1

Chief Judge Loken and Judge Colloton concur in all but Parts III.A and III.B

of this opinion.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-3930

___________

Richard Louis Marcrum, *

*

Petitioner - Appellee, *

* Appeal from the United States

v. * District Court for the Eastern 

* District of Missouri.

Al Luebbers, *

*

Respondent - Appellant. *

___________

Submitted: May 17, 2006

Filed: December 7, 2007

___________

Before LOKEN, Chief Judge, JOHN R. GIBSON, and COLLOTON, Circuit Judges.

___________

JOHN R. GIBSON, Circuit Judge.1

The Superintendent of the Potosi Correctional Center, Al Luebbers, appeals

from the district court's grant of a writ of habeas corpus to petitioner Richard Louis

Marcrum. The district court granted the writ on the ground that Marcrum's Sixth

Amendment rights were violated by ineffective assistance of counsel at his trial for

murder and armed criminal action in connection with the 1994 killing of Kenneth

Reeves. The district court held that trial counsel's failure to introduce witnesses and

medical records establishing that Marcrum was psychotic on the day of the killing and
-2-

to cross-examine the prosecution's expert fell below the level of legal representation

to which Marcrum was entitled under the Sixth Amendment and that there was a

reasonable probability that the result of Marcrum's trial would have been different

without counsel's errors. The Superintendent contends that trial counsel's actions

regarding the witnesses and records and his decision not to cross-examine the expert

were not errors but strategic decisions; that there is no reasonable probability these

actions affected the trial's result; and that in any case, the state courts' resolution of

these questions was not so unreasonable as to warrant federal habeas relief. He also

contends that Marcrum's petition was time-barred. We reverse.

I.

There is overwhelming evidence that on June 3, 1994, Marcrum took a fireplace

poker and killed a Presbyterian minister named Kenneth Reeves. The state's theory

was that Marcrum had been blackmailing Reeves and killed Reeves when Reeves

balked at giving him money. Marcrum's theory was that he was at Reeves's house

because they were lovers, and he denied killing Reeves. At the same time, Marcrum

also raised the defense that he was insane because of a seizure disorder that rendered

him psychotic on that day. The district court held that Marcrum's trial counsel was

ineffective in presenting his insanity and diminished capacity defenses.

Because the legal issues in this case depend on the difference between what

facts were known to the jury at Marcrum's trial, to Marcrum's trial counsel, and to the

state court hearing Marcrum's motion for postconviction relief, we must tell this story

in layers. We begin with the evidence at Marcrum's trial.

A. The trial

Around 2:00 to 3:00 in the afternoon of June 3, 1994, Gary and Donna

Paszkiewicz drove by the home of their neighbors Kenneth and Katie Reeves in
-3-

Imperial, Missouri. They saw the petitioner, Richard Marcrum, standing in the road

near a blue-gray car, and as they passed him, he seemed to want to talk to them. Gary

Paszkiewicz rolled down the window of his truck and Marcrum said to him, "Praise

the Lord, I just killed one sorry son-of-a-bitch," and "I'm going to kill another."

Discomfited by this exchange, the Paszkiewiczes drove on, but they soon returned to

check on their neighbors. They found Kenneth Reeves lying on the floor by his

wheelchair in a pool of blood. His skull had been crushed, and a bloody fireplace

poker was on the floor. Reeves died of his injuries two days later. 

When police contacted Reeves's wife, Katie, she tipped them to investigate

Marcrum. Police Captain Edward Kemp arrived at Marcrum's house to find that he

had been taken to the emergency room of St. Louis Regional Medical Center in an

ambulance. Kemp found Marcrum on a gurney in an examining room. As soon as

Marcrum caught sight of Kemp, he said, "I know why you're here. It's because of

George. . . . I killed George in Kimmswick. He also goes by the name of Kenny

Reeves." Marcrum said that Reeves was "evil." Kemp saw blood splatters on

Marcrum's clothes. Those clothes were later introduced as exhibits at trial, and DNA

samples taken from blood on the clothing were identified as being Kenneth Reeves's

DNA. 

Katie Reeves testified that Reeves was a Presbyterian minister who often helped

the poor using the Reeveses' own money. Reeves had been paralyzed after falling

from a tree and was a paraplegic. She said Reeves had employed Marcrum in 1987

or 1988 to refinish some furniture; Reeves had paid Marcrum the promised amount,

but Marcrum never finished the job. Nevertheless, Marcrum had telephoned the

couple demanding more money. The jury heard a tape of telephone conversations

between Marcrum and Katie Reeves in which Marcrum demanded money and made

threats to expose Reeves as a homosexual if they didn't pay him. Katie Reeves also

testified that after her husband's death, she found that he had drawn checks on their

checking account that were not reflected in the register, though the balance was
-4-

adjusted surreptitiously to compensate for the amounts drawn. Katie Reeves was a

schoolteacher, and she testified that in the year or so before his death, Reeves would

call her at school before she left in the afternoon just to find out if she was still at

school. She testified that after Reeves's death, she learned that Reeves had co-signed

an auto loan with Marcrum shortly before he was killed. 

A teller from the local bank testified that Kenneth Reeves came through the

drive-through often during the winter and spring of 1994 cashing checks for hundreds

of dollars at a time. She said that Marcrum brought in checks signed by Reeves "more

than several times" and that her supervisor had checked with Reeves and had given

her permission to cash the checks for Marcrum. 

Marcrum testified in his own defense. He described a ten-year sexual

relationship with Kenneth Reeves that began when Marcrum was about twenty years

old and Reeves picked him up at Tower Grove Park in St. Louis. Marcrum testified

that he had trysts with Reeves as often as two or three times a week and that Reeves

had given him an estimated $90,000 over the course of their relationship. He said that

Reeves had bought him at least four cars over the years. 

Marcrum testified that he had suffered from seizures since the age of 16, when

he went through a windshield in a car wreck. He said he had been hospitalized "a time

or two" for psychiatric problems. 

Marcrum said that he did not remember going to Reeves's house the day of the

killing, and in fact did not remember that day at all. He was roundly impeached with

prior inconsistent statements he had made that he remembered having drinks with

Reeves at Reeves's house that day, and that he had a seizure, woke up to find Reeves

in a pool of blood, and fled the house. The prosecutor cross-examined Marcrum about

the effects of a seizure and Marcrum conceded that when he has a seizure he is

"basically helpless"--he loses control of his bladder and bowels and would not be able
-5-

to drive a car. The prosecutor asked, "Your seizures and after effects are passive, of

a nonviolent nature?" and Marcrum answered, "That's what I've been told, yes." 

Beginning with Marcrum's mother, Marcrum's lawyer put on a number of

witnesses and asked them whether they saw blood on Marcrum on June 3. Marcrum's

mother, father, and brother all said they did not see blood on him, despite having

checked him when he came into the house. Judy and Don Paszkiewicz, the Reeveses'

neighbors, both said they did not notice any blood on him, either. 

Marcrum's counsel introduced testimony of a car dealer who had sold Kenneth

Reeves a gray-blue Buick shortly before the killing. Reeves paid $500 down for the

car and co-signed an installment contract for the remainder of the purchase price with

Marcrum. Marcrum's father, mother, brother, and friend Judith Quick all testified that

they saw Reeves pick Marcrum up many times. They said Reeves would routinely pick

Marcrum up around 8:30 in the morning and bring him home about 1:00 in the

afternoon. Marcrum's former girlfriend, Marilyn McManus, testified that when

Marcrum lived with her, Reeves used to come by and bring Marcrum money, or else

she and Marcrum would go to Reeves's house or church to pick up money. McManus

said that Marcrum did not have to work because Reeves gave him money. Marcrum's

mother said that every time Marcrum left with Reeves, he would come home with

several hundred dollars. Judith Quick said she saw Marcrum with checks from Reeves

for hundreds of dollars. 

