Full opinion text
ORDER DENYING PETITIONER’S REQUEST FOR A WRIT OF HABEAS CORPUS BARTLETT, District Judge. I. Procedural History Petitioner Alan J. Bannister (Bannister) was convicted of the capital murder of Darrell Ruestman and sentenced to death in the Circuit Court of McDonald County, Missouri, on March 10, 1983. The Missouri Supreme Court affirmed his conviction and sentence. State v. Bannister, 680 S.W.2d 141 (Mo.1984). Thereafter, Bannister filed a motion under Missouri Supreme Court Rule 27.26 which the sentencing court denied on December 17, 1985. Bannister’s appeal from that denial was unsuccessful. Bannister v. State, 726 S.W.2d 821 (Mo. App.1987). On July 16, 1987, Bannister filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 23, 1987, Bannister’s execution was stayed in order to review his habeas petition. On July 29, 1987, attorney Bruce Baty was appointed to represent Bannister. On September 17, 1987, Bannister was granted leave to amend his habeas petition and his first amended habeas petition was filed. On December 14, 1987, the State responded to the Order to Show Cause. On February 22, 1988, Bannister again filed a motion to amend his habeas petition and to hold his habeas petition in abeyance pending resolution in state court of his second Rule 27.26 motion which was filed in the Circuit Court of McDonald County, Missouri, on February 26, 1988. On July 19, 1988, I issued an order dismissing Bannister’s petition for a writ of habeas corpus without prejudice in favor of exhaustion of state remedies. Bannister’s second Rule 27.26 motion was denied by the state trial court on April 12,1988. A notice of appeal was filed from that adverse ruling on April 13, 1988, and the case was transferred to the Missouri Court of Appeals, Southern Division. On June 30, 1988, the appeal was transferred to the Missouri Supreme Court at its direction. On September 1, 1988, the Missouri Supreme Court affirmed the judgment of the second Rule 27.26 stating that “[a]ll state remedies have been exhausted relating to Alan Bannister’s conviction, sentence and judgment.” On September 8, 1988, Bannister filed supplemental suggestions in support of his August 1, 1988, motion to amend or alter judgment requesting that I vacate the July 19, 1988, order dismissing Bannister’s petition because all claims had been exhausted. On October 26, 1988, Bannister filed a motion for stay of execution to provide an opportunity to review his habeas petition. On October 28, 1988, I issued an order staying execution. Also on October 28, 1988, I issued an order granting Bannister’s motion to amend or alter judgment in which I vacated the July 19, 1988, order and reinstated Bannister’s request for ha-beas review. On January 12, 1989,1 granted Bannister’s February 22, 1988, motion for leave to file a second amended habeas petition because all claims raised therein had been exhausted. Furthermore, in a memorandum filed on January 12, 1989, I deferred ruling on all pending discovery motions until the State’s response and Bannister’s traverse had been filed and examined. Pending resolution of these discovery motions, I ordered certain discovery collected and preserved. On January 13, 1989, Bannister filed his second amended habeas corpus petition in which he raised additional claims raised in his second Rule 27.26 motion. On February 9, 1989, the State filed a supplemental response to its initial response filed on December 14, 1987. Bannister filed a traverse on March 20,1989. The State filed a second supplemental response on May 5, 1989. On October 19, 1989, I issued an Order Permitting Further Briefing by Bannister on the issue of whether Ground 21 of his Second Amended Petition for Writ of Habeas Corpus was procedurally barred. On November 6, 1989, Bannister filed a supplemental brief in response to the State’s contention that Ground 21 was procedurally barred. II. Background In August 1982, Bannister was asked by a man named Ronald Rick Wooten, also known as “Indian,” whether he would like to make some money by killing a man. Indian explained that a man whose wife left him for another man wanted to have the latter killed. If Bannister accepted the job, he would receive $4,000 to commit the murder — $1,500 in advance and the remainder upon proof of death with a newspaper report. Indian would provide a gun and transportation. Bannister accepted the offer. The victim was Darrell Reustman. He was living at the Shady Lane Mobile Home Park in Joplin, Missouri. Also living with Reustman was Linda McCormick who was then married to Richard McCormick. On August 20, 1982, Bannister arrived in Joplin and registered at a motel under a name different from his own. On August 21, 1982, at approximately 10:00 p.m., Linda McCormick was awakened by knocking at the door of the trailer where she and Reustman were living. When Reustman answered the door, Bannister fatally shot him. At approximately 5:00 a.m. on August 22, 1982, Bannister was arrested by Joplin and Newton County police officers for the murder of Darrell Reustman. Bannister was identified in a lineup by McCormick and two other witnesses as a man seen near the Reustman trailer shortly before the murder. Subsequently, Bannister revealed to the police many details of the crime and led officers to certain pieces of physical evidence including the murder weapon. On February 3, 1983, a jury found Bannister guilty of capital murder and later that evening recommended the death penalty. The aggravating circumstances designated by the jury were that Bannister had a history of serious assaultive convictions and that Bannister murdered Darrell Reustman for the purpose of receiving money. III. Discussion In the discussion that follows, the grounds for relief are numbered according to their number in Bannister’s Second Amended Petition. I will address Bannister’s claims in the order in which Bannister presents them in his Traverse. Bannister grouped them by subject matter rather than by following the order in which they were set out in his Second Amended Habe-as Corpus Petition. I will depart from that organizational scheme primarily when addressing grounds for relief that Bannister first raised in his second Rule 27.26 motion. In his Traverse, Bannister states that he is abandoning Grounds 1, 8, 16 and 20. Also, Grounds 3, 5, 12, 14, 17 and portions of 13 are deemed abandoned because Bannister does not discuss them in his Traverse or provide any reasons anywhere in the record why relief should be granted on those grounds. A. Jury Panel Claims Ground 11 Bannister was not denied his right to due process and an impartial jury where the trial court limited the scope of voir dire examination Bannister argues that the trial court denied his right to due process and an impartial jury by refusing to permit him to use open-ended questions to determine a prospective juror’s true