The Honorable James M. Rosenbaum, United States District Judge for the

1

District of Minnesota, sitting by designation.

The Honorable Jean C. Hamilton, Chief United States District Judge for the

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 death, appeals from the denial by the district court of his petition

2

for a writ of habeas corpus under 28 U.S.C. §2254. We affirm. 
-2-

I.

Kelvin Malone was convicted of the 1981 murder of William Parr, a 62

year old taxi driver in Berkeley, Missouri, a St. Louis suburb. Richard

Elder, a fellow Yellow 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 the

Greyhound Bus Terminal in St. Louis. Parr was first in line, and Elder

heard the dispatcher 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

saw a black man with a suitcase trying to hail a cab. Elder later

identified this man as Kelvin Malone. On his way home that night, Elder

heard the dispatcher 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.

Police later found an abandoned cab at 6105 Avila in Berkeley. A

local resident reported 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 blood

coming from his nose and right ear. He was taken to Christian Northeast

Hospital where he was pronounced dead on arrival.

There was evidence that Kelvin Malone had arrived in St. Louis from

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 with

Michael Crenshaw in Berkeley, heard a knock at the door. Bego heard

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 the Benham trial there was also evidence that Malone had kidnaped

Leroy Combs at gunpoint in Santa Maria, California on March 11, 1981 and that he and

Crenshaw murdered Jim Rankin (who disappeared from a Kansas City parking lot on

March 18, 1981).

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with Malone in Crenshaw’s car. After they departed, 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.

California police found Malone and Crenshaw asleep in Crenshaw's car

in San Jose on March 24 and asked for identification. The men drove off

instead and were apprehended after a high speed chase. The officers found

a small suitcase and two loaded .25 caliber pistols in the car. Three

bullets test fired from one of these guns were later compared to a .25

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 sentenced

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 directed him to move to trial as

quickly as possible; counsel began to meet with 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 of

information. Malone presented no evidence during the guilt phase of his

trial, and the only evidence he presented during the penalty phase was

expert testimony by
Counsel stated at oral argument that he understood federal habeas proceedings 4

were pending on Malone’s California convictions.

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Professor James Gilsinan that the death penalty is not an effective

deterrent. He also offered the testimony of Father Francis Cleary related

to historical justifications for the death penalty, but it was not received.

Malone directed his attorney not to contact members of his family about

mitigating evidence because he wanted to avoid causing them additional pain.

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

Malone’s direct appeal of his Missouri conviction was unsuccessful.

State v. Malone, 694 S.W.2d 723 (Mo. 1985) (en 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 was

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 later

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 whether 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 trial

court was instructed to make findings on whether this verification

requirement had been met and on whether the prosecution had exercised

racially motivated peremptory challenges. The court found that Malone had

not verified his petition and therefore dismissed it for lack of

jurisdiction. The Missouri Supreme Court affirmed, Malone v. State, 798

S.W.2d 149 (Mo. 1990) (en banc), and later dismissed as moot Malone’s

petition to recall the mandate and reinstate his appeal.
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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 of which had not. The district court denied his petition after

determining that most of the claims were procedurally barred because Malone

had failed to verify his petition as required by Rule 29.15 and had also

failed to present many of the claims in state court. After a thorough

review of the record, the court also concluded that his claims failed on the

merits and later denied Malone’s motion to alter or amend the judgment. 

II. 

The state argues that not all of Malone’s claims are properly before

the court because of the content of his notice of appeal. The district

court order denying 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 the judgment. The notice stated

that he was appealing, “...from the final order and judgment issued by the

Honorable Judge Jean C. Hamilton on January 17, 1996. This judgment and

order denied Mr. Malone’s habeas corpus claims 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 his

constitutional claims. It is appropriate in these circumstances to construe

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 to

appeal both from the judgment denying his petition as well as the subsequent

order, we waive the strict requirements of Rule 3(c). See Fed. R. App. P.

2.

