Full opinion text
MEMORANDUM OPINION AND ORDER PIERSOL, District Judge. Robert A. Shafer filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, seeking relief from a Missouri state trial court’s imposition of the death penalty for the April 29, 1990 murders of Keith Dennis Young and Ford Jerry Parker. Following a direct appeal and post-conviction proceedings, the Missouri Supreme Court affirmed the imposition of the death penalty. For the reasons explained below, the Court rejects Shafer’s claims that his confessions'violate his Sixth Amendment right to counsel; he received ineffective assistance of counsel; his death sentence is disproportionate; the aggravating circumstances found by the trial court were invalid; and he was denied a fair trial due to ex parte communications between the trial court and the prosecutor. The petition, however, is granted on Shafer’s claims that his waiver of counsel for the guilty plea and sentencing phases, his guilty plea, and his waiver of the right to present mitigating evidence were not made knowingly, intelligently and voluntarily and on Shafer’s claim that the trial court failed to consider mitigating circumstances in sentencing him to the death penalty. I. Facts and Procedural History Robert Shafer pled guilty to two counts of murder in the first degree and two counts of armed criminal action and was sentenced to death on the murder counts and life imprisonment on the armed criminal actions counts, without the assistance of counsel. Shafer was 22 years old at the time he pled guilty and was sentenced. The factual basis for the uncounselled guilty plea entered by Shafer consisted of a written confession and a videotaped confession given to law enforcement officers in July 1992. Shafer’s co-defendant, David Steinmeyer, was sentenced on October 21, 1992, to 12 years and 6 months’ imprisonment pursuant to a plea agreement with the State. (App. at 2151-52.) The confessions given to law enforcement officers in July 1992 conflict with several other versions of the crimes Shafer gave to mental health professionals and with the co-defendant’s version. Shafer, however, confirmed during the change of plea hearing that the July 1992 confessions were the true and correct versions of the crimes. Shafer’s confessions reveal that on April 29, 1990, he and his friend David Stein-meyer talked about robbing some homosexuals and beating them up. After consuming drugs and alcohol, Shafer retrieved a .22 revolver and five shells from his sister’s home where he was living. Around 8:45 p.m. Shafer and Steinmeyer went to a popular hang-out and approached two men, Young and Parker, as they were kissing and hugging. Young and Parker agreed to give Shafer and Steinmeyer a ride to a nearby town. During the ride, Shafer and Steinmeyer agreed they would rob Young and Parker. Shafer took control of the vehicle by force and Steinmeyer held Young and Parker at gun point until they arrived in a secluded area. Steinmeyer struggled with Parker and Shafer struggled with Young until both Parker and Young were in a ditch. As Parker was attempting to flee, Shafer fired two shots from the .22 revolver he had taken from his sister’s house. At least one shot hit Parker in the face. Shafer then returned to Young’s location in the ditch. Young pleaded for his life and started to flee. Shafer fired one shot at Young, hitting him in the back. Shafer loaded the remaining two shells in the .22 revolver and fired two more shots at Young, at least one of which was at Young’s head. Shafer and Steinmeyer retrieved the car and drove near Young’s body. Young was unconscious and bleeding when Shafer took a lighter out of Young’s pocket. Shafer then drove to Parker’s body. Parker was not breathing. Shafer took approximately $100 and cigarettes out of Parker’s pockets. Shafer drove the car away from the scene and discussed with Steinmeyer where to leave the car. They arrived in St. Charles around 10:30 p.m. They removed items from the car that might have their fingerprints on them and left the car at a gas station. They took the car stereo, speakers, cassette tapes and the .22 revolver to Shafer’s sister’s house. Shafer returned the .22 revolver to his sister’s room and placed the five shell casings in his bedroom closet. The next day, the police discovered Young and Parker’s bodies and found their car. Shafer and Steinmeyer talked about the shooting and Steinmeyer said he talked to somebody at school about the shooting. Shafer called his mother and told her he might have shot two people and then he and Steinmeyer went to confession. After confession, they told several people they were leaving town. Shafer told his brother, Michael, he had shot two people the night before. When they stopped for gas on their way to Texas, Shafer and Steinmeyer agreed to turn themselves into the police in St. Charles. While driving back to St. Charles to turn themselves in, they talked about what to tell the police. Steinmeyer agreed to let Shafer write a statement saying that Shafer shot Young and Steinmeyer shot Parker. Shafer and Steinmeyer turned themselves into the police and were arrested. The police retrieved the .22 revolver from Shafer’s sister’s house, but later returned it to Shafer’s brother-in-law. Shafer was charged with two counts of first degree murder and two counts of armed criminal action. From April 30, 1990 to the date of his change of plea hearing on January 4, 1993, Shafer was detained at the St. Charles County Jail. During this two-and-one-half years, Shafer was represented by seven different attorneys. Shafer wrote numerous letters to several individuals and organizations during his incarceration at the St. Charles County Jail. (See App. at 2549-747.) The letters express Shafer’s conflicting thoughts about whether he was guilty of murder; whether he wanted to be represented by an attorney or waive such representation; suppressing his confessions; having a mental evaluation; and whether to go to trial or plead guilty. (Id.) Shafer wrote several letters complaining that his attorneys were not working on his case or doing anything to help him. (Id.) On August 8, 1991, fifteen months after his arrest, Shafer first suggested he may want to waive his right to counsel because he felt his attorney, Mr. Paul Madison, was rendering ineffective assistance of counsel. (App. at 2596-97.) Mr. Madison was eventually removed as Shafer’s court-appointed counsel and several other attorneys were thereafter appointed as various times. Shafer’s competency was questioned and the trial court ordered a mental health examination. Shafer eventually filed a motion to proceed pro se and the trial court conducted a hearing on this motion on July 27, 1992. The trial court took the motion under advisement and later ordered a second mental health examination. Throughout his confinement at the St. Charles County Jail, Shafer repeatedly complained orally and wrote several letters complaining about the conditions of his confinement. (See App. at 2549-747.) Less than