Full opinion text
MEMORANDUM AND ORDER STOHR, District Judge. I. INTRODUCTION This matter is before the Court on David R. Leisure’s amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 7, 1987, in the Circuit Court of the City of St. Louis, Missouri, a jury found petitioner guilty of capital murder. On April 9,1987, in accordance with the jury’s verdict, petitioner was sentenced to death. On direct appeal, the Missouri Supreme Court affirmed the conviction and sentence. State v. Leisure, 749 S.W.2d 366 (Mo. banc 1988). Thereafter, in state court, pursuant to Rule 29.15 of the Missouri Rules of Court, petitioner filed for postconvietion relief seeking to vacate his sentence. Petitioner’s amended Rule 29.15 motion] was denied after an evi-dentiary hearing. The Missouri Supreme Court affirmed the denial of postconviction relief. Leisure v. State, 828 S.W.2d 872 (Mo. banc 1992). Petitioner filed his original pro se petition for a writ of habeas corpus in this Court on October 30, 1992. The Court appointed counsel to represent petitioner and on August 31, 1993, petitioner filed his amended petition. Subject to further consideration upon the examination of the merits of the amended petition, the Court denied petitioner’s request for an evidentiary hearing and petitioner’s ex parte request for leave to conduct a psychiatric examination. II. BACKGROUND To resolve petitioner’s claims, an understanding of the complex factual background of this case is necessary. On direct appeal, the Missouri Supreme Court summarized the facts as follows: According to the record, the murder in question was the product of simultaneous power struggles within an organized crime entity described as being composed of persons of Syrian and Lebanese descent within St. Louis and Local 110 of the Laborers Union, which was headed by the victim, James A. Michaels, Sr.; Michaels was the reputed head of “the Syrians.” The record further reveals that a second, competing organized crime unit existed in St. Louis known as “the Italians,” headed by Anthony Giordano. In early 1977, Ray Massud promised Anthony Leisure, appellant’s cousin, that he would succeed Massud as Local 110’s business manager. While in the hospital with a terminal illness, Massud changed his mind, asking Anthony Leisure to accept the job of assistant business manager and to allow John Massud, his son, to serve as business manager of the union. Anthony Leisure agreed. On June 30, 1977, after Ray Massud’s death, the appointments were made to the Union positions in accordance with the agreement. Under the “terms” of the agreement, Leisure would control the hiring and firing of union officers; John Massud would operate the union office. John Massud began to hire Union officers without consulting Anthony Leisure. Moreover, Massud hired Vince Giordano, nephew of Anthony Giordano, as a union organizer. Mike Trupiano, another nephew of Anthony Giordano, became Union president in May of 1979, with Massud’s blessing and, again, without Anthony Leisure’s consent. Angered by Massud’s breach of their agreement and his resulting loss of power within the union, Anthony Leisure met with his brother Paul, Ronald Broderick, John Ramo, Charles Loewe and appellant to consider whether John Massud should be murdered for violating the agreement. The group reached no decision. The Lei-sures feared Massud’s political ties in St. Louis City politics. Later, Massud complaining that the union payroll was too high, announced that he planned to fire Broderick. Broderick was the only union officer Anthony Leisure had appointed. The Leisures, including appellant, Broderick, Ramo and a Fred Prator [sic], convened another meeting. Again, the subject was the preservation of Anthony’s power within the union. The group again thought it unwise to kill Mas-sud for the reasons earlier stated; nor did they wish to start a war with the Italians by killing Trupiano. They selected James Michaels, Sr., as their victim. Michaels’ death would enhance the. Leisures’ position among the Syrians. It would also send a strong message to the union leadership. The Leisures also believed that Michaels had protected the murderer of appellant’s older brother, Richard. After an unsuccessful attempt to shotgun Michaels at a St. Louis restaurant, appellant and his coconspirators decided to bomb Michaels’ car. On September 4, 1980, appellant and Ramo stole a car that matched the make and model of Michaels’ car, and practiced planting a bomb. Appellant followed Michaels around the city to learn of his habitual movements. On September 17, 1980, appellant spotted Michaels’ car in the parking lot of St. Raymond’s Catholic Church. The participants in the plan to kill Michaels moved into action. Anthony Leisure, Broderick and Ramo picked up a van belonging to Broderick’s son. They drove the van to another location, where they retrieved the bomb and joined appellant. Prepared now to kill, they drove to St. Raymond’s Church, parking the van next to the victim’s car. Appellant slid under Michaels’ car and attached the bomb; the quartet drove the van to a strategic place where they could see Michaels return to his car. The victim came out of the church with his grandson, James Michaels, III, a Local 110 union organizer. The senior Michaels entered the car and began talking with his grandson through an open window. Appellant suggested that the bomb be detonated at that instant in order to kill both Michaels. Anthony Leisure convinced appellant otherwise. The van followed as the elder Michaels drove away from the church. Anthony tried to detonate the bomb several times without success; the radio controlled detonating device refused to work. For a moment, the murderers lost Michaels but saw his car on 1-55. Giving chase, they caught their victim. Anthony again threw the switch on the detonating device: the bomb did not go off. Frustrated, Anthony threw the switch again and again until finally the bomb exploded. The victim’s upper torso was ripped from the rest of his body and thrown from the car. ■ It struck the windshield of the vehicle following. The van immediately left the highway and headed toward Illinois. Breaking up the remote control detonating devices, the murderers threw pieces out as the van sped along. In Illinois, they washed the van several times. Returning to Missouri, they stopped at an automobile supply store where appellant bought new windshield wiper blades in an attempt to remove all traces of the explosion from the van. A stop at a drug store brought rubbing alcohol and shaving lotions, which were used to remove the odor of explosives from the hands of the killers. Approximately a week after the murder, Paul Leisure met with John Vitale, the new leader of the Italians. (Anthony Gior-dano had died.) Leisure and Vitale agreed that the Syrians would control the Local 110. Two relatives of Michaels lost their union jobs immediately after the murder. State v. Leisure, 749 S.W.2d at 369-70. Both Ronald Broderick and John Ramo testified at petitioner’s trial regarding the above events. To fully analyze petitioner’s claims, an understanding of the history of this case and several related criminal proceedings is also necessary. The .following is an overview of some of the relevant events relating to the deadly crime war which began sometime in late 1979 in the St. Louis, Missouri area involving the control of union locals. As stated above, on September 