GRUENDER, Circuit Judge.
The Circuit Court of St. Charles County, Missouri, sentenced Michael Worthington to death after he pled guilty to one count of first-degree murder, one count of first-degree burglary, and one count of forcible rape. Following unsuccessful state appeals and postconviction proceedings, Worthington filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing seven grounds for relief. The district court granted his petition on one ground, from which Warden Don Roper now appeals. Worthington, in turn, cross-appeals from the district court's rejection of two other grounds, for which the district court issued a certificate of appealability. For the reasons that follow, we reverse the district court's grant of Worthington's petition
In 1995, Worthington was charged with burglary, and the rape and murder of his neighbor, Melinda Griffin. The following facts are drawn from the Missouri Supreme Court's description of the incident in its opinion affirming Worthington's sentence. See State v. Worthington, 8 S.W.3d 83 (Mo. banc 1999). On the night of September 29, 1995, Worthington broke into Griffin's St. Charles County condominium. He used a razor blade to cut through the screen in the kitchen window and confronted Griffin in her bedroom. After strangling her into unconsciousness, Worthington raped Griffin with such force that he bruised the inside of her vagina, tore both labia minora, and made a deep tear between her vagina and anus. Griffin regained consciousness during the rape and attempted to fight Worthington, but he beat her and strangled her again, this time killing her. He then stole her jewelry, credit cards, mobile phone, keys, and car.
A neighbor discovered Griffin's remains on October 1. Her naked body was found at the foot of her bed, with a lace stocking draped across it. DNA testing later identified Worthington's semen on Griffin's body. When police officers located Worthington that evening, he was wearing a fanny pack containing Griffin's jewelry and keys. After he was arrested, Worthington initially told the investigating officers that he had been high and intoxicated from using alcohol and various other drugs for the previous four days. Upon being presented with the evidence against him, he confessed to killing Griffin but said that he could not remember the details of the incident.
The State charged Worthington with one count of first-degree murder, one count of first-degree burglary, and one count of forcible rape. He initially retained attorney Joel Eisenstein to represent him, but Eisenstein later withdrew. Worthington then retained attorneys N. Scott Rosenblum, Joseph L. Green, and Bradford Kessler,
The four-day sentencing hearing commenced on September 14, 1998, at which time the State presented victim impact statements, forensic evidence, and evidence of Worthington's lengthy criminal history. A detective with the Peoria, Illinois Police Department testified that Worthington had been arrested fifteen times— often in connection with burglaries—and had been listed as a "suspect or criminal" in connection with another fifteen cases. At least three of the incidents involved Worthington breaking into his grandmother's house. In addition, the police records indicated that Worthington twice had assaulted his ailing grandfather, first by grabbing him and threatening his life and the second time by firing a gun at him. The State also presented evidence that Worthington repeatedly had been convicted for burglary as a juvenile and twice had been institutionalized in juvenile correctional facilities. He also was imprisoned twice by the Illinois Department of Corrections. Further, the State presented evidence that Worthington engaged in a pattern of disruptive and assaultive behavior while incarcerated after Griffin's murder,
The State also called Dr. Max Givon, a psychologist. Dr. Givon had examined Worthington in 1996, pursuant to the defense's motion for a pretrial mental evaluation. See Mo.Rev.Stat. §§ 552.015-.030. In preparation for his report, Dr. Givon interviewed Worthington twice, administered an MMPI-2 psychological test, and reviewed an extensive collection of records chronicling Worthington's background. He concluded that Worthington did not have a mental disease or defect, but instead that he had antisocial personality disorder, was malingering and cocaine-dependent, and abused alcohol.
In preparation for the penalty phase, attorney Green had two brief conversations with Worthington's mother and contacted Carol Tegard, Worthington's maternal aunt, who later would testify at the penalty hearing. Green did not obtain records other than those compiled during Dr. Givon's 1996 evaluation. Based on Dr. Givon's unfavorable conclusions regarding Worthington's mental health, Green did not consider further pursuing an expert psychological mitigation strategy at the penalty phase. Attorney Rosenblum, however, retained Dr. Kevin Miller, a psychiatrist, in early August 1998, initially for the purpose of exploring a diminished capacity defense at the guilt phase. He provided Dr. Miller with Dr. Givon's report, along with police investigative reports and partial records of Worthington's 10-day psychiatric hospitalization in 1994. Additionally, Rosenblum invited Dr. Miller to request further materials from Dr. Givon directly, and Dr. Miller met with Worthington twice. Dr. Miller's conclusions corroborated Dr. Givon's unfavorable diagnoses of antisocial personality disorder, cocaine dependance, and alcohol abuse. Dr. Miller also concluded that there was evidence that Worthington was suffering from attention-deficit/hyperactivity disorder, post-traumatic stress disorder, major depressive disorder (in remission), and that he had a history of cocaine-induced psychosis. However, Dr. Miller indicated that there was insufficient evidence to draw a definite conclusion on bipolar disorder, dissociative disorder, malingering, and complex partial seizures.