one month before Shafer’s change of plea hearing, a state circuit court conducted a hearing on Shafer’s motion to transfer to a new jail. Ruling from the bench on December 12, 1992, the state court denied Shafer’s motion to transfer. (JT at 197-202.) On January 4, 1993, the trial court conducted a second hearing on Shafer’s motion to proceed pro se. During this hearing, the trial court granted Shafer’s motion to waive his right to counsel, but ordered his court-appointed counsel to remain in the courtroom as a resource for Shafer. (GPT at 13.) In the same proceeding, the trial court accepted Shafer’s uncounselled guilty plea and sentenced Shafer to death on each of the murder counts and to life imprisonment on the armed criminal action counts. (GPT at 13, 48-49.) Shafer filed a direct appeal of his conviction and sentence with the Missouri Supreme Court. Shafer also filed a Missouri Rule 24.035 postconvietion motion. Following a three-day evidentiary hearing, the post-conviction court held that Shafer’s guilty plea and resulting conviction were valid, but that Shafer must be re-sentenced. (App. at 3896, 3899, 3910.) Both Shafer and the State appealed the post-conviction court’s decision. Shafer’s direct appeal and the appeal of the post-conviction court’s decision were consolidated. See State v. Shafer, 969 S.W.2d 719(Mo.), cert. denied, 525 U.S. 969, 119 S.Ct. 419, 142 L.Ed.2d 340 (1998). On May 26, 1998, the Missouri Supreme Court affirmed Shafer’s conviction, reversed the post-conviction court’s order to re-sentence Shafer, and affirmed the death sentence on the murder charges. Id. at 742. Following the United States Supreme Court’s denial of his Petition for Writ of Certiorari, Shafer v. Missouri, 525 U.S. 969,119 S.Ct. 419, 142 L.Ed.2d 340 (1998), Shafer filed the present petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. II. Decision The Supreme Court explained the standard for granting habeas relief to a state prisoner under the Antiterrorism and Effective Death Penalty Act (“AEDPA”): [Section] 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) “was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Therefore, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411, 120 S.Ct. 1495. “The state court’s application must also be unreasonable.” Simmons v. Bowersox, 235 F.3d 1124, 1130 (8th Cir.2001) (citing Williams, 529 U.S. at 411, 120 S.Ct. 1495). “Whether a state court’s application was unreasonable is an objective inquiry.” Simmons, 235 F.3d at 1130 (citing Williams, 529 U.S. at 411, 120 S.Ct. 1495). In addition to relief under 28 U.S.C. § 2254(d)(1), a state prisoner’s application for writ of habeas corpus may be granted if the state court’s adjudication of the prisoner’s claim on the merits “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). A. Constitutionality of Shafer’s Confessions Shafer contends his waiver of counsel and plea of guilty were not knowing, intelligent and voluntary because they were the product of an unconstitutional police interview. Shafer asserts his rights to due process, representation of counsel, and effective assistance of counsel, and his right to be free from cruel and unusual punishment, guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, were violated by the improper interview and actions of the prosecutor. Officer Simcox met briefly with Shafer on July 23, 1992, after Shafer contacted Simcox, and Shafer stated he wanted to “take full responsibility for the shootings.” (HT at 675.) Simcox then contacted Shafer’s counsel, Susan McGraugh, and the prosecutor, Timothy Braun. Braun informed Simcox that Simcox could not initiate contact with Shafer in the absence of counsel, but Braun did not advise Simcox on whether he should interview Shafer if Shafer initiated contact with Simcox. Braun did, however, inform Simcox that he would seek the death penalty if Shafer confessed to the murders. Shafer’s counsel explicitly directed Simcox and Braun to not speak with Shafer about the case in her absence. Simcox received a letter from Shafer on July 24, 1992, indicating Shafer wanted to talk to Simcox and stating “I am willing to give whatever is necessary.” (App. at 3127.) Despite Shafer’s counsel’s oral and written directions, Simcox conducted the post-arraignment interview of Shafer in the absence of his counsel on July 24, 1992. Shafer signed a written waiver of his Miranda rights in the videotaped interview prior to Simcox asking any questions regarding the murders. Shafer also acknowledged during the videotaped interview that his counsel had advised him not to speak to the police but that Shafer desired to disregard counsel’s advice and proceed with the interview in the absence of counsel. Prior to Simcox’s interview, Shafer studied the statutory aggravating circumstances justifying imposition of the death penalty. Shafer gave written and videotaped confessions during the interview with Simcox on July 24, 1992. Relying on Shafer’s confessions, Braun filed a notice to seek the death penalty and a notice of aggravating circumstances on July 31, 1992. Shafer’s July 24, 1992 confessions formed the factual basis for both Shafer’s guilty plea and the finding of aggravating circumstances by the sentencing court. A hearing regarding Shafer’s mental competency and on Shafer’s motion to proceed pro se were scheduled for July 27, 1992. The prosecutor’s office knew Shafer was undergoing evaluations by mental health experts and knew the hearing was scheduled at the time Simcox informed Braun of Shafer’s comments on July 23, 1992. Shafer contends the prosecutor and the police exploited his mental and emotional state, specifically his desire to “punish” counsel by seeking the death penalty due to problems he was having with her. In support of this claim, Shafer cites Dr. Daniel J. Cuneo’s opinion that: Mr. Shafer’s personality characteristics are such that his accountings of the event bounce to whatever he feels at the time. His version is dependent upon his mood and his mood vacillates to his childish and immature whims. Presently he can’t get exactly what he wants and he wants to kill himself. It is as if he were saying, “If you don’t give me what I want right now and give me all of the attention I want right now, I’m going to kill myself. This will teach you!” (App. at 2543, 2547.) Although noting the prosecutor’s actions surrounding the taking of Shafer’s confessions had a “questionable appearance,” the post-conviction court held that the taking of Shafer’s confessions was not unlawful as a violation of his right to counsel because Shafer voluntarily chose to make the statements to Simcox against the advice of counsel. (App. at 3902, 3906.) The Missouri Supreme Court did not directly address the constitutionality of Shafer’s July 24, 1992 confessions. However, the court denied all of Shafer’s claims regarding waiver of counsel and entry of a guilty plea. Shafer, 969 S.W.2d at 731, 734. The Missouri Supreme Court expressly relied upon Shafer’s written confession as the factual basis for both Shafer’s guilty plea and the finding of aggravating circumstances. Id. at 723, 734. Shafer contends the Sixth Amendment right to counsel prohibits the police from questioning an accused in the absence of counsel after the initiation of formal adversary proceedings. This argument does not, however, address the effect of a defendant’s waiver of his Sixth Amendment right to counsel or the distinction between police-initiated questioning and questioning initiated by the accused. Quoting the Supreme Court’s opinion in Maine v. Moulton, Shafer asserts that “the prosecutor and the police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.” 