                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 97-1983
                                     ___________


Steven Wesley Parkus,                      *
                                           *
             Appellant,                    *
                                           *       Appeal from the United States
      v.                                   *       District Court for the
                                           *       Eastern District of Missouri.
Michael Bowersox,                          *
                                           *
             Appellee.                     *

                                     ___________

                                Submitted: April 17, 1998

                                     Filed: October 5, 1998
                                     ___________

Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

       Steven W. Parkus, a Missouri inmate sentenced to death, appeals from the
district court’s1 denial of his petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2254. We affirm.



      1
        The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
                                            I.

       Parkus was found guilty of first degree murder for the strangulation death of
Mark Steffenhagen. The details of the crime were set forth by the Missouri Supreme
Court in its opinion affirming the conviction and sentence on direct appeal. See State
v. Parkus, 753 S.W.2d 881 (Mo.) (en banc), cert. denied, 488 U.S. 900 (1988), and we
summarize them here.

       On November 24, 1985, Parkus and Steffenhagen were inmates in the Missouri
State Penitentiary, where they were confined in Housing Unit 2-B, a unit for prisoners
who were considered in need of protective custody. Parkus was housed in the unit
because his small physical stature made him a target for sexual abuse by other inmates.
Steffenhagen, who was also slight of stature, was likewise housed in the unit for
protection from abuse. That evening, Parkus entered Steffenhagen’s cell. Using strips
of bedding, Parkus restrained Steffenhagen and then, possibly while engaging in anal
intercourse, strangled him. Steffenhagen’s autopsy revealed facial cuts and abrasions
suggesting that he had been hit with a blunt object such as a fist. Additionally, bruising
on his extremities indicated that he had struggled against his restraint, while bruises on
his neck and internal damage to his larynx revealed that strangulation was the cause of
his death.

       Parkus was represented at trial by Donald Catlett. Although having never before
represented a defendant in a capital case, Catlett was an experienced public defender
who had represented several defendants with mental problems. Shortly after he was
appointed, Catlett determined that Parkus’s mental capacity would be a key to his
defense in light of the fact that Parkus had spent most of his life in Missouri penal and
mental institutions. Catlett then started to investigate Parkus’s long psychological
history by attempting to track down records from numerous facilities within several
Missouri state agencies and private entities. The typical response he received was that
the records had either been destroyed or were not kept.

                                           -2-
        Catlett also sought mental health records from Malcolm Bliss Hospital and was
told that that facility had no records of Parkus’s ever having been a patient there. The
record is unclear whether Catlett was aware that Parkus had spent a considerable
period of his youth in mental treatment at St. Louis State Hospital, a different facility.
Catlett’s testimony suggests, however, that he contacted Malcolm Bliss under the
mistaken assumption that St. Louis State Hospital and Malcolm Bliss were the same
facility.

       At trial, much of Parkus’s defense centered on the theory that he lacked the
ability to deliberate upon the crime, an essential mental element required for first
degree murder under Missouri law.2 Although he did not himself testify, Parkus called
as a witness his brother Chester, also a state prisoner, who testified that Parkus had
been physically and sexually abused by their parents and by an uncle. He also testified
that Parkus was the frequent victim of sexual abuse during his incarceration.

       Two psychiatrists testified regarding Parkus’s mental condition. Dr. Mahindra
Jayaratna, the state’s expert, testified that Parkus did not have a mental disease or
defect and that he was able to conform his behavior to the requirements of law,
including the ability to deliberate. Dr. A.E. Daniel, who was called by Parkus, although
agreeing with Jayaratna that Parkus suffered from no mental disease or defect, opined
that Parkus suffered from a diminished mental capacity that prevented him from
deliberating upon the murder.3


      2
        “A person commits the crime of murder in the first degree if he knowingly
causes the death of another person after deliberation upon the matter.” Mo. Rev. Stat.
§ 565.020.1.
      3
        Under Missouri law, a mental disease or defect provides a complete defense if,
as a result, “[the defendant] did not know or appreciate the nature, quality, or
wrongfulness of his conduct or was incapable of conforming his conduct to the
requirements of law.” Mo. Rev. Stat. § 552.030(1). Because both experts in Parkus’s
trial concluded that he was not mentally incapacitated under section 552.030(1), his

