United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-3281/99-3440

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Kenneth Kenley, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Michael Bowersox, *

*

Appellant. *

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Submitted: September 14, 2001

Filed: January 3, 2002

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Before BOWMAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.

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BOWMAN, Circuit Judge.

The long history of this case is detailed in our opinion in Kenley v. Bowersox,

228 F.3d 934, 936-37 (8th Cir. 2000) (Kenley II), which disposed of the bulk of this

particular appeal. Briefly, Kenneth Kenley was convicted of capital murder (among

other crimes) as a result of a crime spree through northern Arkansas and southern

Missouri in January 1984. He was sentenced to death. Kenley did not prevail in his

direct appeal or in his state post-conviction efforts. Likewise, his first petition in the

district court seeking relief under 28 U.S.C. § 2254 was denied. This Court affirmed

that denial as to the conviction but granted relief on Kenley's Sixth Amendment claim

of ineffective assistance of counsel in the penalty phase. See Kenley v. Armontrout,
1

Of the four remaining claims included in the COA but not appealed by Kenley,

two were the dismissed claims, one was the claim on which Kenley prevailed in the

District Court, and one was a claim relating to Kenley's challenge to Missouri's

reasonable-doubt instruction.

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937 F.2d 1298 (8th Cir.) (Kenley I), cert. denied, 502 U.S. 964 (1991). Kenley was

resentenced, again drawing the death penalty. His direct appeal and his postconviction proceedings in the state courts were unavailing. But the District Court

granted relief on Kenley's second § 2254 petition on his claim that he was denied due

process in the state post-conviction proceedings (actually "post-resentencing"

proceedings), conducted under Missouri Supreme Court Rule 29.15. Nine other

claims for habeas relief were denied, and the District Court granted a certificate of

appealability (COA) on eight of Kenley's claims. Two claims alleging ineffective

assistance of counsel at resentencing were dismissed without prejudice. The State

appealed the District Court's decision to grant the writ, and Kenley cross-appealed

four of the denied claims that were within the COA.1

 We reversed the decision to

grant § 2254 relief, affirmed the denial of the four cross-appealed claims, vacated the

dismissal of the two claims of ineffective assistance, remanded for consideration of

those claims on the merits, and retained jurisdiction over the case pending the District

Court's decision.

On remand, the District Court rejected Kenley's contention that he was entitled

to relief because he was denied the effective assistance of counsel at resentencing.

As we instructed, the court (having previously included the Sixth Amendment claims

in the COA, notwithstanding that they already had been dismissed) certified its

decision to this Court. We requested supplemental briefing addressing only the

ineffective assistance claims. In addition, we heard oral argument on the issues.

After careful consideration, we affirm the District Court's denial of these claims.

Under § 2254, as amended by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, our review of a state
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court's decision on a petitioner's federal constitutional claim is more deferential than

it was before 1996. The state court's decision, however, will be entitled to this

deference only if the "claim . . . was adjudicated on the merits in State court

proceedings." 28 U.S.C. § 2254(d) (Supp. IV 1998). Kenley argues there has been

no adjudication on the merits in his case and the state courts' decisions on the claims

therefore should be reviewed de novo by the federal courts. The District Court, "in

an exercise of prudence," conducted such a de novo review. Memorandum & Order

(Nov. 2, 2000) at 6.

We think it is clear that Kenley's claims were adjudicated on the merits in the

state courts. They were not disposed of on procedural grounds, as defaulted or

otherwise barred. The Rule 29.15 court held a hearing; witnesses were called and

evidence was taken. We are familiar with Kenley's position, shared by the District

Court, that the Rule 29.15 court's judgment was illegitimate because of the procedure

used by that court in adopting the State's proposed findings and conclusions as its

own. See Kenley II, 228 F.3d at 936-37. But the decision is no less an adjudication

on the merits simply because Kenley is unhappy with the way in which the state court

announced its judgment. In any event, the Missouri Supreme Court reviewed the

transcript of the hearing and made its own findings and conclusions—yet another

state court adjudication on the merits. See State v. Kenley, 952 S.W.2d 250 (Mo.

