Characteristics: Fugitive -
Rape - Robbery
Number of victims: 2
Date of murders:
Date of birth:
Victims profile: Harold and Melba Wampler
Method of murder:
Location: Platte County, Missouri, USA
by lethal injection in Missouri on August 21,
State of Missouri v.
791 S.W. 2d 396
Richard Oxford was executed on August 21,
On November 11, 1986 Richard Oxford and his cellmate, Richard
Brown escaped from the Conner Correctional Center in Hominy,
14, 1986 Oxford and Brown were identified as leaving the Paint
Stallion tavern in Joplin, Missouri with a local married couple
Harold and Melba Wampler.
The Wamplers were
missing until the Missouri Highway Patrol received a tip on
January 2, 1987 that the Wamplers' car was seen at the airport
in Kansas City, Missouri. Further investigation revealed the
Wamplers' bodies wrapped in a blanket in the trunk of their car.
determined that the Wamplers had both died as a result of
gunshot wounds to their left temples. Their hands and feet had
been bound and duct tape covered their mouths. According to the
physical evidence of their bodies it was determined that the
Wamplers had been dead for approximately six weeks.
Richard Oxford was
arrested on December 22, 1986 as a fugitive in Las Vegas,
Nevada. Found in his possession was a wristwatch that belonged
to Harold Wampler. Oxford's fingerprints were later found on
groceries in the Wamplers' automobile and his hair was found on
the blanket in the trunk.
in Nevada awaiting return to Missouri, Oxford told a fellow
cellmate that he killed the Wamplers. The cellmate later
testified at Oxford's trial.
01/23 - Oxford was convicted of Burglary First Degree in Tulsa,
10/04 - Oxford pleaded guilty to Attempted Larceny of an Automobile
in Tulsa, Oklahoma.
03/29 - Oxford pleaded guilty to three counts of Rape First Degree,
four counts of Forcible Sodomy, one count of Assault with Attempt to
Rape, three counts of Burglary First Degree, Robbery by Force,
Knowingly Concealing Stolen Property, Attempted Robbery with a
Firearm, Possession of a Sawed-Off Shotgun, Robbery with a Firearm
and Burglary Second Degree. Oxford was sentenced to terms of 20
years and 65 years consecutively in the Oklahoma Department of
Corrections for the above offenses.
11/11-Richard Oxford and Richard Brown escaped from the Conner
Correctional Center in Harmony, Oklahoma.
11/14-Oxford and Brown are seen at the Paint Stallion in Joplin,
Missouri with Harold and Melba Wampler.
1/2-The Wamplers' bodies are found in the trunk of a car parked at a
hotel parking lot in Platte County, Missouri.
8/29-An amended information charging Oxford with first degree murder
is filed in Platte County, Missouri. Oxford was originally charged
with felony murder.
8/29..9/3-Oxford was tried in the Circuit Court of Platte County and
was found guilty of first degree murder. The jury recommended a
sentence of death.
10/26-A motion for new trial was denied and Oxford was sentenced to
death for killing the Wamplers.
11/2-Notice of appeal was filed.
1/30-Oxford filed a pro se post-conviction motion in the Circuit
Court of Platte County, Missouri.
4/5-Oxford filed an unverified post-conviction motion in the Circuit
Court of Platte County.
10/6-The Circuit Court of Platte County denied Oxford's
6/19-The Missouri Supreme Court affirmed Oxford's conviction and
sentence and the Circuit Court's denial of the post-conviction
1/14-The United States Supreme Court denied certiorari.
1/28-Oxford filed a petition for writ of habeas corpus in the
United states District Court for the Western District of Missouri.
9/29-The petition for writ of habeas corpus was denied.
7/6-The United States Court of Appeals for the Eighth Circuit
affirmed the district court's order and denied the petition for writ
of habeas corpus.
4/1-The United States Supreme Court denied certiorari.
4/18-Oxford files a second petition for writ of habeas corpus in the
United States District Court for the Western District of Missouri
challenging his competency to be executed. Oxford's second petition
is still pending in the District Court with a hearing scheduled for
June 7, 1996.
5/3-The Missouri Supreme Court set June 12, 1996, as Oxford's
6/11-The United States Supreme Court grants a temporary stay of
execution for Oxford.
