Storey v. Roper

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 08-2936

___________

Walter T. Storey, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

Don Roper, *

*

Appellee. *

___________

Submitted: November 18, 2009

Filed: April 28, 2010

___________

Before MELLOY, BEAM, and GRUENDER, Circuit Judges.

___________

BEAM, Circuit Judge.

Walter Timothy Storey appeals the district court's1 denial of his 28 U.S.C. §

2254 petition for habeas corpus in this death penalty case. Five issues have been

certified for appeal–two claims regarding victim impact testimony; one claim about

the pecuniary gain statutory aggravator; and two claims of ineffective assistance of

counsel. We affirm the denial of habeas corpus relief.

1

The Honorable Jean C. Hamilton, United States District Judge for the Eastern

District of Missouri.

I. BACKGROUND

Jill Frey, a special education teacher in St. Charles, Missouri, was murdered in

her apartment in St. Charles in February 1990. Storey, who lived with his mother,

was her across-the-hall neighbor. On the day of the murder, a Friday, he had received

by mail a divorce petition from his estranged wife. Presumably in response, Storey

drank alcohol heavily, and when he ran out of alcohol, he decided to rob Frey in order

to purchase more alcohol. Late Friday night or early Saturday morning, he took a

knife from his apartment, climbed Frey's balcony, and entered an unlocked sliding

glass door. After brutally murdering Frey by beating and inflicting multiple slash and

stab wounds, Storey stole Frey's car keys, purse and car. On Sunday, Storey returned

to the scene to cover up the murder, wiping down the apartment, scrubbing Frey's

fingernails, throwing away clothing and disposing of other incriminating evidence.

Co-workers discovered Frey's body on Monday, when she did not show up at school

for work. After giving several different stories to the police, Storey admitted most of

the above details, but contended that he only remembered struggling with Frey, not

killing her. He proceeded to trial, advancing the theory that a large man forced Storey

into Frey's apartment and killed Frey because the alleged assailant thought Frey was

Storey's mother, all at the behest of Storey's estranged wife's father.

The jury rejected Storey's theory and convicted him of first-degree murder,

armed criminal action, second-degree burglary, and tampering with evidence.

Following a penalty-phase trial, the jury recommended the death penalty, which the

trial court imposed. In 1995, the Missouri Supreme Court affirmed the convictions,

but reversed and remanded the death sentence after finding that Storey was denied his

constitutional right to effective assistance of counsel for failing to object to improper

prosecutorial arguments during the penalty phase. State v. Storey, 901 S.W.2d 886,

902-03 (Mo. 1995) (Storey I). In 1997, a second jury recommended a sentence of

death, which the trial court adopted. The Missouri Supreme Court again reversed and

remanded the sentence of death because the trial court failed to properly instruct the

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jury concerning Storey's constitutional right not to testify. State v. Storey, 986

S.W.2d 462, 464-66 (Mo. 1999) (Storey II). After a third penalty-phase trial in

September 1999, the trial court again adopted the jury's recommendation that Storey

be put to death, and the Missouri Supreme Court affirmed on March 6, 2001. State

v. Storey, 40 S.W.3d 898 (Mo. 2001) (Storey III). Storey filed a petition for certiorari

on July 20, 2001, which was denied on October 1, 2001. 534 U.S. 921 (2001).

On July 19, 2001, Storey filed a Rule 29.15 motion for post-conviction relief

in Missouri state court, which was denied on March 18, 2004. Storey appealed, and

the Missouri Supreme Court affirmed on October 18, 2005. Storey v. State, 175

S.W.3d 116 (Mo. 2005) (Storey IV). The court also denied his motion for a rehearing

on November 22, 2005. Storey filed a Rule 912 petition for habeas corpus with the

Missouri Supreme Court on November 15, 2006, which was denied on December 19,

2006. Storey filed a second Rule 91 petition with the Missouri Supreme Court on

December 21, 2006, which was denied on January 30, 2007. On January 18, 2007,

he filed a motion to recall the mandate, which the Missouri Supreme Court denied on

February 27, 2007. On March 5, 2007, Storey filed the current petition for habeas

corpus pursuant to 28 U.S.C. § 2254.

The district court rejected the government's position that the petition should be

dismissed as untimely, but denied relief on all grounds and granted a certificate of

appealability on four of the claims enumerated above. Prior to the case being set for

argument, we expanded the certificate to include another claim concerning victim

impact evidence presented at the third penalty-phase hearing.

2

Missouri Supreme Court Rule 91 is the vehicle for prisoners to file petitions

for habeas corpus in Missouri state court in extremely limited circumstances, but these

motions are distinct from Rule 29.15 motions for post-conviction relief, wherein

traditional claims of trial error and ineffective assistance of counsel should be brought.

State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214-17 (Mo. 2001).

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II. DISCUSSION

A. Timeliness

The government initially contends that Storey's petition is untimely, arguing

that Storey's most recent actions for state post-conviction relief–the Rule 91 petitions

and motion to recall the mandate–did not toll the statute of limitations.3 As we read

the briefs, the state does not contest that if Storey is given the benefit of tolling for

these filings, the petition was timely. The state argues that the Rule 91 petitions and

the motion to recall the mandate are not applications for state post-conviction or other

collateral relief because Storey was simply trying to manipulate the system. Until

recently we had not decided whether Rule 91 petitions serve to toll the habeas corpus

statute of limitations found in 28 U.S.C. § 2244. However, in Polson v. Bowersox,

3

The applicable statute of limitations is as follows:

(1) A 1-year period of limitation shall apply to an application for a

writ of habeas corpus by a person in custody pursuant to the

judgment of a State court. The limitation period shall run from the

latest of–

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the

time for seeking such review;

...

(2) The time during which a properly filed application for State

post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(1)-(2).

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595 F.3d 873 (8th Cir. 2010), we held that Rule 91 petitions qualify as "other

collateral review" for purposes of the habeas corpus statute of limitations. Id. at 875.

We have also previously held that a Missouri motion to recall the mandate is "other

collateral review" within the meaning of § 2244. Bishop v. Dormire, 526 F.3d 382,

384 (8th Cir. 2008). Under Polson and Bishop, Storey's Rule 91 motions and his

motion to recall the mandate met the qualifications set forth in § 2244 and tolled the

statute while pending. As we did in Polson, 595 F.3d at 875, we also decline the

state's entreaty to "narrow Bishop and hold that a defendant cannot evade the statute

of limitations by filing repetitive (and meritless) petitions in the state courts."

(Appellee's Opening Brief at 11). Accordingly, we affirm the district court's ruling

that the petition was timely.

B. Merits

In this habeas corpus action, we review the district court's conclusions of law

de novo and its factual findings for clear error. McGehee v. Norris, 588 F.3d 1185,

1193 (8th Cir. 2009). We may not grant relief for claims adjudicated on the merits by

the Missouri state courts unless the adjudication was contrary to, or involved an

unreasonable application of federal law as determined by the Supreme Court, or an

unreasonable determination of the facts in light of the evidence presented in state

court. 28 U.S.C. § 2254(d). A state court decision may be incorrect, yet still not

unreasonable, and we will grant relief only if the state court decision is both incorrect

and unreasonable. McGehee, 588 F.3d at 1193.