Marcrum's mother, father, brother, and Marilyn McManus and Judith Quick, all

testified about Marcrum's seizures and about Marcrum's bizarre behavior, which they

associated with the seizures. Each of these lay witnesses had his or her own

interpretation of Marcrum's behavior. Marilyn McManus had her own elaborate

typology, classifying Marcrum's seizures into types, ranging from mild (in which he

was disoriented) to moderate (in which he would jerk, wet himself, vomit, and foam

at the mouth) to severe (in which he would make sounds like a rabid dog and sleep for
-6-

a week afterward, not even waking up when he relieved himself in the bed). McManus

described an "aftermath" of the seizures when "Rickie would say he was God, he was

Jesus, he's taking the children to his kingdom." McManus said the aftermath could last

as long as three or four days, and when Marcrum woke up, he would not remember

anything. She later broke the "aftermath" into two stages: first Marcrum was "God and

Jehovah and Jesus," but then he would be “very nice” and "like an angel" and would

clean the house obsessively. Later, however, she described an occasion when he

twisted her arm when he was in an "aftermath." The witnesses said that the bizarre

behavior could happen before a seizure, but they also said that after seizures, Marcrum

would often think he was God and would rant about being God and taking people with

him to heaven. Judith Quick described Marcrum pounding on people's cars in the

grocery store parking lot, saying he was God. Sometimes he would think people were

trying to kill him. 

Various family and friends described taking Marcrum to the hospital during

these episodes, where he would be medicated and released, according to his mother,

because he did not have health insurance. McManus said his condition got worse in

1993, so that by the time of their last four months together (in 1993), Marcrum could

have six or seven seizures in a day. Their relationship ended on December 27, 1993,

when he twisted her arm during one of his "aftermaths" and he was arrested. 

Marcrum also presented testimony from a sheriff's deputy who arrested Marcrum

for assaulting McManus on that day. When he responded to the call, Marcrum was

standing in the driveway saying he was God and that he had molested and abducted

children. Marcrum said, "I am the promise and the children come unto me to the

palace and they do construction work." Marcrum resisted arrest, and it took three

troopers to subdue him. 

Marcrum's family testified that Marcrum had been suffering from seizures the

last few days before Reeves was killed. His brother was in the room with him the night
-7-

before and heard him making weird sounds and saw him shaking in his sleep. The

morning of June 3, Marcrum accused his mother of offering him poisoned coffee. He

left the house that morning and returned about 5 p.m. When he returned, he was

calling himself God, "screaming at the top of his lungs about his kingdom and how he's

God and quoting from the Bible, which was nothing but one of those free real estate

magazines you pick up at the store." His brother took away his car keys and called the

ambulance. 

The ambulance driver testified that he thought Marcrum was intoxicated because

the family told him Marcrum had been drinking and because he had slurred speech and

a staggering gait. The driver said Marcrum did not seem to have had a seizure because

he was "up and walking around." Marcrum's counsel introduced the results of a blood

test from that night that showed Marcrum's blood alcohol content on June 3 was from

0 to 10 milligrams per deciliter, but there was no evidence about the significance of

those findings. In closing argument, counsel said of those test results, "I don't know

what it means," but then argued it meant Marcrum was not drunk. By way of

comparison, the legal blood alcohol limit for driving in Missouri is eight times higher

than 10 milligrams per deciliter, see Mo. Rev. Stat. § 577.012 (0.08% blood alcohol

by weight excessive) and Jarret v. Woodward Bros., 751 A.2d 972, 976 n.4 (D.C. Ct.

App. 2000) (100 mg/dL equivalent to 0.1% alcohol in blood by weight). Of course,

the test did not distinguish between amounts of 0 to 10 milligrams, so Marcrum may

have had no alcohol in his blood at all.

Throughout the trial there had been some evidence that Marcrum had a history

of alcohol and other substance abuse. Probably the most damaging testimony of this

sort came from Marilyn McManus, who testified on questioning by Marcrum's lawyer:

Q: Sometimes when he was in this fourth phase or type [of seizure],

would he beat you?

A: Not during the seizure, no.
-8-

Q: I mean after the aftermath or before or somehow, would he beat you

till you're black and blue? . . . 

A: Not during the aftermath and the seizure, no. . . .

A: When he was drinking, like I said, he did drink. The times that he did

drink he has beaten me while he has been drunk, he has. . . .

A: There was times that he has drank and he has hit me and he has not

had a seizure.

McManus also said that the alcohol abuse often precipitated seizures. 

The last evidence at trial was the expert testimony on the subject of Marcrum's

mental state. 

Marcrum called Dr. Allan G. Barclay, a Ph.D. in clinical psychology. Dr.

Barclay opined that Marcrum suffered from a mental disease or defect, specifically that

"he suffers from an organic personality disorder subsequent to the seizure disorder and

the history of substance abuse in the past and the trauma [from the car wreck]." He

testified that a personality disorder is an enduring characteristic of a person, whereas

delusions and psychosis can come and go. When Marcrum's counsel asked whether

the mental disease or defect would have compelled Marcrum to commit the killing,

Barclay answered, "Yes." Similarly, Barclay said that the seizures could cause

impulsive behavior and that this could preclude Marcrum from using a "logical,

rational approach, the planning of any kind of activity." 

Barclay did not explain on direct examination what relationship might exist

between Marcrum's seizures and his delusions. The prosecutor touched on this

connection during cross-examination, but only to make the point that the symptoms of

the mental disease or defect came and went with the seizures, leaving Marcrum lucid

and able to think rationally at other times. The prosecutor established that during the

actual seizures and the post-ictal (post-seizure) period, Marcrum would be physically

and mentally debilitated, so that he would not be able to drive a car or coordinate his
-9-

movements, or do any purposeful act of violence, such as picking up a poker and

"precisely, accurately and deliberately [landing] four or five direct blows to someone's

skull." In a telling moment, the prosecutor got Barclay to admit that he could not infer

whether Marcrum was in possession of his faculties at the time of the killing: 

Q: You don't know whether on June 3, 1994 he was in the reality phase

or in the loss of the reality phase, do you?

A: I can't testify to that because I wasn't present.

Further, the prosecutor's questioning elicited testimony from Barclay tending to show

a one-on-one relationship between seizures and "loss of reality":

Q: The seizure is the trigger, isn't it?

A: Yes. . . .

Q: If the mental disease or defect nonreality stage is not triggered and he's

in the reality stage, . . . it must be your opinion that the mental disease or

defect would not cause impulse [sic] behavior; isn't that true?

A: If I follow your line of reasoning, yes.

Barclay later agreed there was "no history of psychosis without seizure." The

prosecutor asked if Marcrum had ever been violent in the "post-ictal" stage, and

Barclay answered that there was no record of that. Furthermore, the prosecutor

established through Barclay that if Marcrum were in a "nonreality" state, he would not

be able to remember what he had done on June 3, but his statements to the state's

psychiatrist, Dr. Parwatikar, indicated that he did remember many events that took

place that day at the Reeveses'. 

On redirect, Barclay stated that Marcrum had "intermittent psychotic episode[s]

from time to time associated with the organic brain damage and seizure disorder."

When reminded about Marcrum's history of seizures the night before June 3, his

accusation of poisoning that morning, his claim to be God that evening, Barclay agreed

that it would be "consistent" with that history to conclude that Marcrum was psychotic
-10-

at the time of the killing. Barclay also opined that a person in a psychotic state could

drive a car and do other purposeful activities, such as hitting someone over the head.

The testimony of the state's psychiatrist, Dr. Sam Parwatikar, was largely

consistent with Barclay's. In particular, Parwatikar testified that seizures make a

person unconscious and physically debilitated, so that a person in a seizure could not

attack someone and it was not probable that a person in a post-ictal stage could do so.

Parwatikar expressly conflated the post-ictal state with psychosis, referring to

Marcrum's "post-ictal psychotic period," during which he said it would be difficult or

impossible for Marcrum to drive a car. Parwatikar testified that there was no record

of Marcrum ever being in a "non-reality" state without having suffered a seizure and

that there was no record of Marcrum engaging in violent behavior while psychotic.

Marcrum's counsel did not cross-examine Parwatikar, except to establish that he was

paid by the state. 