474 U.S. 159, 171, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). The State contends, however, that Shafer waived his Sixth Amendment right to counsel and that this issue is governed by the Supreme Court’s decision in Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988). The right to the assistance of counsel guaranteed by the Sixth Amendment includes the right to have counsel present at post-arraignment interrogations. See Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). In Edwards v. Arizona, the Supreme Court held in the context of the Fifth Amendment, an accused person in custody who has “expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (emphasis added). The rule in Edwards, was later held to apply in the Sixth Amendment context, to a defendant formally charged with a crime who requested the assistance of counsel at the arraignment. See Jackson, 475 U.S. at 626, 106 S.Ct. 1404. The Supreme Court held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” Id. at 636, 106 S.Ct. 1404 (emphasis added). The bright-line rule of invalidity of a waiver of the right to counsel in Jackson, 475 U.S. at 636, 106 S.Ct. 1404, does not apply in the case at bar because Shafer, rather than the police, initiated the post-arraignment interview with Simcox. In the context of the Fifth Amendment, if an accused initiates contact with the police, the accused may waive the Fifth Amendment right to counsel for such post-arraignment interrogations. See Wyrick v. Fields, 459 U.S. 42, 47-48, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982); Oregon v. Bradshaw, 462 U.S. 1039, 1046, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (holding that where an accused asserts his Fifth Amendment right to counsel but then initiates a conversation with police while in custody, the Edwards rule is not violated, and the question becomes whether the accused validly waived his right to counsel). The Eighth Circuit recognized that essentially the same standard for evaluating the validity of a waiver of counsel under the Fifth Amendment after the defendant invoked his right to counsel applies in assessing the validity of a Sixth Amendment waiver of counsel where the defendant initiated post-arraignment contact with police. See Fields v. Wyrick, 706 F.2d 879, 881 (8th Cir.), cert. denied, 464 U.S. 1020, 104 S.Ct. 556, 78 L.Ed.2d 728 (1983); United States v. Eagle Elk, 711 F.2d 80, 82 (8th Cir.1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984) (stating that “the appropriate standard for reviewing the validity of a waiver of the sixth amendment right to have counsel present at an interrogation is essentially the same standard applied to waivers of the fifth amendment right to counsel where the right to counsel has been previously invoked.” (footnote omitted)). Thus, the pertinent question is whether Shafer validly waived his Sixth Amendment right to counsel. In the context of a Sixth Amendment waiver of right to counsel, the Supreme Court explained in Johnson v. Zerbst, that courts should “indulge every reasonable presumption against waiver of fundamental constitutional rights.” 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In light of this presumption, the Supreme Court held “it is the State that has the burden of establishing a valid waiver.” Jackson, 475 U.S. at 633, 106 S.Ct. 1404 (citing Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)). In Johnson, the Supreme Court held that a waiver of the Sixth Amendment right to counsel is valid only if the waiver is “an intentional relinquishment or abandonment of a known right or privilege.” 304 U.S. at 464, 58 S.Ct. 1019; see Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (same). In the Fifth Amendment context, the Supreme Court held that, “waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case ‘upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.’ ” Edwards, 451 U.S. at 482, 101 S.Ct. 1880 (quoting Johnson, 304 U.S. at 464, 58 S.Ct. 1019). The Supreme Court summarized the key inquiry in determining whether a waiver is valid: “Was the accused, who waived his Sixth Amendment rights during postin-dictment questioning, made sufficiently aware of his right to have counsel present during the questioning, and of the possible consequences of a decision to forgo the aid of counsel?” Patterson, 487 U.S. at 292-93, 108 S.Ct. 2389. To be valid, the waiver of an accused’s Sixth Amendment right to counsel must also be voluntary. See id. 292 n. 4, 108 S.Ct. 2389. Shafer admits he initiated contacts with Officer Simcox on July 23 and 24, 1992. In his handwritten letter to Simcox, dated July 24, 1992, Shafer acknowledged his attorney advised him not to speak with the police but stated he wanted to talk to Simcox despite that advice. (App. at 3127.) In the July 24, 1992 letter, Shafer also explicitly waived his right to have counsel present during any further questioning by the police. (App. at 3127.) In the videotaped confession, Shafer expressed his desire to speak with the police in the absence of his counsel despite his counsel’s advice. Prior to the interview with Simcox, Shafer signed a waiver of rights form which specifically informed him that anything he said could be used against him in a court of law and that he had the right to have an attorney present during any questioning. Shafer orally affirmed his waiver of rights during the videotaped interview with Simcox on July 24, 1992. Simcox asked Shafer during the videotaped interview if Shafer wanted to waive his right to have counsel present even though Shafer’s counsel advised him not to speak with the police. Shafer explicitly stated he wanted to talk to Simcox against his counsel’s advice. Shafer’s initiation of contact with the police and his written and oral representations on July 24, 1992, that he understood he had a right to have counsel present during the interview with Simcox and that any statements he made could be used against him in a court of law, demonstrate that Shafer made a knowing and intelligent waiver of his right to counsel. Shafer contends the police and the prosecutor exploited his mental and emotional state to obtain the written and videotaped confessions. It is not clear from Shafer’s argument whether he contends the alleged exploitation affects the voluntariness inquiry or the knowing and intelligent inquiry in evaluating the validity of a