and determine whether [Malone] complied with the verifica tion provisions of Rule 29.15 and whether [Malone’s] trial jury was impaneled contrary to the teachings of Batson v. Kentucky , 476 U.S. 79 (1986) and State v. Antwine , 743 S.W.2d 51 (Mo. banc 1987).” Id.

## -21- On January 19, 1990, the trial court conducted the evidentiary hearing. Prior to the court’s ruling , defendant’s counsel filed a motion for leave to supply verification for the original and amended motions. The court denied the request. On March 26, 19 90, the trial court dismissed Malone’s Rule 29.15 motion, ruling on the merits of his Batson

chall enge, and held that the failure to file a properly-verified motion on or before June 30, 1988 with respec t to the remaining issues deprived the court of jurisdiction to hear the matter. The trial court dismisse d Malone’s motion and the Missouri Supreme Court affirmed. Malone , 798 S.W.2d at 151.
Malone next filed a petition for habeas corpus with the federal district court. In his petition, Malone raised some twenty-th

ree claims including that his trial counsel rendered ineffective assistance at the penalty phase of his trial and that, under Batson , the prosecution improperly struck black jury panel members in violation of his equal protection rights. The distr ict court considered and denied each claim in the motion both on the merits and because Malone did not comply with the state verification requirements.

II.

In Fo rd v. Georgia , 498 U.S. 411 (1991), the Supreme Court held “that only a ‘firmly established an d regularly followed state practice’ may be interposed by a state to prevent subsequent review by this Court of a federal consti tutional claim.” Id. at 423-24 (quoting James v. Kentucky , 466 U.S. 341, 348 (1984)) (citation omitted)

. Here, the verification rule was not firmly established or regularly followed at the time Malone filed his initial Rule 27.26 motion on July 3, 19 86, when he filed his amended Rule 27.26 motion on March 18, 1987, when he filed his initial Rule 29.15 motion on May 24, 1988, or when he filed his amended Rule 29.15 motion on July 21, 1988. A brief history of the verification requirement in the Missouri state courts illustrates this fact.

## -22- On Septemb er 11, 1990, the Missouri Supreme Court considered the post-conviction motion of Jame s Rodden for relief from a m

urder conviction. Rodden v. State , 795 S.W.2d 393 (Mo. 1990) (en banc). In that case, Rodde nfiled a pro se Rule 27.26 motion attacking his murder conviction. His motion was neither signed no r verified. Rather, counsel signed it “James Rodden by Lee Nation.” The filing, according to Rodden’s testimony,
wa s accomplished without his knowledge or consent. On July 21, 1988, Rodden filed a first amended Rule 27.26 motion , which was again signed only by Rodden’s counsel. On August 31, 1989, a second amended Rule 27.2 6 motion was filed. It, t

oo, was neither signed nor verified by Rodden. On the same day, the trial court ruled against Roddenon the merits. The state argued that the Missouri Supreme Court lacked authority to review the decision becaus e of the absence of verification of the post-conviction motion. The Missouri Supreme Court agreed to hear the case on the merits stating:

Even a n essential element of a pleading, like verification, may be added by amendment. Drury Displays, Inc. v. Board of Adjustment , 760 S.W.2d 11 2, 114-15 (Mo. banc 1988). In this case, the state went to trial on the merits without any objection to deficiencies in the pleadings. The firs t objection to the pleadings was before this Court on appeal. Any deficiencies in the pleadings were waived, the pleadings are treated as amended to conform with the evidence, and the state may not raise lack of verification of the Rule 27.26 pleading for the first time on appeal.
Id. at 395 (citations omitted). Here, as in Rodden , the lack of verification was raised for the first time on appeal, yet the state court dealt inconsistently with the two cases.

Two months later in State v. Vinson , 800 S.W.2d 444 (Mo. 1990) (en banc), the Missouri Supreme Court again considered jurisdiction over an unverified, amended, Rule 29.15 motion. The court, citing the instant case, Malone , 798 S.W.2d at 150, dismissed the motion for want of jurisdiction. Chief Justice Blackmar dissented , stating:

## -23- I cannot agree that the Court lacked jurisdiction to consider the amended 29.15 motion. I would hold, rather, that when the state provides counsel for a postconv iction movant, and that counsel fails to procure the movant’s verification on an amended motion which is otherwise timely, the Court may allow the verification to be supplied at a later time.
Proceed ings under Rule 29.15 are civil. It is uncommon in civil proceedings to hold that the filin g of defective papers deprives the Court of jurisdiction. The usual remedy is to permi t defects to be corrected by amendment. The law has been particularly intolerant of those who make no mention of a pleading defect until the trial court has ruled and then seek to disadvantage their opponents by claims of procedural defect. Rule 55.33(b). Nothing in the text of Rule 29.1 5 indicates that proceed

ings under that rule are to be treated in a way different from what is usual in civil actions. Such phrases as “a nullity,” or “failed to invoke the circuit court’s jurisdiction” are simply bootstrapping. The Court could perfectly well allow the verification to be supplied when the defect is pointed out. This wo uld allow the state to enjoy all of the real or imagined benefits of verification.

