# Appendix — Roper v. Weaver > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0292%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2007 - **Citation:** 550 U.S. 598 ## Text iA Supreme Court, U.S. | a TLE D No. 06-313 AUG 29 2006 OFFICE OF THE CLERK In the SUPREME COURT OF THE UNITED STATES DONALD P. ROPER, Superintendent, Potosi Correctional Center, Petitioner, Vv. WILLIAM WEAVER, Respondent. On Petition for Wnt of Certioran to the United States Court of Appeals for the Eighth Circuit APPENDIX TO PETITION VOL. 1 OF Il JEREMIAH W. (JAY) NIXON Attorney General of Missouri JAMES R. LAYTON State Solicitor STEPHEN D. HAWKE Counsel of Record Assistant Attorney General P.O. Box 899 Jefferson City, MO 65102 Phone: (573) 751-3321 Fax: (573) 751-3825 Attorneys for Petitioner A-l TABLE OF CONTENTS Opinion in William Weaver v. Michael Bowersox. Nos. 03-2880/2938 (8 Cir. February 16, 2006 (corrected February 23, 2006))............... A-2 Memorandum & Order in William Weaver v. Michael Bowersox, No. 4:96-CV-2220 CAS (E.D. PE CEE naccnecadundsedednenpns A-23 Opinion in William Weaver v. Michael Bowersox, No. 99-3462 (8” Cir. February 23, 2001) .... A-187 Memorandum & Order in William Weaver v. Michael Bowersox. No. 4:96-CV-2220 CAS (ED. Mo. Ams, 9, IDPP) .. 2. ccecccess A-203 Order Denying Rehearing and Rehearing En Banc in William Weaver v. Michael Bowersox, Nos. 03-2880/2938 (8" Cir. May 31, 2006) ... A-220 Opinion of the Missouri Supreme Court in State v. Weaver, No. 71051 (Mo. banc BPO, Wey GOOD cccwcccces aceiwieieene A-221 Findings of Fact and Conclusions of Law in William L. Weaver v. State of Missouri, No. 603615 (St. Louis County Circuit Court Nov. 29, 1994) ................ 258 Transcript of penalty phase closing argument in State of Missouri v. William L. Weaver, No. 565118B .. 274 Penalty phase jury instructions in State of Missouri v. William L. Weaver, No. 565118B (St. Louis County SEN. 6 5s 0b eK bH04ebesuneeveehecn 299 A-2 United States Court of Appeals FOR THE EIGHTH CIRCUIT Nos. 03-2880/2938 William Weaver, 34 a Appellee/Cross-Appellant, * * Appeals from the vV. * United States District * Court for the Eastern Michael Bowersox, * District of Missouri. * Appellant/Cross-Appellee. * Submitted: September 13, 2004 Filed: February 16, 2006 (Corrected 2/23/06) Before BYE, BOWMAN, and MELLOY, Circuit J udges. MELLOY, Circuit Judge. The State of Missouri appeals the grant of habeas relief to William Weaver. The district court’ concluded that the prosecutor’s closing arguments during the penalty phase of Weaver’s capital murder trial violated the United States Constitution. Weaver cross-appeals the denial of his claim that the prosecutor made improper closing arguments during the guilt phase of the trial. We affirm. 'The Honorable Charles A. Shaw, United States District Judge for the Eastern District of Missoun. A-3 I. In separate Missouri state court trials held in 1988, William Weaver and Daryl Shurn were convicted of the execution-style shooting death of Charles Taylor. Taylor was an acquaintance of Shurn who was going to testify against Shurn in a drug case. Shurn hired Weaver to kill Taylor, and Weaver was convicted of doing so. During his closing argument in the penalty phase, the prosecutor made a series of statements relevant to the claims in this matter. In a claim the parties identify as Claim 2E, the prosecutor made the following statements: So, yeah, is there a possibility he’s innocent? A possibility. I’m not going to deny that. But that’s not what’s required by the law and that’s not what we could live by. If that’s required, nobody would ever be sentenced to die. We wouldn’t have a death penalty. And, quite frankly, if you don’t sentence him to die in this case, there’s no point in having a death penalty. Weaver’s tnial counsel objected to the statements as improper and misstatements of the law. The state trial court sustained the objection and issued a curative instruction for the jury to disregard the statements. In a claim the parties identify as Claim 2F, the prosecutor made the following statements: Then I'll say what I said earlier. If these facts don’t justify, don’t cry out for the death penalty, then which facts do? Ifa cold-blooded hit on behalf of drug scum isn’t enough for the death penalty, then what facts justify it? A-4 I know there’s a movie, Patton, and in the movie, George Patton was talking to his troops because the next day they were going to go out in battle and they were scared as young soldiers. And he’s explaining to them that | know that some of you are going to get killed and some of you are going to do some killing tomorrow moming. And they all know that. And he was going to try to encourage them that sometimes you’ve got to kill and sometimes you’ve got to risk death because it’s mght. He said: But tomorrow when you reach over and put your hand in the pile of goo that a moment before was your best friend’s face, you’ll know what to do. Defense counsel objected to the statements as improper on the grounds that they were intended to inflame and prejudice the jury. The state trial court overruled the objection. Finally, in a claim the parties identify as part of Claim 2M, the prosecutor made statements that Weaver contends improperly focused the jury on society’s general war on drugs, urged the jury to sentence Weaver to death merely to send a message to other drug dealers, and caused the jury to ignore its obligation to individualize its sentencing consideration by focusing on the particular facts involved in his case: It strikes right at the heart of our system. You’ve got to look beyond William Weaver. This isn’t personal. This is business. You people represent the entire community. You represent society. You have to give a message here. You have to tell the Williams Weavers and the Daryl Shurns of the world, and you have to be willing to look them nght in the eye when A-5 you do it, that there’s a point at which we won't allow you to go. And when you do, prison’s too good. It’s the death penalty. Sometimes killing is not only fair and justified; it’s right. Sometimes it’s your duty. There are times when you have to kill in this life and it’s the right thing to do. If Charles Taylor had been able to get his gun out that day, would you have said it was right for him to kill Weaver and Shurn? Of course, you would. It would have been self- defense. Well, it was night to kill then and it’s night to kill him now. This case - | guess it’s the one that just cries out to you to say protect the community. The drug dealers, they are taking our streets away from us. Are we going to take them back? Are we going to let them have the streets or are we going to fight back? If the drug peddlers are going to run our community, then all is lost. Then there’s no point in having jurors. The death penalty applies in some cases. It applies in this case. When it comes time after [defense counsel] talks to you, I'll talk to you again briefly, and then you’ve got to go to the jury room and you've just got to toughen up and do what’s right, even though it’s going to be tough. You’ve got to say this is bigger than William Weaver. It’s not personal; it’s business. A-6 And I’m going to beg you for the entire community and for society not to spare his life. I’m going to beg you for the nght message instead of the wrong message. The right message 1s life? For an execution? That's the night message? That’s the message you want to send to the drug dealer, the dope peddlers and the hit men they hire to do their dirty deeds: Life in prison is what you get when we catch you and convict you. Life in prison? That’s the message you want to send to the scum of the world? That when we catch you and we’re convinced you re guilty, we’re going to give you life in prison? That's not the nght message. The message has to be death for these types of people. That’s the only message they are going to understand. The one thing you’ve got to get into your head, this is far more important than William Weaver. This case goes far beyond William Weaver. This touches all the dope peddlers and the murderers in the world. That’s the message you have to send. It doesn’t just pertain to William Weaver. It pertains to all of us, the community. They are our streets, our neighborhoods, our family. The message is death, not life. And you’ve just got to geer [sic] yourself to that. A-7 You’ve got to think beyond William Weaver. As | told you earlier, this is our worst nightmare. This is society’s worst nightmare. If they could kill witnesses and we don’t execute them in exchange, then there’s no deterrence. Then the whole system fails and then chaos reigns and our streets are never safe. The dope peddlers reign and people like William Weaver do. It’s bigger than William Weaver. And you've got to have the guts to do it. I’m the P »secuting Attorney in this county, the top law enforcement officer in the county. | decide in which cases we ask for the death penalty and in which cases we don’t. Weaver's counsel objected to the last statement regarding the prosecutor being the top law enforcement officer in the county who chooses the cases in which to pursue the death penalty. The trial court sustained the objection to that statement, and instructed the jury to disregard it. The jury sentenced Weaver to death for his role in the offense. After exhausting his state post-conviction remedies, Weaver filed a petition in federal district court under 28 U.S.C. § 2254, which, after amendment by counsel, raised twenty-two separate claims for relief. The district court granted relief on the first of those claims that Weaver's Fourteenth Amendment rights were violated when the prosecutor exercised two peremptory strikes against black venirepersons dunng jury selection. The State of Missouri appealed. This court reversed and remanded with instructions to address the A-8 remaining twenty-one issues raised in Weaver's petition. Weaver v. Bowersox, 241 F.3d 1024, 1032 (8" Cir. 2001). On remand, the district court again granted relief, this time on three claims related to improper closing arguments the prosecutor made during the penalty phase of Weaver’s tnal. The district court vacated the death sentence, and ordered that Weaver either be sentenced to life in prison without the possibility of parole or be given a new penalty-phase trial. The district court denied relief on all other claims, but granted a certificate of appealability on two claims related to closing arguments the prosecutor made during the guilt phase of Weaver’s trial. Il. We first briefly address the cross-appeal. In claims the parties identify as 2B and 2C, Weaver contends the prosecutor made six statements during the guilt-phase closing argument and rebuttal which improperly referred to the prosecutor’s personal beliefs or threatened the jury. A discussion of the actual statements is not necessary because the district court determined the claims had been procedurally defaulted. Asa consequence, Weaver has to show “cause and prejudice” or a “fundamental miscarriage of justice:” to have the claims reviewed. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) (“[Fljederal habeas review of [a procedurally defaulted claim] is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice.”’). The district court determined Weaver failed to show cause and prejudice or demonstrate a fundamental miscarnage of justice arising from the failure to consider the claims. In an abundance of caution, the district court addressed the merits of A-9 the claims and determined the statements did not “so infect[]} the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwnght, 477 U.S. 168, 181 (1986). On appeal, Weaver does not address the procedural default issue. He does not argue there was cause and prejudice or that a fundamental miscarriage of justice occurred. By failing to address the procedural default issue, he has abandoned his cross-appeal. See, e.g., Etheridge v. United States, 241 F.3d 619, 622 (8 Cir. 2001) (“Claims not argued in the briefs are deemed abandoned on appeal.”). We therefore decline to review the merits of Weaver’s cross-appeal. Il. We next turn to the issue of whether Weaver's claims are subject to the strictures placed on our review by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Weaver argues the Missouri Supreme Court did not address the “war on drugs” claims set out in Claim 2M. Our review of the Missouri Supreme Court decision leads to the conclusion that although the war on drugs claims were not specifically discussed, the Missouri Supreme Court did address the claims in a conclusory fashion that is sufficient to bring the case under AEDPA. The Missouri Supreme Court addressed the appellant’s claims about the prosecutor’s emphasis on his position as the elected prosecutor in Section IV.A. of the opinion and a claim the prosecutor accused defense counsel of suborning perjury in closing argument in Section [V.B. Those claims were discussed in considerable detail by the Missouri Supreme Court. The Supreme Court then went on to discuss the arguments raised in Weaver’s “Other Argument Section” of his state post- conviction application in Section IV.C., under the heading: A-10 “Other Improper Argument.” The Court stated in that section: Lastly, Weaver puts forth a collection of allegedly improper arguments made by the state during the punishment phase. including the complaint that the prosecutor argued matters outside the evidence that lacked evidentiary support. The prosecutor argued that had Weaver not run out of bullets he would have shot the arresting officer. He argued that if a prosecution witness had been out jogging a short while after the crime Weaver would have also shot that witness. Finally, he argued that the death penalty would be a deterrent. Our review of the penalty phase arguments discloses that these arguments are reasonable. The fact that the crime had been planned for the purpose of killing a witness and for the purpose of advancing what was apparently a very violent drug enterprise, permits an inference that the defendant had a high propensity for violent conduct in the future. The claim that the trial court abused its discretion in permitting the argument is without merit. The point is denied. Weaver, 912 S.W.2d 499, 514 (Mo. 1995). Our court’s en banc decision in Brown v. Luebbers, 371 F.3d 458, 462 (8" Cir. 2004) held that “the ‘summary nature’ of the discussion of the federal constitutional question does not preclude application of the AEDPA standard.” The opinion goes on to cite to James v Bowersox, 187 F.3d 