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Richard Steven ZEITVOGEL





Classification: Murderer
Characteristics: Revenge - Wanted to receive a death sentence
Number of victims: 2
Date of murders: January 25, 1981 / March 25, 1984
Date of birth: May 11, 1956
Victims profile: John McBroom (fellow inmate) / Gary Wayne Dew (fellow inmate)
Method of murder: Stabbing with homemade knife / Strangulation
Location: Missouri, USA
Status: Executed by lethal injection in Missouri on December 11, 1996

United States Court of Appeals
For the Eighth Circuit

opinion 94-2976

clemency petition


State of Missouri v. Richard Steven Zeitvogel

707 S.W. 2d. 365 (Mo. Banc 1986)

Richard Steven Zeitvogel was executed on December 11, 1996

Case Facts: 

On March 25, 1984 at the Missouri State Penitentiary in Jefferson City, Missouri between 12:00 p.m. and 1:00 p.m., Richard Zeitvogel strangled his cellmate, Gary Wayne Dew, with red double-strand wire leaving a distinctive pattern around the victim’s neck.

At 4:30 p.m. Zeitvogel called a correctional officer to his cell to report that he had strangled Dew. Department of Corrections investigators found the murder weapon in a book belonging to Zeitvogel. The texture of the red wire matched the injury pattern around the neck of Gary Dew. Investigators were also able to determine that Dew had attempted to remove the wire during the struggle based on marks that were found on his neck.

Zeitvogel later told authorities that he strangled Dew because he wanted to receive a death sentence so that he could room with capital punishment inmate Frank Guinan on death row.

Guinan and Zeitvogel had been co-defendants on a previous murder case which occurred at the Missouri State Penitentiary on January 25, 1981. Zeitvogel was later convicted of this charge and was sentenced to Life (50 years without parole). Guinan was executed at the Potosi Correctional Center on October 6, 1993 for this offense and a second death sentence he received in the murder of another inmate.

The victim in this case, Gary Wayne Dew, was serving a seven year sentence for Burglary First Degree from St. Louis City. He was received in the Missouri Department of Corrections on November 11, 1981.

Legal Chronology

10/11 - Zeitvogel was arrested for Armed Robbery and Rape in Pulaksi County, Missouri. While being held in the Phelps County jail, Zeitvogel attempted an escape.

05/29 - Zeitvogel pleaded guilty to Escape in Phelps County, Missouri while being held on the Armed Robbery and Rape charges. He was sentenced to two years in the Missouri Department of Corrections for the escape charge.

05/06 - Zeitvogel was convicted of Rape and Armed Robbery charges in Pulaski County. He was sentenced to 15 years for Rape and five years for Armed Robbery in the Missouri Department of Corrections to run concurrently.

01/25 - Zeitvogel was arrested at the Missouri State Penitentiary Jefferson City for Capital Murder and Assault with Intent to kill. On January 21, 1982 in the Cole County Circuit Court, he was found guilty and sentenced to Life (50 years without parole) for Capital Murder and 30 years for Assault with Intent to kill. These two sentences were to be served concurrently, however both sentences were to run consecutively to his other sentences from 1976.

3/25 – Richard Zeitvogel arrested for the murder of his cellmate at the Missouri State Penitentiary in Jefferson City.

1/9 – Zeitvogel found guilty by a jury of Murder First Degree. The jury recommends a sentence of death.
4/15 – Zeitvogel is formally sentenced to death.

3/25 – The Missouri Supreme Court affirms Zeitvogel’s conviction.
10/6 – The United States Supreme Court denies certiorari.
11/7 – Zeitvogel files a post-conviction motion in the Circuit Court of Cole County.

7/24 – The Circuit Court of Cole County denies Zeitvogel’s post-conviction motion.

9/13 – The Missouri Court of Appeals affirms the Cole County Circuit Court’s denial of the post-conviction motion.

5/15 – The United States Supreme Court denies certiorari.
5/26 – Zeitvogel files a petition for writ of habeas corpus in the United States District Court for the Western District of Missouri.

2/18 – The petition for writ of habeas corpus is denied by the U.S. District Court for the Western District of Missouri.

2/28 – The United States Court Appeals for the Eighth circuit affirms the District Court’s decision to deny the motion for writ of habeas corpus.
10/21 – The United State Supreme court denies certiorari.
10/29 – The Missouri State Supreme Court sets December 11, 1996 as the date for Zeitvogel’s execution.



Killer Executed by Injection In Missouri Prison

The New York Times

December 12, 1996

A man was executed by injection in Missouri early yesterday for strangling a cellmate. 

