*The Hon. Charles B. Kornmann, United States District Judge

for the District of South Dakota, sitting by designation.

_____________

No. 96-1031WM

_____________

William T. Boliek, *

*

Appellee, *

* On Appeal from the United

v. * States District Court 

* for the Western District

* of Missouri.

Michael Bowersox, Warden, *

*

Appellant. *

___________

 Submitted: June 12, 1996

 Filed: September 23, 1996

___________

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Circuit Judge, and

KORNMANN, District Judge. *

___________

RICHARD S. ARNOLD, Chief Judge.

The Superintendent of the Potosi Correctional Center appeals from the

District Court's order granting William Theodore Boliek's petition for a

writ of habeas corpus. We reverse.

I.

In August 1983, Boliek was sharing a home in Kansas City, Missouri,

with Don Anderson, Vernon Wait, and Jill Harless, who was
 Rule 27.26 has since been replaced by Rule 29.15. 1

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Boliek's fiancé. One evening, the petitioner, Anderson, Wait, and Jody

Harless, Jill's sister, robbed the home of Stan Gray, a drug dealer and

gang member. Following the robbery, Boliek and Wait discussed the need to

"get rid of witnesses" to the crime, including Jody Harless. Vernon Wait

suggested killing Jody Harless by injecting her with battery acid. 

Three days later, the petitioner discovered that the police were

looking for Jody Harless. Jill and Jody Harless, Wait, and Boliek decided

to hide from the police by travelling to Thayer, Missouri. En route to

Thayer, the four stopped their car on a rural road to relieve themselves.

Jill Harless testified that she saw Boliek fire a shotgun at her sister.

Grabbing her stomach, Jody got up and yelled, "No Ted, please don't." Wait

pulled Jody to the ground, and the petitioner pointed his gun at her. Jill

got back into the car and heard a second gunshot. According to Jill,

Boliek later told her that he had aimed at Jody's mouth so that the police

would not be able to identify her body.

At trial, the petitioner admitted that he fired the shot into the

victim's stomach. He testified that he thought that his gun was unloaded

and that he pulled the trigger merely to frighten her. As for the second

shot, Boliek explained that after Wait threw the victim to the ground, Wait

took Boliek's gun away from him and killed Jody Harless.

The jury convicted Boliek of capital murder and, finding that he had

killed Jody Harless in order to prevent her from becoming a witness in a

future judicial proceeding, recommended a sentence of death. The Missouri

Supreme Court affirmed. State v. Boliek, 706 S.W.2d 847 (Mo.) (en banc),

cert. denied, 479 U.S. 903 (1986). Boliek unsuccessfully sought

postconviction relief under Mo. S. Ct. R. 27.26. Boliek v. State, 755

1

S.W.2d 417 (Mo. App. 1988), cert.
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denied, 489 U.S. 1040 (1989). The Missouri Supreme Court denied Boliek's

petition for habeas relief and his motion to recall the Court's mandate.

The District Court granted Boliek's petition for a writ of habeas

corpus. Boliek v. Delo, 912 F. Supp. 1199 (W.D. Mo. 1995). The first

ground for granting relief involved a tattoo, which is on Boliek's back,

of a smoking shotgun with the words "Death Dealer" beneath it. The Court

found that Boliek's trial counsel was ineffective for not objecting to the

prosecution's questioning of witnesses about the tattoo and the

prosecution's use of the tattoo in closing argument. The petitioner's

trial counsel was also deficient, the Court held, for failing to present

mitigating evidence at the penalty phase concerning Boliek's mental

condition and social history. Finally, the Court concluded that Boliek

received ineffective assistance of counsel on direct appeal because his

lawyer did not argue that he was deprived of his right to an examination

by a court-appointed psychiatrist.

II.