7/10-The Missouri Supreme Court set August 21, 1996, as Oxford's
U.S. Supreme Court denies petition of Richard
Oxford; Nixon to ask for rescheduled execution date
Attorney General's News Release
July 1, 1996
Jefferson City, Mo. — After previously issuing a
stay of execution last month, the United States Supreme Court today
declined to review the habeas corpus petition of Missouri death row
inmate Richard Oxford. The denial was the third time the high court
refused to review Oxford's conviction for the 1986 murder of Melba
Attorney General Jay Nixon said Oxford had
attempted to use a federal law enacted in April to further delay his
execution. The new law, which limits federal appeals by state
inmates, was challenged by a Georgia inmate before the U.S. Supreme
Court. The Supreme Court on Friday unanimously upheld those limits.
Nixon, who worked with the National Association
of Attorneys General for passage of the new law, said his office
will ask the Missouri Supreme Court to set a new execution date for
“After being convicted and sentenced by a
Missouri court, Richard Oxford has succeeded in delaying justice for
far too long,” Nixon said. “Today's ruling will help bring about his
Oxford escaped with his cellmate, Richard Brown,
from an Oklahoma prison on Nov. 11, 1986. The pair showed up three
days later at a country and western bar in Joplin, where they met
Melba and Harold Wampler, who were out with friends.
The Wamplers, who owned a local dairy farm, were
last seen alive leaving the bar with Oxford that night. Their bodies
were discovered in the trunk of their car at a Kansas City motel in
early January 1987. They had been shot and their bodies were bound.
Oxford's prior convictions included three counts
of rape, four counts of forcible sodomy, assault with intent to
rape, four counts of burglary and nine other convictions.
59 F.3d 741
Paul Delo, Appellee
United States Court of Appeals,
Submitted Sept. 12, 1994.
Decided July 6, 1995.
Rehearing and Suggestion for Rehearing En Banc
Denied Sept.8, 1995.*
Before FAGG, Circuit Judge, HEANEY, Senior
Circuit Judge, and BOWMAN, Circuit Judge.
BOWMAN, Circuit Judge.
Oxford appeals a
final judgment entered in the District Court1
denying his petition for a writ of habeas
corpus under 28 U.S.C. Sec. 2254 (1988). We
evening of November 14, 1986, Melba Wampler
and her husband Harold disappeared after
leaving a bar in Joplin, Missouri, in the
company of Oxford
and his companion Richard
Brown. At the time, Oxford
and Brown were fugitives from the Conner
Correctional Center in Hominy, Oklahoma. The
partially decomposed bodies of the Wamplers
were discovered in the trunk of a car at a
Kansas City motel on January 2, 1987.
Following a jury trial in September 1988,
convicted of the murder of Melba Wampler and
sentenced to death.2
to Missouri Supreme Court Rule 29.15,
Oxford filed a pro
se motion to vacate the conviction. As
required by Rule 29.15, the pro se motion
was verified. Subsequently, counsel
appointed to represent
Oxford prepared an amended Rule 29.15
motion asserting various claims not asserted
by Oxford in his
pro se motion, including ineffective
assistance of trial counsel.
Oxford refused to
communicate with his counsel and as a result
the amended petition was filed without
verification. After an evidentiary hearing,
the trial court denied both Rule 29.15
then took a direct appeal of his conviction
and sentence and an appeal of the denial of
his Rule 29.15 motions to the Missouri
consolidating the appeals, that court
affirmed the trial court in all respects,
holding, inter alia, that the claims raised
in Oxford's amended
Rule 29.15 motion were procedurally barred
because Oxford had
failed to verify the amended motion in
accordance with Rule 29.15. State v.
Oxford, 791 S.W.2d
396, 401 (Mo.1990) (en banc), cert. denied,
498 U.S. 1055, 111 S.Ct. 769, 112 L.Ed.2d
the Missouri Supreme Court's denial of
motions for rehearing and to recall the
filed his Sec. 2254 petition in the District
Court. As amended, the petition contained
thirty claims of constitutional error. The
District Court subsequently stayed further
proceedings, giving Oxford
an opportunity to file with the Missouri
Supreme Court a second motion to recall the
mandate and thereby to exhaust several
previously unexhausted claims.
Missouri Supreme Court summarily denied
and the District Court lifted its stay.
After thoroughly addressing the procedural
history of each of Oxford's
habeas claims, the District Court dismissed
all but one of them on the ground that they
were procedurally barred.3
See Oxford v. Delo,
No. 91-0080-CV-W-8 (W.D.Mo. Aug. 10, 1993) (order
dismissing counts 1-3, 5, 7, 8, 17, 19,
27-29); Oxford v.