In Potosi, Mo., Richard Zeitvogel, 40, was executed for killing Gary Wayne Dew in 1984 in their first night as cellmates.

Mr. Zeitvogel had been convicted with a fellow inmate, Frank J. Guinan, in the fatal stabbing of another prisoner in 1981. Prosecutors said he killed Mr. Dew so he would be sent to death row and join Mr. Guinan, who prosecutors described as his lover. But lawyers for Mr. Zeitvogel said he had killed Mr. Dew in self-defense.

Mr. Zeitvogel's lawyer, Sean O'Brien, said Mr. Zeitvogel started drinking at about the age of 7 and quickly moved up to marijuana, LSD and cocaine, partly to find escape from an abusive home.

Mr. Zeitvogel, who was sentenced to life in prison for the 1981 stabbing, was originally jailed at the age of 18 for his role in a 1974 rape and burglary. Mr. Guinan, who had been convicted of killing a second inmate also, in 1985, was executed in October 1993 for the 1981 killing.

In his final statement Mr. Zeitvogel said, ''Keep the faith and rock on,'' said a spokesman for the Missouri Corrections Department.


84 F.3d 276

Richard S. Zeitvogel, Appellant,
Paul Delo, Appellee.

Docket number: 94-2976

Federal Circuits, 8th Cir.

May 1, 1996

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

Susan M. Hunt, Kansas City, MO, argued (Elena M. Franco, on the brief), for appellant.

Frank A. Jung, Asst. Atty. Gen., Jefferson City, MO, argued for appellee.

Before: FAGG, HENLEY, and BOWMAN, Circuit Judges.

FAGG, Circuit Judge.

Richard S. Zeitvogel is on death row in Missouri for murdering Gary Wayne Dew in 1984. Zeitvogel appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. 2254 (1988), and we affirm.

Zeitvogel killed Dew while they were cellmates in the maximum security area of the Missouri State Penitentiary. A prison guard responding to a flashing emergency light over their cell found Dew dead on a mattress on the floor, and Zeitvogel alone with the body in the locked cell. Zeitvogel told the guard, "I killed my cellie." During Zeitvogel's trial for murdering Dew, the State of Missouri presented evidence that Zeitvogel strangled Dew from behind with a plastic-covered wire, then waited about three hours before activating the emergency light to summon help. Zeitvogel admitted killing Dew, but attempted to show he choked Dew with a sheet in self-defense after Dew attacked him. The jury rejected Zeitvogel's self-defense theory and convicted Zeitvogel of capital murder.

At the penalty phase of the trial, the State introduced certified copies of Zeitvogel's earlier convictions for capital murder, rape, armed robbery, assault, and jail break and escape. State witnesses explained Zeitvogel had received the earlier murder and assault convictions for fatally stabbing a fellow inmate and threatening a prison guard. Zeitvogel presented no mitigating evidence at the penalty phase. His attorney made a plea for mercy and argued Dew had provoked Zeitvogel by assaulting him. After finding the presence of three aggravating circumstances, the jury returned a verdict recommending the death penalty. The district court denied Zeitvogel's posttrial motions and sentenced Zeitvogel to death.

Zeitvogel unsuccessfully challenged his conviction and sentence on direct appeal, see State v. Zeitvogel, 707 S.W.2d 365 (Mo.) (en banc), cert. denied, 479 U.S. 871 , 107 S.Ct. 243, 93 L.Ed.2d 168 (1986), and in Missouri postconviction proceedings, see Zeitvogel v. State, 760 S.W.2d 466 (Mo.Ct.App.1988), cert. denied, 490 U.S. 1075 , 109 S.Ct. 2089, 104 L.Ed.2d 652 (1989). Zeitvogel then filed this habeas petition in the district court, raising thirty-two grounds for relief. While Zeitvogel's federal habeas petition was pending, Zeitvogel filed a motion for state habeas relief and the Missouri Supreme Court denied the motion. See Zeitvogel v. Delo, No. 73714 (Mo. Apr. 30, 1991). Back in the federal district court, Zeitvogel moved for an evidentiary hearing and for the appointment of experts to help him present his claims. Concluding as a matter of law that all Zeitvogel's claims were either procedurally barred or meritless, the district court denied Zeitvogel's petition without holding a hearing or appointing experts. After the district court later refused to alter or amend the judgment, Zeitvogel brought this appeal.

Zeitvogel mainly contends the State's failure to disclose certain hospital and prison records containing evidence of Zeitvogel's low intelligence, learning disabilities, and epilepsy caused by organic brain damage (collectively "mental deficiencies") violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and his trial counsel was ineffective in not obtaining and presenting evidence of these mental deficiencies during the guilt and penalty phases of his trial. Zeitvogel now wants a federal hearing to present the evidence and expert testimony about its legal significance.

