                                 _____________

                                 No. 95-2969EM
                                 _____________


Eric Adam Schneider,                  *
                                      *
           Appellant,                 *
                                      *    On Appeal from the United
     v.                               *    States District Court
                                      *    for the Eastern District
                                      *    of Missouri.
Paul Delo, *
                                      *
           Appellee.                  *

                                  ___________

                   Submitted:     April 8, 1996

                        Filed:    May 30, 1996
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and HANSEN, Circuit Judges.
                                ___________

RICHARD S. ARNOLD, Chief Judge.


     Eric Adam Schneider, who is under sentence of death for the murders
of Richard Schwendemann and Ronald Thompson, appeals from the District
Court's1 denial of his petition for habeas corpus.     We affirm.


                                      I.


     In order to place Schneider's legal arguments in context, we




      1
       The Honorable Stephen N. Limbaugh, United States District
Judge for the Eastern District of Missouri.
begin by briefly summarizing the facts of the crime.2


     On January 7, 1985, Schneider and two friends, David Morgan and
Charles     Palmer,   visited   the   home   of   Roland    Johnson.   While   there,
Schneider, who was carrying a sawed-off .22 caliber rifle, said that he
"had to do a job or rob somebody."             On January 11, Schneider borrowed
twenty dollars from Johnson.           He told Johnson that he was "planning
something" and would repay Johnson on January 13.               On the afternoon of
January 12, Schneider, Palmer, and Morgan were seen leaving Palmer's
apartment.    They returned later that night, carrying personal property that
had belonged to the victims, Richard Schwendemann and Ronald Thompson.
Patricia Woodside, who had agreed to purchase the victims' video-cassette
recorder, commented that Schneider had "made a killing."                   Schneider
responded, "Yes.      A couple of them."


     The next morning, Schneider and Morgan discussed their crime with
Patrick Schaffer.     Schneider stated that after he, Palmer, and Morgan had
arrived at the victims' home, they bound the victims and moved them to the
basement.    After Schwendemann started "getting tough," Schneider shot him
in the back.     Palmer slit Thompson's throat.            Schneider and Palmer went
upstairs and asked Morgan to watch the victims.             But Morgan wandered away
and when he returned, Thompson was missing.          Morgan yelled for Schneider.
Schneider and Morgan found Thompson staggering on the poolside patio and
saw him fall into the pool.


     When the police arrived at the victims' home, they discovered
Schwendemann's body in the basement and Thompson's in the swimming pool.
Schwendemann had two broken ribs and had been shot in the back and forehead
with bullets from Schneider's gun.           Thompson had




      2
      For a more detailed description of the crime, see State v.
Schneider, 736 S.W.2d 392 (Mo. 1987) (en banc), cert. denied, 484
U.S. 1047 (1988).

                                         -2-
fifteen stab wounds to his neck, scalp, chest, side, and back.


     The jury found Schneider guilty of two counts of first-degree murder,
two counts of armed criminal action, first-degree robbery, and first-degree
burglary.   It recommended two sentences of death, finding that the murders
were committed for the purpose of receiving money or some other thing of
monetary value, that the murders involved torture or depravity of mind, and
that Schneider committed the murders while carrying out a first-degree
burglary.


     The Missouri Supreme Court affirmed Schneider's convictions and
sentence.   State v. Schneider, 736 S.W.2d 392 (Mo. 1987) (en banc), cert.
denied, 484 U.S. 1047 (1988).       Schneider unsuccessfully sought post-
conviction relief under Mo. S. Ct. R. 29.15, and the Missouri Supreme Court
affirmed.    Schneider v. State, 787 S.W.2d 718 (Mo.) (en banc), cert.
denied, 498 U.S. 882 (1990).     Schneider then filed a petition for a writ
of habeas corpus, which the District Court denied.   Schneider v. Delo, 890
F. Supp. 791 (E.D. Mo. 1995).


     On appeal, Schneider raises three arguments.     He claims that he was
denied his Sixth Amendment right to effective assistance of counsel at the
guilt and penalty phases of his trial; that the prosecutor made a number
of improper statements during closing argument; and that the trial court
unconstitutionally refused to permit him to introduce certain mitigating
evidence at the penalty phase.


                                     II.


     Schneider argues that he did not receive effective assistance of
counsel because his lawyer failed to have him examined by a psychiatrist
and, at the penalty phase, presented only limited testimony regarding his
social history.