17, 1980, James A. Michaels, Sr., (“Jimmy Michaels”) was killed when a bomb exploded in his ear while he was driving on Interstate 55 in St. Louis. On August 11,1981, petitioner’s older cousin, Paul Leisure, was seriously maimed, losing both legs and suffering hand, facial and other injuries when a bomb exploded in his automobile parked in front of his home in St. Louis. On September 11, 1981, Charles John Michaels, the grandson of Jimmy Mi-chaels, and Dennis Day were injured in a shooting at The Edge restaurant in St. Louis. On October 16, 1981, George “Sonny” Fa-heen was killed when a bomb exploded in his car parked in the Mansion House garage in St. Louis. On October 17, 1981, Michael Kornhardt was arrested on state capital murder charges in connection with Faheen’s death and subsequently released on bond. On July 31, 1982, Kornhardt’s body was found in St.' Charles County, Missouri. Kornhardt died from a gunshot wound. On August 4,1982, petitioner was arrested on state capital murder charges in connection ■with Faheen’s death and, subsequently, released on bond. In exchange for immunity, on August 6, 1982, Fred Prater testified before a federal grand jury in the United States District Court for the Eastern District of. Missouri regarding the murder of Michael Kornhardt, the shooting at The Edge restaurant and the car bombing of Paul Leisure. On September 16, 1982, petitioner was arrested on state assault charges arising out of the shooting at The Edge restaurant. Subsequently, petitioner was again released on bond. On April 13, 1983, a six-count federal indictment was filed charging Paul Leisure, Anthony Leisure, John Ramo, Joe Broderick, Charles Loewe, Robert Carbaugh, Steven Wougamon and petitioner with violations of the Racketeering Influenced and Corrupt Organizations laws, 18 U.S.C. § 1961, et seq., (“RICO”), obstruction of justice and firearms (explosive device) violations. At about the same time, state indictments were filed in the Circuit Court of the City of St. Louis against all except Carbaugh, charging capital murders and assaults, including a charge of capital murder against petitioner for the death of Jimmy Michaels. On April 2, 1985, a federal jury returned its verdicts on the federal indictment, finding petitioner guilty of all charges. Petitioner was sentencing to a total of 55 years. Subsequently, petitioner was transferred from federal custody to state custody. On March 30, 1987, the trial for the murder of Jimmy Michaels (the underlying trial herein) commenced in the Circuit Court for the City of St. Louis, the Honorable Jack Koehr presiding.- The jury returned a verdict finding petitioner guilty of capital murder. On April 9, 1987, following a one-half day penalty phase hearing, petitioner was sentenced to death. Petitioner’s codefend-ants in the capital murder charge stemming from the Michaels’ car bombing, Anthony Leisure and Paul Leisure, were convicted of capital murder in separate trials and were sentenced to life imprisonment without possibility of parole for fifty years. State v. Anthony Leisure, 810 S.W.2d 560 (Mo.App.1991); State v. Leisure, 772 S.W.2d 674 (Mo.App.1989). Subsequently, on May 15, 1989, petitioner was found guilty of the capital murder of George “Sonny” Faheen and sentenced to life imprisonment by the state court because the jury was unable to agree on punishment. State v. Leisure, 838 S.W.2d 49 (Mo.App.1992). III. PETITIONER’S DIRECT APPEAL AND POSTCONVICTION PROCEEDINGS On May 4, 1987, petitioner moved for a judgment of acquittal notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the motion. Petitioner filed his direct appeal and, in a split decision, the Missouri Supreme Court affirmed the conviction and sentence. State v. Leisure, 749 S.W.2d 366 (Mo.1988). All three of petitioner’s motions to recall the mandate were denied. Resp. Exhs. F and G. On May 18, 1988, pursuant to Missouri Rule 29.15, petitioner filed a pro se postcon-viction motion to vacate his conviction and sentence. On July 18, 1988, petitioner’s appointed counsel filed an amended Rule 29.15 motion. On August 11, 1988, the circuit court dismissed both the pro se and amended motions without an evidentiary hearing. On May 16, 1989, the Missouri Supreme Court vacated the circuit court’s judgment of dismissal and remanded with directions to hold an evidentiary hearing. On remand, petitioner filed his second amended Rule 29.15 motion, which was dismissed on March 2, 1990 as untimely. Subsequently, the circuit court sustained the State’s motion to dismiss/disallow any further amended motions, thereby denying any requests for time to file any further pleadings or adduce evidence on issues not contained in the pro se or first amended Rule 29.15 motions. An evidentiary hearing was held over several days. The testimony and evidence were limited to matters raised in the original pro se Rule 29.15 motion and the first amended Rule 29.15 motion. Pursuant to Rule 29.15(h), the circuit court received petitioner’s testimony by deposition. The circuit court again denied the pro se and amended Rule 29.15 motions. The Missouri . Supreme Court affirmed the denial, including the circuit court’s denial of petitioner’s request to file a second, amended 29.15 motion. Leisure v. State, 828 S.W.2d 872 (Mo. banc 1992). The United States Supreme Court denied petitioner’s petition for a writ of certiorari. Leisure v. Missouri, 506 U.S. 923, 113 S.Ct. 343, 121 L.Ed.2d 259 (1992). IV. PROCEDURAL BAR ANALYSIS A federal court reviewing a state conviction in a 28 U.S.C. § 2254 proceeding may consider only those claims which the petitioner has presented to the state court in accordance with state procedural rules. Gilmore v. Armontrout, 861 F.2d 1061, 1065 (8th Cir.1988). This requirement implicates both the question of whether petitioner has exhausted all remedies available in the state courts (the exhaustion requirement), and whether he has preserved his claims for federal habeas corpus review by complying with state procedural rules governing their presentation (the procedural default inquiry). Id. The question of whether a claim is proee-durally barred is distinct from the inquiry concerning whether a claim has been exhausted. Satter v. Leapley, 977 F.2d 1259, 1261 (8th Cir.1992). A federal court may entertain a claim which has been proeedurally defaulted in the state courts if petitioner can show cause to excuse his state court default as well as resulting prejudice from the default, or if petitioner can show that a fundamental miscarriage of justice would result from the Court’s failure to entertain the claim. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Coleman v. Thompson, 501 U.S. 722, 750-52, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Sawyer v. Whitley, 505 U.S. 333, 339-41, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Failure to satisfy the procedural default analysis mandates rejection of that particular ground. V. ANALYSIS A. Ground I: The Death Sentence Imposed Upon Petitioner Violated his Rights Under the Fifth, Eighth and Fourteenth Amendments Because of the Disporpor-tionality of His Death Sentence When Compared to the Life Sentences Imposed Upon the Petitioner’s Accomplices Who Had Greater Culpability for the Murder For Which They Were All Convicted. In his first ground for relief, petitioner claims that he has been deprived of his constitutional rights under the Fifth , Eighth and Fourteenth Amendments because the death sentence imposed upon him is excessive in light of the life sentences imposed upon his cousins, Paul Leisure and Anthony Leisure, for the same crime and the dismissr al of charges against Charles Loewe, another alleged co-conspirator. Petitioner argues that of all the convictions in the related state murder trials, only petitioner has been sen-fenced to death, even though the evidence demonstrated that petitioner was the least culpable of the group, was mildly mentally retarded, ill-educated and a substance abuser. “The Eighth Amendment does not require that courts compare the sentences imposed in similar cases.” Foster v. Delo, 39 F.3d 873, 882 (8th Cir.1994) (citing Pulley v. Harris, 465 U.S. 37, 48-51, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984)) (there is no constitutional requirement for states to establish a form of proportionality review). Nonetheless, the Missouri legislature has mandated a proportionality review of all cases where the death sentence is imposed in Missouri courts. R.S.Mo. § 565.035. Although the Constitution does not mandate proportionality review, once in place, it must be conducted consistently with the Due Process Clause. Kilgore v. Bowersox, 124 F.3d 985, 996 (8th Cir.1997); Foster v. Delo, 39 F.3d at 882 (“Where a state creates a right, such as a defendant’s right to review of his sentence, the Fourteenth Amendment of course entitles him to procedures to ensure that the right is not arbitrarily denied.”) Where the Missouri Supreme Court conducts the relevant review and concludes that the punishment is not disproportional to that imposed for similar crimes in similar cases, a habeas claim presents no basis for relief. Foster v. Delo, 39 F.3d at 882; Murray v. Delo, 34 F.3d 1367, 1376-77 (8th Cir.1994); LaRette v. Delo, 44 F.3d 681, 688 (8th Cir.1995). Pursuant to R.S.Mo. § 565.035, the Missouri Supreme Court conducted a thorough proportionality review of petitioner’s sentence and stated: The jury found that this murder involved “.torture or depravity of mind” and that the murder was “outrageously or wantonly vile, horrible or inhuman.” Section 565.032.2(7). Murders involving similar levels of depravity have consistently resulted in the death penalty, [case citations omitted] Here, appellant and others coolly and deliberately discussed potential victims, how the death of each would enhance the Leisure family influence, and calmly voted which to kill. The murder was carefully planned, prepared, the victim stalked, and. the plan implemented with neither remorse nor regret. Appellant was an integral part of the entire sordid episode, personally surveilling the victim and planting the bomb. Contrary to appellant’s suggestion and only because cooler heads prevailed, was the bomb not exploded in the church parking lot, claiming another victim. The victim’s body was blasted apart. Pieces of his- flesh were scattered all over an interstate highway. Pieces of his body rained down on other motorists. A careful attempt to hide and destroy evidence followed. Appellant’s actions were conscienceless and pitiless; they were the product of a depraved mind, a mind which knew right from wrong but which chose to kill to further the economic ends of his family. The death penalty was neither disproportionate nor excessive. Appellant knowingly created a risk of death to more than one person by means of a device which would normally be hazardous to the lives of more than one person. Section 565.032.2(3). The detonation of an explosive device, designed and placed to kill a driver, on an interstate highway is unquestionably hazardous to the lives of more than one person and displays a complete indifference to the lives of others. This Court upheld the death penalty in State v. Griffin, 662 S.W.2d 854 (Mo. banc 1983), cert. denied, 469 U.S. 873, 105 S.Ct. 224, 83 L.Ed.2d 153 (1984), in which the defendant sprayed bullets from a semiautomatic weapon at his victim in the presence of bystanders. This case is similar to Griffin. Appellant willingly placed innocent persons at risk. He carried out his murderous plot with a single-minded purpose, which saw only, and cared only, .for the death of his intended victim, without regard for others who, too, faced peril from his plan. State v. Leisure, 749 S.W.2d at 382. Citing relevant Missouri eases and the psychological testimony from trial that petitioner understood the difference between right and wrong, the court rejected petitioner’s claim that his lack of education and generally low intelligence rendered the death penalty disproportionate and excessive. Id. Citing the fact that petitioner participated in the selection of the victim and helped form and refine the plan for the murder, the court also rejected petitioner’s claim that his , sentence was disproportionate because he was simply a follower under the influence of others. Id. at 383. Noting that the life sentences received by petitioner’s cousins were not determinative of the proportionality issue, the court stated that “after a review of other cases, the defendant and the facts of this case, we hold that the death penalty was proper and ... neither disproportionate nor excessive.” Id. The Missouri Supreme Court exercised its discretion and judgment in conducting a proportionality review against a backdrop of other Missouri cases. The Court conducted a comparison of petitioner’s case with similar cases and concluded that the death penalty was not disproportionate to the crime of which petitioner was convicted. There is no basis for petitioner’s claim that the Missouri Supreme Court’s procedure and findings deprived petitioner of his due process rights or his rights under the Eighth Amendment. See Kilgore v. Bowersox, 124 F.3d at 996; LaRette v. Delo, 44 F.3d at 688; Six v. Delo, 94 F.3d 469, 478 (8th Cir.1996). In spite of well-settled authority that petitioner fails to state a claim for habeas -relief on grounds- of lack of proportionality, petitioner relies upon Pilchak v. Camper, 935 F.2d 145, 148 (8th Cir.1991), and claims that his sentence is unconstitutionally disproportionate, arbitrary, irrational and fundamentally unjust. Trav. pp. 8-11. In Pilchak, the Eighth Circuit affirmed the district court’s grant of a new trial to a petitioner who was serving a life sentence after being convicted of a drug crime. In Pilchak, the petitioner had been represented at trial by an attorney suffering from Alzheimer’s disease and was found guilty by a jury that was unconstitutionally selected. In affirming the district court’s granting of the writ, the Eighth Circuit stated that the petitioner “was not the proper subject for a sentence of a lifetime of incarceration____ In this regard, we again point out that the principal conspirator ... was sentenced to a term of years, which sentence has resulted in his already having gained his freedom.” Id. at 148. The Eighth Circuit did not hold in' Pilchak, as petitioner suggests, that the petitioner’s sentence was unconstitutionally disproportionate to the lesser sentence imposed upon the more culpable accomplice. Rather, the Eighth Circuit stated that “we have chosen not to discuss in detail the basis for our believing that the sentence was improper. We think that there are elements of equal protection, substantive due process, 'and unusual punishment involved in the lifetime sentence, any one of which may be sufficient under the facts of this action