As a result of this second evaluation, Rosenblum decided against raising a psychological mitigation argument at the penalty phase. Instead, the defense team focused on Worthington's abusive background. Counsel presented the testimony of Carol Tegard, who recounted Worthington's abuse and neglect as a child. Counsel also presented numerous documents detailing Worthington's dysfunctional background, including his mother's chronic alcoholism, his father's heroin addiction, and physical abuse and neglect by his family and babysitter. The presentence report ("PSR"), prepared by the Missouri Board of Probation and Parole for the sentencing court, confirmed these accounts and described incidents where Worthington was the victim of sexual abuse. In addition, counsel called three inmates and the records custodian from the St. Charles County Jail in an effort to undermine evidence pertaining to Worthington's misconduct while incarcerated. Finally, Dr. Roswald Evans, a psychiatric pharmacist, testified that Worthington was intoxicated at the time of the crime and that his intoxication "rendered him. . . incapable of making a decision about his behavior."
At the conclusion of the penalty phase, the sentencing court announced that it found as non-statutory mitigating circumstances that Worthington was raised in a
Worthington then filed a pro se motion for postconviction relief under Missouri Supreme Court Rule 24.035(j). The postconviction trial court subsequently appointed counsel, who filed an amended motion. Among other claims, Worthington asserted that trial counsel was constitutionally ineffective for failing to investigate his background adequately and to provide a complete social history to expert witnesses. Had experts further examined his background and his family's mental-health history, Worthington alleged, they would have been able to present testimony that he did indeed suffer from mental disease or defect. In support of his argument, Worthington presented three expert witnesses—Drs. Jonathan Pincus, Dennis Cowan, and Robert Smith—who testified that Worthington suffered from a number of mental disorders, including Tourette's Syndrome, obsessive-compulsive disorder, attention-deficit/hyperactivity disorder, post-traumatic stress disorder, and bipolar disorder. Worthington also argued that trial counsel was constitutionally ineffective for failing to investigate and present additional mitigation evidence through his parents' testimony, and that counsel was constitutionally ineffective for failing to investigate and object to one of the State's penalty phase witnesses, Charlotte Peroti. The trial court denied Worthington's motion for postconviction relief, Worthington v. State, No. 00-12558, 2003 WL 25279797 (Mo.Cir.Ct.St.Charles Cnty. filed Dec. 5, 2003), and the Missouri Supreme Court affirmed, Worthington v. State, 166 S.W.3d 566 (Mo. banc 2005).
In 2005, Worthington filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Missouri, pursuant to 28 U.S.C. § 2254. His petition sought review of seven claims, including the three discussed above. The district court held that the state courts had not adjudicated the merits of Worthington's claim that trial counsel had failed to adequately investigate and pursue psychological mitigation evidence. Worthington v. Roper, 619 F.Supp.2d 661 (E.D.Mo.2009). Applying de novo review, the district court granted habeas relief on that claim and ordered that Worthington either be sentenced to life in prison without the possibility of parole or be given a new penalty phase hearing. Although it denied relief on the remaining claims, the court granted a certificate of appealability with respect to (1) whether counsel was constitutionally deficient for failing to investigate and present additional mitigation evidence through the testimony of Worthington's parents, and (2) whether counsel was constitutionally deficient for failing to investigate and object to Charlotte Peroti's testimony. For the reasons discussed below, we affirm the district court's denial of Worthington's two ineffective-assistance claims, and we reverse its grant of relief on the ineffective-assistance claim relating to psychological mitigation evidence.