The court instructed the jury on first-degree murder (murder with deliberation),

second-degree murder, and armed criminal action. It instructed them that they could

find that Marcrum was not guilty by reason of mental disease or defect if the greater

weight of the credible evidence showed that at the time of the conduct he had a mental

disease or defect that made him incapable of knowing and appreciating the nature,

quality, or wrongfulness of his conduct. It also instructed them that they could

consider evidence that Marcrum did or did not have a mental disease or defect in

deciding whether Marcrum had the state of mind required to be guilty of first degree

murder. 

The prosecutor argued in closing that Marcrum killed Reeves out of "pure,

simple, desperate greed," as part of a blackmail scheme. He concentrated on the

gruesomeness of the killing and Reeves's helplessness and asked the jury to imagine

being in Reeves's position. 
-11-

Marcrum's defense was based on both the idea that he did not commit the killing

and the idea that he was insane. Marcrum's lawyer argued that the Paszkiewiczes and

Marcrum's family did not see blood on him after the killing, which cast doubt on

whether Marcrum was the killer. He never offered a theory as to how or when

Reeves's blood got on Marcrum's clothes that were exhibited at trial. Counsel also

argued that Marcrum was psychotic on June 3, 1994. He argued at length that

Marcrum's seizures could set off a psychotic episode that could go on for days. 

On rebuttal, the prosecutor argued that if Marcrum had had a seizure at Reeves's

house, he would have been incapable of hitting Reeves and driving home, and that if

there was no seizure at Reeves's house, there could be no psychosis: "The seizure is the

trigger, his own doctor said. So if he didn't have a trigger–if he didn't have a seizure

then the psychosis would not manifest." He argued, "The evidence in this case is that

when he's psychotic, he's not violent." Conversely, he said, "When he's in his violent

stage, he's rational, he's not psychotic." 

The jury found Marcrum guilty of first-degree murder and armed criminal action

in connection with first-degree murder. He was sentenced to life in prison without the

possibility of parole. 

Marcrum appealed to the Missouri Court of Appeals, which affirmed in a

summary decision. State v. Marcrum, No. 70953 (Mo. Ct. App. Dec. 30, 1997).

B. State Post-conviction Proceedings

Marcrum moved for post-conviction relief in the state courts under Missouri

Supreme Court Rule 29.15, contending among other things, that his trial counsel was

ineffective for failure to call medical witnesses, failure to introduce into evidence the

records of his previous hospitalizations for psychiatric crises, and failure to crossexamine Dr. Parwatikar. He produced a new expert, Dr. William Logan, a forensic
-12-

psychiatrist. Logan reviewed the same records that had been made available to

Barclay, and he agreed that Marcrum has a seizure disorder which had developed into

an organic personality disorder. However, Logan added one crucial idea: that when

Marcrum was having uncontrolled seizures–that is, when he was not being medicated

with anti-epilepsy drugs like Dilantin–he would develop organic psychosis. This was

different from the personality disorder diagnosed by Barclay and Parwatikar: "[A]

person with an organic personality doesn't have hallucinations and doesn't develop

bizarre delusional beliefs. A person with organic psychosis does." Logan found

Marcrum's medical records showed he had a record of failing to take the anti-epilepsy

medicine necessary to control his seizures. 

Logan opined that, contrary to the trial testimony, there was not a simple one-onone relation between seizures and psychotic episodes: 

The impression left from the testimony was that he would have a seizure

and then that immediately would trigger a psychotic episode. It doesn't

happen that way.

What happens is that a person goes through a period where there

are a number of seizures and their epilepsy is uncontrolled. When that

happens, psychotic features begin to emerge, but there's no direct

triggering effect. . . .

Q: So is it possible for a seizure to trigger an episode of organic

psychosis? 

A: Not usually one, it would usually have to be a number of them in fairly

close succession. . . . 

[T]he more usual history is that a person goes through a period where

they get off their medication, they have a number of seizures, then they

begin to have some odd delusional beliefs. 

Later, he explained:

That's really one of the key problems I saw in the testimony [of the

experts at trial] is this was not behavior triggered by a seizure [or]
-13-

occurring in the immediate aftermath of a seizure. This was in fact,

behavior that occurred as a result of a number of seizures which produced

a psychotic state which is something quite different.

Logan used the medical records which had been made available to Barclay to

substantiate his theses that (1) Marcrum had in the past become psychotic after

uncontrolled seizures, which in turn resulted from failure to take his anti-epileptic

medicines; (2) the psychosis lasted far beyond the post-ictal period for particular

seizures, and in fact did not resolve until Marcrum was back on the anti-epilepsy

medicines; and (3) when psychotic, Marcrum became violent and subject to religious

delusions. Logan furthermore used testimony and medical records from the day of the

killing to show Marcrum had not been taking his medicine for several days before the

killing and was demonstrably psychotic on the morning of June 3 when he accused his

mother of poisoning him, at mid-afternoon when he told the Pakiewiczes, "Praise the

Lord, I just killed one sorry son-of-a bitch," and on the evening of June 3 when he

claimed to be God. Logan pointed to other incidents documented in the medical

records where Marcrum was violent and psychotic, but was not "in the middle of a

seizure." 

Logan opined that Marcrum was psychotic at the time of the killing and that he

could not appreciate the nature, consequences, and wrongfulness of his actions. 

The post-conviction proceeding moved on to explore why Marcrum's trial

lawyer, Alfred Speer, had not called medical witnesses from Marcrum's past

hospitalizations, introduced the records from those crises, or cross-examined Dr.

Parwatikar. By way of background, the murder trial transcript showed that on June 6,

1996, the third day of trial, Speer first endorsed Denise Hacker and Dr. Kim Young,

from the Southeast Missouri Mental Health Center, where Marcrum had been treated

for a psychotic episode in December 1993. Also on June 6, Speer endorsed the two

ambulance workers who took Marcrum to the hospital the night of the killing. The

state objected to the late endorsement of these witnesses, and at the hearing on the
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state's objection, Speer further endorsed Drs. Viamontes and Gedden, who treated

Marcrum in the emergency room on the night of the killing. The trial court observed

that the case had been filed over two years ago and that the defense had had ample

opportunity for discovery, but had failed to comply with the court's scheduling order.

The court mediated the situation by allowing Speer to call the ambulance workers, but

excluding the doctors, ruling, however, that the defense could use the medical records

those doctors would have introduced, since the defense could bring out those prior

hospitalizations through either its own or the state's expert. However, as it happened

Speer did not introduce the records in examining either expert. 

Speer testified at the post-conviction hearing about why he had not introduced

the medical records from the past psychiatric crises or from June 3 and why he had not

cross-examined the state's expert Parwatikar. He said that "those [records] that were

necessary to arrive at the medical opinion were introduced. Beyond that, I saw no need

for it." He qualified that to say that "there were some medical records I thought at one

point we wanted to get in and because they were late arriving, the Court declined to let

them in. I'm not so sure they would have been at all helpful." The state's lawyer then

asked whether Speer had "some concerns about the length of trial," and Speer said he

did generally. Then he said he did not like to introduce cumulative evidence and that

in this case there was plenty of "paper work" without the medical records. He also

stated that he sought to avoid introducing evidence of Marcrum's history of pedophilia

and of violence, which would have been revealed by the medical records. As to his

failure to cross-examine Parwatikar, Speer said:

Again, it gets down to what I consider, and this is a tactical judgment, Dr.

Sam projects a very professional image. He's a tall, good-looking man.

He has a very professional demeanor. He's commanding in his

appearance. He was followed in his presentation and he is eminently

skilled at courtroom presentations for the State. And to attack him I think

would be fruitless and would most likely backfire.
-15-

The medical records that were introduced at the post-conviction hearing showed

a pattern of emergency room visits by Marcrum, sometimes followed by longer

hospitalizations, increasing in frequency from 1989 to 1993, always showing that

Marcrum had not taken his Dilantin and had suffered seizures. The records show three

major episodes in 1993. Many of these records showed bizarre, sometimes violent,

behavior in conjunction with seizures and low medication levels. For instance:

(1) On January 20, 1991, Marcrum was running naked in the streets, was

combative and agitated, had seizures and reported that he had stopped

taking his Dilantin a year ago. 