1. Victim Impact Evidence

In Claims 9 and 10 of the habeas corpus petition, Storey argues he was unfairly

prejudiced by the government's introduction of victim impact evidence, much of

which was not disclosed until the first day of the penalty-phase trial. There are two

components to Storey's argument–that Storey was prejudiced by the late hour of the

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disclosure of some of the victim impact witnesses and exhibits, and that the victim

impact evidence from five particular witnesses and certain exhibits violated due

process as set forth by the Supreme Court in Payne v. Tennessee, 501 U.S. 808

(1991).

The Missouri Supreme Court adjudicated the late-disclosure facet of Storey's

claim and denied the point. Storey III, 40 S.W.3d at 908. The government argues that

this portion of the claim is not cognizable because Storey did not present the federal

grounds for the argument to the Missouri state court, and his attempts to do so now

are procedurally barred. In his reply brief, Storey refutes this and cites to portions of

his state appellate brief wherein he cites to the Federal Constitution, and also to the

Missouri Supreme Court opinion stating that Storey argued his "rights to due process

and a fair trial" were violated by late disclosure. Id. at 906. Additionally, the district

court ruled on the merits. We have examined the record and agree with Storey that

the federal claim was presented to, and adjudicated by, the Missouri state courts.

Accordingly, we review the merits of the claim.

On September 15, 1999, the first day (after two days of voir dire, which

occurred September 13-14, 1999) of the third penalty-phase trial, defense counsel and

the prosecutor met with the trial court outside the jury's presence. Defense counsel

informed the trial court that the prosecution had just given her new discovery, and she

objected to its use in the prosecution's opening statement. The new discovery

consisted of previously undisclosed witnesses and exhibits. The court told counsel

that it would not rule until defense counsel had a chance to examine the evidence, and

warned the government not to refer to this evidence in its opening statement. The next

day, defense counsel again raised the issue of the undisclosed witnesses and exhibits.

The state responded that the three witnesses were victim character witnesses who had

no knowledge of the circumstances of the murder. The trial court allowed the state

to call these witnesses and allowed the exhibits into evidence. Defense counsel

further protested that she had no information regarding the witnesses, and the court

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responded that the three witnesses would be available for questioning before they

testified later that day. The record does not disclose whether counsel interviewed

these witnesses before they testified. We note that in the transcript, there was a break

in the proceedings shortly before the three witnesses testified, though it is not clear

how long the break continued. Storey argues he was unfairly surprised by these

witnesses and exhibits and also prejudiced in his ability to conduct voir dire because

of the late notice of these victim witnesses, in violation of the Fifth and Sixth

Amendments.

The Missouri Supreme Court held that while it was unfortunate that disclosure

occurred so late, Storey was not unduly prejudiced nor were his constitutional rights

violated. Storey III, 40 S.W.3d at 908. Counsel did have timely notice of four other

victim impact witnesses, so counsel was able to prepare voir dire victim impact

questions. Id. at 907. The court also noted that defense counsel chose not to cross-

examine any of the character witnesses in this case, and there is no indication that an

earlier disclosure would have prompted a change in this defense strategy. The court

specifically noted that where a party is surprised by evidence, but deals with the

evidence in the same manner that it would have if it had been prepared, there is no

reason to exclude the evidence based on a discovery violation. Id.

Although the Missouri court did not mention federal law or Supreme Court

precedent (nor was it required to, see Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (per

curiam)), its decision is not contrary to, or an unreasonable application of, clearly

established Supreme Court precedent. Storey argues that the state courts violated his

Fifth Amendment right to notice, citing Gardner v. Florida, 430 U.S. 349, 358 (1977),

wherein the Supreme Court held that the sentencing process must satisfy the

requirements of due process. In Gardner the Court held the defendant was denied due

process when the death sentence was imposed on the basis of information in a

presentence investigation report which was not disclosed to the defense. Id. at 362.

Storey also cites Lankford v. Idaho, 500 U.S. 110, 122, 127 (1991), where the Court

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held that a defendant who had no notice that the judge might impose the death penalty

had been denied due process.

Neither of these cases establishes that the Missouri Supreme Court's decision

to deny relief on the basis of untimely disclosure was contrary to, or an unreasonable

application of, Supreme Court precedent. A state court's decision is contrary to clearly

established Supreme Court law if it "applies a rule that contradicts the governing law

set forth in our cases" or if it "confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at

a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362,

405-06 (2000). A decision is an unreasonable application of Supreme Court precedent

if it correctly identifies the governing legal rule but unreasonably applies it to the facts

of the prisoner's case. Id. at 407-08. Storey knew there would be victim impact

testimony and knew Frey was a special education teacher. Although probably quite

limited, Storey had an opportunity to interview the witnesses before their testimony,

and he had the opportunity (though he did not take it), to cross-examine the witnesses.

In Gardner, the death penalty was imposed before the defendant knew why it was

imposed. In Lankford, the defendant was unaware that the judge was considering

imposing the death penalty. Neither of these cases are factually "indistinguishable,"

nor does the Missouri court opinion contradict the Supreme Court's governing law or

unreasonably apply this law to the facts of Storey's case. Storey's Fifth Amendment

claim is without merit.

Storey also argues that the state court violated his Sixth Amendment rights as

set forth in Ring v. Arizona, 536 U.S. 584 (2002);4 Apprendi v. New Jersey, 530 U.S.

4

Ring, which extended this rule to the determination of aggravating factors in

a death penalty case and held that Arizona's system of judge-found aggravators was

unconstitutional, 536 U.S. at 609, was decided after Storey III, and therefore cannot

be the basis of clearly established Supreme Court precedent. See Lockyer v. Andrade,

538 U.S. 63, 71-72 (2003) (noting that the statutory phrase "clearly established

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466 (2000); and Jones v. United States, 526 U.S. 227 (1999). This line of cases holds

that a defendant is entitled to have a jury decide that he "is guilty of every element of

the crime with which he is charged, beyond a reasonable doubt." Apprendi, 530 U.S.

at 477 (quotation omitted). Storey argues that the Jones line of cases impacts the late

disclosure of victim impact evidence because discovery rules traditionally applied to

guilt-phase evidence apply with equal force to penalty-phase evidence. He essentially

asserts that he had a Sixth Amendment right to notice of this evidence. Although that

is true, this theory does not afford Storey habeas corpus relief under our standard of

review. As the Missouri Supreme Court noted, Storey did have notice of, and did

expect other victim impact evidence to be presented at the penalty-phase trial, and this

adjudication was not contrary to, or an unreasonable application of, clearly established

Supreme Court precedent. The district court correctly denied relief on the notice

aspect of this claim.

Substantively, the two victim impact claims deal with the testimony of, in

Claim 9, Robert Reidelberger (a handicapped former student of the victim), Trinje

Reidelberger (Robert's mother), and Jody Harrison (a longtime friend), as well as the

exhibits introduced during the testimony of various witnesses. Claim 10 involves the

testimony of Lavon Marshall (a neighbor of the victim who heard part of the attack),

and Karen Stepson (a friend and co-worker of the victim). The Reidelbergers both

testified about the impact Frey had on them as a teacher, and how Robert, who was

set to graduate soon from high school at that point, would never have received a

mainstream education without Frey's efforts. Trinje also read a poem that she had

composed to commemorate Frey's life. The record indicates that Trinje sobbed

throughout much of her testimony.

Federal law" refers to "the governing legal principle or principles set forth by the

Supreme Court at the time the state court renders its decision" (emphasis added)).