Delo, No. 91-0080-CV-W-8 (W.D.Mo. Sept. 29,
1993) (order dismissing counts 4, 6, 9-16,
18, 20-26, and 30).
In its two
orders, the District Court found that the
Missouri Supreme Court had made the
following determinations with respect to
(1) Oxford's claims
2, 3, 5, 8, 17, 19, 20, 27, 28, and 29 were
procedurally defaulted because they were
raised in the amended Rule 29.15 motion that
Oxford had failed
to verify; (2) Oxford's
claims 1, 4, 6, 7, 9, 10, 11, 12, 13, 14,
15, 18, and 20 were procedurally defaulted
because they were raised only in
Oxford's motions to
the court to recall its mandate; (3)
Oxford's claim 26,
although properly raised in his pro se Rule
29.15 motion, was not raised in his appeal
from the denial of that motion and thus also
was procedurally defaulted.
District Court then examined each of the
Missouri Supreme Court's determinations of
procedural default and concluded that they
rested on independent state law grounds
adequate to bar federal habeas review.
District Court also determined that
Oxford's claims 21,
22, 23, 24, 25, 26, and 30 never had been
presented to the Missouri Supreme Court in
any form, and that the claims would be
procedurally barred in the Missouri courts
if Oxford were now
to present the claims in an attempt to
exhaust his state remedies. Accordingly, the
District Court determined that all of these
claims had been procedurally defaulted under
respect to all of the claims found to have
been procedurally defaulted, the District
Court, based on the state court record and
the parties' briefs and oral arguments,
ruled that Oxford
had not established cause and prejudice to
excuse his procedural default.4
All of the procedurally defaulted claims
therefore were dismissed by the District
Court as procedurally barred.
claim found not procedurally barred was
number 16, which alleges that Missouri's
death penalty is unconstitutional both
facially and as applied. The District Court
rejected this claim on the merits and
Oxford does not now
challenge that decision.
Oxford does challenge the District
Court's dismissal of his other claims as
argument that failure to verify an amended
Rule 29.15 motion does not constitute an
independent or adequate state ground
sufficient to bar federal review of the
claims raised therein. It is well
established that federal courts are barred
from reviewing claims decided on independent
and adequate state law grounds. Fox Film
Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct.
183, 184, 80 L.Ed. 158 (1935). In Wainwright
v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497,
2506-07, 53 L.Ed.2d 594 (1977), the Supreme
Court extended this principle to federal
review of habeas claims brought by
petitioners who are in state custody. See
also Coleman v. Thompson, 501 U.S. 722,
729-30, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d
the Supreme Court has held that a procedural
default under state law may constitute
independent and adequate state law grounds
precluding federal review. Harris v. Reed,
489 U.S. 255, 262, 109 S.Ct. 1038, 1042-43,
103 L.Ed.2d 308 (1989) ("Under Sykes ... an
adequate and independent finding of
procedural default [as a matter of state law]
will bar federal habeas review of the
Supreme Court Rule 29.15 provides that a
person convicted of a felony may seek relief
from the conviction by filing with the trial
court a motion to vacate. A Rule 29.15
movant "shall verify the motion, declaring
that he has listed all grounds for relief
known to him and acknowledging his
understanding that he waives any ground for
relief known to him that is not listed in
the motion." Mo.R.Crim.P. 29.15(d). In
addition, Rule 29.15 requires that "[a]ny
amended motion shall be verified by movant."
Rule 29.15 is the exclusive procedure for
post-conviction relief in Missouri, claims
not properly asserted under the rule are
procedurally defaulted. See State v. Dixon,
854 S.W.2d 521, 524 (Mo.Ct.App.1993); State
v. Robinson, 832 S.W.2d 941, 945 (Mo.Ct.App.1992).
It was Oxford's
failure to verify his amended motion in
accordance with subsection (f) that led to
the procedural default of claims 2, 3, 5, 6,
8, 10, 19, and 20.
that is procedurally defaulted under state
law, however, is barred from federal review
only if the state procedural rule is both
(1) firmly established and (2) regularly
followed. Ford v. Georgia, 498 U.S. 411,
423-24, 111 S.Ct. 850, 857-58, 112 L.Ed.2d
935 (1991); Grubbs v. Delo, 948 F.2d 1459,
1462-63 (8th Cir.1991), cert. denied, ---
U.S. ----, 113 S.Ct. 109, 121 L.Ed.2d 67
review is not barred where a state
procedural rule is inconsistently enforced
or the state court undertakes a novel
application of the rule. See Grubbs, 948
F.2d at 1462-63. Thus, whether
Oxford's claims are
barred turns on whether Missouri Supreme
Court Rule 29.15 is firmly established and
regularly followed. Oxford
contends that it is not.