. . . . Someof the opinions on this subject suggest that the verification requirement serves a n expediting purpose. I cannot see that i t expedites the proceedings in any way. There rather will be proce dural hassles and a ping-pong match between state and federal courts, if this movant i s obliged to pursue other postconviction remedies.
Id. at 450-51 (Blackmar, C.J., dissenting).

Six months la

ter, the Missouri Supreme Court decided Sanders v. State , 807 S.W.2d 493 (Mo. 1991) (en banc), and Luleff v. State , 807 S.W.2d 495 (Mo. 1991) (en banc). In Sanders , the movant was convicted of murder in the fir st degree and sentenced to death. His Rule 29.15 motion for post-conviction relief was denied without an evidentiary hearing. Sanders filed a pro se motion for post-conviction relief

## -24-

on April 25, 1988. The following day the court appointed the office of the public defender to represent him, and the court grante d the public defender’s motion for additional time within which to file an amended motion. O n November 29, 1988, counsel filed an addendum to the pro se motion that was neither signed nor verified by Sanders. On January 19, 1989, counsel filed a completed pro se Rule 29.15 form that had been signed and verified by Sanders back on May 5, 1988, soo n after he filed the pro se motion. The trial court dismissed the amendment as not timely filed. In reversing the district court, the Missouri Supreme Court stated:

Until tod ay [April 9, 1991] this Court has not deviated from its firm position that failure to timely file a motion constitutes a compl ete bar to consideration of a movant’s claims, even when the claims are attributable entirely to inaction of counsel. . . .
In Lu leff v. State , 807 S.W.2d 495 (Mo. banc 1991), decided today, this Court altere d course. The

re the record reflected that movant’s appointed counsel took no action whatsoever on movant’s behalf, thereby apparently failing to comply with the provisions of Rule 29.15(e). On the face of the record it appeared that movant was deprived of meaningful review of his claims. The question then became one of the appropriate forum in which to address the claims of abandonment of counsel. This Court held the appropriate forum to be the motion court. The considerations underlying this Court’s holding in Luleff are equally compelling in this case where the record reflects that counsel has determined that there is a sound basis for amending th e pro se motion but fails timely to file the amended motion as required by Rule 29.15(f). Th e failure is, in effect, another form of “abandonment” by postconviction counsel.
Id. at 494-95 (original emphasis and citations omitted). The court then laid down explicit guidelines for counsel to follow in future cases.

## -25- At such time as counsel may seek leave to file pleadings out o f time, the motion shall set forth facts, no t conclusions, showing justification for untimeliness. Where insufficiently informed, the court is directed to make independent inquiry as to the cause of the untimely filing. The burden shall be on the mova nt to demonstrate that the untimeliness is not the result of negligence or intentiona l conduct of the movant, but is due to counsel’s failure to comply with Rule 29.15(f). If the court de termines that the untimeliness resulted from negligence or intentional conduct of movant, th e court shall not permit the filing. Should the failure to file a timely amended motion result fro m inattention of counsel, the court shall permit the filing.
Id. at 495 (original emphasis omitted).
The same year, the Missouri Supreme Court considered the first-degree mu rder conviction of Leamon White. State v. White , 813 S .W.2d 862 (Mo. 1991) (en banc). White filed a timely but unverified post-conviction motion on August 17, 1989. The m otion court appointed counsel on September 25, 1989. The first counsel withdrew and a new post-conviction counsel was appointed. New counsel failed to file a timely verified motion. White argued that his second counsel effec tively abandoned him by failing to file a timely verified motion. The supreme court stated: “Counsel’s withdrawal, failure to file a timely amended motion, and failure to verify and allege sufficient facts raise serious questions as to whether the movant received postconviction representation in the sense of Rule 29.15.” Id. at 864 (original emphasis omitted). The court remanded to the motion court for further proceedings consistent with Sanders

.
In State v. Clay , 817 S.W.2d 565 (Mo. Ct. App. 1991) . David Lee Clay’s counsel first raised certain issues in an amended Rule 29.15 motion that was not timely filed nor verified. The court stated:

## -26- If movan t can establish that the failure to verify and timely file is caused by the inattention o f counsel, the amended motion can be filed and ruled on.