Malone wishes to raise many issues on appeal, including various claims

of ineffective assistance of counsel. He alleges trial counsel was

ineffective in the guilt phase of his trial for failure to call two

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 George

F. Gunn to testify that he was not harmed during an armed
-6-

robbery by Malone, to introduce evidence of a polygraph suggesting that

Malone did not commit one of the California murders, to prepare adequately

for trial, to obtain a stipulation or testimony that two police officers

found initial ballistics comparisons inconclusive, and to object to evidence

of a towel used to wipe prints from Parr’s cab and to evidence that he gave

a false name when arrested, to an improper closing argument, to the

exclusion for cause of a potential juror based on his refusal to consider

the death penalty, and to several jury instructions. He argues that his

trial counsel was ineffective in the penalty phase for not presenting

mitigating evidence from his family and not obtaining a new psychiatric

examination or using the results of his California exam. Malone argues that

appellate counsel was ineffective by not raising on direct appeal every

issue raised in his postconviction litigation.

Malone also raises claims of prosecutorial misconduct. He claims the

prosecution should not have introduced evidence of his prior convictions or

misleading testimony by California prosecutor Gary Admire that Malone had

admitted in his California trial that he had been in the vicinity where Parr

was killed. He also says the prosecution improperly bolstered the

credibility of prosecution witnesses, argued facts not in evidence, and

mentioned that he had admitted being near the crime scene, that the jury

could act on the basis 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 was violated

by excuse of a venire member for cause based on his refusal to consider

application of the death penalty, by informing the jury of his prior

convictions, and by improper instructions on mitigating and aggravating

factors. In addition, Malone argues that the prosecutor exercised

peremptory challenges based on race in violation of his right to equal

protection.

A.
These ineffective assistance claims include failure to object to introduction of 5

a Greyhound bus schedule and to an improperly empaneled jury, failure to preserve

issues for appeal, and moving to strike venire member Berits for cause. (The latter

claim is puzzling since the 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 abandoned claims regarding jury selection are allegations that the venire

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-

Malone has abandoned several of the claims made to the district court

by not presenting them in his appellate brief. Jasperson v. Purolater

Courier Corp., 765 F.2d 736, 740-41 (8th Cir. 1985). The abandoned claims

include claims that he was denied due process and equal protection by

Missouri’s delay 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 petitioners

verify their postconviction relief petitions violated his rights under the

fifth, sixth, and fourteenth amendments, and a claim that the prosecution

withheld potentially exculpatory information. Malone has also abandoned

several claims of ineffective assistance of trial counsel, claims regarding 5

jury selection, two claims of prosecutorial misconduct based on delay of

6

trial and introducing hypnotically refreshed testimony, and a claim that

permitting Gary Admire to repeat Malone’s testimony from his California

trials violated his right against self incrimination. Other abandoned claims

include ineffective assistance by state postconviction counsel, a violation

of his right to confront and cross-examine witnesses through the lack of

preparation by trial counsel, failure to instruct the jurors on their ability

to consider in mitigation all factors of Malone’s character, and improper

instructions about the burden of proof and the weighing of aggravating

factors. The law favors an adversarial presentation of issues in order to

conserve judicial resources and to ensure that cases are resolved in the

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

for 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 arrest, a towel used to wipe prints from Parr’s

cab, and his prior crimes; to object to the composition of the jury panel or the exclusion

of a potential juror based on his opposition to the death penalty or improper closing

argument; to use the California psychological report; and to assess independently his

mental health. 

These claims are that the prosecutor engaged in misconduct by introducing

9

misleading evidence and evidence of Malone’s prior crimes and by an improper closing

argument (arguing that Malone had the burden of proof, that the jury could act on

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 therefore 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 state

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 with

Missouri Criminal Procedure Rule 29.15 requiring verification. Malone

responds that his claims were properly presented, or alternatively, that any

deficiencies in presentation may be excused.

Claims that have not been presented for state court review are

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 of

ineffective assistance of trial counsel, seven claims of prosecutorial

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 particular mitigating factors and not instructed on the limits Missouri imposes on

weighing aggravating and mitigating factors and that all elements of the crime and any

aggravating factors must be found beyond a reasonable 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 testimony on hypnotically

refreshed testimony, contact Crenshaw to testify, obtain stipulations or testimony that

initial ballistics tests were inconclusive, call his family to testify in mitigation, and use

his existing psychological report or obtain a new one.

