Brian J. Dorsey v. David Vandergriff

United States Court of Appeals
For the Eighth Circuit
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No. 20-2099
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Brian J. Dorsey
Petitioner - Appellant
v.
David Vandergriff
Respondent - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: January 12, 2022
Filed: April 7, 2022
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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
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GRUENDER, Circuit Judge.
A jury sentenced Brian J. Dorsey to death for murdering his cousin and her
husband. After unsuccessfully challenging his sentence on direct appeal and in state
postconviction proceedings, Dorsey petitioned the district court1 for a writ of habeas
corpus. The district court denied the petition, and a panel of this court granted a
1 The Honorable Roseann Ketchmark, United States District Judge for the
Western District of Missouri.

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certificate of appealability on the question whether Dorsey could overcome the
procedural default of his claim that his trial attorneys were ineffective for failing to
investigate and present evidence of his adjustment to incarceration. We affirm.
I.
Two days before Christmas 2006, drug dealers arrived at Brian Dorsey’s
apartment in Jefferson City, Missouri demanding payment on a debt that Dorsey
owed them. Dorsey called his cousin, Sarah Bonnie, for help. Sarah and her
husband, Ben, went to Dorsey’s apartment. Ben entered the apartment and stayed
until the drug dealers left. Ben and Sarah then drove Dorsey to their home to spend
the night with them and their four-year-old daughter. During the night, Dorsey raped
Sarah and murdered her and Ben with their shotgun. Ben, a mechanic, had been in
the process of fixing Dorsey’s car for free, so Dorsey escaped in Sarah’s car. He
took two firearms, jewelry, electronics, and other personal property of the Bonnies.
Dorsey attempted to use these items to repay his drug debt.
Dorsey turned himself in a few days later and, after being read his Miranda
rights, confessed. When charged with murdering Sarah and Ben, he pleaded guilty.
The State sought the death penalty.
Missouri Department of Corrections records existing at the time of the
sentencing trial indicated that, in many respects, Dorsey was adjusting well to
incarceration. For example, one form indicated that he was “[r]espectful of others,”
“[a]void[ed] fights unless directly challenged,” and was “[c]ooperative with staff.”
That said, the evidence of Dorsey’s adjustment was not unequivocally positive: The
same form indicated that Dorsey “[h]ad difficulties with free time,” was not
“[d]ependable in assignments,” and was “[s]luggish.” And another form indicated
that Dorsey had not “[e]xpressed need for self-improvement,” had “[d]efied
authority,” had not “[a]ccepted responsibility for his situation,” and was “[s]elf-
centered.”

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At sentencing, Dorsey was represented by two attorneys with experience
handling capital cases. They did not present—or, according to Dorsey, even
investigate—evidence of his adjustment to incarceration. Instead, given the nature
of the crimes and the fact that “some of the aggravating factors were not really
defendable,” Dorsey’s attorneys focused on trying to convince the jury that “this was
an aberration for [Dorsey]; that he had a history of being a good person, and that he
had some things in him that a jury could connect to.”
The jury returned a verdict of death for each murder. It found seven
aggravating factors beyond a reasonable doubt. The trial court entered judgment on
the verdicts, and the Missouri Supreme Court affirmed on direct appeal. State v.
Dorsey, 318 S.W.3d 648, 651 (Mo. 2010). Dorsey sought postconviction relief in
state court, and counsel was appointed to represent him. Although Dorsey raised
numerous other claims, he did not argue that his trial attorneys were ineffective for
failing to investigate and present evidence of his adjustment to incarceration. The
state court denied postconviction relief, and the Missouri Supreme Court affirmed.
Dorsey v. State, 448 S.W.3d 276, 282, 301 (Mo. 2014). Dorsey then petitioned the
district court for a writ of habeas corpus under 28 U.S.C. § 2254, raising twenty-
eight claims, including a claim that his trial attorneys were ineffective for failing to
investigate and present evidence of his adjustment to incarceration. More than three
years later, while his § 2254 petition remained pending, Dorsey asked to expand the
record to include an affidavit from an investigator who averred that law enforcement
and corrections officials who knew Dorsey spoke highly of him and an affidavit from
a psychologist who opined that Dorsey would likely adjust well in prison.
The district court denied the petition. It concluded that Dorsey’s ineffective-
assistance claim was procedurally defaulted because Dorsey did not raise it during
state postconviction proceedings and that Dorsey could not overcome the procedural
default under Martinez v. Ryan, 566 U.S. 1, 14 (2012), because the claim was
insubstantial. The district court also denied Dorsey’s motion to expand the record,
noting that the new evidence consisted largely of hearsay.