(2) On April 12, 1992, Marcrum was kicking cars and chasing an elderly

woman and child down the street. He stated that he was talking to the

radio about God. His Dilantin level was too low, and he reported a twomonth history of non-compliance with taking his medicine. He was

diagnosed as psychotic, but the psychosis cleared up when he was treated

with a therapeutic level of Dilantin. 

(3) On December 9, 1992, Marcrum was admitted after a seizure, with a

sub-therapeutic Dilantin level. He was diagnosed with "schizophrenia,

paranoid." 

(4) On April 4, 1993, Marcrum was "acutely psychotic," having had

seizures the past two days, with a "subtherapeutic anticonvulsant level."

(5) On November 16, 1993, he was admitted to the Southeast Missouri

Mental Health Center after he "began striking and beating another

individual" "without provocation," breaking the windshield out of a car.

He was described as "violent, combative, and scream[ing]." His Dilantin

level was subtherapeutic. The examining psychiatrist described his

"grandiose ideations" in which he claimed to have "a tremendous amount

of power that he gets from Jesus with whom he maintains a good

communication." 
-16-

(6) On December 27, 1993, Marcrum was taken to the emergency room

after being picked up for domestic violence. He was "combative and

delusional." He was quoted as saying, "I killed the kids, I'm hitching to

the lord and I'm taking a bunch with me, I don't kill unless the lord tells

me he needs them." He was reported to have not been taking his

medication for the past week. 

(7) On March 12, 1994, Marcrum was taken to the emergency room for

a seizure; he was combative and his Dilantin level was sub-therapeutic.

The medical records from the night after the killing, also introduced at the postconviction hearing, showed that Marcrum was brought to the hospital for bizarre

behavior. When he arrived, he was whispering, "I am the chosen one." A blood test

for phenobarbital, an anti-convulsant, showed the level was far below therapeutic. The

doctor wrote that Marcrum was in "florid psychosis" and ordered that he be given 500

mg. Dilantin "NOW." 

The state trial court considering Marcrum's post-conviction proceeding rejected

Marcrum's argument that his lawyer had ineffectively presented his mental disease

defense. Marcrum v. State of Missouri, No. CV198-1317 -CC-JI (Mo. Cir. Ct. May

18, 2000). The court held that counsel had acted reasonably in employing Dr. Barclay,

based on Barclay's credentials and performance as a witness in past cases. Since

Barclay's testimony "went to establishing the defense of not guilty by mental disease

or defect and that of diminished capacity," counsel was not obliged to shop for another

doctor, even if the second doctor would reach that conclusion by "different diagnosis

and different nomenclature." The court further accepted Speer's testimony that the

medical records would have been cumulative and repetitive and would have lengthened

the trial to Marcrum's detriment. The court rejected the argument that Speer should

have cross-examined Parwatikar, concluding that such cross-examination "would [not]

have presented a viable defense," that Marcrum failed to demonstrate what Parwatikar
2

The Missouri Court of Appeals stated that there was evidence at trial that

Marcrum had "multiple seizures the day of the attack." Actually, the evidence was

that he had had seizures in the days leading up to the attack. 

-17-

would have said on cross-examination, and that Speer had valid reasons not to prolong

the trial by cross-examining the state's expert. 

Marcrum appealed the denial of post-conviction relief to the Missouri Court of

Appeals, which also rejected the claim that counsel failed to present the mental disease

or defect defenses adequately. Marcrum v. State of Missouri, No. ED 77956, slip op.

at 3-4 (Mo. Ct. App. May 22, 2001). The Court of Appeals listed three grounds for

rejecting Marcrum's claim that Speer failed to introduce information from his medical

records through his expert. First, the Court of Appeals said that Dr. Barclay's

testimony at trial had actually covered the facts that Marcrum did not take his

medicine, that he had frequent seizures,2

 that he was admitted to the hospital the night

of the killing, and that he accused his mother of poisoning him. The Court of Appeals

concluded that the omitted records would not add to what was already before the jury.

Second, according to the court, there were legitimate strategic reasons for declining to

put in certain evidence relevant to Marcrum's psychosis, such as his violence, his

alcohol abuse and his belief that Reeves was evil, since these facts could have

prejudiced the jury against Marcrum. Id. at 4. Third, some of the facts that Marcrum

contended should have been brought out from the medical records at trial were not

simply the facts from the records, but involved an interpretation of those facts that was

different from Barclay's interpretation. The Missouri Court of Appeals held that

Marcrum could not impeach his own expert "under the guise of a claim of ineffective

assistance of counsel." Id.

Even assuming that any of the actions Marcrum complained about constituted

deficient performance, the Court of Appeals held that there was substantial evidence

that Marcrum was sane at the time of the killing and that therefore any deficiency did

not prejudice Marcrum. Id. at 5.
-18-

The Court of Appeals also held that it was not unreasonable for Speer not to

cross-examine Parwatikar because the assertions Parwatikar made on direct

examination reflected Parwatikar's professional opinion. Id. at 6. Implicitly, the court

doubted that Parwatikar would have conceded that there was anything doubtful or

incorrect about his testimony on direct. Moreover, the Court held that crossexamination of Parwatikar could have "backfired" because it might have made

Parwatikar's testimony even more convincing to the jury. Id.

C. Habeas proceedings in the district court.

Marcrum filed this habeas proceeding, contending that Speer's assistance was

ineffective for failure to introduce Marcrum's "voluminous records of mental illness,"

and in particular, the records from the night of June 3 showing his anticonvulsant level

was far below therapeutic range and he was diagnosed as suffering from "florid

psychosis." 

The district court held it was not a reasonable strategy for counsel to fail to

introduce these records on the ground that they were cumulative and would bore the

jury. Marcrum v. Luebbers, No. 4:02CV01167 AGF, slip op. at 35 (E.D. Mo. Sept. 30,

2005). Moreover, trial counsel appeared to think he had introduced at least some of

the records, when in fact he had not introduced them. Id. at 36. Specifically, the

district court held that the evidence in the records about the connection between

Marcrum's past psychotic episodes and violent behavior was crucial to his case,

especially because both experts at trial and Marcrum himself had said that Marcrum

was not violent during his psychotic episodes. Further, the evidence showing that

Marcrum became psychotic when his anti-convulsant level was too low was also

crucial. The district court rejected the idea that testimony about Marcrum's past

psychiatric episodes from his friends and family was an acceptable substitute for

evidence taken from hospital records. The district court also held that it was
-19-

unreasonable not to cross-examine Dr. Parwatikar when he said that Marcrum's records

showed no history of violent conduct in connection with Marcrum's psychiatric crises,

whereas the medical records showed that there was such a connection. Id. at 37. 

The district court also held unreasonable the state courts' conclusions that there

was no prejudice to Marcrum from his counsel's failure to introduce the medical

records and to impeach Parwatikar with the inconsistency between the facts disclosed

in the records and his opinion that there was no connection between Marcrum's

psychosis and his violent behavior. The district court reasoned that the state courts

relied on record evidence tending to show that Marcrum was sane during the killing,

but that this evidence "came solely" from Parwatikar and would have been significantly

undercut by introducing the records and demonstrating that Parwatikar's testimony was

inconsistent with them. Id. The district court conducted its own prejudice analysis and

found that, while evidence that Marcrum committed the killing was overwhelming,

evidence that he was sane at the time and able to deliberate was not. The evidence that

he was sane and able to deliberate was mostly from the tape demanding money, which

was made seven years before the killing and was therefore not very probative of

Marcrum's sanity or ability to deliberate on the day at the time of the killing. Id.

Having concluded that Marcrum received ineffective assistance of counsel in

connection with presenting his insanity and diminished capacity defenses and that the

state courts' conclusions to the contrary were objectively unreasonable, the district

court granted Marcrum's habeas petition. Id. at 40. The court stayed its order pending

this appeal. 