-9-

in overseeing the striking of jurors for opposition to the death penalty, a

claim that his right to confront and cross-examine witnesses was violated by

trial counsel’s lack of preparation, four claims of improper jury

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 petition

contains all of his claims and to acknowledge that any not included are

waived. The purpose of the rule is to ensure that all claims can be

considered in one proceeding so verification is not just a meaningless procedural device. Kilgore v.

State, 791 S.W.2d 393, 395 (Mo. 1990) (en banc). The state trial court made a factual

finding that Malone had not verified his petition, and the Missouri Supreme

Court relied on that finding when it dismissed the petition for lack of

jurisdiction. Malone, 798 S.W.2d at 151.

Malone's counsel 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 include ineffective assistance of trial counsel, a claim that the prosecution violated his right to equal

11

protection by exercising peremptory jury strikes on the basis of race, that the court
Malone claims that Elder’s identification and hypnotically refreshed testimony 12

of another witness should not have been admitted and that he was prevented from

soliciting the testimony of Emmanuel Bego about Crenshaw’s whereabouts to show

that the latter was not available to testify. He claims that evidence of his California

death sentence should not have been admitted during the penalty phase and that the

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 order for a state procedural rule to prevent federal review of

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 the verification requirement of Rule 29.15 is an independent and

adequate state procedural bar. See Oxford v. Delo, 59 F.3d 741, 745 (8th

Cir. 1995). It is an independent state basis for decision because it is

neither intertwined with, nor dependent upon, federal law, Ake v. Oklahoma,

470 U.S. 68, 75 (1985), and an adequate basis because it meets the Ford test.

At the time Malone’s petition was dismissed for failure to comply with Rule

29.15, the Missouri verification rule was firmly established and consistently

enforced under the rule and its predecessor. 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); State v. Rector, 547 S.W.2d 525, 526

(Mo.Ct. App. 1977). The rule was readily ascertainable as well. Rule

29.15(d) clearly stated that a "movant shall declare" that all his claims are

included and that those not included are waived. Mo. R. Crim. P. 29.15(d).

 It also referred petitioners to Criminal Procedural Form No. 40, a sample

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 unverified state petition may not now be considered on the merits because

the bar in Rule 29.15 is an independent, adequate
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state ground for decision. Oxford, 59 F.3d at 745. This panel is bound by that holding unless the court en banc

were to reconsider 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 followed 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 consideration

of a petition. See State v. Vinson, 800 S.W.2d 444, 447 (Mo. 1990) (en

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.Ct. App. 1977). All but one of the

cases the dissent cites in support of its argument that the rule was

unsettled were decided after Malone failed to comply with the verification

requirement and after the rule had been applied to him.

The lone case the dissent relies upon that had been decided at the time

Malone’s petition was considered by the state courts does not help him. See

Rodden v. State, 795 S.W.2d 393 (Mo. 1990) (en banc). The merits of an

unverified petition were considered in Rodden, but in that case involving

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 petition 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 failure to make a timely objection in Rodden, the merits had to

be reached. The court expressly distinguished the new Rule 29.15, which

placed a time limit on amendments strict limitation on the time to amend a

petition in order to comply with the verification requirement and made

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 matter

when the objection is made. Id, citing Kilgore, 791 S.W.2d 393 and Reynolds,

783 S.W.2d 916. Malone failed to comply with this jurisdictional

prerequisite by not filing
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a verified Rule 29.15 motion even though verification was a well settled and

consistently applied rule at the time. There is therefore no inconsistency

between his case 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 does

not amount to procedural default because the fault was that of his

postconviction counsel and subsequent Missouri cases required a remand in

such circumstances to explore fault, but these cases were not decided until

after Malone’s petition was rejected. There is no entitlement to

postconviction counsel, Coleman v. Thompson, 501 U.S. 722, 755 (1991), and

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

any event, Malone was not prejudiced by the failure to comply with the

verification requirement 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 habeas

petition have been procedurally defaulted. This includes both those never

presented to the state courts, Sweet, 125 F.3d at 1149; Nave, 62 F.3d at

1030; and those which were raised in his unverified postconviction petition.

