Paul Max Honeycutt v. Don Roper, Jeremiah (Jay) Nixon , 426 F.3d 957 ( 2005 )

WOLLMAN, Circuit Judge.

Paul Max Honeycutt appeals from the district court’s denial of his petition for writ of habeas corpus. We affirm.

I.

Honeycutt was convicted of first degree murder and armed criminal action for the April 7, 1995, shooting death of Cheryl Bolsenga in Parkville, Missouri. Honey-cutt shot Bolsenga, his live-in girlfriend, three times with a shotgun. As he was being taken into custody, he told police that “[s]he was messin’ around with guys around here and I got tired of it and I did it. I just got mad.”

Honeycutt’s trial counsel, Gary Allen, contacted Dr. William Logan, a forensic psychiatrist, to assist with Honeycutt’s defense. After learning that Honeycutt had “a long mental health history with numerous prior hospital records,” Dr. Logan requested that Allen procure the records, which were located at Fulton State Hospital. Dr. Logan also asked for the investigative reports pertaining to Bolsenga’s homicide. Although Allen provided summaries ¹ of these materials, Dr. Logan did not receive the complete records or investigative reports.

Dr. Logan examined Honeycutt for five hours on August 27, 1996. Following the examination and his review of the summaries, Dr. Logan completed a twenty-seven page report dated August 30, 1996 (“Logan Report”). The report chronicles Ho-neycutt’s extensive medical history and his stays in mental health facilities. According to the report, Honeycutt told Dr. Logan that he began experiencing visual hallucinations at age fourteen. Logan Rep. at 5. Dr. Logan wrote that Honeycutt had been diagnosed in 1980. as having Schizoaf-fective Disorder with Paranoid Features and that Honeycutt had “first reported seeing an Indian who would warn and threaten him” that year. Id. According to Dr. Logan’s report, Honeycutt also received outpatient treatment in 1990 for “auditory and visual hallucinations, delusions, and suicidal and homicidal thoughts.” Id. at 8. Dr. Logan noted that records from a 1995 hospitalization indicated that Honeycutt had described “an ‘Indian-like’ voice and a female voice who ‘talked sweet.’” Id. at 11, 15. Some of the voices told Honeycutt to harm himself or others. Id. at 11.

Honeycutt told Dr. Logan that he had been attracted to but also paranoid about Bolsenga. Id. at 14. He described his fear that Bolsenga was poisoning him and his efforts to avert her attempts. Id. at 15. He told Dr. Logan that voices told him to watch out for Bolsenga. Id. at 16. He stated that on the day of the murder he questioned Bolsenga about any connections that she had with “the Mafia, Bikers, Rainbow People, or California” and later asked her if she had poisoned him. Id. at 16, 17. He told Dr. Logan that after he shot Bolsenga, he was threatened by “an approximately 18" furry little man with one red and one blue eye with white stars that rotated in its eyes” and “a 28" high chubby, bald figure with a reddish forehead,” and that he shot at both of these figures. Id. Honeycutt denied telling the police that he shot Bolsenga because she was “messing around.” Id. at 18.

Dr. Logan determined that at the time of the murder, Honeycutt had both a mental disease, Schizoaffective Disorder, and a mental defect, borderline intellectual functioning. Id. at 26. He expressed “significant doubts”- about Honeycutt’s competence to stand trial. Id. Nonetheless, Dr. Logan concluded that Honeycutt “was not so compromised by [his] conditions at the time of the offense that he was unable to know and appreciate the nature, quality, and wrongfulness of his conduct.” Id. Dr. Logan opined that Honeycutt was likely malingering about shooting at the little men, but disagreed with the state’s experts that other aspects of Honeycutt’s mental illness were feigned. As to diminished capacity, Dr. Logan wrote:

I would defer an opinion concerning any diminished capacity to premeditated [sic] or deliberate at the time of the offense until there has been an opportunity to review the investigative reports. From Mr. Honeycutt’s description of his behavior, he was not so mentally ill or intoxicated he could not control his behavior generally. He may have been paranoid, labile, and explosive, however.

Id. (emphasis added). Dr. Logan also told Allen that the diminished capacity defense would not be available unless corroborating witnesses could verify that Honeycutt had claimed prior to the murder that Bol-senga was poisoning him.

Concerned that testimony from Dr. Logan would open the door for the prosecution to contend that Honeycutt was malingering, Allen decided not to' have Dr. Logan testify. Against Allen’s advice, Honeycutt testified on his own behalf. Contrary to his earlier statement to police, Honeycutt asserted that he shot Bol-senga because - they had been arguing about bisexual fantasies and “the Mafia and the bikers,” and because he had a persistent fear that she had been poisoning him. Tr. at 568-77. He testified that after he shot Bolsenga he had shot at “two of my visions.” Id. at 578. The jury heard no expert testimony about Ho-neycutt’s mental illness or whether he was malingering.

