source: Caselaw Access Project

author: WOLLMAN, Circuit Judge. KELLY, Circuit Judge,

license: Public Domain

text:
    Jon David COUZENS, Jr., Plaintiff-Appellant v. William DONOHUE, individually; Catholic League for Religious and Civil Rights, a not for profit foreign corporation; KC Catholic League, Inc. a not for profit corporation; Joe McLiney, individually and in his capacity as President, Director and Member of KC Catholic League, Inc.; James E. O’Laughlin, individually and in his Capacity Secretary, Director and Member of KC Catholic League, Inc., Defendants-Appellees
    No. 15-3635
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 15, 2016
    Filed: April 18, 2017

      Counsel who presented argument on behalf of the appellant was Rebecca M. Ran-dles, of Kansas City, MO. The following attorney(s) appeared on the appellant brief; Luis Octavius Mata, of Kansas City, MO.
    Counsel who presented argument on behalf of the appellees were Erin Elizabeth Mersino, of Lansing, MI., Curtis Orville Roggow, of Overland Park, KS. The following attorney(s) appeared on the appel-lees’ brief; Daphne R. Halderman, of Kansas city, MO; Martin Mark Meyers, of Kansas City, MO.
    Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.

      . The Honorable William Jay Riley stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 10, 2017. He has been succeeded by the Honorable Lavenski R. Smith.

   WOLLMAN, Circuit Judge.

Jon David Couzens, Jr., filed suit against William Donohue, the Catholic League for Religious and Civil Rights (the Catholic League), KC Catholic League, Iñc. (KCCL), Joe McLiney, and James E. O’Laughlin (collectively, Defendants) in Missouri state court. Couzens’s petition set forth claims of defamation, invasion of privacy, and intentional and negligent infliction of emotional distress, alleging that Defendants published false information to discredit and humiliate him in retaliation for Couzens’s public allegations that he was sexually abused by priests. Defendants removed the case to federal district court. Couzens appeals from the district court’s orders denying his motion to remand and dismissing his causes of action for failure to state a claim upon which relief could be granted. We affirm.

I. Background

Our recitation of the facts of this case accepts as true the factual allegations in Couzens’s petition. Joyce v. Armstrong Teasdale, LLP, 635 F.3d 364, 365 (8th Cir. 2011). Couzens is a Missouri citizen, Dono-hue and the Catholic League are New York citizens, KCCL is a Kansas citizen, and McLiney and O’Laughlin, both of whom are directors of KCCL, are Missouri citizens. In 2011, Couzens reported that he had been sexually abused and had witnessed sexual abuse by priests in Independence, Missouri. He filed a lawsuit against the two individual priests, a diocese, and a monastery. He also described the abuse in a series of articles published by a Kansas City newspaper, the last of which was published on or about December 6, 2011. That same day, the Catholic League issued a statement by Donohue regarding Couz-ens’s testimony in a 1992 murder trial:

[The author of the recent newspaper articles] never told readers that on the night [the victim] was murdered about a dozen years ago, Couzens got into a fight with him over a botched drug deal, and although another man was convicted, on appeal it was alleged that Couz-ens and two other men had “motive to commit the murder and the opportunity to do so.”

On December 8, 2011, the Catholic League issued another statement:' “Couz-ens may be a hero to the [newspaper], but his character is indeed questionable: he was implicated in a murder.” The same article also suggested that Couzens was telling his story only to capitalize on the publicity from a recent sexual-abuse scandal involving a priest: “Why did Couzens wait 30 years before he told his ‘wrenching’ tale? Because the time was ripe to cash in after Fr. Ratigan’s name hit the papers.” Donohue, the .Catholic League, and KCCL distributed these statements, as well as the assertion (in the words of Couzens’s petition) that Couzens is “a Catholic hating bigot,” throughout the Kansas City community. The allegations against Couzens have been posted on the websites of the Catholic League and KCCL. The petition states that the allegations that Couzens was officially implicated in the murder, that he engaged in a “botched drug deal,” and that he is a “Catholic hating bigot” are false.

The district court denied Couzens’s motion to remand after concluding that Missouri defendants McLiney and O’Laughlin were fraudulently joined. Donohue and the Catholic League thereafter moved to dismiss the case under Federal Rule of Civil Procedure 12(b)(6). They argued that the one-year New York statute of limitations applied to Couzens’s defamation claim because, according to Donohue’s affidavit in support of the motion to dismiss, the allegedly defamatory statements were first published in New York. Accordingly, they argued, Missouri’s borrowing statute required the application of New York’s statute of limitations because Couzens’s defamation claim originated in New York. Donohue and the Catholic League also argued that Missouri law does not recognize Couzens’s invasion-of-privacy claim and that the petition failed to state facts to support claims of intentional or negligent infliction of emotional distress. The court granted the motion to dismiss, dismissed the claims against the fraudulently joined defendants, and later dismissed the claims against KCCL for failure to prosecute.

II. Discussion A. Removal

We review de novo the district court’s denial of Couzens’s motion to remand. Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 932 (8th Cir. 2012). Couzens asserted only tort claims under Missouri law, and no party argues that this case presents a federal question. Accordingly, diversity jurisdiction under 28 U.S.C. § 1332 constitutes the only basis for subject matter jurisdiction in this case.

1. Fraudulent Joinder of McLiney and O’Laughlin

Couzens argues that the district court erred in determining that Missouri defendants McLiney and O’Laughlin were fraudulently joined; He contends that he sued McLiney and O’Laughlin as trustees of KCCL and that he could not sue KCCL directly because it was a forfeited corporation. KCCL, however, is a Kansas corporation, and Kansas law provides for a three-year wind-up period during which a corporation may be sued in its own name. Kan. Stat. Ann. § 17-6807; see Keystone Agency, Inc. v. Herrin, 585 S.W.2d 313, 314 (Mo. Ct. App. 1979) (concluding that a Nebraska corporation’s dissolution was governed by Nebraska law). Moreover, even if Missouri law applied, Couzens could have sued KCCL because it was reinstated as a corporation in 2014. See Mo. Rev. Stat. § 351.488(3) (providing that when the secretary of state grants a dissolved corporation a certificate of reinstatement, “it relates back to and takes effect as of the effective date of the administrative dissolution and the corporation resumes carrying on its business as if the administrative dissolution had never occurred”).

We reject Couzens’s argument that McLiney and O’Laughlin were properly joined in their individual capacities. Although the caption of the petition names McLiney and O’Laughlin in both their individual and representative capacities, and paragraph 8 of the petition states that the district court has jurisdiction over them in their individual capacities, the petition sets forth no factual allegations against McLi-ney or O’Laughlin as individuals and instead alleges that KCCL republished and distributed the defamatory statements. Because Couzens protests KCCL’s alleged conduct and not McLiney’s or O’Laugh-lin’s, we affirm the district court’s determination that the Missouri defendants were fraudulently joined. See Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003) (“[Jjoinder is fraudulent when there exists no reasonable basis in fact and law supporting a claim against the resident defendants.” (quoting Wiles v. Capitol Indem. Corp., 280 F.3d 868, 871 (8th Cir. 2002))).

We also agree with the district court’s conclusion that because McLiney and O’Laughlin were fraudulently joined, their consent was not needed for removal. See Bradley Timberland Res. v. Bradley Lumber Co., 712 F.3d 401, 404-05 (8th Cir. 2013) (noting district court’s holding that a party “had been fraudulently joined to defeat diversity jurisdiction and that its consent to removal was therefore not required,” and affirming denial of motion to remand because joinder was fraudulent). Likewise, because the Missouri defendants were fraudulently joined, the forum-defendant rule, 28 U.S.C. § 1441(b)(2), did not prohibit removal. Newby v. Wyeth, Inc., No. 4:11CV00339 AGF, 2011 WL 5024572, at *2 (E.D. Mo. Oct. 21, 2011) (“When, as here, the basis for removing a case is diversity jurisdiction and the face of the complaint lacks complete diversity, in that the plaintiff has joined a non-diverse party or a resident of the forum state as a defendant, the removing party may avoid remand only by demonstrating that the non-diverse party was fraudulently joined.” (citing Filia, 336 F.3d at 809)).

2. Timeliness of KCCL’s Consent to Removal

Couzens also contends that because KCCL’s consent to removal was untimely, the district court erred in denying his motion to remand. All defendants in a suit who have been properly joined and served must consent to removal. 28 U.S.C. § 1446(b)(2)(A). Generally, each defendant must consent to removal within thirty days after being served with the initial pleading. Id. § 1446(b)(2)(B). When defendants are served at different times, however, an earlier-served defendant may consent to a later-served defendant’s timely removal even if the earlier-served defendant did not file a notice of removal within thirty days of its own service. Id. § 1446(b)(2)(C).