866, 869 (8" Cir. 1999). In James, our court stated that “[t]he summary nature of the Missouri Court of Appeals opinion does not affect [our decision to app!y the AEDPA] standard.” Id. at 869. A-11 The Seventh Circuit ruled in Muth v. Frank, 412 F.3d 808, 815 (7" Cir. 2005) that: AEDPA’s requirement that a petitioner’s claim be adjudicated on the merits by a state court is not an entitlement to a well-articulated or even a correct decision by a state court. In fact, several circuits have held that a state court need not offer any reasons and summarily dispose of a petitioner’s claim and that summary disposition would be an adjudication on the merits. (emphasis in original) The Missouri Supreme Court’s summary disposition of Section IV.C. claims is an adjudication on the merits. We understand the concurrence’s argument that the Missoun Supreme Court discussed, in a cursory fashion, some of the specific claims set out in Section IV.C., but did not specifically address the war on drugs claim. However, a decision by a state supreme court that disposes of a claim, even in a conclusory fashion, is sufficient. In this case, the Missouri Supreme Court recognized a number of claims relating to allegedly improper closing arguments and summarily denied those claims. The discussion in Section IV.C., of the Missouri Supreme Court decision, read in context with the discussions in Section IV.A. and IV.B. is sufficient under our court’s interpretation of AEDPA. IV. Under AEDPA, a court should only grant relief if “a decision [is] contrary to, or involves an unreasonable application of, clearly established Federal law” or “a decision [1s] based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. §2254(d)(1)-(2); see also Williams v. Taylor, 529 U.S. 362 (2000). A-12 The State argues that the United States Supreme Court has not addressed improper penalty-phase closing arguments by a prosecutor. However, we have previously found that argument unpersuasive. Copeland v. Washington, 232 F.3d 969, 974 (8" Circ. 2000) (noting that “it is apparent that there are Supreme Court decisions on penalty phase closing argument” and “{t]here are also Supreme Court decisions on guilt phase closing argument that are relevant’). The prosecutor’s argument violates due process if it “infect{[s] the trial with unfairness.” Darden 477 U.S. at 181. To determine if a prosecutor’ s statement infected Weaver’s trial with unfairness, the court must: (1) Measure the type of prejudice that arose from the argument; (2) examine what defense counsel did in his [or her] argument to minimize prejudice; (3) review jury instructions to see if the jury was properly instructed; and (4) determine if there is a reasonable probability that the outcome of the sentencing phase would have been different, taking into account all the aggravating and mitigating circumstances. Antwine v. Delo, 54 F.3d 1357, 1363 (8" Cir. 1995) (citing Newlon v. Armontrout, 885 F.2d 1328, 1337 n.10 (8" Cir. 1989)). The court should only grant habeas corpus relief it the state’s “closing argument was so inflammatory and so Outrageous that any reasonable trial judge would have sua sponte declared a mistrial.” James v. Bowersox, 187 F.3d 866, 869 (8 Cir. 1999). Without applying AEDPA, we vacated two sentences including that of Shurn, the man who hired Weaver to kill Taylor, when the prosecutor in Weaver’s trial made similar improper arguments in the penalty phase. Newlon, 885 F.2d at 1329; Shur v. Delo, 177 F.3d 662 (8” Cir. 1999). A-13 The prosecutor in this case made various penalty phase Statements listed in detail in Section I. These statements can be categorized into several types: (1) an analogy that the role of a juror is like that of a soldier who must do his or her duty and have the courage to kill; (2) statements by the prosecutor about his personal belief in the death penalty, (3) statements that executing Weaver was necessary to sustain a societal effort as part of the “war on drugs”; (4) assertions that the prosecutor had a special position of authority and decided whether to seek the death penalty; and (5) arguments that were designed to appeal to the emotions of the jury (culminating in a statement that the jury should “kill [Weaver] now”). Category (1) is factually unique, but contains statements similar in nature to impermissible statements made in other cases. When a prosecutor tells a jury that they have a duty to kill and, as in this case, uses a graphic story from a movie to support that duty, the statement should be taken as “calculated to remove reason and responsibility from the sentencing process.” Newlon, 885 F.2d at 1338. Soldiers have no choice but to kill. Soldiers follow orders when they kill. The responsibility for a particular death lies, therefore, with a commanding officer or the declaration of war itself, and not with a soldier’s individual conscience. Furthermore, wartime killing is not a deliberative process, not a considered choice. Describing jurors as soldiers with a duty eviscerates the concept of discretion afforded to a jury as required by the Eighth Amendment. See Zan v. Stephens, 462 U.S. 862, 879 (1983). Not only was the main thrust of the prosecutor’s argument diametrically opposed to the requirement that capital sentencing be at the jury’s discretion, it also “diminished the jury’s sense of responsibility for imposing the death sentence, in violation of the Eighth Amendment under Caldwell vy. Mississippi, 472 U.S. 320, 86 L.Ed.2d 231, 105 S.Ct. 2633 (1985).” Antwine, 54 F.3d at 1361. A-14 Categories (2), (4), and (5) are improperly inflammatory under several existing United States Supreme Court precedents. Statements about the prosecutor's personal belief in the death penalty are inappropriate and contrary to a reasoned opinion by the jury. Miller v. Lockhart, 65 F.3d 676, 684-86 (8" Cir. 1995). A prosecutor should not emphasize his or her position of authority in making death penalty determinations because it may encourage the jury to defer to the prosecutor’s judgment. Newlon, 885 F.2d at 1335-37. Further, arguments against a rational decision by the jury, and specifically those that implore the jury to kill the defendant immediately, are contrary to a fair proceeding. Id. at 1336-37; see also Shurn, 177 F.3d at 667-69 (Wollman, J., concurnng). Category (3) is also factually distinct, but similar to arguments that are improper under existing law. The controlling Supreme Court precedent is well-settled and longstanding: the Eighth Amendment requires capital sentencing to be an individualized decision-making process. See. e.g., Jones v. United States, 527 U.S. 373, 381 (1999) (“In order for a capital sentencing scheme to pass constitutional muster, it must perform a narrowing function with respect to the class of persons eligible for the death penalty and must also ensure that capital sentencing decisions rest upon an individualized inquiry.”); Buchanan v. Angelone, 522 U.S. 269, 274-74 (1998) (referring to “the Eighth Amendment requirement of individualized sentencing in capital cases’’); Romano v. Oklahoma, 512 U.S. 1, 7 (1994) (“States must ensure that ‘capital sentencing decisions rest on {an] individualized inquiry,’ under which the ‘character and record of the individual offender and the circumstances of the particular offense’ are considered.”) (quoting McCleskey_v. Kemp, 481 U.S. 279, 303 (1987)); Harmelin v. Michigan, 501 U.S. 957, 995 (1991) (“We have held that a capital sentence 1s cruel and unusual under the Eighth Amendment if it is imposed without an individualized determination that that punishment is A-15 ‘appropriate[.]*’’) (citing Woodson v. North Carolina, 428 U.S. 280, 305 (1976)); Zant, 462 U.S. at 879 (““What is important (from a constitutional standpoint] at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.”). The argument that a signal must be sent from one case to affect other cases puts a improper burden on the defendant because it prevents an individual determination of the appropriateness of capital punishment. Sublett v. Dormire, 217 F.3d 598, 600-01 (8 Cir. 2000). Further, invoking a jury's general fear of crime to encourage the application of the death penalty in a particular case is unfairly inflammatory. Copeland 232. F.3d at 972-73. Using the conscience of the community as a guiding principle for punishment puts too significant of a burden on a single defendant. United States v. Johnson, 968 F.2d 768, 770-71 (8 Cir. 1992). There is little doubt that the prosecutor’s statements are such that we would certainly grant relief without applying AEDPA. However, case law that appiies the AEDPA bar makes it a closer decision. The question for us is whether the state court made an unreasonable interpretation of federal law as required by AEDPA. The finding by our court in Copeland is illustrative on this point. In Copeland, applying AEDPA, we found that the prosecutor’s arguments in the penalty phase nsked creating a mob mentality by preying on the jury’s fear of crime. Copeland, 232 F.3d at 975. Further, the court found that, “it was unreasonable, in light of Supreme Court precedent, to conclude that the argument did not result in a deprivation of due process.” The statements in this case are more egregious and systemic than those in Copeland. The conclusion by the Missouri Supreme Court that “the penalty phase arguments. . . [were] reasonable” is unreasonable under existing United States Supreme Court precedents. It is A-16 unclear which precedents the Missouri Supreme Court applied. Regardless, there can be no interpretation of the inflammatory remarks by the prosecutor that is reasonable under the various applicable United States Supreme Court precedents. As a result, AEDPA does not bar relief in the present matter. Vv. For the foregoing reasons, we affirm the judgment of the district court. BYE, Circuit Judge, concurring in the result. | agree Weaver's claims warrant habeas relief even if AEDPA’s strict standard of review applies. | write separately because I do not believe AEDPA applies. When a claim raised in state court proceedings 1s ignored by the state courts “we apply a pre-AEDPA standard of review.” Clemons v. Luebbers, 381 F.3d 744, 756 n.8 (8" Cir. 2004) (citing Taylor v. Bowersox, 329 F.3d 963, 967-68 (3" Cir. 2003)); see also Wiggins v. Smith, 539 U.S. 510, 534 (2003) (“in this case, our review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis.”); Canaan v. McBride, 395 F.3d 376, 382 (7" Cir. 2005) (“When a state court is silent with respect to a habeas corpus petitioner’s claim, that claim has not been ‘adjudicated on the merits’ for purposes of §2254(d) [and] a federal court cannot apply the deferential standard provided by 2254(d).”); Maples v. Stegall, 340 F.3d 433, 436 (6" Cir. 2003) (““Where, as here, the state court did not assess the merits of a claim properly raised in a habeas petition, the deference due under AEDPA does not apply.”). A careful side-by side examination of the clams Weaver A-17 made in state court and the Missouri Supreme Court’s opinion addressing those claims convinces me the latter ignored what Weaver referred to then as his “War On Drugs” argument, and what the Court refers to now as categories (3) and (5) of Weaver’s claim, that is, the “War On Drugs” argument as well as the statements designed to appeal to the emotions of the jury. Before the Missouri Supreme Court, Weaver made six separate arguments in a section entitled “Other Improper Arguments.” The six separate arguments were as follows: 1) the prosecutor’s statement that if Weaver had not run out of bullets, he would have shot a police officer; 2) the prosecutor’s statement that if Weaver had not run out of bullets, he would have shot witness Jean Hanson; 3) the prosecutor’s discussion of the death penalty as a deterrent to homicide in violation of a pre-trial motion in limine;’ 4) the prosecutor’s opinion there were cnmes other than first degree murder for which a sentence of life without parole would be appropriate; 5) the prosecutor’s claim he could have presented victim impact evidence through the victim’s wife, relatives, and friends; and 6) the “War On Drugs” argument, which identified and challenged the specific portions of the sentencing transcript containing the prosecutor’s *Specifically, the prosecutor argued: The death penalty deters. I’m convinced of that. People can argue for a thousand years whether it does or not, but I’m convinced it does. It doesn’t deter passion killings. It doesn’t deter crazed people who kill. But it deters business killings like this. I set fort the specifics of this argument for the purpose of showing Weaver's “deterrent” claim was district from his “war- on-drugs” claim in state court. A-18 statements that have been referred to as Claim 2M in the proceedings before our court. The Missouri Supreme Court’s opinion discusses only the first three of the six arguments advanced by Weaver. Lastly, Weaver puts forth a collection of allegedly improper arguments made by the state during the punishment phase, including the complaint that the prosecutor argued matters outside the evidence that lacked evidentiary support. The prosecutor argued that [1] had Weaver not run out of bullets he would have shot the arresting officer. [2] He argued that if a prosecution witness had been out jogging a short while after the crime Weaver would have also shot that witness. [3] Finally, he argued that the death penalty would be a deterrent. Our review of the penalty phase arguments discloses that these arguments are reasonable. The fact that the crime had been planned for the purpose of killing a witness and for the purpose of advancing what was apparently a very violent drug enterprise, permits an inference that the defendant had a high propensity for violent conduct in the future. The claim that the tal court abused its discretion in permitting the argument is without merit. The point is denied. State v. Weaver, 912 S.W.2d 499, 514 (Mo. 1995). In determining whether a claim has been “adjudicated on the merits” for the purpose of applying AEDPA’s strict standard of review under 28 U.S.C. §2254(d), “[w]e must simply look at what a state court has said, case by case, and determine whether the federal constitutional claim was A-19 considered and rejected by that court.” Brown v. Luebbers, 371 F.3d 458, 461 (8 Cir. 2004). While I acknowledge the “summary nature of a state court’s decision does not affect the applicable standard of review,” Closs v. Weber, 238 F.3d 1018, 1020 (8" Cir. 2001) (citing James v. Bowersox, 187 F.3d 866, 869 (8" Cir. 1999)), I submit a