                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                 Nos. 03-2880/2938
                                   ___________

William Weaver,                      *
                                     *
           Appellee/Cross-Appellant, *
                                     * Appeals from the United States
     v.                              * District Court for the
                                     * Eastern District of Missouri.
Michael Bowersox,                    *
                                     *
           Appellant/Cross-Appellee. *
                               ___________

                              Submitted: September 13, 2004
                                 Filed: February 16, 2006 (Corrected 2/23/06)
                                  ___________

Before BYE, BOWMAN, and MELLOY, Circuit Judges.
                          ___________

MELLOY, Circuit Judge.

      The State of Missouri appeals the grant of habeas relief to William Weaver.
The district court1 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.



      1
        The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
                                            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 trial 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? If a cold-blooded hit on
      behalf of drug scum isn't enough for the death penalty, then what facts
      justify it?




                                           -2-
      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 risk death because it's right. 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 right
      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.

      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?



                                          -3-
Of course, you would. It would have been self-defense. Well, it was
right to kill then and it's right to kill him now.

       ....

This case – I 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.

       ....

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 right message 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 right 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


                                     -4-
      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.

             ....

      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 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 Prosecuting Attorney in this county, the top law enforcement
      officer in the county. I 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 during


                                          -5-
jury selection. The State of Missouri appealed. This court reversed and remanded
with instructions to address the remaining twenty-one issues raised in Weaver's
petition. Weaver v. Bowersox, 241 F.3d 1024, 1032 (8th 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 trial. 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.

                                          II.

       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. As
a 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) ("[F]ederal 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 miscarriage of justice arising from the failure to consider
the claims. In an abundance of caution, the district court addressed the merits of the
claims and determined the statements did not "so infect[] the trial with unfairness as

                                          -6-
to make the resulting conviction a denial of due process." Darden v. Wainwright, 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 (8th 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.

                                         III.

       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 sufficent 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 IV.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: “Other Improper Arguments.” The
Court stated in that section:




                                         -7-
        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 (8th 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 (8th 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 apply the AEDPA] standard.” Id. at 869.

        The Seventh Circuit ruled in Muth v. Frank, 412 F.3d 808, 815 (7th 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)

                                            -8-
       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
Missouri 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 Sections 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 [is] 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).

      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 (8th Cir. 2000) (noting that “it is apparent that there are Supreme Court
decisions on penalty phase closing arguments” and “[t]here are also Supreme Court
decisions on guilt phase closing arguments that are relevant”).

       A 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:

                                        -9-
      (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 (8th Cir. 1995) (citing Newlon v. Armontrout,
885 F.2d 1328, 1337 n.10 (8th 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 (8th 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; Shurn v. Delo, 177 F.3d 662 (8th Cir. 1999).

       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


                                          -10-
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 Zant 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 v. Mississippi, 472
U.S. 320, 86 L.Ed.2d 231, 105 S.Ct. 2633 (1985)." Antwine, 54 F.3d at 1361.

        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, 684-85 (8th 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.,
concurring).

      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

                                          -11-
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, 274-75
(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 is cruel and unusual under the Eighth Amendment if it is imposed without
an individualized determination that that punishment is '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 (8th 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 (8th 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 applies 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 risked

                                         -12-
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 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.

                                         V.

      For the foregoing reasons, we affirm the judgment of the district court.



BYE, Circuit Judge, concurring in the result.

       I agree Weaver's claims warrant habeas relief even if AEDPA's strict standard
of review applies. I write separately because I do not believe AEDPA applies.

       When a claim raised in state court proceedings is ignored by the state courts
"we apply a pre-AEDPA standard of review." Clemons v. Luebbers, 381 F.3d 744,
756 n.8 (8th Cir. 2004) (citing Taylor v. Bowersox, 329 F.3d 963, 967-68 (8th 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.


                                        -13-
McBride, 395 F.3d 376, 382 (7th 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 (6th 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 claims Weaver 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;2 4) the prosecutor's opinion there were crimes other than first degree
murder for which a sentence of life without parole would be appropriate; 5) the

      2
       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 forth the specifics of this argument for the purpose of showing Weaver's
"deterrent" claim was distinct from his "war-on-drugs" claim in state court.

                                         -14-
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 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 trial 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 considered and rejected by that court."
Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir. 2004). While I acknowledge the
"summary nature of a state court's decision does not affect the applicable standard of


                                         -15-
review," Closs v. Weber, 238 F.3d 1018, 1020 (8th Cir. 2001) (citing James v.
Bowersox, 187 F.3d 866, 869 (8th 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 final 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 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. I have no trouble concluding
such to be the case when reviewing the district court's decision de novo or when

                                           -16-
applying the more demanding standard of review under AEDPA. I 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 I do not
think that the Court correctly applies that standard to Weaver's claims of prosecutorial
misconduct, I 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.
I 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 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
trial 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

                                          -17-
its discretion, ante at 11 (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, I cannot agree that the Missouri 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, I 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. Shurn v. Delo, 177 F.3d 662, 665–67 (8th Cir.), cert. denied, 528 U.S. 1010
(1999); see also Newlon v. Armontrout, 885 F.2d 1328 (8th Cir. 1989) (affirming pre-
AEDPA grant of the writ on 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. Esparza, 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



                                          -18-
violation in this case (the Court cites no apposite Supreme Court cases), I 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.
                          ______________________________




                                         -19-