Rule 29.15 did not have a lengthy history of
litigation at the time
Oxford filed his unverified amended
motion, that fact is of little avail to him.
The verification requirement of Rule 29.15
is plainly stated in the rule and had been
in effect for more than a year when
Oxford filed his
was aware of the verification requirement
prior to filing his amended motion because
his original pro se motion was properly
verified. Accordingly, we conclude that the
verification requirement of Rule 29.15 was
As to the
"regularly followed" component of our
inquiry, we disagree with
Oxford's assertion that the
verification requirement of Rule 29.15 has
been "in a constant state of flux" since he
filed his motion. Appellant's Brief, p. 46.
We find that the Missouri courts have
consistently enforced the verification
requirements of Rule 29.15. See, e.g., State
v. Evans, 802 S.W.2d 507, 515 (Mo.1991) (en
banc) (declaring unverified post-conviction
motion a nullity); Dixon, 854 S.W.2d at 524
(holding that post-conviction motions were
procedurally deficient due to lack of
verification); Robinson, 832 S.W.2d at 945
(holding that claims were not preserved for
appellate review where post-conviction
motion was not properly verified); State v.
Boyd, 816 S.W.2d 19, 20 (Mo.Ct.App.1991) (to
same effect); State v. Norris, 813 S.W.2d
379, 382 (Mo.Ct.App.1991) (to same effect);
State v. Leisure, 810 S.W.2d 560, 576 (Mo.Ct.App.1991)
(to same effect); State v. Norfolk, 807 S.W.2d
105, 108 (Mo.Ct.App.1990) (appellate court
may not review claims raised in unverified
amended motion); McDaniels v. State, 806 S.W.2d
450, 451 (Mo.Ct.App.1991) (unverified post-conviction
motion must be dismissed for lack of
jurisdiction); Taylor v. State, 800 S.W.2d
808, 810 (Mo.Ct.App.1990) (to same effect);
cf. State v. Clay, 817 S.W.2d 565, 569 (Mo.Ct.App.1991)
(holding that court may rule on an
unverified motion if movant establishes that
failure to verify is caused by the
inattention of counsel); and Hutchinson v.
State, 821 S.W.2d 916, 917 (Mo.Ct.App.1992)
(to same effect).
numerous other decisions make it plain that
the verification requirement has been
regularly followed in cases, like the
present one, in which the movant cannot
demonstrate that the failure to verify was
caused by the inattention of counsel.
find that the verification requirement of
Rule 29.15 was firmly established at the
time Oxford filed
his amended motion and has been regularly
followed since its inception, we conclude,
as did the District Court, that the Missouri
Supreme Court's determination that
Oxford's claims 2,
3, 5, 6, 8, 10, 19, and 20 are procedurally
defaulted rests upon an adequate and
independent state law ground, sufficient to
bar the District Court's review of those
Oxford also argues
the District Court erred in determining that
his claim of ineffective assistance of
direct-appeal counsel (claim 1) is
procedurally barred. This claim was raised
for the first time in
Oxford's second motion to recall the
mandate. The District Court determined that
the Missouri Supreme Court had dismissed the
claim as procedurally defaulted when that
court denied Oxford's
contends that the claim is not procedurally
barred because the Missouri Supreme Court
denied the motion without mentioning
in fact was a one-liner that did not explain
the basis for the court's ruling. In these
circumstances, we agree with the District
Court that the federal habeas court must "look
through" the unexplained state court order
to the state court's last reasoned decision.
See Ylst v. Nunnemaker, 501 U.S. 797,
803-04, 111 S.Ct. 2590, 2594-95, 115 L.Ed.2d
brings us back to the Missouri Supreme
Court's order denying
Oxford's first motion to recall the
mandate, which plainly stated that all the
claims asserted in that motion were
procedurally defaulted and that any further
claims Oxford might
attempt to raise later also would be
procedurally defaulted. It follows under
Ylst that the Missouri Supreme Court's
denial of Oxford's
second motion to recall the mandate must be
read as having been based on procedural
Oxford has not
shown cause and prejudice to excuse his
procedural default, and because he does not
satisfy the miscarriage of justice exception
to the cause and prejudice standard, see
supra note 4, we agree with the District
Court that this claim is barred from federal
even if the claim were not procedurally
barred, we concur with the District Court's
conclusion that the claim is meritless. To
succeed on an ineffective assistance of
appellate counsel claim,
Oxford must show (1) that his
counsel's performance was deficient and (2)
that but for counsel's unprofessional errors,
the result of the proceedings would have
been different. Wilson v. Armontrout, 962
F.2d 817, 819 (8th Cir.) (citing Strickland
v. Washington, 466 U.S. 668, 687, 694, 104
S.Ct. 2052, 2064-2065, 2068, 80 L.Ed.2d 674
(1984)), cert. denied, --- U.S. ----, 113
S.Ct. 383, 121 L.Ed.2d 293 (1992).