. . . . If the failure to verify was Clay’s fault, the amended motion is a nullity and the motion court has no jurisd iction. If, however, the untimeliness was counsel’s fault, the motion court must treat the 29.15 motion as timely filed. And, if the failure to ver ify is counsel’s fault, the trial court must take approp riate steps to have the amended motion verified so that it properly invokes the jurisdiction of the motion court.
Id. at 569 (citations omitted).

In Hutchinson v. State , 821 S.W.2d 916 (Mo. Ct. App. 1992), the movant filed a pro se Rule 29.15 motion
on June 28, 1988, contending that his trial counsel was ineffective. On August 25, 1988, the court appointe d counsel, who filed an unverified Rule 29.15 motion on October 28, 1988. In that case:

An e videntiary hearing was held on January 26, 1990. The motion court stated at th e hearing that its review was limited to the claims alleged in the pro se motion. Limited testimony was hea rd concerning the allegations in the amended motion. The court denied the pro se motion and concluded that because the am ended motion was unverified, the claims alleged in the amended motion were “time barred and procedurally waived.” . . . . For his sole po int on appeal, movant contends that the trial court erred in not considering the grounds raised in the unverified amended motion and in not inquiring into the cause of th e fa ilure of the amended motion to be verified. The general rule is that an unverified motion is a nul lity which fails to invoke the jurisdiction of the trial court. However, the Missouri Suprem e Court modi fied the strict application of this rule in State v. White , 813 S.W.2d 862 (Mo. ban c 1991). If a movant can

## -27-

establish that the failure to verify is caused by the inattention of counsel, the amended motion can be filed and ruled on.

. . . [W]e mu st remand to the motion court for a determination of the cause of the lack o f verifi cation. The motion court must make a factual inquiry into the cause of the violations b y holding an evidentiary hearing or, if the facts are undisputed, by examining the record. The court must make findi ngs of fact on the question of whether the failure to verify results from th e negligence or intentional conduct of movant or from the inattention of counsel. If the failure t o verify was movant’s fault, the amended motion is a nullity and the motion court has no jurisdiction. If, however, the untimeliness was counsel’s fault, the motion court must take appropriate steps to have the amended motion verified so that it properly invokes the jurisdiction of the motion court. If, as a result of the motion court’s findings, the amended motion is filed and verified, the motion court should then proceed to review the allegations of the motion.
Id. at 917-18 (citations omitted).

A careful review of the above-cited cases leads to the concl usion that the state’s verification rule was neither firmly established nor regularly followed when the Supreme Court of Missouri affirmed the trial court’s dismissal
o f Malone’s Rule 29.15 motion for lack of verification. Although the Missouri Supreme Court regularly used the language of jurisdiction, its decisions belie that posture. Moreover, as noted in Chief Justice Blackmar’s dissent in Malone , the majority of the state court ignored Rodden , which had been decided less than one month before. The verificatio n rule was not firmly established when Malone filed his Rule 27.26 motions nor when he filed his initial or amended Rule 29.15 motions on July 3, 1986 and July 21, 1988, respectively.

In any event, failure to file a timely-verified motion was the fault of his appointed counsel, not Malone , which brings Malone within the purview of Vinson , Sanders , Luleff , White , Clay , Hutchinson . Malone was a prisoner in California when counsel was appointed to represent him in the post-conviction proceeding. Counse l should

## -28-

have bee n aware of the verification requirements under the rules, yet failed to take timely action to have that requirement

fulfilled. With respect to the Rule 29.15 motion, Malone’s counsel explained the procedural reasons why Malone had to file a new motion, but did not remember whether she informed him that the new form had to be verified. Malone exp ected that his counsel would file a proper Rule 29.15 motion on his behalf. Between the time of the filing of the original Rule 29.15 motion and prior to the filing of Malone’s amended motion, an attorne y reviewed the file and noticed that the initial Rule 29.15 motion had not been verified. He immediately sent a new form to Malone in California. During the week of September 12, 1988, Malone’s lawyer found a verified, signed copy of the Rule 29.15 motion, notarized on the 12th day of July, 1988 and postmarked July 25, 1988.
Counsel’s failures to verify are not to be treated under the rubric of ineffective assistance of post-conviction counsel, but rat her as an abandonment of counsel. The fact that the Missouri Supreme Court in 1991 set forth guidelines for counsel to follow in future case s does not support the state’s view that the verification rule was firmly establishedand regularly followed at the time that Malone’s motions were filed. In the cited cases the Missouri Su preme Court remanded to the motion court to determine whether the fault for lack of verification lay with th e movant or with the movant’s counsel. Here, the record is clear that the fault lay with counsel, not Malone. Thus, in my view, lack of verification does not constitute procedural default under state law in this case.