Warden Roper appeals the district court's ruling that Worthington's attorneys
Under 28 U.S.C. § 2254 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a decision by a state court "with respect to any claim that was adjudicated on the merits in State court proceedings" is entitled to deference by the federal courts. "[W]hen a state prisoner files a petition for writ of habeas corpus in federal court we are directed to undertake only a limited and deferential review of underlying state court decisions." Collier v. Norris, 485 F.3d 415, 421 (8th Cir.2007) (quoting Morales v. Ault, 476 F.3d 545, 549 (8th Cir.2007)). AEDPA instructs that habeas relief cannot be granted "unless the adjudication of the claim . . . 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 "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." 28 U.S.C. § 2254(d). A state court decision is "contrary to" clearly established federal law if it either "arrives at a conclusion opposite that reached by [the Supreme] Court on a question of law" or "decides a case differently than th[e] [Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court "unreasonably applies" Supreme Court precedent if it "identifies the correct governing legal principle from th[e] [Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. "A federal court may not issue the writ simply because it `concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.'" Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir.2005) (quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495).
The language of § 2254(d) plainly limits the applicability of AEDPA's deferential standard to claims that have been "adjudicated on the merits" in state court. Brown v. Luebbers, 371 F.3d 458, 460 (8th Cir.2004) (en banc). Absent state court adjudication, a federal habeas court will apply de novo review. Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (citing Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). As a threshold matter, then, we must determine whether the Missouri courts adjudicated the merits of Worthington's claim that counsel was constitutionally ineffective for failing to investigate adequately his background and present effective psychological mitigation expert testimony at the penalty phase. Neither party argues that the Missouri Supreme Court adjudicated the claim's merits.
As to the first inquiry, we conclude that Worthington's claim was indeed adjudicated on the merits by the postconviction trial court. That court correctly recognized Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as requiring proof that counsel's performance was objectively deficient and that the defendant was prejudiced thereby. Worthington, No. 00-12558, slip op. at 7-12. The court also determined that "[t]rial counsel's pre-trial conduct in having [Worthington] examined by two mental health professionals and consulting with and calling as a witness . . . a doctor of pharmacy, was a reasonable and thorough investigation." Id. at 10. Concluding that Worthington had failed to satisfy either Strickland prong, the court stated:
Id. at 11. Despite the postconviction trial court's treatment of his ineffective-assistance claim, Worthington now argues that it did not adjudicate this portion of his claim because it did not adequately scrutinize his allegation that counsel performed ineffectively at the penalty phase by failing to supply experts with comprehensive background information. This argument fails to persuade, however, because a review of the postconviction trial court's decision leaves no question that it rejected Worthington's ineffective-assistance claim in toto.
As to the second inquiry, when a state appellate court affirms a lower court decision without reasoning, we "look through" the silent opinion and apply AEDPA review to the "last reasoned decision" of the state courts. See Winfield v. Roper, 460 F.3d 1026, 1038 (8th Cir.2006) (citing Ylst, 501 U.S. at 803-04, 111 S.Ct. 2590); cf. Mark, 498 F.3d at 783 ("looking through" to Iowa Court of Appeals decision where Iowa Supreme Court denied discretionary review) (citing Ylst, 501 U.S. at 803-04, 111 S.Ct. 2590). This is so regardless of whether the affirmance was reasoned as to some issues or was a summary denial of all claims. See Winfield, 460 F.3d at 1038 (citing Steward v. Cain, 259 F.3d 374, 377 (5th Cir.2001)); see also Bond v. Beard, 539 F.3d 256, 289 (3d Cir.2008) ("[W]e should review the [postconviction trial court] decision since it either represents the state courts' last reasoned opinion on this topic or has not been supplemented in a meaningful way by the higher state court."). Worthington urges this court to limit the "look through" doctrine to its original application by the Supreme Court in Ylst—determining whether an independent state ground procedurally bars a petitioner from seeking federal habeas review. However, Worthington's narrow reading is foreclosed by our decision in Mark, where we used the AEDPA standard to review the merits of an intermediate state court decision. 498 F.3d at 783 (citing Ylst, 501 U.S. at 803-04, 111 S.Ct. 2590). Indeed, other courts likewise have employed AEDPA to review the merits of lower court decisions in the absence of a reasoned affirmance by a state's highest court. See Malone v. Clarke, 536 F.3d 54, 63 n. 6 (1st Cir.2008) ("The highest state court . . . summarily denied Malone's habeas claim, therefore, we `look through' to `the last reasoned decision,' which is the decision of the Massachusetts Appeals Court.") (citing Gunter v. Maloney, 291 F.3d 74, 80 (1st Cir.2002)); Bond, 539 F.3d at 289 (reviewing the state trial court decision where the state supreme court decision "did not add further reasoning than that provided by the [postconviction trial court]"); Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir.2006) ("[T]he decision we review is that of the last state court to issue a reasoned opinion on the issue.") (quotation marks omitted); Franklin v. Johnson, 290 F.3d 1223, 1233 n. 3 (9th Cir.2002) (where state appellate courts denied habeas petition without comment, a federal habeas court "must look to the last reasoned decision of the state court as the basis of the state court's judgment").