waiver of the right to counsel. The knowing and intelligent inquiry was addressed above. As to the voluntariness inquiry, the record does not contain evidence of coercion on the part of the prosecutor or the police. To the contrary, all of the evidence in the record demonstrates that Simcox did not exert any pressure on Shafer to convince him to make a statement in the absence of his counsel. Upon the first contact initiated by Shafer on July 23, 1992, Simcox did not immediately conduct an interview. Rather, he notified defense counsel and the prosecutor of the communication with Shafer. It was only after receiving a second communication from Shafer requesting an interview that Simcox spoke with Shafer about the crimes with which Shafer was charged. During the interview, Shafer never expressed any reservation or hesitation about speaking with Simcox in the absence of his counsel. Shafer reaffirmed his desire to waive counsel during the hearing on his motion to proceed pro se which was held on July 27, 1992, three days after the interview with Simcox. During the hearing, Shafer testified “I tried to give a confession for almost the whole time I was here. I wanted to confess to the crime and the attorney stopped me and I finally did it Friday and I did it without — or, against Mrs. McGraugh’s wishes. I don’t want to cooperate with counsel. I don’t want an attorney. I think that I’m best represented by myself because I know better than anybody what happened and that I’ve been on the case a lot longer than anybody.” (PST at 6-7.) The prosecutor specifically inquired about the voluntariness of Shafer’s waiver of his right to counsel during the July 27,1992, hearing: Q. Are you doing this voluntarily? Has anyone forced you or in any way tried to coerce or suggest to you that you should fire your attorney and proceed pro se? A. No. From the beginning I really didn’t even want an attorney because I didn’t want to blame nobody else for anything that happened to me. Some suggestions were made, but, no, not by any attorneys that I’ve been represented by and I’ve did this solely on my- own. Q. No one’s forcing you in any way? A. No one’s forcing me. Q. This is a completely voluntarily [sic] act on your part? A. Yes, it is.” (PST at 9.) Although Dr. Cuneo’s opinion regarding Shafer’s personality characteristics may cast doubt upon the voluntariness of Shafer’s waiver of counsel, that doubt does not show that Shafer’s waiver of counsel for the police interview was involuntary considering the totality of the circumstances surrounding the interview as explained above. In contrast to the police conduct in Brewer, where the Supreme Court held the accused’s waiver of his Sixth Amendment right to counsel was invalid, neither the prosecutor nor the police made any promise to defense counsel that they would not speak with Shafer in her absence. 480 U.S. at 405, 97 S.Ct. 1232. Prior to questioning the defendant, the police officer in Brewer did not inquire whether the defendant desired to waive his right to counsel and the defendant never expressed a willingness to be questioned in the absence of an attorney. Id. at 392, 405, 97 S.Ct. 1232. In contrast, Simcox expressly asked Shafer if he wanted to waive his right to counsel for the interview. The case at bar is also distinguishable from several cases cited by Shafer in support of his Sixth Amendment claim. See Moulton, 474 U.S. at 171, 106 S.Ct. 477 (holding the defendant’s Sixth Amendment right to counsel was violated where post-arraignment incriminating statements were obtained by a co-defendant working undercover for the police); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (same); United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (holding that “the concept of a knowing and voluntary waiver of Sixth Amendment rights does not apply in the context of communications with an undisclosed undercover informant acting for the Government.”). In the cases cited by Shafer, the defendants were unaware the police were questioning them and were not advised of their rights to have counsel present; therefore, the defendants could not have waived their rights to counsel for post-arraignment, police-initiated interrogation. In light of the totality of the circumstances surrounding Shafer’s written and videotaped confessions, including Shafer’s explicit oral and written waivers of his right to counsel and Simcox’s explanations of his rights, the State has carried its burden to show that Shafer was made “sufficiently aware of his right to have counsel present during the questioning, and of the possible consequences of a decision to forgo the aid of counsel[.]” Patterson, 487 U.S. at 292-93, 108 S.Ct. 2389. The Court does not, however, condone the actions of the prosecutor in tacitly approving of, or the police in conducting, an interview of Shafer, in the absence of counsel, where Shafer’s mental competency was questionable and the interview was conducted against the express directions of Shafer’s counsel. Based upon the above analysis, the Missouri Supreme Court’s implicit holding that Shafer’s Sixth and Fourteenth Amendment rights were not violated was neither contrary to nor did it involve an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1). Additionally, the Missouri Supreme Court’s decision was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d)(2). B. Waiver of Counsel at the Change of Plea Hearing Pursuant to the Sixth Amendment, an accused has a right to represent himself, but waiver of the right to counsel must be made knowingly, intelligently and voluntarily. Faretta v. California, 422 U.S. 806, 819-21, 835-36, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The Supreme Court explained that “[although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” Id. at 835, 95 S.Ct. 2525 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). Whether a waiver of counsel is valid depends “in each case upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.” Edwards, 451 U.S. at 482, 101 S.Ct. 1880; see Wilkins v. Bowersox, 145 F.3d 1006, 1012 (8th Cir.1998), cert. denied, 525 U.S. 1094, 119 S.Ct. 852, 142 L.Ed.2d 705 (1999) (stating that “[i]n the waiver of counsel context, ... a defendant’s background and personal characteristics are highly relevant in determining the validity of such a waiver.”). In light of the importance of the assistance of counsel in our adversarial system of justice, courts are to “indulge every reasonable presumption against waiver [of the right to counsel].” Johnson, 304 U.S. at 464, 58 S.Ct. 1019. The Supreme Court held in Godinez v. Moran, “[a] finding that a defendant is competent to stand trial ... is not all that is necessary before he may be permitted to plead guilty or waive his right to counsel. In addition to determining that a defendant who seeks to plead guilty or waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary.” 509 U.S. 389, 400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). “The focus of a competency inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings.” Id. at 401 n. 12, 113 S.Ct. 2680 (emphasis in original). “The purpose of the ‘knowing and voluntary’ inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced.” Id. (emphasis in original). “A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (1948) (plurality). Citing the Supreme Court’s decision in Godinez, the Eighth Circuit explained that “[t]o validly waive counsel, a defendant must actually understand all of the relevant considerations; thorough advice from the court alone is not sufficient.” Wilkins, 146 F.3d at 1011. The Eighth Circuit further recognized that a trial court should not merely take the defendant’s statement that he is knowingly and intelligently waiving counsel “at face value.” Wise v. Bowersox, 136 F.3d 1197, 1203 (8th Cir.), cert. denied, 525 U.S. 1026, 119 S.Ct. 560, 142 L.Ed.2d 466 (1998). Shafer contends his waiver of counsel during the change of plea hearing was invalid because it was not a knowing, intelligent and voluntary waiver. In advancing this claim, Shafer heavily relies on the Eighth Circuit’s decision in Wilkins, invalidating a similar waiver of counsel. 145 F.3d at 1016-17. Citing the Supreme Court’s decision in Von Moltke, 332 U.S. at 721, 68 S.Ct. 316, Shafer asserts the trial court failed to conduct the type of thorough and penetrating examination of Shafer, regarding his stated desire to waive representation by counsel, to ensure that Shafer understood the rights being waived and that he was relinquishing them knowingly and voluntarily. The trial court is required, according to Shafer, to probe into the defendant’s background, physical and mental health, his knowledge of the nature of the charges and possible defenses, and whether any mistreatment or coercion influenced his decision to waive the right to counsel. The coercive effect of the conditions in the St. Charles County Jail, argues Shafer, strongly influenced his impulsive decision to waive counsel, plead guilty and seek the death penalty. In evaluating Shafer’s request to proceed pro se, Shafer asserts the trial court conducted only the most superficial inquiry, utilizing leading questions not designed to penetrate the surface, to determine if Shafer’s waiver of counsel was knowing, intelligent and voluntary. Shafer further contends the trial court and the Missouri Supreme Court committed legal error by resting their decisions, that Shafer validly waived his right to counsel, almost entirely on a finding that Shafer was competent to stand trial. The State contends this case is distinguishable from Wilkins, 145 F.3d at 1009-10. Moreover, stating that the Supreme Court’s decision in Von Moltke, 332 U.S. at 708, 68 S.Ct. 316 is “a half century old plurality decision,” the State asserts the Eighth Circuit was wrong in Wilkins for concluding that Von Moltke, sets out “clearly established federal law as determined by the Supreme Court of the United States,” as required by 28 U.S.C. § 2254(d)(1) to grant habeas relief. Two Eighth Circuit cases the State characterizes as similar to the case at bar are Wise, 136 F.3d at 1197, and Hunter v. Bowersox, 172 F.3d 1016 (8th Cir.1999). The State asserts the trial court’s holding, that Shafer was competent to waive counsel, was fully supported by an extensive mental health evaluation conducted by Dr. Richard N. Gowdy. Further relying on Dr. Gowdy’s opinion, the State contends Shafer’s decision to waive counsel was carefully considered and there was no evidence that he suffered from a mental disease or defect which would have precluded him from making the decision knowingly, intelligently and voluntarily. The State contends the trial court’s colloquy with Shafer regarding the waiver of counsel was constitutionally adequate. Shafer’s distress over jail conditions, the State argues, did not render his waiver of counsel unconstitutional. The State further contends Shafer did not receive ineffective assistance of counsel rendering his waiver of counsel invalid. The Court disagrees with the State’s argument that Von Moltke, 332 U.S. at 708, 68 S.Ct. 316, is not clearly established Supreme Court precedent. Both the Supreme Court and the Eighth Circuit Court of Appeals have recognized the validity of the decision in Von Moltke. See Penson v. Ohio, 488 U.S. 75, 86-87, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Patterson, 487 U.S. at 298, 108 S.Ct. 2389; Wilkins, 145 F.3d at 1013 n. 5 (stating that “[fjifty years ago, in Von Moltke, 332 U.S. at 724, 68 S.Ct. 316, ... the Supreme Court established the requirement that a judge’s inquiry regarding waiver of counsel must be comprehensive and probing.”). Even if Von Moltke is not clearly established federal law, other Supreme Court precedent mandates that the trial court ensure a waiver of counsel is knowing, voluntary and intelligent. See Godinez, 509 U.S. at 400, 401 n. 12, 113 S.Ct. 2680; Faretta, 422 U.S. at 819-21, 835-36, 95 S.Ct. 2525; Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942). The issue of Shafer waiving representation by counsel was first addressed by the trial court during a hearing on Shafer’s motion to proceed pro se, conducted on July 27, 1992. During this hearing, Shafer explained his rationale for seeking to waive the right to counsel. (PST at 5-17, 44-46). Shafer complained that none of the seven court-appointed attorneys up to that point had done anything to help him with his case. (Id. at 5-7, 46.) After stating that he did not want to cooperate with counsel, Shafer stated “I think that I’m best represented by myself because I know better than anybody what happened and that I’ve been on the case a lot longer than anybody.” (Id. at 6-7.) Responding to the prosecutor’s question about why he wanted to plead guilty, Shafer stated “I don’t see a trial date forthcoming any time soon and it would save the County and the State a lot of money in the cost of a trial, and if they didn’t get a conviction, you know, they would just have to start all over. This way it would be a sure conviction for the State.” (Id. at 8.) Although the trial court heard Shafer’s brief explanation for seeking to discharge his court-appointed counsel and proceed pro se, the trial court never explained to Shafer during the July 27,1992 hearing, the dangers of self-representation or inquired whether Shafer understood the potentially serious consequences of waiving his right to counsel. Shafer’s counsel introduced the written report and presented testimony from Dr. Cuneo, a licensed psychologist, at the July 27, 1992 hearing. Dr. Cuneo examined Shafer in May 1992 and diagnosed Shafer as suffering from personality disorder, NOS (not of the specified), which has both borderline and antisocial personality traits. (App. at 2543-48.) He opined that Shafer’s personality disorder could be classified as a mental disease. (App. at 2546; PST at 23, 29.) In Dr. Cuneo’s opinion, Shafer’s personality traits include: a pervasive pattern of instability of self-image, interpersonal relationships and mood; extreme