                                           -3-
        The jury rejected Parkus’s diminished mental capacity defense and convicted
him of first degree murder. During the penalty phase of trial, Parkus presented
additional testimony regarding his mental capacity, including that of two inmates, who
related that Parkus had been sexually abused in prison and that he had become more
violent as he tried to survive. Dr. Daniel reiterated his prior testimony and further
testified that Parkus had a low IQ and was borderline mentally retarded. Dr. Jayaratna
reiterated his conclusion that Parkus had the ability to deliberate before the killing.
After finding that Parkus’s prior convictions for assault and rape, his incarceration at
the time of the murder, and the victim’s inmate status were aggravating circumstances,
the jury sentenced him to death.

        As indicated earlier, the Missouri Supreme Court affirmed Parkus’s conviction
on direct appeal. It later affirmed the denial of Parkus’s petition for post-conviction
relief under Mo. S. Ct. R. 29.15. See Parkus v. State, 781 S.W.2d 545 (Mo. 1989) (en
banc), cert. denied, 495 U.S. 940 (1990). Parkus then simultaneously filed for both
federal habeas relief under 28 U.S.C. § 2254 and state habeas relief under Mo. S. Ct.
R. 91. The Missouri Supreme Court, in a summary order, denied Parkus’s petition for
state habeas relief. The district court, after denying Parkus an evidentiary hearing on
his federal habeas petition, denied the petition, finding that Parkus’s claims were either
procedurally barred or without merit. Contending, inter alia, that he was entitled to an
evidentiary hearing, Parkus appealed the district court’s decision to this court. We
reversed and remanded the cause for an evidentiary hearing and a ruling on Parkus’s
ineffective assistance of counsel and prosecutorial misconduct claims. See Parkus v.
Delo, 33 F.3d 933, 942 (8th Cir. 1994).

       On remand, the district court held an evidentiary hearing and again denied the
petition. Parkus sought to appeal. Pursuant to 28 U.S.C. § 2253(c)(3), we granted him


counsel’s strategy at trial was to prove the partial defense that his mental capacity was
diminished to the extent that he was unable to deliberate upon the murder.

                                           -4-
a certificate of appealability on the issue of whether his trial counsel had rendered
ineffective assistance by failing to obtain his medical records from St. Louis State
Hospital.4

                                           II.

       Parkus contends he was denied effective assistance of counsel during both the
guilt and penalty phases of his trial. This claim, which presents mixed questions of law
and fact, is reviewed de novo. See Reese v. Delo, 94 F.3d 1177, 1181 (8th Cir. 1996),
cert. denied, 117 S.Ct. 2421 (1997). The district court’s factual findings, however, are
reviewed for clear error. See Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir.
1988) (en banc).

       The governing standard for Parkus’s ineffective assistance of counsel claim is
clearly established:

      First, the defendant must show that counsel’s performance was deficient.
      This requires showing that counsel made errors so serious that counsel
      was not functioning as the “counsel” guaranteed the defendant by the
      Sixth Amendment. Second, the defendant must show that the deficient
      performance prejudiced the defense. This requires showing that counsel’s
      errors were so serious as to deprive the defendant of a fair trial, a trial
      whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Six v. Delo, 94 F.3d 469, 473
(8th Cir. 1996), cert. denied, Six v. Bowersox, 117 S. Ct. 2418 (1997); Sidebottom v.

      4
       Parkus also sought a certificate of appealability with respect to his claim of
prosecutorial misconduct. We denied his subsequent petition for rehearing and
application for a certificate of probable cause on the issue. Nevertheless, Parkus has
included arguments in his brief concerning our jurisdiction to consider his prosecutorial
misconduct claims as well as a substantive argument on the issue. We address these
arguments in Part III of this opinion.