feelings about the death penalty. Bannister’s claim that his rights to due process and to an impartial jury were violated is based on the following excerpts from the voir dire: Mr. Gordon [defense counsel]: [L]et me just ask you, what religious persuasion do you follow? Venireman Christerson: Methodist. Mr. Gordon: Do you know if the Methodist Church of the National Institution has any declared policy on the death penalty? Venireman Christerson: No, I don’t. Mr. Gordon: You’re not aware of that? Venireman Christerson: I don’t know if they do or not. Mr. Lentz [prosecutor]: Your Honor, may we approach the bench? (The following proceedings were had out of the hearing of the jury panel:) Mr. Lentz: Your Honor, at this time I would object to voir diring on the death penalty. I followed the case, I believe the only question permissible on that attitude. I’d ask the court to make a ruling on it now. They are apparently going to voir dire on what their church or anybody else feels about the death penalty. I think the question is extremely limited to the question as I gave it to the jury out of the leading case in the matter. Mr. Gordon: If it pleases the court, I’m not aware that only one question can be asked, and I would suggest that there are at least two areas, one challenge is for cause, and the other challenge is for peremptory challenges, and that in fairness, I ought to be able to delve into this just a little bit further to determine if there is a basis for an intelligent decision on my part, and at least for peremptory challenges. Mr. Lentz: Your Honor, I have this case here, it’s 447 [477] SW 2d 552, and it says that the provision, 546.1300, which allows the State to, and the defense to voir dire the parties on their decision on the death penalty, it follows Witherspoon, and I think it’s clear that the question anymore is of conscientious and religious scruples which would make it difficult for them too. That would be religious or moral or conscientious scruples, and I feel that the question is if they could never vote to impose the death penalty and it has been answered, and I would ask the Court to limit it, if not in this case, limit him carefully on this because I’m not allowed to go into it. The Court: I think I’ll let you go into the further area as to their religious affiliation if you desire to do that. The thing that would bother me is that if you are just asking an open-ended question here that would in effect let the juror go into some kind [of] discourse. I think we’re going to be here a long time if you do that. I’m not going to tell you you can’t do that. I'd prefer that you didn’t. Mr. Gordon: Thank you, Your Honor. Tr. 386-88. Counsel then asked Christerson about whether he had ever held an office in his church. No attempt was made to ask further questions about religion. Tr. 388-89. Later, petitioner’s counsel asked the following question of Venireman Christerson: Mr. Gordon: Okay. Now, there again, the prosecutor mentioned something about the death penalty as a possibility in this kind of case. The other possibility would include prison. How do you feel about prison as punishment? Mr. Lentz: Your Honor, could we approach the bench? The Court: Objection is sustained. (The following proceedings were had out of the hearing of the jury panel:) Mr. Gordon: Your Honor is not going to allow me to argue at all? The Court: Yes, you can make your argument. Mr. Lentz: He’s allowed to address the issue whether they consider the full range of punishment, and not what they think about prison itself. The Court: Make your argument. Mr. Gordon: If it please the court, I think that whether a person is convicted or not convicted, how harsh they will be has something to [do] with their attitude about prison as punishment, and I think it’s not directed solely to the issue of the death penalty, but whether or not they would be a fair and impartial juror in this kind of criminal case, and I would respectfully ask the court to allow me to inquire as to their attitudes about prison as a punishment. Now, we’re not talking about alternatives. Mr. Lentz: The question what do you think about prison, that opens up everything. The Court: That’s the reason I’m sustaining it. That’s just wide open. If you want to ask the question that calls for a yes or no answer, that may be something else, but I just don’t think you ought to open this up for them to give a discourse on. Your question is too broad. Mr. Gordon: Do I understand that the court’s ruling is that I may not ask any open-ended questions in this case? They always must call for a yes or no answer? The Court: No, I’m not saying that. I’m saying that the question is too broad. Tr. 395-97. Thereafter, the proceedings returned to open court and Gordon asked the following question of Venireman Christerson: Mr. Gordon: Punishment is part of what we talk about when we talk about transgressions, be it against the moral law, God’s law, man’s law, or whatever. There are several different theories which we can’t go into today about punishment, and what is punishment. Do you believe that one of the functions of punishment should be to rehabilitate a person? Venireman Christerson: Well, yes, I think that when they have to get out, I think that they have to know the changes of society because everything keeps changing, you know where to fit in again. Tr. 397-98. Later, defendant’s attorney asked Veni-rewoman Spears whether she could set aside her personal feelings about the death penalty if selected to be on the jury. Tr. 404. After the prosecution objected, a discussion was held outside the hearing of the jury. Defendant’s counsel asserted that he believed the question was allowed under Witherspoon in order to attempt to rehabilitate a panel member. Tr. 406. Defense counsel was allowed to ask the question. Tr. 410. Then a discussion occurred about whether defense counsel could inquire about various hypothetical circumstances to see if the panel member would consider the entire range of punishment. Mr. Gordon: ... If I understand it correctly, the question put to the juror is if the proper set of circumstances arose, could you consider all the ranges of punishment including the death penalty, and that doesn’t mean just this case. That’s my understanding of it. The Court: Well, that may be, but we’re not going to be here and let you or the jurors dream up situations which are not this case, under which the death penalty could be assessed or could possibly be assessed. We never will get through the process if we’re going to pick situations out of the air where that might be a possibility. Tr. at 413. The Court: I don’t really care whether you are limited to this case or not, as long as your question is couched in such a way that they understand that whatever — at the conclusion of whatever case, under the Court’s instructions, the issue of the death