citing specific examples,
Oxford alleges that his counsel
failed to brief numerous violations of
constitutional rights on direct appeal.
After reviewing the record, however, we
agree with the District Court that
counsel was well within the bounds of his
discretion in limiting the number of issues
raised in Oxford's
held that counsel must make "strategic
choices ... after thorough investigation of
[the] law and facts relevant to plausible
options," Horne v. Trickey, 895 F.2d 497,
500 (8th Cir.1990) (quoting Strickland, 466
U.S. at 690, 104 S.Ct. at 2066), and that "[t]he
Constitution does not require appellate
counsel to raise every nonfrivolous argument
on appeal," Sidebottom v. Delo, 46 F.3d 744,
759 (8th Cir.1995).
with the District Court that direct-appeal
counsel's choices as to the issues to be
raised were reasonable. Because
Oxford has failed
to show that his direct-appeal counsel's
performance was deficient, our inquiry is at
an end. Horne, 895 F.2d at 499 ("If ...
counsel's conduct was reasonable under the
circumstances, we do not need to reach the
issue of prejudice.").
Oxford argues next
that the District Court erred in holding
that his claims 4, 9, 12, 13, 15, and 18
were procedurally barred. The District
Court's procedural bar determination was
predicated on the Missouri Supreme Court's
denial of Oxford's
second motion to recall the mandate. See our
discussion under part III, supra, affirming
the District Court's finding of procedural
Oxford asserts that
these claims relate to the imposition of his
death sentence and that the Missouri Supreme
Court was obligated to review them pursuant
to Mo.Rev.Stat. Sec. 565.035. Thus,
Oxford argues that
the claims could not have been procedurally
defaulted even though he had never before
raised them. We disagree.
case, the Missouri Supreme Court performed a
section 565.035 review of
Oxford's sentence and chronicled its
conclusions in the published opinion
consolidated appeal. See
Oxford, 791 S.W.2d at 402. It was not
until well over a year later, however, that
claims 4, 9, 12, 13, 15, and 18 were first
presented to the Missouri Supreme Court in a
motion to recall the mandate.
faults the Missouri Supreme Court for
lacking the clairvoyance to divine and then
review, sua sponte, claims that he had not
yet raised. We are satisfied that section
565.035 requires the Missouri Supreme Court
neither to demonstrate such clairvoyance nor
to scour the record in search of errors that
the defendant has failed to raise in his
belatedly presented these claims in a motion
to recall the mandate, the Missouri Supreme
Court, finding them otherwise procedurally
defaulted, was not required to review them
under Missouri's mandatory review statute.
Mo.Rev.Stat. Sec. 565.035 requires the
Missouri Supreme Court to review the
imposition of all death sentences, taking
into consideration, in addition to "any
errors enumerated by way of appeal," the
following three questions:
Whether the sentence of death was imposed
under the influence of passion, prejudice,
or any other arbitrary factor; and(2)
whether the evidence supports the ...
finding of a statutory aggravating
(3) whether the sentence
of death is excessive or disproportionate to
the penalty imposed in similar cases....
Mo.Rev.Stat. Sec. 565.035.3 (1995) (emphasis
would have us hold that the errors alleged
in his claims are "arbitrary factors"
subject to mandatory review under the first
of the above inquiries.
is untenable. The Missouri Supreme Court has
not given precise content to the "arbitrary
factor" language, so we must read the
statutory language as we believe that court
would read it. See Lenhardt v. Zoeller, 55
F.3d 377, 379 (8th Cir.1995). Based on the
language and structure of the statute, the
phrase "arbitrary factor" cannot reasonably
be read as embracing all claims of error or
even all claims of constitutional error.
rule of ejusdem generis, a general term in a
statute that follows an enumeration of
specific things is not to be construed
broadly but is to be held to apply to other
things of the same kind or class as those
specifically mentioned. See Norfolk & W. Ry.