manipulation; self-damaging impulsiveness; inappropriate intense anger and lack of control of anger; low frustration tolerance; recurrent suicide threats when he does not get his way; and a persistent identity disturbance relating to his sexual orientation. (App. at 2545-46; PST at 25-29.) Dr. Cuneo concluded that Shafer was capable of appreciating the wrongfulness of his conduct; was able to conform his conduct to the law; could .understand the nature and purpose of the proceedings against him; and could assist in his own defense. (App. at 2547; PST at 29-31.) As to Shafer’s ability to proceed pro se, Dr. Cuneo opined that Shafer’s personality characteristics “severely impaired this.” (PST at 30.) Further explaining his opinion, Dr. Cuneo testified, “[w]hat happens with Mr. Shafer is he’s extremely impulsive. He does not have the knowledge that he thinks that he has and when he gets into this he may change. He’s going to vacillate. He’s going to bounce from one day to the next and when it’s all over, he’s going to come back and say, T want a change,’ and he won’t have that option then.” (PST at 31.) In cross-examining Dr. Cuneo, the State referenced a written report of Dr. Terrance J. Kukor, a licensed psychologist, dated April 6, 1992, concluding that Shafer was competent to stand trial. (PST at 32.) The pretrial psychiatric examination of Shafer was conducted by Dr. Kukor pursuant to the trial court’s order under state law. (App. at 3931.) Dr. Kukor’s examination “concern[ed] the defendant’s competency to stand trial and criminal responsibility on a charge of Homicide.” (App. at 3931.) Shafer informed Dr. Kukor that he had been trying to plead guilty and get the death penalty. Dr. Kukor concluded this “dramatic behavior does not stem from any mental disease or defect, and is thought to be a manipulative gesture, possibly to elicit sympathy.” (App. at 3943.) Dr. Kukor diagnosed Shafer with antisocial personality disorder but concluded this disorder did not qualify as a mental disease or defect within the meaning of Missouri law. (App. at 3944.) Although Dr. Kukor did not examine Shafer for the purpose of determining whether Shafer was capable of knowingly, intelligently and voluntarily waiving his right to counsel, his report contains several references to Shafer’s relationships with the six attorneys, including Susan McGraugh, who had represented him as of April 1992. (App. at 3945-47.) In general, Shafer felt that all of the attorneys had “serew[ed] up” his case, had not worked too hard on his case and had ulterior motives while representing him. (App. at 3945.) He did not like having a female represent him and did not like McGraugh, in particular, because she was too bossy and tried to control his life and his case. (Id.) He either wanted to be represented by a male attorney or go pro se. (Id.) In the context of determining whether Shafer was competent to stand trial, Dr. Kukor concluded Shafer’s oppositional and disdainful attitude with his attorney “is the product of an antisocial personality disorder, and does not stem from any mental disease or defect[,]” and that “although [Shafer] may not be willing to cooperate with his attorney in the preparation of his defense, he has the capacity to do so.” (App. at 3945, 3946 (emphasis in original).) Following the July 27, 1992 hearing on the motion to proceed pro se, the trial court ordered that Shafer undergo a third pretrial mental evaluation. This evaluation was conducted by Dr. Richard N. Gowdy, a certified forensic examiner, in September 1992. Dr. Gowdy evaluated Shafer’s “competency to stand trial, his need for inpatient psychiatric treatment while awaiting further proceedings, whether or not he has a mental disease or defect, his responsibility for the alleged criminal actions, and his competency to waive his constitutional right to an attorney and appear pro se and to enter a guilty plea in exchange for the death penalty.” (App. at 3954.) After noting Shafer’s unwillingness to cooperate with any attorney who encourages him to seek life without parole, Dr. Gowdy concluded “[i]t appears that his decision to proceed pro se and to ask for the death penalty are decisions he has carefully considered to his satisfaction. There is no evidence that he suffers from a mental disease or defect which would preclude him from being able to waive his constitutional right to representation, to appear pro se and to plead guilty in exchange for the death penalty.” (App. at 3959 .(emphasis added).) After receiving Dr. Gowdy’s written report, the trial court conducted a second hearing on Shafer’s motion to proceed pro se on January 4,1993. Prior to answering the trial court’s questions regarding waiver of counsel, Shafer requested that the court order another evaluation because he alleged the prior evaluations were tainted by his attorneys advising him to provide false information and downplay his competency. (GPT at 7-8.) Denying Shafer’s request for a fourth evaluation, the trial court stated that “the Court is not concerned in regard to your competency any longer.” (GPT at 8.) The trial court found Shafer was competent to waive his right to counsel. (GPT at 12-13.) Addressing the knowing, intelligent and voluntary issue, the trial court explained: [I]f you want to discharge counsel, the Court will allow you to do so, but this has to be your decision and you have to be doing this freely and voluntarily and intelligently and without any coercion or any — any other reasons, and I must advise you that the Court believes that you would — it would be to your advantage to have an attorney, as the Court believes everyone should be represented by counsel to get legal advice, but this is your decision. Can you tell me what you wish to do? (GPT at 6-7.) Shafer did not answer the trial court’s question. (Id. at 7.) Rather, he asked to read a statement relating to his desire to plead guilty. (Id.) Shafer did not want to read the entire statement and asked the trial court to read it. (Id. at 10-11; App. at 2741-45.) After reading Shafer’s statement, the trial court observed: “Mr. Shafer, the bottom line of your letter here is again your request to discharge counsel and to enter a plea of guilty today to the two counts of first degree murder. You understand that?” (GPT at 12.) Shafer answered, ‘Yes.” (Id.) Returning to the issue of whether Shafer was knowingly, intelligently and voluntarily waiving his right to counsel, the trial court observed, “based upon its review of you personally and the communications, your intelligence level that the Court has observed of you, your — your letters that you have sent to the Court and are part of the court file, all of those have convinced the Court that the Court believes you know what you’re doing. Do you feel you know what you’re doing?” (Id. at 13.) Shafer answered, ‘Yes, I do.” (Id.) Following this exchange, the trial court granted Shafer’s motion to proceed pro se. (Id. at 13.) The prosecutor provided a written waiver of counsel form and Shafer signed it in open