We are bound by the state court’s factual finding that Malone failed to

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 verification

requirement is a firmly established rule of state procedure that bars

consideration of a petition for habeas corpus unless there has been

compliance. 59 F.3d at 745.

C.

Unless Malone can demonstrate cause and prejudice to excuse his

default, Murray v. Carrier, 477 U.S. 478, 488 (1986), or a fundamental

miscarriage of justice, Schlup v. Delo, 513 U.S. 298, 316 (1995), federal

habeas review is unavailable because the final state court to review his

claims clearly and expressly relied on an independent, adequate procedural

rule to dismiss them. Harris v. Reed, 489 U.S. 255,
-13-

261 (1989); Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Malone asserts he

can show cause to overcome the default in three ways. He claims he was

unable to comply with Missouri procedure because he was mentally ill,

incarcerated in California, and received ineffective assistance from his

trial and postconviction counsel. 

Establishing cause requires a showing of some external impediment that

frustrates a petitioner’s ability to comply with the state procedural rule.

Murray, 477 U.S. at 488. The record in this case includes no evidence that

mental illness hindered Malone’s ability to consult with counsel, file

pleadings, or otherwise comply with Missouri requirements for postconviction

relief so mental illness is not cause to excuse his procedural default.

Garrett v. Groose, 99 F.3d 283, 285 (8th Cir. 1995) (conclusive showing of

incompetence is necessary). While being incarcerated in California may have

made filing his petition in Missouri slightly more cumbersome, Malone has not

shown it interfered with his ability to file. His California incarceration

did not amount to state interference with his access to the courts and is

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 blocked);

Cf. Amadeo v. Zant, 486 U.S. 214, 220-221 (1988) (deliberately withholding

evidence of a plan to exclude black jurors constitutes cause). Any error by

Malone's postconviction counsel could not be cause because there is no

constitutional entitlement to post-conviction counsel. Coleman, 501 U.S.

at 755. Since the alleged errors by his trial counsel did not impede his

ability to comply with the verification requirement 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 cause to excuse his procedural default, he

has not shown actual prejudice. Any error by Malone's postconviction counsel

is irrelevant since there is no entitlement to counsel at that stage.

Coleman, 501 U.S. at 755. Malone asserts that the ineffectiveness of his

trial counsel prejudiced him by the failure to present mitigating evidence

or to raise all the issues included in his federal habeas petition. No duty

exists to raise every nonfrivolous issue that is available, however,
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Lamp, 122 F.3d 1106, and Malone was not prejudiced by counsel’s decision not

to raise every conceivable claim. Malone’s asserted mental illness and

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 procedural default should be excused under

the fundamental miscarriage of justice exception. To invoke this exception,

Malone must demonstrate that new evidence unavailable at the time of trial

makes his actual innocence of the crime sufficiently likely to warrant

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,

probably caused his death sentence.” This is insufficient to make out a

gateway claim of 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

innocence, the claims presented in his unverified state post-conviction

motion are procedurally barred from further review. 

III.

A.

Of the over sixty claims Malone presented in his initial habeas

petition and the almost thirty he has pursued on appeal, only his claim of

ineffective assistance by appellate counsel is not procedurally barred.

Missouri has waived the procedural bar that would otherwise apply to this

claim. Malone states that the failure of his appellate counsel to raise on

direct appeal all those issues included in his postconviction submissions was

below the objective standard of competence for counsel. The district
-15-

court dismissed this claim because it was not presented with sufficient

argument or facts to support it.

We affirm the district court’s disposition of this claim. Claims

argued with no specificity are waived. Sweet, 125 F.3d at 1159. A claim of

ineffective assistance of counsel requires a showing that deficient

performance by counsel prejudiced the defendant by depriving him of a fair

trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 686

(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. Even were we to credit Malone’s generalized claim, the failure of

appellate counsel 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 not

procedurally barred and should succeed on the merits. These are claims that

the prosecution violated Malone’s right to equal protection through racially

based peremptory challenges and that he received ineffective assistance of

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. 