Applying the deferential AEDPA standard of review to his claim that counsel performed ineffectively by failing to investigate and pursue mitigating psychological evidence, we now consider whether Worthington is entitled to federal habeas relief.
The first prong of Strickland requires a showing that counsel's performance fell below an objective standard of reasonableness. Id. at 687-88, 104 S.Ct. 2052. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691, 104 S.Ct. 2052. Although in assessing the reasonableness of counsel's performance the Supreme Court has looked to sources such as the ABA Capital Sentencing Guidelines, see, e.g., Rompilla, 545 U.S. at 387, 125 S.Ct. 2456; Wiggins, 539 U.S. at 524, 123 S.Ct. 2527, "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant," Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052. The Court also has emphasized that "hindsight is discounted by pegging adequacy to `counsel's perspective at the time' investigative decisions are made, and by giving a `heavy measure of deference to counsel's judgment.'" Rompilla, 545 U.S. at 381, 125 S.Ct. 2456 (quoting Strickland, 466 U.S. at 689, 691, 104 S.Ct. 2052). As a result, review of the state court's determination that Worthington has not proved an ineffective-assistance claim is "twice deferential: we apply a highly deferential review to the state court decision; the state court, in turn, is highly deferential to the judgments of trial counsel." Link v. Luebbers, 469 F.3d 1197, 1202 (8th Cir.2006) (quoting Nooner v. Norris, 402 F.3d 801, 808 (8th Cir.2005)).
The second prong of Strickland—prejudice—requires a showing of a reasonable probability that, but for counsel's ineffectiveness, the result of the penalty phase would have been more favorable to the defense. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Merely showing a conceivable effect is not enough; a reasonable probability is one "sufficient to undermine confidence in the outcome." Wiggins, 539 U.S. at 534, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 692, 104 S.Ct. 2052).
Worthington relies heavily on three Supreme Court cases decided after Strickland that have further defined the contours of counsel's duty to investigate at the penalty phase: Williams v. Taylor, Wiggins v. Smith, and Rompilla v. Beard.
The Court in Wiggins likewise held that counsel's decision to limit the scope of investigation—and their resulting failure to introduce any of Wiggins's personal history as mitigation evidence—was constitutionally deficient. 539 U.S. at 523, 123 S.Ct. 2527. The state court decision to the contrary, the Court held, "reflected an unreasonable application of Strickland." Id. at 528, 123 S.Ct. 2527. Counsel had abandoned any form of mitigation argument based on personal history after having acquired only the presentence investigation report—which included a one-page account of Wiggins's background—and city social service records documenting his placements in the state foster care system. Id. at 523, 123 S.Ct. 2527. The Court determined that counsel's failure to expand their search "after having acquired only rudimentary knowledge of [Wiggins's] history from a narrow set of sources" fell below an objective standard of reasonableness. Id. at 524, 123 S.Ct. 2527 (citing ABA Guidelines). While "Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing," id. at 533, 123 S.Ct. 2527, the Court concluded that counsel nonetheless had been ineffective. "`[S]trategic choices made after less than complete investigation are reasonable' only to the extent that `reasonable professional judgments support the limitations on investigation.'" Id. (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052).