Zeitvogel failed to present and preserve these contentions in state court. Zeitvogel failed to raise his Brady claim and his guilt-phase ineffective assistance claim in state court proceedings as Missouri law requires. See LaRette v. Delo, 44 F.3d 681, 687 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 246, 133 L.Ed.2d 172 (1995). Although Zeitvogel raised his penalty-phase ineffective assistance claim and presented some supporting evidence in the state postconviction hearing, Zeitvogel failed to present the additional supporting evidence that he now wants us to consider. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 8-12, 112 S.Ct. 1715, 1719-21, 118 L.Ed.2d 318 (1992) (petitioner must fully develop the supporting facts during the state court hearing); Battle v. Delo, 64 F.3d 347, 354 (8th Cir.1995) (same), cert. denied, --- U.S. ----, 116 S.Ct. 1881, 135 L.Ed.2d 176 (1996). Because Zeitvogel failed to present his claims and additional supporting evidence in state court, we may not consider them in this federal habeas proceeding unless Zeitvogel shows both cause for his failure and resulting prejudice, or that a fundamental miscarriage of justice would otherwise result because he is actually innocent of capital murder or the death penalty. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d 640 (1991); Keeney, 504 U.S. at 11, 112 S.Ct. at 1721; Joubert v. Hopkins, 75 F.3d 1232, 1244 (8th Cir.1996); Nave v. Delo, 62 F.3d 1024, 1032 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996).

We need not address the miscarriage of justice exception in this case because Zeitvogel did not assert actual innocence in his habeas petition, see Charron v. Gammon, 69 F.3d 851, 857 n. 6 (8th Cir.1995), and did not develop an actual innocence argument in his appellate brief, see Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir.1994). Instead, Zeitvogel relies on the cause and prejudice exception to excuse his procedural default. The district court held this exception does not apply because Zeitvogel cannot show prejudice. In our view, Zeitvogel cannot show cause for his state court default; thus, we need not decide whether Zeitvogel suffered actual prejudice. Oxford v. Delo, 59 F.3d 741, 748 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1361, 134 L.Ed.2d 528 (1996); see also Auman v. United States, 67 F.3d 157, 161-62 (8th Cir.1995) (Court of Appeals can affirm on any ground supported by record).

To establish cause, Zeitvogel must show something beyond the control of postconviction counsel, like State interference, actually prevented postconviction counsel from raising the claims and presenting the evidence in state court. Coleman, 501 U.S. at 753, 111 S.Ct. at 2566-67. Zeitvogel argues the State's failure to produce the hospital and prison records requested by Zeitvogel's trial attorney prevented his postconviction attorney from obtaining a sufficient factual basis to raise the defaulted Brady and guilt-phase ineffective assistance claims, and from presenting the additional evidence supporting the penalty-phase ineffective assistance claim. The unproduced records are Fulton State Hospital psychiatric reports about Zeitvogel from 1975, Missouri State Penitentiary Hospital records discussing Zeitvogel's 1984 hospital stay, and a 1983 Missouri Department of Corrections re-classification analysis. Zeitvogel suggests postconviction counsel could not know the State failed to produce these documents because the documents were not uncovered until after the postconviction proceedings were finished, and postconviction counsel needed the documents to learn of Zeitvogel's mental deficiencies and to show that trial counsel should have presented evidence at the guilt and penalty phases based on the deficiencies.

The State's failure to produce the records does not excuse Zeitvogel's procedural default. Lack of production by state officials is not cause excusing procedural default if the information the officials failed to produce is reasonably available through other means. Barnes v. Thompson, 58 F.3d 971, 975 (4th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 435, 133 L.Ed.2d 350 (1995). When a petitioner can obtain the information contained in unproduced documents through a reasonable and diligent investigation, the State's failure to produce documents is not cause. Id.; see McCleskey v. Zant, 499 U.S. 467, 497-98, 111 S.Ct. 1454, 1471-73, 113 L.Ed.2d 517 (1991). Here, postconviction counsel knew the records existed and the information contained in them was either known or reasonably available through means other than State production.