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Harrison testified that she had known Frey for twenty years and was one of her

closest friends. Following Frey's death, Harrison began carrying a weapon and

checked her apartment and car before entering either. She gave the eulogy at Frey's

funeral, though she usually avoided speaking in front of large groups. Over defense

counsel's objection, Harrison then read the eulogy at the penalty-phase trial. Marshall

testified that she heard the assault take place because she shared a common apartment

wall with Frey. She harbored guilt for not calling authorities after hearing the strange

noises, had to receive counseling, and she eventually gave up her job. Stepson was

the victim's friend and one of the co-workers who initially found Frey's corpse.

Stepson had to explain Frey's death to both her children and Frey's students. She was

fearful and confused, cried frequently, and though she received counseling, she has

been unable to assuage these symptoms.

Defense counsel also objected to the admission of the following exhibits during

the victim impact testimony: Exhibit 87, a picture of Frey with her co-workers on the

school playground; Exhibit 88, a photo of a memorial garden built in her memory;

Exhibit 89, a photo of a sign saying that the garden was dedicated to Frey; Exhibit 90,

a photo of children and staff releasing balloons to say goodbye to Frey; Exhibit 91,

a picture of Frey with her first class of students; Exhibit 92, a drawing done by one

of Frey's friends that now hangs at the school; Exhibit 93, a memorial newsletter sent

out by the school; Exhibit 95, a photo of Frey on Santa Claus's lap when she was a

young child; Exhibits 105 and 106, photographs of Frey's tombstone including the

inscription upon which was a copy of Trinje's poem; Exhibit 107, a copy of Trinje's

poem; and Exhibit 108, a copy of the eulogy.

Storey asserts that the foregoing testimony and exhibits violated the principles

set forth in Payne, 501 U.S. 808. In Payne, the Supreme Court considered the

admissibility of penalty-phase testimony by the mother of a deceased victim. The

woman testified about the effect of the crime on her surviving young grandson, who

had witnessed the murder of his mother and baby sister and had himself nearly been

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killed by the same attack. The Court held that the Eighth Amendment does not erect

a per se bar to relevant victim impact evidence or prosecutorial argument on the

subject. Id. at 827. The Court held that the victim's mother's testimony was

admissible, noting that similar to the defendant's right to present evidence in

mitigation during the penalty phase, the "[s]tate has a legitimate interest in . . .

reminding the sentencer that just as the murderer should be considered as an

individual, so too the victim is an individual whose death represents a unique loss to

society and in particular to [her] family." Id. at 825 (quotation omitted). The state

does not have unfettered discretion to offer such evidence, however. If a witness or

remark in a particular case so infects the sentencing proceeding so as to render it

fundamentally unfair,5 the defendant may seek relief under the Due Process Clause of

the Fourteenth Amendment. Id. In a concurring opinion, Justice O'Connor found the

allegedly offending evidence survived the due process analysis because the evidence

was brief and redundant of evidence already admitted during the guilt phase. Id. at

831-33 (O'Connor, J., concurring).

With regard to Claim 9, the Missouri Supreme Court first set forth the

governing law that victim impact evidence is admissible under the Missouri and

federal constitutions and that the state is allowed to present evidence showing each

victim's uniqueness as an individual human being. Storey III, 40 S.W.3d at 909. The

court quoted Payne and found that victim impact evidence violates the Constitution

only if it is so "unduly prejudicial that it renders the trial fundamentally unfair." Id.

(quotation omitted). With regard to the exhibits, the court found that all but one–the

photograph of the tombstone–were properly admitted because they showed Frey's

uniqueness as a human being. The photograph of the tombstone was improper, it said,

but was not so unduly prejudicial as to render the trial fundamentally unfair. Id.

5

The "fundamentally unfair" due process standard typically means that the

petitioner must show that there is a reasonable probability that the alleged error

affected the outcome of the trial and that absent the impropriety, the verdict likely

would have been different. Skillicorn v. Luebbers, 475 F.3d 965, 972 (8th Cir. 2007).

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Payne offers very little specific guidance about the permissible extent and

content of victim impact evidence. The evidence should show the victim's uniqueness

as an individual and the resulting loss to society, the evidence must be relevant, and

not so unfairly prejudicial as to infect the sentencing proceeding and render it

fundamentally unfair. Payne, 501 U.S. at 825, 827. Decided in 1991, Payne is the

Supreme Court's last word on victim impact evidence. Without more guidance, it is

exceedingly difficult to find that a particular state court's decision is contrary to, or an

unreasonable application of, the Court's clearly established victim impact

jurisprudence. As the Supreme Court lengthens its silence on the issue, it seems that

prosecutors, likely of both the state and federal variety, will continue to push the

envelope with this type of evidence.6 At oral argument, counsel for the state

audaciously stated that the "state knows what the line is" and presumably does not

cross it with excessive displays of victim impact evidence. With all due respect, we

could not disagree more. As evidenced by the three penalty-phase trials in this case

alone (two of which were reversed and remanded for a new trial based in whole or in

part upon improper prosecutorial argument), "the line" is barely decipherable and

rarely sacrosanct in these highly charged, emotional death penalty trials.

Nonetheless, under our extremely deferential standard of review as set forth in

§ 2254(d), the Missouri Supreme Court's conclusion that all of the exhibits, save the

picture of the tombstone, likely fell within the vague ambit of permissible Payne

evidence, was not contrary to, nor an unreasonable application of, Payne. And while

the picture of the tombstone was improper, the Missouri court reasonably concluded

that in light of all of the other relevant and admissible evidence presented at the third

penalty-phase trial, the photo of the tombstone did not render the penalty-phase trial

fundamentally unfair–that without the picture of the tombstone, the jury would likely

not have rendered a death penalty verdict.

6

In Storey III, the Missouri Supreme Court noted that "[t]he three trials of this

case unfortunately exhibit a consistent attempt by the prosecutor to push the envelope

of proper advocacy." 40 S.W.3d at 916.

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With regard to the testimony of Trinje and Robert Reidelberger and Jody

Harrison, though not pressed by either party or the district court, it appears to us that

the Missouri Supreme Court failed to adjudicate the substantive facets of their

testimony and instead only ruled upon the late notice aspect. Storey III, 40 S.W.3d

at 906-09. Accordingly, we review the substance of the Payne claim with regard to

these three witnesses de novo, rather than under the deferential § 2254 standard,

because it was not adjudicated on the merits. See Middleton v. Roper, 455 F.3d 838,

856 (8th Cir. 2006) (holding that where an issue was raised to the state courts, but

ignored, we review the district court's fact findings for clear error and conclusions of

law de novo).

The district court found that this testimony by Frey's friends, including reading

poems and/or eulogies, was the type of evidence that has previously been considered

permissible under our precedent construing Payne. The testimony about Frey's impact

on the lives of children was allowable because this demonstrated her activities and

involvement in the community, and the loss due to her death. The district court also

held that the evidence was not unduly prejudicial because it added little to the

uncontested testimony of Frey's mother.

We agree with the district court's analysis that the testimony of both

Reidelbergers and Harrison fall within the range of testimony allowable by Payne.