Finally, in Rompilla, the petitioner argued that trial counsel had been constitutionally ineffective at the penalty phase for failing to investigate his school records, juvenile records, evidence of alcohol dependence, and—most significantly—the court file of his previous conviction. 545 U.S. at 382-83, 125 S.Ct. 2456. With regard to the school and juvenile records and the alcoholism evidence, the Court acknowledged that "there is room for debate about trial counsel's obligation to follow at least some of those potential lines of enquiry." Id. at 383, 125 S.Ct. 2456. "Reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste." Id. (citing Wiggins, 539 U.S. at 525, 123 S.Ct. 2527; Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987); Strickland, 466 U.S. at 699, 104 S.Ct. 2052). However, the Court determined that counsel had performed deficiently in failing to examine the easily accessible
Here, Worthington argues that trial counsel was ineffective for failing to investigate adequately his background and pursue a psychological mitigation strategy based on expert testimony. Specifically, Worthington faults trial counsel's failure to interview family members and acquaintances, to procure his records from the Illinois Department of Corrections, and to obtain the psychiatric and medical records of Worthington's mother, father, uncle, grandmother, and grandfather. This additional history, he alleges, would have supported mitigating expert testimony regarding his mental health. The state court concluded that trial counsel made a reasonable decision not to pursue the mental-health strategy further and thus acted reasonably in not pursuing further psychological evidence. Worthington, No. 00-12558, slip op. at 10, 11.
As we have noted, "counsel has a duty to conduct a reasonable investigation or to make a reasonable determination that an investigation is unnecessary." Link, 469 F.3d at 1203 (citing Sidebottom v. Delo, 46 F.3d 744, 752 (8th Cir.1995)). "Ordinarily, we consider strategic decisions to be virtually unchallengeable unless they are based on deficient investigation." Id. at 1204. Therefore, our analysis of Worthington's claim entails two inquiries: whether the state court reasonably decided that counsel had conducted an adequate investigation, and whether the state court reasonably decided that counsel's resulting decision to refrain from further investigating and presenting psychological mitigation evidence was reasonable.
Worthington's claim rests heavily on his contention that attorney Joseph Green performed an unreasonably cursory investigation before deciding against pursuing further psychological evidence. In particular, Worthington asserts, Green's testimony demonstrates that he had no strategic reason not to further investigate Worthington's background and pursue further psychological evaluations. Green had been "subcontracted" by attorney Scott Rosenblum to handle much of Worthington's penalty phase. During his post-conviction deposition, Green acknowledged that he had not hired a mitigation specialist even though mitigation specialists usually are employed in death penalty cases. He testified, though, that the records compiled by Dr. Givon during his 1996 examination (discussed further below) "were consistent with the type of records that a mitigation specialist would have obtained." Green spoke to Worthington's mother only briefly, but he found that she was preoccupied with portraying herself as a good mother. He also contacted Carol Tegard, Worthington's aunt, who later testified as a mitigation witness during the penalty phase. Despite having the names of other family members and acquaintances, Green did not contact them or travel to Peoria, Illinois, Worthington's home town.
This case is not one "where the record is clear that no reasonable attorney . . . would have failed to pursue further evidence." Link, 469 F.3d at 1203. Indeed, we have repeatedly observed that "[w]here 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." Marcrum v. Luebbers, 509 F.3d 489, 511 (8th Cir.2007) (citing Sidebottom, 46 F.3d at 753); see also Winfield, 460 F.3d at 1041. Cases in which the
In light of Supreme Court precedent, then, we cannot say that the state court's determination that counsel conducted a reasonable investigation into psychological mitigating evidence constituted an unreasonable application of clearly established federal law. Counsel based the decision not to pursue a psychological mitigation strategy on the opinions of two mental-health professionals—Drs. Givon and Miller—each of whom had interviewed Worthington twice. Dr. Givon had reviewed a substantial collection of records pertaining to Worthington's social and medical history. Likewise, Dr. Miller demonstrated significant familiarity with many of the records documenting Worthington's background. See State App. 494 (noting Dr. Kessler's report); id. (noting Dr. Legan's report); id. (noting reports from the Illinois Department of Correction, Youth Division); id. 494-95 (noting records of Dr. Ryall's sessions). Further, Dr. Miller was aware of the physical and sexual abuse that Worthington suffered as a child. See id. 493. He also knew that Worthington's grandmother was chronically hospitalized for schizophrenia and that both of Worthington's parents had been in psychiatric hospitals and rehabilitation programs. See id. 496. We cannot conclude, therefore, that the opinions of Drs. Givon and Miller were so lacking in factual basis that the state court unreasonably concluded that counsel had conducted an adequate investigation.
