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Michael Shane Worthington v. Don Roper

January 6, 2011

MICHAEL SHANE WORTHINGTON, APPELLEE/CROSS-APPELLANT,
v.
DON ROPER, APPELLANT/CROSS-APPELLEE.



Appeal from the United States District Court for the Eastern District of Missouri.

The opinion of the court was delivered by: Gruender, Circuit Judge.

Submitted: September 23, 2010

Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges.

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 post-conviction 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 and affirm the district court's denial with respect to his two additional claims.

I. BACKGROUND

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,*fn1 all experienced capital defense attorneys. On August 28, 1998, Worthington pled guilty to all three charges without a plea agreement. He waived a jury for sentencing.

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, including fighting with inmates, threatening and attempting to assault correctional officers, and hiding contraband-including a razor blade-in his cell.

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 dysfunctional family, was abused and neglected as a child, and was a long-term drug abuser. The court also found two statutory aggravating circumstances beyond a reasonable doubt: (1) that Worthington committed the murder while engaged in the perpetration of forcible rape and first-degree burglary, and (2) that Worthington committed the murder for the purpose of receiving money or things of monetary value from the victim. The court then sentenced Worthington to death on the murder count and sentenced him to terms of thirty years and life imprisonment for the burglary and the rape, respectively. The Missouri Supreme Court affirmed the sentence of death. Worthington, 8 S.W.3d at 94.

Worthington then filed a pro se motion for post-conviction relief under Missouri Supreme Court Rule 24.035(j). The post-conviction 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 post-conviction relief, Worthington v. State, No. 00-12558 (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.

II. DISCUSSION

A. Warden Roper's ...


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