Postconviction counsel knew the State had hospital and prison records about Zeitvogel. A psychiatrist who examined Zeitvogel before the postconviction hearing, Dr. A.E. Daniel, told postconviction counsel that Fulton State Hospital and the Missouri State Penitentiary Hospital had medical records about Zeitvogel from the 1970s and 1980s, and counsel acknowledges in his affidavit that he believed the state hospitals had all Zeitvogel's psychiatric records. The re-classification analysis is just a standard prison record from Zeitvogel's prison file, and it is common knowledge that prisons routinely keep records about inmates. Shaw v. Delo, 971 F.2d 181, 184 (8th Cir.1992), cert. denied, 507 U.S. 927 , 113 S.Ct. 1301, 122 L.Ed.2d 690 (1993). Postconviction counsel also knew much of the information about Zeitvogel's mental deficiencies and general history contained in the unproduced records because Zeitvogel's mother told postconviction counsel about Zeitvogel's epilepsy, brain damage, and learning disabilities before the postconviction hearing. See Barnes, 58 F.3d at 975.

Postconviction counsel could have obtained the state hospital and prison records if he had acted reasonably and diligently, but he made no effort to obtain them. Rather than requesting the records from the hospitals or Zeitvogel's prison file, postconviction counsel sent the Missouri Department of Corrections a vague letter asking for "the psychiatric report from [Zeitvogel's] evaluation at the Missouri State Penitentiary." In response to counsel's letter, the State sent counsel one document, an updated psychiatric evaluation of Zeitvogel, conducted to give a current assessment of Zeitvogel's condition. Postconviction counsel should have immediately realized the updated evaluation was not one of the state hospital records Dr. Daniel had mentioned, because it was dated after counsel's letter requesting Zeitvogel's records. Further, the updated evaluation confirmed counsel's belief that the State had other relevant records, because the evaluation referred to reports from earlier examinations of Zeitvogel. The State did not tell counsel it had no other records on Zeitvogel, but sent the current evaluation with a cover letter stating, "We hope this information will suffice." Postconviction counsel took no steps to obtain more records. Zeitvogel's appointed habeas counsel made the effort and obtained them "pretty easily" by filing a simple application for an order authorizing counsel's access to the records.

If postconviction counsel had acted reasonably and diligently, he could have raised the Brady and guilt-phase ineffective assistance claims, developed and presented the evidence contained in the unproduced records and expert testimony based on them, and called family members and others acquainted with Zeitvogel in the state postconviction hearing. In anticipation of the hearing, postconviction counsel had Zeitvogel examined by Dr. Daniel. Although Dr. Daniel decided Zeitvogel did not have any mental impairment affecting his criminal behavior, Dr. Daniel's opinion letter also stated Zeitvogel's history suggested epilepsy and if counsel could confirm Zeitvogel was epileptic, a neurological examination might be helpful. Postconviction counsel knew from Zeitvogel's mother that Zeitvogel had epilepsy, but did not consult a neurologist. Postconviction counsel could have obtained the unproduced records mentioned by Dr. Daniel several months before the postconviction hearing and asked the doctor to re-evaluate Zeitvogel, or could have developed other expert testimony about the significance of the evidence in the records. Instead, postconviction counsel told the court Dr. Daniel's opinion was not helpful because the doctor said Zeitvogel's epilepsy had no effect on Zeitvogel's criminal conduct. Rather than presenting expert testimony about Zeitvogel's mental health, the postconviction attorney agreed with the State prosecutor's assessment that Zeitvogel had no psychiatric defects at the time of trial.

In our view, the blame for Zeitvogel's procedural default falls squarely on Zeitvogel's postconviction counsel rather than the State. At the time of the postconviction hearing, postconviction counsel either had or reasonably could have had a sufficient factual basis to assert the defaulted Brady and guilt-phase ineffective assistance claims, and could have presented the additional evidence supporting the penalty-phase ineffective assistance claim. See McCleskey, 499 U.S. at 498, 111 S.Ct. at 1472-73; Barnes, 58 F.3d at 975. Postconviction counsel knew about the records the State failed to produce, knew much of information they contained, and could have obtained the records if had he acted reasonably and diligently. Had counsel obtained the records, he could have developed any necessary expert testimony at the postconviction hearing. Indeed, in their habeas pleadings, Zeitvogel's habeas counsel recognize postconviction counsel knew of Zeitvogel's mental deficiencies but failed to investigate and present them at the postconviction hearing. It is well-established that the ineffectiveness of state postconviction counsel cannot excuse procedural default. Sidebottom v. Delo, 46 F.3d 744, 751 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 144, 133 L.Ed.2d 90 (1995). Postconviction counsel himself admits that after he interviewed Zeitvogel and Zeitvogel's mother, he realized "a reasonably competent [trial] defense ... would [have] involve[d] investigation of [Zeitvogel's epilepsy and related deficiencies]." Nevertheless, postconviction counsel did not raise or fully develop the supporting facts for the now-defaulted ineffective assistance claims based on trial counsel's failures during the guilt and penalty phases. We thus conclude the State's failure to produce the hospital and prison records is not cause for Zeitvogel's procedural default.

