                                  _____________

                                  No. 95-2918EM
                                  _____________

Andrew W. Six,                          *
                                        *
                   Appellant,           *
                                        *   Appeal from the United States
     v.                                 *   District Court for the Eastern
                                        *   District of Missouri.
Paul K. Delo,                           *
                                        *
                   Appellee.            *
                                  _____________

                         Submitted:     April 8, 1996

                               Filed: August 27, 1996
                                   _____________

Before McMILLIAN and FAGG, Circuit Judges, and BURNS,* District
      Judge.
                              _____________


FAGG, Circuit Judge.


     On April 10, 1987, Andrew W. Six and his uncle, Donald Petary,
terrorized a family in Ottumwa, Iowa.      Six and Petary went to the home of
Don and Stella Allen and their daughters, Christine, who was seventeen, and
Kathy, who was twelve.    Both girls were special education students.     Six
and Petary said they were interested in purchasing the family's truck,
which the family was selling to finance Don's open heart surgery.      Stella
agreed to accompany Six and Petary on a test drive.       Six drove the truck
onto a gravel road and stopped.     While Six held Stella, Petary wrapped duct
tape around her hands.   They then returned to the Allen home, where Don was
waiting outside.    Holding butcher knives to the Allens' throats, Six and
Petary forced the couple back inside their home.




     *The HONORABLE JAMES M. BURNS, United States
     District Judge for the District of Oregon, sitting
     by designation.
Six taped Don's hands and mouth, and took wallets from Stella and Don.
Petary fondled Kathy, and Six raped Christine, who was obviously pregnant.
At Six's direction, Petary took Kathy and Christine outside and put them
inside his car.      Six tried to force Stella and Don into the truck at
knifepoint, but Don started to run away.        Six then slashed Stella's throat,
inflicting serious injuries, and she fell to the ground.                 Seeing her
father's flight, Christine escaped from the car, but Kathy, who was trapped
next to Petary, could not.      After Six jumped into the car, Six and Petary
sped off with Kathy, heading south.         Three days later, Kathy Allen's body
was found in a ditch in Missouri.     She had bled to death there after being
stabbed in the neck.


     At Six's state trial for Kathy's murder, Don, Stella, and Christine
Allen testified about the actions of Six and Petary on the evening Kathy
was kidnapped.      Stella testified Six had slit her throat and Christine
testified Six had raped her.        Six did not testify during the guilt or
penalty   phases,   but   his   attorneys    suggested   Six   was   under    Petary's
influence and Petary had killed Kathy.          During the penalty phase, seven
members of Six's family testified Six is a good person.                Six's mother
testified Petary had abused both his own children and Six as a child.              The
jury found Six guilty of first-degree murder, but could not decide whether
Six should be sentenced to death or life imprisonment.


     The court then undertook Six's sentencing under Mo. Rev. Stat.
§ 565.030.4 (1986) and found beyond a reasonable doubt the existence of
three statutory aggravating circumstances:          Six murdered Kathy Allen to
avoid arrest, her murder was committed during a kidnapping, and she was
killed because of her status as a potential witness in her kidnapping.             See
id. § 565.032.2(10)-(12).        As an additional, nonstatutory aggravating
circumstance, the court found Six had raped Christine Allen.                 The court
also found the following mitigating circumstances existed: Six had no
significant criminal history, see id. § 565.032.3(1); he confessed to law




                                       -2-
enforcement officers; he was a good son, brother, and family member; and
he   had   been   abused   as   a   child.        The   court    decided    the   mitigating
circumstances did not outweigh the aggravating circumstances, and the
aggravating circumstances were sufficient to warrant imposition of the
death penalty.


      Six appealed his conviction and sentence, and the denial of his
motion for postconviction relief under Missouri Supreme Court Rule 29.15.
The Missouri Supreme Court consolidated Six's appeals and affirmed.                    State
v. Six, 805 S.W.2d 159, 173 (Mo.) (en banc), cert. denied, 502 U.S. 871
(1991).     Six filed a motion to recall the mandate and a state habeas
petition under Missouri Supreme Court Rule 91, and the Missouri Supreme
Court summarily denied the motions.               Six then filed this federal habeas
petition and the district court denied relief.                  Six v. Delo, 885 F. Supp.
1265, 1286 (E.D. Mo. 1995).         Six appeals.          We affirm.