III.
Defense counsel moved to quash the jury panel at the conclusion of voir dire and for a mistrial post-verdict because the defendant’s equ al protection rights were violated by the prosecuting attorney’s intentional exclusion of all four black members of the jury

## Inresponse to Malone’s post-verdict motion to quash the jury and for a new 15 

## trial, the state responded that Mr. Malone was not black. The state expressed the view that Malone could not challenge the exclusion of bl ack jurors because he was of mixed race, being the child of a white mother and a black father. A d irect appeal in the instant case was still pending, however, at the tim e 16 

## Batson was decided. Thus, the Batson test is the appropriate one to apply in this case. Att he time of trial, however, the prosecutor’s use of peremptory challenges wa s coveredby Swain v. Alabama , 380 U.S. 202 (1965). In Garrett v. Morris , 815 F.2d 509 (8th Cir. 1987), we held that the decision in Swain does not completely insulat e a pros ecutor’s use of peremptory challenges in a given case where the prosecuto r volunteers the reasons for his actions and makes them part of the record. The record is then no longer limited solely to proof that the prosecutor has used h is peremptory challenges to strike all black jurors from th e defendant’s jury panel, and the presu mption that the prosecutor has acted properly falls away. At that point, the court has a duty to sa tisfy itself that the prosecutor’s challenges were based on constitutionally permissibl e trial-relatedconsiderations, and that the proffered reasons are genuin e ones, and not merely a pretext for discrimination.
Id. at 511.
Here , the state’s response that Malone was not black is not only disputed a t every phase of the record, but this statement, as noted in Garrett , required the court to satisfy itself that the challenges were based on constitutionall y-permissible, trial-related considerations. -29- panel. Although the prosecutor offered no race-neutral explanation for the strikes at the time of trial, the court 15 nonetheless denied the motions. 16

Ma lone raised the Batson issue at trial, in his first amended motion to vacate his sentence under Supreme Court Rule 27.26 dated March 13, 1987, in his Rule 29.15 motion dated May 24, 1988, and in his first amended Rule 29.15 motion filed on July 20, 1988. The Missouri Supreme Court, on appeal of the trial court’s denial of

## -30-

Malone’s Rule 29.15 motion, explicitly remanded the case to the trial court to conduct an evidentiary hearing and determine whether Malone’s trial jury was i mpaneled contrary to the teaching of Batson and Antwine

. Malone , 798 S.W.2d at 150.
On remand, the trial court conducted an evidentiary heari ng and determined that Malone established a prima facie case under Batson . The trial court f ound that Malone was black and therefore a member of a cognizable racial group. The court also found that the state utilized three of its nine peremptory strikes to remove blacks from the jury pan el and one of its two strikes in the alternate pool to strike a potential black alternate, leaving Malone to be tried by an al l-white jury. The court directed the prosecutor to explain his reasons for striking the four blac k members of the venire: Henderson, Grooms, Simmons, and Goode. For the first time the prosecutor outlined his
reasons for making the disputed strikes. He stated he struck Henderson because she was the victim of an arme d robbery a few years before in which no person was ever charged with the offense. He stated that he struck Grooms because he stated his objection to the death penalty and because he indicated he would attempt to convince others of his view. The prosecutor defended his strike of Simmons because Simmons resided in Berkeley. Finally, he stated that he struck Goode because he looked familiar and because he was the son of a minister or pastor of a church. The court found that the prosecutor provided credible, rational, neutral explanations for each of the questione d peremptory st

rikes and that the state’s actions were properly based on verbal and nonverbal communications from jurors and on the prosecutor’s previous experiences. Finally, the court found that Malone had failed to show that the stated explanations were pretextual. The Missouri Supreme Court affirmed over Chief Justice Blackmar’ s dissent.