We begin by considering whether Boliek's claims relating to the

tattoo and to the evidence his lawyer failed to present at the penalty

phase are procedurally barred. It is undisputed that the petitioner did

not raise these claims in his Rule 27.26 proceeding. However, the District

Court held that the claims were not barred because the Rule 27.26 court

interfered with Boliek's ability to raise his claims and thus caused the

procedural default. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) (a

procedural default is excused if the habeas petitioner demonstrates "cause

for the default and actual prejudice . . .."); Tippitt v. Lockhart, 903

F.2d 552, 555 (8th Cir.), cert. denied, 498 U.S. 922 (1990) (cause for a

procedural default exists when a state court interferes with a petitioner's

ability to raise a claim).
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After Boliek had filed a pro se motion for postconviction relief, the

Rule 27.26 court appointed counsel to represent him. At a subsequent

hearing, Boliek's counsel, who had not yet conferred with his client

despite having had the appointment for about a month, asked for a

continuance so that he could amend Boliek's pro se motion. Before granting

the continuance, the Court said to Boliek:

I want you to tell me now . . . in what other ways

Mr. Sterling [Boliek's trial counsel] was

ineffective in assisting. I want to hear every

complaint you have against Mr. Sterling right now .

. . so we don't have to plow this ground again on

February 10th. Now tell me what else you have a

complaint about.

Resp't Ex. F 24. Boliek extemporaneously listed a number of ways in which

he thought that his trial counsel was ineffective, but did not mention the

ineffective-assistance claims he now seeks to raise. The Court then told

Boliek's counsel, "You may amend your pleadings to include everything

[Boliek has] raised today, but you can't raise new items. That's right,

because I want that exhausted today." Id. at 30. 

We need not decide whether the motion court's insistence that Boliek

list all his claims on the spot, without the assistance of counsel,

constituted cause to excuse the procedural default. Even if the motion

court's actions amounted to cause, for us to rule on Boliek's habeas

claims, he must have used "any available procedure" to present those claims

in state court. 28 U.S.C. § 2254(c). To have satisfied this exhaustion

requirement, Boliek had to have challenged the conduct of the motion court

in the appropriate state forum. He did not do so.

In the appeal from the denial of his Rule 27.26 motion, Boliek made

no allegation that the motion court had acted improperly. Nor did he

attempt in any other way to present the ineffective
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assistance claims he now wishes to raise. Boliek tries to explain this

omission by asserting that the Missouri Court of Appeals did not have the

authority to remedy the motion court's alleged interference with his

ability to present his claims. But that is not the law. There are

numerous examples of cases in which prisoners have successfully challenged

the actions of Rule 27.26 courts. See, e.g., Parker v. State, 785 S.W.2d

313 (Mo. App. 1990) (motion court erred by dismissing the Rule 27.26

petition of a defendant who had received no assistance of counsel); Young

v. State, 724 S.W.2d 326 (Mo. App. 1987) (reversing the dismissal of a Rule

27.26 petition because the motion court had not given counsel notice or an

opportunity to be heard); Ray v. State, 644 S.W.2d 663 (Mo. App. 1982)

(motion court's dismissal of a Rule 27.26 petition was improper because

counsel had not had an opportunity to amend the petition and to consult

with the defendant).

Moreover, the Missouri Supreme Court disagrees with the petitioner's

argument. Boliek eventually filed a petition for habeas corpus with the

Missouri Supreme Court which, for the first time, presented the issue of

the motion court's conduct. The Court, which is the final authority on

this question of state law, denied the petition, holding that Boliek's

claim was procedurally barred. See Pet'r Br., App. 

Boliek's current lawyers, who are representing him diligently and

vigorously, argue that it is unreasonable to expect counsel on Boliek's

state-court postconviction appeal to raise issues that, at least at the

time of the evidentiary hearing in the 27.26 court, Boliek himself had not

discovered. We understand the point but disagree. There has to be a time

when issues, including claims of ineffectiveness of counsel, are fully

investigated and argued. That time is in the state postconviction

proceeding, at least where states choose to create such a remedy, which

Missouri has. It was the duty of counsel to consult with his client,

conduct a
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reasonable investigation, and raise all claims in a timely fashion. It is

not permissible for a petitioner to wait until he files a federal habeas

petition to develop his claims fully. Such a practice would be

disrespectful of the autonomy and independence of the state courts, which

are, under our federal system, primarily responsible for the administration

of criminal justice. If the motion court improperly cut off counsel's

opportunity to investigate, counsel should have objected at that time or,

as we have explained, raised the issue on appeal. If counsel was deficient

in failing to do so, petitioner still cannot show cause to avoid his

procedural default, because ineffectiveness of postconviction counsel

cannot be cause. Nolan v. Armontrout, 973 F.2d 615 (8th Cir. 1992).