Donohue and the Catholic League were served with Couzens’s petition on February 18, 2014, which was later than the service on other Defendants. They timely filed their notice of removal on March 14, 2014. The notice did not indicate whether KCCL had consented to removal. On April 4, 2014, Donohue and the Catholic League filed their motion to dismiss, which argued in part that federal jurisdiction was proper, and to which they attached a declaration by KCCL through its director Ernie Straub. Couzens moved to remand on-April 14, 2014, and KCCL filed its consent to removal the next day, thirty-one days after Donohue and the Catholic League filed their notice of removal, as time is computed under Federal Rule of Civil Procedure 6(a). KCCL stated that Donohue and the Catholic League had obtained KCCL’s consent prior to filing their notice of removal.

Although Couzens argues that KCCL’s consent was untimely because it was filed more than thirty days after Donohue and the Catholic League’s notice of removal, the time frame for an earlier-served defendant to consent to a later-served defendant’s notice of removal under § 1446(b)(2)(C) is unclear. In Griffioen v. Cedar Rapids & Iowa City Railway Co., we stated:

The 2011 amendments to § 1446 that codified the rule of unanimity did not describe the form of or time frame for consent when multiple defendants are involved. By comparison, § 1446 as amended lays out in detail the procedures for the notice of removal, including the form of the notice and the time frame for each defendant to file it in a multiple-defendant action. Congress could have defined with equal specificity the form of or time for consent but chose not to do so. Its failure to do so dissuades us from adopting a rule that places form over substance.

785 F.3d 1182, 1187 (8th Cir. 2015). We held, in a case predating § 1446(b)(2)(C), that “the later-served defendants ... had thirty days from the date of service on them to file a notice of removal with the unanimous consent of their co-defendants.” Marano Enters. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753, 757 (8th Cir. 2001). But we have not decided the time limit for consent to removal under § 1446(b)(2)(C). Other courts have reached differing conclusions on this question. Gaynor v. Miller, 205 F.Supp.3d 935, 939-41 (E.D. Tenn. 2016) (holding that consent to removal need not be filed within thirty days under the plain language of § 1446(b)(2)(C), and establishing no specific time limit); Gibbs v. Ocwen Loan Servicing, LLC, No. 3:14-CV-1153-M-BN, 2014 WL 2767206, at *2 (N.D. Tex. June 18, 2014) (holding that consent to removal under § 1446(b)(2)(C) must be filed within the later-served defendant’s thirty-day removal period); Patti-son v. Nevada ex rel. Nev. Dep’t of Corr., No. 3:14-cv-00020-MMD-VPC, 2014 WL 2506467, at *3 (D. Nev. June 3, 2014) (holding that consent to removal must be filed within thirty days of the filing of the later-served defendant’s notice of removal); Moore v. Svehlak, Civil Action No. ELH-12-2727, 2013 WL 3683838, at *14 (D. Md. July 11, 2013) (holding that consent to removal must be filed either within the earlier-served defendant’s own thirty-day removal window or concurrently with the later-served defendant’s notice of removal).

We decline to specify in this case the time limit for consent to removal under § 1446(b)(2)(C). Although we “emphasize that non-removing defendants who wish to evince consent to removal should either sign the notice of removal or file a timely and unequivocal consent,” Christiansen, 674 F.3d at 933, we conclude that KCCL’s consent to removal was sufficient. KCCL filed its consent to removal thirty-one days after Donohue and the Catholic League filed their notice of removal, and one day after Couzens filed his motion to remand. KCCL later attested that Donohue and the Catholic League had obtained KCCL’s consent prior to removal. Cf. Griffioen, 785 F.3d at 1188 (holding that non-removing defendant sufficiently consented when the notice of removal stated that the non-removing defendant had consented and the non-removing defendant later ratified that statement). Twenty-one days after Dono-hue and the Catholic League filed their notice of removal, KCCL submitted an affidavit with Donohue and the Catholic League’s motion to dismiss, with the motion arguing in part that federal jurisdiction was proper. Cf. Christiansen, 674 F.3d at 933 (holding that consent was sufficient when non-removing defendant implicitly consented to removal in its motion to dismiss and later filed an untimely consent to removal). Accordingly, in light of our reluctance to apply the unanimity requirement in a “hypertechnical and unrealistic manner,” Griffioen, 785 F.3d at 1187 (quoting Christiansen, 674 F.3d at 933), we hold that KCCL sufficiently consented to removal.

B. Dismissal

We review de novo the grant of a motion to dismiss for failure to state a claim. Minn. Majority v. Mansky, 708 F.3d 1051, 1055 (8th Cir. 2013). We assume that the factual allegations set forth in Couz-ens’s petition are true and draw all reasonable inferences in favor of Couzens. Id. “Although a complaint need not contain ‘detailed factual allegations,’ it must contain facts with enough specificity ‘to raise a right to relief above the speculative level.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

1. Defamation

Couzens argues that the district court erred in concluding that his defamation claim was time-barred under New York’s one-year statute of limitations. See N.Y. C.P.L.R. § 215 (one-year statute of limitations for defamation claims). He contends that his defamation claim was timely because Missouri’s two-year statute of limitations applies. See Mo. Rev. Stat. § 516.140 (two-year statute of limitations for defamation claims). Under Missouri law, “[wjhenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state.” Mo. Rev. Stat. § 516.190. The term “originated” within this statute has been defined to mean “accrued.” Patch v. Playboy Enters., Inc,, 652 F.2d 754, 755 n.5 (8th Cir. 1981) (per curiam). A cause of action for defamation originates “in the state where the allegedly [defamatory] statement is first published.” Finnegan v. Squire Publishers, Inc., 765 S.W.2d 703, 704 (Mo. Ct. App. 1989). In the context of mass-media communications, publication under Missouri’s borrowing statute occurs when a statement becomes “available to the general public.” Givens v. Quinn, 877 F.Supp. 485, 491 (W.D. Mo. 1994) (quoting Summers v. Washington Times, Civ. A. No. 93-0480-LFO, 1993 WL 391047, at *1 (D.D.C. Sept. 20,1993)).

Couzens argues that the district court improperly converted Donohue and the Catholic League’s motion to dismiss into a motion for summary judgment when it relied upon Donohue’s affidavit, which stated that the allegedly defamatory statements were first published in New York. See Country Club Estates, L.L.C. v. Town of Loma Linda, 213 F.3d 1001, 1005 (8th Cir. 2000) (holding that consideration of materials outside the complaint converts a motion to dismiss into a motion for summary judgment and entitles the nonmoving party to notice of the conversion). “As a general rule, ‘the possible existence of a statute of limitations defense is not ordinarily a ground for Rule 12(b)(6) dismissal unless the complaint itself establishes the defense.’ ” Joyce, 635 F.3d at 367 (quoting Jessie v. Potter, 516 F.3d 709, 713 n.2 (8th Cir. 2008)). But “[s]ome materials that are part of the public record or do not contradict the complaint may be considered by a court in deciding a Rule 12(b)(6) motion.” Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007) (quoting Missouri ex rel. Nixon v. Coeur D’Alene Tribe, 164 F.3d 1102, 1107 (8th Cir. 1999)). Couzens’s petition does not allege where the statements were first published. Moreover, Couzens did not claim in the district court that the statements were first published in a location other than New York. Because Donohue’s affidavit did not contradict the petition, we hold that the district court did not err in relying on it.

Couzens argues that the Missouri statute of limitations applies to his defamation claim because, in cases involving publication of defamatory statements on the Internet, the state where the defamed party suffered injury typically determines the applicable law. He reasons that Defendants are subject to personal jurisdiction in Missouri because they purposefully directed their statements at Couzens with the knowledge that he would suffer reputa-tional injury in Missouri, see Baldwin v. Fischer-Smith, 315 S.W.3d 389, 392-98 (Mo. Ct. App. 2010), and that the Missouri statute of limitations applies to his defamation claim under choice-of-law principles because Missouri, as Couzens’s state of residence and the state in which he suffered reputational injury, bears the “most significant relationship” to the claim, see Fuqua Homes, Inc. v. Beattie, 388 F.3d 618, 621-22 (8th Cir. 2004). Couzens seems to argue that personal-jurisdiction and choice-of-law principles should be applied to determine the state in which a cause of action for defamation “originates” under Missouri’s borrowing statute, but this contention has already been rejected. See Patch, 652 F.2d at 756-58; Finnegan, 765 S.W.2d at 707.