                                     -3-
                                     A.


     Before addressing the substance of Schneider's argument that his
counsel was ineffective for failing to investigate his mental condition,
we must first decide whether part of this claim is procedurally barred.
In the appeal from the denial of his Rule 29.15 motion for post-conviction
relief, Schneider alleged:


             The   trial   court   clearly   erred  in   denying
             appellant's motion to vacate sentence because
             counsel was ineffective in failing to seek a mental
             evaluation in mitigation of punishment . . ..
             Appellant was prejudiced in that the jury was
             denied important information on which to base a
             life sentence, particularly his capacity for
             feeling, remorse, and rehabilitation.


Resp. Ex. K at 11.    The state contends that because Schneider mentioned
only the prejudice he may have suffered during the penalty phase of his
trial, he is procedurally barred from raising the issue of ineffective
assistance of counsel at the guilt phase.     See Engle v. Isaac, 456 U.S.
107, 129 (1982) ("when a procedural default bars state litigation of a
constitutional claim, a state prisoner may not obtain federal habeas relief
absent a showing of cause and actual prejudice").


     The requirement that federal habeas claims must have been presented
in state court is not meant to trap a petitioner who has poor drafting
skills.     The stakes in habeas cases are too high for a game of legal
"gotcha."   Accordingly, in deciding whether a habeas claim has been fairly
presented in state court, we "have not applied an unreasonable standard."
Kenley v. Armontrout, 937 F.2d 1298, 1302 (8th Cir.), cert. denied, 502
U.S. 964 (1991).    We require that the "same factual arguments and legal
theories should be present in both the state and federal claims."    Ibid.




                                    -4-
     Did Schneider present to the state courts the factual arguments and
legal theories for his guilt-phase claim?      Hill v. Lockhart, 28 F.3d 832
(8th Cir. 1994), cert. denied, 115 S. Ct. 778 (1995), answers this
question.     In state court, Hill had specifically addressed only the
prejudice he had suffered at the penalty phase from his lawyer's failure
to investigate his mental condition.   We rejected the state's argument that
Hill had defaulted on his guilt-phase ineffective-assistance claim:


              Significantly, the legal analysis to be applied by
              this court to Mr. Hill's claim, i.e., ineffective
              assistance of counsel related to failure to present
              evidence of an extensive history of mental illness
              is the same regardless of which of the discrete
              aspects of the state court trial is at issue -- the
              guilt phase or the penalty phase. The question of
              mental condition, moreover, cannot neatly be
              divided into sanity at the time of the offense as
              the relevant issue at the guilt phase, and
              mitigating evidence as the relevant issue at
              sentencing. [A criminal defendant's] intellectual
              understanding of his actions and their gravity [is]
              clearly in issue at both phases of the proceedings.


Id. at 835 (citations omitted).    The same reasoning applies to this case,
and we hold that Schneider's guilt-phase claim is not procedurally barred.



     We now come to the substance of Schneider's ineffective-assistance
claim.      In order to prevail, Schneider must show that his counsel's
performance fell below professional standards and that his defense was
prejudiced by his counsel's ineffectiveness.    Strickland v. Washington, 466
U.S. 668, 688, 694 (1984); United States v. Payne, 78 F.3d 343, 345 (8th
Cir. 1996).


     Schneider points out that his lawyer had access to the report from
a court-ordered psychiatric examination which was performed in 1983, after
Schneider had been arrested for burglary.      Although the




                                     -5-
report concluded that Schneider did not suffer from any mental disease or
defect and was competent to stand trial, the report did state that
Schneider had cut his wrists while in prison and had a history of drug
abuse, and that two of his sisters had undergone psychiatric treatment.
Moreover, Schneider's school and military records indicated that he had
sustained three head injuries when he was a child and that, as an adult,
he had been diagnosed with hyperactivity and insomnia.       Schneider argues
that an effective lawyer would have responded to this evidence by arranging
for another psychiatrist to examine Schneider.


       We need not decide whether the performance of Schneider's counsel
fell below the standard required by the Sixth Amendment.     If "it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, [that] course should be followed."    Strickland, 466 U.S. at 697.
 A defendant is prejudiced by his lawyer's performance if "there is a
reasonable   probability   [i.e.   a   probability   sufficient   to   undermine
confidence in the outcome] that, but for counsel's errors, the result of
the [guilt or penalty] proceeding[s] would have been different."         Id. at
694.    Even if Schneider's counsel had been ineffective for failing to
arrange a second psychiatric examination, our confidence in the outcome of
the guilt and penalty phases of Schneider's trial would not be undermined.