Boliek's claims of ineffective assistance of trial counsel are therefore

procedurally barred. We do not reach the merits of these claims.

III.

We now turn to Boliek's claim that his counsel on direct appeal was

ineffective. The Constitution requires that a criminal defendant receive

effective legal representation in his first direct appeal. Evitts v.

Lucey, 469 U.S. 387 (1985). In reviewing a claim of ineffective assistance

of appellate counsel, a court must apply the familiar test enunciated in

Strickland v. Washington, 466 U.S. 668 (1984). To prevail, the defendant

"must show that his counsel's performance fell below professional standards

and that his defense was prejudiced by his counsel's ineffectiveness."

Schneider v. Delo, 85 F.3d 335, 339 (8th Cir. 1996). See Strickland, 466

U.S. at 688, 694. 

Boliek asserts that his appellate lawyer was ineffective for failing

to argue that Boliek was unconstitutionally denied access to a psychiatrist

to help him prepare for the penalty phase of his trial. This claim is

based on Ake v. Oklahoma, 470 U.S. 68 (1985), in which the Supreme Court

held that when an indigent defendant's
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mental condition will be a significant issue at trial, the Due Process

Clause requires the state to ensure that the defendant has access to a

"psychiatrist who will conduct an appropriate examination and assist in

evaluation, preparation, and presentation of the defense." Id. at 83. In

capital cases, an indigent defendant whose mental condition may be at issue

is entitled to an examination aimed at evaluating, preparing, and

presenting mitigating psychiatric evidence. Starr v. Lockhart, 23 F.3d

1280, 1288-90 (8th Cir.), cert. denied, 115 S. Ct. 499 (1994) (citing Ake,

470 U.S. at 86). 

We begin our assessment of Boliek's Ake claim by discussing the

context in which his trial lawyer requested a psychiatric exam. At the time

of his arrest for the murder of Jody Harless, Boliek had an extensive

history of mental-health problems. From 1975 through 1980, the petitioner

was examined by several psychiatrists, who diagnosed him as suffering from

a number of mental conditions, ranging from antisocial-personality disorder

to cyclothymia. See Boliek, 912 F. Supp. at 1208-10. Accordingly,

Boliek's attorney, Peter Sterling, asked the trial court to appoint a

psychiatrist to determine whether Boliek was competent to stand trial and

whether he was sane at the time of the murder. Pet'r Ex. 21. Dr. A. E.

Daniel examined the petitioner and concluded that he was suffering from no

mental disease or defect and was manipulating and malingering. See Resp't

Ex. B 162. Dr. Enrique Dos Santos, another court-appointed psychiatrist,

later confirmed the diagnosis. Ibid.

On June 28, 1984, Mr. Sterling asked the Court to allow him to retain

a psychiatrist, to be paid for by the defense, to rebut Dr. Daniel. Pet'r

Ex. 23. Mr. Sterling filed another motion, on July 6, asking the Court to

appoint a psychiatrist "to examine defendant and report to counsel for

defendant regarding psychiatric and psychological aspects of the

defendant's personality constituting mitigating circumstances." Pet'r Ex.

19. On July 9, the Court
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granted the first motion. See Pet'r Ex. 24. As for the second of these

motions, on July 12, the Court ruled that Boliek could have the mitigation

examination, but that the defense would have to pay for it. Pet'r Ex. 20.

Mr. Sterling then retained Dr. George Dowell to provide an opinion

regarding the petitioner's sanity at the time of the murder and his

competency to stand trial. The doctor, who was paid by the public

defender's office, was not asked to look for mitigating psychiatric

evidence for Boliek to use during the penalty phase of his trial. Pet'r

Ex. 14, at 35-36. Although the results of this examination are now

unavailable, Mr. Sterling has recalled that "they were not consistent with

[an insanity] defense." Id. at 94.