                                             I.


      Six contends he was denied effective assistance of counsel at his
trial's penalty phase.      To succeed on an ineffective assistance claim, Six
must show his attorneys' performance was deficient and the deficient
performance prejudiced him.          Sidebottom v. Delo, 46 F.3d 744, 752 (8th
Cir.), cert. denied, 116 S. Ct. 144 (1995).


      Six first challenges his trial attorneys' failure to obtain a
neuropsychological     evaluation      of    Six    and    to    present    the   results   as
mitigating evidence during the penalty phase.                      This failure was not
constitutionally deficient because Six's trial attorneys conducted a
reasonable investigation of Six's mental status.                     Id.      The attorneys
reviewed psychiatric evaluations that had been prepared for Six's earlier
federal trial for Kathy's kidnapping.              The federal evaluations suggested
Six was under duress and had below average intelligence.                   The attorneys had
a psychiatrist, Dr. A.E. Daniel, perform a thorough examination of Six.
Dr. Daniel




                                             -3-
conducted a psychiatric interview of Six for about three hours and reviewed
documents provided by Six's attorneys, including a synopsis of the case and
another doctor's evaluation.        Dr. Daniel evaluated both Six's competency
to stand trial and his mental status at the time of the offense.                        Dr.
Daniel's report stated Six had a history of a disorganized childhood,
hyperactivity, deafness, and depression.            The report concluded Six suffered
from drug and alcohol abuse and had a personality disorder with antisocial
features.     In Dr. Daniel's view, Six was competent to stand trial, was
using alcohol and drugs at the time of the offense, and was under duress
because of Petary's influence.


      According to Six, Dr. Daniel's report alerted Six's attorneys to the
need for a full neuropsychological evaluation like the one Dr. Richard
Wetzel conducted after the trial.        Dr. Wetzel concluded Six had mild brain
dysfunction    that    hampered    his   ability     to   control    his   attention    and
behavior, and controlled substance abuse could worsen this dysfunction.
In Dr. Wetzel's opinion, if Six had been using drugs or alcohol heavily for
at least a week before the offense, Six had moderate neuropsychological
dysfunction    when    he   committed    the    crime.      Dr.     Wetzel   stated    this
dysfunction could have affected Six's ability to premeditate.


      Counsel's decision not to further investigate Six's mental status was
not constitutionally deficient because the decision was reasonable from
counsel's perspective when the decision was made.                 Id. at 753-54; O'Neal
v. Delo, 44 F.3d 655, 660 (8th Cir.), cert. denied, 116 S. Ct. 129 (1995).
Dr. Daniel's report did not recommend any further examination and we cannot
say   his   findings   would   suggest    to    a   competent     lawyer     that   further
evaluation was necessary.         See Sidebottom, 46 F.3d at 753-54; O'Neal, 44
F.3d at 660.     Further, during the state postconviction hearing, one of
Six's attorneys testified Six's behavior and statements gave counsel no
reason to question Six's mental faculties.                See O'Neal, 44 F.3d at 660.
In deciding not to seek further examination, Six's




                                          -4-
attorneys reasonably relied on Dr. Daniel's report and the lack of any
behavior by Six indicating an abnormal mental state.     Sidebottom, 46 F.3d
at 753-54; O'Neal, 44 F.3d at 660.         In sum, the attorneys' failure to
obtain a neuropsychological evaluation was not deficient performance.
Sidebottom, 46 F.3d at   753-54; O'Neal, 44 F.3d at 660.    Thus, we need not
decide whether Six was prejudiced.     O'Neal, 44 F.3d at 660 n.6.


     Six next attacks his trial attorneys' failure to present other
mitigating evidence during the penalty phase.     Six contends his attorneys
should have presented evidence that he was treated for hyperactivity
beginning in preschool, was a neglected child who grew up in a seriously
dysfunctional home monitored by social services agencies, and had a hearing
loss that was untreated for three years in elementary school.