distinction must be drawn between summarily disposing of a claim and wholly ignoring it. Significantly, when I look at what the state court said in this case, it is clear the state court discusses and analyzes only three of the six arguments advanced by Weaver in his “Other Improper Arguments” section. Most notably, the state court identified the third of Weaver's six arguments as his fina/ argument, and nowhere discusses or analyzes Weaver’s last three arguments, including his “War On Drugs” claim. I do not know what else to glean from what the state court said other than to conclude it ignored Weaver’s most compelling constitutional claim. As the Court notes, the Eighth Amendment requires capital sentencing to be an individualized decision-making process. See ante at 12. Not once, not twice, not thrice, but seven times the prosecutor urged the jury to ignore the individual offender, William Weaver. Instead of focusing the jurors’ attention upon Weaver's character and record, and the particular circumstances of Weaver's offense, the prosecutor instead advised the jury “(t]he one thing you've got to get into your head, this is far more important than William Weaver. This case goes far beyond William Weaver.” He told the jury “drug dealers . . . are taking our streets away from us.” He advised the jury to “send a message” to “all dope peddlers and murderers in the world [for the sake of] all of us, the community. They are our streets, our neighborhoods, our family.” He said drug dealers were ‘society's worst nightmare. If they could kill witnesses and we don’t execute them in exchange, then there's not deterrence. Then the whole system A-20 fails and then chaos reigns and our streets are never safe. The dope peddlers reign.” These statements, as well as the other improper statements discussed by the Court, clearly violated Weaver's constitutional rights. | have no trouble concluding such to be the case when reviewing the district court’s decision de novo or when applying the more demanding standard of review under AEDPA. | therefore concur in affirming the judgment of the district court. BOWMAN, Circuit Judge, concurring in part and dissenting in part. I agree with Judge Melloy that all of Weaver's claims are subject to review under the AEDPA standard and concur in Part III of his opinion. But because | do not think that the Court correctly applies that standard to Weaver's claims of prosecutorial misconduct, | respectfully dissent. Under 28 U.S.C. §2254(d)(1), as amended by AEDPA, we must accept a state court’s decision on the merits of a claim later raised in federal habeas proceedings unless that decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” The Court today, purporting to apply the AEDPA standard, holds that habeas relief must be granted to Weaver on his sentence. | The Court notes that several of Weaver's claims are “factually unique” or “factually distinct,” presumably when compared to habeas claims adjudicated by the Supreme Court to date. ante at 10,11. These factual distinctions alone raise red flags. 1 propose that it is less likely that a state court’s decision will be contrary to or an unreasonable application of clearly established federal law when there are no Supreme Court cases on all fours. Moreover, the law that the Court cites A-2) today as on point is found in opinions from this Circuit, not in opinions from the Supreme Court. “[A]s the statutory language makes clear, . . . §2254(d)(1) restricts the source of clearly established law to [the Supreme} Court’s jurisprudence.” Williams v. Taylor, 529 U.S. 362, 412 (2000). The Supreme Court cases to which the Court does refer in its opinion stand for general propositions: “[a] prosecutor’s argument violates due process if it ‘infect[s] the tnal with unfairness,”” ante at 9 (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)); the Eighth Amendment requires that a jury not be precluded from exercising its discretion, ante at 1] (citing Zant v. Stephens, 462 U.S. 862, 879 (1983) (noting the requirement in capital cases for an “individualized determination” of those defendants who should receive the ultimate penalty “on the basis of the character of the individual and the circumstances of the crime”’)); and there is a need for “an individualized decision-making process” so that a death sentence will pass constitutional muster, ante at 11 (citing Supreme Court cases at 11-12). None of the Supreme Court cases cited in the Court’s opinion touches on the distinct claims of prosecutorial misconduct on which the writ was granted. In these circumstances, | cannot agree that the Missoun Supreme Court’s decision on the issue of the prosecutor’s penalty-phase argument is contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court. Were it not for the AEDPA standard of review, | might agree with the result reached by the Court today. Indeed, the outcome was different - where we did not apply the AEDPA standard - in our §2254 review of Weaver's co- defendant’s death sentence on grounds of improper prosecutorial closing argument in the penalty phase. Shur v. Delo, 177 F.3d 662, 665-67 (8" Cir.), cert. denied, 528 U.S. 1010 (1999): see also Newlon v. Armontrout, 885 F.2d 1328 (8" Cir. 1989) (affirming pre-AEDPA grant of the writ on A-22 grounds of improper prosecutorial argument), cert. denied, 497 U.S. 1038 (1990). But under AEDPA, we are not empowered to grant the writ even though we may believe that the state court got it wrong. A State-court decision is not necessarily unreasonable because the federal habeas courts deem it to be incorrect. Williams v. Taylor, 529 U.S. at 411. “A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous.” Mitchell v. =sparza, 540 U.S. 12, 17 (2003) (expounding the “contrary to” standard). The only issue for the federal courts in this case is whether the state court’s decision was contrary to or an unreasonable application of clearly established federal law. Because of the apparent inconclusive state of Supreme Court jurisprudence on the alleged constitutional violation in this case (the Court cites no apposite Supreme Court cases), | would hold that the state court’s decision was neither contrary to nor an objectively unreasonable application of federal law and would reverse the judgment of the District Court. A-23 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION WILLIAM WEAVER, ) Petitioner, . v. No. 4:96-CV-2220 CAS MICHAEL BOWERSOX, Respondent. MORAN N This matter is before the Court on Petitioner’s First Amended Petition for Writ of Habeas Corpus filed on June 27, 1997. Respondent filed a response on September 8, 1997, and a supplemental response on September 11, 1997. Petitioner filed a traverse on January 5, 1998. I. Procedural History. On July 19, 1988, petitioner William Weaver was convicted of first-degree murder in the death of Charles Taylor by a jury in St. Louis County, Missouri. The next day, the jury sentenced Weaver to death. Petitioner timely filed a pro se Motion to Vacate, Set Aside or Correct a Judgment of Guilty and of a Sentence of Death, pursuant to Missouri Supreme Court Rule 29.15 motion. Appointed counsel for petitioner timely filed an amended motion which incorporated the pro se motion and asserted additional points for relief. The state court conducted an A-24 evidentiary hearing on petitioner's 29.15 motion on September 13-15, 1993, with a subsequent hearing on July 28, 1994. The postconviction motion court denied relief on all grounds on November 29, 1994. Weaver appealed his conviction and sentence to the Missouri Supreme Court. Weaver’s direct appeal was consolidated with his appeal from the denial of his postconviction motions. On December 19, 1995, the Missouri Supreme Court affirmed the conviction and death sentence. See State v. Weaver, 912 S.W.2d 499 (Mo. 1995) (en banc). On April 18, 1996, Weaver filed a pro se habeas petition in federal district court. At that time, he had not yet petitioned the United States Supreme Court for review of the Missoun Supreme Court’s decision affirming his conviction and death sentence. This Court dismissed his petition without prejudice to permit Weaver to fully exhaust his state remedies. Weaver petitioned the Supreme Court for a writ of certiorari, which was denied on October 7, 1996. Weaver v. Missouri, 519 U.S. 856 (1996). On November 12, 1996, Weaver filed a second pro se habeas petition in the instant case. The Court appointed counsel to assist Weaver, and Weaver filed the instant First Amended Petition. This Court issued a Memorandum and Order on August 9, 1999, which granted petitioner a wnt of habeas corpus on his Batson claim, the first claim presented in the First Amended Petition. The Eighth Circuit Court of Appeals reversed by opinion dated February 23, 2001, and directed this Court to address the remaining claims in petitioner’s petition. See Weaver v. Bowersox, 241 F.3d 1024 (8th Cir. 2001). II. Legal Standard. in the earlier appeal of this matter, the Eighth Circuit A-25 held that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies to the instant petition for writ of habeas corpus, because it was filed after the effective date of the AEDPA.’ Weaver, 241 F.3d at 1029. Title I of the AEDPA significantly amends habeas corpus law. The amended version sets forth a more stringent standard for issuance of a writ of habeas corpus, and substantially limits the power of a federal court to grant a state prisoner’s habeas petition on grounds decided on the merits in state court. Carter v. Kemna, 255 F.3d 589, 59] (8th Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362, 412-13 (2000)), cert. denied, 534 U.S.1085 (2002). The text of section 2254(d) establishes the state court’s decision as the starting point in habeas review. Matteo v Superintendent, SCI Albion, 171 F.3d 877, 885 (3rd Cir.), cert denied sub nom Matteo v. Brennan, 528 U.S. 824 (1999). Under the AEDPA’s standards of limited and deferential review, “Federal courts may grant habeas relief to a state prisoner on a claim only if the state court’s rejection of the claim 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), or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,’ id. § 2254(d)(2). See Lomholt v. State of lowa, __ F.3d _., 2003 WL 1961035, *2, No. 02-2236 (8th Cir. Apr. 29, 2003) (slip op. at 4). A state court’s decision is contrary to clearly established Petitioner's assertions that the AEDPA does not apply to his case, and that this Court erred in dismissing his original petition for wnt of habeas corpus on July 1, 1996, are moot. See First Amended Petition for Writ of Habeas Corpus, Claim Twenty-Two, p. 41. A-26 Supreme Court precedent when it is opposite to the Supreme Court’s conclusion on a question of law or different than the Supreme Court’s conclusion on a set of materially indistinguishable facts. Williams, 529 U.S. at 412-13. A state court decision involves an unreasonable application of Supreme Court precedent if it correctly identifies the governing legal rules but unreasonably applies them to the facts of a prisoner’s case. Id. at 407; Linehan v. Milezark, 315 F.3d 920, 924 (8th Cir. 2003). The Eighth Circuit has instructed, “As for an ‘unreasonable application’ of the law, we must remember that unreasonable is not the same as incorrect. Penry v. Johnson, 121 S. Ct. 1910, 1918 (2001). The state court’s application might be erroneous, in our ‘independent judgment,’ yet not ‘unreasonable.’ Williams, 529 U.S. at 411.” Kander _v. Bowersox, 272 F.3d 532, 538 (8th Cir. 2001). “The factual findings of the state court also may be challenged in a § 2254 petition, but they are subject to an even more deferential review. Relief may be granted if the state court adjudication ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Factual findings by the state court ‘shall be presumed to be correct,’ 2 presumption that will be rebutted only by ‘clear and convincing evidence.’ Id. § 2254(e)(1).” Kinder, 272 F.3d at 538 . Ill. Procedural Default. “Federal habeas review is barred when a federal claim has not been ‘fairly presented’ to the state court for a determination on the merits.” Hall v. Delo, 41 F.3d 1248, 1249 (8th Cir. 1994) (quoting Jones v. Jerrison, 20 F.3d 849, 854 (8th Cir. 1994) (other internal citations omitted)). Even if a federal claim has been “fairly presented” to the state court, a federal court generally will decline to consider the claim if the state A-27 court denied it on “independent and adequate state procedural grounds.” Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); see also Sloan v. Delo, 54 F.3d 1371, 1378 (8th Cir. 1995) (“If a state court finds that a defendant defaulted a claim under a state procedural rule, . . . federal courts generally will not consider it on habeas review.”’), cert. denied, 516 U.S. 1056 (1996). “To bar consideration of a defaulted claim on federal habeas review, the state’s procedural rule must have been ‘firmly established and regularly followed’ when it was applied to the petitioner.” Sloan, 54 F.3d at 1380 (quoting Ford v. Georgia, 498 U.S. 411, 421-25 (1991)). “Missouri procedure requires that a claim be presented ‘at each step of the judicial process’ in order to avoid default.” Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir. 1994), cert. denied, 513 U.S. 983 (1994) (quoting Benson v. State, 611 S.W.2d 538, 541 (Mo. Ct. App. W.D. 1980)). Claims that are not raised on direct appeal or in postconviction Rule 29.15 proceedings or the appeal thereof generally are barred. See LaRette v. Delo, 44 F.3d 681 (8th Cir.) (citing Kennedy v. Delo, 959 F.2d 112, 115- 16 (8th Cir.), cert. denied, 506 U.S. 857 (1992) (claims first raised in motion to recall the mandate are barred), and Byrd v. Delo, 942 F.2d 1226, 1231-32 (8th Cir. 1991) (claims first raised in state habeas petition are barred)), cert. denied sub nom LaRette v. Bowersox, 516 U.S. 894 (1995). A Missouri court may “lift” the bar on an otherwise procedurally defaulted claim by reviewing the claim on the merits. Jolly, 28 F.3d at 53-54; Byrd, 942 F.2d at 1230. See also Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“State procedural bars are not immortal, however, they may expire because of later actions by state courts. If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal review that otherwise might have been available.”’) A-28 Absent a decision by a state court to lift the bar on an otherwise procedurally defaulted claim, a federal court will not consider the claim unless the petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarnage of justice.” Coleman, 501 U.S. at 750. “[{T]he existence of cause for a procedural default must ordinarily tum on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). “Objective factors that constitute cause include ‘interference by officials’ that makes compliance with the State’s procedural rule impracticable, and ‘a showing that the factual or legal basis for a claim was not reasonably available to counsel.” McCleskey v. Zant, 499 U.S. 467, 494 (1991) (quoting Murray, 477 U.S. at 488 (internal citations omitted)). IV. Statement of Facts. The Court offers the following statement of facts, adopted in its entirety from the opinion of the Missouri Supreme Court, solely for informational purposes: Prior to July 1987, Charles Taylor and members of Daryl Shum’s family had been involved in the ownership and operation of drug houses. A federal drug prosecution had been commenced against Daryl Shurn’s brothers, Charles and Larry Shurn, in which Taylor was to be a key witness. Taylor had worked for the Shurns and held some of the Shurns’ drug houses in his name. On the morning of July 6, 1987, William Weaver and Daryl Shum arrived at Taylor’s A-29 home in the Mansion Hills apartment complex. Their plan was to force Taylor to sign over the Shurns’ crug properties which Taylor was retaining in his name against the Shurns’ will. After Taylor had signed the paperwork, Weaver was supposed to kill Taylor. The plan was not completely successful. After Weaver and Shurn entered Taylor’s apartment, Taylor unexpectedly pulled a gun and escaped. Weaver and Shurn gave chase and fired several shots at Taylor. Numerous residents saw Weaver and Shurn running after Taylor, shooting at him. Weaver and Shum followed Taylor to a wooded area where Taylor fell from his wounds. Weaver and Shurn went back to the automobile. Then Weaver returned to the wooded area where Taylor had fallen and shot Taylor again. Taylor died from several gunshot wounds to the head. Weaver and Shum drove away from the murder scene at a high rate of speed. Witnesses at the scene immediately reported the incident to police, giving a detailed description of the vehicle. Shortly thereafter, police spotted the Shurn vehicle and gave chase. Following a collision during rush hour traffic on Interstate 70, Weaver and Shurn fled on foot. Shur was captured at the scene, but Weaver ran off toward the Hillcrest Apartment complex adjacent to the highway. Not far away, another police officer located Weaver running shoeless on a concrete street, sweating profusely. On approach by the officer, Weaver claimed he was jogging, although he was many miles from home. He A-30 claimed to be lost. Weaver was placed under arrest and returned to the scene of the accident where one of the orginal pursuing police officers positively identified Weaver as the man who ran away from the Shurn car after the crash. While awaiting trial, Weaver was incarcerated with a man by the name of Robert Dutch Tabler. Tabler testified that Weaver told him he was a hit man on the streets, that defendant and Shurn had killed Charles Taylor, and that defendant’s testimony at trial would be that he was merely out jogging when the police stopped him. Weaver’s primary defense at trial was misidentification by police. State v. Weaver, 912 S.W.2d at 507-08. V. Discussion. A. Claim Two: Improper Arguments by Prosecutor.“ In his second claim for relief (Claims 2.B. through 2.M.), petitioner asserts that the prosecuting attorney made improper statements in his guilt and penalty phase closing arguments, which violated petitioner’s nght to due process on the issue of punishment. Petitioner contends that the prosecutor’s improper statements violated his nghts under the Sixth, Eighth and Fourteenth Amendments. Petitioner asserts that twelve separate statements were improper as either *As previously stated, petitioner’s first claim, the Batson claim, was addressed in the Memorandum and Order of August 9, 1999, and the subsequent appeal. A-3] injecting the prosecutor’s personal beliefs, threatening the jury. appealing to jurors’ fears and emotions, arguing irrelevant and immaterial issues, or arguing that defense counsel had tried to create “smokescreens,” knowingly fabricated petitioner’s defense, and had been involved in obtaining perjured testimony. The subpoints of Claim Two are set forth and labeled in the same manner as in the First Amended Petition: B. As part of the initial guilt phase closing argument, the prosecutor said, “He’s guilty as charged and I think the evidence has proved it and | think he’s guilty of murder in the first degree (Tr. 1645). ... But it’s murder first degree or it’s nothing.” ... “[Ijn my opinion, the only reason we’ve been here is because the guilt is obvious. Your decision in this case is trying to decide whether he should die or go free. The guilt is obvious.” (Tr. 1647). C. During the guilt phase rebuttal argument the prosecutor said, “And, yet, | stand here afraid, afraid that because Doris Black is so good and because you people may get confused . . . If you do, then a hit man goes free.” (Tr. 1713). “Come on. All these coincidences you can’t believe. It’s nonsense. If you don’t believe the state’s case here, you twelve people will never convict anybody.” (Tr. 1710). “But in order for you to let him go, you’ve got to believe that all this perjury was involved, that I was part of it.” (Tr. 1721). D. During the initial penalty phase argument, the prosecutor said, “Well if this isn’t it, what would it A-32 be? If this isn’t a case where you can impose a death penalty, where people would go out to Mr. Taylor’s house to kill him because he’s a witness, then what case would you ever return it in? So if you were being honest to me when you said that, then that has to be the case.” (Tr. 1761). “If this isn’t a case that calls for the death penalty, I can’t imagine one that would. And, yet, you people all told me in a given case you could do it. Some of you even said you would prefer it, that you would favor it in the right case. This is the night case ” (Tr. 1762). “I mean if this isn’t the case for the death penalty, then there’s no case you'll do it.” (Tr. 1765). E. The prosecutor continued during the penalty phase rebuttal argument, “So, yeah, is there a possibility he’s innocent? A possibility. I’m not going to deny that, but that’s not what’s required by the law and that’s not what we could live by. If that’s required, nobody would ever be sentenced to die. We wouldn’t have a death penalty. And, quite frankly, if you don’t sentence him to die in this case, there’s no point in having a death penalty.” (Tr. 1778). F. During the penalty phase rebuttal argument, the prosecutor stated, “Then I'll say what | said earlier. If these facts don’t justify, don’t cry out for the death penalty, then which facts do? If a cold-blooded hit on behalf of drug scum isn’t enough for the death penalty, then what facts justify it? I know there’s a movie, Patton, and in the movie, George Patton was talking to his troops because the next day they were going to go out in battle and they were scared as young soldiers. A-33 And he’s explaining to them that I know that some of you are going to get killed and some of you are going to do some killing tomorrow morning. And they all knew that. And he was going to try to encourage them that sometimes you've got to kill and sometimes you've got to risk death because it’s right. He said: But tomorrow when you reach over and put your hand in a pile of goo that a moment before was your best friend’s face, you'l] know what to do.” (Tr. 1782-83). G. The prosecutor also argued during the penalty phase rebuttal that a police officer and a witness would have been killed if facts were different: “William Weaver ran out of bullets. Think back to the evidence. I’m sure you discussed it yesterday. But when you discuss his fate, think about the evidence. He ran out of bullets and Charles Taylor was still alive. So when they go back, he’s reloading. All six spent casings are on the floorboard nght where he was and he’s reloading while Daryl is driving and they stop and he goes back and shoots him some more. Then I’m going to tell you that he was out of bullets, because if he hadn’t been, Officer Crain would have been dead because he would have kept the gun on him instead of pitching it out of the car.” H. After objection, the prosecutor continued, “If he had still had the gun and still had bullets, do you think he would have sure surrendered as meek as a lamb? I mean, of course, he wouldn’t have surrendered. What if Jean Henson would have been jogging a little bit later than she was and . »ming around the woods or the clearing at the time of the murder and he still had some bullets. You think she would be alive?” (Tr. 1762-64). A-34 |. During the guilt phase. the prosecutor argued, “And now, of course, Mr. Weaver is here lying to you and telling you he didn’t do it and wanting you to believe that and hoping through the assistance of Ms. Black--who is just about as capable a defense attorney as you're going to find in these cases--that enough confusion, enough smokescrs, «5, enough whatever has been created to put in your mind some reasonable doubt as to his guilt.” (Tr. 1645). J. Over objection, the prosecutor continued, “But as the case unraveled, I’m sitting there listening to all this and I’ve got my back to you people, and | don’t know what impact the things elicited by Ms. Black may have had on you. I don’t know whether you think these little mole hills that Ms. Black talked about are now mountains in your mind or if they are still mole hills. | don’t know whether the smokescreen she’s creating 1s bothering you and creating an impression in your mind, creating confusion or, you know, you see it’s nothing more than a smokescreen and you're waiting to get to the jury room to render a verdict of guilty. “But at this point, you’ve heard all the evidence you're going to hear. But that’s all you heard for four or five days was a harangue to try to create confusion out of nothing, to try to get a police officer to make one little mistake which then makes him a liar, one inconsistency, whatever, and they are liars; they are perjurers. Just create whatever smokescreen you have. So the last day or two, I’ve been concerned what impact this is having on the jury. “Well last night when I’m trying to decide exactly what I’m going to say to you and | cleared all the smoke away and all the harangue and all the noise, A-35 you're left with nothing more than the facts.” (Tr. 1648-49). K. The prosecutor stated, “And by the way, I’m not even convinced the girl was having an affair with him. I think they found a young girl and she may be willing to come in here and be the heroine this week. Ms. Black talked about her being so embarrassed, how difficult it was for her to testify. She came back the next day and sat in the first row and for three or four more days. She’s the star of the show. She is the heroine.” (Tr. 1665). M. Finally, petitioner also objects to the prosecutor's argument during the penalty phase that the death sentence was appropriate due to petitioner's connection to the Shurn family and their drug operation (Tr. 1760, 1776, 1777), on the basis that there was no evidence petitioner had knowledge of the Shum family’s drug trade. Petitioner argues there are no facts in the record to support the argument that petitioner would have shot a police officer and a witness if he had not run out of bullets (Tr. 1762-64). Petitioner argues that the prosecutor’s argument the death penalty is a deterrent (Tr. 1778-79), was without factual basis. Petitioner argues the prosecutor’s “war on drugs” argument (Tr. 1759, 1768, 1776-77, 1779, 1781) was intended to appeal to the jury’s passions and inflame them. Petitioner presented the majority of these points to the Missouri Supreme Court, which resolved the issues as follows: Defendant argues that the state’s closing arguments during both the guilt and penalty phases were erroneous and further that counsel A-36 was ineffective in failing to object to some of the improper arguments. A review of the record discloses that defense counsel objected vehemently to almost all the arguments complained of here and that several of the objections were sustained, followed by curative instructions to the jury. The trial court has considerable discretion in allowing argument of counsel, and the rulings are reversible only for abuse of discretion where argument is plainly unwarranted. State v. Armbruster, 641 S.W.2d 763, 766 (Mo. 1982). Our review of the arguments discloses neither error in permitting the arguments nor ineffective assistance of counsel in failing to object. A. First, Weaver alleges that the prosecutor improperly emphasized his position as elected prosecutor in his choice of seeking the death penalty. The specific arguments were as follows: (1) In the guilt phase, the prosecutor said, “If you don’t believe the state’s case here, you twelve people would never convict anybody.” Defense counsel objected, and the court instructed the jury to disregard the comment. (2) In the penalty phase closing, the prosecutor said, “Well, if this isn’t [the proper case for the death penalty], what would it be? If this isn’t a case where you can impose a death penalty, where people go out to Mr. Taylor’s house to kill him because he’s a witness, then what case A-37 would you ever return itin? ... If this isn’t a case that calls for the death penalty, | can’t imagine one that would.” The court overruled defense counsel's objection to this argument. (3) Continuing his penalty phase closing argument, the prosecutor said, “] mean, if this isn’t the case for the death penalty, then there’s no case you'll do it. . . and, quite frankly, if you don’t sentence him to die in this case, there’s no point in having a death penalty . . . I’m the prosecuting attorney in this county, the top law enforcement officer in the county. | decide in which cases we ask for the death penalty and in which cases we don’t.” The trial court sustained the defendant’s objection to the last statement and instructed the jury to disregard it. (4) Finally, the prosecutor said, “If these facts don’t justify, don’t cry out for the death penalty, then which facts do?” To that statement, the trial court overruled the objection. A prosecutor’s argument may make reasonable inferences from the evidence. Shurn, 866 S.W.2d at 460; State v. McDonald, 661 S.W.2d 497, 506 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S. Ct. 1875, 85 L.Ed.2d 168 (1985). The inferences need not necessarily seem warranted. Grubbs v. State, 760 