As an indigent capital defendant with a long history of mental-health

problems, Boliek certainly had a right, under Ake, to access to a

mitigation examination. The examinations performed by Drs. Daniels and Dos

Santos, which were limited to determining whether the petitioner was

competent to stand trial and sane at the time of the offense, did not

fulfill the state's obligation. See Starr, 23 F.3d at 1290 (a capital

defendant who had received only an examination for competency and sanity

was deprived of his right to "an expert to make an appropriate examination

and to explain the effects of his retardation on his relative culpability

at the sentencing phase of the proceedings"). But that does not

necessarily mean that the trial court committed constitutional error by

denying Boliek's request for a court-funded mitigation examination. A

court is not required to appoint a psychiatrist for someone whose defense

already has the wherewithal to pay for an appropriate psychiatric

examination. See id. at 1289 (distinguishing a case in which "appointed

defense counsel had generously procured the needed expert with his own

funds").

If the public defender's office had the funds to pay Dr. Dowell to

conduct a competency examination, why could it not have
 Boliek asserts that the state never argued to the District 2

Court that he had funds available to pay for the mitigation

examination. That is not true. See Jt. App. 12, at 24-25.

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also paid him to examine Boliek for mitigation purposes? The petitioner 2

now speculates that the public defender's office ran out of money. But

Boliek presents no evidence to support this hypothesis. More importantly,

he never made any such representation to the trial court, either before or

after the Court denied his motion for the funding of a mitigation

examination.

Indeed, deposition testimony from Mr. Sterling undermines Boliek's

theory:

Q. I think you also talked earlier today about the

mitigation phase of the trial -- the punishment

phase. Did Mr. Boliek himself give you any names

of -- well, let's start first, did he give you any

background into his past medical history, his past

mental history, that might be used in mitigation.

A. Yeah, he mentioned some treatment -- I mean,

these were things that were pursued in the -- in

the area of the psychiatric exams and so forth.

Q. Right. And you had requested that prior to

trial.

A. Yes.

Q. And I think you stated that the Court would not

fund it, but would allow him to be examined. I

think it was if the public defender would fund it.

A. Yeah, I mean, I don't think I asked the Court

and --

Q. Okay.

A. I had funds available for that purpose.

Pet'r Ex. 14, at 90-91.
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Boliek contends that in saying that he "had funds available for that

purpose," Mr. Sterling was not referring to a mitigation examination. The

petitioner notes that Mr. Sterling prefaced his answer by saying, "I don't

think I asked the Court . . .." Since Mr. Sterling did not ask the Court

to pay for the competency examination performed by Dr. Dowell, but did ask

it to fund the mitigation examination, Boliek asserts that Mr. Sterling

must have been referring to the competency examination.

We are not persuaded. It is unclear whether the phrase "I don't

think I asked the Court . . ." refers to funding. Furthermore, the whole

line of questioning dealt with preparation for the penalty phase. This

suggests that Mr. Sterling was, in fact, admitting that he had money

available to pay for a mitigation examination. More fundamentally, even

if Boliek's explanation of this testimony were correct, that would not

change the fact that the ability of the public defender's office to pay for

the competency examination suggested that the defense was also able to pay

for the mitigation examination. If the public defender's office had run

out of money, it was the petitioner's responsibility to inform the Court.

We are not holding that there is a rigid rule requiring a defendant

to say specifically to a court, "I cannot afford a psychiatric

examination." Usually, when an indigent defendant requests a courtappointed psychiatrist, it is appropriate to infer that he cannot pay for

a psychiatric examination. But we cannot draw this inference when the

defense pays for a competency examination and fails to explain why it

cannot also afford a mitigation examination.

We conclude that Boliek's Ake claim would not have succeeded.

Accordingly, Boliek suffered no prejudice from his appellate lawyer's

failure to raise the claim, and the District Court should not have granted

his petition for habeas corpus.
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IV.

For these reasons, the order of the District Court granting William

Theodore Boliek's petition for a writ of habeas corpus is reversed. 

A true copy.

Attest:

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