Before moving to the merits of this case, we observe that the Superintendent

contends that this petition is barred by the one-year statute of limitations for habeas

petitions, 28 U.S.C. § 2244(d)(1). The Superintendent contends that the statute of

limitations began to run fifteen days after Marcrum's direct appeal was decided by the

Missouri Court of Appeals, whereas the district court counted the time beginning 90
-20-

days after the Missouri Court of Appeals' decision. Marcrum v. Luebbers, No.

4:02CV01167 AGF, slip op. at 3 (E. D. Mo. Sept. 11, 2003). The case of Riddle v.

Kemna, No. 06-2542, which involves the same question concerning the running of the

statute of limitations, is now pending before our court en banc. In view of our

disposition of the merits of this case, we need not resolve the question of whether the

petition was timely filed.

II.

In habeas corpus proceedings, we review the district court's findings of fact for

clear error and its conclusions of law de novo. Garcia v. Bertsch, 470 F.3d 748, 752

(8th Cir. 2006), cert. denied, 127 S. Ct. 2937 (2007). Ineffectiveness of counsel claims

present mixed questions of law and fact, which we review de novo. Id. at 754. That

said, in a habeas case alleging ineffective assistance of counsel, we are bound to view

what happened at trial through two filters, the first requiring us to defer to judgments

of trial counsel, see Strickland v. Washington, 466 U.S. 668, 689 (1984), and the

second requiring us to defer to the state courts' application of federal law to the facts

of the case, see Bell v. Cone, 535 U.S. 685, 698-99 (2002). Taking into account the

leeway given to counsel under the Strickland standard and that given to the state courts

under 28 U.S.C. § 2254(d), we conclude that Marcrum did not show he was entitled

to the writ of habeas corpus.

A.

The Sixth Amendment guarantees the right of the accused in criminal

prosecutions to "the Assistance of Counsel for his defence." U.S. Const. amend. VI.

"[T]he right to counsel is the right to effective assistance of counsel." Kimmelman v.

Morrison, 477 U.S. 365, 377 (1986). Effective assistance is representation that

"play[s] the role necessary to ensure that the trial is fair." Strickland, 466 U.S. at 685.

To show a constitutional violation of the right to counsel a convicted defendant must
-21-

show first, that counsel's performance was deficient, id. at 687, and second, that

counsel's errors prejudiced the defense, id.. 

The test we apply for deficiency of performance is an objective standard of

reasonableness. Id. at 688. In Strickland, when the Supreme Court pronounced this

standard, it expressly declined to dictate detailed rules for deciding reasonableness:

"More specific guidelines are not appropriate." Id. However, Strickland gave us

several guides to decision: we must assess reasonableness on all the facts of the

particular case, we must view the facts as they existed at the time of counsel's conduct,

and we must evaluate counsel's performance with a view to whether counsel functioned

to assure adversarial testing of the state's case. Id. at 690. Moreover, the

reasonableness of counsel's actions may depend on his client's wishes and statements.

Id. at 691; see Schriro v. Landrigan, 127 S. Ct. 1933, 1941 (2007) (client's statement

to court that he did not wish to present mitigating evidence supported state court

finding of no prejudice from counsel's failure to investigate such evidence). A court

considering a defendant's attack on his conviction must be "highly deferential" in

assessing whether counsel's course of conduct could be considered a sound trial

strategy rather than an error, Strickland, 466 U.S. at 689, and must "indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance," id. In other words, the burden of proof is on the petitioner to

show that "his attorney's representation was unreasonable under prevailing professional

norms and that the challenged action was not sound strategy." Kimmelman, 477 U.S.

at 384.

The Supreme Court has held in several cases that the habeas court's commission

is not to invent strategic reasons or accept any strategy counsel could have followed,

without regard to what actually happened; when a petitioner shows that counsel's

actions actually resulted from inattention or neglect, rather than reasoned judgment, the

petitioner has rebutted the presumption of strategy, even if the government offers a

possible strategic reason that could have, but did not, prompt counsel's course of
3

The recent Landrigan case is not to the contrary, despite the Supreme Court's

reversal of a Court of Appeals decision granting an evidentiary hearing on a habeas

claim based on a failure to investigate theory. In Landrigan, at sentencing, the client

had announced that he did not wish to present any evidence of mitigation. The Ninth

Circuit said that the client's last-minute decision not to testify could not excuse

counsel's earlier failure to investigate mitigating circumstances. The Supreme Court

reversed the Ninth Circuit's grant of an evidentiary hearing, but it did not hold that the

client's decision made reasonable counsel's earlier failure to investigate. Instead, the

Supreme Court held that the client could not show he was prejudiced by the failure

when he himself later decided not to present mitigation evidence. 127 S. Ct. at 1942.

-22-

action.3

 Rompilla v. Beard, 545 U.S. 374, 395-96 (2005) (O'Connor, J., concurring);

Wiggins v. Smith, 539 U.S. 510, 526-27 (2003); Kimmelman, 477 U.S. at 385. For

instance, in Kimmelman, the Supreme Court held that counsel's performance was

deficient when his failure to file a timely motion to suppress a bed sheet seized in a

rape case was due not to strategic considerations, but to counsel's ignorance that the

state had the bed sheet and intended to introduce it. Counsel had failed to learn of the

sheet because counsel mistakenly believed that the state would turn all incriminating

evidence over without the need for counsel to conduct discovery. 477 U.S. at 384-85.

The warden's arguments that the bed sheet did not turn out to be as important as other

aspects of the case did not justify counsel's failure to learn of the bed sheet or respond

to it. The Supreme Court held that counsel's decisions had to be evaluated as of the

time they were made, and counsel who conducted no discovery could not have known

what the relative importance of the different kinds of evidence would be. Id. at 386-87.

Similarly, in Wiggins, the Court held counsel's actions were deficient, despite proffered

strategic justifications: "[T]he 'strategic decision' the state courts and respondents all

invoke to justify counsel's limited pursuit of mitigating evidence resembles more a post

hoc rationalization of counsel's conduct than an accurate description of their

deliberations prior to sentencing." 539 U.S. at 526-27. 

If, viewed with appropriate deference, counsel's performance was in fact

deficient, the convicted defendant will only be entitled to relief if he shows there is a
-23-

reasonable probability that, but for counsel's errors, the result of the proceeding would

have been different. Strickland, 466 U.S. at 694. "A reasonable probability is a

probability sufficient to undermine confidence in the outcome." Id. The reviewing

court must not consider the attorney error in isolation, but instead must assess how the

error fits into the big picture of what happened at trial. Id. at 696. "[A] verdict or

conclusion only weakly supported by the record is more likely to have been affected

by errors than one with overwhelming record support." Id.

B.

The federal statute for habeas review of state convictions was overhauled in

1996, in the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, Title

I, § 104, 110 Stat. 1218, now universally known as AEDPA. An important effect of

AEDPA was to modify the standard by which we review state courts' earlier decisions

in a case. Section 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.

(emphasis added).

Section 2254(d)(1), which governs legal determinations, has two clauses, the

"contrary to" clause and the "unreasonable application" clause. Because the state
4

The governing legal principles are drawn from Supreme Court jurisprudence

as of the time the state court rendered its decision. Yarborough v. Alvarado, 541 U.S.

652, 660-61 (2004). 

-24-

courts correctly identified the governing legal rules in Marcrum's case,4

 only the

"unreasonable application" clause (highlighted in the quotation above) concerns us

here. "A run-of-the mill state-court decision applying the correct legal rule from

[Supreme Court] cases to the facts of a prisoner's case would not fit comfortably within

§ 2254(d)(1)'s 'contrary to' clause." Williams v. Taylor, 529 U.S. 362, 406 (2000).

Such a decision could, however, involve an "unreasonable application" if the court

identified the correct legal rule but unreasonably applied it to the facts of the case

before it. Id. at 407-09 (reserving question of whether the "unreasonable application"

clause could also apply where state court unreasonably extends or fails to extend

established legal principle to new context). 