penalty, if that is a possibility, if they will consider it along with everything else. Mr. Gordon: That’s what I intend to do, [Y]our Honor, but I don’t think I have to read verbatim out of any particular case. The Court: I’m not saying you have to do that either. Mr. Gordon: And I think just because the prosecutor has asked a question doesn’t mean that I can’t ask it again, either the same, or in different form. The Court: Well, that’s probably right, but at some point it may reach the place where it is repetitious, and if we get to that point, then I’ll rule on it, and probably disallow further questioning as repetitious. Mr. Gordon: I understand, [Y]our Honor. But, at least in this particular issue, which is so important, I think I have a right to ask the question over again, and in a slightly altered form. The Court: That would be right. Tr. at 416-17. The Missouri Supreme Court considered Bannister’s claim that the trial court unduly limited the scope of voir dire and found the following: Appellant objects to the limitation on defense counsel’s use of open-ended questions. This limitation was reasonable, a proper exercise of the court’s discretion in controlling the proceeding, and left the defense free to rephrase its questions .... The panel members were questioned on their ability to consider the full range of punishment, including the death penalty. There is no evidence of either an abuse of discretion or of injury to the defendant resulting from the court’s rulings. State v. Bannister, 680 S.W.2d 141, 145 (Mo. banc 1984). The constitutional significance of voir dire was described in Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981) (citation omitted): Voir dire plays a. critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled.... Similarly, lack of adequate voir dire impairs the defendant’s right to exercise peremptory challenges where provided by statute or rule, as it is in the federal courts. Specifically, a defendant in a capital case must be allowed to ask questions of prospective jurors about whether they are willing to consider all of the penalties provided by state law. See Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 1777 n. 21, 20 L.Ed.2d 776 (1968). After an independent review of the record, I agree with the Missouri Supreme Court. In neither of the situations relied upon by Bannister did the trial court unreasonably restrict defense counsel in his examination of the panel. As the judge stated, his ruling on the prison question was only that the particular question was too broad. Whether the subject was religion or prison as a punishment option, counsel could have and did ask other questions to obtain information about the panel members’ attitudes. The trial judge did not unreasonably restrict the questioning of prospective jurors about whether they would be able to impartially follow the court’s instructions and evaluate the evidence. Defense counsel had a reasonable opportunity to examine the prospective jurors on whether they could consider all of the penalties provided by state law. Accordingly, Bannister was not deprived of due process or his right to a fair and impartial jury by the two instances where the trial judge expressed concern about open-ended questions. Ground 10 Bannister was not denied his right to due process and an impartial jury when the trial court refused to exclude Venireman Morris for cause Bannister moved to strike Venireman Morris for cause because he believed Morris exhibited a clear predisposition in favor of the death penalty as opposed to life imprisonment. Bannister argues that the trial judge erroneously failed to remove Venireman Morris for cause. During voir dire, the prosecutor started to ask the panel if they knew any of the people who might be called as witnesses, but then the following occurred: [B]ut I’d like to ask first if any of you are aware that the maximum penalty, not necessarily the only penalty, but at least one of the penalties in a capital murder case could be death. You realize that? Venireman Morris: Could I stop and ask a question there? It might sway my opinion on how I would vote if you were to find him guilty, and you didn’t put him to death. What I’m saying is I don’t want him put in a jail cell at my expense. Tr. II at 350-51. After this answer by Morris, the prosecutor returned to asking about possible witnesses. Later during voir dire, Bannister’s attorney moved to strike Morris from the panel for cause and the court denied the motion: Mr. Gordon: Mr. R.E. Morris, Your Hon- or, he indicated that a dislike, I think, for people being put in jail at the taxpayers’ expense, and I think that would make him biased and in favor of the death penalty automatically without respect to whether or not there are any other extenuating circumstances. The Court: That will be refused. Tr. II at 451. Bannister asserts that Morris exposed a clear predisposition in favor of the death penalty over life imprisonment. Bannister contends that under Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), a juror must be willing to consider mitigating factors in determining the appropriateness of life imprisonment as opposed to the death penalty. Because Venireman Morris was biased in favor of the death penalty without regard to mitigating circumstances and was unwilling to consider life imprisonment as an option, the trial court should have excused him for cause. Petitioner’s Traverse, Doc. 46 at 29-30. As a result of the trial judge’s denial of the request to strike Morris for cause, Bannister argues that he was forced to exercise a peremptory challenge to remove Morris from the panel, thereby denying him the opportunity to freely exercise the full number of peremptory challenges to which he was entitled. Therefore, Bannister claims his rights to due process and an impartial jury were denied. The impartial jury guaranteed by the Sixth Amendment consists of jurors “who will conscientiously apply the law and find the facts.” Wainwright v. Witt, 469 U.S. at 423, 105 S.Ct. at 851-52. A prospective juror may not be excluded for cause because of his/her views about capital punishment unless those views “‘would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Id. at 425, 105 S.Ct. at 852 (quoting Adams v. Texas, 448 U.S. 38, 45,100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)). Because Bannister seeks habeas corpus relief pursuant to § 2254, I must “accord any findings of state courts on ‘factual issues,’ a ‘presumption of correctness’ under 28 U.S.C. § 2254(d).” Wainwright, 469 U.S. at 426, 105 S.Ct. at 853. Last Term, in Patton [v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984)], supra, we held that a trial judge’s finding that a particular venireman was not biased and therefore was properly seated was a finding of fact subject to § 2254(d). We noted that the question whether a venireman is biased has traditionally been determined through voir dire culminating in a finding by the trial judge concerning the venireman’s state of mind. We also noted that such a finding is based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province. Such determinations are entitled to deference even on direct review; “[t]he respect paid such findings in a habeas proceeding certainly should be no less.” Id. at 428, 105 S.Ct. at 854. Excluding prospective jurors because of their views on capital punishment “is no different from excluding jurors for innumerable other reasons which result in bias.” Id. at 429, 105 S.Ct. at 855. The trial judge’s “predominant function in determining juror bias involves credibility findings....” Id. Credibility determinations rest largely on observation of demeanor, the peculiar province of the trial judge in this situation. Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 2892, 81 L.Ed.2d 847 (1984). “These are ‘factual issues’ that are subject to § 2254(d).” Wainwright v. Witt, 469 U.S. at 429, 105 S.Ct. at 855. Here, the trial judge’s refusal to grant the motion to strike Morris was denied. Under the circumstances, it is fair to conclude that the trial judge’s denial was based on a finding that Morris had not been shown to be biased. Id. at 429, 105 S.Ct. at 855. The finding of the trial judge is, therefore, “ ‘presumed correct’ unless one of the enumerated reasons in § 2254(d) for avoiding the presumption is present.” Id. at 431, 105 S.Ct. at 856. Bannister relies on § 2254(d)(8) — that the failure to find bias is “not fairly supported” by the record viewed “as a whole.” Morris volunteered his remark in the midst of the State’s voir dire on other topics. Significantly, neither counsel examined Morris further about his views or whether his views would prevent him from following the court’s instructions. Substantial doubt about whether Morris was doing anything other than showing off arises from Morris' failure to respond on either of the two occasions when the prosecutor asked all the prospective jurors whether they could follow the evidence in the case and all the instructions and give the defendant a fair and impartial trial, and a fair and impartial verdict. Tr. II at 360-62. Morris did not respond in the negative although some other venirepersons did respond negatively. Id. Furthermore, when asked in voir dire by defense counsel whether he thought that proof beyond a reasonable doubt was too strong a burden to ask of the State, Morris replied, “A man is innocent until proven guilty.” Tr. II at 427-28. (This answer suggests that Morris did not mean to say that if prison were a possibility, it would influence his decision on whether Bannister was guilty or not guilty.) Crucial to any determination about whether Morris was saying that he would not follow the court's instructions is Morris’ demeanor when he asked the “question.” Morris’ comment might very well have been intended to gain attention. Both counsel's failure to follow up and establish whether Morris would be unable to follow the court’s instructions suggests that the comment was not taken seriously at the time. “The question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are fairly supported by the record.” Id. at 434, 105 S.Ct. at 857. Bannister has not presented clear and convincing evidence that the factual finding of the trial judge was not fairly supported by the record. Because the trial court did not err when refusing to strike Venireman Morris for cause, Bannister was not deprived of his due process rights or his Sixth Amendment right to an impartial jury by having to exercise a peremptory challenge to remove Venireman Morris. Ground 13 Bannister was not denied his right to due process and an impartial jury when the trial court excused Venireman Melton for cause Bannister argues that Venireman Melton was improperly excluded from the jury based on his reluctance to consider the death penalty. Bannister, therefore, contends that he was deprived of his rights to due process and an impartial jury. During voir dire examination, the following exchange occurred between defense counsel and Melton: Mr. Gordon: Are you telling me you would not consider it [the death penalty]? Venirem[a]n Melton: It would be against my conscience to do so. Mr. Gordon: Well, I don’t think I’m getting the answer. Would you consider it, yes or no, sir? Venirem[a]n Melton: Would I consider the death penalty, no. Mr. Gordon: Okay, do you think there are not [a] set of circumstances in which you would consider the death penalty? Venireman Melton: You would have to give me a hypothetical situation. I don’t know what you’re getting at there. Mr. Gordon: Well, we can’t be involved in hypotheticals today. I’ve taken a lot of time as it is to talk to you folks, and we can’t get into that. But are you saying that— Venireman Melton: I’m not saying my mind is not bendable, but right now it’s pretty well set. Mr. Gordon: Well are you telling me that if the proper set of circumstances were set before you, and the judge instructed you to consider the range of punishment, the entire range, and part of that range was the death penalty, are you telling me it’s possible that you would consider it? Venireman Melton: I would consider it, but I would probably come up with the same answer. Mr. Gordon: I’m not asking if you would invoke the death penalty, I’m asking if you would consider it as instructed by the judge. Venireman Melton: I would consider it. Tr. II. at 530-31. Later in the voir dire, the trial judge took up any challenges for cause. The Court: Any challenges for cause? Mr. Lentz: Kathryn Bennett. The Court: She’ll be excused. Mr. Lentz: I’m not sure whether Mr. Melton answered the same question in two different ways or not. I think he answered the same thing differently, because I asked him directly under those circumstances if he would consider the death penalty, and he responded affirmatively, and when Ray asked him the same question and he said he would. If the Court would consider voir diring him on his attitude, that’s the only other person I have a question about. The Court: What do you say, Mr. Gordon? Mr. Gordon: I think he said he could consider it, Judge. I think he’s rehabilitated. Mr. Lentz: Well, I don’t want him struck for cause after his last answer, but I would like him voir dired by the Court as to what his position is. I don’t know if he’s rehabilitated or just answered the same question two different ways. Mr. Gordon: I think he answered it pretty specifically, Judge. He said he could consider it. He said he could consider it in a proper case. He said it might turn out the same way, but that he could consider it. The Court: Any others? Mr. Lentz: Not for me, Judge. Mr. Gordon: Judge, I don’t think I have any. (The following proceedings were returned to open court:) The Court: Mr. Melton, I don’t mean to pick on you, but the attorneys have both, I guess, picked on you a little bit, so let me ask you this question, which dealt with your feelings on the consideration of the death sentence along with other various possibilities. You were pretty clear when you indicated to the prosecuting attorney that you could not consider the death sentence as one of the alternatives under any circumstances, and then later on under questioning by Mr. Gordon, you indicated that you felt that you could consider that as one of the alternatives along with— Venireman Melton: He asked if I would consider what you said, and I said I would consider it, but I didn’t change the alternative. The Court: Well, let me just put it to you this way, are there any circumstances under which you could feel that you could or could not vote for the death penalty, and I ask you maybe that— that’s not clear. Under any circumstances, in the considering of all of the various options, could you vote for the death penalty? Venireman Melton: Eternity is a long time, Judge, and as a pastor, I feel it would ruin my entire ministry if I would say yes. I can just pronounce what God has said, Thou shalt not judge, not only that, from my ministry, for the man himself, and I would hope that he had every opportunity for making it right before I would come along and say you are dead. The Court: All right, you are an ordained minister? Venireman Melton: Licensed minister. The Court: And are you active and have a church? Venireman Melton: Yes. The Court: All right, I’m going to at this time excuse Kathryn Bennett and Mr. Melton. You two are free to go at this time. I do thank you for coming, and you’ve helped us even though you’ve not been selected. (The following proceedings were had out of the hearing of the jury panel:) Mr. Gordon: Excuse me, [Y]our Honor, are you excusing Mr. Melton for cause? The Court: I am excusing Mr. Melton. I know he’s an ordained minister. I’ll leave it open to you. Mr. Gordon: I think I’m entitled to an answer, Judge. Are we excusing him for cause? The Court: I’m excusing him for cause, but that includes also the fact he’s an ordained minister. Mr. Gordon: Thank you. Tr. II at 571-75. Bannister argues that Melton was “improperly excluded under the standards enunciated in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and its progeny.” Traverse at 35. As discussed in the previous point, the standard after Wainwright for determining whether to excuse a juror for cause based on his/her opinion about capital punishment is “whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Id. 469 U.S. at 419, 424, 105 S.Ct. at 850, 852. The trial judge’s determination on juror bias is a factual conclusion accorded the “presumption of correctness” under 28 U.S.C. § 2254(d). Wainwright v. Witt, 469 U.S. at 429, 105 S.Ct. at 855. Bannister argues that the trial court’s determination of Venireman Melton’s bias against the death penalty is not fairly supported by the record and, therefore, should not receive any deference under 28 U.S.C. § 2254(d)(8). Although conceding that much of Melton’s testimony is ambiguous, Bannister focuses on what he characterizes as Melton’s “unequivocal statement that he would consider the death penalty as instructed by the judge_” Bannister suggests that the trial judge’s decision to exclude Melton “stands in stark contrast” to the judge’s refusal to strike Morris. Upon reviewing the record, the trial judge’s determination of juror bias is fairly supported by the record. On the face of the record, Melton’s responses are inconsistent. He said at one point that he would not consider the death penalty. Later, he somewhat equivocally said that he would consider it if asked to by the judge. Still later, Melton said that he would consider the death penalty “but [he] didn’t change the alternative.” Tr. II at 573. The trial judge could have taken this to mean that although Melton would consider the full range of punishment, he was predisposed against the death penalty. This conclusion is supported by Melton’s statement that it would ruin his ministry if he said there were circumstances under which he could vote for the death penalty. Tr. II at 573. Thus, in light of all Melton’s statements, the trial judge’s decision to strike Melton for cause based upon juror bias was supported by the record. Accordingly, Bannister’s rights to due process and to an impartial jury were not abridged when the trial court excused Venireman Melton for cause. B. Ineffective Assistance of Counsel Claims Ground 19 Bannister was not denied his Sixth Amendment right to effective assistance of counsel by Gordon’s decision not to investigate Bannister’s psychiatric condition and was not denied due process when the trial court denied Bannister’s motion for psychiatric examination . Bannister argues that he was denied his Sixth Amendment right to effective assistance of counsel because his counsel, Ray Gordon, failed to investigate his psychiatric condition and to present a mental defect defense. Bannister also argues that Gordon failed to investigate and present evidence of Bannister’s psychiatric history during the penalty phase. Bannister further asserts that he was denied his right to due process when the trial court failed to grant his pro se motion for psychiatric examination. Standard of Review The Sixth Amendment guarantees a criminal defendant effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). When a defendant fails to receive effective assistance of counsel, a “fundamental constitutional error” has taken place which “undermines the entire adversary process.” Pickens v. Lockhart, 714 F.2d 1455, 1459 (8th Cir.1983) (citing Thomas v. Wyrick, 535 F.2d 407, 413 (8th Cir.), cert. denied, 429 U.S. 868, 97 S.Ct. 178, 50 L.Ed.2d 148 (1976)). Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.... 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.’ Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984) (citations omitted). A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690, 104 S.Ct. at 2066. The habeas corpus petitioner bears a heavy burden in establishing that his counsel’s assistance was not effective. Pickens, 714 F.2d at 1459. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of conviction has two components: 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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The proper standard for determining whether counsel’s performance was deficient is “whether counsel’s assistance was reasonable considering all the circumstances.” Id. at 688, 104 S.Ct. at 2065. The court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690, 104 S.Ct. at 2066. Even if counsel’s performance were deficient, the judgment should not be set aside “if the error had no effect on the judgment.” Id. at 691, 104 S.Ct. at 2066. The defendant must “affirmatively prove prejudice,” i.e., that the error or errors “actually had an adverse effect on the defense.” Id. at 693, 104 S.Ct. at 2067. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. Id. at 694, 104 S.Ct. at 2068. Both the performance and prejudice components of the ineffectiveness inquiry present mixed questions of law and fact. Id. at 698, 104 S.Ct. at 2070. “[S]tate court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of § 2254(d).... ” Id. 2. State Proceedings At Bannister’s arraignment on September 20, 1982, he entered a standard not guilty plea rather than a plea of not guilty by reason of mental disease or defect. Respondent’s Exhibit F-2 at 1. Thereafter, neither defendant nor his attorney filed a notice of intent to rely on a defense of not guilty by reason of mental disease or defect. On January 12, 1983, Bannister filed a pro se “Motion for Mental Examination” requesting an “order directing that defendant be examined for his competency to stand trial and to determine his responsibility for his actions at the time of the alleged offense.” Respondent’s Exhibit F-2 at 2. The only basis for the motion was Bannister’s statement: “I think I need psychiatric help.” On January 18, 1983, the trial court held a hearing on pretrial motions including Bannister’s pro se motion requesting a mental examination. Petitioner testified but spent most of the time talking about another motion. When asked by his attorney why Bannister wanted a mental examination, Bannister testified that he had “been losing sleep," "getting irritable,” waking up “sometimes,” losing his temper “quickly” and losing his “train of thought.” In summary, he said, “I just don’t feel right.” Tr. I at 136. Bannister testified that neither he nor his family had a history of mental illness. Id. at 137. In response to some questions by the judge, Bannister testified that he had completed several years of college and had no attendance problems. Bannister also knew the day of the week and date. Tr. I at 143-44. At the close of the hearing, the trial court made the following finding: With respect to his motion for a mental examination, Mr. Bannister has written the court, a copy of that letter has been read by his counsel. It will be made a part of the file. The letter is very well written. No confusions of thought or expression evidenced in the letter. Mr. Bannister, and that’s for the court’s inquiry, as to today is certainly oriented as far as time is concerned, the day of the week, the month, the year, and the day of the month. He’s responded as to the number of siblings in his family, where he appears in that order. Certainly there is no indication evidenced to the court today that he is in anything other than good mental state of health. The motion for examination for psychiatric examination is going to be overruled. I hope he does, but I’m sure you could advise him, Mr. Gordon, if he desires to obtain a mental examination on his own, of course that’s his privilege, his opportunity. ... Tr. I. at 162-63. In Bannister’s first Rule 27.26 hearing, the trial court made these factual findings: 4. On August 23, 1982, public defender, Ray Gordon, was appointed to represent the movant in the case. Since being licensed as an attorney in 1966, Gordon has been employed as a defense attorney, prosecutor and magistrate judge. In addition, Gordon has participated in approximately twenty-four (24) criminal jury trials. 5. On September 9, 1982, attorney Gordon conducted the preliminary hearing. 6. On September 15, 1982, Gordon filed and served upon the state a request for discovery pursuant to Supreme Court Rule 25.03. 7. On October 13, 1982, state filed it’s (sic) answer to defendant’s request for discovery and Gordon received as discovery, voluminous documentary materials from the state. 8. Gordon conferred with movant on repeated occasions with regard to the case with movant aptly assisting his counsel in his defense and in preparation of trial. 9. On October 4, 1982, Gordon filed Motion to Suppress Statement of movant. Hearing was held on October 25, 1982 and on Novembe[r] 1 and 5, 1982, with movant testifying. Motion to Suppress was overruled. 10. On January 12, 1983, movant filed pro se Motion for Mental Examination with a hearing held on said Motion on January 18, 1983. That trial court conducted an interview of movant at said hearing and also observed movant at suppression hearing. 11. That movant testified ably at hearing on Motion to Suppress and at hearing on Motion for Mental examination, and movant was capable of articulating his thoughts and promoting his position and movant’s responses to questions from the trial court revealed clear understanding of the proceedings. 12. That Gordon observed movant on numerous occasions and movant appeared normal with no evidence of any duress. 13. That Gordon did not have any evidence that movant was dominated by another person. 14. That no substantial or credible evidence has been offered by movant that Bannister was in fact mentally incompetent or insane. Respondent’s Exhibit F-l at 27. Based on these factual findings, the trial court rejected Bannister’s contention that his attorney was ineffective for not requesting a mental examination and for not investigating Bannister’s need for a mental evaluation: In claim 8 of movant’s First Amended Motion and in paragraph 8(b) of movant’s Pro Se motion, movant attacked his attorney’s effectiveness for failure to request/secure a mental examination and for failure to investigate movant’s need for such an evaluation, and that court violated his constitutional rights by refusing to order a mental examination. Trial court is vested with broad discretion when ordering a mental examination. State v. Beal, 602 S.W.2d [at] 22 [Mo.App.1980] and Court had ample opportunity to examine and observe mov-ant and did not err nor violate movant’s constitutional rights. Movant has failed to meet its burden here since counsel[,] based on observations and conference with defendant[,] had reached the conclusion that his client was capable of assisting him at trial and was not under duress, and appeared normal. Garrett v. State, 554 S.W.2d [at] 462 [Mo.App.1977]. Respondent’s Exhibit F-l at 30. Furthermore, in Bannister v. State, 726 S.W.2d 821, 829-30 (Mo.App.), cert. denied, 483 U.S. 1010, 107 S.Ct. 3242, 97 L.Ed.2d 747 (1987), the Court of Appeals made these additional findings: While the defendant [was] in custody pri- or to trial, he was seen and examined by physicians on at least three occasions. There is no indication whatever that he showed any signs of mental disturbance. The only medicine prescribed for the defendant was an analgesic to relieve back pain he suffered from severe stab wounds in the back. Shortly before trial, the defendant prepared and trial counsel filed a “Motion for Mental Examination.” Defendant testified in support