Besides the State's failure to produce records, Zeitvogel contends the State's issuance of execution warrants during his postconviction proceedings is cause for his default. Postconviction counsel obtained several stays of execution for Zeitvogel. Each time the Missouri Supreme Court granted a stay, the court postponed Zeitvogel's execution for about thirty days and issued a new warrant for his execution, as the court commonly does in death penalty cases. Issuance of the warrants furthered the court's legitimate interest in ensuring Zeitvogel's postconviction proceeding was moving forward and was not being used solely as a delay tactic. Nevertheless, Zeitvogel contends the warrants interfered with his ability to investigate and present claims at the postconviction hearing, because postconviction counsel was forced to spend a great deal of his time on obtaining stays. Zeitvogel has failed to show the warrants prevented him from raising and presenting any claim in the postconviction proceedings, however. LaRette, 44 F.3d at 687.

The record does not support Zeitvogel's assertion that his postconviction counsel was too busy handling execution warrants to discover and raise the defaulted claims or develop the additional evidence. It is relatively easy to move for a stay in Missouri. Zeitvogel's postconviction counsel merely had to obtain a certificate from the postconviction court stating additional time was needed to prepare the case, and then present the certificate to the Missouri Supreme Court, which routinely granted Zeitvogel's motions for stays. In his brief, Zeitvogel describes two occasions when his counsel had difficulty tracking down a judge to sign the necessary certificate, but the record shows counsel brought the close calls on himself by dashing to the courthouse at the last minute. Postconviction counsel states in his affidavit, without providing any specifics, that his heavy workload made moving for stays especially burdensome. Even if postconviction counsel had limited time to spend on Zeitvogel's case, Zeitvogel's mother, Dr. Daniel, and the State gave postconviction counsel ample information about potential claims and available evidence, but postconviction counsel failed to follow through on the information handed to him on a silver platter.

Zeitvogel's efforts to blame his procedural default on the State fail as a matter of law. Thus, the district court properly refused to conduct an evidentiary hearing on the issue of cause, Oxford, 59 F.3d at 748, and on Zeitvogel's defaulted Brady claim and his defaulted guilt-phase ineffective assistance claim, Pollard v. Delo, 28 F.3d 887, 888-89 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 518, 130 L.Ed.2d 423 (1994). For the same reason, Zeitvogel is not entitled to a federal hearing to supplement the postconviction court's record on his penalty-phase ineffective assistance claim. Battle, 64 F.3d at 354-55; Sidebottom, 46 F.3d at 750-51. Given that the district court properly refused to conduct an evidentiary hearing, we reject Zeitvogel's contention that the district court should have appointed experts and investigators to help Zeitvogel present his claims.

Because Zeitvogel's contentions are aimed at obtaining a federal hearing and supplementing the record from his state postconviction hearing, we do not believe Zeitvogel has asked us to review his penalty-phase ineffective assistance claim based solely on the limited evidence Zeitvogel raised during the state postconviction hearing. Instead, Zeitvogel argues we should consider evidence outside the state postconviction record, and we have held we cannot. Even if Zeitvogel had asked us to review his penalty-phase ineffective assistance claim based only on the state postconviction record, we would reject the claim because the state postconviction record does not show Zeitvogel was prejudiced by trial counsel's failure to inform the jury about Zeitvogel's mental deficiencies. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). At the postconviction hearing, Zeitvogel's mother testified about Zeitvogel's mental deficiencies. Zeitvogel, 760 S.W.2d at 471. Contrary to Zeitvogel's contention, the state court that conducted the postconviction hearing and the Missouri Court of Appeals recognized that evidence about a defendant's mental deficiencies may be mitigating. See id. In Zeitvogel's case, however, "[t]he mitigating value of the evidence ... [was] speculative at best. Evidence presented at the [postconviction] hearing indicated [Zeitvogel's] epilepsy could have no effect on his criminal behavior. No evidence was presented at the hearing to explain how his learning disabilities or brain damage could have affected his criminal behavior. [Zeitvogel] failed to establish how any of this evidence could have influenced the decision of the jury." Id. Moreover, any mitigating force the evidence had was outweighed by damaging testimony that Zeitvogel "exhibited rebellious and anti-social behavior in his childhood." See id. In sum, considering only the evidence in the postconviction record, we would deny the penalty-phase ineffective assistance claim, and as we have already stated, any deficiencies in the postconviction record rest with Zeitvogel's postconviction counsel, ante at 280-81.