S.W.2d 115, 119 (Mo. bane 1988), cert. denied, 490 U.S. 1085, 109 S. Ct. 2111, 104 L.Ed.2d 672 (1989). Statements by a prosecuting attorney in argument indicating his or her opinion that the accused is guilty, where it is apparent that such opinion is based on the evidence in the case, is A-38 permissible. State v. Moore, 428 S.W.2d 563, 565 (Mo. 1968); State v. Paglino, 319 S.W.2d 613, 625 (Mo. 1958). In this case, the prosecutor’s rhetorical questions may seem flamboyant, if not somewhat abrasive, to a juror’s ears. However, given the eyewitness testimony of how the murder was carried out and the cold execution manner in which the victim was killed, it is fair for the prosecutor to point out the strength of the state’s case. The use of the rhetorical questions was, for the most part, a fair comment on the strength of the case. As for his statements regarding his position as prosecuting attorney of the county, the court properly sustained the objections and directed the jury to disregard the argument. Trial courts have a superior vantage point from which to assess the pervasive effect of an improper argument. Thus, whether it can be dissipated by timely and appropriate action short of declanng a mistrial is a matter within the sound discretion of the trial court. State v. Carter, 641 S.W.2d 54, 60 (Mo. banc 1982), cert. denied, 461 U.S. 932, 103 S. Ct. 2096, 77 L.Ed.2d 305 (1983). This case is distinguishable from cases relied on by the defendant, including State v. Evans, 820 S.W.2d 545 (Mo.App. 1991). There the prosecutor said, “If [the defendant] were innocent, | wouldn’t bring a charge.” Jd. at 547. Merely stating that the prosecutor determines which penalty to ask for in capital cases is not the same as saying that if the defendant were innocent, he would not be charged. The objection, followed by the curative instruction, A-39 is adequate here. In addition, this case is distinguishable from Newlon v. Armontrout, 885 F.2d 1328 (8th Cir. 1989). There the court found that because the prosecutor expressed his personal belief in the propriety of the death penalty, emphasized his position of authority in the county as prosecutor, attempted to associate the defendant with several well-known mass murderers, appealed to the jurors’ personal fears and emotions, and asked the jurors to “kill” the defendant, under the totality of the circumstances rendered the penalty phase of the trial fundamentally unfair. 885 F.2d at 1336-37. The arguments here do not rise to the level of the egregious conduct that is reported in Newlon. Neither is this case comparable with State v. Storey, 901 S.W.2d 886 (Mo. banc 1995), where this Court reversed the punishment in a capital case because the prosecutor, among other excesses, had compared the brutality of the murder as being worse than all other murders in the county. Here there was no abuse of discretion in the tnal court’s ruling on defense counsel’s objections. B. In his closing remarks, the prosecutor called the defendant’s misidentification defense a “cock and bull story” and a “smokescreen,” referred to the defendant as a liar, said defense counsel] was “bold” and called in question the credibility and motives of several defense witnesses. Weaver characterizes the state’s closing arguments as portraying defense counsel as having suborned A-40 perjury. Comments to the effect that a defendant or a defense witness were lying have repeatedly been upheld. A prosecuting attorney may comment on the evidence and the credibility of [a] witness and, in the process, may belittle and point to the improbability and untruthfulness of specific testimony. State v. Johnson, 496 S.W.2d 852, 859 (Mo. 1973). Here the comments on the testimony of the witnesses were well within the range of the prosecutor’s adversarial responsibilities in making closing argument. Directly arguing that defense counsel has suborned perjury or fabricated evidence has been held to be prejudicial error. State v. Burnfin, 771 S.W.2d 908, 912-13 (Mo.App. 1989): State v. Harris, 662 S.W.2d 276, 277 (Mo.App. 1983). However, the prosecutor here did not go that far when he said: I don’t know whether the smokescreen [defense counsel is] creating is bothering you and creating an impression in your mind, creating confusion or, you know, you see, it’s nothing more than a smokescreen... . [Defense counsel has] got the nerve to show you these photographs that she said look like they were taken at nighttime. | guess you just have to believe with somebody that bold that she is going to suggest A-41 that was taken at night time as opposed to bad exposure, if you want to buy that boldness. To suggest that the arguments advanced by defense counsel are “smokescreens” or “bold” fall far short of accusing counsel of suborning perjury or the other egregious accusations against defense counsel that occurred in Burnfin, Harris, or other cases relied on by the defendant. At most, the comments by the prosecuting attorney were near error which, by definition, is not error. The point is denied. C. Lastly, Weaver puts forth a collection of allegedly improper arguments made by the state during the punishment phase, including the complaint that the prosecutor argued matters outside the evidence that lacked evidentiary Support. The prosecutor argued that had Weaver not run out of bullets he would have shot the arresting officer. He argued that if a prosecution witness had been out jogging a short while after the crime Weaver would have also shot that witness. Finally, he argued that the death penalty would be a deterrent. Our review of the penalty phase arguments discloses that these arguments are reasonable. The fact that the cnme had been planned for the purpose of killing a witness and for the purpose of advancing what was apparently a very violent drug enterprise, permits an inference that the defendant had a high propensity for violent conduct in the future. The claim that the trial A-42 court abused its discretion in permitting the argument is without ment. The point is-denied. See Respondent’s Ex. G, pp. 14-16; Weaver, 912 S.W.2d at 512-14. The Court begins with the opinion of the Missouri Supreme Court. Because the Missouri Supreme Court reached the merits of petitioner’s claim, its determination that petitioner’s nights were not violated is entitled to deference. 28 U.S.C. § 2254(d). Petitioner is not entitled to relief unless he can demonstrate that the Missoun Supreme Court's resolution was contrary to clearly established federal law or involved an unreasonable application of that clearly established federal law. 28 U.S.C. § 2254(d)(2). See Linehan, 315 F.3d at 924. Federal law regarding prosecutorial overreaching in closing arguments is clearly established. The Supreme Court has ruled it is not enough that a prosecutor’s comments were undesirable or even universally condemned. In order to be a constitutional violation, a statement by a prosecutor in closing argument of the guilt phase must have “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwnght, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChnistoforo, 416 U.S. 637 (1974)). The Eighth Circuit has stated with respect to improper penalty phase argument, “it would seem that there should be a more searching review of the penalty phase as the Eighth Amendment is implicated.” Copeland v. Washington, 232 F.3d 969, 974 n.2 (8th Cir. 2000) (applying AEDPA standard, vacating death sentence based on improper argument by prosecutor during penalty phase), cert. denied, 532 U.S. 1024 (2001). The Court in Copeland noted that the Eighth Circuit has vacated a death sentence based on improper closing argument during the penalty phase in three other recent cases. See Shurn v. Delo, 177 F.3d 662 (8th Cir.), cert. denied sub nom Shum v. A-43 Bowersox, 528 U.S. 1010 (1999); Antwine v. Delo, 54 F.3d 1357 (8th Cir. 1995), cert. denied sub nom Bowersox _v. Antwine, 516 U.S. 1067 (1996); Newlon v. Armontrout, 885 F.2d 1328 (8th Cir. 1989), cert. denied sub nom Delo _v. Newlon, 497 U.S. 1038 (1990). This Court will discuss separately the challenged arguments in the guilt and penalty phases. The Court will also consider the cumulative effect of the challenged arguments. United States v. Young, 470 U.S. 1, 11-12 (1985) (to decide the effect of a prosecutor’s remarks, a court examines the totality of the circumstances and the remarks within the context of the trial). 1. Guilt Phase. Petitioner objects to a number of separate statements by the prosecutor during the guilt phase closing argument and rebuttal argument. Petitioner argues that the prosecutor subjected the jurors to improper argument by means of six statements which asserted his personal beliefs and threatened the jury. The statements at issue made during the initial closing argument are: ‘“He’s guilty as charged and | think the evidence has proved it and I think he’s guilty of murder in the first degree (Tr. 1644-45). ... But it’s murder first degree or it’s nothing.” ... (Tr. 1645). “(I)n my opinion, the only reason we're here [is] because the guilt is obvious. Your decision in A-44 this case is trying to decide whether he should die or go free. The guilt is obvious.” (Tr. 1647). Defense counsel objected to the second remark on the basis that “the case is being tried to first determine guilt or innocence.” (Tr. 1647). The trial court overruled the objection. (Iid.) Later, the prosecutor stated: But you have the option of saying not guilty. It will be the biggest mistake of your life, but you have that option. (Tr. 1665). The statements at issue made during the rebuttal closing argument are: “Come on. All these coincidences you can’t believe. It’s nonsense. If you don’t believe the state’s case here, you twelve people will never convict anybody.” (Tr. 1710). Defense counsel objected to this argument on the grounds that it was “totally improper to give that kind of threat to the jury.” (Tr. 1710). The trial court sustained the objection, and on defense counsel’s request struck the comment and instructed the jury to disregard it. (Jd.) The prosecutor also stated: “And, yet,' 1 stand here afraid, afraid that because Doris Black is so good and because you people may get confused .. . If you do, then a hit man goes free.” (Tr. 1713). Defense counsel objected to this argument on the grounds that it was a threat to the jury, contrary to the tnal court’s instructions, and was “just to elicit shock.” (Tr. 1713). The trial court overruled the objection. (Tr. 1714). Finally, the A-45 prosecutor stated: “But in order for you to let him go, you’ve got to believe that all this perjury was involved, that I was part of it--” (Fr. 1721). Defense counsel objected on the grounds that this argument was improper, as the jury did not have to believe that the prosecutor was part of a conspiracy to commit perjury in order to acquit the petitioner. (Tr. 1721). The trial court overruled the objection. (id.) Defense counsel then moved for a mistrial, which the trial court denied. (Tr. 1722). None of these six statements by the prosecutor were presented to the Missouri Supreme Court. As a result, Claims 2.B. and 2.C. are procedurally defaulted and the Court’s consideration of the claims is barred unless petitioner satisfies either the “cause and prejudice” or “fundamental miscarriage of justice” exceptions to procedural bar. Coleman, 501 U.S. at 750. Petitioner has made no showing of cause and prejudice, nor has he made any demonstration of a fundamental miscarriage of justice occurring from failure to consider his claims. Schlup, 513 U.S. at 314-15. Therefore, dismissal of Claims 2.B. and 2.C. is appropriate. Moreover, if the Court were to reach the merits of the claims, it would conclude plaintiff is not entitled to relief. In Darden, the Supreme Court examined several factors in determining whether prosecutorial misconduct at trial was so egregious that it required a new trial as a matter of constitutional law: (1) whether the prosecutor’s statement manipulated or misstated the evidence; (2) whether the remarks implicated specific rights of the accused such as the right to counsel or the right to remain silent; (3) whether the defense invited the response; (4) instructions given by the trial court; (5) the weight of the evidence against the defendant; and (6) the defendant’s opportunity to rebut. Darden, 477 U.S. at 181-82. ~ A-46 The prosecutor’s statements did not misstate the evidence or implicate specific rights of the petitioner. Some of the prosecutor’s statements were in response to defense counsel’s attacks on the State’s evidence. The trial court sustained some of defense counsel’s objections to the prosecutor’s statements, and instructed the jury that arguments of counsel were not evidence in the case. (Instruction No. 19, L.F. at 133.) There was significant evidence against petitioner, including the eyewitness testimony of several witnesses, albeit only with respect to his general build and clothing; testimony concerning petitioner’s apprehension while running barefoot in Pasadena Hills far from his home, but not far from where Daryl Shurn’s car was wrecked; testimony by Police Officer Gardiner that petitioner was the same person he saw run from Shurn’s wrecked car; uncontroverted testimony that petitioner’s car was parked in the Mansion Hills apartment parking lot; and testimony that petitioner’s keys were found in Daryl Shurn’s wrecked car after the accident. Assuming the prosecutor improperly injected his personal opinion into closing argument, petitioner has not shown that the improper argument rendered his trial fundamentally unfair. The Court cannot conclude that but for the prosecutor’s improper remarks, the outcome of the guilt phase would have been different, or that the prosecutor's statements in closing argument of the guilt phase “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181. b. Clai dohes In Claims 2.1., 2.J.,2.K. and 2.L., petitioner argues that the prosecutor violated his due process rights by arguing that defense counsel knowingly introduced perjured testimony and fabricated petitioner’s defense, and by improperly injecting the prosecutor’s personal belief that defense counsel was involved with obtaining perjured testimony: A-47 And now; of course, Mr. Weaver is here lying to you and telling you that he didn’t do it and wanting you to believe that and hoping through the assistance of Ms. Black -- who is just about as capable of a defense attorney as you’re going to find in these cases -- that enough confusion, enough smokescreens, enough whatever has been created to put in your mind some