                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                               Nos. 98-2175/2261
                                 ___________

Blair Justin Greiman,                 *
                                      *
            Appellee/Cross-Appellant, *
                                      *     Appeals from the United States
v.                                    *     District Court for the Northern
                                      *     District of Iowa.
John A. Thalacker, Warden,            *
                                      *
            Appellant/Cross-Appellee. *

                                  ___________


                            Submitted: March 8, 1999

                                 Filed: June 25, 1999
                                  ___________

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      SACHS,1 District Judge.
                              ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Blair Justin Greiman was convicted in Iowa state court for the kidnapping and
attempted murder of a young woman and he was sentenced to a term of life
imprisonment. Although Mr. Greiman was only sixteen years old at the time of these


      1
        The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri, sitting by designation.
crimes, the juvenile court waived jurisdiction and granted the state's motion to try
Mr. Greiman as an adult. At trial, Mr. Greiman's defense was that he was either
temporarily insane or lacked the capacity to form the relevant specific intent at the time
that he committed these acts.

       Mr. Greiman's conviction and sentence were upheld on appeal, see State v.
Greiman, 344 N.W.2d 249 (Iowa 1984), and his petition for state postconviction relief
was ultimately denied, see Greiman v. State, 471 N.W.2d 811 (Iowa 1991).
Mr. Greiman then petitioned for federal habeas relief under 28 U.S.C. § 2254, claiming
that he was denied the effective assistance of counsel at the waiver hearing in juvenile
court and at trial. The district court granted his petition with respect to the trial claim
and denied it with respect to the juvenile court claim. Both parties appeal. We reverse
in part and affirm in part.

                                          I.
       The state appeals the part of the district court's order granting habeas relief
because of alleged ineffective assistance of counsel at trial. We reverse with respect
to that issue.

       A claim for ineffective assistance of counsel can prevail only if a defendant
demonstrates both deficient performance on counsel's part and resulting prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's performance is
deficient only if it is shown that he or she "made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," id., and
prejudice is shown only where "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different," id. at
694.

      At trial, the state presented one expert witness, Dr. Romulo Lara, who testified
that Mr. Greiman was not insane and did not lack the capacity to form the relevant

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specific intent. Mr. Greiman countered with two psychological experts of his own,
who were then followed by a rebuttal witness for the state, Dr. Ron Larsen.
Mr. Greiman contends that Dr. Larsen was an improper rebuttal witness because the
defense was not notified of the state's intention to call him, and that defense counsel
therefore acted deficiently by failing to object to Dr. Larsen. Mr. Greiman maintains,
further, that his counsel's error prejudiced him because if counsel had objected to
Dr. Larsen's testifying, the testimony would have been excluded, thus weakening the
state's case sufficiently to create a reasonable probability that Mr. Greiman would have
been acquitted. But even if Mr. Greiman's counsel acted unreasonably, a matter that
we do not reach, and even if a proper objection would have led to the exclusion of
Dr. Larsen's testimony, a matter hardly free from doubt, we believe that no reasonable
probability exists that the outcome of the trial would have been different, because a
reasonable jury would not have believed Mr. Greiman's insanity and diminished
capacity defenses anyway.

        As the factual basis for his defenses, Mr. Greiman presented much evidence
about his home life: His mother and father were very demanding (always wanting him
to do his best) and often "emotionally unavailable," and his father was frequently out
of town. Mr. Greiman's doctors also said that his mother often struck him with a
horsewhip and that his father gave him conventional spankings. According to
Mr. Greiman's psychological experts, these stresses from his home environment
combined with concerns at school to create serious psychological problems for
Mr. Greiman. As evidence of these problems both experts cited Mr. Greiman's
growing preoccupation with ninja and other martial arts, weaponry, and wide open
spaces such as Wyoming and Montana. Both experts also testified that Mr. Greiman's
mental illness eventually created an irresistible impulse to act violently.

       On the day of the crime, Mr. Greiman cut school and went shopping. After
entering the K-Mart store where the victim worked and purchasing a music tape,
Mr. Greiman returned to his car, which was parked next to the victim's, and waited.

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When the victim walked to her car, she gave Mr. Greiman what all witnesses
recognized was probably no more than an "innocuous glance." Mr. Greiman, according
to his expert witnesses, saw it as much more: He allegedly projected his mother's
image onto his innocent victim's face, equating her glance with the disapproving look
that his mother often gave him after beatings. This innocent glance then supposedly
unleashed years of built-up aggression and hostility that Mr. Greiman was helpless to
stop.

        One of Mr. Greiman's psychological expert witnesses described this impulse as
a "psychotic break" caused by Mr. Greiman's borderline personality disorder, while the
other expert testified that, while he was committing his crime, Mr. Greiman suffered
from a mixed personality disorder, with paranoid and schizoid traits, and that this
disorder made it practically inevitable that Mr. Greiman would eventually fall victim
to an irresistible impulse to attack a woman (as a form of retaliation against his abusive
mother). After becoming enraged by the victim's glance, the story went, Mr. Greiman
forced her into his car, drove to his parents' home, tied and handcuffed the victim, and
raped her. He then forced her back into his car and drove to a secluded spot where he
stabbed her twice, dumped her into a ditch full of snow, and left her for dead.

       The explanations of Mr. Greiman's expert witnesses seem to us highly
conjectural and were not supported by any case studies or other evidence that tended
to establish their scientific reliability. We therefore do not hesitate to conclude that a
jury of reasonable people would have rejected these explanations, even in the absence
of Dr. Larsen's testimony. For one thing, Mr. Greiman's insanity defense was at best
barely submissible under Iowa law. The rule in Iowa with respect to insanity is the
M'Naghten Rule, according to which no person can be convicted of a crime if he or she
suffers from a diseased mind that renders him or her incapable of knowing the nature
and quality of the act that he or she is committing, or of distinguishing between right
and wrong in relation to that act. See Iowa Code Ann. § 701.4; see also, e.g., State v.