Co. v. American Train Dispatchers Ass'n, 499
U.S. 117, 129, 111 S.Ct. 1156, 1163-64, 113
L.Ed.2d 95 (1991); Black's Law Dictionary
517 (6th ed. 1990).
catch-all phrase "or any other arbitrary
factor," follows an enumeration of two
specific factors--passion and prejudice.
Accordingly, we read the word "arbitrary"
narrowly to describe rogue factors that,
like passion and prejudice, have no proper
place in a jury's deliberations when it
imposes a sentence of death.
Oxford does not
claim that he was sentenced to death
capriciously or impulsively, but instead
alleges an assortment of constitutional
errors that bear no resemblance to the
concerns adumbrated in section 565.035.3(1).
Accordingly, we conclude that the Missouri
Supreme Court was not obligated to review
the claims here at issue, and the District
Court was correct in determining that these
claims were procedurally defaulted under
his procedural default,
Oxford nevertheless is entitled to
federal habeas review of his defaulted
claims if he can show (1) cause for the
default and (2) prejudice as a result of the
alleged violation of federal law. Coleman,
501 U.S. at 749-50, 111 S.Ct. at 2564-65.
Oxford makes only
two cause arguments. First, with respect to
the claims defaulted under Rule 29.15,
Oxford argues that
he was mentally unable to comprehend the
rule and its strict procedural requirements.
of the procedural history of this case we
contention to be utterly without merit.
possessed mental comprehension sufficient to
permit him initially to file an eleven-page
pro se Rule 29.15 motion enumerating a
variety of claims, and in so doing to comply
with the Rule's verification requirement.
There is nothing in the record to suggest
that Oxford lacked
the mental capacity to verify his amended
motion in the same manner that he verified
his pro se motion.
Oxford asserts that
he has cause for his procedural default
based on the ineffective assistance of his
trial and Rule 29.15 counsel. With respect
to trial counsel, we reject this argument
because we fail to see any causal connection
between trial counsel's performance and
Oxford's failure to
verify his amended Rule 29.15 motion.
this Court has held that the performance of
trial counsel is irrelevant to the cause
inquiry where the petitioner fails to raise
the ineffective assistance of trial counsel
claim in state court proceedings. Maynard v.
Lockhart, 981 F.2d 981, 984 (8th Cir.1992);
Harris v. Lockhart, 948 F.2d 450, 452 (8th
Oxford raised the
ineffective assistance of trial counsel
claim only in his unverified amended Rule
29.15 motion, which under Missouri law is a
nullity. See Boyd, 816 S.W.2d at 20.
resurrect this procedurally defaulted claim
by cloaking it in the garb of a cause
argument that the ineffective assistance of
his counsel during the Rule 29.15
proceedings affords him cause for his
procedural default. Oxford
has made no attempt to show how the alleged
inadequacy of his counsel caused
Oxford to fail to
verify his amended Rule 29.15 motion.
Oxford admits that
the lack of verification resulted from his
failure to communicate with his counsel, who
drafted the amended motion. See Memorandum
in Support of the Petitioner's Motion for
Reconsideration of the Court's Order Denying
an Evidentiary Hearing at 8,
Oxford v. Delo, No.
CV91-0080-CV-W-8 (W.D.Mo. Sept. 1, 1993).
event, Oxford had
no constitutional right to the effective
assistance of counsel in his post-conviction
proceedings under Rule 29.15. See Coleman,
501 U.S. at 752, 111 S.Ct. at 2566.
that his Rule 29.15 proceedings were so
intimately bound up with his direct appeal
that he had a constitutional right to the
effective assistance of counsel during those
proceedings has been squarely rejected by
this Circuit. See Nolan v. Armontrout, 973
F.2d 615, 616-17 (8th Cir.1992).
no right to the effective assistance of Rule
29.15 counsel even when the same individual
acts as Rule 29.15 counsel and direct-appeal
counsel. See Lowe-Bey v. Groose, 28 F.3d
816, 820 (8th Cir.), cert. denied, --- U.S.
----, 115 S.Ct. 674, 130 L.Ed.2d 606 (1994).
we discussed at length Missouri's hybrid
appeals process and the distinction between
Rule 29.15 counsel and direct-appeal counsel.
We concluded that even if [petitioner's]
direct-appeal counsel had handled a hybrid [Rule
29.15] appeal, [petitioner] would only have
been entitled to effective assistance of
counsel on that portion of the hybrid appeal
that was devoted to direct-appeal issues
because he has no right to effective
assistance of counsel on that portion of the
hybrid appeal devoted to the appeal of his
Rule 29.15 claims.