Trinje, Robert and Harrison were all close friends of Frey and their testimony revealed

Frey's uniqueness as an individual. While some of Harrison's testimony did wander

into the arena of what effect the death had on Harrison's life–that she carried a

weapon and checked her car and apartment before entering–as opposed to simply

describing Frey as an individual, it was not enough to render the trial fundamentally

unfair. Harrison's testimony on these points was relatively brief, especially in the

context of the entire penalty-phase proceeding. And while we are troubled by the

record which indicates that Trinje was crying throughout much of her testimony,

which included reading her poem, our limited guidance from Payne does not allow us

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to conclude that the emotional presentation of this particular evidence–which clearly

was the type of evidence contemplated by Payne–constituted a violation of due

process. In other words, the fact that Trinje was extremely emotional during her

testimony did not so infect the proceedings so as to render the trial fundamentally

unfair. Consequently, the district court did not err in denying relief based upon the

victim impact evidence in Claim 9.

In Claim 10, Storey challenges the testimony of Stepson (the co-worker who

found Frey's body) and Marshall (the neighbor who heard the attack). The Missouri

Supreme Court adjudicated this claim on the merits. The court quoted Payne and

noted that the state trial court has discretion to admit "whatever evidence it deems

helpful to the jury in assessing punishment." Storey III, 40 S.W.3d at 908 (quotation

omitted). The court further reiterated the Payne principles that victim impact evidence

is simply a "'method of informing the sentencing authority about the specific harm

caused by the crime in question,'" and that trial judges have great discretion in

allowing this testimony. Id. (quoting Payne, 501 U.S. at 825). The Missouri Supreme

Court ultimately denied the claim, holding that because Marshall and Stepson testified

about the specific harm caused by Storey, the trial court did not abuse its discretion

in admitting this testimony. Storey III, 40 S.W.3d at 908.

Storey argues this formulation was contrary to Payne because the "whatever

evidence it deems helpful" statement is an incorrect statement of the law as set forth

in Payne. As noted above, Payne held that relevant victim impact evidence should be

treated as any "other relevant evidence is treated." Payne 501 U.S. at 827. Relevant

evidence, of course, is evidence "having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence." Fed. Rule of Evid. 401. While

relevant evidence is not explicitly defined as "helpful" evidence, the words "relevant"

and "helpful" are not uncommonly used together in describing admissible evidence.

See, e.g., United States v. Santana, 150 F.3d 860, 863 (8th Cir. 1998) (concluding that

expert testimony was admissible because it was relevant and helpful). Furthermore,

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as we have previously noted, a state court decision may be incorrect; yet we will grant

relief only if the state court decision is also objectively unreasonable. McGehee, 588

F.3d at 1193. Accordingly, we turn to the question of whether the Missouri Supreme

Court's adjudication of Claim 10 was contrary to, or involved an unreasonable

application of, Payne.7

Most of the testimony of Stepson, like the testimony at issue in Claim 9, clearly

falls into Payne's permissible category. Stepson described Frey's teaching abilities and

her value as a friend. But, like Harrison's testimony, some of Stepson's testimony

included the effect Frey's murder had on Stepson's life as opposed to simply

describing Frey as an individual. Marshall's testimony, however, is even more

problematic. Marshall was not a friend of Frey's and had only met her in passing. Her

testimony was focused on the things she heard the night of the murder, and the

devastating impact of Frey's murder on her life, but not at all on the unique

characteristics of Frey as an individual.

Under our extremely deferential standard of review, and returning to the

definition of what is "contrary to" or an "unreasonable application" of Supreme Court

precedent, we cannot grant relief on this claim under § 2254(d). As previously noted,

a state court's decision is contrary to Supreme Court precedent if it applies a rule

7

Storey further cites Penry v. Lynaugh, 492 U.S. 302 (1989), rev'd on other

grounds by Atkins v. Virginia, 536 U.S. 304 (2002), for the proposition that the jury's

verdict should be a reasoned moral response to the evidence, Penry, 492 U.S. at 319,

and argues that the principles of Penry were violated by the Missouri Supreme Court's

decision. Penry involved the Supreme Court's determination that the jury should have

been allowed to consider evidence of the petitioner's mental retardation and childhood

abuse in the mitigation portion of his penalty-phase trial. Id. at 322. We understand

the broad legal principle that Storey is attempting to advance, but upon the record

before us, we cannot conclude that the Missouri Supreme Court's decision was

contrary to, or an unreasonable application of, clearly established Supreme Court law

as set forth in Penry and we focus our analysis upon Payne.

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contradicting the Court's governing law or if, upon the same or similar facts as a

decision of the Court, it arrives at a different result than the Court. Taylor, 529 U.S.

at 405-06. And the decision is an unreasonable application of clearly established

Supreme Court law if it unreasonably applies the correct governing rule to the facts

of the prisoner's case. Id. at 407-08. Storey cannot prevail under either of these tests.

Factually speaking, Payne involved a rather generic (at this point in time) version of

victim impact evidence–the victim's mother testifying about the impact of the murder

on the victim's son. It certainly did not involve the testimony of a neighbor who

barely knew the victim and whose testimony focused upon the dramatic impact that

the murder had upon her life. However, the governing legal principles of Payne did

not prohibit8 such testimony either, and Marshall's testimony arguably informed "the

sentencing authority about the specific harm caused by the crime in question." Payne,

501 U.S. at 825. Because Marshall's testimony arguably falls within the ambit of

Payne, we simply cannot conclude that the state court's adjudication of this matter was

an unreasonable application of Supreme Court precedent, see Taylor, 529 U.S. at 411-

12 (discussing the distinction between a state court's erroneous application of federal

law and an unreasonable application), or contrary to clearly established Supreme

Court precedent, see Thaler v. Haynes, 130 S. Ct. 1171, 1174 n.2 (2010) (per curiam)

("A legal principle is 'clearly established' within the meaning of [§ 2254] only when

it is embodied in a holding of [the Supreme] Court.").

Finally, even if the testimony of Marshall and Stepson was improper, we

conclude that Storey was not prejudiced by its admission. Payne 501 U.S. at 825. In

light of all of the other evidence, including the other properly admitted victim impact

testimony and the grisly nature of Storey's crime, it is unlikely that the allegedly

8

Though not necessarily probative on the issue of whether the Missouri court's

decision was an unreasonable application of Supreme Court precedent, in United

States v. Bolden, 545 F.3d 609, 627 (8th Cir. 2008), cert. denied, 130 S. Ct. 796

(2009), a direct appeal of a federal death penalty case, we held that testimony by a

witness who assisted the victim was admissible under Payne, and part of that

testimony included the impact the traumatic experience had on the witness's life.

-16-

improper admission of this testimony rendered the penalty-phase trial fundamentally

unfair. The district court did not err in denying relief on Claim 10.

2. Pecuniary Gain Aggravator

At Storey's first two penalty-phase proceedings, the jury failed to find the

"pecuniary gain" aggravating circumstance,9 but instead found the existence of other

statutory aggravators en route to recommending sentences of death. In Claim 14 of

his petition for habeas corpus, Storey contends that the submission of the pecuniary

gain aggravating circumstance to the third jury violated the constitutional prohibition

against double jeopardy. The Missouri Supreme Court adjudicated this claim on the

merits and denied it. The court noted that "aggravating circumstances" submitted to

the jury were not separate offenses or penalties, but instead were "'standards to guide

the making of [the] choice'" between the alternative verdicts of death and life

imprisonment. Storey III, 40 S.W.3d at 914 (alteration in original) (quoting Poland

v. Arizona, 476 U.S. 147, 155-56 (1986) (quotation omitted)). The Missouri Supreme

Court held that under Poland, the failure to find a particular aggravating circumstance

forms the basis for judgment of acquittal on the imposition of the death sentence only

when there is a complete failure to find that any aggravating circumstance exists to

support the death sentence. Storey III, 40 S.W.3d at 915. Accordingly, the court

denied Storey's double jeopardy arguments. Id.