Alternatively, Couzens seems to argue that Missouri’s borrowing statute should not apply at all because statements first published on the Internet become available in every state almost instantaneously and thus it is impossible to determine the state in which they were “first published” for purposes of the borrowing statute. If the borrowing statute does not apply, Couzens contends that we should consider personal-jurisdiction and choice-of-law principles to decide which state’s statute of limitations applies. We reject the contention that the borrowing statute cannot be applied in this case, in light of the uncontradicted statement that the allegedly defamatory statements were “printed, edited, distributed and/or published via a news release in New York, New York.” Cf. Patch, 652 F.2d at 755 (“Playboy argues that the claim originated in Illinois because Playboy (1) has its principle place of business in Chicago, (2) edited, assembled, and printed the February 1976 issue there, and (3) distributed the article to its readers from Chicago.”); Givens, 877 F.Supp. at 491 n.7 (“Even if Missouri would look to the state, where, academically, the statements were first published, the court would still apply a one-year statute of limitations. New York, [defendant’s] residence, and the District of Columbia, where [defendant’s] syndicator is located, both apply a one-year statute of limitations in libel cases.”). Accordingly, we affirm the district court’s dismissal of Couzens’s defamation claim as time-barred under Missouri’s borrowing statute.

2. Invasion of Privacy

Couzens contends that the district court erred when it dismissed his invasion-of-privacy claim on the ground that Missouri does not recognize a cause of action for false light invasion of privacy. Couzens cites Meyerkord v. Zipatoni Co., 276 S.W.3d 319, 324-25 (Mo. Ct. App. 2008), for the proposition that Missouri recognizes such a cause of action. But in Farrow v. Saint Francis Medical Center, the Missouri Supreme Court concluded that when a plaintiff seeks “to protect her reputation in the outside world,” rather than the plaintiffs interest in being “left alone,” the plaintiff has a cause of action for defamation, not invasion of privacy. 407 S.W.3d 579, 602 (Mo. 2013). In Cockram v. Genesco, Inc., we concluded that, whatever Mey-erkord’s fact-based holding, the Missouri Supreme Court would not recognize a cause of action for false light invasion of privacy in a situation in which, as in Cock-ram, the plaintiff “sought to recover on her false light count for untrue statements that caused injury to her reputation.” 680 F.3d 1046, 1057 (8th Cir. 2012) (emphasis omitted). Because Couzens alleged that the false statements injured his reputation, defamation, not invasion of privacy, was in fact the basis of his cause of action.

Couzens argues that even if Missouri does not recognize false light invasion of privacy, he has stated a claim for other forms of invasion of privacy. He contends that Donohue “did not simply publish untrue statements about [Couzens], he actively and physically delved into [Couzens’s] life and worked to offend his privacy, separate and apart from the defamation.” Appellant’s Br. 50. Couzens states that Donohue conducted an extensive public-relations smear campaign, targeted at many groups in the Kansas City community, supporting priests accused of sexual abuse and chastising their accusers. He argues that this case is thus analogous to Hester v. Barnett, 723 S.W.2d 544 (Mo. Ct. App. 1987). As alleged in that case, a minister gained entry into the plaintiffs’ home by offering family-counseling services and thereafter used the information he acquired to publicly, falsely present the plaintiffs as abusive parents. Id. at 550. The Hester court held that the petition alleged an invasion of privacy claim for intrusion upon seclusion because the minister gained access to the plaintiffs’ home under false pretenses and harmed them with the thus-gained information. Id. at 563. But the court also held that the petition did not state claims for tortious publication of private facts or false light invasion of privacy, emphasizing that “[w]here the claim for recovery on either theory ... involves untrue statements, the appropriate remedy is by defamation.” Id. (emphasis omitted). Here, Couzens’s petition alleges that Donohue invaded his privacy by communicating false statements about him to the Kansas City community, for which defamation is the proper remedy under Missouri law. Accordingly, we affirm the dismissal of Couzens’s invasion of privacy claim.

3. Infliction of Emotional Distress

Finally, Couzens argues that the district court erred in dismissing his claims for intentional infliction of emotional distress and negligent infliction of emotional distress. We affirm the dismissal of both claims. “In order to state an emotional distress claim, the plaintiff must plead extreme and outrageous conduct by a defendant who intentionally or recklessly causes severe emotional distress that results in bodily harm.” Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 316 (Mo. 1993). A claim for intentional infliction of emotional distress “does not lie when the offending conduct consists only of a defamation.” Id. (emphasis omitted) (citing Hester, 723 S.W.2d at 561). As discussed above, Couz-ens alleged that Defendants spread false, harmful information about him to the Kansas City community. Thus, Couzens has only a defamation claim and not one for intentional infliction of emotional distress.

Likewise, Couzens has not stated a claim for negligent infliction of emotional distress. To state such a claim, a plaintiff must plead the general elements of negligence — that is, “a legal duty of the defendant to protect the plaintiff from injury,” a breach of that duty, proximate cause, and injury — as well as two additional elements — “that the defendant should have realized that his conduct involved an unreasonable risk of causing distress” and “that the emotional distress or mental injury must be medically diagnosable and must be of sufficient severity so as to be medically significant.” Thornburg v. Fed. Express Corp., 62 S.W.3d 421, 427 (Mo. Ct. App. 2001). The petition alleged only that “Defendants owed plaintiff a duty to not cause [him] damage by engaging in tortious and injurious actions.” This general assertion does not describe a legally recognized duty. See kL (affirming dismissal because petition did not allege a legally recognized duty). The cases that Couzens cites to support recognition of such a broad duty are inapposite. See Hoover’s Dairy, Inc, v. Mid-Am. Dairymen, Inc./Special Prods., Inc., 700 S.W.2d 426, 431-32 (Mo. 1985) (discussing whether knowledge that injury will result is required for duty); Bass v. Nooney Co., 646 S.W.2d 765, 766-74 (Mo. 1983) (applying the doctrine of res ipsa loquitur to case involving mental distress resulting from being trapped in a stalled elevator, and rejecting the requirement of physical injury to recover for negligent infliction of emotional distress). Accordingly, the district court properly dismissed Couzens’s claim for negligent infliction of emotional distress.

The judgment is affirmed.

KELLY, Circuit Judge,

concurring.

I write separately because I disagree with the court’s conclusion that Donohue’s affidavit does not contradict the complaint. In so concluding, the court notes that the complaint does, not specify where the defamatory statements were published. Thus, the court explains, Donohue’s allegation that the statements were published in New York does not contradict the complaint, and the district court did not err by relying on it in granting the motion to dismiss. But “the possible existence of a statute of limitations defense is not ordinarily a ground for Rule 12(b)(6) dismissal unless the complaint itself establishes the defense.” Joyce, 635 F.3d at 367 (quoting Jessie, 516 F.3d at 713 n.2)). Furthermore, “a plaintiff need not plead facts responsive to an affirmative defense before it is raised.” Braden v. Wal-Mart Stores Inc., 588 F.3d 585, 601 n.10 (8th Cir. 2009).

The complaint' alleges that “[t]he Catholic League ... and William Donohue have committed tortious acts within [Missouri] and Jackson County,” and that “various tortious acts occurred and damages were first sustained by the Plaintiff’ in Missouri. The “tortious act” underlying a defamation claim is the publication of a defamatory statement. See Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. banc 2000) (listing elements of defamation). Though the allegations of the complaint are not particularly specific, accepting the factual allegations of the eomplaint as true and “construing] all reasonable inferences from those facts most favorably to” Couzens, Minn. Majority, 708 F.3d at 1055, one can reasonably infer that the complaint charges that the statements were published in Missouri, and therefore that the complaint itself does not establish a statute of limitations defense, see Schmidt v. Skolas, 770 F.3d 241, 248 (3d Cir. 2014) (“[A] complaint does not fad to state a claim simply because it omits facts that would defeat a statute of limitations defense.”).