       During Schneider's state post-conviction proceedings, Dr. A. E.
Daniel, a forensic psychiatrist, examined him.       Dr. Daniel concluded that
Schneider's speech, comprehension, thinking, and reasoning abilities were
normal.   Dr. Daniel did diagnose Schneider as suffering from attention-
deficit disorder (formerly known as "hyperactivity"), a condition which,
in Dr. Daniel's words, is manifested by a "failure to sustain attention on
a given task,




                                       -6-
particularly for children, school tasks."   P.C. Tr. Vol. I, 9.3



     3
     Attention-deficit disorder, which is usually diagnosed during
childhood or adolescence, gives rise to the following symptoms:


     (1) often fidgets with hands or feet or squirms in seat
     (in adolescents, may be limited to subjective feelings of
     restlessness)

     (2) has difficulty remaining seated when required to do
     so

     (3) is easily distracted by extraneous stimuli

     (4) has difficulty awaiting turn in games or group situations

     (5) often blurts out answers to questions before they
     have been completed

     (6) has difficulty following through on instructions from
     others . . .

     (7) has difficulty sustaining attention in tasks or play
     activities

     (8) often shifts from one uncompleted activity to another

     (9) has difficulty playing quietly

     (10) often talks excessively

     (11) often interrupts or intrudes on others . . .

     (12) often does not seem to listen to what is being said
     to him or her

     (13) often loses things necessary for tasks or activities
     at school or at home . . .

     (14) often engages in physically dangerous activities
     without considering possible consequences (not for the
     purpose of thrill-seeking), e.g., runs into street
     without looking.

American Psychiatric Association, Diagnostic Criteria from DSM-III-
R 56-57 (1987).

                                  -7-
Schneider argues that there is a reasonable probability that




                            -8-
a jury would have concluded that because Schneider suffered from attention-
deficit disorder and insomnia, he did not have the capacity to commit
first-degree murder, i.e., "knowingly [to] cause[] the death of another
person after deliberation upon the matter."   Mo. Rev. Stat. § 565.020(1).
The argument strikes us as outlandish.      Four days before the murders,
Schneider, who was carrying a sawed-off rifle, commented that because he
was short of money, he "had to do a job or rob somebody."      On the day of
the murder, Schneider said that he was "planning something."     The evidence
shows    that Schneider was quite capable of committing a crime after
deliberation.


        The question of whether there is a reasonable probability that
evidence of Schneider's mental disorder would have changed the outcome of
the penalty phase is somewhat different.   At the penalty phase, a jury is
not limited to examining the narrow issue of whether a defendant is capable
of committing a crime.   Instead, the jury may consider "evidence about the
defendant's background and character [which] is relevant because of the
belief, long held by this society, that defendants who commit criminal acts
that are attributable to a disadvantaged background, or to emotional and
mental problems, may be less culpable than defendants who have no excuse."
Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (citation omitted).    Thus, even
if evidence of a mental condition is not strong enough to convince a jury
to accept an insanity or diminished-capacity defense, the evidence might
cause that jury not to recommend a sentence of death.   Eddings v. Oklahoma,
455 U.S. 104, 113 (1982).


        In deciding whether, at the penalty phase, Schneider was prejudiced
by his lawyer's failure to mention his attention-deficit disorder and
insomnia, we are guided by our decision in Guinan v. Armontrout, 909 F.2d
1224 (8th Cir. 1990), cert. denied, 498 U.S. 1074 (1991).         Guinan had
something called "antisocial-personality disorder," a condition which
caused him to be "aggressive,




                                     -9-
impulsive, [and] unreliable in maintaining employment."      Id. at 1229.    We
observed that Guinan did not suffer from any "thought disorder or possible
schizophrenia" and concluded that "[w]hether evidence of this type would
be considered mitigating by a jury is highly doubtful."     Id. at 1230.    See
also Whitmore v. Lockhart, 8 F.3d 614, 617 (8th Cir. 1993) (lawyer was not
ineffective for failing to introduce evidence, during the penalty phase,
of the defendant's antisocial-personality disorder).