Having determined that counsel reasonably investigated the potential for a psychological mitigation strategy, we now examine the state court's decision that counsel reasonably decided against further investigating and presenting expert psychological evidence at the penalty phase. Because Worthington has failed to show that his attorneys' investigation was deficient, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also Rompilla, 545 U.S. at 390, 125 S.Ct. 2456 ("Questioning a few more family members and searching for old records can promise less than looking for a needle in a haystack, when a lawyer truly has reason to doubt there is any
Worthington first cross-appeals the district court's rejection of his argument that trial counsel performed ineffectively by failing to conduct an adequate investigation and present further mitigating evidence through additional witnesses. In particular, Worthington asserts that his parents—Patricia Washburn ("Patricia") and Richard Worthington ("Richard")— would have testified about his troubled upbringing. The Missouri Supreme Court held that counsel reasonably decided not to present Patricia's testimony because, when contacted, she had downplayed Worthington's traumatic childhood and endeavored "to portray herself as a good mother." Worthington, 166 S.W.3d at 578. The court also noted that counsel believed that Patricia was under the influence of cocaine on the day she would have testified at trial. Id. Therefore, the court concluded, "[i]t was not unreasonable for counsel to make the strategic choice that it was better to use records of Mr. Worthington's history of abuse from Illinois than to call his mother at the trial." Id. Turning to Worthington's father, the court determined that, even though counsel had not spoken with Richard, their decision not to present his testimony was also reasonable. According to the court, Worthington's father was "difficult to locate" and "did not have much of a relationship" with Worthington. Id. In any event, the court observed that Carol Tegard—Worthington's aunt—"was able to testify to much of the same evidence that Mr. Worthington's parents would have offered." Id. Moreover, the sentencing court reviewed numerous records detailing
Applying AEDPA review,
With regard to his mother's testimony, Worthington challenges the Missouri Supreme Court's determination that counsel reasonably decided against calling Patricia as a witness. Worthington contends that the postconviction trial court did not make "an explicit factual finding" that "counsel had a tactical basis for not calling [Patricia] because her testimony might harm the defense." Thus, asserts Worthington, the Missouri Supreme Court's conclusion that counsel made a reasonable strategic decision was an unreasonable determination of the facts because it was "based upon a non-existent factual finding." See 28 U.S.C. § 2254(d)(2), (e)(1). As an initial matter, we note that the postconviction trial court did, in fact, find that counsel's decision not to call Patricia was a reasonable decision based on her cocaine habit and her statements downplaying Worthington's abusive childhood. See Worthington, No. 00-12558, slip op. at 11. Even had the Missouri Supreme Court based its decision on findings of fact independent from those of the postconviction trial court, however, we could not grant Worthington's habeas petition absent a showing that those findings were unreasonable. Section 2254(e)(1)'s "presumption of correctness applies to factual determinations made by state courts, whether the court be a trial court or an appellate court." Perry v. Kemna, 356 F.3d 880, 883 (8th Cir.2004) (internal quotation marks omitted); see also Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The Missouri Supreme Court based its decision on the same factual findings noted by the postconviction trial court, see Worthington, 166 S.W.3d at 578, and Worthington has made no showing that those findings do not enjoy the support of the record.
With regard to the testimony of his father, Worthington argues that the district court erred in upholding as reasonable the Missouri Supreme Court's decision that Worthington was not prejudiced by the absence of Richard's testimony. Had Richard testified, Worthington contends, the sentencing court would have gained a better understanding of Worthington's abusive background. We agree with the district court, however, that the Missouri Supreme Court reasonably concluded that Worthington suffered no prejudice, because Richard's testimony would have been cumulative of evidence already before the sentencing court. Worthington, 619 F.Supp.2d at 679.
At the penalty phase, the sentencing court heard the testimony of Carol Tegard, who described Worthington's tormented childhood and youth. She testified about the widespread drug and alcohol abuse
In addition to Tegard's testimony, numerous records before the sentencing court described the severe neglect and abuse that Worthington suffered as a child. For example, a 1989 psychological evaluation report described Worthington as having grown up "in a dysfunctional chaotic family made up of his chronic alcoholic mother and a heroin addicted father." The report also noted "chronic neglect and emotional, physical, and sexual abuse over the years." Records from the Methodist Medical Center of Illinois and the White Oaks Rehabilitation Center further described Worthington's chaotic upbringing, including his parents' drug addiction and physical abuse inflicted by a babysitter. Finally, the PSR provided numerous examples of Worthington's dysfunctional childhood, as well as detailing instances of physical and sexual abuse.