The district court explicitly relied on Donohue’s affidavit to find that the statements were published in New York and that Couzens’ defamation claim was consequently time-barred. In my view, Dono-hue’s affidavit — which is not a public record or embraced by the pleadings, and whose truth mandates the dismissal of Couzens’ defamation claim — is most fairly described as contradictory to the complaint. I would therefore find that the district court erred in relying on Donohue’s affidavit without converting the motion into one for summary judgment. See Fed. R. Civ. P. 12(d); Court v. Hall Cty., 725 F.2d 1170, 1172 (8th Cir. 1984) (“[I]f the defendant files an affidavit in support of a Rule 12(b)(6) motion to dismiss, the district court must treat the motion as one for summary judgment unless it decides to exclude the affidavit in considering the motion.”).

However, “[c]onsideration of matters outside the pleading is harmless [and does not require reversal] where ‘the nonmov-ing party had an adequate opportunity to respond to the motion and material facts were neither disputed nor missing from the record.’ ” BJC Health Sys. v. Columbia Cas. Co., 348 F.3d 685, 688 (8th Cir. 2003) (quoting Gibb v. Scott, 958 F.2d 814, 816 (8th Cir. 1992)); see Country Club Estates, 213 F.3d at 1005 (noting constructive notice that the district court -will consider matters outside the pleading can be sufficient). Couzens had over four months to respond to the defendants’ motion to dismiss. In his response, Couzens argued that the court should apply the statute of limitations of the place of injury, rather than the place of initial publication. However, Couzens did not dispute before the district court — or before this court — that the allegedly defamatory statements were “published” in New York, as that term is defined in our case law. See Patch, 652 F.2d at 756-57 (rejecting theory that a cause of action can originate in multiple locations based on where injury is suffered because such a rule would not effectuate the Missouri borrowing statute’s anti-forum shopping purpose). Couzens did not attach any materials to his response or request to do so. Because Couzens had ample opportunity to respond to the defendants’ motion and the record demonstrates no disputed facts, I would find that the court’s error was harmless. See Davis v. Johnson Controls, Inc., 21 F.3d 866, 867 (8th Cir. 1994) (finding any lack of formal notice that the district court would consider affidavits attached to alternative motion for summary judgment in ruling on motion to dismiss harmless given the plaintiffs adequate opportunity to respond and the absence of missing or disputed material facts); cf. Gibb, 958 F.2d at 817 (remanding when parties disputed the location of key events and the district court did not allow plaintiff an opportunity to provide further materials); BJC Health Sys., 348 F.3d at 688 (remanding when the record revealed disputed facts). For this reason, I concur.

      . The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri.

      . Donohue and the Catholic League stated in their notice of removal that the Catholic League is incorporated in the state of California, but this fact would not affect jurisdiction.

      . Couzens had testified against the defendant in a murder trial, James Eric Mansfield, who was convicted and petitioned for habeas corpus relief. The district court denied Mansfield’s petition and we affirmed, and in the course of doing so we discussed Mansfield’s attempt at trial to implicate Couzens and another witness. Mansfield v. Dormire, 202 F.3d 1018, 1021 n.3 (8th Cir. 2000); see also id. at 1024-25 (Heaney, J., dissenting).

      . Donohue attested that the allegedly defamatory statements were “printed, edited, distributed and/or published via a news release in New York, New York.” Couzens’s petition did not specify where the statements were first published: it alleged that Donohue and the Catholic League, both New York citizens, “issued a statement,” "issued another statement,” and "continued to publish these statements,” and that "[cjopies of the statements Donohue made about Couzens were distributed to churches” including a church in Missouri whose parishioners know Couzens. The petition also alleged that the statements "have remained posted” on the Catholic League's and KCCL’s websites.

      . We have taken judicial notice of publicly available records from the Kansas Secretary of State that show that KCCL was reinstated on January 27, 2014. We note that Couzens relied on Clark Estate Co. v. Gentry, 362 Mo. 80, 240 S.W.2d 124, 127 (1951), to support his argument that he could not sue a dissolved corporation. Clark, however, was based on a statutory scheme that has since been modified.

      . KCCL also noted in its consent to removal that Donohue and the Catholic League filed their initial notice of filing of the notice of removal in state court on March 14, 2014, to which they evidently neglected to attach their notice of removal, but filed an amended notice of filing of notice of removal in state court on March 17, 2014, to which they attached their notice of removal. The amendment of the notice of filing of notice of removal filed in state court does not affect any of the pertinent time limits.

      . The court noted that "[i]n the legal sense, publication is the intentional or negligent communication of defamatory statements to a person other than the one defamed,” but judged the “available to the general public” standard to be more appropriate in the mass-media context. Givens, 877 F.Supp. at 491.

      . We do not consider Couzens’s newly raised assertion that the statements might have been first printed in Wisconsin. See Shanklin v. Fitzgerald, 397 F.3d 596, 601 (8th Cir. 2005) ("Absent exceptional circumstances, we cannot consider issues not raised in the district court.”).

      . We also reject Couzens's argument that under Thompson by Thompson v. Crawford, 833 S.W.2d 868 (Mo. 1992), the state whose law applies under choice-of-law principles will also have its statute of limitations applied under Missouri's borrowing statute. The court in that case determined that Tennessee's substantive law applied to a wrongful death action under choice-of-law principles and separately determined that Tennessee’s statute of limitations applied under Missouri’s borrowing statute; it did not conflate the two inquiries. Id. at 870-71. Further, that the state in which the injury occurred determined the applicable statute of limitations in Thompson has no bearing upon this case, because, as discussed earlier, defamation claims "originate” in the state where the statements are first published.


author: LOKEN, Circuit Judge.

text:
    Vladimir MARIC, Petitioner v. Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent
    No. 15-3835
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 14, 2016
    Filed: April 18, 2017

      Counsel who presented argument on behalf of the' petitioner was Thomas R. Anderson, III, of Minneapolis, MN.
    Counsel who presented argument on behalf of the respondent was Paul F. Stone, of Washington, DC. The following attorney(s) appeared on the appellee brief; Paul F. Stone, of Washington, DC.; Benjamin C. Mizer, of Washington, DC; Alison M. Igoe, of Washington, DC.
    Before LOKEN, MURPHY, and KELLY, Circuit Judges.

      . Jefferson B. Sessions, III, has been appointed to serve as Attorney General of the United States and is substituted as respondent. See Fed. R. App. P. 43(c).

   LOKEN, Circuit Judge.

Vladimir Marie is a citizen of Bosnia and Herzegovina, part of the former Yugoslavia, who was admitted into the United States as a refugee with his wife and two children in September 1999 and became a lawful permanent resident in 2001. The Department of Homeland Security (“DHS”) commenced removal proceedings in January 2011, charging that Marie obtained immigration benefits by fraud or willful misrepresentation of a material fact. See 8 U.S.C.' § 1182(a)(6)(C)®. After a hearing, the Immigration Judge (“IJ”) found Marie removable because, at the time of his admittance and adjustment of status, he concealed that he had served in the Army of the Serb Republic, Vojska Republika Srpske (“VRS”), from January 2, 1995 to January 27, 1996, a period that encompassed the July 1995 massacre of thousands of Bosnian Muslim prisoners in Srebrenica, Bosnia and Herzegovina. Marie applied for a discretionary waiver of deportation under 8 U.S.C. § 1227(a)(1)(H). The IJ found Marie ineligible for this , relief because he failed to prove he is not an alien who “committed ... assisted, or otherwise participated in” extrajudicial killings under color of law of any foreign nation. 8 U.S.C. § 1182(a)(3)(E)(iii). The Board of Immigration Appeals (“BIA”) affirmed. Marie petitions for review, arguing the BIA erred by not requiring the government to prove by clear and convincing evidence that he was inadmissible under § 1182(a)(3)(E). We deny the petition for review.

1. Section 212(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a), lists classes of aliens who are “ineligible for visas or admission.” Class 3 encompasses “[sjecurity and related grounds,” which include an alien who has committed or participated in extrajudicial killings. See § 1182(a)(3)(E)(iii). Class 6 is entitled “[ijllegal entrants” and includes those who obtain immigration benefits by fraud or material misrepresentation. See § 1182(a)(6)(C)(i). A “material” misrepresentation is one that has “a natural tendency to influence the decisions” of the DHS. Matter of D-R-, 25 I. & N. Dec. 445, 450 (BIA 2011).

Section 237(a) of the INA, 8 U.S.C. § 1227(a), lists classes of removable aliens. An alien who was inadmissible at the time of entry or adjustment of status is removable. § 1227(a)(1)(A). This category includes an alien who was inadmissible for fraud or material misrepresentation under § 1182(a)(6)(C)(i). However, an alien removable for this reason may be eligible for a discretionary waiver of removal if he meets the criteria in § 1227(a)(1)(H), unless he is “an alien described in paragraph (4)(D),” a cross reference to § 1227(a)(4)(D). Section 1227(a)(4)(D) in turn cross references § 1182(a)(3)(E)(iii). Thus, an alien who has participated in extrajudicial killings under color of law of a foreign nation is ineligible for this waiver of removal.