9

The "pecuniary gain aggravator" is one of the aggravating circumstances the

trial court submitted to the jury during each of the three penalty-phase trials. This

aggravating circumstance instruction asked the jury to consider whether Storey

murdered Frey for the purpose of receiving money or any other thing of monetary

value from Frey. Storey III, 40 S.W.3d at 914.

-17-

In Poland, an Arizona court10 sentenced the petitioner to death based on one

aggravating circumstance–that the crime was unusually heinous, cruel or depraved.

The trial court did not find the existence of the "pecuniary gain" aggravator. On direct

appeal, the Arizona Court of Appeals found that there was insufficient evidence to

support the "heinous, cruel or depraved" aggravator and remanded the case for this

and other reasons. Importantly, the Arizona Court of Appeals also noted that the trial

judge improperly rejected the "pecuniary gain" aggravator based upon an erroneous

legal conclusion, and noted that if Poland were convicted at the next trial, the court

"may find the existence of [the pecuniary gain] aggravating circumstance." State v.

Poland, 645 P.2d 784, 801 (Ariz. 1982). Upon remand, Poland was again convicted

and the trial court once more imposed the death penalty, this time based upon both the

"heinous, cruel, or depraved" aggravator, the "pecuniary gain" aggravator, and a

newly injected aggravator based upon a prior violent conviction. Both the conviction

and sentence were affirmed on direct appeal. In the petition for habeas corpus, Poland

argued that the state court of appeal's decision in his first direct appeal was effectively

an "acquittal" of the death penalty, and that the Double Jeopardy Clause barred the

state from pursuing and imposing the death penalty in the second trial.

The Supreme Court held that, indeed, the Double Jeopardy Clause does prohibit

a second death sentence when an earlier proceeding resulted in an acquittal of the

death sentence. Poland, 476 U.S. at 152. However, under the facts of Poland's case,

he was not entitled to relief, because he was never "acquitted" of the death penalty.

Id. at 155. Instead, at each stage of the protracted proceedings, there was never a

finding that the prosecutor had failed to prove its case that the death penalty was

appropriate. Id. Importantly, the Court noted that "[a]ggravating circumstances are

not separate penalties or offenses, but are 'standards to guide the making of [the]

choice' between the alternative verdicts of death and life imprisonment." Id. at 156

10

Poland's Arizona trials occurred in the late 1970s or early 1980s, long before

the Supreme Court's 2002 holding in Ring that death penalty aggravators must be

found by a jury to be in accord with the Sixth Amendment. Ring, 536 U.S. at 609.

-18-

(second alteration in original) (quoting Bullington v. Missouri, 451 U.S. 430, 438

(1981)). The Court remarked that if during any of the sentencing proceedings the fact

finder had determined that no aggravating circumstances were supported by the

evidence, Poland's argument would have been successful. Poland, 476 U.S. at 156-57.

In adjudicating Storey's pecuniary gain claim, the Missouri Supreme Court

found that the principles set forth in Poland were not violated because Storey was

sentenced to death by each of the penalty-phase juries. Further, neither of the first two

cases was reversed on the basis that there was insufficient evidence of the aggravators

in order to impose the death penalty. Storey III, 40 S.W.3d at 914-15. The Missouri

Supreme Court also rejected the notion that the Supreme Court's Sixth Amendment

decisions, Jones and Apprendi, had changed this analysis in any way. Id. at 915.

The Missouri court's adjudication of this claim was not contrary to, and did not

unreasonably apply, Supreme Court precedent. The court very appropriately analyzed

and applied Poland, and determined that relief was not warranted. Storey's argument

is strikingly similar to the argument made by the Poland petitioner. Based upon the

Supreme Court's definition of "acquittal" in the context of a death sentence as

explicated in Poland, Storey has never been acquitted of the death penalty. The state

court correctly dispatched its duties under § 2254(d).11 This point is without merit.

3. Ineffective Assistance of Counsel

A claim of ineffective assistance of counsel is governed by the performance and

prejudice standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under

the performance prong, the court must apply an objective standard and "determine

whether, in light of all the circumstances, the identified acts or omissions were outside

11

Both parties discuss Ring v. Arizona, 536 U.S. 584 and Sattazahn v.

Pennsylvania, 537 U.S. 101 (2003). Again, both of these cases were decided after

Storey III and cannot be the basis for clearly established Supreme Court precedent.

-19-

the wide range of professionally competent assistance," id. at 690, while at the same

time refraining from engaging in hindsight or second-guessing of trial counsel's

strategic decisions. Id. at 689. Assuming the performance was deficient, the prejudice

prong requires proof "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.

Storey alleges that he received ineffective assistance of counsel during the 1991

guilt-phase trial when trial counsel failed to investigate the defense that Storey was

unable to deliberate on the day of the murder. Storey alleges that three doctors would

have testified that Storey was unable to deliberate due to his state of extreme

intoxication. Storey raised this claim in his 1992 post-conviction case, and the

argument was rejected by the state post-conviction court. The court found the

evidence lacked credibility and conflicted with Storey's testimony. However, Storey

did not appeal this finding in his state post-conviction appeal, and it is therefore

procedurally defaulted. The district court found that Storey had not shown cause or

prejudice for the default, or that there was a fundamental miscarriage of justice,

because the deliberation evidence was not "new" evidence.

Storey contends that this argument is not procedurally defaulted because even

though he did not advance it on post-conviction appeal, he did raise it in one of the

Rule 91 petitions for habeas corpus. However, our opinion in Sweet v. Delo, 125 F.3d

1144, 1150-51 (8th Cir. 1997) forecloses this argument. In Sweet, we held that a Rule

91 habeas corpus petition cannot be used to raise a claim that was procedurally

defaulted during the post-conviction process. Id. Storey cites a Missouri Supreme

Court case holding that Rule 91 relief would be available to a petitioner who can show

cause and prejudice or manifest injustice for his failure to raise his claims earlier. See

State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 215 (Mo. 2001). Jaynes is

distinguishable. The Jaynes court noted that in extremely rare circumstances–when

a defendant is impeded from complying with the post-conviction rules through no

fault of his own, or when the basis for the claim was not earlier available–a state

-20-

prisoner can use the Rule 91 petition to raise claims that could have been raised in the

Rule 29.15 post-conviction motion. Id. Neither of those rare circumstances is present

here. Storey certainly knew of the basis for the ineffective assistance claim because

he actually brought the claim in the Rule 29.15 motion. He simply chose not to appeal

that decision. Absent those rare circumstances, Rule 91 is not the vehicle for curing

a procedural default. Id. The principles announced in Jaynes do not allow Storey's

Rule 91 petition to cure the default in this case.