Honeycutt was found guilty and sentenced on October 3, 1996, to consecutive life sentences and an additional 1,000 years’ imprisonment. Following the denial of his direct appeal, Honeycutt filed a subsequently amended motion to vacate his sentence and conviction on November 25, 1998. In preparation for Honeycutt’s post-conviction challenge, Honeycutt’s newly appointed counsel contacted Dr. Logan and asked him to review additional information that had not been available to Dr. Logan when he had evaluated Honey-cutt. After reviewing this information, Dr. Logan provided a February 4, 1999, addendum (the “Logan Addendum”) to his earlier report.² Dr. Logan explained in his addendum that:

My opinion in 1996 was that Mr. Honey-cutt’s diagnosis was Schizoaffective Disorder. I deferred in making an opinion on the issue of whether Mr. Honeycutt suffered from diminished capacity at the time of the offense, because I lacked critical information necessary to make that determination.

Logan Add. at 2.

After reviewing the additional information that had been provided to him, Dr. Logan concluded that at the time of Bol-senga’s murder, Honeycutt was “paranoid, delusional, emotionally labile and explosive” and that “[i]n this psychotic condition Mr. Honeycutt was not able to deliberate on his actions in the killing of Ms. Bolsen-ga with any rationality, and did not have the capacity for cool reflection.” Id. at 1.

Following an evidentiary hearing, the Circuit Court of Platte County, Missouri, denied Honeycutt’s post-conviction claims. The Missouri Court of Appeals affirmed. Honeycutt v. State, 54 S.W.3d 633 (Mo.Ct.App.2001). Honeycutt filed a pro se petition for writ of habeas corpus, which the district court denied. We granted a certificate of appealability on the issue of whether Allen rendered ineffective assistance “by failing to furnish Dr. Logan with complete medical and investigative reports.” ³ We appointed counsel to represent Honey-cutt on appeal.

II.

To be entitled to federal habeas relief, Honeycutt must establish that the Missouri Court of Appeals’s decision on the merits of his ineffective assistance claim was either contrary to or an unreasonable application of clearly established Federal law, as determined by the Supreme Court. 28 U.S.C. § 2254(d). Because the Missouri Court of Appeals correctly identified Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as the controlling authority for ineffective assistance of counsel claims, we address the “unreasonable application” clause of Section 2254(d). See Colvin v. Taylor, 324 F.3d 583, 587 (8th Cir.2003). We observed in Colvin that “the Supreme Court has repeatedly stressed that an unreasonable application is different from an incorrect one.” Id. We may not grant a writ of habeas corpus unless the relevant state court decision is both wrong and unreasonable. Id.

A.

The issue before us is whether the Missouri Court of Appeals unreasonably applied Strickland in concluding that Allen’s failure to ensure that Dr. Logan received complete medical and investigative reports was not ineffective assistance of counsel. The Missouri Court of Appeals concluded that:

Counsel arranged for the reports to be sent to Dr. Logan, but not all of the reports were provided from Fulton .... Counsel had tried to locate possible witnesses who would support any claim by Honeycutt that he thought Ms. Bolsenga was poisoning him. Once it appeared to him that he could not substantiate the legitimacy of the claim of fear of poisoning, counsel had to make a strategic decision. His decision, for better or for worse, was that Honeycutt was better served by not presenting Dr. Logan; and thereby, counsel hoped, he could avoid opening up the whole issue of whether Honeycutt was feigning. As it turned out at trial, the issue ended up emerging anyway (and the prosecution argued that Honeycutt was a faker because of his actions at trial). We cannot say, however, it was unreasonable strategy at that time for counsel to believe that he could keep that issue out of the case (especially if his client did not testify), and to hope that the jury would have doubt about Honeycutt’s capacity to deliberate anyway.

With all of this in mind, we believe that the motion court did not clearly err in its determination that counsel’s overall performance was not constitutionally ineffective.

54 S.W.3d at 648. Earlier in its opinion, the court had observed that one of Honey-cutt’s arguments was that Allen “did not use every reasonable effort to obtain expert testimony to support his defense of diminished capacity, because he could have put Dr. Logan on the stand to testify to this defense if he had provided him with the police reports and mental health records the doctor had requested.” Id. at 647 (emphasis in original). Accordingly, implicit in the Missouri Court of Appeals’s conclusion that Allen was not constitutionally ineffective was its conclusion that Allen was not constitutionally ineffective in failing to ensure that Dr. Logan received complete medical and investigative records. This was not an unreasonable application of Strickland.

B.

Even if the Missouri Court of Appeals had unreasonably applied Strickland, we could not grant the habeas petition unless Honeycutt’s constitutional rights were violated. 28 U.S.C. § 2254(a). Specifically, in order to obtain relief, Ho-neycutt would have to establish prejudice under Strickland. See Wiggins v. Smith, 539 U.S. 510, 525, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).⁴ To establish prejudice, a defendant must show a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Hall v. Luebbers, 296 F.3d 685, 692 (8th Cir.2002). Because the Missouri Court of Appeals never decided whether Honeycutt had suffered prejudice,⁵ we review that issue de novo. See Wiggins, 539 U.S. at 534, 123 S.Ct. 2527 (“... our review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis”).