     We reach the same conclusion in this case.    Dr. Daniel testified that
Schneider's symptoms are similar to those associated with antisocial-
personality disorder.     P.C. Tr. Vol. I, 11.        Schneider's cognitive
abilities are normal.    He is neither schizophrenic nor bipolar.           Cf.
Antwine v. Delo, 54 F.3d 1357, 1368 (8th Cir. 1995) (defendant's penalty-
phase defense was prejudiced by his lawyer's failure to discover evidence
that the defendant suffered from bipolar disorder), cert. denied, 116 S.
Ct. 753 (1996); Hill, 28 F.3d at 846 (defendant was prejudiced by counsel's
failure to present evidence at the penalty phase of the defendant's
paranoid schizophrenia and reliance on anti-psychotic drugs).       Schneider
is hyperactive and he suffers from insomnia.    That is not nearly enough to
undermine our confidence in the outcome of the penalty phase.


                                    B.


     Schneider also claims that his lawyer was ineffective for failing to
present adequate evidence at the penalty phase relating to Schneider's
social history.   We disagree.


     At the penalty phase, Schneider's mother was his only witness.         Mrs.
Schneider testified to her son's employment history, performance in school,
artistic skills, helpfulness around the house, and the effect of her
husband's alcoholism on the family.      See Tr. 1927-44.   Schneider asserts
that his counsel should have




                                   -10-
called other members of his family as witnesses and did only a superficial
job of examining Mrs. Schneider.


     Schneider's counsel explained that after interviewing several family
members, he determined that they would not have been effective witnesses
because they were too upset with the verdict of guilt.    Schneider's family
did testify in a state post-conviction hearing, after which the court
observed that the "[f]amily members that testified in this proceeding were
weak and offered little."   Resp. Ex. J at 20.   We conclude that Schneider's
counsel made a reasonable strategic calculation, which we are not free to
second-guess.   See Laws v. Armontrout, 863 F.2d 1377, 1391 (8th Cir. 1988)
(en banc) (counsel's decision not to have the defendant's family testify
because they would not have been effective witnesses was reasonable), cert.
denied, 490 U.S. 1040 (1989).


     Furthermore, Schneider has not shown that he was prejudiced by his
lawyer's failure to call additional witnesses or to examine Mrs. Schneider
at greater length.   Schneider points out that the jury never heard that he
was devastated by the childhood death of his sister, Carolyn; started using
drugs when he was 10 or 12 years old; loved music; helped his parents with
chores; helped an elderly man who had fallen; and babysat for his nieces
and nephews.    This evidence is not enough to undermine our confidence in
the outcome of the penalty phase.4




     4
      Schneider also argues that, in considering his ineffective-
assistance claims, the District Court should have expanded the
record developed in state court by admitting into evidence a number
of affidavits and by holding an evidentiary hearing.       A habeas
petitioner is entitled to expand the state-court record only if he
can show cause for his failure to develop the facts in state court
and prejudice from that failure. See Keeney v. Tamayo-Reyes, 504
U.S. 1, 7-12 (1992).      We agree with the District Court that
Schneider has made no such showing. See Schneider, 890 F. Supp. at
842-43.   Nor has he demonstrated that this default should be
excused because he is actually innocent of his crimes or of the
death penalty. See Keeney, 504 U.S. at 12 (the cause-and-prejudice
requirement does not apply if "a fundamental miscarriage of justice
would result from failure to hold a federal evidentiary hearing.")

                                     -11-
                                     III.


     Schneider has brought two other groups of claims --- that, at trial,
the prosecutor made a number of improper statements, and that the trial
court unconstitutionally excluded relevant mitigating evidence during the
penalty phase.


                                     A.


     Schneider contends that in the course of the prosecutor's closing
argument during the penalty phase, the prosecutor improperly stated that
he had knowledge of facts outside the record, he personally believed that
the death penalty was an appropriate punishment, and that executing
Schneider would deter crime.    Schneider failed to raise these claims on
direct appeal, and he has shown neither cause for this omission nor actual
innocence.   Consequently, the claims are procedurally barred.