of his motion as follows: Q. Would you tell the Court why you feel that it is necessary for you to be examined at this time? A. I’ve been losing sleep. I’m getting irritable, and I wake sometimes and just — I just don’t feel right. Q. Have you ever had any history of mental illness? A. No. Q. Any history of it in your family that you know of? A. No. Q. Have you ever had a mental examination in the last ten years? A. No. At the close of the hearing on this motion, the trial court ruled the motion on its merits, observing that the defendant had written a letter concerning] his request for a mental examination. The court commented: ... Mr. Bannister ... as to today is certainly oriented as far as time is concerned, the day of the week, the month, the year, and the day of the month, certainly there is no indication evidenced to the Court today that he is in anything other than [a] good mental state of health. The motion for examination for psychiatric examination is going to be overruled. The matter of defendant’s mental state was brought up again at the post-conviction hearing. At that time, some reference was made to medical records, including mental evaluations, which could be obtained. Counsel was given time to obtain those records. They were not forthcoming. The post-conviction court finally concluded that the trial court had ample opportunity to observe the defendant on at least two occasions and there was no error in denying defendant’s request for psychiatric examination. Having examined the record independently, we reach the conclusion that the defendant’s sanity was never in fact at issue during the trial or at the sentencing phase. An accused is not entitled to psychiatric evaluation solely as a precautionary] safeguard in the absence of evidence that he lacks capacity to proceed to trial. He is not entitled [to] psychiatric assistance in presenting his defense or in mitigating his punishment in the absence of a showing that his sanity is at issue in the case. There is therefore no merit in the assertion that the trial court denied the defendant due process. The redundant assertion that trial counsel was ineffective because he failed to investigate defendant’s mental condition as a defense and as a mitigating circumstance is likewise without substance. “Section 2254(d) by its terms, ... applies to factual determinations made by state courts, whether the court be a trial court or an appellate court.” Sumner v. Mata, 449 U.S. 539, 548,101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981). Furthermore, [a]n ineffective assistance of counsel claim presents a mixed question of law and fact. Eldridge v. Adkins, 665 F.2d 228, 236 n. 5 (8th Cir.1981), cert. denied, 456 U.S. 910 [102 S.Ct. 1760, 72 L.Ed.2d 168] (1982). Therefore, the presumption of correctness accorded the factual determinations of the state court under 28 U.S.C. § 2254(d) ... applies only to the historical facts underlying the attorney’s performance but not to the ultimate conclusion as to whether or not effective assistance has been rendered. Kellogg v. Scurr, 741 F.2d 1099, 1101 (8th Cir.1984) (citations omitted). Because Bannister has not established that one of the seven exceptions in § 2254(d) applies, or that the findings of the trial court, Rule 27.26 court, or appellate court are not fairly supported by the record, or that by convincing evidence these findings are erroneous, the state court’s factual findings as set forth above are presumed correct. See 28 U.S.C. § 2254(d). 3. Expanding the Record Bannister seeks to expand the record by filing affidavits pertaining to his psychiatric history and condition. Specifically, Bannister seeks to file the affidavits of Kerry Hough, Mary Morrissey, Alan Bannister, Linda Garland, Kathleen Dunbar, R.J. Gordon, Robin Bannister, Phyllis Call, Joseph Volpe and Alice Bannister. Petitioner also seeks in a second motion to expand the record to add the reports of Trooper Richards and Sheriff Abramovitz as well as Bannister’s handwritten letter to the trial judge and Bannister’s pro se motion requesting a psychiatric examination. Furthermore, Bannister seeks a psychiatric examination and the opportunity to take the deposition of Ray Gordon. Respondent opposes Bannister’s motions to expand the record and for additional discovery because Bannister had the opportunity to present this evidence at his Rule 27.26 proceeding but failed to do so. I agree with respondent. To allow Bannister to expand the record and to pursue additional discovery at this point would undercut the state court’s fact finding procedures and thereby circumvent the exhaustion requirement. Bannister filed a Motion for Continuance of his first Rule 27.26 proceeding in order to allow his attorney to further investigate his psychiatric history. The Rule 27.26 court, however, suggested, without expressly finding, that Bannister's counsel had had sufficient time to investigate all matters and denied Bannister’s Motion for Continuance. Although it denied Bannister’s Motion for Continuance, the Rule 27.26 court stated: I’m going to formally deny your motion for continuance. However, if you can [complete your investigation] within a week, I would suggest you go ahead and do it. Because if you can do it within a week and if you think — you’ve told me that you’re operating in good faith and I certainly believe you when you say that — if you can do that in good faith and you do come up with something that you in good faith feel is significant, I have to dictate findings of fact and conclusions of law and I’m not going to get that done in a week. Because I’m going to give the attorneys an opportunity if they so desire, to submit some to me. So you’re going to have over a week, although I’m denying your motion for continuance.... I would certainly reconsider if you in good faith could tell me you’ve got something, on the mental issue especially. Respondent’s Exhibit G at 51. Thus, the Rule 27.26 court provided Bannister with the opportunity (over one week) to investigate and submit additional evidence concerning petitioner’s psychiatric history. The Rule 27.26 court’s docket sheet shows that petitioner did not file additional briefing or proposed findings of fact or law summarizing the results of any further investigation into petitioner’s psychiatric history. See Respondent’s Exhibit F-l at 36. Thus, Bannister’s counsel apparently did not avail himself of the opportunity to conduct further investigation or the investigation did not support Bannister’s position. The Rule 27.26 court’s determination that Bannister’s attorney had had sufficient time to investigate all matters concerning Bannister’s psychiatric history is a finding of fact entitled to the § 2254(d) presumption of correctness. Because Bannister has not established that one of the seven exceptions in § 2254(d) applies or that the Rule 27.26 court’s determination was not fairly supported by the record, or that, by convincing evidence, this finding was erroneous, I must presume that this factual finding is correct. Accordingly, because Bannister had sufficient opportunity to expand the record in the state court proceedings but did not do so, he will not be permitted to expand the record or seek further discovery in this court. 