Coleman, 501 U.S. at 752-55, 111 S.Ct. at
2566-68). Because Oxford
had no right to counsel during his Rule
29.15 proceedings, his claim of ineffective
assistance of counsel during those
proceedings cannot constitute cause for his
procedural default. See Coleman, 501 U.S. at
757, 111 S.Ct. at 2568-69; Pollard v. Delo,
28 F.3d 887, 888 (8th Cir.1994).
we affirm the District Court's determination
that as a matter of law
Oxford cannot show cause to excuse
his procedural defaults. Absent a showing of
cause we need not reach the issue of
prejudice. Lowe-Bey, 28 F.3d at 820.
that the District Court erred in refusing to
grant him an evidentiary hearing at which to
show cause and prejudice for the default of
both the claims raised in his unverified
Rule 29.15 motion and his claim of
ineffective assistance of direct-appeal
counsel. This argument is moot as to the
latter claim, since we already have affirmed
the District Court's ruling that this claim
lacks merit even if it is not procedurally
barred. See part III of this opinion, supra.
As to the
remaining claims, the Supreme Court has held
that "[t]he petitioner's opportunity to meet
the burden of cause and prejudice will not
include an evidentiary hearing if the
district court determines as a matter of law
that petitioner cannot satisfy the [cause
and prejudice] standard." McCleskey v. Zant,
499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113
L.Ed.2d 517 (1991); see also Hoggard v.
Purkett, 29 F.3d 469, 472 (8th Cir.1994).
District Court determined as a matter of law
that Oxford was
unable to satisfy the cause-and-prejudice
standard. Because we concur in that
determination, we conclude that the District
Court did not abuse its discretion by
request for an evidentiary hearing. See Shaw
v. United States, 24 F.3d 1040, 1043 (8th
Cir.1994) (stating standard of review).
considered all of Oxford's
arguments and find them meritless. The
judgment of the District Court is affirmed.
Senior Circuit Judge, dissenting.
In my view,
the district court erred in denying
opportunity to assert his claims with
respect to the ineffectiveness of his
counsel at the penalty phase of his trial.
Essentially these claims are embodied in
claim numbers 2, 3, 5, and 8 as set forth in
footnote 3 of the majority opinion. I would
remand this case to the district court with
directions to remand to the state court to
rehear the penalty phase of this case and
current counsel to introduce any mitigating
evidence he feels appropriate. Accordingly,
introduced evidence of
Oxford's troubled childhood and his
mental and physical history. At the penalty
phase, however, he offered only one witness,
Oxford's wife, who
testified very briefly about
relationship with their children and about
episodes in which Oxford
behaved strangely. Counsel did not call to
the stand any of the psychiatrists who had
examined or treated Oxford.
In the penalty phase of a trial, "the jury
is entitled to receive as much information
as possible in order to make an informed
decision as to punishment." State v. Leisure,
749 S.W.2d 366, 379 (Mo.1988) (citations
omitted), cert. denied, --- U.S. ----, 113
S.Ct. 343, 121 L.Ed.2d 259 (1992).
concept of individualized sentencing in
capital cases requires that the sentencer
possess "the fullest information possible
concerning the defendant's life and
characteristics" as well as the
circumstances of the particular offense.
Lockett v. Ohio, 438 U.S. 586, 602-04, 98
S.Ct. 2954, 2963-65, 57 L.Ed.2d 973 (1978) (internal
quotations and citations omitted).
As was its
right, the prosecution offered very graphic
and powerful testimony from the victims and
relatives of victims of
Oxford's previous crimes. The
prosecution presented to the jury the worst
behavior. It was incumbent upon defense
counsel to focus on those aspects of
and mental impairments which could be
offered in mitigation. Even though some,
though not all, of such evidence would
duplicate testimony given during the guilt
phase of the trial, counsel had a
responsibility to offer it in the penalty
phase, where the focus is on determining
whether life or death is the appropriate
sentence for this particular defendant.
attests that Oxford
was an unwanted child. She attempted to self-abort
the pregnancy several times. After
Oxford's birth, she
had no maternal feelings of love or
affection and considered him an unwanted
responsibility, yet she also refused to
allow him to be adopted by others who
offered to raise him.