The Attorney General’s regulations provide that DHS must prove that an alien is removable by clear and convincing evidence. See 8 C.F.R. § 1240.8(a). But an alien applying for a waiver of removal under § 1227(a)(1)(H) “has the burden of proof to establish that ... [he] satisfies the applicable eligibility requirements.” 8 U.S.C. § 1229a(c)(4)(A). “If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.” 8 C.F.R. § 1240.8(d).

2. At the hearing, Michael MacQueen, a senior historian in DHS’s Human Rights Division, testified that the VRS and other forces participated in a coordinated killing operation at Srebrenica in July 1995. The IJ found that Marie’s failure to disclose his service in the VRS at this time was a material misrepresentation under § 1182(a)(6)(C)(i), making Marie removable under § 1227(a)(1)(A). Marie requested a waiver under § 1227(a)(1)(H). DHS presented evidence that Marie may have participated in the atrocities at Srebrenica. VRS enrollment and attendance records list Vladimir Marie, with the correct birth date, as carrying out combatant assignments for the Sixth Battalion, Third Company, of the Zvornik Brigade throughout most of the month of July 1995. MacQueen also testified that records of the International Criminal Tribunal for the former Yugoslavia establish that members of the Sixth Battalion were housed during this time at a school building in Petkovci. On July 14, the VRS detained around 1,000 Bosnian Muslim men and boys captured while fleeing the area. Members of the Sixth Battalion removed prisoners from the school building on July 15 to a nearby dam, executed them by automatic rifle, and buried them in mass graves.

Marie testified that he was forcibly conscripted by the VRS in January 1995. In July, he was on active duty only on July 22, when the VRS removed him from a marketplace, provided him with an old military uniform and a gun, and bused him to Petkovci. He walked to Bajkovica and was told to sit and watch the trenches. He saw unarmed men crossing a bridge, but did not observe any shooting or dead bodies. He provided two documents relating to his military service, a September 1994 certifí-cate of exemption showing he was previously exempt from the draft for medical reasons, and a certificate of conscription demonstrating service in the Zvornik Brigade from January 2 to April 4, 1995.

Based on this evidence, the IJ found that Marie may have participated in the atrocities at Srebrenica, “extrajudicial killings” that would make him ineligible for a waiver of removal under 8 U.S.C. §§ 1227(a)(4)(D) and 1182(a)(3)(E)(iii). Placing the burden on Marie to prove by a preponderance of the evidence that grounds for mandatory denial of a waiver did not apply, the IJ denied Marie’s request for a waiver of removal, finding that his testimony regarding his limited military service was not credible and the documents he submitted did not relate to his involvement with the Zvornik Brigade in July 1995.

Marie appealed to the BIA, arguing that the IJ erred in not requiring DHS to prove by clear and convincing evidence that he participated in the Srebrenica massacre and therefore was inadmissible under § 1182(a)(3)(E)(iii), the burden of proof placed on DHS in Matter of D-R-. The BIA rejected this contention. The issue in Marie’s case “is not comparable,” the BIA explained, because in Matter of D-R-, the DHS proved by clear and convincing evidence that respondent was removable because he participated in extrajudicial killings. Here, DHS did not charge that Marie was removable because he was inadmissible under § 1182(a)(3)(E). Rather, DHS proved by clear and convincing evidence that Marie was removable because he was inadmissible under § 1182(a)(6)(C)(i) for willful misrepresentation of a material fact, and thus the issue was whether he was eligible for waiver relief from that removal under § 1227(a)(1)(H). As the BIA explained, when the IJ found that the government’s evidence “indicates that one or more of the grounds for mandatory denial of the application for relief may apply,” the IJ correctly applied 8 C.F.R. § 1240.8(d) and placed on Marie the burden to prove he is eligible for waiver relief by a preponderance of the evidence.

3. On appeal, Marie again argues that the BIA and the IJ erred in not requiring DHS to prove by clear and convincing evidence that he was inadmissible and therefore removable because he participated in the extrajudicial killings at •Srebrenica. “We review the BIA’s legal determinations de novo, but we accord substantial deference to the BIA’s interpretation of the statutes and regulations it administers.” Godfrey v. Lynch, 811 F.3d 1013, 1017 (8th Cir. 2016) (quotation omitted).

Like the BIA, we conclude that Marie’s argument is contrary to the plain language of the governing statutes and regulation. By statute, the discretionary waiver of removal Marie seeks under § 1227(a)(1)(H) is available only if (i) he is removable because he was inadmissible for fraud or material misrepresentation under § 1182(a)(6)(C)(i), and (ii) he is not “an alien described in” § 1227(a)(4)(D). Consistent with the governing regulation, the IJ’s finding that DHS presented evidence that “indicates” Marie may have participated in the extrajudicial killings at Srebrenica placed on Marie the burden to prove by a preponderance of the evidence that the statutory bar in § 1182(a)(3)(E)(iii) did not apply. See 8 C.F.R. § 1240.8(d). Marie objects that shifting the burden of proof to him based solely on evidence that “indicates” potential inadmissibility opens a government “backdoor” to find aliens inadmissible and therefore removable without sufficient evidence. But the issue in this case is not removability, it is Marie’s eligibility for relief from being removed because he willfully misrepresented material facts in obtaining immigration benefits. “While the government bears the burden to prove the alien is deportable or removable, it is the alien’s burden ... to prove he is eligible for cancellation of removal.” Andrade-Zamora v. Lynch, 814 F.3d 945, 949 (8th Cir. 2016).

Marie concedes that he is removable for willful misrepresentation and that DHS’s evidence “indicates” that he may have participated or assisted in the extrajudicial killings at Srebrenica in July 1995. In these circumstances, the BIA properly placed on Marie the burden to prove that the statutory bar to waiver relief in 8 U.S.C. § 1182(a)(3)(E)(iii) did not apply. Accordingly, we deny the petition for review. We lack jurisdiction to grant Marie’s request for voluntary departure. See 8 U.S.C. § 1229c.

      . Marie did not appeal the finding he is removable to the BIA or in his petition for review to this court.


author: SMITH, Circuit Judge.

text:
    Jacques R. SLOCUM, Petitioner-Appellant v. Wendy KELLEY, Director, Arkansas Department of Correction, Respondent-Appellee
    No. 16-1175
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 14, 2016
    Filed: April 18, 2017
    Rehearing and Rehearing En Banc Denied May 30, 2017

      Counsel who appeared on the brief and presented argument on behalf of the appellant was J. Blake Hendrix, of Little Rock, AR.
    Counsel who appeared on the brief and presented argument on behalf of the ap-pellee was Valerie G. Fortner, AAG, of Little Rock, AR.
    Before WOLLMAN, SMITH, and BENTON, Circuit Judges.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

   SMITH, Circuit Judge.

Jacques R. Slocum was convicted in Arkansas state court of second-degree murder, endangering the welfare of a minor, and fleeing. He was sentenced to 99 years’ imprisonment. After exhausting his state post-conviction relief remedies, he filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging several claims of ineffective assistance of counsel. The district court dismissed Slocum’s ha-beas petition as proeedurally defaulted but granted a certificate of appealability on whether Slocum had a substantial claim that his trial counsel was ineffective for failing to request a competency hearing and failing to present mitigating evidence during the sentencing phase. See Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 1320, 182 L.Ed.2d 272 (2012). Because we conclude that none of Slocum’s ineffective-assistance claims have merit, we affirm the district court’s dismissal of Slocum’s § 2254 petition as proeedurally defaulted.

I. Background

A. State Proceedings

On October 24, 2011, Slocum shot and killed Joe Jacks on in front of several onlookers. Slocum was charged under Arkansas law with first-degree murder, felon in possession of a firearm, first-degree endangering the welfare of a minor, and fleeing. He hired LaTonya Austin as his trial attorney. Austin entered a general-denial defense on Slocum’s behalf. A week before trial,' Slocum retained a. family friend, attorney Steve Smith, as Austin’s co-counsel. After retaining Smith, Slocum changed his defense strategy to self defense.