to support our position.” Id. at 148 n. 5. The Eighth Circuit’s findings and holding in Pilchak do not support petitioner’s argument that his proportionality claim is the proper subject of habeas review. Even if this Court were to reevaluate the Missouri Supreme Court’s proportionality review, ample authority supports upholding petitioner’s death sentence. This Court would concur with the Missouri Supreme Court that the death sentence was neither disproportionate nor excessive. For all of these, reasons, the Court will deny all relief requested in Ground I of the amended petition. B. Ground II: The Death Sentence Imposed Upon Petitioner Violated His Rights Under the Fifth, Eighth and Fourteenth Ajmendments Because the Jury was Presented with Irrelevant Gruesome Photographs Solely to Inflame Them. In his second ground for relief, petitioner alleges that at the penalty phase, the trial court erroneously admitted into evidence state’s Exhibit 52, a photograph of George “Sonny” Faheen’s charred remains (“Faheen photograph”). The- Faheen photograph depicts the aftermath of the Faheen car bombing and shows Faheen’s burnt corpse fused to the seat of his automobile. Pet.Exh. 3. Petitioner asserts that the Fa-heen photograph had no probative value and was offered solely for its prejudicial and inflammatory impact. Petitioner alleges that the admission of the Faheen photograph is an independent violation of his Eighth Amendment right to be free from cruel and unusual punishment by arbitrary sentencing and that the admission so fatally infected the trial that it denied him of his due process right to fundamental fairness. During the penalty phase of the trial, petitioner stipulated to his federal RICO conviction. The jury received a certified copy of the judgment and commitment report of the RICO conviction and the indictment upon which the conviction was based. Tr. Tran. Vol. X, pp. 2-3. Count I of the federal indictment charged petitioner with committing six criminal acts including: (1) the murder of James Michaels, Sr.; (2) the conspiracy to murder James Anthony Michaels, III, Milton Schep, and others; (3) the attempted murder of John Charles Michaels; (4) the murder of George Faheen; (5) the murder of Michael Kornhardt; and (6) the intimidation of Steve Wougamon with the intent to obstruct justice. The trial judge informed the jury that the federal jury needed only to have found petitioner guilty of two of the six acts alleged in the RICO indictment to convict and that the federal jury did not specify the two acts on which it based its guilty verdict. Tr. Tran. Vol X, p. 3. During the penalty phase, the state called as a witness Stephen Sorocko, the bomb and arson technician from the St. Louis Metropolitan Police Department who had observed the aftermath of the Faheen ear bombing. The trial court overruled repeated objections by petitioner’s trial attorney to the state’s introduction of the Faheen photograph. Tr. Tran. Vol. IX, pp. 4-9 and Vol. X, pp. 6-9. Sorocko testified about the Faheen car bombing and the Faheen photograph was admitted into evidence. '.On cross-examination, Sorocko testified that petitioner had not yet been found guilty of Faheen’s murder. Tr. Trans., Vol. X., pp. 10-11. In determining that the admission of the Faheen photographs was not erroneous, the Missouri Supreme Court stated: After the publication of the RICO information to the jury, the court admitted photographs of the body of George Fa-heen, who had been killed in a car bombing. The court admonished the jury that appellant had not been convicted of these murders; on cross-examination, the state’s police witness testified that appellant had not had “a chance to prove his innocence for the murder of George Faheen.” [TJhe trial court has broad discretion in ruling evidence [sic] offered during the penalty stage of a capital case. While we agree the subject photographs are gruesome, the fact remains they were relative to circumstances surrounding the death of' George Faheen-and connected and tied to one of the six criminal acts charged in the federal indictment. The trial judge specifically pointed out to the jury that the defendant had not been convicted of the various other murders alleged in that indictment. Under the graphic and gruesome evidence received during the guilt phase of the trial, we find no error which calls for reversing the penalty assessed by the jury. State v. Leisure, 749 S.W.2d at 378-79. Moreover, the Court stated: Even if we assume .error for the sake of argument, that error is not prejudicial; The jury listed the RICO conviction as a nonstatutory aggravating circumstance. It also found three statutory aggravating circumstances, any of which was alone sufficient to justify the death penalty, [case citations omitted] The facts before the jury were clear and essentially uncontroverted. Appellant participated in the selection of the victim as a target for murder. He stole a car identical to the victim’s to enable him to plant the bomb quickly. He stalked the victim to learn of his habitual movements. He attached the bomb to the victim’s car. He participated in efforts to remove evidence of the crime from the van. The murder was the product of appellant’s desire to achieve economic benefit from the victim’s death. The murder itself was horrible and vile. From these uncontroverted facts, including photographs of the carnage on 1-55, the jury sentenced appellant to die. Given the grisly evidence already before the jury, the challenged photographs were simply cumulative of the photographs of the victim’s body in this case. We find no prejudice. The point is denied. Id. at 379. In reviewing a federal habeas petition, this Court does not determine whether evidence is inadmissible as a matter of state law after the highest state court has determined that the evidence is admissible. Sweet v. Delo, 125 F.3d 1144, 1154 (8th Cir.1997) (citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). Because the Missouri Supreme Court has determined that the admission of the Faheen photograph into evidence was proper, the Court’s review of petitioner’s claim of eviden-tiary error is limited to whether the admission of the photograph “infringed upon a specific federal constitutional right” or was “so grossly or conspicuously prejudicial that it fatally infected the trial and denied petitioner fundamental fairness.” Ford v. Armontrout, 916 F.2d 457, 460 (8th Cir.1990) (citing Wood v. Lockhart, 809 F.2d 457, 459-60 (8th Cir.1987)). To meet this standard, petitioner “must show a reasonable probability that the error affected the trial’s outcome.” Troupe v. Groose, 72 F.3d 75, 76 (8th Cir.1995). To support his argument, petitioner has provided the Court with an affidavit from juror Donna Denando listing “several facts that were significant to [her] in reaching [her] recommendation of a death sentence.” Amended Pet., Exh. 4, ¶2. Testimony regarding the deliberative process, the motives of individual jurors and their conduct during deliberations is inadmissible. See Fed. R.Evid. 606(b); Bannister v. Armontrout, 4 F.3d 1434, 1444 n. 15 (8th Cir.1993); see also Silagy v. Peters, 905 F.2d 986, 1008-09 (7th Cir.1990); Bibbins v. Dalsheim, 21 F.3d 13, 16-17 (2d Cir.1994). After careful review of Ms. Denando’s affidavit, the Court concludes that the affidavit fits within the prohibition of Fed.R.Evid. 606(b). Petitioner cannot rely on juror Denando’s statements