After the Mis souri Supreme Court denied relief, Malone raised his Batson claim as part of his petition for habea s relief in federal district court. The court denied relief, holding that Malone had defaulted the claim in light of the state court’s dismissal of his Ru le 29.15 motion. In the alternative, the district court denied Malone’s Batson claims

## The record overwhelmingly supports this fact of Malone’s race . At every point 17 

## in the trial, he was referred to as a black man. It is difficult to understand the confusion of this question at various points in Malone’s state proceedings, such as when the trial court reported that Malone was “an Asiatic-Moorish-American.” -31- on the merit s. It concluded that the prosecutor’s reasons for striking each of the black prospective jurors wer e racially neutral on their face. The court rejected Malone’s argument that the state’s proffered reasons for striking Henderson and Goode from the venire panel were pretextual. With respect to venirepersons Grooms and Simmons, the court also c oncluded that, because Malone made no attempt to persuade the court that the prosecutor’s reasons for striking them were pretextual, he was not entitled to habeas relief.

As an initi al matter, because the Missouri trial court, the state post-conviction court, and the Missour i Supreme Court hav e all considered the Batson issue on the merits, the federal habeas court should do the same. In t he alternative, assuming the Batson claim was not denied on the merits but because Malone’s Rule 29.15 motion was unverified, the claim nonetheless should have been considered by the federal habeas court on the merits because,
as discussed previously, the verification requirements were not firmly established or regularly followed when th e Missouri Supreme Court decided Malone

.
Malone established a prima facie case under Batson . As the state now concedes, Malone is black. 17 Moreover, th e prosecutor struck all four blacks who remained on the thirty-four-person jury panel after all othe r panel members had been either successfully challenged for cause or excused for other reasons.

I next consider whether the government offered race-neutral reasons for peremptorily challenging all four blacks on the thirty-four-person venire from which the jury was selected. “[U]nder Batson , the striking of a single black juror for racial

## -32-

reasons violates the equal protection clause, even th ough other black jurors are seated, and even when there are valid reasons for the striking of some b lack jurors.” United States v. Battle , 836 F.2d 1084, 1086 (8th Cir. 1987) (citing United States v. Gordon , 817 F.2d 1538, 1541 (11th Cir. 1987); and United States v. David , 803 F.2d 1567, 1571 (11th Cir. 1986)). Thus, a single, improperly-stricken juror constitutes a basis for granting a new trial.

I agree with the district court that the prosecutor stated a race-neutral reason for challenging Kenneth Grooms. Grooms stated during voir dire that he opposed the death penalty. Moreover, I find no evidence in th e record that the prosecutor’s reason for striking Grooms was pretextual. I note, however, that there is no support in the reco rd for the prosecutor’s statement that Grooms indicated he would attempt to convince other jurors of hi s view.

In c ontrast, the district court’s decision to sustain the state’s peremptory challenges to Henderson an d Simmons is not fairly supported by the record. The prosecutor testified at Malone’s post-conviction hearing that he struck Kim Henderson because she had been the victim of an armed robbery in 1980 and no one had been charged in the offe nse. In this circuit it is well established that a litigant may not justify the peremptory challenges to a veni remanof one race unless veniremen of another race with comparable or similar characteristics are als o challenged. Davidson v. Harris , 30 F.3d 963 , 965 (8th Cir. 1994); Walton v. Caspari , 916 F.2d 1352, 1361-62 (8th Cir. 1990 ); Garrett v. Morris 815 F.2d 509, 513-14 (8th Cir. 1987). In other words, Malone can establish that an otherwise neutral explanation is pretextual by showing that the characteristics of a stricken black panel member are shared by white panel members who are not stricken. According to the voir dire transcript, the prosecutor failed to strike several

white panel members who also had been victims of robberies or burglaries in which no one had been charged for the offense. These included Gerald J. Bush (house broken into in 1977; no one charged), Kenneth G. Hrebec (father’s grocery store robbed two or three times over ten years before trial), Janet I. Pettigrew

## -33-

(home broken into three or four years before tr ial), and Minnie B. Hopkins (home broken into twice ten years before trial). The prosecutor did not specifically ask Henderson whether the fact that no one had been charged in her case would a ffect her view of Malone’s case. To the contrary, when asked, along with other members of the panel , whether the fact that she or her friends or relatives had been crime victims would prevent her from being a fair and impartial juror in this case, Henderson did not indicate that she would have any problems. Therefore, despite the state’s proffer of a race-neutral reason for excluding Henderson from the jur y, the record demonstrates that the reason is pretextual. I thu s believe it clear that the prosecutor violated Batson and Malone’s constitutional rights when he excluded Henderson from the jury.
The prosecutor claimed that he s truck Simmons based on his address in Berkeley, that the murder occurred in Berkeley, that Malone had ties to persons in Berkeley, and t hat some of the trial witnesses were friends of Malone. The district court accepted these reasons as race neutral. The court also stated that Malone failed to argue that the prosecutor’s r eason was pretextual. I disagree with both conclusions. At voir dire, the prosecutor did not as k Simmons a single question, let alone questions about where he lived, the extent of his ties to the Berkeley area, or whether he was acquainted wit h any of the potential witnesses. It was not until the post-conviction hearing that the prosecutor advanc ed the claim that he struck Simmons for the reasons stated above. Yet, he failed at the post