4. Merits of Ground 19 a. Bannister was not denied effective assistance of counsel when his attorney chose not to further investigate Bannister's psychiatric condition According to the American Bar Association Standards for Criminal Justice: It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or the accused’s stated desire to plead guilty. 1 ABA Standards for Criminal Justice, Standard 4-4.1 (2d ed. 1980) (quoted in Pickens, 714 F.2d at 1460). In Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, the Supreme Court stated: [Cjounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. See also Beans v. Black, 757 F.2d 938, 936 (8th Cir.), cert. denied, 474 U.S. 979, 106 S.Ct. 381, 88 L.Ed.2d 334 (1985). Even if counsel’s investigation is inadequate under the circumstances, the habeas petitioner must meet “the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Strickland, 466 U.S. at 696, 104 S.Ct. at 2069. Gordon’s decision not to investigate Bannister’s psychiatric history was reasonable given all the circumstances. As the state courts determined, Bannister had not presented any factual basis for concluding that he suffered from mental disease or defect at the time of the murder or when he requested a psychiatric examination. Bannister stated at a pretrial hearing that he did not have a history of mental illness, no one in his family had a history of mental illness and that he had not had a mental examination in the last ten years. The Rule 27.26 court stated that Gordon had observed Bannister on several occasions prior to trial and that Bannister appeared normal with no evidence of any duress or domination by another person. Furthermore, the Rule 27.26 court stated that Bannister had offered no substantial or credible evidence to establish that he was mentally incompetent or insane. Respondent’s Exhibit F-l at 27. The Missouri Court of Appeals, after independently examining the record, found that Bannister had made no showing that his sanity was an issue either during the trial or at the sentencing phase. See Bannister v. State, 726 S.W.2d 821, 829 (Mo.App.), cert. denied, 483 U.S. 1010, 107 S.Ct. 3242, 97 L.Ed.2d 747 (1987). In light of these presumptively correct state court findings, Gordon reasonably decided not to expend time investigating Bannister’s mental condition when Bannister’s mental condition did not reasonably appear to be an issue. b. Bannister was not denied his right to due process when the trial court denied his motion for psychiatric examination In support of his argument that his due process rights were violated when the trial court refused to grant his pro se motion for a psychiatric evaluation, Bannister relies on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake, the United States Supreme Court held that “when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense.” Id. at 83, 105 S.Ct. at 1096. Based on the factual findings of the state trial court, Rule 27.26 court and appellate courts set forth at pp. 28-33, and after an independent review of the record, I conclude that at no time did Bannister make the showing required by Ake that his sanity at the time of the offense was to be a significant factor at trial. In fact, the only support Bannister provided to the trial court concerning his request for a mental examination was his statement in his motion, “I think I need psychiatric help,” and his testimony in response to the court’s inquiry about the basis of his request for a mental examination, “I’ve been losing sleep. I’m getting irritable and I wake sometimes and just — I just don’t feel right.” See Bannister v. State, 726 S.W.2d at 829-30; Respondent’s Exhibit F-2 at 2. That Bannister experienced irritability, insomnia and general distraction is understandable considering that at the time, he was incarcerated, charged with murder and facing a potential death sentence. Accordingly, Bannister’s due process rights were not violated by the trial court’s refusal to grant his motion for mental examination. Ground 18 Bannister’s claim that he was denied effective assistance of counsel by Gordon’s failure to explain that a limiting instruction would be available regarding Bannister’s prior convictions if Bannister chose to take the stand and testify during the liability phase is denied Bannister asserts that his trial attorney failed to explain to him that Missouri Approved Instruction-Criminal (2d) (MAI-Cr2d) 3.58 would be available to limit the jury’s consideration of his prior convictions. Therefore, Bannister contends that his decision not to testify during the liability phase of the trial was uninformed and that Gordon’s failure to explain the availability Of the limiting instruction constituted ineffective assistance of counsel. Petitioner raised this claim in his first Rule 27.26 motion. Respondent’s Exhibit F-l at 16. The first Rule 27.26 court ruled: “Movant, in claim 7 of First Amended Motion, alleges ineffective counsel for attorney’s failure to explain MAI-CR2d 3.58 and defendant’s refusal to testify was unknowing, unintelligent and involuntary and as such made his decision uninformed. Movant produced no evidence to support this claim.” Respondent’s Exhibit F-l at 30. Petitioner did not appeal the,Rule 27.26 trial court’s ruling. See Respondent’s Exhibit H-l. Petitioner was represented during the appeal of his first 27.26 motion by an attorney other than trial counsel. Respondent argues that under Missouri law, petitioner’s failure to appeal the Rule 27.26 court’s ruling constitutes abandonment of the claim. Thus, because Bannister procedurally defaulted under state law, federal habeas review is barred absent a showing of “cause” and “prejudice.” Bannister argues that this ground is not procedurally barred. He contends that the determination of whether this claim is barred should be governed by the “deliberate by-pass” standard of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Secondly, Bannister argues that any procedural default should be excused because this is a death penalty case. Lastly, Bannister argues that because issues pertaining to Gordon’s effectiveness have been “exhaustively litigated” in state court, this court may review this claim on the merits without “insult to principles of federalism.” In Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977), the Supreme Court held that to obtain federal habeas review of claims that have been defaulted under adequate and independent procedural rules, habeas petitioners must show “cause” for t