Although Malone made a prima facie Batson claim by establishing that

he is black and that 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.

Purkett v. Elem, 115 S.Ct. 1769, 1771 (1995). The state trial court

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 crime. Venire member Goode was stricken

because he seemed familiar to the prosecutor and was the son of a minister. Although

a white venire member who had spent seven years in the seminary was not stricken, he

did not have the additional characteristic of being familiar to the prosecutor. The

prosecutor said he struck venire member Simmons because he resided in Berkeley and

the prosecutor believed from his experience it was not a good idea to have jurors who

were familiar with the area of a crime.

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strikes and that Malone had not shown those reasons to be pretextual. Review

of this claim is 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 with

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 obtain a new psychological examination or to introduce an existing

psychological report. 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 troubles with

the law, and Missouri rules of professional responsibility provide that

attorneys should, "defer to the client regarding such questions as...concern

for third parties...." Mo.R.P.C. 1.1. A professional guideline is a relevant

measure to evaluate counsel’s performance. Strickland, 466 U.S. at 688.

Additionally, during Malone's Missouri postconviction proceeding his trial

counsel testified that he had talked with Malone's father and sister prior

to the Parr trial and that he thought he had spoken with the mother as well.

He also had before him the record of the penalty phase of the California

trial which contained family testimony about Malone's upbringing and

background, including his violations of the law from an early age. The

decision not to call family members to testify in mitigation has been

recognized as a "strategic decision" that is "normally left to counsel's

judgment." Fretwell v. Norris, 1998 WL
-17-

3583, *6 (8th Cir. 1998) (internal citations omitted). As to the

psychological evidence, the record does not indicate that Malone behaved in

a manner suggesting the need for a new examination, and his existing report

contained potentially damaging evidence relating to his misconduct in San

Quentin and his extensive criminal history. 

Counsel's decisions thus appear to fall within the range of reasonable

representation, Strickland, 466 U.S. at 686; see also Hayes v. Lockhart, 852

F.2d 339, 348 (8th Cir. 1988), but even if we presume his attorney's

performance was deficient, Malone has not shown prejudice. Counsel conceded

at oral argument 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.2d 79, 82 (Mo. 1985) (en banc). The

facts of the Parr murder suggested a callous indifference to the life of

another, and the jury heard evidence that at age twenty Malone had been

involved in multiple murders over the course of several days. When testimony

by Malone's family 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

that he had consistently demonstrated anti-social behavior. His existing

psychological report showed that he had pressured other inmates to get their

food and had physically threatened guards in jail. Such evidence of a

troubled background and violent behavior is "by no means uniformly helpful."

Burger v. Kemp, 483 U.S. 776, 793 (1987). In light of the whole record any

mitigating evidence from family members about his upbringing and

psychological difficulties would not have made a different sentence

sufficiently likely to support an ineffective assistance of counsel claim.

Id at 694. 

IV. 

Kelvin Malone has brought many claims in this habeas petition, but

almost all of them were never properly presented to the state courts, and

Malone has not shown he can meet any exception to excuse the procedural bars

to consideration of these claims. His single unbarred claim has not been

stated with sufficient specificity to be
-18-

considered. After thorough consideration of the record, we affirm the

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 equal

protection clause forbids prosecutor to challenge potential jurors solely on account of race). Moreover, Malone was

denied the effective assistance of counsel at the penalty phase of his trial. Each of these constitutional errors

constitutes an independent basis for the issuance of a writ of habeas corpus, and both issues were properly preserved

for review by this court. For these two reasons, I would 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

the 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 Kelvin

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 Public Defender, 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 to

interview 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 to

explain the circumstances of his life leading to his crimes. He called 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 Rule 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 used 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 motion to dismiss Malone’s Rule 27.26 motion; because Malone was in custody in California rather than

Missouri, a Rule 27.26 motion did not lie. The district court dismissed the motion with the simple words “so