                                          -5-
Delo, 46 F.3d 744, 752 (8th Cir. 1995). To prevail, Parkus must satisfy both prongs
of the Strickland test. See 466 U.S. at 687. We need not address both components of
the Strickland inquiry if the defendant makes an insufficient showing on one. See id.
at 697.

      Our consideration of Parkus’s claim of ineffective assistance of counsel is guided
by the principle that “[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Strickland, 466 U.S. at 689. This deferential standard of review arises
from the presumption that an attorney’s performance is reasonable:

      A fair assessment of attorney performance requires that every effort be
      made to eliminate the distorting effects of hindsight, to reconstruct the
      circumstances of counsel’s challenged conduct, and to evaluate the
      conduct from counsel’s perspective at the time. Because of the
      difficulties inherent in making the evaluation, a court must indulge a
      strong presumption that counsel’s conduct falls within the wide range of
      reasonable professional assistance; that is, the defendant must overcome
      the presumption that, under the circumstances, the challenged action
      “might be considered sound trial strategy.”

Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see Fretwell v. Norris, 133
F.3d 621, 624 (8th Cir. 1998).

       Parkus asserts that it was unreasonable for Catlett to seek his treatment records
at Malcolm Bliss Hospital and thereafter fail to further investigate whether St. Louis
State Hospital was a different facility. In support of this contention, he contends that
both Dr. Jayaratna and Dr. Daniels, each having now had the opportunity to review
Parkus’s treatment records from St. Louis State Hospital, have changed their opinions
regarding Parkus’s mental state at the time of the murder. Parkus maintains that the
gravity of the error resulting from his counsel’s alleged lack of diligence is irrefutable
evidence of an inadequate investigation.


                                           -6-
       This argument is inconsistent with Strickland. “[A] court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of counsel’s conduct.”
Strickland, 466 U.S. at 690. Accordingly, our assessment of Catlett’s performance
must be undertaken in such a way as to “reconstruct the circumstances of [his]
challenged conduct, and to evaluate the conduct from [his] perspective at the time.”
Id. at 689; see also Fretwell, 133 F.3d at 624 (quoting Strickland, 466 U.S. at 689);
Six, 94 F.3d at 474; O’Neal v. Delo, 44 F.3d 655, 660 (8th Cir. 1995).

        When considered in this context, Catlett’s failure to obtain the St. Louis State
Hospital records cannot be said to have fallen below the Strickland standard of
reasonableness. This is not a case in which counsel performed little or no investigation
of mitigating circumstances. See Fretwell, 133 F.3d at 627 (citing Pickens v. Lockhart,
714 F.2d 1455, 1467 (8th Cir. 1983)); Wilkins v. Iowa, 957 F.2d 537, 541 (8th Cir.
1992) (citing Thomas v. Lockhart, 738 F.2d 304 (8th Cir. 1984) (deficient investigation
where counsel did nothing beyond reading police file)); Kenley v. Armontrout, 937
F.2d 1298, 1304 (8th Cir. 1991) (citing Chambers v. Armontrout, 907 F.2d 825, 828
(8th Cir. 1990) (en banc); Thomas, 738 F.2d at 308; and Pickens, 714 F.2d at 1467).
With the help of his staff, Catlett conducted a thorough search for records of Parkus’s
mental health history. He contacted numerous state agencies, as well as the individual
institutions at which he believed Parkus had been placed during the course of his life.

       Parkus’s citation to Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994), is
unpersuasive. In Hill, we held that a defendant had received ineffective assistance of
counsel by reason of his attorney’s failure to present evidence of the defendant’s
psychiatric history, including the schizophrenic tendencies that resulted from his failure
to take his anti-psychotic drugs. See id. at 845. In that case, unlike here, counsel had
made no attempt to obtain crucial treatment records that documented the defendant’s
history of hallucinations and his positive response to anti-psychotic drugs. See id.