Worthington discounts the value of the evidence before the sentencing court for two reasons, neither of which is persuasive. First, he argues that Richard's testimony is not cumulative because the evidence before the sentencing court was "generic" and "skeletal." As described above, though, the state court's decision to the contrary is supported by the record. Tegard's testimony, the documentary evidence, and the PSR supplied a graphic and comprehensive account of Worthington's background. This stands in stark contrast to the evidence in the cases on which Worthington relies. See Outten v. Kearney, 464 F.3d 401, 421 (3d Cir.2006) (observing that trial counsel failed to present any evidence of defendant's sexual abuse, possible neurological damage, or learning disabilities); Ainsworth v. Woodford, 268 F.3d 868, 874 (9th Cir.2001) (determining that counsel adduced no substantive evidence in mitigation); Lewis v. Johnson, 2000 WL 1568168, at *4 (5th Cir. Sept.13, 2000) (noting that single mitigation witness testified little more than that defendant "had a generally unhappy childhood"), vacated in part, 2000 WL 35549205 (5th Cir. Dec.21, 2000); Collier v. Turpin, 177 F.3d 1184, 1201 (11th Cir. 1999) (observing that counsel elicited only that defendant was a "hard worker" and had a reputation for truthfulness).
Second, Worthington dismisses the records before the sentencing court because "there is no evidence that the . . . court thoroughly reviewed any of these records before issuing its sentencing verdict." The penalty phase record belies Worthington's assertion, however. The sentence issued by the court was expressly "[b]ased on the evidence presented to this Court." Cf. Strickland, 466 U.S. at 695, 104 S.Ct. 2052 ("[T]he assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision."). Indeed, based on the mitigating evidence before it, the sentencing court found as non-statutory mitigating circumstances that Worthington had a dysfunctional family, was abused and neglected as a child, and was a long-term drug abuser. Thus, Worthington's assertion
In light of Tegard's testimony, the extensive documentary evidence, and the PSR, we agree with the district court that the Missouri Supreme Court's decision that Worthington suffered no prejudice in the absence of his father's testimony did not unreasonably apply clearly established federal law. Nor was it based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. The additional testimony "did not cover any new subject matter and was not substantially more persuasive" than that actually presented, Eley v. Bagley, 604 F.3d 958, 969 (6th Cir.2010), and "would barely have altered the sentencing profile presented" during the penalty phase, Strickland, 466 U.S. at 700, 104 S.Ct. 2052. Ultimately, much of what Worthington now claims should have been presented during the penalty phase was, in fact, considered by sentencing court. Thus, because the Missouri Supreme Court reasonably concluded that counsel's decision not to present the testimony of Worthington's parents was not constitutionally ineffective,
Worthington also cross-appeals the district court's denial of his claim that trial counsel was constitutionally deficient for failing to investigate the background of State witness Charlotte Peroti and object to her testimony on the grounds that the State had failed to disclose her correct name and the substance of her testimony. Peroti testified at the penalty phase that Worthington had broken into her house shortly before he murdered Griffin and that he had attempted to sexually assault her. In addition, Peroti testified that Worthington stole her car.
Although the State had endorsed Peroti as a witness more than two years before
The Missouri Supreme Court likewise denied relief at the post-conviction stage, holding that Worthington had not been prejudiced by counsel's failure to object to Peroti's testimony and seek a continuance to investigate her allegations. Worthington, 166 S.W.3d at 580. The court found that "counsel knew all about the events to which [Peroti] testified and cross-examined her effectively about them." Id. at 581. Worthington also pointed to evidence that Peroti had been convicted of passing bad checks and that she had exaggerated her role as a police informant, arguing that had trial counsel known of this evidence they could have impeached her more effectively. The court acknowledged that counsel had been unaware of these facts but determined that they nevertheless had forcefully challenged Peroti's allegations by eliciting her strong antipathy towards Worthington. Thus, the court concluded, "[t]here is no reasonable probability that the minor additional impeachment value of showing that she had a prior bad check conviction and that she may have exaggerated her role as a police informant affected the outcome of the case." Id.