                                           -4-
Craney, 347 N.W.2d 668, 679 (Iowa 1984), cert. denied, 469 U.S. 884 (1984), and
State v. Hamann, 285 N.W.2d 180, 182 (Iowa 1979) (en banc).

        An irresistible impulse to act is not a defense by itself to a criminal charge in the
state of Iowa. Craney, 347 N.W.2d at 680; see also Hamann, 285 N.W.2d at 185.
Mr. Greiman's insanity defense could have been successful only if the irresistible
impulse was caused by a mental illness that destroyed his ability either to distinguish
right from wrong or to recognize the nature and quality of his actions. Although both
of Mr. Greiman's psychological expert witnesses testified that he had suffered from an
irresistible impulse due to mental illness, both admitted that he could distinguish right
from wrong and that his ability to recognize the nature and quality of his actions was
merely "diminished" or "limited." There was therefore no evidence that Mr. Greiman
was incapable of recognizing the nature and quality of his actions.

       Mr. Greiman's diminished capacity defense was similarly weak. The testimony
in the case, which demonstrated a significant degree of planning and premeditation,
furnished much evidence that Mr. Greiman formed a specific intent to commit the
crimes charged. Mr. Greiman parked beside the victim's car and sat in wait. When she
appeared, he pulled out a gun that was readily available and had been purchased the
previous day. He drove her to his parents' home, knowing that no one was there, and
quickly gathered up handcuffs, rope, and another firearm. After tying the victim to the
bed and raping her, he drove her to a secluded spot, stabbed her, and left her for dead.
The only evidence Mr. Greiman offered to negate this evidence of intent consisted of
the same speculative and unsubstantiated explanations given by his experts with respect
to his insanity defense. We conclude, therefore, that a reasonable jury would have
rejected Mr. Greiman's diminished capacity defense, and would have found him guilty
of the crimes charged, even if Dr. Larsen had not been allowed to testify.

       Mr. Greiman attempts to bolster his claims by noting that Dr. Lara was not a
particularly effective witness, and points out that Dr. Lara would have been the state's

                                            -5-
only expert witness with respect to Mr. Greiman's sanity and capacity to form the
relevant specific intent if Dr. Larsen had not testified. Although Dr. Lara's relative
ineffectiveness was acknowledged by the district court, and we defer, as we must, to
this factual conclusion, we note that Dr. Lara's findings at least had the advantage of
rising above the highly speculative. Dr. Lara testified that, in his expert opinion,
Mr. Greiman was not suffering from a diseased mind and that, at the time of the crime,
Mr. Greiman understood the nature and quality of his actions, could distinguish right
from wrong with respect to those actions, and was capable of forming the relevant
specific intent. We believe, despite any flaws in Dr. Lara's expert opinion, that a
reasonable jury would have accepted his conclusions over the highly speculative
explanations of Mr. Greiman's experts.

       Mr. Greiman thus was not prejudiced by his counsel's failure to object to
Dr. Larsen's being called as a witness and we therefore reverse the part of the district
court's order granting habeas relief because of counsel's alleged errors at trial.

                                          II.
       Mr. Greiman cross-appeals the part of the district court's order denying habeas
relief with respect to counsel's performance at the juvenile court waiver hearing. We
affirm with respect to that issue.

      Mr. Greiman contends that his counsel performed deficiently by failing to present
expert testimony to the juvenile court that Mr. Greiman was amenable to successful
rehabilitation in the twenty months remaining before his eighteenth birthday (at which
time he would have been released if the juvenile court had retained jurisdiction and then
convicted him), and that there is a reasonable probability that the juvenile court would
not have waived jurisdiction if such evidence had been presented.

       Even if defense counsel's performance was deficient, a matter that we do not
reach, we believe that Mr. Greiman has failed to demonstrate resulting prejudice.

                                          -6-
Much is made of the juvenile court's remark in its order waiving jurisdiction that "[a]
psychological evaluation of Blair may have beneficial [sic] to this Court, but will
probably be sought by counsel at a later date." Mr. Greiman offers this statement as
evidence of a reasonable probability that, absent his counsel's failure to present expert
testimony, the result of that hearing would have been different. We believe that
Mr. Greiman overestimates the importance of this remark. We believe that it was a
passing comment in an order that was clearly based in the main on the heinous nature
of the crimes charged and on the brief period of time remaining before Mr. Greiman
would have been released from the juvenile system had he been retained in it.

        The impact of the missing testimony, moreover, can be evaluated only in light
of what the testimony at the juvenile court waiver hearing would have been had any in
fact been offered. Mr. Greiman presented such testimony at his postconviction hearing,
and it came from the same two psychological experts who testified for him at trial.
Each testified that Mr. Greiman suffered from a mental illness that would have been
treatable in the twenty months available. In order to credit the testimony of these
witnesses with respect to treatment, however, the juvenile court would have had to
credit their testimony with respect to diagnosis. As we indicated above, given what
appears to us to be the extreme tenuousness of Mr. Greiman's insanity and diminished
capacity defenses, we do not believe that that would have happened. We hold,
therefore, that no reasonable probability exists that the result of the juvenile court
waiver hearing would have been different if Mr. Greiman's expert witnesses had
testified to his amenability to treatment.

                                            III.
        For the reasons stated, we reverse the judgment of the district court with respect
to the trial issue and affirm the judgment of the district court with respect to the juvenile
court issue.




                                            -7-
A true copy.

      Attest:

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




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