To overcome the procedural default, Storey must show cause for not presenting

the claim on post-conviction appeal, and prejudice from the failure, or a fundamental

miscarriage of justice–meaning that he is actually innocent. Coleman v. Thompson,

501 U.S. 722, 748, 750 (1991); Schlup v. Delo, 513 U.S. 298, 324-27 (1995). Storey

cannot make the threshold showing of cause. He certainly knew of the claim because

it was brought in the Rule 29.15 petition. And Thompson makes clear that state post-

conviction counsel's errors cannot form the basis for the cause to excuse a procedural

default. 501 U.S. at 755-57.

Nor can Storey establish a fundamental miscarriage of justice: that he is actually

innocent. In order to establish this, a petitioner must present new reliable evidence

that he was innocent of the crime of which he was convicted. House v. Bell, 547 U.S.

518, 537 (2006). Storey's evidence is not "new," that is, evidence "that was not

available at trial." Nance v. Norris, 392 F.3d 284, 291 (8th Cir. 2004). But even

assuming that the evidence was newly discovered, he is not entitled to relief. The

state post-conviction court's finding that the evidence lacked credibility and conflicted

with Storey's testimony is a factual finding which we presume to be correct. 28

U.S.C. § 2254(e). And, the district court's assessment of Storey's "new" evidence was

not clearly erroneous. Wooten v. Norris, 578 F.3d 767, 782 (8th Cir. 2009) (standard

of review). The district court found that Storey's evidence of actual innocence would

likely not have resulted in the jury finding him innocent of the murder because the

evidence was "not particularly convincing and easily marginalized by the State."

Storey v. Roper, No. 4:05-CV-2073, 2008 WL 2518551, at *12 (E.D. Mo. June 16,

-21-

2008). While the proffered experts' opinions suggested that Storey could not

formulate the mens rea for murder, the district court was entitled to, and did, consider

these proffered opinions in the context of all of the other evidence the jury would have

considered, including the state's contrary evidence. See Wooten, 578 F.3d at 782.

Accordingly, the district court did not clearly err in evaluating this evidence, and

properly found that this claim was procedurally defaulted.

In Claim 39, Storey alleges that he received ineffective assistance of counsel

when his counsel failed to object to two aspects of the prosecutor's closing argument.

In the first, Storey complains about the portion of closing argument wherein the

prosecutor equated the jury's possible "mercy" with "weakness." Storey's trial counsel

filed a motion in limine to exclude this argument, which the trial court denied, but the

trial court warned the prosecutor to refrain from suggesting that a life sentence equates

to the jury showing "weakness." Nonetheless, the prosecutor made a statement

equating "mercy" with "weakness" during the closing argument of the third penalty-

phase trial. Counsel objected to the statement as being an "improper personalization"

and the objection was sustained, but Storey contends that counsel should have also

referenced, as part of the objection, a then-recent Missouri Supreme Court case, State

v. Rousan, 961 S.W.2d 831 (Mo. 1998). Storey alleges that in Rousan, the Missouri

Supreme Court held that a similar argument was improper.12

The Missouri Supreme Court rejected Storey's argument, essentially holding

that because the underlying claim based upon Rousan was not a congnizable error, the

ineffective assistance claim also failed. Storey IV, 175 S.W.3d at 154. We agree that

Storey did not receive ineffective assistance of counsel based on counsel's failure to

12

However, even in Rousan, the court held that while prosecutors "should avoid

. . . any suggestion that the jury is weak if it fails to return a certain verdict," the court

did not reverse Rousan's conviction, and instead held that while improper, this remark

was an isolated part of the larger and otherwise appropriate closing argument.

Rousan, 961 S.W.2d at 851. We also note that during the pretrial motion in limine

hearing, defense counsel did, in fact, reference Rousan.

-22-

reference Rousan, because in Rousan, the prosecutor used nearly the exact same

phrase as in Storey's case, and while the Missouri Supreme Court did not approve of

the language, it did not reverse. Rousan, 961 S.W.2d at 851. There is no reason to

believe the Missouri Supreme Court would have reversed in Storey's case even if

Rousan had been referenced, especially because the trial court sustained counsel's

objection to the statement. This ineffective assistance claim is without merit, and the

Missouri Supreme Court's failure to grant relief on this basis was not contrary to, or

an unreasonable application of, Strickland.

Also in this claim, Storey argues that counsel was ineffective for failing to

object to the following portion of closing argument by the prosecutor:

I don't want to get into the business of measuring the value of one life

against another, but I don't think there is any debate that Jill Lynn Frey

was a fine woman. You know most of us in this life go through our lives

and don't do a great deal of harm and we don't do a great deal of good

either, but this woman was doing a lot of good. And another part of the

tragedy is that that's been seized from us and taken from us.

Storey IV, 175 S.W.3d at 154.

A version of this claim was part of the basis for post-conviction relief after

Storey's first trial. Storey I, 901 S.W.2d at 902. In closing argument at the first

penalty-phase trial, the prosecutor had stated: "Whose life is more important to you?

Whose life has more value? The Defendant's or Jill Lynn Frey's?" Id. In Storey I, the

Missouri Supreme Court reversed for a new penalty-phase trial because trial counsel

failed to object to this and other improper arguments by the prosecutor. Id. at 902-03.

In Storey IV, the Missouri Supreme Court adjudicated Storey's current claim on the

merits and found that the prosecutor's statement did not mischaracterize the law and

that any objection to it would not have been sustained. Accordingly, counsel could

not have been ineffective for failing to make a non-meritorious objection. Storey IV,

175 S.W.3d at 154-55.

-23-

Storey argues that the Missouri court unreasonably applied Strickland because

there is no meaningful distinction between the reversible-error argument in Storey I,

and the allowed argument in Storey IV. We disagree, and find that the Missouri

Supreme Court did not unreasonably apply Strickland. Unlike the 1991 closing

argument, the 1999 closing argument simply highlighted the victim impact evidence

that Frey's death was costly to her family, friends, and the community and did not

make a point of comparing lives. We agree that any objection to the argument would

have been overruled. Accordingly, the Missouri Supreme Court's conclusion that no

Strickland violation occurred was not contrary to Strickland or unreasonable. The

district court properly denied this ineffective assistance of counsel claim.

III. CONCLUSION

Storey was sentenced to death by three different Missouri juries, over the course

of eight years. His case was carefully reviewed by the Missouri courts, and in fact the

Missouri Supreme Court twice reversed his death sentence. While we are concerned

about the seemingly expanding and overarching role of victim impact evidence in

capital cases, under the current state of Supreme Court precedent we cannot reverse

the denial of habeas corpus relief on this basis. Accordingly, we affirm.

GRUENDER, Circuit Judge, concurring in part and concurring in the judgment.

I write separately to express my partial disagreement with the analysis of

Storey’s claims concerning “victim impact evidence” in section II.B.1 of the majority

opinion. In particular, I do not join in the opinion’s thinly-veiled criticism of Payne

v. Tennessee, 501 U.S. 808 (1991), the governing Supreme Court precedent regarding

the admissibility of victim impact evidence in capital sentencing trials. Nor do I join

in the opinion’s grudging application of the standard set out in Payne to the disputed

evidence in this case. Because I agree with the majority’s conclusion that Storey is

not entitled to relief on the relevant claims, I concur in the judgment as to those

claims. I concur in the rest of the majority opinion without reservation.

