### *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 fr om 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### Rule 27.26 has since been replaced by Rule 29.15. 1 

### -2- Bol iek's fiancé. One evening, the petitioner, Anderson, Wait, and Jod y Harless, Jill's sister, robbed the home of Stan Gray, a drug dealer an d 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 wer e looking for Jody Harless. Jill and Jody Harless , Wait, and Boliek decided to hide from the police by travelling to Thayer, Missouri. En route t o Thayer, the four stop ped 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." Wai t pulled Jody to the ground, and the petitioner pointed his gun at her. Jil l 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 th e victim's stomach. He testified that he thought that his gun was unloaded and that he pulled th e trigger merely to frighten her. As for the second shot, Boliek explained that after Wait threw the victim to the ground, Wai t 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 senten ce of death. The Missouri Supreme Court affirme d. State v. Boliek , 706 S.W.2d 847 (Mo.) (en banc), cert. denied , 479 U.S. 903 (1986). Boliek unsuccessfully sough t postconv ictionrelief under Mo. S. Ct. R. 27.26. Boliek v. State , 75 5 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 D istrict Court granted Boliek's petition for a writ of habea s corp us. Boliek v. Delo , 912 F. Supp. 1199 (W.D. Mo. 1995). The firs t 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 ineffectiv e for not objecting to the prosecution's questioning of witnesses about the tattoo and th e prosecution's use of the tattoo in closing argument. The petitioner' s trial counsel was also deficient, the Court held, for failing to present mitig ating evidence at the penalty phase concerning Boliek's menta l
con ditionand social history. Finally, the Court concluded that Bolie k receiv ed ineffective assistance of counsel on direct appeal because hi s 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 th e tattoo and to the evidence his lawyer failed to present at the penalt y phase are procedurally barred. It is undisputed that the petitioner did not raise these claims in his Rule 27.26 proceeding. However, the Distric t Court hel d that the claims were not barred because the Rule 27.26 cour t 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 peti tioner demonstrates "cause for the d efault and actual prejudice . . .."); Tippitt v. Lockhart , 90 3 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).

### -4- After Boliek had filed a pro se motion for postconviction relie f, the Rule 27.26 court appointed counsel to represent him. At a subsequen t hear ing, Boliek's counsel, who had not yet conferred with his clien t despite having had the appointment for about a month, asked for a continuance so that he could amend Boliek's pro se motion. Before grantin g the continuance, the Court said to Boliek:

I want you to tell me now . . . in what other ways Mr. Sterling [Boliek's trial counsel] wa s ineffective in assisting. I want to hear ever y complaint you have against Mr. Sterling right now .

. . s o we don't have to plow this ground again o n Febr uary10th. Now tell me what else you have a complaint about.
Resp't Ex. F 24. Boliek extemporaneously listeda number of ways in which he thought that his trial counsel was ineffectiv e, but did not mention the ineffective-assistanc e claims he now seeks to raise. The Court then told Boliek 's counsel, "You may amend your pleadings to include everythin g [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 motio n 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 motio n cour t's actions amounted to cause, for us to rule on Boliek's habea s claims, he must have used "any available procedure" to present those claim s in state court. 28 U .S.C. § 2254(c). To have satisfied this exhaustion requirement, Boliek had to have challenged the c onduct of the motion court in the appropriate state forum. He did not do so.
In the ap peal from the denial of his Rule 27.26 motion, Boliek made
no allegation that the motion court had acted improperly. Nor did h e attempt in any other way to present the ineffective

### -5-

assistance claims he now wishes to raise. Boliek tries to explain this omission by assertingthat the Missouri Court of Appeals did not have the author ityto remedy the motion court's alleged interference with hi s ability to present his claims. But that is not the law. There ar e numerous examples of cases in which prisoners ha ve successfully challenged the actions of Rule 2 7.26 courts. See, e.g. , Parker v. State , 785 S.W.2d 313 (Mo. App. 1990) (motion court erred by dismissing the Rule 27.2 6 petition of a defenda nt who had received no assistance of counsel); Young
v. State , 724 S.W.2d 326 (Mo. App. 1987) (reversing the dismissal of a Rul e 27.26 petition because the motion court had not given counsel notice or an opportunityto be heard); Ray v. State , 644 S.W.2d 663 (Mo. App. 1982 ) (mo tioncourt's dismissal of a Rule 27.26 petition was improper becaus e counsel h ad not had an opportunity to amend the petition and to consul t 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 motio n court's conduct. The Court, which is the final authority o n this question of state law, denied the petition, holding that Boliek' s claim was procedurally barred. See Pet'r Br., App.

Bolie k's current lawyers, who are representing him diligently an d vig orously, argue that it is unreasonable to expect counsel on Boliek' s sta te-court postconviction appeal to raise issues that, at least at th e time of the evidentiary hearing in the 27.26 cou rt, Boliek himself had not discovered. We understand the point but disagre e. There has to be a time when i ssues, including claims of ineffectiveness of counsel, are full y investig ated and argued. That time is in the state postconvictio n proceeding, at least where states choose to create such a remedy, whic h Missouri has. It was the duty of counsel to consult with his client , conduct a

### -6-

reasonable investigation, and raise all claims i n a timely fashion. It is not permissible for a petitioner to wait until he files a federal habeas petitio nto develop his claims fully. Such a practice would b e disrespectful of the autonomy and independence of the state courts, which are, under our federal system, primarily responsible for the administratio n of cr iminal justice. If the motion court improperly cut off counsel' s opportunity to invest igate, counsel should have objected at that time or,
as we have explained, raised the issue on appeal. If counsel was deficien t in fai ling to do so, petitioner still cannot show cause to avoid hi s pro cedural default, because ineffectiveness of postconviction counse l 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 tu rn to Boliek's claim that his counsel on direct appeal was ineffective. The Con stitution requires that a criminal defendant receive effecti ve legal representation in his first direct appeal. Evitts v