Oxford's father was distant and
unaffectionate. The only adult relative who
gave positive attention to
Oxford was an uncle, who committed
suicide when Oxford
was about seven years old.
seventeen months Oxford
was hospitalized with pneumonia and received
three blood transfusions to his head. After
he came home from the hospital he was
nervous and irritable, he could not sit
still, and his body often twitched, even
while he was sleeping. From his earliest
days in kindergarten
Oxford was disruptive, and no
discipline from parents or teachers was
effective. By second grade, medication was
prescribed, but it made his condition worse.
in medication caused an opposite reaction,
and Oxford became a
"zombie" who cried often and would sit and
do nothing for long periods of time. His
mother then began to alternate having him on
and off the drug. He also had two
concussions before the age of ten.
grandmother was in and out of mental
institutions for most of her life, and she
was treated with electric shock therapy on
at least one occasion.
ten Oxford began
sniffing glue. By his teenage years he was
taking other drugs such as speed and Valium.
Around age thirteen Oxford
began therapy with a psychiatrist. He was in
therapy for about two years and was placed
in a facility for about one and a half years
while still undergoing therapy with the
also was placed in two other facilities
during his teenage years. There was never
any lasting change in his family
circumstances or behavior.
psychiatrist who examined
Oxford in 1987 and 1988 and testified
at the guilt phase of the trial offered the
opinion that Oxford
was mentally ill, probably suffering from
schizophrenia. The psychiatrist observed
some of the same symptoms reported by
members throughout his childhood and
adulthood and by his childhood therapist.
recognize that Oxford
does not make a claim of actual innocence to
bring him technically within the miscarriage
of justice standard. In my view, however,
his claim that presentation to the jury of
all the mitigating evidence would have
provided a basis for avoiding the death
penalty should fall into the same category.
The Honorable Charles R.
Wolle, United States District Judge for the
Southern District of Iowa, sitting by
designation in the Western District of
The facts of the case are
fully set forth in State v.
Oxford, 791 S.W.2d
396 (Mo.1990) (en banc), cert. denied, 498
U.S. 1055, 111 S.Ct. 769, 112 L.Ed.2d 789
habeas claims may be summarized as follows:
assistance of appellate counsel (failure to
brief on appeal various points involving
denial of constitutional rights)
assistance of trial counsel (IATC) (failure
to produce mitigating evidence regarding
mental condition at sentencing)
No. 3--IATC (failure to
produce mitigating evidence regarding mental
illness at sentencing)
No. 4--IATC (failure to
object to jury instructions Nos. 4 and 15)
No. 5--IATC (failure to
present evidence of childhood mental and
physical health problems to jury)
No. 6--Trial court error
in submitting jury instruction No. 18 (regarding
No. 7--Trial court error
in submitting jury instruction No. 21
(requiring unanimity for a finding of
No. 8--IATC (failure to
secure additional psychiatrist to
investigate mental illness and testify at
No. 9--IATC (failure to
object to jury instructions Nos. 18 and 21)
No. 10--Trial court error
in excluding juror
No. 11--IATC (failure to
question jurors regarding death penalty)
prosecutorial remarks about deterrence
prosecutorial remarks about victims' family
No. 14--IATC (failure to
object to comment about polygraph exam)
No. 15--Failure of state
to give notice of intent to rely upon
statutory aggravating circumstances
imposition of the death penalty
No. 17--IATC (failure to
raise evidence of duress and domination)
No. 18--Trial court error
in allowing separate enumeration of prior
No. 19--IATC (failure to
raise insanity defense)
No. 20--IATC (failure to
prepare opening statement and failure to
argue in support of motions for directed
No. 21--IATC (failure to
inquire of jurors whether they believed
arrest indicated guilt)
No. 22--IATC (failure to
adequately interrogate potential jurors)
No. 23--IATC (failure to
adequately examine witness)
No. 24--IATC (failure to
adequately cross-examine witness)
No. 25--IATC (failure to
adequately cross-examine witness)
No. 26--IATC (failure to
object to various exhibits)
No. 27--IATC (failure to
introduce testimony of examining
psychiatrist at sentencing)
No. 28--IATC (failure to
introduce testimony of childhood examining
psychiatrist at sentencing)
No. 29--IATC (failure to
introduce testimony of prison superintendent
No. 30--IATC (failure to
object to admission of edited testimony of
childhood examining psychiatrist)
As the District Court
makes no claim of actual innocence. Thus, as
a matter of law, he cannot satisfy the
miscarriage of justice exception to the
cause and prejudice requirement. See Schlup
v. Delo, --- U.S. ----, ----, 115 S.Ct. 851,
861, 130 L.Ed.2d 808 (1995); Washington v.
Delo, 51 F.3d 756, 760-61 (8th Cir.1995)