     Six's trial attorneys learned of this additional mitigating evidence
during the investigation, but decided the evidence was not significant
enough to be helpful.    Although the additional evidence would have been
relevant during the penalty phase and had some mitigating value, Schneider
v. Delo, 85 F.3d 335, 340 (8th Cir. 1996), counsel's decision not to
present the evidence was reasonable.       Sloan v. Delo, 54 F.3d 1371, 1384
(8th Cir. 1995) (reviewing the reasonableness of counsel's belief de novo),
cert. denied, 116 S. Ct. 728 (1996).    Counsel testified his penalty-phase
strategy was to show Six was a human being whom others cared about, and to
present evidence of Six's positive character traits.       Counsel decided not
to use Dr. Daniel as a witness to prevent the state from using testimony
from another psychiatrist to whom Six had made "quasi-confessions."       The
additional mitigating evidence could have been presented in other ways, but
counsel reasonably believed the evidence was not significant enough to
build sympathy for Six because of the horrible facts of the case.


     Even if counsel's decision not to present the evidence was




                                     -5-
unreasonable, we cannot say the additional evidence probably would have
made a difference at sentencing.      Schneider, 85 F.3d at 340-41 (defendant
not prejudiced by failure to present mitigating evidence of attention
deficit disorder, insomnia, and social history).       It was apparent Six had
a hearing problem because counsel had Six remove and adjust his hearing aid
during the trial.     Six's mother testified he had been abused as a child,
and the judge credited the testimony in finding the mitigating circumstance
that Six had been abused.        We do not believe the additional evidence of
neglect and hyperactivity would have changed the sentencing equation.


     Six     also   challenges   trial   counsel's   failure   to   request   jury
instructions on two statutory mitigating circumstances: Six acted under
extreme duress or the substantial domination of Petary, Mo. Rev. Stat.
§ 565.032.3(5), and Six was merely an accomplice and minor participant in
the murder, id. § 565.032.3(4).          Six failed to raise this ineffective
assistance claim in the state courts, so the claim is procedurally
defaulted.   Nave v. Delo, 62 F.3d 1024, 1030 (8th Cir. 1995), cert. denied,
116 S. Ct. 1837 (1996).       To excuse his default, Six contends Missouri
inconsistently applied Missouri Supreme Court Rule 29.15(b), which at the
time of Six's state proceedings, required defendants to raise ineffective
assistance claims within ninety days from the trial transcript's filing.
See Williams v. Lockhart, 873 F.2d 1129, 1131-32 (8th Cir.), cert. denied,
493 U.S. 942 (1989).      Six points out that in 1996 the Missouri Supreme
Court relaxed the time requirement in Rule 29.15(b).      Six cites no examples
of inconsistent application of the earlier ninety-day rule, however.          Thus,
the rule sufficiently bars habeas review.       See Williams, 873 F.2d at 1132.


                                          II.


     Six argues the Missouri death penalty scheme requires a jury to
decide a defendant's eligibility for death by finding the existence of at
least one statutory aggravating circumstance before




                                         -6-
a judge can impose a death sentence.   Six argues that because the jury was
not polled at his trial, we cannot tell whether the jury made the necessary
finding, and thus, the imposition of capital punishment by the court
instead of the jury violates his due process and equal protection rights.



     Assuming Six is correct about the Missouri statute, the facts do not
support Six's argument.     To deadlock on punishment, the jury must have
found at least one statutory aggravating circumstance existed.     Missouri's
death penalty statute provides the trier must direct a sentence of life
imprisonment if the trier does not find at least one statutory aggravating
circumstance.    Mo. Rev. Stat. § 565.030.4(1) (1986).   The jury must impose
a sentence of life imprisonment if the jury does not unanimously agree the
same aggravating circumstance exists.      State v. Griffin, 756 S.W.2d 475,
488 (Mo. 1988) (en banc), cert. denied, 490 U.S. 1113 (1989).    The jury was
instructed to this effect, see inst. no. 16, and we must assume the jury
followed the instruction.    Because the jury in this case did not impose a
life sentence, the jury must have unanimously found the existence of at
least one of the five submitted statutory aggravating circumstances, and
thus, the jury found Six was eligible for the death penalty.     Griffin, 756
S.W.2d at 488.     Contrary to Six's assertion, there is no "unauthorized
presumption of death eligibility" for defendants whose juries deadlock on
punishment, and thus, Six was not denied equal protection.