Reviewing the Missouri Supreme Court decision under AEDPA, the district court found the state court's conclusion that counsel "knew all about" Peroti's allegations to be an unreasonable determination of the facts. Worthington, 619 F.Supp.2d at 692-93. However, the district court concluded that the state court's decision was not based on this mistaken factual determination. Because counsel effectively impeached Peroti's testimony and established her bias during cross-examination, the state court found that Worthington suffered no prejudice. Id. at 695 ("There is no reasonable probability that had the sentencing judge stricken her testimony or allowed counsel additional time to investigate the alleged prior bad acts, the outcome of the case would have been affected.").
Worthington urges us to reverse the district court for two reasons.
Worthington argues that had counsel sufficiently prepared to examine Peroti, they would have been able to impeach her with evidence regarding her bad check conviction and the fact that she allegedly had exaggerated her work as an undercover drug informant. However, the state court found that counsel effectively cross-examined Peroti without pursuing those avenues for impeachment, and we cannot say that its finding is unreasonable under AEDPA. Even without prior knowledge of the substance of Peroti's testimony, counsel succeeded in establishing her bias against Worthington. On cross-examination, Peroti acknowledged that she had volunteered to work with the police "to try to get Michael Worthington arrested for drugs." Moreover, counsel elicited that Peroti wanted to "make sure [Worthington] got out of [her] area" because he had supplied her son and other children with drugs and alcohol. Peroti also admitted that she had never reported the alleged sexual assault to the police and that she had continued to interact with Worthington after the assault. Likewise, the PSR before the sentencing court detailed a police report that documented the incident only as "Burglary 1st and Stealing Over $150," further calling into question Peroti's testimony regarding the alleged sexual assault. Accordingly, we hold that there is sufficient record evidence to support the state court finding that counsel effectively cross-examined Peroti and that the court's determination of fact is thus not unreasonable in light of the evidence before it. We may not, therefore, upset the state court's determination that Worthington suffered no prejudice as a result of counsel's failure to investigate Peroti's background.
Second, Worthington proffers an alternative ground for overturning the Missouri Supreme Court's decision that he was not prejudiced by counsel's failure to object to Peroti's testimony under Debler. Had counsel objected, Worthington contends, Peroti's testimony likely would have been excluded in its entirety, thus giving rise to a reasonable probability that the sentencing court would not have imposed the death penalty. As an initial matter, the Missouri Supreme Court has consistently maintained that Debler's notice requirement only "slightly circumscribe[s]" the "wide latitude" that both the State and the defense enjoy at the penalty phase "to introduce any evidence regarding the defendant's character that assists the jury in determining the appropriate punishment." State v. Smith, 32 S.W.3d 532, 554 (Mo. 2000) (citation omitted); see also State v. Thompson, 985 S.W.2d 779, 792 (Mo. banc 1999); State v. Clay, 975 S.W.2d 121, 132 (Mo.1998). Against this default principle that "the decision-maker is entitled to any
Nevertheless, even considering the unlikely possibility that the trial court would have ordered the wholesale exclusion of Peroti's testimony, we agree with the district court that there was no reasonable probability that the sentencing court would have imposed a sentence of life imprisonment. See Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. Despite Worthington's assertion to the contrary, Peroti's testimony does not appear to be "the most damaging aggravating evidence" presented at the penalty phase. As we discussed above, Missouri courts have repeatedly acknowledged that evidence of uncharged criminal misconduct is potentially unreliable. Debler, 856 S.W.2d at 657 ("Because no jury or judge has previously determined a defendant's guilt for uncharged criminal activity, such evidence is significantly less reliable than evidence related to prior convictions."); Smith, 32 S.W.3d at 554; Thompson, 985 S.W.2d at 792; see also Strickland, 466 U.S. at 695, 104 S.Ct. 2052 ("[T]he assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision."). Indeed, the sentencing court made no mention of the alleged sexual assault when it issued the penalty. Rather the court pointed to only two statutory aggravating factors, neither of which implicated Peroti's testimony. The sentencing court subsequently filed a "Report of the Trial Judge" listing three nonstatutory aggravating circumstances, none of which included Peroti's allegations of uncharged sexual assault, burglary, and theft. Accordingly, the strictures of AEDPA review do not permit us to disturb the state court decision that Worthington suffered no prejudice as a result of counsel's failure to object to the lack of adequate notice of Peroti's testimony.
For the foregoing reasons, we reverse the district court's grant of Worthington's petition for writ of habeas corpus, and we affirm its judgment denying habeas relief on the two grounds for which Worthington was granted a certificate of appealability. On remand, we instruct the district court to enter an order denying Worthington's petition.