081925P.pdf   04/01/2010  German Sinisterra  v.  United States
   U.S. Court of Appeals Case No:  08-1925
   U.S. District Court for the Western District of Missouri - Kansas City   
   [PUBLISHED] [Wollman, Author, with Riley, Chief Judge, and
   Melloy, Circuit Judge]
   Prisoner case - habeas. For the court's opinion in Sinisterra's direct
   appeal, see United States v. Ortiz, 315 F.3d 873 (8th Cir. 2002).
   Sinisterra's claim of ineffective assistance of counsel for failing to
   investigate and present mitigation evidence merits further review as the
   record to this point does not affirmatively refute his claims that his
   attorneys failed to conduct a thorough background investigation and
   exercise reasonable, professional judgment in determining the mitigation
   evidence to present at the death penalty phase of his trial; also to be
   developed on remand is whether counsel were ineffective for failing to
   investigate and present evidence of Sinisterra's mental health and
   capacity; claim that counsel were ineffective for failing to object to
   portions of the prosecutor's closing arguments disparaging mitigation
   evidence is rejected as the arguments were not improper; argument asking
   the jury to act as the community's conscience and to send a message was
   improper; however, Sinisterra has failed to establish prejudice since there
   is not a reasonable probability that the outcome of the trial would have
   been different had counsel objected to the argument.