     Besides, the Missouri death penalty scheme permits the judge to find
the necessary aggravating circumstance when a jury cannot decide on
punishment.     Once the jury returned its verdict stating it was unable to
agree on punishment, the judge became the sentencer and it was the judge's
duty to find the facts and decide the sentence following the same procedure
in § 565.030.4(4) initially undertaken by the jury.      State v. Richardson,
923 S.W.2d 301, 323-24 (Mo. 1996) (en banc).     To the extent the judge may
have found aggravating circumstances the jury did not find, the Missouri




                                     -7-
death sentencing scheme permits it.    As Six recognizes, there is no state
or federal constitutional right to have a jury make the findings.      Moore
v. Clarke, 904 F.2d 1226, 1233 (8th Cir. 1990), cert. denied, 504 U.S. 930
(1992); Griffin, 756 S.W.2d at 487.     The procedure followed in this case
is permitted under the Missouri statute.    Thus, Six's due process rights
were not violated.   Griffin, 756 S.W.2d at 488.


     In another argument tied to Missouri's statute, Six contends trial
counsel was ineffective in failing to request a jury poll after the jury
returned the verdict form indicating the jury's inability to agree on
punishment.    Six argues we can consider this claim even though it is
procedurally defaulted because our failure to consider the claim would
result in a fundamental miscarriage of justice.    According to Six, the lack
of a jury poll means we cannot tell whether the jury found a statutory
aggravating circumstance existed, and thus, Six is not eligible for the
death penalty and is actually innocent of his death sentence.      See Nave,
62 F.3d at 1033; Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.), cert.
denied, 115 S. Ct. 518 (1994); Sawyer v. Whitley, 112 S. Ct. 2514, 2523 &
n.15 (1992).   As we just explained, however, the jury necessarily found Six
eligible for the death penalty, because to deadlock on punishment, the jury
must have found the existence of a statutory aggravating circumstance.
Griffin, 756 S.W.2d at 488 (jury need not submit aggravating circumstances
it has found to court in writing because jury deadlocked on punishment has
necessarily found at least one aggravating circumstance).      In any event,
the judge found the existence of three statutory aggravating circumstances
making Six eligible for the death penalty, and the Missouri statute permits
the judge to make the necessary findings when the jury deadlocks on
punishment.


                                    III.


     Six next contends the mitigating circumstance instruction




                                      -8-
required the jury to find statutory mitigating circumstances unanimously,
in violation of his Eighth Amendment rights.     Our earlier cases foreclose
this contention.     Griffin v. Delo, 33 F.3d 895, 905-06 (8th Cir. 1994),
cert. denied, 115 S. Ct. 1981 (1995); Murray v. Delo, 34 F.3d 1367, 1381
(8th Cir. 1994), cert. denied, 115 S. Ct. 2567 (1995); Parkus v. Delo, 33
F.3d 933, 941-42 (8th Cir. 1994).


                                      IV.


        Six next asserts his appellate attorney ineffectively represented him
by failing to raise arguments challenging three remarks by the prosecutor
during closing argument at the trial's penalty phase.         Although trial
counsel did not object to the comments, Six asserts appellate counsel
should have challenged the comments for the first time on appeal.         To
succeed on this ineffective assistance claim, Six must show "reasonable
professional performance [by appellate counsel] could not have omitted the
prosecutor's statements from review [for] plain error."     Pollard, 28 F.3d
at 889; see Sidebottom, 46 F.3d at 759.