Although the Supreme Court has not found it necessary to refine the meaning

of "unreasonable application," see Yarborough v. Alvarado, 541 U.S. 652, 663-64

(2004) ("The term unreasonable is a common term in the legal world, and accordingly,

federal judges are familiar with its meaning.") (internal quotation marks omitted), the

Court has established that the standard does not require that all reasonable jurists

would agree that the application was unreasonable, Williams, 529 U.S. at 409-10, and

that it requires something more than clear error, Lockyer v. Andrade, 538 U.S. 63, 75

(2003). Unreasonableness is judged by an objective standard. Yarborough, 541 U.S.

at 665. The more general the applicable legal rule or principle, "the more leeway

courts have in reaching outcomes in case-by-case determinations," Yarborough, 541

U.S. at 664, and consequently, the more difficult it is to say that the state court's

application of such a rule or principle is objectively unreasonable. As we discussed

above, in Strickland, the Supreme Court expressly determined that the ineffective

assistance standard should be left as a general principle, not a set of specific rules, 466

U.S. at 688, which suggests that it would be rare for the Supreme Court to hold a state

court's application of Strickland to be unreasonable. See Rompilla, 545 U.S. at 381
-25-

("A standard of reasonableness . . . spawns few hard-edged rules. . . ."). However, the

Supreme Court has recently made clear that "even a general standard may be applied

in an unreasonable manner." Panetti v. Quarterman, 127 S. Ct. 2842, 2858 (2007).

Nevertheless, the Supreme Court has held on three occasions that state courts'

applications of Strickland were unreasonable under the AEDPA and that prisoners

were entitled to the writ of habeas corpus because they received ineffective assistance

of counsel. Rompilla, 545 U.S. at 380, 393; Wiggins, 539 U.S. at 520, 538; Williams,

529 U.S. at 399; see John H. Blume, "AEDPA: The 'Hype' and the 'Bite,'" 91 Cornell

L. Rev. 259, 279-80 nn.105-107 (2006) (noting that before the AEDPA, Supreme

Court never held counsel ineffective under Strickland, whereas Court has done so three

times under the AEDPA). In each of these three cases, counsel had failed to present

important aspects of the personal history of the defendant, and the failure had resulted

from inadequate trial preparation. Rompilla, 545 U.S. at 389-92 (failure to look at file

for prior conviction which showed parental abuse and alcoholism and would have

pointed to defendant's organic brain damage); Wiggins, 539 U.S. at 524-25 (counsel

failed to investigate or present evidence of childhood abuse); Williams, 529 U.S. at

395-97 (counsel failed to uncover records describing defendant's nightmarish

childhood and borderline retardation). Though these cases were all death-sentence

cases and Marcrum's is not, there is a good deal of similarity between the kind of

omissions that led to relief in Williams, Wiggins, and Rompilla and those alleged by

Marcrum. This string of cases shows that the AEDPA does not relieve us of the duty

to scrutinize counsel's omissions and the state courts' assessments of counsel's

omissions.

III.

A.

The evidence at the trial of this case revealed a serious possibility that on the day

of the killing Marcrum was in the throes of a psychosis. The jury nevertheless rejected
5

See discussion at pages 35-37, infra.

-26-

Marcrum's defenses of insanity and diminished capacity. However, that jury never saw

or heard about medical evidence that, with scrutiny and analysis, could have shown a

well-established pattern in which Marcrum failed to take his anti-convulsants, suffered

from serial seizures, and fell into a psychosis in which his behavior was paranoid and

violent. Nor did the jury see or hear about medical records from the night of the killing

diagnosing Marcrum as psychotic and showing a sub-therapeutic level of anticonvulsant in his blood. The record shows that counsel's decisions about what medical

records to introduce at trial resulted from neglect, not reasonable trial strategy. After

scrutinizing the record from beginning to end, we conclude that introduction of the

medical records themselves would not have been reasonably likely to have changed the

jury's mind, see Strickland, 466 U.S. at 696 (asking whether decision would

"reasonably likely" have been different absent attorney error). The records themselves

could not have made the necessary causal connection between lack of anti-convulsants,

serial seizures, organic psychosis, and violence. Only an expert who interpreted the

records in a different way than the two experts who testified at trial could have made

those records tell the story that we now have before us. Because the law is wellestablished that a lawyer who hires a qualified mental health expert is not ineffective

in relying on that expert's opinion unless the lawyer has reason to doubt the expert's

competence,5

 we cannot say that Speer's decision to hire Barclay or to proceed to trial

on the basis of Barclay's interpretation of the medical record fell below the standard

of performance dictated by the Sixth Amendment. In sum, as we explain below, we

conclude that Speer's decisions that may have fallen below the level of acceptable

competence did not result in prejudice to Marcrum, and Speer's decisions about what

expert to present did not fall below the level of acceptable performance. 

B.

Marcrum contends that Speer's decision not to introduce the medical records into

evidence resulted from negligence, not from defensible strategy. Supreme Court
-27-

precedent shows that counsel's decisions resulting from failure to investigate are not

entitled to the presumption of competent performance, whereas decisions about what

to do with the results of investigation are strategic decisions that are virtually immune

to second-guessing by habeas courts. E.g., Wiggins, 539 U.S. at 522-23, 527-28

(decision avoided focusing on counsel's decision of what evidence to present, which

was strategic, but found deficient performance because of inadequate investigation,

which shaped strategic decision). 

The record here shows that well in advance of trial, Speer was in possession of

the medical records that Marcrum now relies on. Speer said at trial that he had

received a "large bundle of information" when he took over the case from the public

defender. Speer supplied those records to Barclay, and Barclay reviewed the records

in examining Marcrum and formulating his opinion about Marcrum's state of mind at

the time of the killing. Indeed, the record before us presents the medical records in

sets, most of which are labeled: "Records of Alan [sic] Barclay, PhD from Missouri

Baptist Hospital–Sullivan," "Records of Alan [sic] Barclay, PhD from Social Security

Administration, Rolla," etc. Barclay testified at trial that he reviewed the medical

records and Marcrum does not argue that the records Barclay had were incomplete.

Therefore, whatever else Speer may have done wrong, this is not a case like the ones

where the Supreme Court has found deficient performance because the lawyer failed

to turn up the evidence in time to formulate a trial strategy. See Rompilla, 545 U.S.

at 389-90; Wiggins, 539 U.S. at 524-25; Kimmelman, 477 U.S. at 385. 

What Speer did do wrong was to fail to timely disclose as witnesses the doctors

and other health-care providers who had treated Marcrum in the past and who would

have been able to testify about the contents of the records. As we discussed in the

statement of facts, Part I B supra, Speer failed until well into the trial to name Dr. Kim

Young and Denise Hacker, who could have testified about Marcrum's records from

severe episodes in November and December 1993, and Drs. Gedden and Viamontes,

who treated Marcrum the night of the killing. The trial court excluded those witnesses
6

Marcrum has not shown that the various treating doctors would have added

anything to the information shown in the medical records; we therefore need not treat

the failure to call the doctors as witnesses separately from the failure to introduce the

records. 