reasonable doubt as to his guilt. (Tr. 1645). But as the case unraveled, I’m sitting there listening to all this and I’ve got my back to you people, and | don’t know what impact the things elicited by Ms. Black may have had on you. I don’t know whether you think these little mole hills that Ms. Black talked about are now mountains in your mind or if they are still mole hills. I don’t know whether the smokescreen she’s creating is bothering you and creating an impression in your mind, creating confusion or, you know, you see it’s nothing more than a smokescreen and you’re waiting to get to the jury room to render a verdict of guilty. But at this point, you’ve heard all the evidence you’re going to hear. But that’s all you heard for four or five days was a harangue to try to create confusion out of nothing, to try to get a police officer to make one little mistake which then makes him a liar, one inconsistency, whatever, and they are liars; they are perjurers. Just create whatever smokescreen you have. So the last day or two, I’ve been concerned what impact this is having on the jury? A-48 Well, last night when I'm trying to decide exactly what I’m going to say to you and I cleared all the smoke away and all the harangue and all the noise, you're left with nothing more than the facts. (Tr. 1648-49). And by the way, I’m not even convinced the girl was having an affair with him. | think they found a young girl and she may be willing to come in here and be the hero this week. Ms. Black talked about her being so embarrassed, how difficult it was for her to testify. She came back the next day and sat in the first row and for three or four more days. She’s the star of the show. She is the heroin[e]}. (Tr. 1665). With respect to these statements, the Missouri Supreme Court observed that prosecutors’ comments to the effect that a defendant or a defense witness were lying have repeatedly been upheld, and a prosecutor may comment on the evidence and the credibility of the witnesses. The state court found the prosecutor’s remarks in this case to be well within the range of proper comment. The Missouri Supreme Court stated that direct arguments defense counsel has suborned perjury or fabricated evidence have been held to be prejudicial error, but concluded the prosecutor in this case did not go that far. The state court concluded the prosecutor’s arguments that defense counsel had erected a “smokescreen” fell short of accusing counsel of suborning perjury, and at most were “near error, which by definition, is not error.” Weaver, 912 S.W.2d at 513- 14. Prosecutors should refrain from personal attacks on defense counsel. United States v. O'Connell, 841 F.2d 1408, 1428 (8th Cir.), cert. denied, 488 U.S. 1011 (1988). A-49 Nonetheless, “Prosecutorial misconduct does not warrant federal habeas relief unless the misconduct infected the tna! with enough unfairness to render [petitioner’s] conviction a denial of due process.” Roberts v. Bowersox, 137 F.3d 1062, 1066 (8th Cir. 1988) (citing Darden, 477 U.S. at 181), cert. denied, 525 U.S. 1073 (1999). “Improper prosecutorial remarks violate due process when there is a reasonable probability the remarks affected the trial’s outcome.” Id. To decide the effect of a prosecutor’s remarks, a court examines the totality of the circumstances and the remarks within the context of the tnal. United States v. Young, 470 U.S. at 11-12. Comments similar to those made by the prosecutor in this case have been held not to warrant habeas relief or require a new tral. See, e.g. Roberts, 137 F.3d at 1066 (prosecutor’s argument which questioned defense counsel’s honesty several times and referred to the attorney’s failure to present certain evidence, even if improper, did not violate due process); United States v. Finch, 16 F.3d 228, 232 (8th Cir. 1994) (direct appeal; government’s argument that a witness was telling the truth and defense counsel was trying to mislead the jury were not impermissible). Based on the foregoing authority, and after examining the totality of the circumstances including the weight of the evidence against petitioner, the Court concludes petitioner has not established that the decision of the Missouri Supreme Court with respect to this issue 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. Linehan, 315 F.3d at 924. Moreover, the Court finds that the state supreme court’s decision did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Id. Therefore, petitioner’s § 2254 petition for habeas corpus relief should be denied with respect to Claims 2.1., 2.J., 2.K. and 2.L. 2. Penalty Phase. A-50 In Claims 2.D., 2.E., 2.F.,2.G.,2.H. and 2.M., petitioner objects to a number of statements by the prosecutor during the penalty phase closing argument and rebuttal argument as violating his due process mghts under the Fourteenth Amendment and his nghts under the Sixth and Eighth Amendments. Petitioner argues that the prosecutor’s remarks impermissibly injected his personal opinions and beliefs, threatened the jury, and appealed to the jurors’ fears and emotions. Petitioner also argues that the prosecutor improperly argued irrelevant and immaterial issues intended to inflame the jury, which were not based on the evidence. In the Eighth Circuit, there is a well-established analysis for determining whether a prosecutor’s improper closing argument during the penalty phase rises to the level of a due process violation. Miller v. Lockhart, 65 F.3d 676, 683 (8th Cir. 1995). A court should: (1) measure the type of prejudice that arose from the argument; (2) examine what defense counsel did in his argument to minimize the prejudice; (3) review jury instructions to see if the jury was properly instructed: and (4) determine if there is a reasonable probability that the outcome of the sentencing phase would have been different, taking into account all of the aggravating and mitigating circumstances. Antwine, 54 F.3d at 1363. As previously stated, the Eighth Circuit has observed “it would seem that there should be a more searching review of the penalty phase as the Eighth Amendment is implicated.” Copeland, 232 F.3d at 974 n.2. The Eighth Circuit has vacated a death sentence based on improper closing argument during the penalty phase in four recent cases. See Copeland, 232 F.3d 969; Shum, 177 F.3d 662 ; Antwine, 54 A-51 F.3d 1357; and Newlon, 885 F.2d 1328.° a. Claim 2.D. The challenged statements in Claim 2.D. began with the following: Well if this isn’t it, what would it be? If this isn’t a case where you can impose a death penalty, where people would go out to Mr. Taylor’s house to kill him because he’s a witness, then what case would you ever return it in? So if you were being honest to [sic] me when you said that, then that has to be the case. (Tr. 1761). Defense counsel objected to the argument as improper, arguing that the prosecutor’s statement was threatening to the jury and was intended to impose fear and intimidation on the jury in order to get it to return a verdict of death. Defense counsel asked the trial court to sustain her objection and instruct the jury *This Court notes that the prosecutor in the instant case, George “Buzz” Westfall, was also the prosecutor in the Shum and Newlon cases. Mr. Westfall testified at the Rule 29.15 motion hearing that he tried three death penalty cases while he was the prosecuting attorney: Newlon, Shurn, and Weaver. Resp. Ex. D, Tr. on Appeal, Vol. 1, p. 115. The Eighth Circuit’s decision in Newlon, which granted habeas corpus relief partly because Mr. Westfall’s closing argument was found to violate due process, was issued approximately five weeks prior to the trial of the Weaver case. Mr. Westfall testified at the Rule 29.15 motion hearing that he was aware prior to the trial that Newlon had vacated Newlon’s sentence of death in part because of his remarks in closing argument. Resp. Ex. D, pp. 154-55. A-S2 to disregard the statement, but the trial court refused. (Tr. 1762). The prosecutor continued: If this isn’t a case that calls for the death penalty, | can’t imagine one that would. And, yet, you people all told me in a given case you could do it. Some of you even said you would prefer it, that you would favor it in the right case. This is the right case. (Tr. 1762). Subsequently, the prosecutor stated: ] mean if this isn’t the case for the death penalty, then there’s no case you'll do it. (Tr. 1765). With respect to these statements, the Missouri Supreme Court observed that a prosecutor’s argument may make reasonable inferences from the evidence, even if the inferences do not necessarily seem warranted. Weaver, 912 S.W.2d at 512. The state court said a prosecuting attorney in argument may indicate his opinion that the accused is guilty, where it is apparent the opinion is based on the evidence in the case. Id. The state supreme court stated the prosecutor’s statements in this case “may seem flamboyant, if not somewhat abrasive,” but given the eyewitness testimony about how the murder was carried out, the court concluded it was fair for the prosecutor to - point out the strength of the state’s case. The court concluded that the prosecutor’s use of rhetorical questions was, “for the most part, a fair comment on the strength of the case.” Weaver, 912 S.W.2d at 513. “An attorney’s personal opinions are irrelevant to the . . . Jury’s task.” Newlon v. Armontrout, 693 F. Supp. 799, 804 (W.D. Mo. 1988) (quoting Brooks v. Kemp, 762 F.2d 1383, 1408 (1 1th Cir. 1985) (en banc)), aff'd, 885 F.2d 1328 (8th Cir. 1989), cert. denied, 497 U.S. 1038 (1990). Here, the prosecutor A-53 repeatedly offered his opinion that the death penalty was the only appropriate penalty, and that if the jurors had been honest with him in responding to voir dire questioning, the jury must return a verdict of death. This line of argument was improper because it was intended to intimidate the jury into returning a verdict of death. “Because the jury is empowered to exercise its discretion in determining punishment, it is wrong for the prosecutor to undermine that discretion by implying that he, or another high authority, has already made the careful decision required. This kind of abuse plays upon the jury’s susceptibility to credit the prosecutor’s viewpoint.” Brooks, 762 F.2d at 1410. “The prosecutorial mantle of authority can intensify the effect on the jury of any misconduct.” Brooks, 762 F.2d at 1399. As a result, a prosecutor’s misconduct may be grounds for reversal in part because of a “systemic belief that a prosecutor, while an advocate, is also a public servant ‘whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.’” Id. (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). In Berger, the United States Supreme Court stated it is as much a prosecutor’s “duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” 295 U.S. at 88. The Supreme Court discussed the tendency for the prosecutor to have an excessive influence on the jury: It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attomey, will be faithfully observed. Consequently, improper suggestions, insinuations, and especially, assertions of personal knowledge, are apt to carry much weight against the accused when they should properly carry none. A-54 Berger, 295 U.S. at 88. A review ofthe record shows that defense counsel chose to focus her penalty phase argument on the possibility that the jury had made an error in its guilt phase verdict; that if it were later determined an error had been made, it could be corrected if petitioner were in prison, but not if he had been executed; that the jurors could certainly consider the penalty of life in prison, even for this type of killing; that the jury should choose life because they might be mistaken, because of the mitigating circumstances that existed, including petitioner’s children and ill mother, because of petitioner’s conduct during incarceration, and because of the good things petitioner’s friends had said about him; and that life in prison would be a terrible punishment, “like a living death,” so that the jury would have “sent [its] message” and “done [its] job.” Tr. on Appeal, Vol V., pp. 1769-76. Thus, defense counsel chose not to devote her argument to rebutting or challenging the prosecutor’s statements to which she had earlier objected. According, defense counsel’s argument did not serve to minimize any prejudice that arose from the prosecutor’s statements. As previously stated, the trial court instructed the jury that statements of counsel are not evidence, and that they should be guided by the evidence. Considering all of the evidence and the record as a whole, the Court cannot conclude that these improper prosecutorial remarks alone affected the trial’s outcome, or “infected the trial with enough unfairness to render [petitioner's] conviction a denial of due process.” Roberts, 137 F.3d at 1066 (citing Darden, 477 U.S. at 181). Thus, the Court concludes petitioner has not established that the decision of the Missouri Supreme Court with respect to this issue 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. Linehan, 315 F.3d at 924. ! A-55 b. Claims 2.G. and 2.H. In Claims 2.G. and 2.H., petitioner challenges the following statements of the prosecutor as improperly arguing irrelevant and immaterial issues: William Weaver ran out of bullets. Think back to the evidence. I’m sure you discussed it yesterday. But when you discuss his fate, think about the evidence. He ran out of bullets and Charles Taylor was still alive. So when they go back, he’s reloading. All six spent casings are on the floorboard right where he was and he’s reloading while Daryl is driving and they stop and he goes back and shoots him some more. Then I’m going to tell you that he was out of bullets, because if he hadn’t been, Officer Crain would have been dead because he would have kept the gun on him instead of pitching it out of the car. (Tr. 1762-63). Defense counsel objected to this argument as irrelevant and prejudicial on the grounds that there was no evidence petitioner had threatened Officer Crain or that he had a gun when he saw Officer Crain. (Tr. 1763). The trial court overruled the objection and the prosecutor continued: If he had still had the gun and still had bullets, do you think he would have sure surrendered as meek as a lamb? I mean, of course, he wouldn’t have surrendered. What if Jean Henson would have been jogging a little bit later than she was and coming around the woods or the clearing at the time of the murder and he still had some bullets. You think she would be alive? (Tr. 1763). A-56 Defense counsel objected to this argument