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Dorsey applied for a certificate of appealability, which a panel of this court
granted as to the following question: “Under Martinez v. Ryan, 566 U.S. 1 (2012),
did the district court err in concluding that Dorsey’s ineffective-assistance-of-trial-
counsel claim based on trial counsel’s alleged failure to investigate and present
evidence of Dorsey’s good conduct while in custody is insubstantial and is thus
procedurally defaulted?”
II.
We review de novo whether a claim of ineffective assistance of trial counsel
is substantial under Martinez. See Deck v. Jennings, 978 F.3d 578, 581 (8th Cir.
2020). Subject to exceptions inapplicable here, see Gray v. Netherland, 518 U.S.
152, 165-66 (1996); Murray v. Carrier, 477 U.S. 478, 496 (1986), a federal court
may hear a procedurally defaulted claim for postconviction relief only if the
petitioner shows “cause” for and “prejudice” from the procedural default,
Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In Coleman v. Thompson, the Supreme
Court held that because there is no Sixth Amendment right to postconviction
counsel, ineffective assistance of postconviction counsel generally does not
constitute cause for procedural default. 501 U.S. 722, 752 (1991). But the Court
carved out an exception to this rule in Martinez, where it held that state
postconviction counsel’s ineffectiveness constitutes “cause” excusing procedural
default if it consisted of a failure to assert a “substantial” claim of ineffective
assistance of trial counsel. 566 U.S. at 14. A “substantial” claim is one with “some
merit.” Id. (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)).
Here, Dorsey concedes that his claim is procedurally defaulted because he
failed to raise it in state postconviction proceedings. To show cause, he attributes
his failure to raise his claim in state postconviction proceedings to the ineffective
assistance of his state postconviction counsel. Accordingly, Martinez requires
Dorsey to show that his underlying claim of ineffective assistance of trial counsel
has “some merit.” See id.

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The parties disagree about what it means for a claim of ineffective assistance
of trial counsel to have “some merit.” Dorsey argues that it means a reasonable jurist
could believe that or find it debatable whether trial counsel was ineffective. In
support of this view, Dorsey notes that Martinez followed its holding that “is
substantial” means “has some merit” with a “cf.” cite to Miller-El’s description of
the “standards for certificates of appealability to issue.” Martinez, 566 U.S. at 14.
Miller-El held that 28 U.S.C. § 2253(c)(2)’s requirement that the claim the applicant
seeks to appeal must be “substantial”—the same term used by Martinez, 566 U.S. at
14—means that the court of appeals should issue a certificate of appealability only
if “reasonable jurists would find the district court’s [rejection of the claim] debatable
or wrong.” Miller-El, 537 U.S. at 336-38. Dorsey cites cases from this circuit and
other circuits that support his view. E.g., Harris v. Wallace, 984 F.3d 641, 648-49
(8th Cir. 2021); Hittson v. GDCP Warden, 759 F.3d 1210, 1269-70 (11th Cir. 2014).
The district court disagreed, concluding that Martinez’s substantiality
standard and Miller-El’s certificate-of-appealability standard “are two different
standards.” According to the State, our decisions in Ward v. Hobbs, 738 F.3d 915
(8th Cir. 2013), and Dansby v. Hobbs, 766 F.3d 809 (8th Cir. 2014), compel this
conclusion. The State argues that Ward and Dansby control over any out-of-circuit
or later Eighth Circuit caselaw supporting Dorsey’s view. See Clark v. Bertsch, 780
F.3d 873, 876 (8th Cir. 2015) (“[P]anels are to determine and follow the earliest
precedent in the event of an intra-circuit panel split.”).
We agree with Dorsey. In Taylor v. Steele, we stated that Martinez’s some-
merit requirement “means that whether [the claimant’s] trial counsel was ineffective
. . . must at least be debatable among jurists of reason.” 6 F.4th 796, 801 (8th Cir.
2021) (internal quotation marks omitted), petition for cert. filed, --- U.S.L.W. ---
(U.S. Mar. 23, 2022) (No. 21-7449); see also Harris, 984 F.3d at 648-49; accord
McGill v. Shinn, 16 F.4th 666, 698-99 (9th Cir. 2021); Owens v. Stirling, 967 F.3d
396, 424 (4th Cir. 2020); Workman v. Superintendent Albion SCI, 915 F.3d 928,
937-38 (3d Cir. 2019); Brown v. Brown, 847 F.3d 502, 517 (7th Cir. 2017); Hittson,
759 F.3d at 1269-70. Ward and Dansby do not compel a contrary conclusion. In