court. (Id. at 21-22.) After granting Shafer’s motion, the trial court ordered Shafer’s counsel to remain in the courtroom in the event Shafer desired to consult with him. (Id. at 13.) The trial court instructed Shafer’s counsel that he was not to participate in the proceedings or make any objections on behalf of Shafer. (Id. at 13-14.) After Shafer was sentenced and his case was on mandatory direct appeal to the Missouri Supreme Court, he filed a motion for post-conviction relief under Missouri law. The state post-conviction court held a three-day hearing on Shafer’s motion. During this hearing Dr. Kukor explained that his evaluation of Shafer in March 1992 was not for the purpose of expressing an opinion whether Shafer was able to knowingly, intelligently and voluntarily plead guilty, waive counsel or request the death penalty. (HT at 78-79.) Rather, Dr. Ku-kor’s examination was limited to assessing whether Shafer was competent to stand trial and whether Shafer had a mental disease or defect that would have rendered him unable to know or appreciate the nature, quality or wrongfulness of his actions or to conform his behavior to the law. (Id. at 78, 90-91.) Dr. Cuneo testified during the post-conviction evidentiary hearing. Following the imposition of the death penalty, Dr. Cuneo continued his evaluation of Shafer at the request of defense counsel. (HT at 107.) Expanding upon his written report dated June 17, 1992, which was introduced at the July 27,1992 hearing on Shafer’s motion to proceed pro se, Dr. Cuneo opined during the post-conviction hearing that Shafer did not knowingly and voluntarily waive his right to counsel and plead guilty. (Id. at 115-118,126,133,138.) Dr. Alice Vlietstra, a psychologist specializing in child development, agreed with Dr. Cuneo that Shafer suffered from a borderline personality disorder. (HT at 216-17.) During the post-conviction hearing, she explained that Shafer “was very demanding, he wasn’t able to think through consequences, there are a lot of severe mood swings, behavioral regression, and diminished ability to relate appropriately with others.” (Id. at 216-17.) Dr. Eldean Kohrs, a psychologist, first examined Shafer in 1987 and observed that at age 16 Shafer was “extremely incautious and reacts in a manner indicating he did not restrain his impulses or reflect on probable consequences.” (App. at 3024; HT at 272.) Pursuant to Shafer’s counsel’s request, Dr. Kohrs re-evaluated Shafer in 1994 and diagnosed Shafer as suffering from borderline personality disorder. (HT at 279-80.) Shafer has displayed self-defeating behaviors from at least the time he was in the third grade because he would respond to his emotions rather than looking at rational options. (Id. at 282.) In his written report, Dr. Kohrs stated “Robert meets the criteria for competency defined as ability to understand the court process and the charges against him. This does not, however, support pro se. He does not have the ability to proceed in a rational manner, but reacts impulsively on emotional issues without a clear appreciation of the consequences and his own vinci-bility.” (App. at 3030.) Dr. Kohrs opined that Shafer was not able to knowingly, intelligently and voluntarily waive his right to counsel and plead guilty. (HT at 290-91.) In 1994, Dr. William S. Logan, a psychiatrist, evaluated Shafer at the request of Shafer’s counsel. Dr. Logan’s primary diagnosis of Shafer was borderline personality disorder. (HT at 375.) According to Dr. Logan, Shafer’s borderline personality disorder interfered with his ability to make knowing, intelligent and voluntary decisions and affected his competency at the time of his guilty plea. (Id. at 384-88.) Dr. Logan opined that although Shafer had a factual understanding of the proceedings, it was not a rational understanding. (Id. at 388.) Dr. Logan explained that Shafer “could not knowingly and voluntarily make — or intelligently make decisions, because he did not understand the significance of his guilty plea. He had distorted things in his mind to the point that he was not anticipating or correctly evaluating the fact that this guilty plea would not be something that he could simply dismiss in a couple of weeks when he got a different attorney.” (Id. at 388.) On the voluntariness issue, Dr. Logan concluded Shafer’s mental illness was a continuing force acting upon him and to that extent his decision to plead guilty was coerced. (Id at 389.) During the mental health evaluation, Dr. Logan questioned Shafer about a series of letters authored by Shafer prior to his guilty plea. (See App. at 2549-747; HT at 390.) Throughout his testimony, Dr. Logan explained how several letters written by Shafer displayed the characteristics of an impulsive individual with a borderline personality disorder. (HT at 392, 398, 412, 415, 422, 424, 428, 433, 435, 452.) Upon reading and questioning Shafer about these letters, Dr. Logan formed the opinion that Shafer’s need to satisfy his immediate distress or needs interfered or diminished his ability to appreciate the long-term consequences of his decisions. (Id. at 411, 413-14, 425-26, 473, 492.) The first time Shafer suggested in writing to proceed pro se was August 8, 1991, when he was obsessed about having his attorney, Mr. Paul Madison, removed from his case. (HT at 412-13; App. at 2596-97.) Throughout the time Shafer was incarcerated in the St. Charles County Jail, he wrote letters to various individuals and entities, including the trial judge, expressing conflicting thoughts about whether he committed the murders; whether he wanted an attorney or to proceed pro se; suppressing his confessions; having a mental evaluation; and whether to go to trial or plead guilty. (App. at 2593, 2598, 2613-15, 2623, 2625-27, 2644, 2661-69, 2672-74, 2690-92, and 2709-24.) On the same day Shafer pled guilty, he wrote a letter to the trial court complaining that the prosecutor had. not complied with his and his attorney’s discovery requests and asked that the trial court require the prosecutor to fulfill his obligation to disclose the requested discovery. (App. at 2746.) During the post-conviction hearing, Dr. Logan testified that Shafer is not competent to stand trial because he cannot “cooperate with an attorney or reach rational decisions in his case about anything.” (HT at 472, 476, 452.) In Dr. Logan’s opinion, Shafer’s distress over the conditions in the St. Charles County Jail adversely impacted his competency to waive counsel and his ability to knowingly and voluntarily plead guilty. (Id. at 453, 423, 427, 430, 432, 442, 450, 489.) Due to illness, Dr. Patricia Fleming, a clinical psychologist, was unable to testify during the post-conviction hearing on Shafer’s motion. Dr. Fleming’s deposition was taken shortly after the hearing and the post-conviction court considered her testimony in ruling on Shafer’s Rule 24.035 motion. Shafer’s counsel at the time, Mr. Jimmerson, retained Dr. Fleming in the fall of 1992 to evaluate Shafer. (App. at 3965-97.) Dr. Fleming met with