We conclude that Honeycutt cannot demonstrate that he was prejudiced by Allen’s failure to ensure that Dr. Logan received complete medical and investigative records. We first note that Dr. Logan testified at the state post-conviction hearing that the investigative records contained no information that would have affected his diagnosis.⁶ Accordingly, the absence of the investigative records could not have prejudiced Honeycutt.

As for the medical records, Dr. Logan’s numerous citations to specific details in portions of his addendum not relevant to Honeycutt’s habeas petition⁷ demonstrate that he has thoroughly reviewed the records that had not been available to him when he completed his original report. Yet Dr. Logan’s addendum cites only a single detail from those records that would have factored into his evaluation pertaining to diminished capacity:

A second fact, which has emerged from this [1999] review, is that Mr. Honeycutt has reported having visual hallucinations during previous episodes of psychosis. This is mentioned for example in the records of the 4,5th Street Mental Health Center. A nurse[']s note at Spellman Hospital on 7/10/91 records he saw “little people. ” His biological mother, June Sanderson, reports he has told her about seeing little people for years prior to the April 1995 homicide. This lends credibility to Mr. Honeycutt’s report he had this type of hallucination, a symptom of psychosis, when he shot his girlfriend, Cheryl Bolsenga.

Logan Add. at 5-6 (emphasis added). Contrary to Dr. Logan’s contention that Honeycutt’s previous reports of visual hallucinations emerged only during the 1999 review, Dr. Logan’s 1996 report contains multiple references to Honeycutt’s past visual hallucinations. Accordingly, the only additional piece of information relevant to the diminished capacity defense that Dr. Logan describes in his addendum is that in 1991 a nurse had noted that Honeycutt had reported seeing “little people.”

We conclude that there is no reasonable probability that Dr. Logan would have had changed his professional medical opinion from “not enough information” to “diminished capacity” based solely on the nurse’s note and in the absence of witnesses to corroborate Honeycutt’s fear that Bolsen-ga was poisoning him.⁸ Accordingly, there is no reasonable probability that, but for Allen’s failure to ensure that Dr. Logan received complete medical records, the result of the proceeding would have been different. Cf. Hall, 296 F.3d at 692.

We affirm the district court’s denial of the habeas petition.

1 . The summaries were prepared by Dr. Richard Gowdy, a state expert who had examined Honeycutt after his arrest. Dr. William Holcomb also examined Honeycutt for the state.

2 . Dr. Logan's addendum was received into evidence in the state post-conviction court but was inadvertently excluded from the exhibits submitted to the district court as part of Ho-neycutt's habeas petition. The state has moved, without objection from Honeycutt, to expand the record on appeal to include the addendum. We grant the state’s motion and consider the addendum in our resolution of this case.

3 . We note that implicit in our characterization of the issue in the certificate of appeala-bility (COA) is that we undertake our review pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

4 . Honeycutt’s contention that "[t]he single issue identified by the Certificate of Appealability necessarily presupposes there has in fact been prejudice” relies on an untenable interpretation of AEDPA. See supra, note 3.

5 . Although the Missouri Court of Appeals cited both case law and the positions of the parties on prejudice, it did not decide that issue.

6 . Dr. Logan testified: "There were some things in the investigative reports that were helpful, but certainly not any information from people that were associates of [Honey-cutt] about whether he had expressed paranoid ideas about [Bolsenga] previously. That wasn't in there.” Mot. Hrg. Tr. at 30.

7 .Dr. Logan devotes much of his addendum to: (1) refuting Dr. Gowdy's conclusion that Honeycutt showed no signs or symptoms of mental illness, Logan Add. at 3-4; and (2) discussing information provided to him by Honeycutt’s mother and Steve Bell pertaining to Honeycutt's belief that Bolsenga was poisoning him. Id. at 6. Neither issue is relevant to whether Allen was ineffective in failing to provide medical records to Dr. Logan.

8 . The question regarding Allen’s inability to locate corroborating witnesses is not before us. Steve Bell testified during the state post-conviction hearing that he and Honeycutt were "pretty good friends” and that he had been with Honeycutt on April 7, 1995, hours before Honeycutt shot Bolsenga. Mot. Hrg. Tr. at 66. (Dr. Logan’s initial report also indicated that Honeycutt had been at Bell’s house earlier that day. Logan Rep. at 18.) Bell testified that Honeycutt told him that day that Bolsenga was poisoning him. Mot. Hrg. Tr. at 66. Bell and Allen did not agree whether Allen had contacted Bell as part of his investigation, id. at 41 and 67, and neither of the state courts that considered the hearing testimony made a factual finding as to the issue. Notwithstanding the possibility that Allen may have failed to contact Honeycutt’s "pretty good friend” who had been with him hours before the murder, whether Allen should have investigated Bell has no bearing on the issue of whether Allen was ineffective in failing to provide complete reports to Dr. Logan.