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Ward, we did not even quote, much less elaborate on, Martinez’s statement that the
petitioner’s ineffective-assistance claim must have “some merit,” 566 U.S. at 14, if
he is to overcome procedural default. See Ward, 738 F.3d 915. And in Dansby, we
acknowledged but neither endorsed nor rejected the petitioner’s argument that
Martinez’s substantiality standard is identical to Miller-El’s certificate-of-
appealability standard. See Dansby, 766 F.3d at 840 n.4 (noting that the case’s
outcome did not depend on whether the petitioner was correct). Therefore, Ward
and Dansby do not undermine Taylor’s authority.
Although the district court erred by treating Martinez’s substantiality standard
as different from Miller-El’s certificate-of-appealability standard, we will disregard
the error if it was harmless. See Boysiewick v. Schriro, 179 F.3d 616, 622 (8th Cir.
1999) (affirming the denial of a certificate of appealability on a § 2254 petition on
the ground that “any error the District Court committed was harmless”); Thompson
v. Mo. Bd. of Probation & Parole, 39 F.3d 186, 189 n.2 (8th Cir. 1994) (noting that
the appellate court may affirm the dismissal of a § 2254 petition on “a ground other
than one relied on by the District Court”); Fed. Habeas Corpus R. 12 (“The Federal
Rules of Civil Procedure, to the extent that they are not inconsistent with any
statutory provisions or these rules, may be applied to a proceeding under these
rules.”); Fed. R. Civ. P. 61 (directing courts to disregard harmless errors). For the
reasons explained below, we conclude that the error was harmless because Dorsey’s
ineffective-assistance claim is insubstantial even under the correct standard.2
2 Dorsey argues that, by granting a certificate of appealability, we already
decided that his claim meets Miller-El’s standard. “When a claim is dismissed based
on procedural default, a certificate should be granted only where there is a debatable
constitutional claim and a debatable procedural ruling.” Dansby, 766 F.3d at 840
n.4 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, the constitutional
claim is that Dorsey’s trial attorneys were ineffective. Therefore, Dorsey is correct
that, in granting a certificate of appealability, we implicitly decided that reasonable
jurists could believe that or find debatable whether Dorsey’s trial attorneys were
ineffective. See Owens, 967 F.3d at 424. But the merits panel is not bound by the
“preliminary” assessment of a petitioner’s claims implicit in the prior panel’s grant
of a certificate of appealability. See id. at 425. “[O]ur conclusion that [Dorsey’s]