7

The Missouri Court of Appeals also held that failure to introduce the medical

records was no failure at all, since some of the facts that would have been in the

-28-

because of Speer's neglect to comply with the pretrial order,6

 but the court endeavored

to limit the damage to Marcrum's case by ruling that Speer could introduce the records

through Barclay. However, at the post-conviction hearing, Speer said that he did not

introduce the records because the court excluded them: "[T]here were some medical

records I thought at one point we wanted to get in and because they were late arriving,

the Court declined to allow them in." Speer offered his opinion that the records would

not have been "at all helpful," but he did not say that this was his contemporaneous

reason for failing to introduce them. The reason he gave for his failure to introduce the

records was that the trial court excluded them, which though it may show that Speer

misunderstood the details of the trial court's ruling, also shows that the failure was the

result of a situation caused by Speer's neglect. Moreover, Speer also said that he had

introduced some of the records, which he had not; this shows that the failure may have

resulted in part from still another mistake, and, again, it shows that the failure was not

the result of strategy. Upon prompting he also said that he was against "cumulative"

evidence, but he obviously did not discard as cumulative the records that he wrongly

believed he had entered into evidence or those that he tried to enter, but which he

believed had been excluded for lateness. Furthermore, the trial transcript shows that

Speer regarded the excluded treating doctors as crucial, since he argued to the trial

court: "We need these people. They're essential to his defense of mental disease or

defect." The law is clear that we must judge Speer's performance on facts as they

appeared to him at the time of trial, not on whether he thinks in retrospect the action

would have been advantageous or not. Kimmelman, 477 U.S. at 386-87. Thus, the

reasons offered by Speer and the state courts why not introducing the records could

have been strategic are irrelevant.7

 We need not reach the question of whether the state
medical records were entered through Barclay. This is not a complete answer on this

issue, since certain highly relevant facts, e.g., the lab report of sub-therapeutic anticonvulsant levels on the day of the killing, were not addressed in Barclay's testimony.

8

Had the laboratory report been introduced, the State may have cast doubt on

the relevancy since the test was for phenobarbital and Marcrum's usual anticonvulsant

was Dilantin. The parties have not addressed this issue.

-29-

courts' reliance on such reasons was an unreasonable application of federal law,

because we conclude that there was no prejudice from the failure to introduce the

records.

C.

To obtain relief on the theory that Speer was ineffective for failing to introduce

the medical records, Marcrum must show a reasonable probability that the failure to

introduce the records affected the outcome of the trial. We have before us some seven

hundred pages of medical records, much of it in illegible doctor's handwriting, much

in the form of laboratory reports, couched in medical terminology that would mean

almost nothing to a jury of lay people. Even if the notations had been read to the jury

by the treating doctors, there is no reason to think the jury could have digested them

and discerned a causal connection between lack of medication, serial seizures,

psychosis, and paranoia and violence. Clearly, it is not the failure to introduce the

records themselves that would have changed (or had a reasonable probability of

changing) the outcome of the trial. It would have required a specific use of the records

to have an effect on the jury.

Even if Speer had drawn the jury’s attention to such notations in the record as

"florid psychosis" on June 3, 1994, and the laboratory report showing a sub-therapeutic

level of phenobarbital in Marcrum's blood that night, we conclude that there is no

reasonable probability the jury would have found these items of evidence

determinative.8

 The testimony of both experts at trial led the jury to believe that the
-30-

psychosis occurred only in the immediate aftermath of a seizure and that Marcrum did

not have a seizure at Reeves's house that day. Without an expert's opinion that the

psychosis resulted from a series of seizures, not from a particular one, and that the

psychosis would not resolve until Marcrum was medicated with anti-convulsants, the

jury was not reasonably likely to piece together the medical records on its own to come

to the conclusion that Marcrum’s psychosis that night proved he was psychotic during

the afternoon.

Barclay's testimony left the jury in doubt as to whether there was proof that

Marcrum was psychotic on the afternoon of June 3, even assuming he was psychotic

that morning and that night. On cross-examination, when the prosecutor asked whether

Marcrum was "in the reality phase or in the loss of reality phase" on the day of the

killing, Barclay said, "I can't testify to that because I was not present." On redirect,

Barclay testified that he believed Marcrum was psychotic when he left home on June

3 and he was psychotic when he returned and that "it's part of a long-running pattern,

those repeated seizures." Speer asked whether there was "a high degree of probability"

that during the interim Marcrum was also psychotic, and Barclay answered, "I believe

that would be consistent with a persistent psychotic state, yes." This was not a

definitive rebuttal of his earlier admission. 

Moreover, Barclay acceded to the prosecutor's insistence that there was a oneon-one relationship between seizures and psychotic episodes: 

Q: The seizure is the trigger, isn't it?

A: Yes, the seizure is an event, right.

The prosecutor labored that point throughout the trial, and he drove it home on closing:

"The seizure is the trigger, his own doctor said." This would have led the jury to think

that unless there was a seizure at Reeves's house, which would have rendered Marcrum

unable to wield a fireplace poker or drive home, there must have been no psychosis.
-31-

In contrast, according to Dr. Logan, once the serial seizures leading up to June 3 had

pushed Marcrum into organic psychosis, he would have stayed psychotic–violent and

hyper-religious and able to hit people with pokers and still drive home–whether or not

he had another seizure. Indeed, he would have stayed psychotic until he had a

therapeutic level of anti-epilepsy medicine in his bloodstream. 

The jury had no way to assess the significance of the medical records showing

Marcrum had a subtherapeutic level of anti-epilepsy drugs. There was some evidence

in the record of the fact that Marcrum was off his medicine: Barclay mentioned at trial

that Marcrum's seizure disorder appeared to be progressing over time, "partly as a

result of his noncompliance with his medical regimen," and one of the ambulance

drivers from the night of June 3 testified that Marcrum's family had told him that night

that Marcrum "hadn't been taking his Dilantin, which is an anti-seizure medicine, for

two to three days." These comments were before the jury, but they were drops in an

ocean of evidence, which the jury was not equipped to interpret as Logan later

interpreted it. Both Barclay and Parwatikar, and for that matter, even the lay witnesses

at trial, characterized the psychosis as something that was associated with the seizures,

but the relation was never made clear. Some witnesses said the bizarre behavior

happened before a seizure, some said it happened after. Speer himself said in his

opening statement that Marcrum's seizures "don't necessarily have anything to do with

psychosis. Sometimes, I believe the testimony will show, that sometimes one may

precede the other or they may be entirely unrelated." Parwatikar expressly said the

psychosis could clear up within two hours to two days, and he referred to it as

"postictal psychotic period," which suggested that it only happened immediately after

a seizure. The experts at trial never told the story Logan told: that lack of medicine led

inexorably to multiple seizures to organic psychosis that would not clear until Marcrum

had been medicated with anti-epilepsy medicine. Without that clear, causal

explanation linking the medical observations into a story line, evidence that Marcrum

had not been taking his medicine and that he was paranoid that morning or in "florid

psychosis" that night did not prove Marcrum was insane at the time of the killing.
9

Because we decide that there was no reasonable probability that crossexamination of Parwatikar would have changed the result of the trial, we need not

decide whether Speer's performance was deficient in declining to impeach an expert

with contradictions between his testimony, on the one hand, and the medical records

and his own report, on the other, for the alleged strategic reasons that the expert was

"tall," "good-looking," "commanding," and "articulate"and that there was "no fruitful

line of inquiry" on which to cross-examine him. Nor need we decide further whether

the state courts unreasonably applied Strickland in holding that Speer's performance

was not deficient in this regard.

10Q: Did you also find any history, either speaking to the Defendant or through

his medical records, where his particular psychosis, which is triggered by the seizure,

manifested through the seizure and the odd behavior, at any time also manifested itself

with violent behavior?

A: No, sir.

-32-

With Barclay's and Parwatikar's testimony as the jury's expert guidance, introducing

a lab result showing a low level of phenobarbital on June 3 or an emergency room

doctor's note of "florid psychosis" would not have appreciably changed the mix of

evidence before the jury.

Nor would it have helped to impeach Parwatikar9

 for saying there was no

evidence of any connection between Marcrum's psychosis and violent behavior.10

Speer could have impeached Parwatikar with Parwatikar's own report that said,

"[W]hen he becomes psychotic . . . [h]e becomes violent, running around the

neighborhood without any clothes on, screaming and thinking people are trying to kill

him, etc." Or Speer could have used medical records such as those from the December

1993 incident in which Marcrum was picked up for domestic assault, and taken to the

emergency room, saying, "I killed the kids, I'm hitching to the Lord and I'm taking a

bunch with me." 
11Marcrum himself agreed with the prosecutor that his "seizures . . . and aftereffects are passive, of a non-violent nature."

12Recall Marilyn McManus's testimony: "There was times that he has drank and

he has hit me and he has not had a seizure." The medical records also revealed violent

behavior that had no documented link to low anticonvulsant levels or seizures, as for

example, the record of June 30, 1990, when Marcrum was treated for injuries from a

fist-fight, with no mention of seizure involvement.