Having disposed of the main thrust of Zeitvogel's appeal, we turn to his remaining contentions. At trial, Zeitvogel's counsel presented the testimony of inmates Chester Bettis and Charles Stevenson to support Zeitvogel's claim that he killed Dew in self-defense. Bettis and Stevenson testified Dew and Zeitvogel were fighting in their cell on the day of Dew's murder and Dew threatened to kill Zeitvogel. Zeitvogel now argues his trial counsel was ineffective for not calling several additional inmates to testify in support of Zeitvogel's self-defense claim. Zeitvogel raised this ineffective assistance claim during his state postconviction proceedings, but postconviction counsel did not call the additional inmates as witnesses.

To show counsel was ineffective, Zeitvogel must show his attorney's actions prejudiced him, that is, a reasonable probability that the jury would have reached a different verdict had it heard the additional testimony. Foster v. Delo, 39 F.3d 873, 877 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1719, 131 L.Ed.2d 578 (1995). We have reviewed the trial attorney's testimony at the postconviction hearing and agree with the postconviction court that the additional inmates could have done little more than rehash the testimony given by Bettis and Stevenson. See Zeitvogel, 760 S.W.2d at 468, 470. Zeitvogel argues the inmates who did not testify could have strengthened his self-defense claim by testifying Dew had a motive to attack Zeitvogel: Dew believed Zeitvogel had informed prison authorities about Dew's attack on another inmate in the prison chapel, and Dew wanted to get back at Zeitvogel for snitching on him. We will not consider this factual argument, however, because it was not presented to the state court. Flieger v. Delo, 16 F.3d 878, 884-85 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 355, 130 L.Ed.2d 309 (1994). During the postconviction hearing, Zeitvogel's postconviction counsel did not present any evidence about Dew's motive to attack Zeitvogel, the chapel incident, or any testimony from the inmates about revenge. Indeed, the prisoners' affidavits discussing Dew's motive are dated nearly seven years after the state postconviction hearing. We conclude Zeitvogel has not shown his trial counsel's failure to call the additional witnesses prejudiced him. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Foster, 39 F.3d at 877.

Zeitvogel next contends the trial court violated due process by requiring Zeitvogel to remain shackled while in the courtroom. Although Zeitvogel has complained of the shackling in other ways, Zeitvogel did not raise this due process argument in the state or district court, so we need not consider it. Jones v. Caspari, 975 F.2d 460, 461 (8th Cir.), cert. denied, 506 U.S. 924 , 113 S.Ct. 345, 121 L.Ed.2d 261 (1992). The argument is meritless, anyway. The trial court acted well within its discretion in deciding restraints were necessary to prevent Zeitvogel from escaping and to protect others in the courtroom. At the time of trial, Zeitvogel had murder, rape, and assault convictions and had escaped from state custody once before. See Gilmore v. Armontrout, 861 F.2d 1061, 1071 (8th Cir.1988), cert. denied, 490 U.S. 1114 , 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989). Further, the trial court's decision to require restraints did not prejudice Zeitvogel. Even without seeing the shackles, the jury would have learned from the trial evidence that Zeitvogel was an inmate. See Estelle v. Williams, 425 U.S. 501, 507, 96 S.Ct. 1691, 1694-95, 48 L.Ed.2d 126 (1976). After all, Zeitvogel killed Dew in the maximum security area of the Missouri State Penitentiary. Because the trial court's ruling requiring restraints was clearly proper, we reject Zeitvogel's contention that trial counsel was ineffective for not objecting to the ruling. This ineffective assistance claim is procedurally barred as well because Zeitvogel abandoned the claim during his state court appeal from the denial of postconviction relief. Nave, 62 F.3d at 1030.

Zeitvogel next challenges the penalty-phase jury instructions. Jury instruction eighteen stated Zeitvogel would not be eligible for the death penalty unless the jury found the existence of at least one of three aggravating circumstances, including that Zeitvogel had a substantial history of serious assaultive convictions, and that at the time of Dew's murder, Zeitvogel had an earlier capital murder conviction. Zeitvogel contends this instruction improperly listed these two separate aggravating circumstances when only one was authorized by the controlling Missouri statute, Mo.Rev.Stat. § 565.012.2 (Supp.1983). See Zeitvogel, 707 S.W.2d at 368. During Zeitvogel's direct appeal, however, the Missouri Supreme Court held all the aggravating circumstances were properly given under Missouri law. Id. We defer to the Missouri Supreme Court's interpretation of its state law. Baker v. Leapley, 965 F.2d 657, 659 (8th Cir.1992).