-24-

Perhaps the most troubling aspect of the majority opinion is its seeming

unwillingness to accept Payne’s central premise—that victim impact evidence should

not be treated differently than other relevant evidence. Before Payne, victim impact

evidence was verboten, for the Supreme Court had held in Booth v. Maryland, 482

U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989), “that the Eighth

Amendment prohibits a capital sentencing jury from considering ‘victim impact’

evidence relating to the personal characteristics of the victim and the emotional impact

of the crimes on the victim’s family.” Payne, 501 U.S. at 817. The Court granted

certiorari in Payne to reconsider the holdings in Booth and Gathers, which it said had

“unfairly weighted the scales in a capital trial” by placing “virtually no limits . . . on

the relevant mitigating evidence a capital defendant may introduce concerning his own

circumstances” while barring “the State . . . from either offering ‘a quick glimpse of

the life’ which a defendant ‘chose to extinguish,’ or demonstrating the loss to the

victim’s family and to society which has resulted from the defendant’s homicide.” Id.

at 822 (internal citation omitted) (quoting Mills v. Maryland, 486 U.S. 367, 397

(1988) (Rehnquist, C.J., dissenting)). The Court announced that it was “now of the

view that a State may properly conclude that for the jury to assess meaningfully the

defendant’s moral culpability and blameworthiness, it should have before it at the

sentencing phase evidence of the specific harm caused by the defendant.” Id. at 825.

Accordingly, the Court held that “if the State chooses to permit the admission of

victim impact evidence and prosecutorial argument on that subject, the Eighth

Amendment erects no per se bar.” Id. at 827.

After Payne, victim impact evidence is no longer to be treated as a separate

category, subject to special constitutional restrictions. As the Court explained,

[a] State may legitimately conclude that evidence about the victim and

about the impact of the murder on the victim’s family is relevant to the

jury’s decision as to whether or not the death penalty should be imposed.

There is no reason to treat such evidence differently than other relevant

evidence is treated.

-25-

Id. Of course, this does not mean that victim impact evidence is completely immune

from constitutional scrutiny. On the contrary, “[i]n the event that evidence is

introduced that is so unduly prejudicial that it renders the trial fundamentally unfair,

the Due Process Clause of the Fourteenth Amendment provides a mechanism for

relief.” Id. at 825 (citing Darden v. Wainwright, 477 U.S. 168, 179-83 (1986)).

Here, Storey asserts that some of the victim impact evidence introduced in his

third penalty-phase trial exceeded the limits established in Payne. More specifically,

Storey challenges the admissibility of certain exhibits, see ante, at 10, as well as the

testimony of Trinje Reidelberger, Robert Reidelberger, Jody Harrison, Lavon

Marshall, and Karen Stepson, see ante, at 9-10. The Missouri Supreme Court rejected

Storey’s claims concerning this evidence on the merits. State v. Storey (Storey III),

40 S.W.3d 898, 908-09 (Mo. 2001). The question, then, is whether the Missouri

Supreme Court’s adjudication of these claims “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

Curiously, the majority decides not to apply the deferential standard set out in

§ 2254(d)(1) to Storey’s claims concerning the testimony of Trinje Reidelberger,

Robert Reidelberger, and Jody Harrison.13 See ante, at 13. Nevertheless, the court

13

According to the majority, “the Missouri Supreme Court failed to adjudicate

the substantive facets of [Trinje Reidelberger’s, Robert Reidelberger’s, and Jody

Harrison’s] testimony.” Ante, at 13. I disagree. The relevant part of Trinje

Reidelberger’s testimony consisted of reading the poem she wrote about the victim,

Jill Frey, and the relevant part of Jody Harrison’s testimony consisted of reading the

eulogy she gave at Frey’s funeral. I am convinced that the Missouri Supreme Court

rejected Storey’s challenges to this testimony on the merits, stating that “[t]hough

reading a poem or eulogy may not be appropriate in every case, the writings in this

case were read into evidence by their respective authors.” Storey III, 40 S.W.3d at

909. The court went on to say that “[c]learly, either author could have testified about

the victim without the aid of a writing,” and concluded that “[t]he prosecutor’s choice

to use the recorded recollection simply does not result in unfair prejudice under these

-26-

finds on de novo review that Storey is not entitled to relief on the relevant claims. See

ante, at 13-14. Applying § 2254(d)(1) to the rest of the disputed evidence, the

majority concludes that Storey has not shown that the Missouri Supreme Court’s

adjudication of his claims resulted in a decision that was either contrary to, or

involved an unreasonable application of, Payne v. Tennessee, the governing Supreme

Court precedent. See ante, at 14-17. The outcome the majority reaches is

undoubtedly correct, so I concur in the judgment as to these claims.

Although I agree with much of the analysis in section II.B.1, there are three

points of disagreement that prevent me from joining that portion of the majority

opinion in full. First, it seems to me that the narrow scope of judicial review under

§ 2254 ordinarily does not leave room for this court to criticize the existing state of

Supreme Court precedent, to invite the Supreme Court to expand on or refine existing

precedent, or to chide prosecutors who have not transgressed existing precedent. Yet

the majority opinion does all of those things. I do not agree with the majority’s

suggestion that the standard set out in Payne is “vague,” “barely decipherable,” or

otherwise unworkable. See ante, at 12. The Court in Payne held that victim impact

evidence is not subject to special constitutional restrictions, so the Court should not

be faulted for announcing a general standard rather than a list of specific rules.

Because Payne sets out a general standard, I would find that Payne calls for case-by-

case adjudication of claims concerning victim impact evidence based on generally

facts.” Id. The Missouri Supreme Court did not mention Robert Reidelberger’s

testimony in this section of its opinion. But in the section dealing with Storey’s claim

concerning the late disclosure of certain victim impact evidence, see ante, at 5-6, the

court noted that “[t]he mere fact that one of the witnesses [Robert Reidelberger] was

confined to a wheel chair” did not affect its analysis, see Storey III, 40 S.W.3d at 907.

In any event, Storey does not meaningfully argue that Robert Reidelberger’s

testimony made his trial fundamentally unfair—and I can see no remotely plausible

basis for such an argument—so I would hold that Storey has abandoned the portion

of his claim relating to Robert. See Friends of Lake View Sch. Dist. Incorporation No.

25 v. Beebe, 578 F.3d 753, 763 n.13 (8th Cir. 2009).

-27-

applicable principles of due process. In turn, I would hold that federal courts

reviewing adjudications of such claims under § 2254(d)(1) must accord state courts

even greater latitude reasonably to decide whether a convicted defendant has shown

fundamental unfairness. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)

(“[E]valuating whether a rule application was unreasonable requires considering the

rule’s specificity. The more general the rule, the more leeway courts have in reaching

outcomes in case-by-case determinations.”). In this instance, Storey plainly has not

shown that he is entitled to relief under § 2254(d)(1). Indeed, even if we reviewed all

of the disputed victim impact evidence de novo, Storey would not come close to

showing that the evidence was so unduly prejudicial that it rendered his trial

fundamentally unfair.

In light of the foregoing considerations, there is simply no need for hand-

wringing about where “the line” is located; Payne teaches that the line is in the same

place for victim impact evidence as it is for other types of evidence. Cf. ante, at 12.

Likewise, I see no pressing need to entreat the Supreme Court for “more guidance”

about the permissible scope of victim impact evidence. Cf. ante, at 12.14 While I do

14

It is entirely possible that Storey will seek review in the Supreme Court and

that the Court may decide to use this case as a vehicle for reconsidering Payne. So

far, however, the Court has consistently declined to revisit its stance on victim impact

evidence, which has remained undisturbed for nearly two decades. See, e.g., Kelly v.