At trial, Slocum did not contest that he killed Jackson; instead, he testified that he killed Jackson in self defense. Eyewitnesses Tina Williams and Tracy Brown testified to seeing Slocum in his car arguing with Jackson, who stood outside. The argument escalated, and Slocum got out of his car. At some point, Slocum got back in his car, grabbed a gun, and exited his car again. Slocum then shot Jackson twice, killing him. Slocum fired the fatal shots standing just outside of his vehicle with his two-year-old child in the backseat.

After shooting Jackson, Slocum entered his car and drove away. Police apprehended Slocum after disabling his car following a high-speed chase. Slocum’s child experienced the entire incident from the backseat of the car. During the chase, Slocum discarded his gun.

On June 18, 2012, a Pulaski County Circuit Court jury found Slocum guilty of second-degree murder (the lesser-included offense); first-degree endangering the welfare of a minor; and fleeing. During the sentencing phase of trial, the State introduced victim-impact evidence and Slocum’s conviction records — a Florida conviction for manslaughter and escape and a California conviction for felon in possession of a firearm. The State offered no details about Slocum’s prior convictions, including the manslaughter conviction. Jackson’s girlfriend, Erica Harris, testified that she was five months pregnant when Slocum killed Jackson and that her son was prematurely born as a result of the stress caused by Jackson’s death. Harris showed a picture of her prematurely-born son to the jury. Slocum’s defense team presented no mitigating evidence. During the sentencing-phase closing, the State argued that Slocum had “a violent history. He has taken another human life before he took Joe Jackson’s [life].... [0]ne human life is too much. And, now, it’s been two at the hands of that man.” The jury sentenced Slocum to the maximum penalty on all charges, and the court ordered all sentences to be served consecutively for an aggregate 99-year term of imprisonment.

On February 1, 2013, Slocum, through Austin, appealed his conviction to the Arkansas Court of Appeals, challenging the sufficiency of the evidence on his second-degree murder conviction. That court determined that Slocum’s argument was not preserved for appellate review and affirmed the judgment on May 8, 2013. See Slocum v. State, 2013 Ark. App. 309, 2013 WL 1919663 (2013). The mandate issued on June 5, 2013.

On July 18, 2013, Slocum filed a timely pro se petition for post-conviction relief in the Pulaski County Circuit Court under Arkansas Rule of Criminal Procedure 37 (“Rule 37”). In his pro se petition, Slocum alleged ineffective assistance of trial counsel. After holding a hearing on the petition, the state trial court denied relief on October 28, 2013. Slocum then appealed the denial of his Rule 37 petition to the Arkansas Supreme Court. On April 17, 2014, the Arkansas Supreme Court dismissed Slocum’s appeal, holding that Slocum did not verify his original petition with the state trial court in accordance with Rule 37. Slocum v. State, 2014 Ark. 178, at *2-3, 2014 WL 1515882 (2014) (per curiam). It held that the verification is “of substantive importance to prevent perjury” and thus the clerk should have rejected the petition. Id. at *2. As a result, it held that the state trial court lacked jurisdiction to consider the arguments raised in Slocum’s Rule 37 petition. Id. at *3.

B. Federal Proceedings

On April 30, 2014, Slocum filed his § 2254 petition with the district court, alleging ineffective assistance by both trial and appellate counsel. The magistrate judge recommended that the district court deny Slocum’s petition with respect to his claims of ineffective assistance of appellate counsel but conduct an evidentiary hearing with respect to Slocum’s claims of ineffective assistance of trial counsel. The magistrate judge recognized that the Arkansas Supreme Court’s dismissal of Slocum’s petition for failure to conform with the verification requirement of Rule 37 constitutes a “procedural default in an initial-review collateral proceeding.” See Martinez, 132 S.Ct. at 1318. The magistrate judge found, however, that Slocum’s pro se status during his postconviction proceedings could constitute cause to excuse the procedural default if his ineffective-assistance claims were substantial. See id. at 1320.

The district court adopted the magistrate judge’s partial disposition. Thereafter, the magistrate judge held an eviden-tiary hearing on Slocum’s claims that Austin, his trial attorney, was ineffective for, among other things, (1) failing to request a competency hearing, and (2) failing to present mitigating evidence during sentencing.

1. Failure to Request a Competency Hearing

At the evidentiary hearing, attorney Austin confirmed that she never requested a competency hearing before the state trial court. Slocum introduced exhibits showing that he had a series of mental evaluations by psychologists in the California Department of Correction (CDC), Florida Department of Correction (FDC), and the Arkansas State Hospital (ASH). Austin testified that she was unaware of these records. She confirmed that it was her “practice to question [her] clients as to their mental[-]health histories.” Austin did not recall Slocum referencing his mental-health history. Austin confirmed that nothing about “Slocum’s actions, speech, demeanor, [or] behavior ... g[a]ve [Austin] any reason to suspect that he suffered from a mental disorder.” During her initial interview with Slocum, Austin found him to be “intelligent.” In fact, she found him “very articulate ... in every hearing [that they] attended.” She characterized him as “always active in his defense.” In Austin’s experience, “a client mentioning a difficult childhood” was an insufficient basis to request a competency hearing. Additionally, according to Austin, Slocum told her that he had a “nonviolent” criminal history. Austin observed no signs that Slocum was “mentally or emotionally” unable to assist with his trial “because he was actively involved.” When asked what behavior of a client has previously led her to request a competency hearing, Austin testified, in relevant part, “I look at the offense. If the offense involves violence of some sort, that’s somewhat of a red flag.” But, according to Austin, she did not receive the certified copies of judgments from Slocum’s California and Florida convictions until “three or four days before trial.” Therefore, she “didn’t know the full extent of all of [Slocum’s] priors until, like, four days before trial.”

Austin also testified that Slocum’s wife, who retained Austin, never mentioned any concerns about Slocum’s mental health. And Tim Boozer, a public defender who had originally represented Slocum, “gave [Austin] no indication ... of any present mental disorder that would make [Slocum] incompetent to stand trial.” Slocum confirmed that he “never” had a conversation with Smith — Austin’s co-counsel and Slocum’s family friend — about Slocum’s purported “mental health issues.” No evidence exists in the record that Smith ever communicated to Austin that Slocum suffered from a mental illness.

Dr. Robert Forrest, a forensic psychiatrist, reviewed Slocum’s CDC records to “determine whether they were or were not supportive of a mental disease at that time and then ... how that may [have] play[ed] a role in the trial that occurred later on.” In addition to the CDC documents, Dr. Forrest also reviewed medical records from the Arkansas Department of Correction (ADC) and the Pulaski County Regional Detention Facility, Slocum’s state-court trial testimony, the transcript of Slocum’s pro se Rule 37 hearing, and Slocum’s federal habeas petition. Dr. Forrest testified that, based on these documents, his conclusion was that “although [Slocum] was provided medications at times and was diagnosed at times with varying different disorders, the [CDC] documents were not particularly supportive of the presence of a psychotic disorder.” In his report, he opined “that during the time of his defense[,] Mr. Jacques Slocum did not demonstrate impairments in judgment, behavior, recognition of reality, or ability to meet ordinary demands of life that would lead another, individual to have reasonable suspicion of a substantial disorder of thought, mood, perception, orientation, memory, or intelligence.”

The magistrate judge rejected Slocum’s claim that Austin was deficient for failing to request a competency hearing. The magistrate judge found no evidence supporting Slocum’s testimony that' Austin knew of his past mental problems. The magistrate judge pointed out that Smith— Slocum’s family friend and Austin’s co-counsel — never suggested that the defense move for a competency hearing.

2. Failure to Present Mitigating Evidence

During the evidentiary hearing, Slocum relied on the CDC, FDC, and ASH records in support of his claim that Austin was ineffective for failing to present mitigating evidence during the sentencing phase of his trial. According to these records, Slocum endured an abusive childhood; suffered from post-traumatic stress disorder (PTSD) stemming from events resulting in his Florida manslaughter conviction; and was also diagnosed with psychosis and schizophrenia while incarcerated in California.

Slocum avers that his counsel should have presented to the jury evidence of his abusive childhood and how it mitigated his criminal actions. Slocum testified that he had a bed-wetting problem growing up and never had clean clothes. This caused him to go to school smelling bad. According to Slocum, his mother beat him for wetting the bed, and his classmates made fun of him because he smelled bad. As a result, Slocum started cutting classes and eventually dropped out of school in the sixth grade. Slocum testified that his mother beat him every day with Hot Wheel tracks, extension cords, broomsticks, shoes, and other implements. Slocum attributed some of this abuse to his having a different father than his mother’s other three children.