co nvictionhearing to develop any testimony that could reasonably support his belief that Simmons might b e influenced in any way by the fact that he lived in the area where the murder occurred. Moreover, I cannot accept the district court’s assertion t

hat Malone is without recourse because he failed to argue that the reason advanced by the prosecutor

at the post-conviction hearing was pretextual. That the prosecutor’s rationale was entirely ad hoc and unsupported by any statement at voir dire is sufficient toraise the issue of pretextuality. On its face, I do not believe th atthe prosecutor’s reason was race neutral given the concentration of persons of color living in Berkeley

. Moreover, even if the proffered reason were considered race neutral, Malone has established that it was pretextual in light of the fact

## -34-

that Simmons was asked no relevant questions a nd volunteered no relevant information to support the prosecution’s position.
Finally, I am convinced that the district court erred in sustaining t he state’s peremptory challenge to alternate Goode. Th e prosecutor stated that he struck Goode because he looked familiar to him and because he was the son of a minister or pastor of a church. Neither reason withstands scrutiny. The colloquy between the prosecutor and Goode was as follows:

MR. McCULLOCH: . . . . Mr. Goode -- I don’t know -- while I’ve been sitting here, you look very familiar to me. Do I look familiar to you? Do you think you know me at all?
VENIREMAN GOODE: Not off hand.
MR. McCULLOCH: You work for the Postal Service? VENIREMAN GOODE: Right. MR. McCULLOCH: Are you a letter carrier?
VENIREMAN GOODE: No. A truck driver. MR. McCULLOCH: Okay. Well, that wouldn’t be it. You live in the Ferguson area?
VENIREMAN GOODE: No. Florissant.
MR. McCULLOCH: Florissant?
VENIREMAN GOODE: Um-hum. MR. McCULLOCH: That could be it, from th e Florissant area. In any event, I don’t look too familiar to you, do I? You don’t think you know me?

## In addition, Bush stated that his home had been broken into in 1971 and no one 18 

## was prosecuted. Bush revealed the following at voir dire:

MR. AYLWARD: Are you affiliated with any religious group?
VENIREM AN BUSH: To a certain degree, yes. I spen t approximately seven years in the ministry. MR. AYLWARD: Do you attend church at this time?
VENIREMAN BUSH: Yes. MR. AYLWARD: And your family as well?
VENIREMAN BUSH: Yes.
Id. at 137-38. According to the prosecutor’s testimony, a similar incident justified the exclusion of Henderson from the jury. Thus, the jury foreperson, a white male , possessed two of the traits allegedly deemed unacceptable by the prosecution. -35- VENIREMAN GOODE: No, I don’t.
Id. at 223-24. Later, Malone’s counsel questioned Goode as follows:

MR. AYLWARD: Okay. Mr. Goode, do you attend any church or -- MR. GOODE: Yes, I do. MR. AYLWARD: Do you attend regularly? MR. GOODE: Yeah. My dad, he’s a pastor.
Id. at 238. It is apparent from the colloquy t hat the prosecutor had little or no basis for his claim of familiarity; and, in any case, the state did not develop the record to suggest how an y familiarity might adversely affect Goode’s ability to sit on the jury. As to the second reason, Malone has established that it was pretextual because Gerald J. Bush, the jury foreman, had spent seven years in the ministry and he was not challenged by the prosecutor. 18

## -36- IV.

In both his state and federal habeas corpus petitions Malone claimed that his trial counsel provide d ineffective as sistance at the penalty phase of his trial by failing to investigate and present mitigating evidence

. Specifically, Malone claims that his trial counsel failed to inte rview or call his family members failed to have Malone psychologically evaluated or present available evidence of Malone’s psychologi cal history. Although the district court concluded that Malone’s counsel rendered effective assistance, I disagree.