        During his closing argument at the penalty phase, the prosecutor
said:
        You've watched [Six] during this week, ladies and gentlemen,
        what remorse has he shown for the death of Kathy Allen? What
        remorse has he shown for cutting the throat of Stella Allen?
        What remorse has he shown for raping [Christine Allen]? What
        remorse has he shown? And now . . . they have the guts to come
        here and to ask you for mercy. . . . And you've already decided
        . . . whether or not he's guilty of the death. Don't be misled
        about who actually wielded the knife blow.      I think we all
        know probably in our hearts who did it, but you've already
        determined criminal liability for that.          And don't be
        dissuaded, don't be dissuaded. What remorse has he shown? . .
        . . Let's talk now, folks, about courage and let's talk about
        cowardice. Because this man and his uncle are cowards . . . .
        And he sits before you today, a rapist, a killer, a thief and
        a coward--and a coward. An attorney speaks eloquently for him,
        but it doesn't




                                     -9-
        make him any less of a coward. . . . Have the courage, ladies
        and gentlemen, the courage of your convictions to send this
        message, that if you invade our homes and you rape our children
        and rob our families and you steal our babies from our bosoms
        and you take them and you kill them, that if you do those
        things . . . it will cost you your life.

        We are not convinced the prosecutor's comments were plain error.
Sidebottom, 46 F.3d at 759.         Six contends the prosecutor's remarks about
Six's failure to show remorse were comments on Six's failure to testify.
Unlike the situation in Miller v. Lockhart, 65 F.3d 676, 684 (8th Cir.
1995), the prosecutor here did not directly argue Six's failure to take the
stand and ask for mercy during the penalty phase showed Six did not care
about    what   he   had   done.    Instead,      the    comments   were   indirect.     A
prosecutor's indirect comments about a defendant's failure to testify
violate the Fifth Amendment privilege against self-incrimination if the
comments show the prosecutor intended to call attention to the defendant's
failure to testify, or if the jury would naturally take the comments as
highlighting the defendant's failure to testify.              Parkus, 33 F.3d at 940-
41; Pollard, 28 F.3d at 890.


        Because the comments about remorse were prefaced with a reference to
the   jury's    observance    of   Six   during    the    trial,    we   cannot   say   the
prosecutor's comments about remorse were intended as anything more than
remarks on Six's general demeanor in the courtroom, or that the jury would
view the comments as anything more.        See Gaskins v. McKellar, 916 F.2d 941,
951 (4th Cir. 1990) (prosecutor's comment that defendant had shown no
remorse was not improper comment on failure to testify), cert. denied, 500
U.S. 961 (1991).      Contrary to Six's selective quotation, the prosecutor's
isolated statement that Six's attorney spoke eloquently for Six was not
tied to the prosecutor's remarks about remorse, but was made in the context
of a later discussion about cowardice.


        We reject Six's assertion that the prosecutor suggested he had




                                          -10-
special knowledge about the offense by stating everyone knew in their
hearts which man had committed the murder.      See United States v. Lahey, 55
F.3d 1289, 1298-99 (7th Cir. 1995) (prosecutor's use of phrase "we know .
. ." did not suggest government knew of additional evidence).              The
prosecutor did not imply he possessed undisclosed information or express
his personal opinion.   Cf. Newlon v. Armontrout, 885 F.2d 1328, 1336 (8th
Cir. 1989) (prosecutor's statement of personal belief that defendant
deserved death penalty more than anyone else in ten years was improper),
cert. denied, 497 U.S. 1038 (1990).    Similarly, the prosecutor did not make
a personal appeal to the jury's parental responsibilities to protect their
children from crime, but was speaking figuratively about society as a whole
and was asking the jury to send a message that anyone who rapes, robs,
kidnaps, and kills children will be sentenced to death.      Cf. id. at 1336,
1342 (prosecutor's query, "If [the defendant] was going to harm your child,
would you kill him?" was improper personalized analogy to jurors' self-
defense of their own children).