Instructions eighteen and nineteen both mention Zeitvogel's earlier murder conviction, and Zeitvogel argues this "duplication" violates the Eighth Amendment. We disagree. Instruction eighteen narrowed the class of capital murderers eligible for the death penalty. See Zant v. Stephens, 462 U.S. 862, 878, 103 S.Ct. 2733, 2743, 77 L.Ed.2d 235 (1983). Instruction nineteen instructed the jury to consider all the evidence in deciding whether Zeitvogel should actually receive the death penalty. The jury was entitled to consider Zeitvogel's criminal record in making its sentencing determination. Id. at 888, 103 S.Ct. at 2748-49.

Because instructions eighteen and nineteen were proper, Zeitvogel's trial counsel was not ineffective for failing to object to them. Further, Zeitvogel never raised this ineffective assistance issue in the Missouri courts. Habeas relief is not warranted in any event because the alleged error did not infect the entire trial and render it fundamentally unfair, nor was the alleged error a fundamental defect resulting in a complete miscarriage of justice. Baker, 965 F.2d at 659; Kennedy v. Delo, 959 F.2d 112, 118 (8th Cir.), cert. denied, 506 U.S. 857 , 113 S.Ct. 168, 121 L.Ed.2d 116 (1992).

Finally, Zeitvogel contends the Missouri Supreme Court did not adequately review his sentence to ensure its proportionality to sentences imposed on defendants in similar cases, in violation of the Eighth and Fourteenth Amendments. The Missouri Supreme Court reviewed Zeitvogel's sentence during his direct appeal, however, and addressed and decided the proportionality issue in its opinion. Zeitvogel, 707 S.W.2d at 370-71. Under our recent decisions, this is the end of our inquiry. See LaRette, 44 F.3d at 688; Foster, 39 F.3d at 882; Murray v. Delo, 34 F.3d 1367, 1376-77 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2567, 132 L.Ed.2d 819 (1995).

In conclusion, Zeitvogel's contentions fail. Because Zeitvogel cannot show cause for his procedural default, Zeitvogel is not entitled to a federal evidentiary hearing on his main claims. Zeitvogel's remaining contentions are procedurally barred or meritless. We thus affirm the district court's denial of Zeitvogel's habeas petition.


103 F.3d 54

Richard Zeitvogel, Petitioner,
Michael Bowersox, Respondent.

Docket number: 96-8164

Federal Circuits, 8th Cir.

December 9, 1996

Before FAGG and BOWMAN, Circuit Judges, and HENLEY, Senior Circuit Judge.


FAGG, Circuit Judge.

Richard Zeitvogel, a Missouri inmate sentenced to death for killing his cellmate, Gary Dew, has applied to us for an order authorizing the district court to consider a second habeas petition. See Antiterrorism and Effective Death Penalty Act of 1996, § 106(b), Pub.L. No. 104-132, 110 Stat. 1217 (1996) (to be codified at 28 U.S.C. 2244(b)). We deny Zeitvogel's motion, under both the Act and pre-Act law.

Using a new conflict of interest label to reassert an old ineffective assistance of trial counsel claim, Zeitvogel seeks a second habeas action. Zeitvogel wants to pursue a Sixth Amendment claim that his trial attorney's assistance was ineffective because the attorney knew of prison investigative files and a county offense report showing Zeitvogel identified Dew in an attack on another inmate in the prison chapel, but the attorney did not introduce the documents at trial. According to Zeitvogel, this evidence would have strengthened his self-defense claim by showing Dew had a motive to kill him. Zeitvogel contends the attorney did not introduce the documents because the attorney had a conflict of interest, namely, before Dew's death the attorney had represented Dew on assault charges arising from the attack in the prison chapel, and had supposedly shown Dew the documents naming Zeitvogel as an informant.

In our view, Zeitvogel's motion raises nothing new. Zeitvogel's assertion that his self-defense claim could have been strengthened by evidence of Dew's motive to attack Zeitvogel has been raised and rejected before. In his first habeas petition, Zeitvogel argued his trial attorney was ineffective for not calling certain inmates to testify that Dew believed Zeitvogel had informed prison authorities about Dew's attack in the chapel, and Dew wanted revenge. See Zeitvogel v. Delo, 84 F.3d 276, 282 (8th Cir.1996). At Zeitvogel's trial, however, other inmates had testified that Dew had threatened to kill Zeitvogel and the two men had quarreled on the day of Dew's death. See id. Like the state postconviction court, where Zeitvogel raised his ineffective assistance claim without presenting any evidence about the chapel incident, we concluded the testimony of the additional inmates was "little more than [a] rehash of the testimony given by [the inmates who testified at Zeitvogel's trial]." Id. In addition, the physical evidence did not support Zeitvogel's claim that he strangled Dew with a sheet in self-defense during a struggle, but instead showed Zeitvogel strangled Dew from behind with a wire, then waited for three hours before summoning help. See id. at 278. Thus, we held Zeitvogel had not shown trial counsel's failure to call the additional witnesses prejudiced him. See id. at 283.