To succeed on h is claim of ineffective assistance of counsel, Malone must show (1) that his counsel’ s performan ce

was professionally unreasonable under all the circumstances, and (2) that there is a reasonabl e probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different

. Stricklandv. Washington , 466 U.S. 668, 694 (1984). “When a defendant challenges a death sentence[,] . . . the que stion is whether there is a reasonable probability that, absent the errors, the sentencer--including an appellat e court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circ umstances did not warrant death.” Id. at 695. Always, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result the defendant challenges. Id. at 696.
In a death penalty case, counsel is obligated to collect as much information as possible about the defendant for use at the penalty phase. Hill v. Lockhart , 28 F.3d 832, 845 (8th Cir. 1994). This is so because the sentencing battle must be one between the particularized nature of the crime and the particularized characteristics of the

## -37-

individual defendant. Woodson v. North Carolina , 428 U. S. 280, 303 (1976) (holding unconstitutional a state firstdegree-murder

statute that carried automatic death sentence); see also Eddings v. Oklahoma , 455 U.S. 104, 11 2 (1982); Lockett v. Ohio , 438 U.S. 586, 605 (1978). As the Supreme Court has stated:
[I]n capital cases the fundamental respec t for humanity underlying the Eighth Amendment requires cons iderationof the character and record of the individual offender and the circumstances of a particular offense as a constitutio nally indispensable part of the process of inflicting the penalty of death.
Woodson , 428 U.S. at 304 (internal citation omitted).
Under all the circumstances, the jury at Malone’s tria l was given no sense of the person he was. At the guilt phase of Malone’s trial, the jury returned i ts verdict at 11:00 p.m. on Friday, March 30, 1984. Despite the late hour and the fact that the next day was Saturday, the penalty phase of the trial began at 9:30 on the morning of March 31. The entire proceeding--including the jury’s deliberation on the appropriate punishment--lasted only four hours

. Malone was not even present during the penalty phase of the trial, having refused to attend. The only additiona l evidence submitted by the state were Malone’s prior convictions and sentences from California which the prosecutor read to the jury from certified court records.
For its part, the d efense presented just one witness: a professor from St. Louis University who offered his general, expert opinion that the death penalty was not an effective deterrent to crime. Malone’s trial counsel offered
no eviden ce to personalize, or even humanize, Malone in the eyes of the jury. He did not investigate or presen t evidence about Malone’s family, his upbringing, or his social, educational, psychological, or physical history. In fact, although trial counsel asked the jury to find

## Malone had just turned twenty years old at the time of the offense. By the time 19 

## of this Missouri trial, Malone was twenty-three years old and had spent the better part of the preceding three years doing “hard time” at San Quentin Prison. The record also indicates that Malone had a beard at the time of trial. Thus, it would have bee n unreasonable to expect the jury to intuit that Malone was a young man at the time of the offense based solely on his physical appearance at trial. Malone ’s mother testified that, while she knew her son had been move d 20 

## temporarily from California to Mis souri, she was unaware that he was standing trial in Missouri for capital murder until well after his conviction and sentence. -38- that Malon e’s age at the time of the offense was a mitigating factor, he never even told the jury how old Malon e
was. 19
Testimony developed during the state post-conviction proceedings reveals that Malone’s lawyer did nothing to investigate or develop mitigating evidence in prepara tion for trial. His conversations with Malone were so limited that trial counsel di d not even know that Malone had two children. Malone’s lawyer failed to speak to either of his parents, both of whom later stated for the record that they would have readily testified on their son’s behalf as they did durin g his two California trials. He did not request a psychological evaluation of his client nor did he review 20 the extensive psychological profiles developed on his client for the California proceedings. According to the record, Aylwar d made no specific preparations for the penalty phase other than to contact one academic and one religious expert on capital punishment.

The dist rict court accepted the government’s argument that counsel’s decision not to call family members was a strategic one pr

ompted primarily by Malone’s expressed preference not to put his family through the painful pro cess again. Under the first prong of Strickland , a particular decision not to investigate is assessed fo r reasonableness under the circumstances and a heavy measure of deference applies to counsel’s judgments. 466 U.S. at 691. Under the circumstances, however, it was unreasonable for counsel to completely abdicate his duty t o investigate and to

## -39-

un derstandthe very life he was asking the jury to spare. His performance is readily distinguishable from th e examples cited in Stricklandas circumstances in which limited or nonexistent investigation might be reasonable:
[W]hen the facts that support a certain potential line of defense are generally known to counse l bec ause of what defendant has said, the need for further investigation may be considerabl y diminished or eliminated altogether. And when a defendant h as given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.
Id. Malone and his lawyer barely communicated until two weeks prior to trial, at which point counsel focuse d primarily on preparing for the guilt phase of th e trial by reviewing investigative reports prepared by the state. Thus, Malone’s lawyer knew very little about what he might find if he investigated Malone’s personal history. It follows that, without knowing what information Malon e’s family could provide the defense, it was unreasonable for counsel to use Malone’s reluctance to cause his family pain as a justification for not doing the work involved in developing a picture of Malone’s character an d history. Without the necessary background information, Malone’s counsel was in no position to advise Malone on the importance of the mitigating evidence and on the likelihood that his family’s testimony might save his life. It seems clear that counsel’s performance during the penalty phase of Malone’s trial was unreasonably deficient.