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These tactics would have done no good because Barclay also agreed that there

was no relationship between the "nonreality stage" and violence:11

Q: Even during the previous seizure patterns, isn't it true that your report

indicated that "these patterns are nonviolent in nature"?

A: Yes.

Q: And if we remember the seizure triggers that mental disease or defect

to go into the nonreality stage. So that nonreality stage, based upon your

report and your research, is nonviolent in nature, isn't it?

A: Yes.

Again, Barclay said:

Q: During the post-ictal stage, which means after the seizure, when he's

saying he's God and he's Gordon Gundaker, that he's holding a book, a

real estate book and thinks it's the Bible or whatever, you never found one

violent episode in his past, did you?

A: Not by a report, to the best of my knowledge, Counselor.

Neither of these experts said, as Logan said later, that the hallmark signs of Marcrum's

psychosis were religious delusions and violence, so that the very evidence linking

Marcrum to the killing (blood and the statement, "Praise the Lord, I just killed one sonof-a-bitch. . . .") would support the conclusion that he was insane at the time it

happened. The record was not so clear that it could interpret itself. While the medical

records themselves show that Marcrum was sometimes violent during his psychotic

episodes, the evidence at trial indicated he was also violent at other times,12 and the lay
13McManus said both that he could be "angelic" in an "aftermath" and that he

could be violent. The medical records also revealed episodes of low medicine levels

and seizures with no violent behavior, for instance, the record for August 13, 1993.

His parents testified about his bizarre behavior, but they insisted he was not violent.

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witnesses said not every episode of delusions and bizarre behavior led to violence.13

Perhaps the closest case from our Circuit factually is Hill v. Lockhart, 28 F.3d

832 (8th Cir. 1994), a pre-AEDPA death-penalty case. Hill's psychologist testified that

Hill had chronic paranoid schizophrenia and that it "would be reasonable to assume"

the defendant was psychotic at the time of the killing. Id. at 841. He also said that

paranoid schizophrenics often quit taking their medication. Id. at 842. What he did not

say was that Hill had in fact missed an appointment to take his drugs about three weeks

before the killing and so was unmedicated at the time of the killing. We found

counsel's performance deficient for failing to raise the "obvious" defense that Hill was

insane because of failure to take his drugs. Id. at 842. However, in light of other

evidence that Hill abused drugs and alcohol before the killing, we held that Hill did not

prove prejudice so as to require vacatur of his conviction (although he did prove

prejudice in connection with proving mitigating factors for the death penalty). Thus,

despite our conclusion that the jury never heard the best reason for finding Hill insane

at the time of the killing, we did not vacate the conviction. The enactment of the

AEDPA after Hill was decided would make Hill even less entitled to relief under

current law. Thus, Hill does not point clearly either way on whether there was

prejudice in this case.

We conclude that, without expert testimony such as Logan's, linking the lack of

anti-epilepsy medicine to an organic psychosis, marked by violent behavior and

religious delusions, that would not resolve until Marcrum had received a therapeutic

dose of medicine, it would not have helped appreciably for Speer to introduce the

medical records and cross-examine Parwatikar. The defect at trial was not lack of

primary evidence, it was lack of an interpretation. It was not objectively unreasonable
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for the Missouri Court of Appeals to find that Marcrum suffered no prejudice from

Speer's failure to introduce the medical records or cross-examine Parwatikar.

But this conclusion simply delays getting to the heart of the matter: if the

medical records and the cross-examination would not have been reasonably likely to

change the result of the trial without expert testimony like Logan's testimony at the

post-conviction hearing, was it ineffective for Speer to fail to come up with a Dr.

Logan or someone else who would have testified to the same theory? No one disputes

that Dr. Barclay was qualified or that he took sufficient time and trouble with

Marcrum. He was a Ph.D. clinical psychologist from a prestigious university, with

graduate training in psychopathology and impressive professional credentials, who has

practiced extensively. See Mo. Rev. Stat. §§ 552.020, 632.005(19) (requiring

evaluation of certain defendants by psychiatrist or psychologist or by physician with

one year experience in treating retarded or mentally ill patients), and § 337.021

(educational criteria for licensure satisfied by doctoral degree in psychology and one

year of practice). Barclay examined Marcrum, tested him, interviewed members of his

family, and reviewed statements of the police and extensive medical records given to

him by Marcrum's lawyer. Barclay estimated he had spent between 12 and 20 hours

on Marcrum's case. 

 

Where counsel has obtained the assistance of a qualified expert on the issue of

the defendant's sanity and nothing has happened that should have alerted counsel to

any reason why the expert's advice was inadequate, counsel has no obligation to shop

for a better opinion. Sidebottom v. Delo, 46 F.3d 744, 753 (8th Cir. 1995); Six v.

Delo, 94 F.3d 469, 474 (8th Cir. 1996), abrogated on other grounds, Smith v.

Bowersox, 311 F.3d 915, 918 n.2 (8th Cir. 2002). The fact that a later expert, usually

presented at habeas, renders an opinion that would have been more helpful to the

defendant's case does not show that counsel was ineffective for failing to find and

present that expert. See, e.g., King v. Kemna, 266 F.3d 816, 824 (8th Cir. 2001) (en

banc); Sidebottom, 46 F.3d at 753. Admittedly, we have found ineffective assistance
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in the sentencing phase of a death case where counsel failed to look for a second expert

opinion after a cursory first examination (twenty minutes) produced an expert's opinion

which did not fit with the facts as known to counsel, Antwine v. Delo, 54 F.3d 1357,

1368 (8th Cir. 1995). But there was no cursory examination here, where Barclay spent

12-20 hours working on Marcrum's case. The very fact that Barclay's interpretation

of the record was consistent with Parwatikar's would have given Speer every reason

to believe that both experts were making a correct analysis of the medical records. 

Nor would it necessarily have been obvious to Speer, the layman, that he should

contend that there was a link between Marcrum's psychosis and violence, when both

the experts said there was not. The record is not so crystal clear that Speer was on

notice that his expert was missing something. As we noted above, there was evidence

in the record of violent behavior even when Marcrum was not psychotic and not every

episode of bizarre behavior resulted in violence. Even if Logan's interpretation of the

record makes a more coherent story and a story that would have been more likely to

produce an acquittal, this does not necessarily mean that Barclay's interpretation was

wrong or that Speer was wrong to rely on it. Far less could we say that the state courts

were unreasonable in holding Speer's representation was constitutionally acceptable.

See Ringo v. Roper, 472 F.3d 1001, 1006 (8th Cir.), cert. denied, 128 S.Ct. 445 (2007).

We cannot conclude that Marcrum has proved that his constitutional right to

counsel was violated and that the Missouri courts were unreasonable in finding to the

contrary.

IV.

Marcrum argues that we should affirm on the alternative ground that Speer was

ineffective in failing to object to the prosecutor's personalization in closing argument.

The district court held that there was no reasonable probability that the outcome of the
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trial would have been different if Speer had objected, and we agree there is no such

probability.

Marcrum also contends that Speer was ineffective in failing to file Marcrum's

new trial motion in time. He contends that this constituted deprivation of counsel at

a critical stage, thus entitling him to relief even without proving he suffered prejudice.

Speer's mistake in failing to file the motion on time was just that--a mistake by counsel,

not a deprivation of counsel. Marcrum must therefore prove prejudice. See Bell v.

Cone, 535 U.S. 685, 697-98 (2002). As the district court held, he showed none, since

the Missouri Court of Appeals considered his arguments for new trial at the postconviction stage and held none of the arguments would have prevailed. 

***

While habeas counsel has done a commendable job in presenting this difficult

case and the district court's analysis was thorough and thoughtful, we ultimately must

conclude that Marcrum was not denied his right to effective assistance of counsel at

trial. It follows that the state courts did not unreasonably apply established federal law

in reaching the same conclusion. Accordingly, the judgment of the district court must

be and is reversed. 

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