     Even if the comments were improper, the remarks do not violate due
process unless the remarks fatally infected the entire penalty phase and
rendered it fundamentally unfair.   See Pollard, 28 F.3d at 890.     Here, the
prosecutor's remarks were not egregious or pervasive enough to render the
result of the penalty phase unreliable.       Parkus, 33 F.3d at 941; Pollard,
28 F.3d at 890-91.      Thus, appellate counsel was not constitutionally
ineffective for failing to make plain error arguments based on the
comments.   Pollard, 28 F.3d at 890.


                                       V.


     Six asserts his Fourteenth Amendment rights were violated because the
state court trial judge was biased.          Because Six failed to raise this
assertion in state court, the claim is procedurally defaulted.        Nave, 62
F.3d at 1030.   As cause for his default, Six




                                      -11-
asserts the judge failed to disclose facts providing a basis to doubt
impartiality.    Based on Six's examination of the state judge at the state
postconviction hearing, however, the district court found Six had some
knowledge of the bias claim's factual basis before the hearing, 885 F.
Supp.    at   1271,   so    Six   could   have    raised    the   claim   in   his   state
postconviction motion.        We agree with this assessment.         Even if Six could
show cause, he could not show prejudice because his bias claim lacks merit.
See id. at 1271-72.         Thus, Six is not entitled to an evidentiary hearing
to show cause and prejudice for the default.               Keeney v. Tamayo-Reyes, 504
U.S. 1, 11 (1992).


                                           VI.


        Six also contends his Fourteenth Amendment rights were violated
because the trial court did not submit instructions on second-degree felony
murder as a lesser-included offense of first-degree murder.                We disagree.
The   Constitution does not entitle a capital murder defendant to an
instruction on every lesser-included noncapital offense.              Schad v. Arizona,
501 U.S. 624, 627 (1991).         The court need only give the jury a supported
alternative     to    the   all-or-nothing       choice    of   capital   conviction    or
acquittal.     Id. at 647; Driscoll v. Delo, 71 F.3d 701, 714-15 (8th Cir.
1995), pet. for cert. filed, 64 U.S.L.W. 3765 (May 1, 1996) (No. 95-1779).
Here, the jury was instructed on conventional second-degree murder, which
the evidence supported.       See Schad, 501 U.S. at 648.         Because the jury was
given the option of convicting Six of a lesser-included offense with
support in the evidence, the failure to instruct the jury on second-degree
felony murder did not violate Six's Fourteenth Amendment rights.                Driscoll,
71 F.3d at 714-15.


                                          VII.


        Finally, Six contends his due process rights were violated because
the Missouri Supreme Court arbitrarily denied his state-




                                          -12-
given right to proportionality review of his death sentence.        Mo. Rev.
Stat. § 565.035 (1986).      Six explains that when the court reviewed Six's
sentence, the court database used for sentencing comparisons did not
include 189 cases in which life sentences were imposed.      Id. § 565.035.6
(directing Missouri Supreme Court to compile database of all cases in which
sentences imposed were death or life imprisonment without the possibility
of parole).    Six cites some of the omitted published cases and argues they
are more similar to Six's case than the four capital cases cited by the
Missouri Supreme Court in upholding Six's death sentence.


     We conclude Six was not arbitrarily denied his state-provided right
to proportionality review.    Williams v. Delo, 82 F.3d 781, 784-85 (8th Cir.
1996); see Foster v. Delo, 39 F.3d 873, 882 (8th Cir. 1994) (en banc),
cert. denied, 115 S. Ct. 1719 (1995).    The Missouri Supreme Court reviewed
Six's death sentence and concluded the sentence was "not excessive or
disproportionate to the penalties imposed in similar cases, considering the
crime, the strength of the evidence and the defendant."    State v. Six, 805
S.W.2d at 169; see Mo. Rev. Stat. § 565.035.3(3).      The Constitution does
not require us to look behind that conclusion to consider the manner in
which the court conducted its review or whether the court misinterpreted
the Missouri statute.   LaRette v. Delo, 44 F.3d 681, 688 (8th Cir.), cert.
denied, 116 S. Ct. 246 (1995); Williams, 82 F.3d at 785.


     We affirm the denial of Six's federal habeas petition.


     A true copy.


              Attest:


                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                     -13-