in this habeas proceeding to impeach the jury’s sentencing determination. Thus the Court will not consider the affidavit. Upon review of the Faheen photograph and the entire trial transcript, the Court concludes that the introduction of the Faheen photograph did not so affect the fundamental fairness of the sentencing proceeding as to violate petitioner’s Eighth Amendment rights. The photograph did not create a constitutionally unacceptable risk that the jury would impose the death penalty in an arbitrary or capricious manner. Moreover, the introduction of the photograph did not deny petitioner his right to due process. Romano v. Oklahoma, 512 U.S. 1, 12-13, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994) (in determining whether the introduction of certain evidence at the sentencing phase of a capital trial violates the Due Process Clause of the Fourteenth Amendment, the Court must determine, after an “examination of the entire proceedings” whether the evidence “so infected the trial with unfairness as to make the resulting conviction a denial of due process”) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). Petitioner was convicted of participating in a scheme to plant a car bomb which would kill. The victim’s body was scattered over an interstate highway and rained down on other motorists. At the guilty phase of the trial, the jury saw photographs of what remained of the victim’s dismembered body. Tr. Tran. Vol. IV, pp. 66-67 and state’s Exhs. 13, 14 & 15. When objecting to the introduction of these three photographs, petitioner’s attorney stated, outside the presence of the jury, that the photographs were the “most gruesome photographs [he’d] ever seen in [his] entire life.” Tr. Tran. Vol. IV, p. 60. An eyewitness, Ms. Margaret Folkerts, testified regarding what she saw of the victim’s remains: “[T]he head was not really recognizable as a head____ It was rather mangled. The torso from the neck to approximately the knees was intact and the rest of it was sort of strewn all over the highway.” Tr. Tran. Vol. IV, p. 42. The forensic pathologist also identified state’s exhibit 14 and testified as follows: The injuries were severe and explosive in nature. His right side of his body was blown off from the fourth vertebra down to his pelvis. This was all knocked off. The left side of his body was blown off. His spinal column in the central portion here, that’s in the abdominal portion, was all blown apart. His left leg was blown apart, and by left leg, I mean mean [sic] everything from his knee down was knocked off, and it was presented to me in a separate plastic bag, and he had fractures of his right femur, that’s the right leg bone, and a fracture here. He had a fracture of his left humerus. So, for practical purposes, all organs from this level down, the fourth, that’s approximately at the clavicles, were blown apart, and everything was held together by strings of tissue, and he bled to death. Tr. Tran. Vol. V, pp. 57-58. The foregoing evidence, presented during the guilt phase of petitioner’s trial, was an accurate presentation of some details of the crime. In light of the graphic nature of the foregoing testimony and introduction into evidence of the photographs of the victim’s remains, the Court concludes that the introduction of the Faheen photograph was not so “conspicuously prejudicial that it fatally infected the [penalty phase] and denied petitioner fundamental fairness.” Ford v. Armontrout, 916 F.2d at 460. Although the issue of whether the Faheen photograph was properly admitted may have presented a close question under Missouri law, the admission of the evidence did not violate petitioner’s constitutional rights. Alternatively, even if petitioner has alleged error of a constitutional magnitude, the error is only ground for relief in a habeas proceeding if the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The Court has considered the effect the introduction of the Fa-heen photograph had .in the context of other evidence presented. The Court has reviewed the strength of each of the four ág-gravating circumstances the jury found, any of which was alone sufficient to justify the death penalty. The Court concludes that the admission of the Faheen photograph, even if erroneous, did not have a “substantial and injurious effect or influence” in determining the jury’s sentence. Id. For all of these reasons, the Court will deny all relief requested in Ground II. C. Ground III: The Conviction and Death Sentence Imposed Upon Petitioner Violated his Rights Under the Fifth, Sixth, Eighth and Fourteenth Amendments to The Constitution Because, Without Petitioner’s Knowledge or Consent, Trial Counsel Decided at the Last Moment to Use Diminished Capacity Defense. In his third ground for relief, petitioner asserts that he and his trial counsel, Alan Zvibleman, had planned to present an alibi defense at trial and that petitioner had discussed this defense on several occasions with Zvibleman’s then law-student assistant, Gerald Bassett. Approximately two weeks before trial, petitioner was examined by a psychologist, Dr. Daniel J. Cuneo, so that the psychologist would be ready, if needed, to testify at the penalty phase of the trial. Dr. Cuneo concluded that petitioner was borderline mentally retarded. Thus, petitioner alleges that without his consent, Zvibleman decided to rely upon a diminished capacity defense. At the hearing in state court on petitioner’s Rule 29.15 motion, Zvibleman testified that after some discussion, petitioner agreed to proceed with a diminished capacity defense. Resp.Exh. J, Vol. I, pp. 297-98. Also at the motion hearing, petitioner testified via deposition that he never told Zvibleman that he wished to proceed with a diminished capacity defense at the guilt phase of the trial. Resp.Exh. K(2), pp. 79-80. Based upon the foregoing, petitioner now asserts that he did not knowingly, intelligently and voluntarily waive his right to testify in his own behalf and that he was deprived effective assistance of counsel in violation of the Fifth, Sixth and Fourteenth Amendments. Petitioner has divided this claim into several subclaims. Ground III.A.: Petitioner Did Not Knowingly, Intelligently and Voluntarily Waive His Right to Testify in His own Behalf in Violation of the Fifth, Sixth and Fourteenth Amendments. Petitioner had a constitutional right to testify in his own behalf at trial. Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); U.S. v. Bemloehr, 833 F.2d 749, 751 (8th Cir.1987). Petitioner alleges that his right to testify was violated because he did not knowingly, intelligently and voluntarily waive this right. Petitioner alleges that in spite of his repeated assertions to counsel that he wished to testify, his attorney made the decision that he would not. Petitioner further asserts that the Fourteenth Amendment requires the trial court to make an independent inquiry into whether petitioner had voluntarily relinquished his right to testify and that the trial court made no such inquiry. Petitioner first attempted to raise the present claim in state court in a second amended Rule 29.15 motion which the state court denied leave to file as untimely. Resp. Exh. K(l), p. .120 (Proffered Second Amended Motion at ¶ 22). In his appeal from the ultimate denial of his Rule 29.15 motion, petitioner did not raise the present claim, but did allege that the state court erred in denying him leave to file a second amended Rule 29.15 motion. In affirming the denial the state court’s decision denying petitioner leave to file his second amended Rule 29.15 motion, the Missouri Supreme Court stated: Rule 29.15 does not operate as an unconstitutional suspension of the writ of habeas corpus. White v. State, 779 S.W.2d 571, 572-573 (Mo. banc 1989). Rule 29.15(f) provides for opportunity to amend a pro se motion within 30 days after counsel is appointed, or the entry of appearance of non-appointed counsel. The rule allows for the court to extend the time for filing one additional 30-day period. The law is clear that the. time limitations of Rule 29.15 are valid and mandatory. Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989), cert. denied, 493 U.S. 866, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989). Leisure filed both a pro se motion and an amended motion. He availed himself of all remedies available under Rule 29.15. The motion judge did not err in denying Leisure’s motion for leave to file a second amended motion. Leisure v. State, 828 S.W.2d 872 at 878-79. Federal habeas review is barred when a state court has not decided a federal claim on the merits because the petitioner violated a state procedural law. The state judgment rests on independent and adequate state procedural grounds. Wainwright v. Sykes, 433 U.S. 72, 81-82, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Harris v. Reed, 489 U.S. 255, 261-63, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). Petitioner argues that the present claim is not proeedurally defaulted because, in substance, this claim was fairly presented to the state court. Petitioner’s pro se and amended Rule 29.15 motion contain petitioner’s allegation of ineffective assistance of counsel based upon Zvibleman’s failure to call any alibi witnesses. Resp.Exh. K(l), pp. 190-91, 212. Petitioner argues that because “his testimony at trial was an integral and planned part of the alibi defense” there is an “arguable factual commonality” between the failure to present the alibi defense and his present claim of the lack of a knowing and intelligent waiver of his right to testify. Trav. p. 16. “In order for a claim to have been adequately presented to a state court for procedural purposes in a habeas proceeding, the same facts and legal theories in support of the claim must be advanced in both state and federal court.” Ford v. Armontrout, 916 F.2d at 460. Upon review of both the pro se pleadings and the amended pleadings presented to the state court, the Court concludes that the substance of petitioner’s present claim was not presented to the state court. Resp.Exh. K(l), pp. 189-201, 203-213. In state court, petitioner alleged that his attorney proceeded on an untenable defense theory of diminished capacity contrary to movant’s wishes to proceed on an alibi theory and, that in doing so, his counsel was ineffective. Id. at 190, 212-213. Petitioner also relies upon portions of the transcript of the evidentiary hearing on his Rule 29.15 motion. The evidence presented pertained to petitioner’s claim of ineffective assistance of counsel regarding the change in strategy from the alibi defense to a diminished capacity defense. The claim herein presents additional facts regarding the alleged denial of petitioner’s right to testify in his own behalf. The claims presented to the state court are not the “substantial equivalent” of the present federal claim that petitioner did not knowingly and voluntarily waive his right to testify in his own behalf. Frey v. Schuetzle, 78 F.3d 359, 361 (8th Cir.1996) (citing El-Tabech v. Hopkins, 997 F.2d 386, 389 (8th Cir.1993) (in a procedural default context, a claim charging the denial of the constitutional right to testify on one’s own behalf “is wholly unrelated to the elements of an ineffective assistance of counsel claim”)). If petitioner wished to proceed on his claim that he did not knowingly and voluntarily waive his right to testify, he should have raised such a claim in state court. Petitioner also argues that this claim is not proeedurally defaulted because the state court’s refusal to allow the second amended 29.15 motion was based on an ambiguous rule, thus, there was not an “adequate and independent” state procedural bar. Petitioner cites no authority for his proposition that the Missouri procedural rule governing the filing of 29.15 motions was ambiguous. Missouri courts have consistently held that the time limitations of Rule 29.15 are valid and mandatory. Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989); see also Oxford v. Delo, 59 F.3d 741, 747 (8th Cir.1995) (noting that although Rule 29.15 did not have a lengthy history at the time the petitioner filed his amended motion, certain procedural requirements were plainly stated in the rule). Because the state procedural rule was both firmly established and regularly followed, see Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991), the procedural bar was adequate and independent. Because the present claim was not presented to the state court, the claim is barred unless petitioner can both show cause and prejudice for his procedural default, or a resulting miscarriage of justice. Petitioner alleges that his cause was ineffective assistance of post-conviction counsel because counsel failed to raise this point in his first amended Rule 29.15 motion. Petitioner further alleges that prejudice is presumed from the denial of his right to testify. A defendant has no constitutional right to effective assistance of post-conviction counsel. Coleman v. Thompson, 501 U.S. at 752. “Absent a constitutional right, [petitioner] cannot claim ineffective assistance of post-conviction counsel as cause for his procedural defaults.” Sweet v. Delo, 125 F.3d at 1151. The Eighth Circuit has “recognized that this principle applies to claims of ineffective assistance of Rule 29.15 counsel in Missouri.” Id. Thus, petitioner’s effort to show cause fails. Moreover, no Eighth Circuit authority supports petitioner’s contention that prejudice is presumed when a petitioner alleges that he did not voluntarily and knowingly waive his right to testify. Petitioner has failed to show what his testimony would have been and how he was prejudiced by the absence of such testimony. Finally, petitioner makes no showing of a fundamental miscarriage of justice. For all the foregoing reasons, the Court will deny all relief requested in Ground III.A on the basis of procedural default. Ground III.B.: Trial Counsel Did not Provide Effective Assistance to Petitioner When He Switched Defenses on the Eve of Trial. Petitioner asserts four distinct claims of ineffective assistance of counsel arising out of what he alleges was his counsel’s independent decision to present an ill-prepared diminished capacity defense instead of the planned alibi defense. - Ground III.B.l.: Failure to Fulfill Duty to Advise. Petitioner alleges that “[i]ntricately tied to Petitioner’s lack of a knowing, intelligent and voluntary waiver of the right to testify, is trial counsel’s ineffective representation based upon his unreasonable failure to advise Petitioner that he would not testify.” Amended Pet., p. 33. Petitioner further alleges that trial counsel’s failure to inform petitioner of the decision not to present an alibi defense violated Rule 1.4(b) of the Rules of Professional Responsibility. Petitioner again refers to the affidavit of juror Denando