Shafer for approximately eight-and-one-half hours on December 11 and 12, 1992. (Id. at 3967, 3970.) From her evaluation of Shafer in December 1992, Dr. Fleming concluded Shafer was not competent to proceed pro se and that he was not able to make a knowing, voluntary and intelligent guilty plea. (Id. at 3970.) At the request of Shafer’s post-conviction counsel, Dr. Fleming continued her evaluation of Shafer in 1994 and 1995. (Id. at 3970-71.) Based upon her evaluation of Shafer from 1992 to 1995 and her review of voluminous documents, Dr. Fleming concluded Shafer suffers from a bipolar disorder and a borderline personality disorder. (Id. at 3972.) The bipolar disorder diagnosis indicates Shafer experiences both manic and depressive phases. (Id. at 3972-74.) An individual with a borderline personality disorder is “generally very up and down emotionally.” (Id. at 3974.) Dr. Fleming explained the similarities between bipolar disorder and borderline personality disorder: “both of them have the emotional highs and lows of a depressive quality and the agitation and the grandiosity of the manic phase. Both of them have that poor judgment, the poor planning, that — just inability to foresee consequences of your behavior.” (Id. at 3975.) Although Shafer had a factual understanding of legal proceedings, Dr. Fleming opined that he was unable to have a rational understanding and to make the proper judgment of his information. (Id. at 3978.) Dr. Fleming concluded Shafer was not competent to stand trial and he was unable to knowingly, voluntarily and intelligently waive his right to counsel and plead guilty. (Id. at 3979, 3988.) The state post-conviction court concluded that Shafer’s decision to waive counsel at the guilty plea stage was not the product of any mental disease and that Shafer understood the charges against him, the range of punishment for those charges and the right to representation at all critical stages of the proceeding. (App. at 3895.) The post-conviction court further concluded that after the notice of aggravating circumstances was filed in July 1992, the record does not disclose that Shafer was advised of the lesser included offenses, punishment for those offenses, possible defenses and the essential mental states for a determination of guilt. (App. at 3895.) Although Shafer was not advised of this information, the post-conviction court concluded it “would very likely have made no difference” because Shafer was intent on pleading guilty. (App. at 3895-96.) On the ultimate issue of whether Shafer intelligently and knowingly waived counsel at the guilty plea proceedings, the post-conviction court ruled that, considering the background, experience and conduct of Shafer, “[t]he shortcomings of the inquiry by the trial court at [the guilty plea] stage of the proceedings were of no significance to a defendant who was clearly and precisely admitting his guilt of the offenses charged. Even if the dangers of proceeding pro se and the advantages of having counsel had been more fully explained, the Movant, who only wanted to plead guilty, would not have changed his desire to waive counsel at the guilty plea.” (App. at 3896.) Based upon the above rationale, the post-conviction court denied Shafer’s claim that his waiver of counsel at the guilty plea stage was invalid. The Missouri Supreme Court affirmed the post-conviction court’s denial of Shafer’s claim that his waiver of counsel at the guilty plea stage was unconstitutional, concluding “Shafer was competent to waive counsel and that he did so knowingly and voluntarily.” Shafer, 969 S.W.2d at 731. Shafer contends the Missouri Supreme Court’s decision rejecting Shafer’s waiver-of-counsel claim was contrary to and involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court, or, alternatively, that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. One of the grounds for contending his waiver of counsel is unconstitutional is Shafer’s claim that his distress over conditions in the St. Charles County Jail rendered his waiver involuntary. He testified during the hearing on his motion to transfer to a new jail in December 1992 that he felt constantly under verbal, mental, and physical assault in the jail. (JT at 14.) Shafer began complaining of the conditions in the St. Charles County Jail as early as July 1990. (App. at 2555-56.) He wrote several letters to various individuals and organizations complaining about the conditions at the jail. (App. at 2555-56, 2659, 2636, 2666, 2672-74, 2682-84.) Mr. Jim-merson, Shafer’s counsel in December 1992, testified during the post-conviction hearing that Shafer’s frustrations with the jail increased after his motion for a transfer was denied because he felt he was being kept in an abusive situation. (HT at 643.) Dr. Fleming testified that Shafer was obsessed about the jail conditions and feared he would be sexually abused by guards and inmates. (App. at 3969, 3976.) Dr. Logan testified that Shafer was “quite distressed” about the conditions of his confinement and that his desire to get out of the jail “became an obsession with him.” (HT at 483-84, 489.) Ms. Barbara Hoppe, the transfer attorney for the public defender’s office, was aware of Shafer’s distress over the conditions of his confinement and she was concerned that he would say self-damaging things just to get out of the jail. (HT at 509.) During the change of plea hearing, Shafer informed the trial court that he was not pleading guilty just to get out of the St. Charles County Jail. (GPT at.) Dr. Logan opined that Shafer’s statements to the trial court actually meant that he did want to plead guilty just to get out of the jail. (HT at 450.) In Dr. Logan’s opinion, Shafer was paranoid and fearful of the conditions in the jail and he exhibited “almost frantic efforts ... to try and extricate himself from that situation.” (HT at 389.) The record appears to support Shafer’s claim that he was very distressed over the conditions of his confinement in the St. Charles County Jail, even though Shafer may have caused some of his own problems in the jail. It is interesting to note that the denial of Shafer’s motion to transfer to a new jail was announced just a few weeks before the final hearing on his motion to proceed pro se. The Court does not find, however, that the record supports Shafer’s claim that his distress over the conditions of his confinement, by itself, rendered Shafer’s waiver of counsel involuntary under Supreme Court precedent. Shafer heavily relies on the Eighth Circuit’s decision in Wilkins, affirming the district court’s grant of a writ of habeas corpus based upon the findings that Wilkins’ waiver of his right to counsel, his guilty plea, and his waiver of the right to present mitigating evidence were not made knowingly, intelligently and voluntarily. 145 F.3d at 1016-17. Wilkins waived his right to counsel, pleaded guilty to first-degree murder and was sentenced to death by a Missouri state court. Id. at 1008. Severe physical and emotional abuse were imposed on Wilk