Slocum testified that his experience with the law began at age ten when his mother had him arrested for stealing a Christmas present for her. When he got out of the juvenile facility, his mother committed him to a mental institution at age 11. At age 12, he went to live with a foster family temporarily before being put back into another institutional setting. He was placed into two more foster homes before moving back in with his mother at age 15. At age 16, Slocum moved out on his own. Slocum testified that he told Austin “the basics” about his traumatic childhood, admitting that the information that he gave her was not “as exten[sive]” as what he provided to the district court during the evidentiary hearing.

Austin testified that she did talk with Slocum about his “traumatic time spent in foster care and traumatic childhood.” From that conversation, Austin learned that Slocum had “a rough childhood. He grew up in Chicago, was placed in foster care early on as a child, went to multiple homes.... [I]t was just not the best childhood that sort of led to a life of some bad choices.” When a client provides her with information about a “tough upbringing,” Austin testified that her practice was to “use that as a talking point to build rapport with the client and tell them about [her] rough upbringing.” She testified that a “rough upbringing alone doesn’t really raise any red flags for [her].”

Austin also testified about the strategy devised for Slocum’s sentencing. She and Smith initially planned for Slocum to testify at sentencing; but, as “things move[d] and evolve[d] in [the] trial,” Austin and Smith decided it was “not the best move” for Slocum to testify. Austin identified “the topics that [Slocum] would have testified to at sentencing,” including (1) Slocum’s status as 49-year-old businessman with a wife and child who had “no real reason” to kill Jackson absent some justification, and (2) Slocum’s foster care records. Austin confirmed that “[wjithout foster care records and other witnesses,” Slocum himself could have testified about his childhood at sentencing. According to Austin, she and Smith “did not develop an alternative strategy in the event that [Slocum] did not testify” at sentencing. Austin investigated no further because all Slocum had told her “was that he had a traumatic childhood and had been in foster care.” Austin testified that she had no other information upon which to investigate, emphasizing that she lacked knowledge of what agency to even contact for a records search.

According to Austin, Slocum wanted to testify during the sentencing phase, just as he had testified in the guilt phase, but she advised him against it. Austin believed that the State would “butcher” Slocum if he testified. Austin suspected Slocum’s credibility would be viewed dimly in light of his prior manslaughter conviction. Austin counseled Slocum that it would not be “wise” for him to testify, but she left the decision to Slocum. According to Austin, she, Smith, and Slocum collectively decided that Slocum not testify at sentencing. Austin acknowledged that without Slocum’s testimony, the defense presented no mitigating evidence at sentencing.

Austin acknowledged that Slocum’s wife would have been the “next best witness” to testify about Slocum’s traumatic childhood and other mitigating factors. But, according to Austin, Slocum “adamantly did not want [his wife] to testify.” Austin explained that Slocum did not permit his wife to attend trial because “he did not want the victim’s family to even know what she looked like.” Slocum feared “retaliation towards his family.”

Despite Slocum presenting no mitigating evidence during sentencing, he “talked ... a little bit about his rough childhood” during the guilt phase. Additionally, he discussed “being a father.” When explaining why he fled the scene with his young son, Slocum stated that he had been a foster child and a ward of the state and did not want his son to have the same hardships. Slocum also testified during the guilt phase that he acted in self defense with no intention of hurting the victim.

The magistrate judge concluded that Slocum’s claim that Austin was deficient for failing to present mitigating evidence lacked merit. The magistrate judge noted that although Slocum had told Austin that he “had a rough childhood and lived in two foster homes,” he never mentioned any of the other mitigating evidence to Austin.

3. Procedural Default

The magistrate judge ultimately recommended that the district court deny Slocum’s habeas petition as procedurally defaulted. However, the magistrate judge recommended that the district court “issue a certificate of appealability on the ineffective assistance of trial counsel claims for failure to request a competency hearing and failure to present mitigating evidence.”

The district court adopted the magistrate judge’s findings and issued the certif- ' icate of appealability.

II. Discussion

On appeal, Slocum acknowledges that his § 2254 claims are procedurally defaulted unless he can “show[ ] cause for the default and prejudice from a violation of federal law.” Martinez, 132 S.Ct. at 1316. Relevant to this case, a “narrow exception” exists to the rule that “an attorney’s ignorance or inadvertence in a post-conviction proceeding does not qualify as cause to excuse a procedural default.” Id. at 1315. “Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. Errors during the collateral review process may provide cause to excuse a procedural default if, for example, “the State did not appoint an attorney to assist the prisoner in the initial-review collateral proceeding. The prisoner, unlearned in the law, may not comply with the State’s procedural rules or may misapprehend the substantive details of federal constitutional law.” Id. at 1317 (emphasis added). As a result, the Supreme Court has held that

[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural 'default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Id. at 1320 (emphasis added). To prove that the ineffective-assistance claim is substantial, “the prisoner must demonstrate that the claim has some merit.” Id. at 1318.

Here, the magistrate judge found that the Arkansas Supreme Court dismissed Slocum’s pro se appeal for his failure to verify the petition. Consequently, the state trial court, according to the magistrate judge, “never had jurisdiction to hear the claim”; therefore, “Slocum’s appeal was dismissed on a procedural default rather than on the merits.” The magistrate judge concluded that “the Martinez exception is cause for Mr. Slocum’s procedural default on these claims if they are substantial.” (Emphasis added.) For purposes of this appeal, we will assume, without deciding, that this determination was correct and analyze whether Slocum has proven that his ineffective-assistance claims are substantial.

To prove that his ineffective-assistance claims are substantial, Slocum must show that his counsel was deficient and that his counsel’s deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove deficient performance, Slocum “must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. To prove prejudice, Slocum “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “To satisfy Strickland, the likelihood of a different result must be ‘substantial, not just conceivable.’ ” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)).

A. Failure to Request a Competency Hearing

Slocum claims that Austin was ineffective for failing to request a competency hearing. He avers that Austin had a duty to request a competency evaluation because she had a basis for a good-faith doubt about his competence. Slocum asserts that Austin’s knowledge of the fol- . lowing facts should have raised a good-faith doubt in Austin’s mind about Slocum’s competence: (1) Slocum was charged with first-degree murder, a violent crime; (2) Slocum had a prior Florida conviction for manslaughter; and (3) Slocum had a traumatic childhood, which included foster-care placement. Slocum argues that these “red flags” should have prompted Austin to request a mental-health evaluation. The mental-health evaluation, in turn, would have revealed strong mitigating evidence. According to Slocum, requesting a competency hearing would have uncovered his CDC and FDC mental-health records.

Having reviewed the record, we conclude that Austin was not deficient for failing to request a competency hearing. No “objective indication [existed] that [Slocum] suffered from any mental illness.” See Gonzalez v. Knowles, 515 F.3d 1006, 1015 (9th Cir. 2008) (rejecting petitioner’s claim that trial counsel was constitutionally “ineffective at re-sentencing for failing to investigate potentially mitigating evidence of mental illness”). First, Austin testified that she did not recall Slocum telling her about his mental-health history, even though it was her “practice to question [her] clients as to their mental[-]health histories.” Second, nothing about “Slocum’s actions, speech, demean- or, [or] behavior g[a]ve [Austin] any reason to suspect that he suffered from a mental disorder.” Austin described Slocum as “intelligent,” “very articulate,” and “always active in his defense.” Third, Austin testified that, in her experience, “a client mentioning a difficult childhood alone” was an insufficient basis to request a competency hearing. Fourth, no other persons knowledgeable of Slocum’s history ever mentioned that Slocum suffered from a mental disorder. Slocum’s wife, who retained Austin, never mentioned any concerns about Slocum’s mental health. Prior counsel Boozer never indicated to Austin that Slocum suffered from a mental disorder that would render him incompetent to stand trial. And Smith, Austin’s co-counsel and Slocum’s family friend, never communicated any concerns to Austin, nor did Slocum ever discuss his mental health with Smith. For these reasons, Austin “cannot be deemed ineffective for failing to pursue this avenue of mitigation where [Slocum’s] mental illness seemed unlikely.” See Gonzalez, 515 F.3d at 1015.

Because Austin’s performance did not fall below an objective standard of reasonableness, Slocum’s claim that Austin was ineffective for failing to request a competency hearing fails. See Worthington v. Roper, 631 F.3d 487, 498 (8th Cir. 2011) (“Failure to establish either Strickland prong is fatal to an ineffective-assistance claim.”).