as improper on the grounds that it was intended to invoke sympathy and outrage from the jury, and that there was no evidence the person who killed Taylor ever tried to kill Jean Henson. The trial court overruled the objection. (Tr. | 763). The Missouri Supreme Court concluded the prosecutor’s argument that petitioner would have shot more people if he had not run out of bullets was reasonable as the evidence presented permitted an inference that petitioner “had a high propensity for violent conduct in the future.” Weaver, 912 S.W.2d at 514. This Court concludes these arguments are not a reasonable inference based on the evidence presented in the record. An argument that more people could have been killed could be made in any case where cnminal violence has resulted in death. The arguments were intended to play on the jurors’ emotions and inflame them. “When the sovereign takes the life of one of its citizens, it is vital that ‘any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.’” Newlon, 693 F. Supp. at 806 (quoting Gardner v. Florida, 430 U.S. 349, 358 (1977)). Nonetheless, considering all of the evidence and the record as a whole, the Court cannot conclude that these improper remarks alone affected the tnal’s outcome, or “infected the trial with enough unfairness to render [ petitioner’s] conviction a denial of due process.” Roberts, 137 F.3d at 1066 (citing Darden, 477 U.S. at 181). Thus, the Court concludes petitioner has not established that the decision of the Missouri Supreme Court with respect to this issue was contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States. Linehan, 315 F.3d at 924. c. Claims 2.E. and 2.F. In Claims 2.E. and 2.F., petitioner argues that the A-57 prosecutor’s statements impermissibly injected his personal beliefs and objections, threatened the jury, and appealed to jurors’ fears and emotions: So, yeah, is there a possibility he’s innocent? A possibility. I’m not going to deny that, but that’s not what’s required by the law and that’s not what we could live by. If that’s required, nobody would ever be sentenced to die. We wouldn’t have a death penalty. And, quite frankly, if you don’t sentence him to die in this case, there’s no point in having a death penalty. (Tr. 1778). Defense counsel objected to this argument as improper and as a misstatement of the law. The trial court sustained the objection and granted defense counsel’s request to instruct the jury to disregard the statement. (Tr. 1778). Later, the prosecutor stated: Then I'll say what I said earlier. If these facts don’t justify, don’t cry out for the death penalty, then which facts do? If a cold-blooded hit on behalf of drug scum isn’t enough for the death penalty, then what facts justify it? I know there’s a movie, Patton, and in the movie, George Patton was talking to his troops because the next day they were going to go out in battle and they were scared as young soldiers. And he’s explaining to them that I know that some of you are going to get killed and some of you are going to do some killing tomorrow morning. And they all knew that. And he was going to try to encourage them that sometimes you've got to kill and sometimes you've got to msk death because it’s mght. He said: But A-58 tomorrow when you reach over and put your hand in a pile of goo that a moment before was your best friend’s face, you'll know what to do. (Tr. 1782-83). Defense counsel objected that the prosecutor’s argument was improper and was intended to inflame and prejudice the jury. The trial court overruled the objection. (Tr. 1782-83). Both of these arguments were presented to the Missouri Supreme Court, but that court did not discuss them specifically. The state court distinguished the prosecutor’s remarks in this case from more egregious remarks in other cases which did render the trial fundamentally unfair, such as a prosecutor’s comment that he would not bring a charge if the defendant were innocent, State v. Evans, 820 S.W.2d 545, 547 (Mo. App. E.D. 1991), or a prosecutor’s comment that a murder was so brutal, it was worse than all other murders in the county, State v. Storey, 901 S.W.2d 886 (Mo. 1995) (en banc). The Missouri Supreme Court also distinguished this case from Newlon v. Armontrout, 885 F.2d 1328, on the basis that the prosecutor there expressed his personal belief in the propriety of the death penalty, emphasized his position of authority in the county as prosecutor, attempted to associate the defendant with several well-known mass murderers, appealed to the jurors’ persona! fears and emotions, and asked the jurors to “kill” the defendant. Weaver, 912 S.W.2d at 513. The court decided that although the Eighth Circuit had concluded the totality of the circumstances rendered the penalty phase in Newlon fundamentally unfair, the arguments in this case did not nse to that level. Id: The prosecutor’s statement that if the jury did not return a sentence of death there was no point in having the death penalty, was improper for the same reasons discussed above with respect to the similar statements made during the initial penalty phase arguments. This constituted a statement of the A-59 prosecutor’s expression of personal belief in the propriety of the death sentence for petitioner, and sought to intimidate the jury into returning a verdict of death. The effect of the trial court’s instruction to the jury to disregard the statement is difficult to ascertain from the record, particularly as the court did not sustain defense counsel’s objection to similar statements made by the prosecutor earlier. The second statement equates the jury’s task of reaching a penalty verdict with the duties of soldiers during war, and urges them to gather the courage necessary to do their duty of sentencing the petitioner to death. Aspects of this statement, which was not addressed by the Missouri Supreme Court, are clearly improper as seeking to appeal to the jurors’ passions and prejudices. The statement was “calculated to remove reason and responsibility from the sentencing process.” Newlon, 885 *The Court includes the following quotation from the record solely to show that the prosecutor’s intent in making this argument was to inflame the jurors’ passions and disengage their sense of rational, reasoned deliberation. This quotation was not included in the record before the Missouri Supreme Court, and does not figure into this Court's decision. After the trial court overruled counsel’s objection to the prosecutor's argument concerning Patton, the prosecutor continued and concluded his rebuttal argument as follows: He said, ““You’ll know what to do.” Well, last July, Charles Taylor’s face was a pile of goo and his brains were hanging out. You know what to do. Yesterday, you made the decision with your brain and you made the nght decision. Today, you’ve got to reach down into your belly, because that’s where the death penalty comes from; it comes from your belly. You've got to reach down there and say, William Weaver, we A-60 F.2d at 1338 (quoting Newlon. 693 F. Supp. at 808). The Constitution requires juries to impose the death penalty in a rational, deliberate manner. Shurn, 177 F.3d at 668 (Wollman, J., concurring). The prosecutor’s statement analogizing imposition of the death penalty to killing in-war was permissible to the extent it “implied that imposing death, while difficult, is at times sanctioned by the state because of compelling reasons (national secunty or deterring crime).” Brooks, 762 F.2d at 1412. The prosecutor’s statement was improper in that the role of a capital sentencing jury under Missouri law cannot be analogized to the role of a soldier ordered to kill the enemy, as the jury is bound to exercise broad discretion and independent judgment and reason in reaching its verdict. See id.; Newlon, 693 F. Supp. at 806. “The main thrust of death penalty jurisprudence since Furman v. Georgia, 408 U.S. 238 (1972), has been the need for guided discretion in the sentencing body’s individualized consideration of the capital defendant. See, e.g., Zant v. Stephens, [462 U.S.862, 879 (1983)]. Conceiving of jurors as soldiers undermines the crucial discretionary element required by the Eighth Amendment.” Brooks, 762 F.2d at 1413. The Court having carefully considered the record as a whole concludes that this argument, permitted by the trial court over defense counsel’s objection, “infected the trial with enough unfairness to render [petitioner’s] conviction a denial of due process.” Roberts, 137 F.3d at 1066 (citing Darden, 477 U.S. at 181). Although the statement occurred during final rebuttal, “a single misstep on the part of the prosecutor may be so destructive of the nght to a fair trial that reversal is sentence you to die. You know what to do. Please, have the courage to do it. Thank you. Tr. on Appeal, Vol. V., p. 1783. A-61 mandated.” United States v. Cannon, 88 F.3d 1495, 1503 (8th Cir. 1996) (internal punctuation and citation omitted). The jury in this case was subjected to a “relentless, focused, uncorrected argument . . . calculated to remove reason and responsibility from the sentencing process.” Newlon, 885 F.2d at 1338 (quoting Newlon, 693 F. Supp. at 808). Thus, the Court concludes plaintiff has established that the decision of the Missouri Supreme Court with respect to this issue resulted in a decision that involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States. Linehan, 315 F.3d at 924. This aspect of the prosecutor’s closing argument so clearly violated petitioner’s due process rights by removing reason and responsibility from the sentencing process and inflaming passion and prejudice that it was unreasonable for the Missouri Supreme Court to conclude there was no error.’ d. Claim 2.M. Petitioner objects to the prosecutor’s arguments during the penalty phase (1) that the death sentence was appropriate due to petitioner’s connection to the Shurn family and their drug operation (Tr. 1760, 1776, 1777), on the basis there was no evidence petitioner had knowledge of the Shurn family’s drug trade; (2) that the death penalty is a deterrent (Tr.1778-79), as being without factual basis; and (3) concerning the “war on drugs” (Tr. 1759, 1768, 1776-77, 1779, 1781), as being intended to appeal to the jury’s passions and inflame them. ’The Court notes the Missouri Supreme Court did not find that Mr. Westfal]’s closing arguments violated due process principles in either Newlon or Shum, although the Eighth Circuit Court of Appeals did. See State v. Newlon, 627 S.W.2d 606 (Mo. 1982) (en banc); State v. Shum, 866 S.W.2d 447 (Mo. 1993) (en banc). A-62 The Court will not consider petitioner’s point in Claim 2.M. concerning the prosecutor’s argument linking him to the Shurn family and its drug trade, because this point was not raised before the Missouri Supreme Court, and as a result is procedurally defaulted. See LaRette, 44 F.3d 681. With respect to the death-penalty-as-deterrent argument, the prosecutor stated dumng rebuttal penalty phase closing argument: We can’t bring Charles Taylor back to life, but we can save other lives. The death penalty deters. I’m convinced of that. People can argue for a thousand years whether it does or not, but I’m convinced it does. It doesn’t deter passion killings. It doesn’t deter crazed people who kill. But it deters business killings like this. If some of those people really though they faced the prospect of a death penalty, some of them wouldn’t do it. How do I ever prove to you with statistics how many lives were saved? | mean the old analogy is a lighthouse. I don’t know how many shipwrecks a lighthouse prevents because we don’t have statistics on those that don’t occur. If it doesn’t occur, it doesn’t go down on paper. Yet, many shipwrecks are avoided because of a lighthouse. If a death penalty can save a life, we don’t know because the murder won't occur. We don’t have statistics of the innocent victims that might be saved instead of being killed at the hands of a convicted murderer. (Tr. 1778-79). The Missoun Supreme Court found this argument to be reasonable, based on the fact that the crime had been planned for the purpose of killing a witness, and to advance “what was A-63 apparently a very violent drug enterprise[.]” Weaver, 912 S.W.2d at 514. The court concluded this evidence permitted an infererice that petitioner had a high propensity for violent conduct in the future. Id. The Supreme Court has recognized the inconclusive nature of scholarly debate on the deterrent effect of the death penalty, and has stated that while capital punishment has “little or no deterrent effect” on some murderers, it “undoubtedly” is a significant deterrent for others. Gregg v. Georgia, 428 U.S. 153, 185-86 (1976). Therefore, the prosecutor’s argument urging the jury to consider the deterrent effect of the death penalty was not improper, and it was not necessary that the prosecutor provide evidence to establish a link between the death penalty and deterrence. See Brooks, 762 F.2d at 1409. The Court concludes petitioner has not established that the decision of the Missouri Supreme Court with respect to this issue 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. Linehan, 315 F.3d at 924. With respect to the “war on drugs” arguments, the prosecutor stated during the initial penalty phase closing argument: It strikes mght at the heart of our system. You've got to look beyond William Weaver. This isn’t personal. This is business. You people represent the entire community. You represent society. You have to tell the Williams Weavers and the Daryl Shurns of the world, and you have to be willing to look them nght in the eye when you do it, that there’s a point at which we won’t allow you to go. And when you do, prison’s too good. It’s the death penalty. A-64 Sometimes killing is not only fair and justified; it’s mght. Sometimes it’s your duty. There are times when you have to kill in this life and it’s the night thing to do. If Charles Taylor had been able to get his gun out that day, would you have said it was right for him to kill Weaver and Shurn? Of course, you would. It would have been self-defense. Well, it was right to kill then and it’s nght to kill him now. (Tr. 1759) (Emphasis added). The prosecutor later stated: This case — I guess it’s one that just cries out to you to say protect the community. The drug dealers, they are taking our streets away from us. Are we going to take them back? Are we going to let them have the streets or are we going to fight back? If the drug peddlers are going to run our community, then all is lost. Then there’s no point in