in support of his claim that the outcome of his sentencing would have been different if he had been allowed to testify in his own behalf. Pet.Exh. 4. For the reasons previously stated and pursuant to Fed.R.Evid. 606(b), see supra discussion of Ground II, the Court will not consider Ms. Denando’s affidavit. Although petitioner alleges that this claim of “failure to fulfill the duty to advise” was exhausted in substance in state court, a review of the state court record reveals that this claim was not raised in state court and as such, is procedurally barred. Petitioner’s argument that ineffective assistance of post-conviction counsel constitutes cause for failure to raise this claim is without merit. Sweet v. Delo, 125 F.3d at 1151; Coleman v. Thompson, 501 U.S. at 752. Moreover, petitioner has failed to show any resulting prejudice or the applicability of the miscarriage of justice exception. Alternatively, if the Court were to reach the merits,. petitioner fails to state a claim for habeas relief. A violation of, the Rules of Professional Responsibility provides no independent basis upon which to grant federal habeas relief; habeas -relief is available only when based upon a violation of the Constitution or federal law. Petitioner has not demonstrated that his counsel’s alleged failure to fulfill the “duty to advise” rose to the level of constitutionally ineffective assistance of counsel. For all the foregoing reasons, Ground III.B.l does not merit habeas corpus-relief. Ground III.B.2.: Failure to Abide By Decision of Client. Petitioner alleges that his trial attorney did not provide him with effective assistance when (1) he failed to abide by petitioner’s decision to testify during the guilt phase of the trial and (2) failed to abide by petitioner’s decision to present an alibi defense. Although petitioner asserts that respondents have failed to address this claim, respondents addressed this claim in their original response to the Court’s order to Show Cause. Resp., pp. 78-82. The Court will separately analyze these two subclaims. First, petitioner alleges that his counsel was ineffective in that he failed to abide by petitioner’s decision to testify in his own behalf. Petitioner’s claim of ineffective assistance of trial counsel is procedurally defaulted because petitioner failed to raise this distinct claim of ineffective assistance of counsel in state court. Resp.Exh. K(l), pp. 189-201, 203-13; Oxford v. Delo, 59 F.3d at 747 (“performance of trial counsel is irrelevant to the cause inquiry where petitioner fails to raise the ineffective assistance of trial counsel claim in state court proceedings”). Because petitioner has failed to show cause and prejudice resulting from any procedural bar, or that the Court’s failure to consider the claim would result in a miscarriage of justice, the claim is procedurally barred. Next, petitioner alleges that his trial counsel was ineffective in that he failed to abide by petitioner’s decision to present an alibi defense, but instead proceeded with a diminished capacity defense. To prevail on this claim of ineffective assistance of counsel, petitioner must show “(1) that his counsel’s assistance fell below an objectively reasonable standard and (2) that he was prejudiced by his counsel’s ineffective assistance.” McDonald v. Bowersox, 101 F.3d 588, 594 (8th Cir.1996) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The Missouri Supreme Court addressed, as a single claim, petitioner’s allegation of “ineffective assistance of counsel for refusal to present alibi witnesses and for proceeding with a diminished capacity defense contrary to Leisure’s "wishes and instructions.” Leisure v. State, 828 S.W.2d at 874. In the present petition, petitioner separately asserts his claim of “failure to abide” from his claim of “failure to present alibi defense.” See infra Ground III.B.4. For the reasons discussed below, see infra Ground III.B.4., the Court concurs with the findings of the state courts that petitioner’s trial counsel was not ineffective in his choice of trial strategy. Thus, even if trial counsel did not “abide” by a decision of petitioner, petitioner has failed to show any resulting prejudice and, thus, has failed to show that his counsel was ineffective. For all of these reasons, Ground III.B.2 is rejected. Ground III.B.3.: Failure to Prepare Diminished Capacity Defense. Petitioner alleges that his trial counsel failed in his duty to present a proper defense when counsel decided on the eve of trial to proceed with a “hastily devised defense of diminished capacity.” Amended Pet., p. 35. In support of his claim, petitioner attaches an affidavit from Daniel J. Cuneo, one of the two clinical psychologists who testified at trial on petitioner’s behalf. Tr.Tran. Vol. VII, pp. 92-249 and Vol. VIII, pp. 1-116. In his affidavit, Dr. Cuneo concludes that petitioner’s trial attorney failed to represent petitioner in a reasonably competent manner because counsel was not prepared to present a diminished capacity defense (i .e. counsel did not contact Dr. Cuneo until approximately two weeks before trial and then did not seek additional time to prepare a diminished capacity defense even after Dr. Cuneo advised counsel of his conclusions following petitioner’s evaluation). Pet.Exh. 5, ¶4. Petitioner also attaches an affidavit of Gerald Bassett, Zvibleman’s then law student assistant, in which Bassett attests that he did not properly investigate and develop the diminished capacity defense presented at trial. Pet.Exh. 7. Respondents correctly assert that petitioner is procedurally barred from relying upon the affidavits of Bassett and Dr. Cuneo. Petitioner relies upon Bolder v. Armontrout, 921 F.2d 1359, 1364 n. 9, and argues that there is at least an “arguable factual commonality” between Dr. Cuneos’ affidavit and the evidence presented at the hearing on petitioner’s Rule 29.15 motion. Petitioner’s rebanee on Bolder v. Armontrout is misplaced. A federal court’s consideration of factual matters in support of an allegation presented in a federal habeas petition which were not also presented to the state court is subject to the standard cause and prejudice analysis of procedurally defaulted claims. Byrd v. Armontrout, 880 F.2d 1, 7 (8th Cir.1989); Keeney v. Tamayo-Reyes, 504 U.S. 1, 8-9, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). Petitioner failed to develop the factual predicate of his current claim of ineffective assistance of counsel in state court. Petitioner received an evidentiary hearing in state court and the state court considered numerous claims of ineffective assistance of counsel. Bassett testified at the hearing. Petitioner has faffed to allege any cause that prevented him from adequately developing the facts regarding this claim of ineffective assistance of counsel during his state court postconviction hearing. See McDonald v. Bowersox, 101 F.3d at 592-93; Miller v. Lockhart, 65 F.3d 676, 679 (8th Cir.1995); Bowman v. Gammon, 85 F.3d 1339, 1344-45 (8th Cir.1996). Petitioner has shown no cause for his failure to present Dr. Cuneo’s affidavit or Bassett’s affidavit in state court, nor has petitioner shown any resulting prejudice from appbcation of the procedural bar. Finally, even if the factual portions of the affidavits were admissible in this proceeding, which they are not, Dr. Cuneo’s ultimate legal conclusions are not dispositive. Nor is Bassett’s conclusion dispositive. The