B. Failure to Present Mitigating Evidence

Slocum also argues that Austin was ineffective for failing to investigate and present evidence of his traumatic childhood as mitigating evidence during the sentencing phase of his non-capital trial. According to Slocum, Austin’s knowledge of his abusive childhood should have prompted a reasonable investigation, which would have uncovered the depth of the abuse. He also maintains that the district court clearly erred in determining the extent of Austin’s knowledge of Slocum’s background, resulting in an erroneous legal determination. According to Slocum, Austin not only knew about Slocum’s traumatic childhood but also knew that he was accused of a homicide — a clear indicator of possible mental health problems — and that the State would introduce the Florida manslaughter conviction as an aggravating sentencing factor. Slocum argues that this information obligated Austin to pursue leads into his background. As to the Florida manslaughter conviction, Slocum argues that Austin should have obtained the file, which would have revealed that he was horribly attacked, that the assailant stabbed him numerous times, and that he suffered PTSD from both the attack and the death of another person. Finally, Slocum asserts that Austin should have found an alternative source for presenting the substantial mitigating evidence and that presenting no such evidence was not a reasonable strategy-

“The Supreme Court has enunciated the standards that apply to ineffective-assistance claims regarding the investigation into and presentation of evidence during the mitigation stage of death-penalty cases, but the Court has never decided a case enunciating the standards that apply during non-capital sentencing.” Johnson v. Beckstrom, No. CIV.A. 08-194-ART, 2011 WL 1808334, at *20 (E.D. Ky. May 12, 2011) (citing Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011); Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Nonetheless, the Supreme Court has indicated that the ABA Guidelines serve as “guides to determining what is reasonable.” Wiggins, 539 U.S. at 524, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052).

The ABA’s Criminal Justice Standards ... indicate that defense counsel in a noncapital sentencing proceeding should (1) promptly investigate the circumstances and facts relevant to sentencing, (2) present the court with any basis that will help achieve an outcome favorable to the defense, and (3) supplement or challenge information provided in any presentence report.

United States v. Conner, 456 Fed.Appx. 300, 304 (4th Cir. 2011) (citing ABA Criminal Justice Standards 4^4.1(a) and 4-8.1(b)). Thus, trial “counsel ha[s] an obligation to conduct a thorough background investigation and to exercise reasonable, professional judgment in determining the mitigation evidence to present during the penalty phase of [a defendant’s] trial.” Sinisterra v. United, States, 600 F.3d 900, 907 (8th Cir. 2010); see also Williams, 529 U.S. at 396, 120 S.Ct. 1495 (stating that counsel has an “obligation to conduct a thorough investigation of the defendant’s background.” (citing 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed. 1980))). “It is unquestioned that under the prevailing professional norms at the time of [Slocum’s] trial, [Austin] had [this] ‘obligation to conduct a thorough investigation of the defendant’s background.’ ” See Porter v. McCollum, 558 U.S. 30, 39, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (quoting Williams, 529 U.S. at 396, 120 S.Ct. 1495).

[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel 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.

Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052.

According to Austin, she, Smith, and Slocum collectively made the strategic decision that Slocum not testify during the sentencing phase. Austin advised Slocum against testifying out of concern that the State would attack Slocum’s credibility, especially considering that the jury had already rejected Slocum’s claim of self defense during the guilt phase. Slocum’s refusal to permit his wife to testify about his background in the sentencing phase eliminated another source for mitigating evidence.

The question is “whether the investigation supporting [Austin’s] decision not to introduce mitigating evidence of [Slocum’s] background was itself reasonable.” See Wiggins, 539 U.S. at 523, 123 S.Ct. 2527. To answer this question, we focus on what evidence Austin had available to her about Slocum’s history. See id. at 523-25, 123 S.Ct. 2527 (holding that “[c]ounsel’s decision not to expand their investigation beyond the PSI and the DSS records” in a capital case was deficient given that the PSI “included a one-page account of [the petitioner’s] ‘personal history’ noting his ‘misery as a youth,’ quoting his description of his own background as “ ‘disgusting,’ ” and observing that he spent most of his life in foster care” and the DSS records revealed that “[p]etitioner’s mother was a chronic alcoholic; [the petitioner] was shuttled from foster home to foster home and displayed some emotional difficulties while there; he had frequent, lengthy absences from school; and, on at least one occasion, his mother left him and his siblings alone for days without food”).

Slocum provided Austin with “the basics” about his traumatic childhood. Slocum told Austin that he had a “rough childhood” in which he “was placed in foster care early on as a child” and “went to multiple homes.” That was the extent of Austin’s knowledge concerning Slocum’s childhood. Austin testified that she had no other information upon which to investigate Slocum’s childhood, emphasizing that she lacked knowledge of sources for additional information, such as pertinent state agencies. As discussed previously, Slocum’s wife, Boozer, and Smith — all of whom had a history with Slocum — -never mentioned that Slocum suffered from any mental-health issues stemming from his childhood or otherwise.

As to Slocum’s prior convictions, Austin testified that she was aware of the convictions but did not get the certified copies of the judgments until “three or four days before trial.” Austin could not recall whether “there [was] a version of events contained in the Florida records that were introduced at sentencing.” Nonetheless, it is undisputed that the State did not discuss the details of Slocum’s prior convictions during sentencing.

On this record, we conclude that Austin provided constitutionally adequate assistance of counsel despite not presenting potentially mitigating evidence of which she had not been apprised. Unlike the counsel in Wiggins, Rompilla, and Porter, Austin had no materials providing her with leads to further investigate Slocum’s childhood or the details surrounding his prior convictions. Furthermore, Slocum’s main argument seems to be that Austin had an obligation to secure his correctional and institutional records from the CDC, FDC, and ASH, which discuss his abusive childhood and PTSD diagnosis stemming from the manslaughter conviction. As previously discussed, Austin had no reason to believe that Slocum suffered from a mental illness necessitating acquisition of Slocum’s correctional and institutional records. To be sure, some diligent attorneys, following a hunch, may conceivably have sought and obtained Slocum’s records in their representation, but that is not the standard for counsel under Strickland.

In summary, we hold that Austin’s performance in failing to present any mitigating evidence during Slocum’s sentencing did not fall below an objective standard of reasonableness. The record supports Austin’s strategic decision not to have Slocum testify about mitigating evidence. Had Slocum testified, the State undoubtedly would have attacked Slocum’s credibility and introduced the details of Slocum’s prior crimes. Furthermore, because Slocum would not permit his wife to testify, Austin had no other witness through which to present mitigating evidence. Because Austin was not deficient, Slocum’s claim that Austin was ineffective for failing to present mitigating evidence fails. See Worthington, 631 F.3d 487 at 498.

III. Conclusion

Because none of Slocum’s ineffective-assistance claims have merit, we conclude that the Martinez exception does not apply to excuse his procedural default. Accordingly, we affirm the judgment of the district court. .

      . The Honorable James M. Moody, Jr., United States District Judge for the Eastern District of Arkansas.

      . A procedural default occurs when “a state court has refused to review the complaint because the petitioner failed to follow reasonable state-court procedures.” Procedural-Default Doctrine, Black’s Law Dictionary (10th ed. 2014).

      . On appeal, the State argues that the Martinez exception is inapplicable because Slocum did present his ineffective-assistance claims in the initial-review collateral proceeding before the state trial court. Alternatively, the State contends that the Martinez exception is inapplicable because Slocum never initiated a state collateral proceeding "because the verification attached to his Rule 37 petition was defective.” Because we conclude that Slocum’s claims fail under the Martinez exception, we need not address the State’s alternative arguments.

      . See also Rompilla, 545 U.S. at 384, 125 S.Ct. 2456 (holding that counsel was deficient in a capital case for failing to examine the petitioner's prior conviction file that was "a public document, readily available for the asking at the very courthouse where [the petitioner] was to be tried” in light of counsel’s knowledge that the Commonwealth intended to seek the death penalty by proving that the petitioner had a significant history of violence and felony convictions through evidence and testimony concerning these prior convictions); Porter, 558 U.S. at 39-40, 130 S.Ct. 447 (holding that counsel was deficient in a capital case for failing to conduct a thorough investigation of the petitioner's background because counsel never conducted any investigation, such as "interviewfing] any members of [the petitioner’s] family,” and "ignored pertinent avenues for investigation of which he should have been aware” based on, for example, "[t]he court-ordered competency evaluations” that recounted the petitioner’s history).