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 asserting

essentially the same 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 support this finding. For whatever reason, item E5 was not made a

part of the record submitted to our court, 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 group as required by Batson because his mother was white and his father was black. The court

stated that neither 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 motion 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, the findings by the judge who witnessed the entire juryselection 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 Missouri 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 verification 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, 1990, the trial court dismissed Malone’s Rule 29.15 motion, ruling on the merits

of his Batson challenge, and held that the failure to file a properly-verified motion on or before June 30, 1988 with

respect to the remaining issues deprived the court of jurisdiction to hear the matter. The trial court dismissed

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-three 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 district 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 Ford v. Georgia, 498 U.S. 411 (1991), the Supreme Court held “that only a ‘firmly established and

regularly followed state practice’ may be interposed by a state to prevent subsequent review by this Court of a federal

constitutional 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, 1986, 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 September 11, 1990, the Missouri Supreme Court considered the post-conviction motion of James

Rodden for relief from a murder conviction. Rodden v. State, 795 S.W.2d 393 (Mo. 1990) (en banc). In that case,

Rodden filed a pro se Rule 27.26 motion attacking his murder conviction. His motion was neither signed nor

verified. Rather, counsel signed it “James Rodden by Lee Nation.” The filing, according to Rodden’s testimony,

was 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 27.26

motion was filed. It, too, was neither signed nor verified by Rodden. On the same day, the trial court ruled against

Rodden on the merits. The state argued that the Missouri Supreme Court lacked authority to review the decision

because of the absence of verification of the post-conviction motion. The Missouri Supreme Court agreed to hear

the case on the merits stating:

Even an essential element of a pleading, like verification, may be added by amendment. Drury

Displays, Inc. v. Board of Adjustment, 760 S.W.2d 112, 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 first

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 postconviction 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.

Proceedings under Rule 29.15 are civil. It is uncommon in civil proceedings to hold that

the filing of defective papers deprives the Court of jurisdiction. The usual remedy is to permit

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 29.15

indicates that proceedings 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 would allow the state to enjoy all of the real or imagined benefits of

verification.

. . . .

Some of the opinions on this subject suggest that the verification requirement serves an

expediting purpose. I cannot see that it expedites the proceedings in any way. There rather will be

procedural hassles and a ping-pong match between state and federal courts, if this movant is

obliged to pursue other postconviction remedies.

Id. at 450-51 (Blackmar, C.J., dissenting).

Six months later, 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 first 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 granted the public defender’s motion for additional time within which to file an amended motion. On

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, soon 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 today [April 9, 1991] this Court has not deviated from its firm position that failure

to timely file a motion constitutes a complete bar to consideration of a movant’s claims, even when

the claims are attributable entirely to inaction of counsel. . . .

In Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991), decided today, this Court altered

course. There 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

the pro se motion but fails timely to file the amended motion as required by Rule 29.15(f). The

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 of time, the motion shall set forth facts,

not 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 movant to demonstrate that the untimeliness is not the result of negligence or intentional

conduct of the movant, but is due to counsel’s failure to comply with Rule 29.15(f). If the court

determines that the untimeliness resulted from negligence or intentional conduct of movant, the

court shall not permit the filing. Should the failure to file a timely amended motion result from

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 murder 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 motion 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 effectively 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 movant can establish that the failure to verify and timely file is caused by the inattention of

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 jurisdiction. 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 verify is counsel’s fault, the trial court must take

appropriate 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 appointed

counsel, who filed an unverified Rule 29.15 motion on October 28, 1988. In that case:

An evidentiary hearing was held on January 26, 1990. The motion court stated at the

hearing that its review was limited to the claims alleged in the pro se motion. Limited testimony

was heard concerning the allegations in the amended motion. The court denied the pro se motion

and concluded that because the amended motion was unverified, the claims alleged in the amended

motion were “time barred and procedurally waived.” . . . .