relevant inquiry is not whether Bassett, a then-law student, was effectively assisting petitioner, but rather whether Zvibleman, petitioner’s attorney, rendered constitutionally effective assistance of counsel. In addition, the present claim itself is procedurally barred. Again, petitioner asserts that there is at least an arguable factual commonabty between this claim and issues that were properly raised in state court. Trav. p. 19. Upon review of the state court pleadings, both pro se and amended, the Court concludes that petitioner’s present claim of ineffective assistance of counsel based on petitioner’s trial attorney’s failure to prepare a diminished capacity defense was not fairly presented to the state court. In his Rule 29.15 motion, petitioner raised the issue of Zvibleman’s refusal to present alibi witnesses and decision to instead proceed on a diminished capacity defense, however, petitioner did not raise a separate claim in state court that his trial counsel failed to adequately prepare the diminished capacity defense. See Resp.Exh. K(l), pp. 189-201; 203-213. Accordingly, the present claim is procedurally barred absent a showing of cause and prejudice or a showing of a miscarriage of justice. Petitioner has made no such showing. Alternatively, if the Court considered the merits of the present claim, it would be denied. To prevail on a claim of ineffective assistance of counsel, petitioner must show that counsel’s assistance fell below an “objectively reasonable standard” and that petitioner was prejudiced as a result. McDonald v. Bowersox, 101 F.3d at 594; Strickland v. Washington, 466 U.S. at 687. Zvibleman’s testimony at the hearing on petitioner’s Rule 29.15 motion shows that trial counsel’s actions in investigating and preparing the diminished capacity defense were reasonable. Zvibleman testified that after Dr. Cuneo opined that petitioner was mildly retarded, he “called maybe thirty psychiatrists and psychologists who had been recommend to [him] by various attorneys.” Resp.Exh. J, p. 295. A second clinical psychologist, Dr. Michael Armour, was hired and testified at trial along with Dr. Cuneo. Tr.Tran. Vol. VIII, pp. 1-116. Petitioner has failed to show that his counsel’s assistance in preparing a diminished capacity defense fell below an objective standard of reasonableness or that he was prejudiced as a result. For all the reasons indicated above, the Court finds Ground III.B.3 to be without merit, and all relief on that ground will be denied. Ground III.B.4.: Failure to Present Alibi Defense. Petitioner alleges that his trial counsel did not provide effective assistance when, contrary to petitioner’s wishes, counsel failed to present an alibi defense. Petitioner raised this claim in state court in his Rule 29.15 motion. In affirming the decision of the circuit court denying relief on this claim, the Missouri Supreme Court stated: Leisure first alleges ineffective assistance of counsel for refusal to present alibi witnesses and for proceeding with a diminished capacity defense contrary to Leisure’s wishes and instructions. The motion court denied this point based on its finding that trial counsel’s decision was reasonable trial strategy. Leisure claims that his trial counsel failed to call alibi witnesses, Elmer Lawson and Sandra Bradford (Leisure’s sister-in-law). Both witnesses testified at the evi-dentiary hearing, relating that they were with Leisure on the day of the bombing. The essence of Lawson’s testimony was that he was with Leisure from approximately 9:30 or 10:00 a.m. until Leisure left to go help Sandra Bradford with her car sometime after 12:30 p.m. Sandra Bradford testified at the evidentiary hearing that she called Leisure around 12:00 or 12:30 p.m. but was unable to reach him. She called back an hour later and asked him to meet her after work to look at her ear. Bradford testified that Leisure was waiting for her in the parking lot when she got off work at 4:00 p.m. Leisure’s trial attorney, Alan Zvibleman, clearly investigated an alibi defense in the instant case. Both Sandra Bradford and Elmer Lawson testified at the evidentiary hearing that Zvibleman had contacted them. Jerry Bassett, then a non-attorney who assisted Zvibleman, also interviewed these potential witnesses. At the evidentiary hearing, Zvibleman testified that he made a decision not to call Bradford or Lawson only weeks before the actual trial eommencéd. Zvibleman had received a psychological evaluation from Dr. Cuneo indicating Leisure was borderline mentally retarded.' After Dr. Armour, head of forensic psychology at Malcolm Bliss Hospital, agreed with Dr. Cuneo’s assessment of Leisure’s mental capacity, Zvibleman decided that Leisure had a viable diminished capacity defense. Counsel met with Leisure to discuss the options for defense. The record demonstrates Leisure’s initial reluctance to drop the alibi defense. Zvibleman strongly advised pursuing diminished capacity (to the exclusion of alibi) based on his belief that the alibi witnesses were not credible and that it would be a tactical mistake to present both defenses — alibi and diminished capacity. See State v. Stepter, 794 S.W.2d 649, 657 (Mo.1990) (counsel was not ineffective for failing to present defenses of alibi and self-defense since the defenses were inconsistent). Leisure v. State, 828 S.W.2d at 874-75. The Missouri Supreme Court stated that the circuit court’s finding that Zvibleman’s decision to pursue the diminished capacity defense was a reasonable trial strategy was not clearly erroneous. The court noted that the selection of witnesses and the introduction of evidence are questions of trial strategy and that a decision not to call a witness to testify, as a matter of trial strategy, is virtually unchallengeable. Id. The Missouri Supreme Court continued: Both Zvibleman and Bassett testified at the evidentiary hearing that neither Bradford nor Lawson appeared credible. For example, Lawson insisted that he worked for Leisure prior to the bombing, but maintained that his employment commenced in 1985 or 1986.. The record is clear that the bombing occurred in 1980. Additionally, the testimony of Bradford and Lawson did not account for Leisure’s whereabouts for a significant period of time on the- day of the bombing. If a potential witness’s testimony would not un-qualifiedly support a defendant, the failure to call such a witness does not constitute ineffective assistance of counsel. Hamilton v. State, 770 S.W.2d 346, 348 (Mo.App.1989). Id. at 875. The court concluded that based on the shortcomings in the testimony of Lawson and Bradford, petitioner’s trial counsel was not ineffective in his choice of trial strategy. Id. A state court’s decision regarding a claim of ineffective assistance of counsel is a mixed question of law and fact. Couch v. Trickey, 892 F.2d 1338, 1341 (8th Cir.1989). The question of whether petitioner’s constitutional rights were violated because he received ineffective assistance of counsel is reviewed de novo; however, “[t]he state court’s underlying factual finding related to counsel’s performance and prejudice to the defendant are entitled to the presumption of correctness as set forth in 28 U.S.C. § 2254(d).” Driscoll v. Delo, 71 F.3d 701, 706 (8th Cir.1995); Amrine v. Bowersox, 128 F.3d 1222, 1228 (8th Cir.1997); 28 U.S.C. § 2254(d) (1994). Upon review of the record, the Court concludes that the state court’s findings are a