     Schneider also maintains that because David Morgan had told the
prosecution that Charles Palmer was the only person who had stabbed Ronald
Thompson, it was misleading for the prosecutor to say, during closing
argument, that Schneider had killed Thompson.   Schneider argues that the
prosecutor's statement deprived Schneider of his right to due process
because the statement was "so egregious that [it] fatally infected the
proceedings and rendered his entire trial fundamentally unfair."   Newlon
v. Armontrout, 885 F.2d 1328, 1336 (8th Cir. 1989) (citation omitted),
cert. denied, 497 U.S. 103 (1990).


     Although this claim is not procedurally barred, it is without merit.
Schneider admitted to the Missouri Supreme Court that "it was possible for
[the conclusion that Schneider had killed




                                  -12-
Thompson] to be inferred from the evidence."       Resp. Ex. E at 35.5    The Due
Process   Clause   does   not   forbid   prosecutors   from   drawing   reasonable
inferences from circumstantial evidence.        United States v. Karam, 37 F.3d
1280, 1289 (8th Cir. 1994), cert. denied, 115 S. Ct. 1113 (1995).


                                          B.


     Finally, Schneider asserts that two evidentiary rulings deprived him
of his Eighth Amendment right to present evidence at the penalty phase
regarding his "character or record and any of the


     5
      During his guilt-phase closing argument, the prosecutor said
that although Thompson's body was found with 15 stab wounds, there
had been testimony that Thompson had been stabbed only once, when
he was in the basement. He explained why he thought that Schneider
had inflicted the remaining wounds:

          After they left [Thompson] with the wound not being
     fatal he was able to get up. The knife was either still
     sticking in his neck or laying there. He picked it up as
     a defensive weapon and walked out to the rear basement
     window, dropped the knife down, climbed out the window.
     Because of the one wound. He couldn't have done that
     with all of the other wounds in his body.

           He goes out to the pool.     David Morgan comes
     downstairs and, according to Patrick, as soon as David
     finds he's gone yells out for who?    He yells out for
     Eric.

          He goes, "Eric, he's gone." Why does he yell for
     Eric? Because Eric is in control of everything. He's in
     charge.

          And then, Eric goes out and they find Mr. Thompson
     out by the pool and he takes, ladies and gentlemen, this
     particular knife and he's finished off at the pool.

          That's the only way the murder could have happened.
     It would have been impossible for just the one wound --
     with all of those wounds for him to have been able to get
     out of the house, climb out that window and get out to
     the pool.

Tr. 1813-14.

                                         -13-
circumstances of the offense. . .."     Eddings, 455 U.S. at 110 (quoting
Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion)).


     Schneider maintains that the trial court should have allowed him to
present evidence that David Morgan had entered into a plea bargain in which
the state had agreed to recommend a sentence of 30 years.   In this appeal,
Schneider has not articulated any reason why Morgan's sentence was relevant
mitigating evidence.   Because Morgan did not testify, the plea agreement
was not relevant as a means to impeach Morgan's credibility.      On direct
appeal, Schneider did allege that under Lockett and Eddings, the plea
agreement was relevant because the jury might have concluded that because
Morgan received a 30-year prison term, it would be unfair to sentence
Schneider to death.      But, as the Missouri Supreme Court held, the
disposition of Morgan's case had nothing to do with Schneider's "character
or record" or with the "circumstances of the offense."   See Schneider, 736
S.W.2d at 395-97.


     Schneider also contends that he should have been permitted to
introduce evidence that Morgan had told the prosecution that Schneider did
not kill Ronald Thompson.   However, in state court, Schneider objected only
to the exclusion of evidence that the state had agreed to recommend that
Morgan receive a 30-year sentence.      He never raised a claim regarding
Morgan's statement.6   Because he has shown neither cause for this default
nor actual innocence, the




       6
       We reject Schneider's argument that because Morgan would
never have made his statement if he had not struck a plea bargain,
his claim that he should have been allowed to introduce Morgan's
statement into evidence is part of his claim that the terms of the
plea bargain should have been admitted.     The statement was not
contained in the plea agreement; the two are discrete pieces of
evidence.   Moreover, the reason that Schneider thinks Morgan's
statement was admissible -- to cast doubt on the prosecution's
argument that Schneider was the ring leader who planned the
burglary and stabbed Thompson -- bears no resemblance to his
argument as to why the plea bargain was relevant.

                                    -14-
claim is procedurally barred.


                                  IV.


     For these reasons, the judgment of the District Court is affirmed.


     A true copy.


           Attest:


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




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