                                           -7-
       Likewise, we do not agree that Baxter v. Thomas, 45 F.3d 1501 (11th Cir.
1995), presents a situation comparable to Parkus’s. In Baxter, counsel, who were
under the impression that the defendant had spent much of his youth in juvenile
institutions, failed to obtain records from a mental hospital where the defendant had
spent three years of his teenage life. Indeed, counsel, who were aware that a mental
hospital was located in the same city as the juvenile institution and who had observed
strong indications that Baxter had psychiatric problems, “failed to take any steps to
uncover mental health mitigating evidence that was readily available.” Id. at 1514; see
also Bloom v. Calderon, 132 F.3d 1267, 1271 (9th Cir. 1997), cert. denied, 118 S.Ct.
1856 (1998) (ineffective assistance when trial counsel did “virtually nothing” to obtain
psychiatrist witness until a few days before trial and then did “practically nothing” to
prepare the witness).

       Our conclusion that Parkus has failed to demonstrate a deficiency in his
counsel’s performance makes it unnecessary to inquire into his claim of prejudice. See
Walls v. Bowersox, 151 F.3d 827, 835 (8th Cir. 1998). Accordingly, we affirm the
district court’s denial of relief on Parkus’s ineffectiveness of counsel claim.

                                            III.

        As noted above, we limited our certificate of appealability to Parkus’s ineffective
assistance of counsel claim. Parkus contends that his appeal is not limited by the
certificate of appealability because the district court granted him an unlimited certificate
of probable cause on December 29, 1992, well before the April 24, 1996, effective date
of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

       Pre-AEDPA, section 2253 required a state prisoner to obtain a certificate of
probable cause before appealing from the denial of a federal habeas petition. See
Ramsey v. Bowersox, 149 F.3d 749, 759 (8th Cir. 1998). The AEDPA amended
section 2253 by replacing the certificate of probable cause with a certificate of


                                            -8-
appealability. See id. Although the ground for issuing a certificate of appealability is
the same as that which justified issuing a certificate of probable cause, a certificate of
appealability is more limited in scope than was the latter. See Roberts v. Bowersox,
137 F.3d 1062, 1068 (8th Cir. 1998). “‘[A] certificate of probable cause places the
case before the court of appeals, but a certificate of appealability must identify each
issue meeting the ‘substantial showing’ standard.’” Id. (quoting Herrera v. United
States, 96 F.3d 1010, 1012 (7th Cir. 1996)).

      The AEDPA’s provisions regarding certificates of appealability apply to those
habeas cases which were filed prior to the effective date of the Act. See Tiedeman v.
Benson, 122 F.3d 518, 520-21 (8th Cir. 1997). As we did in Roberts, however, we will
give Parkus the benefit of the doubt and consider the merits of his claim that the
prosecution improperly withheld exculpatory information in his prison file from his
attorney in violation of Brady v. Maryland, 373 U.S. 83 (1963).

       In Brady, the Supreme Court held that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.” 373 U.S. at 87. To establish a Brady violation, Parkus must
demonstrate that the government suppressed evidence, that the evidence was
exculpatory, and that the evidence was material either to guilt or punishment. See
United States v. Duke, 50 F.3d 571, 577 (8th Cir. 1995). The district court concluded
that Parkus failed to meet the suppression requirement of Brady. Specifically, the court
found that the prosecutor gave Catlett full pretrial access to the state’s files, including
Parkus’s prison files, a finding that is corroborated by the prosecution’s pretrial written
response to Parkus’s request for disclosure. We review this factual finding for clear
error. See Wilkins v. Bowersox, 145 F.3d 1006, 1011 (8th Cir. 1998); United States
v. Harvey, 900 F.2d 1253, 1259 (8th Cir. 1990); Laws, 863 F.2d at 1381. We
conclude that the district court’s finding is supported by the record. Having failed to
establish that the prosecution suppressed the prison records, the allegation that formed


                                           -9-
the basis of our finding of cause to excuse his procedural default, see Parkus v. Delo,
33 F.3d at 940, Parkus is now barred from arguing that he was prejudiced by his
counsel’s failure to utilize the information that was available to him, a claim that should
have been raised in the state courts.

      The judgment is affirmed.

      A true copy.

             Attest:

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




                                           -10-