having jurors. The death penalty applies in some cases. It applies in this case. When it comes time after Ms. Black talks to you, I'll talk to you again briefly, and then you’ve got to go to the jury room and you've just got to toughen up and do what’s nght, even though it’s going to be tough. You’ve got to say this is bigger than William Weaver. It’s not personal; it’s business. (Tr. 1768). During rebuttal penalty phase argument, the prosecutor stated: And I’m going to beg you for the entire community and for society not to spare his life. I'm going to beg you for the mght message A-65 instead of the wrong message. The right message is life? For an execution? That’s the right message? That’s the message you want to send to the drug dealers, the dope peddlers and the hit men they hire to do their dirty deeds: Life in prison is what you get when we catch you and convict you. Life in prison? That’s the message you want to send to the scum of the world? That when we catch you and we’re convinced you’ re guilty, we’re going to give you life in prison? That’s not the mght message. (Tr. 1776). The message has to be death for these types of people. That’s the only message they are going to understand. The one thing you’ ve got to get into your head, this is far more important then William Weaver. This case goes far beyond William Weaver. This touches all the dope peddlers and murderers in the world. That’s the message you have to send. It just doesn’t pertain to William Weaver. It pertains to all of us, the community. They are our streets, our neighborhoods, our family. The message is death, not life. And you’ve just got to geer [sic] yourself to that. (Tr. 1777). You’ve got to think beyond William Weaver. As I told you earlier, this is our worst nightmare. This is society’s worst nightmare. If they could kill witnesses and we don’t execute them in A-66 exchange, then there’s no deterrence. Then the whole system fails and then chaos reigns and Our streets are never safe. The dope peddlers reign and people like William Weaver do. (Tr. 1779). *_e* © @ @ It’s bigger than William Weaver. And you’ve got to have the guts to do it. I'm the Prosecuting Attorney in this county, the top law enforcement officer in the county. | decide in which cases we ask for the death penalty and in which cases we don’t. (Tr. 1781-82). Defense counsel objected to the last argument as improper because it was personalizing the case. The trial court sustained the objection and granted defense counsel's request to instruct the jury to disregard the last comment. (Tr. 1782). The Missouri Supreme Court concluded that while the remarks concerning the prosecutor’s position as prosecuting attomney of the county were improper, defense counsel’s objections were properly sustained, and the curative instruction given to the jury to disregard the remarks was sufficient to avoid depriving the defendant of a fair tnal. Although the “war on drugs” argument was presented to the Missouri Supreme Court, that court did not specifically address the issue. The court stated, “Lastly, Weaver puts forth a collection of allegedly improper arguments made by the state during the punishment phase,” Weaver, 912 S.W.2d at 514, and discussed several points, but did not devote any discussion to the “war on drugs” point. The Court will address the merits of this claim. See Coleman, 501 U.S. at 732-35 (in the absence of a clear and express statement declaring otherwise, an ambiguous state court decision is presumed to be made on the basis of the court’s belief that federal law required such decision, thus permitting A-67 the federal habeas court to address the petition). It is clear that a prosecutor may ask jurors to act as the “conscience of the community” as long as the comments are not intended to inflame the passions of the jury. United States v. Koon, 34 F.3d 1416, 1444 (9th Cir. 1994), aff'd in part and rev'd in part, 518 U.S. 81 (1996); United States v. Sanchez- Sotelo, 8 F.3d 202, 211 (Sth Cir. 1993), cert. denied, 511 U.S. 1023 (1994); United States v. Johnson, 968 F.2d 768, 770 (8th Cir. 1992). Prosecutors in drug cases “may stress to the jury the seriousness of drug charges and comment on the gravity of this county’s drug problem.” United States v. Dominguez, 835 F.2d 694, 700 (7th Cir. 1987), cert. denied, 485 U.S. 965 (1988). Prosecutors may not, however, argue that a jury should convict to make a statement against crime in general or to deter future crime as a matter separate and apart from the issue of the defendant’s guilt. This kind of argument is improper because [t]he amelioration of society’s woes is far too heavy a burden for the individual criminal defendant to bear.” United States v. Monaghan, 741 F.2d 1434, 1441 (D.C. Cir. 1984), cert. denied, 470 U.S. 1085 (1985). Explicit references to the jury “making a statement” are patently inappropriate because they invite the jury to satisfy its passions by looking beyond the evidence before it in rendering a verdict. See, e.g., Arrieta-Agressot v. United States, 3 F.3d 525, 527 (lst Cir. 1993) (vacating conviction where the prosecutor throughout closing argument “urged the jury to view this case as a battle in the war against drugs, and the defendants as enemy soldiers”); Johnson, 968 F.2d at 771 (Eighth Circuit held improper the prosecutor's exhorting jury in drug case to act as a “bulwark against . putting this poison on the streets”); United States v. Solivan, 937 F.2d 1146, 1148 (6th Cir. 1991) (holding improper the prosecutor’s comment, “And I’m asking you to tell her and all of the other drug dealers like her that we don’t want that stuff in Northern Kentucky .. .”). In this case, the prosecutor’s comments clearly and A-68 repeatedly crossed the line of propriety and were unduly inflammatory and improper. The prosecutor stated on numerous occasions that the jury should look beyond the petiticr, and told them, “This isn’t personal. This 1s business.’ The gist of the prosecutor's argument is captured in the following quotation: [T)his is far more important then William Weaver. This case goes far beyond William Weaver. This touches all the dope peddlers and murderers in the world. That’s the message you have to send. It just doesn’t pertain to William Weaver. It pertains to all of us, the community. Tr. on Appeal, Vol. V., p. 1777. This type of argument is highly improper because it seeks death for petitioner in order to send a message to the broad society of drug dealers and murderers not only in St. Louis, but the entire world. Petitioner thus bears the burden of all drug dealers and murderers. This undermines the crucial requirement that sentencing considerations be individualized by introducing the improper suggestion that petitioner be killed merely to send a message to others. See Brooks, 762 F.2d at 1413. In addition, interspersed with the prosecutor’s “send a message” arguments were two other highly improper arguments. First, the prosecutor told the jury “it’s right to kill him now.” (Tr. 1759) The Eighth Circuit found a similar statement to be prejudicial and improper in both Newlon, 885 F.2d at 1335, and Shurn, 177 F.3d at 667. Judge Wollman, concurring in the Shurn opinion, stated: To me, the statements “[K]ill him now. Kill him now,” and “Kill Daryl Shurn” are an appeal to blood lust and mob justice rather than a cal! A-69 for the jury to return a sentence of death after calm, reasoned deliberation. This stndent appeal to primitive emotion could not have done other than to touch the raw nerve of vengeance that lies within us all. The resulting diminution of the jury's sense of responsibility under mined the Eighth Amendment’s heightened need for the responsible and reliable exercise of sentencing discretion in capital cases. Shurn, 177 F.3d at 668. As the Supreme Court has instructed, the constitution requires that “any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner vy. Florida, 430 U.S. at 358. Second, the prosecutor emphasized his position of authority by stating that he was the “prosecuting attorney in this county, the top law enforcement officer in the county. | decide in which cases we ask for the death penalty and in which cases we don’t.” Tr. on Appeal, Vol. V., pp. 1781-82. It 1s improper for a prosecutor to tell a jury that an authoritative source has deemed the death penalty appropriate in a particular case, because this creates a danger the jury will defer to an expert's legal judgment in its choice of penalty. See Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985), cert. denied, 478 U.S. 1020 (1986); see also Brooks, 762 F.2d at 1410 (“Because the jury is empowered to exercise its discretion in determining punishment, it is wrong for the prosecutor to undermine that discretion by implying that he, or another high authority, has already made the careful decision required. This kind of abuse plays upon the jury’s susceptibility to credit the prosecutor’s viewpoint.”’) The Court having carefully considered the record as a whole, concludes that the “war on drugs” arguments “infected the trial with enough unfairness to render [petitioner’s] conviction a denial of due process.” Roberts, 137 F.3d at 1066 A-70 (citing Darden, 477 U.S. at 181). The jury in this case was subjected to a “relentless, focused, uncorrected argument .. . calculated to remove reason and responsibility from the sentencing process.” Newlon, 885 F.2d at 1338 (quoting Newlon, 693 F. Supp. at 808). Thus, the Court concludes plaintiff has established that the decision of the Missouri Supreme Court, which implicitly found the “war on drugs” argument constitutionally permissible, involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. Linehan, 315 F.3d at 924. This aspect of the prosecutor’s closing argument clearly violated petitioner’s due process rights by removing reason and responsibility from the sentencing process, inflaming passion and prejudice, and drawing the jury’s attention away from the individualized decision it was required to make with respect to petitioner. As a result, it was unreasonable for the Missouri Supreme Court to conclude there was no constitutional error. 3. Totality of the Circumstances. in order to decide the effect of the prosecutor’s improper remarks, the Court now examines the totality of the ~ circumstances and the remarks within the context of the entire penalty phase. See United States v. Young, 470 U.S. at 11-12. During the penalty phase, the prosecutor argued his personal opinions, improperly urged the jury to disregard the individual. circumstances of the petitioner and instead to send a message to all drug dealers and murderers everywhere, repeatedly appealed to the jurors’ fears and emotions, told them to kill petitioner, emphasized his position of authority, analogized the role of the capital sentencing jury to that of soldiers carrying out duties in wartime, and argued irrelevant and immaterial issues in an attempt to inflame the jury’s passions and prejudices. The arguments in this case bear many similanties to the arguments in Newlon and Shur, which the Eighth Circuit found to violate A-71 the due process rights of the petitioners in those cases. The majority of defense counsel's objections to the improper arguments were overruled. The prosecutor’s remarks during the rebuttal penalty phase argument were not invited by defense counsel, and counsel had no opportunity to respond to these arguments except by objection. The prosecutor’s improper remarks were so many and so permeated the penalty phase arguments that “(t]he improper argument would have had a significant prejudicial effect on the jurors[,]” Copeland, 232 F.3d at 975, even though the jury was instructed that arguments of counsel are not evidence. The prosecutor’s remarks were not isolated, but rather “formed the crux of the prosecutor’s argument for imposing the death penalty.” Copeland, 232 F.3d at 975. The evidence against petitioner in this case was strong but not overwhelming, as defense counsel did a creditable job of calling into question the eyewitnesses’ descriptions of the shooter, in particular focusing on the discrepancy between the color of the shooter’s clothing and the color of petitioner’s clothing. Several mitigating circumstances were submitted for the jury’s consideration. The jury agreed on punishment after five hours of deliberation, but did so only after being subjected to a “relentless, focused, uncorrected argument . . . calculated to remove reason and responsibility from the sentencing process.” Newlon, 885 F.2d at 1338. Applying the appropriate standard of review to the instant case, the Court concludes that the prosecutor’s penalty phase closing argument so infected the trial with unfairness as to make the resulting sentence of death a denial of due process. it was unreasonable for the Missouri Supreme Court to conclude, in light of Supreme Court precedent, that the argument did not result in a deprivation of due process. Copeland, 232 F.3d at 975. For the foregoing reasons, the Court concludes petitioner has established that the decision of the Missoun Supreme Court with respect to the totality of the penalty phase closing argument involved an unreasonable A-72 application of clearly established federal law as determined by the Supreme Court of the United States. Linehan, 315 F.3d at 924. Therefore, petitioner's § 2254 petition for habeas corpus relief should be granted with respect to the foregoing aspects of Claim Two concerning the penalty phase. B. Claim Three - Prosecuting Attorney’s Investigator Posing as Juror. Petitioner argues that his conviction occurred in violation of his Sixth, Eighth and Fourteenth Amendment nights as_a result of an investigator for the prosecuting attorney’s office posing as a juror and mingling with the jurors for several days. Petitioner states that during jury selection, the investigator wore a juror badge and provided “security” because he believed that individuals coming into the courtroom might be concealing guns. The investigator’s concern was conveyed to the prosecuting attorney. The trial court was then advised, and announced in open court that anyone returning to the courtroom would be searched. Petitioner asserts that the mere fact an investigator for the prosecuting attorney's office placed himself in a position which allowed him to mingle with jurors on a death penalty case for several days is misconduct which requires reversal due to structural error. Petitioner asserts that one juror who served on the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0292%3A03. Public record. Not legal advice.