1997) (en banc), cert. denied, 522. U.S. 1095 (1998). Indeed, in the District Court's

first go at Kenley's most recent § 2254 petition, the court applied the deferential

standards of review enunciated in post-AEDPA § 2254(d) to the claims it

denied—claims that were adjudicated in the same state court proceedings and in the

same manner as the two claims now before us.

To put it plainly, we hold that Kenley's ineffective assistance of counsel claims

were adjudicated on the merits in the state courts and so the deferential standard of

review of § 2254(d) applies to the state courts' decisions. That is, § 2254 relief will

be granted only if the adjudication by the state courts "resulted in a decision that was
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contrary to, or involved an unreasonable application of, clearly established Federal

law" or "resulted in a decision that was based on an unreasonable determination of

the facts," which factual findings carry a presumption of correctness that will be

rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(d), (e)(1) (Supp.

IV 1998). We note, however, that we would reach the same result as did the District

Court on its de novo review if we were to apply the de novo standard ourselves.

As we have said, Kenley claims in his two remaining § 2254 counts that he was

denied the effective assistance of counsel at his resentencing. According to Kenley,

counsel failed to investigate or present evidence of Kenley's alleged mental

deficiencies and further failed to investigate or present evidence of Kenley's

purported intoxication on the night of the crime and how such intoxication and his

mental deficiencies affected his behavior at the time of the murder.

When this Court addressed Kenley's first § 2254 petition over ten years ago,

we concluded that Kenley's trial counsel was constitutionally ineffective "during the

penalty phase of his capital trial due to counsel's failure to present available family

and expert mitigating evidence of his medical, psychological and psychiatric history."

Kenley I, 937 F.2d at 1303. We remanded for resentencing. With our explication of

original trial counsel's ineffectiveness on these matters presumably in the minds of

Kenley's new counsel, the state court held a second sentencing hearing. In fact, the

court received as evidence for the defense the testimony of two witnesses who were

specifically referenced by the Court in Kenley I, a social worker who first worked

with Kenley as a pre-adolescent and a psychiatrist who treated him as a teenager.

Kenley's mother also was called to testify.

In order to be granted relief under § 2254, a petitioner claiming constitutionally

ineffective assistance of counsel must first show that counsel was ineffective, that is,

that counsel's performance was objectively unreasonable. Strickland v. Washington,

466 U.S. 668, 687 (1984). Our review of counsel's efforts is "highly deferential," and
2

We do not mean to suggest that the three experts concurred on every point that

we note in this opinion.

3

None of the experts could say for certain the precise cause of the purported

brain damage. Suspected causes included the attempted delivery of Kenley at birth

by forceps, a car accident in which Kenley claims he lost consciousness for a few

minutes (there are no medical or police records of the accident), and substance abuse.

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"counsel is strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment." Id. at 689,

690. If counsel's representation was, in the judgment of the reviewing court,

professionally unreasonable, then we proceed to consider whether the petitioner was

prejudiced as the result of counsel's deficiencies. Id. at 687. "When a defendant

challenges a death sentence . . . , the question is whether there is a reasonable

probability that, absent the errors, the sentencer . . . would have concluded that the

balance of aggravating and mitigating circumstances did not warrant death." Id. at

695.