California, 555 U.S. ---, 129 S. Ct. 564 (2008) (denying the petitions for writs of

certiorari in two capital cases where juries were shown video memorials dedicated to

the victims); see also Kelly v. California, 555 U.S. ---, 129 S. Ct. 567, 568 (2008)

(Breyer, J., dissenting from denial of certiorari) (describing one of the video

memorials as “poignant, tasteful, artistic, and, above all, moving”). But see Kelly, 129

S. Ct. at 567 (Stevens, J., statement respecting denial of certiorari) (“Having decided

[in Payne] to tolerate the introduction of evidence that puts a heavy thumb on the

prosecutor’s side of the scale in death cases, the Court has a duty to consider what

reasonable limits should be placed on its use.”); Kelly, 129 S. Ct. at 568 (Breyer, J.,

dissenting from denial of certiorari) (“[E]xamples can help elucidate constitutional

guidelines. And in my view, the Court should grant certiorari and consider these cases

in an attempt to do so.”).

-28-

not necessarily endorse all of the choices made by the prosecutors who tried this case,

I see no plausible basis for finding that their conduct in the third penalty-phase trial

infringed Storey’s constitutional rights.15 Thus, I would refrain from directing

gratuitous reproofs to trial counsel (or counsel on appeal), and I would not accuse

other state and federal prosecutors of “push[ing] the envelope with this type of

evidence,” ante, at 12.

The second point of disagreement relates to the majority opinion’s expressions

of concern regarding the testimony of Jody Harrison, Karen Stepson, and Lavon

Marshall. The majority opinion suggests in several places that Harrison’s, Stepson’s,

and Marshall’s testimony is problematic insofar as each witness discussed the impact

of the murder on her own life, as opposed to merely describing “the unique

characteristics of [the victim] as an individual.” See, e.g., ante, at 15. The majority

identifies Marshall’s testimony as the most problematic because her testimony focused

exclusively “on the things she heard the night of the murder,” ante, at 15 (recall that

Marshall heard the murder through the apartment wall she shared with Frey, her

neighbor and acquaintance, ante, at 9-10), along with “the devastating impact of

15

The majority opinion insinuates that the reason the Missouri Supreme Court

twice reversed Storey’s death sentence had something to do with the misuse of victim

impact evidence in Storey’s first two penalty-phase trials. See ante, at 12. But the

error in Storey’s second penalty-phase trial—the trial court’s refusal to instruct the

jury that no adverse inference could be drawn from Storey’s decision not to

testify—certainly had no connection to the disputed victim impact evidence in this

case. See State v. Storey (Storey II), 986 S.W.2d 462, 463-65 (Mo. 1999). And, as far

as I can tell, the four errors in the prosecutor’s closing argument in Storey’s first

penalty-phase trial also had nothing to do with the disputed victim impact evidence

in this case. See State v. Storey (Storey I), 901 S.W.2d 886, 900-02 (Mo. 1995)

(finding that the prosecutor argued facts outside the record, personalized his argument

to the jury, improperly argued that the victim’s brother would have been justified in

killing Storey if he had discovered Storey attacking the victim, and improperly argued

that the jury must weigh the value of Storey’s life against the value of the victim’s

life).

-29-

Frey’s murder on her life,” ante, at 15. This comports with the district court’s finding

that Marshall’s testimony “was at the boundary of acceptable victim impact evidence.”

Storey v. Roper, No. 4:05-cv-2073, 2008 WL 2518551, at *40 (E.D. Mo. June 16,

2008).

Here again, the majority seems unwilling to embrace the proposition that, after

Payne, victim impact evidence is no longer to be treated as a separate category,

subject to special constitutional restrictions. Yet the majority opinion does not explain

why evidence about the adverse effects of a murder on surviving witnesses should be

considered particularly dubious—much less categorically inadmissible—under Payne.

I am convinced that the disputed testimony about the impact of Storey’s heinous

crime, including Marshall’s testimony about the torment she has suffered, qualifies

as “evidence of the specific harm caused by the defendant” and thus does not pose a

constitutional problem. See Payne, 501 U.S. at 825. In the end, the majority

acknowledges that Payne does not expressly prohibit such testimony, ante, at 16, so

its earlier expressions of concern ring hollow.16 See also ante, at 16 (conceding that

“Marshall’s testimony arguably falls within the ambit of Payne”).

The third and final point of disagreement concerns the majority’s apparent

distress over the fact that Trinje Reidelberger cried during her testimony. See ante,

at 14 (“[W]e are troubled by the record which indicates that Trinje was crying

16

Describing Marshall’s testimony as especially “problematic,” ante, at 15, also

seems inconsistent with this court’s holding in United States v. Bolden, 545 F.3d 609

(8th Cir. 2008), cert. denied, 558 U.S. ---, 130 S. Ct. 796 (2009), which the majority

opinion cites in footnote 8. While the majority suggests that Bolden is “not

necessarily probative” given the different posture of this case, ante, at 16 n.8, I have

no doubt that Bolden is relevant. If nothing else, Bolden decisively refutes Storey’s

assumption that testimony about trauma suffered by a surviving witness is per se

irrelevant and unduly prejudicial. See Bolden, 545 F.3d at 627 (holding that testimony

by a co-worker who assisted the victim after the victim was shot was “clearly

admissible,” even though the testimony included a description of “the impact that

experience had on the witness’s life”).

-30-

throughout much of her testimony . . . .”). It strains the judicial imagination to

envision a scenario in which a witness’s “emotional presentation” of otherwise

admissible evidence, see ante, at 14, could singlehandedly result in fundamental

unfairness. Why the majority gives any credence to Storey’s empty rhetoric on this

issue is puzzling.

I am not aware of any authority, from this circuit or elsewhere, that would

justify granting relief to Storey on the ground that Trinje Reidelberger wept while

testifying. There is, however, authority that virtually compels us to reach the opposite

conclusion. See, e.g., United States v. Johnson, 495 F.3d 951, 977 (8th Cir. 2007)

(rejecting the defendant’s argument that a “tearful and emotional reading of [a] poem”

rendered her trial fundamentally unfair); United States v. Nelson, 347 F.3d 701, 712-

14 (8th Cir. 2003) (rejecting the defendant’s argument that the “emotional and, on

occasion, tearful testimony” of six victim impact witnesses, including one witness

who “was unable to compose herself,” rendered his trial fundamentally unfair). I

therefore agree with the majority’s finding that Storey’s trial was not “so infect[ed]”

by Trinje Reidelberger’s display of emotion “as to render the trial fundamentally

unfair.” Ante, at 14. But I see no good reason for this court to suggest that Trinje

Reidelberger fell short of an immutable standard about how witnesses must conduct

themselves. The Constitution does not demand witnesses to act like automatons,

devoid of human feeling. It should come as no surprise that some witnesses will be

overcome with emotion when called on to testify about a friend or family member

who has been murdered. I am confident that state and federal trial courts are fully

capable of responding appropriately in those circumstances both to protect the

defendant’s right to a fair trial and to ensure that the witness is treated with respect.

For the foregoing reasons, I concur in the judgment as to Storey’s claims

concerning victim impact evidence, and I concur in the rest of the majority opinion.

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