With respect to the second prong of Strickland , Malone suffered prejudice as a result of his counsel’ s defi cient performance. Because Malone had twice stood trial for capital murder in California, his Missouri tria l counsel had a wealth of information from which he could have drawn a picture of Malone for the jury. But fo r counsel’s failures, the jury would have learned the following information from his family, friends, educators, and diagnosing psychologists: Malone is a mixed-race son of a white

## -40-

mother and a black father. He is the third child and oldest boy in a family of seven children. Malone is also th e father of two children who were ages one and four at the time of his trial. His father’s career in the military until 1971 ke pt him from the family for long periods during most of Malone’s childhood and the family moved often

. These freq uent relocations interrupted his education and exacerbated his academic and disciplinary problems

. Although Malone lived variously in West Point, New York; Fort Court, Texas; Wursbury, Germany; St. Louis , Mis souri; and Honolulu, Hawaii, his most consistent childhood home was the city of Seaside, California whic h suffered intense racial tension during Malon e’s youth. He was teased constantly for his mixed-race background and had difficulty finding acceptance with either the white community or with the burgeoning black power movement. Malone’s sma

ll size and frail physical condition also made him a target for constant ridicule. Malone dropped out of school in the tenth grade. His siblings and schoolmates universally described him as unpopular, hyperactive, a loner, and a child who was easily manipulated and bossed around.

Kelvin had several fall s and resulting head injuries as a child. Two of them required overnight stays in the hospital, the first when he was a pproximately eighteen months old and the second when he was about ten years old. Malone’s parents attributed many of Malone’s academic and socia l problems to these head injuries. Dr. Craig Rath,
aclinical psychologist who testified during the penalty phase of Malone’s trial in San Bernardino, California , disagreed. Dr. Rath spent at least nine hours with Malone over several visits while he was detained in California, administ ered psychological tests, and reviewed approximately sixty-four defense reports based on interviews with persons in Malone’s past. Based on that information, Dr. Rath positively diagnosed Malone as having suffered from untreated attention deficit disorder (ADD) as a child and w ith residual ADD and antisocial personality disorder since adulthood. Dr. Rath explained that in residual type ADD, the hyperactivity that characterizes childhood behavior often goe s away but problems with impulsivity, attention span and organizational skills remain. Dr. Rath als o determined that, because

## -41-

Malone’s ADD was the result of a small amount of organic brain damage, the roots of his problems are partiall y nonvolitional. Dr. Rat

h’s diagnosis is corroborated by the less-detailed 1982 report of Dr. William Jones, another licensed clinical psychologist in California. Dr. Williams examined Malone and found that he had a history of head trauma and “weak indications of underlying neurological dysfunction.”

WhileI acknowledge that none of this information about Malone’s personal history would have required the jury to find any statutory mitigating circumstance beyond a reasonable doubt, the fundamental fairness of the penalty-phase proceedings must be questioned. See Strickland , 466 U.S. at 696. I am convinced of the reasonable probability that, had the jury been apprised of Malone’s history, it would have concluded that the balance o f aggravating and mitigating circumstances did not warrant death. Id. at 695.

V.
Therefore, I would reverse the distric t court’s denial of habeas corpus relief for two reasons, both of which, for the reasons I have d

iscussed, were properly preserved for our review. First, the jury was impaneled in violation of Batson and the prosecution’s intentional, racially-motivated exclusion of all black members of the venire panel violated Malone ’s equal protection rights. Second, Malone was denied the effective assistance of counsel at th e penalty phase of his trial. Each of these constitutional errors constitutes an independent basis for the issuance of a writ of habeas corpus. I have examined each of the other claims of error in Malone’s petition and agree with th e district court and the majority that none of them justify relief. I would remand the case to the district court wit h orders to issue a writ of habeas corpus directing the state court to vacate Malone’s sentence and conviction.

## -42-

A true copy.

Attest.
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.