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A claim of ineffective assistance of counsel has both a performance prong and
a prejudice prong. Strickland v. Washington, 466 U.S. 668, 687 (1984). The
performance prong requires the claimant to overcome a “‘strong presumption’ that
counsel’s representation was within the ‘wide range’ of reasonable professional
assistance” by showing that counsel’s performance not just “deviated from best
practices” but “amounted to incompetence.” Harrington v. Richter, 562 U.S. 86,
104-05 (2011) (quoting Strickland, 466 U.S. at 688-89). The prejudice prong
requires the claimant to demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 104 (quoting Strickland, 466 U.S. at 694). Although a “reasonable probability”
of a different outcome but for counsel’s errors does not entail that counsel’s errors
“more likely than not altered the outcome,” “the difference between Strickland’s
prejudice standard and a more-probable-than-not standard is slight and matters ‘only
in the rarest case.’” Id. at 111-12 (quoting Strickland, 466 U.S. at 697).
Here, no reasonable jurist could believe that or find it debatable whether
Strickland’s performance prong is met. In light of the horrific nature of Dorsey’s
crimes, it was reasonable for Dorsey’s trial attorneys to focus on portraying the
crimes as “an aberration” in Dorsey’s “history of being a good person,” rather than
on how Dorsey was adjusting to incarceration. True, evidence that Dorsey was
adjusting well to incarceration might incline a jury motivated primarily by
incapacitation or rehabilitation away from a capital sentence. But it was reasonable
to expect that Dorsey’s crimes would elicit retributivist reactions from jury
members, and evidence that Dorsey was adjusting well to incarceration might incline
a jury motivated primarily by retribution or deterrence toward a capital sentence.
Furthermore, a jury motivated primarily by incapacitation or rehabilitation would be
unlikely to recommend a capital sentence anyway. Thus, Dorsey’s trial attorneys
“could have reasonably concluded” that the best chance of securing a noncapital
sentence was to mitigate retributivist impulses by portraying the crimes as not in
keeping with Dorsey’s character and that presenting evidence of Dorsey’s
ineffective-assistance claim[ is] not ‘substantial’ may be construed as the revocation
of the [certificate of appealability].” See Dansby, 766 F.3d at 840 n.4.

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adjustment to incarceration “would have only detracted from” this effort. See Deck,
978 F.3d at 584. And if counsel’s decisions were “reasonable,” then “[r]easonable
jurists would find it undebatable that” counsel’s performance did not amount to
incompetence. McGill, 16 F.4th at 699; see also Deck, 978 F.3d at 584. Therefore,
no reasonable jurist could believe that or find it debatable whether Dorsey can meet
Strickland’s performance prong. Cf. Wiggins v. Smith, 539 U.S. 510, 533 (2003)
(“Strickland does not require counsel to investigate every conceivable line of
mitigating evidence no matter how unlikely the effort would be to assist the
defendant at sentencing.”); Schumacher v. Hopkins, 83 F.3d 1034, 1036-37 (8th Cir.
1996) (“In considering [Strickland’s] first prong, we must defer to counsel’s
strategic decisions and must not succumb to the temptation to be Monday morning
quarterbacks.”); Jenkins v. Comm’r, Ala. Dep’t of Corr., 963 F.3d 1248, 1258, 1269
n.10 (11th Cir. 2020) (holding that the state court reasonably concluded that counsel
who “argued that the deterrent and retributive purposes of capital punishment would
not be served” was not deficient for failing to present evidence that the defendant
was a “model prisoner”).
Dorsey resists this conclusion by arguing that the Supreme Court’s decision
in Skipper v. South Carolina, 476 U.S. 1 (1986), obligated his trial attorneys to
investigate evidence of his adjustment to incarceration. But Skipper concerned only
whether evidence of behavior while incarcerated is admissible in capital sentencing
proceedings. Skillicorn v. Luebbers, 475 F.3d 965, 976 (8th Cir. 2007); see also
Skipper, 476 U.S. at 4 (“[T]he only question before us is whether the exclusion from
the sentencing hearing of the testimony petitioner proffered regarding his good
behavior . . . in jail . . . deprived petitioner of his right to place before the sentencer
relevant evidence in mitigation of punishment.”). And “while Skipper held that such
evidence is relevant and admissible,” it does not follow that failing to investigate or
present such evidence necessarily “make[s] counsel’s performance deficient.” See
Cole v. Roper, 623 F.3d 1183, 1191 (8th Cir. 2010). For the contrary proposition,
Dorsey cites Williams v. Taylor, where counsel failed to investigate Skipper
evidence and the Supreme Court concluded that Strickland’s performance prong was
met. See 529 U.S. 362, 396 (2000). But counsel’s systematic failures in Williams