As we see it, the documents Zeitvogel now wants presented have less persuasive force than the self-defense evidence presented by Zeitvogel's attorney during trial. The documents showed only that Zeitvogel stated an inmate called "Crazy" (Dew's "yard name") was involved in the chapel assault, and Zeitvogel could not identify him. Rather than presenting this somewhat peripheral evidence of Dew's motive, the attorney presented the more concrete self-defense evidence that Dew actually threatened to kill Zeitvogel. See id. at 282. Although this threat gave the jury a clear understanding of Dew's intent, the jury rejected Zeitvogel's claim of self-defense. The attenuated evidence of motive in the documents does not come close to establishing Zeitvogel's actual innocence of Dew's murder. See Schlup v. Delo, 513 U.S. 298, ----, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995). Zeitvogel also cannot show prejudice from his attorney's failure to present the tenuous evidence at trial. Thus, the merits of Zeitvogel's successive claim cannot be considered. See Zeitvogel, 84 F.3d at 279 (stating pre-Act exceptions of cause and prejudice, and actual innocence); Felker v. Turpin, 83 F.3d 1303, 1307 (11th Cir.1996) (same); 28 U.S.C. 2244(b)(3) (as amended).

In an effort to disguise his successive ineffective assistance claim, Zeitvogel alleges a conflict of interest is the reason why the attorney did not introduce the documents. This allegation is a red herring. Even if the attorney had told Dew that Zeitvogel had implicated Dew in the chapel assault, Dew was dead and the attorney simply chose not to use the motive evidence in Zeitvogel's trial. This choice is a question of trial strategy and effective representation, not of conflicting interest. There was no conflict, and Zeitvogel's suggestion that the attorney did not present the evidence because of his former representation of Dew is no more than unfounded speculation.

In sum, Zeitvogel is not entitled to have his claims heard in a second habeas action. Zeitvogel cannot satisfy the Act's requirements in 28 U.S.C. 2244(b). Zeitvogel also loses under pre-Act exceptions. Further, Zeitvogel did not assert actual innocence in his first habeas petition or develop an actual innocence argument in his first habeas brief to this court, see 84 F.3d at 279, even though first habeas counsel asserted in their 1994 brief that Dew had learned from his attorney that Zeitvogel cooperated in the assault investigation and identified Dew as an assailant, see Brief for Appellant at 51-52, Zeitvogel v. Delo, 84 F.3d 276 (8th Cir.1996) (No. 94-2976). Having rejected Zeitvogel's claim under pre-Act law, we need not consider his constitutional challenge to the new standard in § 2244(b), as amended. Besides, the challenge was rejected in Felker v. Turpin, --- U.S. ----, ---- - ----, 116 S.Ct. 2333, 2339-40, 135 L.Ed.2d 827 (1996) (judgments about scope of habeas writ are normally for Congress; new restrictions on second habeas petitions do not amount to suppression of writ).

We thus deny Zeitvogel's motion for an order authorizing the district court to consider his second habeas petition. We also deny Zeitvogel's motion for a stay of execution because there are not substantial grounds on which relief might be granted. Delo v. Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325 (1990) (per curiam). Last, we deny the motion for appointment of second habeas counsel as moot.


103 F.3d 56

Richard Zeitvogel, Petitioner,
Michael Bowersox, Respondent.

Docket number: 96-4133

Federal Circuits, 8th Cir.

December 10, 1996

Before FAGG and BOWMAN, Circuit Judges, and HENLEY, Senior Circuit Judge.



Richard Zeitvogel, a Missouri death-row inmate, has applied for a certificate of appealability from the district court's denial of his Fed.R.Civ.P. 60(b) motion for relief from the earlier denial of his first amended habeas petition. Having carefully reviewed the matter, we conclude the district court properly denied Zeitvogel's motion. Zeitvogel based his Rule 60(b) motion on the same grounds that we already rejected in denying Zeitvogel's motion for leave to file a second habeas petition. Zeitvogel v. Bowersox, 103 F.3d 54 (8th Cir.1996). We thus deny Zeitvogel's application for a certificate of appealability, and his accompanying motion for a stay of execution.



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