For his sole point 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 the

failure of the amended motion to be verified. The general rule is that an unverified motion is a

nullity which fails to invoke the jurisdiction of the trial court. However, the Missouri Supreme

Court modified the strict application of this rule in State v. White, 813 S.W.2d 862 (Mo. banc

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 must remand to the motion court for a determination of the cause of the lack of

verification. The motion court must make a factual inquiry into the cause of the violations by

holding an evidentiary hearing or, if the facts are undisputed, by examining the record. The court

must make findings of fact on the question of whether the failure to verify results from the

negligence or intentional conduct of movant or from the inattention of counsel. If the failure to

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 conclusion 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

of 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

verification 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. Counsel

should
-28-

have been 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 expected 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 attorney

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 rather as an abandonment of counsel. The fact that the Missouri Supreme Court in 1991 set forth

guidelines for counsel to follow in future cases does not support the state’s view that the verification rule was firmly

established and regularly followed at the time that Malone’s motions were filed. In the cited cases the Missouri

Supreme Court remanded to the motion court to determine whether the fault for lack of verification lay with the

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 equal protection rights were violated by the prosecuting attorney’s intentional exclusion of

all four black members of the jury
In response 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 black jurors because he was of mixed

race, being the child of a white mother and a black father. 

A direct appeal in the instant case was still pending, however, at the time

16

Batson was decided. Thus, the Batson test is the appropriate one to apply in this case.

At the time of trial, however, the prosecutor’s use of peremptory challenges was

covered by 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 insulate

a prosecutor’s use of peremptory challenges in a given case where the prosecutor

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 his peremptory challenges to strike all black jurors from the

defendant’s jury panel, and the presumption that the prosecutor has acted

properly falls away. At that point, the court has a duty to satisfy itself that

the prosecutor’s challenges were based on constitutionally permissible

trial-related considerations, and that the proffered reasons are genuine

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 at

every phase of the record, but this statement, as noted in Garrett, required the court to

satisfy itself that the challenges were based on constitutionally-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

Malone 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 impaneled contrary to the teaching of Batson and Antwine. Malone, 798

S.W.2d at 150. 

On remand, the trial court conducted an evidentiary hearing and determined that Malone established a prima

facie case under Batson. The trial court found 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 panel and one of its two strikes in the alternate pool to strike a potential black alternate, leaving Malone to be

tried by an all-white jury. The court directed the prosecutor to explain his reasons for striking the four black

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 armed

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 questioned

peremptory strikes 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 Missouri Supreme Court denied relief, Malone raised his Batson claim as part of his petition for

habeas 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 Rule 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 merits. It concluded that the prosecutor’s reasons for striking each of the black prospective jurors were

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 concluded 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 initial matter, because the Missouri trial court, the state post-conviction court, and the Missouri

Supreme Court have all considered the Batson issue on the merits, the federal habeas court should do the same. In

the 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 the

Missouri Supreme Court decided Malone.

Malone established a prima facie case under Batson. As the state now concedes, Malone is black.17

Moreover, the prosecutor struck all four blacks who remained on the thirty-four-person jury panel after all other

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 though other black jurors are seated, and even when there are valid

reasons for the striking of some black 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 the

record that the prosecutor’s reason for striking Grooms was pretextual. I note, however, that there is no support in

the record for the prosecutor’s statement that Grooms indicated he would attempt to convince other jurors of his

view. 

In contrast, the district court’s decision to sustain the state’s peremptory challenges to Henderson and

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 offense. In this circuit it is well established that a litigant may not justify the peremptory challenges to a

venireman of one race unless veniremen of another race with comparable or similar characteristics are also

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 trial), 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 affect 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 jury, the record demonstrates that the reason

is pretextual. I thus 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 struck Simmons based on his address in Berkeley, that the murder occurred

in Berkeley, that Malone had ties to persons in Berkeley, and that 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 reason was pretextual. I disagree with both conclusions. At voir dire, the prosecutor did not ask

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 with any of the potential witnesses. It was not until the post-conviction hearing that the

prosecutor advanced the claim that he struck Simmons for the reasons stated above. Yet, he failed at the postconviction hearing to develop any testimony that could reasonably support his belief that Simmons might be

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 that 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 to raise the issue of pretextuality. On its face, I do not believe

that the 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
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that Simmons was asked no relevant questions and volunteered no relevant information to support the prosecution’s

position.

Finally, I am convinced that the district court erred in sustaining the state’s peremptory challenge to alternate

Goode. The 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 the 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?