It is Kenley's argument that counsel should have presented evidence that he had

suffered organic brain damage at some time in his life and that he had a borderline

personality disorder. According to the two psychologists and the psychiatrist who

testified for Kenley at his Rule 29.15 hearing,2

 Kenley had organic brain damage, or

at least there was enough evidence hinting at such damage that further investigation

should have been undertaken.3

 The experts testified generally that Kenley's mild

brain damage, combined with alcohol intoxication, could have resulted in a lack of

impulse control on the night of the murder. They also testified to Kenley's substance

abuse, depression, and personality disorders. In their conclusion that Kenley had a

borderline personality disorder, Kenley's experts disagreed with the psychiatrist who

evaluated Kenley before his first trial. That doctor testified for the State at the

resentencing and concluded that Kenley had an anti-social personality disorder but

could distinguish right from wrong and conform his behavior accordingly; that the
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tests that might indicate brain damage were inconclusive; and that Kenley acted with

premeditation and deliberation on the night of his murderous rampage. As for the

suggestion that Kenley was intoxicated the night of the murder, the scant evidence

presented to the Rule 29.15 court was contradicted—even by Kenley himself.

The Rule 29.15 court and the Missouri Supreme Court concluded that counsel's

failure to have Kenley further examined before resentencing was the result of a

reasonable strategy, considering that the outcome of such an evaluation was a real

wild card for Kenley: additional testing might have confirmed the conclusions of the

State's expert or might even have provided other more damaging evidence. Kenley's

counsel, having represented seventeen capital defendants prior to Kenley's

resentencing, testified at the Rule 29.15 hearing that she and her co-counsel

considered and rejected a reevaluation of Kenley, so it is not as if the possibility never

occurred to them. See Kenley I, 937 F.2d at 1304 ("The Supreme Court requires that

counsel make a reasonable investigation in the preparation of a case or make a

reasonable decision not to conduct a particular investigation."). Of course counsel

could have sought more testing of Kenley in hopes of eliciting expert opinions that

jurors might have regarded as mitigating evidence. But that is not the measure of

objective reasonableness. "[S]trategic choices made after less than complete

investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91.

The state courts held that counsel's performance in this regard was reasonable in the

circumstances, evidently concluding that "reasonable professional judgments" were

the foundation of counsel's decision not to seek further evaluation of Kenley's mental

condition. Concerning the evidence of Kenley's purported intoxication on the night

of the murder, Rule 29.15 counsel adduced precious little evidence during the hearing

(apart from pure speculation) that had not previously been presented to the jurors

during resentencing.
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As to the question of prejudice, the state courts found that Kenley's three

experts offered testimony that was often speculative; largely based on Kenley's selfreporting or on his mother's accounts of events long past; sometimes conflicting; and

cumulative on some of the more salient points (father's abuse, mother's abandonment,

substance abuse). The reviewing state courts concluded that the allegedly mitigating

evidence Kenley offered at the Rule 29.15 hearing would not have persuaded a jury

to opt for the lesser punishment for a crime that reflected such depravity as did

Kenley's, where the evidence of aggravating circumstances was so overwhelming.

Because there was no reasonable probability, the courts said, that the jury would have

sentenced Kenley to life in prison instead of death, Kenley was not prejudiced, even

if counsel had been professionally unreasonable.

The District Court in its de novo review reached the same conclusions. For our

part, we have reviewed the relevant parts of the resentencing transcript as well as the

testimony presented to the Rule 29.15 court. Mindful of the limited scope of our

review under § 2254, our conclusions are succinct. We cannot say that the decisions

of the Missouri courts regarding counsel's performance and any resulting prejudice

to Kenley were the result of an unreasonable application of the standards set forth in

Strickland, nor were the decisions contrary to Strickland or other clearly established

federal law on "materially indistinguishable" facts. Williams v. Taylor, 529 U.S. 362,

405 (2000) (concurring opinion of O'Connor, J., for the Court). Further, Kenley has

not come forward with clear and convincing evidence to rebut the presumption that

the state courts' factual findings are correct, and he cannot show that the decision is

based on an unreasonable determination of the facts.

Accordingly, the District Court's denial of relief on Kenley's claims of

ineffective assistance is affirmed, and the case is remanded with directions that

judgment be entered for Warden Bowersox and that Kenley's § 2254 petition be

dismissed.
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A true copy.

Attest:

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