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went far beyond failing to investigate Skipper evidence: counsel “did not begin to
prepare . . . until a week before trial,” completely failed to investigate the
defendant’s “nightmarish childhood,” and “failed to introduce available evidence
that [the defendant] was borderline mentally retarded.” Id. at 395-96 (internal
quotation marks omitted); see also Andrus v. Texas, 590 U.S. ---, 140 S. Ct. 1875,
1883 (2020) (per curiam) (concluding that Strickland’s performance prong was met
where “counsel performed virtually no investigation” at all, not just no investigation
into the defendant’s adjustment to incarceration). Williams did not hold that the
failure to investigate Skipper evidence is per se incompetent performance under
Strickland.
Moreover, even assuming arguendo that reasonable jurists could believe that
or find it debatable whether Strickland’s performance prong is met, no reasonable
jurist could believe that or find it debatable whether Strickland’s prejudice prong is
met. Missouri law authorizes the jury to impose a capital sentence for first-degree
murder if the evidence in mitigation does not outweigh the evidence in aggravation.
Mo. Rev. Stat. § 565.030(4)(3). Here, the jury found no fewer than seven statutory
aggravating factors. No reasonable jurist could believe that or find it debatable
whether there is a reasonable probability that evidence of Dorsey’s adjustment to
incarceration would have tipped the balance in favor of mitigation in the jury’s view,
see Thomas v. Payne, 960 F.3d 465, 475 (8th Cir. 2020) (holding that an ineffective-
assistance claim fell short of Martinez’s substantiality requirement on the prejudice
prong because there was “overwhelming evidence against [the petitioner] on . . . the
aggravating factors supporting the death sentence”)—especially given that the State
did not rely on “evidence of jail misconduct as an aggravator,” see Jenkins, 963 F.3d
at 1273, and the evidence of Dorsey’s adjustment to incarceration was not
unequivocally positive anyway, see Bucklew v. Luebbers, 436 F.3d 1010, 1021 (8th
Cir. 2006) (stating that “no prejudice resulted” in a capital case from defense
counsel’s failure to pursue a line of argument that would have had a “mixed
impact”). True, even if the evidence in mitigation does not outweigh the evidence
in aggravation, the jury retains the discretion to return a verdict of life imprisonment
if it “decides under all of the circumstances not to assess and declare the punishment

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at death.” Mo. Rev. Stat. § 565.030(4)(4). But any weight that the jury might have
placed on Dorsey’s adjustment to incarceration “pales in comparison” to the horrific
nature of Dorsey’s conduct—raping his cousin, murdering her and her husband after
they took him into their home to protect him, leaving their four-year-old daughter an
orphan, and stealing their property to satisfy his drug debt. See Clark v. Comm’r,
Ala. Dep’t of Corr., 988 F.3d 1326, 1334 (11th Cir. 2021). Although it is
“conceivable” that evidence of Dorsey’s adjustment to incarceration might have led
the jury to exercise its discretion not to impose a capital sentence, no reasonable
jurist could believe that or find it debatable whether it is more or almost more likely
than not. See Harrington, 562 U.S. at 112.
In sum, no reasonable jurist could believe that or find it debatable whether
either prong of Dorsey’s ineffective-assistance claim is met. Therefore, the claim
fails Martinez’s substantiality requirement, which means that Dorsey cannot show
cause for his failure to raise the claim in state postconviction proceedings.3 See
Martinez, 566 U.S. at 14. Accordingly, the district court properly denied Dorsey’s
claim as procedurally defaulted. See id.
III.
For the foregoing reasons, we affirm the denial of Dorsey’s § 2254 petition.
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3 The affidavits that Dorsey argues the district court should have considered
do not alter our analysis. At most, they tend to confirm that, overall, Dorsey was
adjusting well to incarceration. As we have explained, Dorsey’s claim is
insubstantial even if the evidence showed that, overall, he was adjusting well to
incarceration. Therefore, even assuming arguendo that the district court erred in
refusing to consider the affidavits, but see 28 U.S.C. § 2246 (providing that evidence
may be submitted “by affidavit” in habeas corpus proceedings only “in the
discretion of the judge”); Herrera v. Collins, 506 U.S. 390, 417 (1993) (describing
affidavits in habeas corpus proceedings as “particularly suspect” where, as here,
they are largely hearsay and the petitioner “waited until the 11th hour” to submit
them), the error was harmless, and we may disregard it, see Boysiewick, 179 F.3d at
622.

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