VENIREMAN BUSH: To a certain degree, yes. I spent

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.

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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 that 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 any 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
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IV.

In both his state and federal habeas corpus petitions Malone claimed that his trial counsel provided

ineffective assistance at the penalty phase of his trial by failing to investigate and present mitigating evidence.

Specifically, Malone claims that his trial counsel failed to interview or call his family members failed to have Malone

psychologically evaluated or present available evidence of Malone’s psychological history. Although the district court

concluded that Malone’s counsel rendered effective assistance, I disagree.

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

performance was professionally unreasonable under all the circumstances, and (2) that there is a reasonable

probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 694 (1984). “When a defendant challenges a death sentence[,] . . . the

question is whether there is a reasonable probability that, absent the errors, the sentencer--including an appellate

court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating

and mitigating circumstances 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
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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, 112

(1982); Lockett v. Ohio, 438 U.S. 586, 605 (1978). As the Supreme Court has stated:

[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment requires

consideration of the character and record of the individual offender and the circumstances of a

particular offense as a constitutionally 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 trial was given no sense of the person he was. At the guilt

phase of Malone’s trial, the jury returned its 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 additional

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 defense 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 evidence to personalize, or even humanize, Malone in the eyes of the jury. He did not investigate or present

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 been

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 moved

20

temporarily from California to Missouri, she was unaware that he was standing trial in

Missouri for capital murder until well after his conviction and sentence.

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that Malone’s age at the time of the offense was a mitigating factor, he never even told the jury how old Malone

was. 

19

Testimony developed during the state post-conviction proceedings reveals that Malone’s lawyer did nothing

to investigate or develop mitigating evidence in preparation for trial. His conversations with Malone were so limited

that trial counsel did 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 during 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,

Aylward made no specific preparations for the penalty phase other than to contact one academic and one religious

expert on capital punishment. 

The district court accepted the government’s argument that counsel’s decision not to call family members

was a strategic one prompted primarily by Malone’s expressed preference not to put his family through the painful

process again. Under the first prong of Strickland, a particular decision not to investigate is assessed for

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 to

investigate and to
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understand the very life he was asking the jury to spare. His performance is readily distinguishable from the

examples cited in Strickland as 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 counsel

because of what defendant has said, the need for further investigation may be considerably

diminished or eliminated altogether. And when a defendant has 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 focused

primarily on preparing for the guilt phase of the 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 Malone’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 and 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

deficient performance. Because Malone had twice stood trial for capital murder in California, his Missouri trial

counsel had a wealth of information from which he could have drawn a picture of Malone for the jury. But for

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
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mother and a black father. He is the third child and oldest boy in a family of seven children. Malone is also the

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 kept him from the family for long periods during most of Malone’s childhood and the family moved often.

These frequent 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,

Missouri; and Honolulu, Hawaii, his most consistent childhood home was the city of Seaside, California which

suffered intense racial tension during Malone’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 small 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 falls and resulting head injuries as a child. Two of them required overnight stays in the

hospital, the first when he was approximately eighteen months old and the second when he was about ten years old.

Malone’s parents attributed many of Malone’s academic and social problems to these head injuries. Dr. Craig Rath,

a clinical 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,

administered 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 with residual ADD and antisocial personality disorder since

adulthood. Dr. Rath explained that in residual type ADD, the hyperactivity that characterizes childhood behavior

often goes away but problems with impulsivity, attention span and organizational skills remain. Dr. Rath also

determined that, because
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Malone’s ADD was the result of a small amount of organic brain damage, the roots of his problems are partially

nonvolitional. Dr. Rath’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.” 

While I 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 of

aggravating and mitigating circumstances did not warrant death. Id. at 695.

 

V.

Therefore, I would reverse the district court’s denial of habeas corpus relief for two reasons, both of which,

for the reasons I have discussed, 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 the

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 the

district court and the majority that none of them justify relief. I would remand the case to the district court with

orders to issue a writ of habeas corpus directing the state court to vacate Malone’s sentence and conviction.
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A true copy.

Attest.

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