. Lucey , 469 U.S. 387 (1985). In reviewing a claim of ineffective assistanc e of appellate counsel, a court must apply the familiar test enunciated in Strickland v. Washing ton , 466 U.S. 668 (1984). To prevail, the defendant "must show that his counsel's performance fell below professional standard s and th at 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 la wyer was ineffective for failing to argue that Boliek was unconstitutionally denied access to a psychiatris t to h elp him prepare for the penalty phase of his trial. This claim i s based on Ake v. Oklahoma , 470 U.S. 68 (1985), in which the Supreme Court held that when an indigent defendant's

### -7-

menta l condition will be a significant issue at trial, the Due Proces s Clause requires the state to ensure that the defendant has access to a "psych iatrist who will conduct an appropriate examination and assist i n evaluation, preparation, and presentation of the defense." Id. at 83. In capital cases, an indigent defendant whose mental condition may be at issu e is ent itled to an examination aimed at evaluating, preparing, an d presen ting mitigating psychiatric evidence. Starr v. Lockhart , 23 F.3 d 1280, 1288-90 (8th Cir.), cert. denied , 115 S. C t. 499 (1994) (citing Ake , 470 U.S. at 86).

We begin our assessment of Boliek's Ake claim by discussing th e context in which his trial lawyer requested a psychiatric exam. At the tim e of his arrest for the murder of Jody Harless, Boliek had an extensiv e history of mental-health problems. From 1975 th rough 1980, the petitioner was examined by several psychiatrists, who diagn osed him as suffering from
a number of mental conditions, ranging from antisocial-personality disorde r to cyclot hymia. See Boliek , 912 F. Supp. at 1208-10. Accordingly , Boliek' s attorney, Peter Sterling, asked the trial court to appoint a psychiatrist to deter mine 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 tha t he was suffering from no mental disease or defect and was manipulating an d 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, t o rebut Dr. Daniel. Pet'r Ex. 23. Mr. Sterling filed another motion, on J uly 6, asking the Court to appoint a psychiatrist "to examine defendant and report to counsel fo r defen dant regarding psychiatric and psychological aspects of th e defendant's personality constituting mitigating circumstances." Pet'r Ex. 19. On July 9, the Court

### -8-

granted the first mot ion. See Pet'r Ex. 24. As for the second of these motions, on July 12, the Court ruled that Boliekcould have the mitigation examination, but that the defense would have to pay for it. Pet'r Ex. 20.

Mr. Ster ling then retained Dr. George Dowell to provide an opinio n regarding the petitioner's sanity at the time of the murder and hi s competencyto stand trial. The doctor, who was paid by the publi c defend er's office, was not asked to look for mitigating psychiatri c evidence for Boliek to use during the penalty phase of his trial. Pet'r Ex. 14, a t 35-36. Although the results of this examination are no w unavailable, Mr. Sterling has recalled that "the y 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 Do s Santos , which were limited to determining whether the petitioner wa s competent to stand trial and sane at the time of the offense, did no t fulfill the state's obligation. See Starr , 23 F.3d at 1290 (a capita l 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 ef fects of his retardation on his relative culpability at the sentencing phase of the proceedings"). But that does no t
necess arilymean that the trial court committed constitutional error b y denyin g Boliek's request for a court-funded mitigation examination. A court is not requiredto appoint a psychiatrist for someone whose defense alread yhas the wherewithal to pay for an appropriate psychiatri c examination. See id. at 1289 (distinguishing a case in which "appointed defense counsel had generously procured the needed expert with his ow n funds").

If the public defender's office had the funds to pay Dr. Dowell t o 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. -9- also paid him to examine Boliek for mitigation purposes? The petitioner 2
now specu lates that the public defender's office ran out of money. Bu t Boliek presents no evidence to support this hypo thesis. More importantly, he never made any such representation to the tri al court, either before or after th e Court denied his motion for the funding of a mitigatio n examination.

Inde ed, deposition testimony from Mr. Sterling undermines Boliek' s theory:
Q. I think you also talkedearlier today about the

miti gationphase of the trial -- the punishmen t phase. Did Mr. Boliek himself give you any name s 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 -- i n the area of the psychiatric exams and so forth. Q. Right. And you had requested that prior t o 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. Y eah, I mean, I don't think I asked the Cour t and -- Q. Okay. A. I had funds available for that purpose. Pet'r Ex. 14, at 90-91.

### -10- Boliek contends that in saying that he "had funds available for that purpose," Mr. Sterling was not referring to a mi tigation examination. The petitioner notes that Mr. Sterling prefaced his answer by saying, "I don't think I asked the Cou rt . . .." 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. Sterlin g 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 Cou rt . . ." refers to funding. Furthermore, the whole line of questioning dealt with preparation for the penalty phase. Thi s sugg ests that Mr. Sterling was, in fact, admitting that he had mone y available to pay for a mitigation examination. More fundamentally, even if Boliek's explanation of this testimony were correct, that would no t change the fact that the ability of the public defender's office to pay fo r the competency examination suggested that the de fense 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 no t holding that there is a rigid rule requiring a defendant to say specifically to a court, "I cannot afford a psychiatri c examin ation." Usually, when an indigent defendant requests a court

appointed psychiatris t, it is appropriate to infer that he cannot pay for
a psy chiatric examination. But we cannot draw this inference when th e defense pa ys for a competency examination and fails to explain why i t cannot also afford a mitigation examination.

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

. Accordi ngly, Boliek suffered no prejudice from his appellate lawyer' s failure to raise the claim, and the District Cou rt should not have granted his petition for habeas corpus.

### -11- 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.