                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                Nos. 02-3201/3239
                                  ___________

Reginald Clemons,                     *
                                      *
            Appellee/Cross-Appellant, * Appeal from the United States
                                      * District Court for the Eastern
      v.                              * District of Missouri.
                                      *
Allen Luebbers, Superintendent,       *
Potosi Correctional Center,           *
                                      *
            Appellant/Cross-Appellee. *
                                ___________

                             Submitted: December 15, 2003
                                 Filed: September 9, 2004
                             Amended: December 14, 2004
                                 ___________

Before MELLOY, BEAM, and COLLOTON, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

       This is an appeal stemming from an unfortunate series of events culminating
in the sexual assault and murder of two women in St. Louis, Missouri. The district
court granted Reginald Clemons habeas corpus relief based on a perceived denial of
his Sixth Amendment right to a fair jury under Witherspoon v. Illinois, 391 U.S. 510,
518, 522 (1968) (holding that a death sentence was unconstitutional under the Sixth
and Fourteenth Amendments when a veniremember was excluded for cause after
simply voicing general conscientious or religious objections to the death penalty).
Clemons v. Luebbers, 212 F. Supp. 2d 1105 (E.D. Mo. 2002) (Clemons II). We
reverse because we find that Clemons has procedurally defaulted this claim.
I.    BACKGROUND

       On the night of April 4, 1991, Clemons, Antonio Richardson, Marlin Gray,
and Daniel Winfrey went to the Chain of Rocks Bridge, an abandoned structure
spanning the Mississippi River between Missouri and Illinois, to smoke marijuana.
They parked on the Missouri side and walked across to the Illinois side to do the
drugs. The marijuana would not light, however, and as they walked back across the
bridge they met Julie Kerry, her sister Robin Kerry, and their cousin, Thomas
Cummins, walking toward the Illinois side. The groups spoke briefly and then
continued on their respective courses toward opposite ends of the bridge.

       Upon reaching the Missouri side, Clemons suggested that the group rob the
three, and the group then walked back toward the Illinois side, intercepting the Kerry
sisters and Cummins at a bend in the middle of the bridge. Clemons, Richardson, and
Gray took turns raping the Kerrys while Winfrey held down Cummins. Either
Richardson or Clemons then pushed the sisters off of the bridge and ordered
Cummins to jump from a pier directly below the bridge into the river seventy feet below.

        Cummins survived the plunge into the river, and he eventually testified against
the four assailants. Julie's body was found downstream three weeks later. Robin's
body has never been found. Winfrey pled guilty to two counts of second-degree
murder and agreed to testify against the remaining three in exchange for a
recommended thirty-year sentence. Clemons, Richardson, and Gray were convicted
of first-degree murder and sentenced to death. See Richardson v. Bowersox, 188 F.3d
973 (8th Cir. 1999) (affirming denial of habeas corpus relief); Gray v. Bowersox, 281
F.3d 749 (8th Cir. 2002) (same), cert. denied, 537 U.S. 1115 (2003).

      After Clemons was convicted and sentenced, he filed a Rule 29.15 motion to
vacate, set aside or correct the judgment or sentence of the trial court. Clemons
challenged, as relevant, the jury selection proceedings, and made claims of
prosecutorial misconduct. Importantly, in the motion, Clemons did not directly raise

                                          -2-
his current voir dire objections–the improper exclusion of death-qualified
veniremembers–as independent substantive claims, but raised them only in
conjunction with his ineffective assistance of counsel assertions. The reason for this
approach was his trial counsel's failure to adequately preserve these claims at trial and
in the motion for new trial. On March 18, 1996, the Rule 29.15 motion was denied.
The Missouri Supreme Court affirmed the conviction, sentence, and denial of post-
conviction relief. State v. Clemons, 946 S.W.2d 206 (Mo. 1997), cert. denied, 522
U.S. 968 (1997) (Clemons I).

      In his current petition for habeas corpus, Clemons brought claims for
ineffective assistance of trial counsel, prosecutorial misconduct, errors connected
with the denial of the motion to suppress, and errors relating to jury selection and
empaneling. Of the numerous claims for relief alleged in the voluminous pleading,
the only ones before us pursuant to the state's appeal and under the certificate of
appealability are Clemons's allegations relating to the prosecutor's closing argument
(Claims 6A-E, 8 and 11 of the habeas corpus petition), and two voir dire claims–the
exclusion of six veniremembers as not death-qualified (Claim 4B), and the exclusion
of prospective juror Doss as not death-qualified (Claim 4A).

       In Claim 4B, each of the six prospective jurors initially indicated that they
could vote for the death penalty in a proper case. Upon further questioning, however,
all indicated that if the evidence showed that Clemons did not actually push the
women off the bridge, they would not vote for a death sentence. In effect, these
prospective jurors indicated that they could not impose the death penalty under an
accomplice-liability theory. Clemons claims the prosecutor incorrectly recited
Missouri law by not including the element of cool deliberation or reflection in the
hypothetical questions presented, and by injecting an improper robbery hypothetical
into the interrogatories. This improper questioning, he argues, led to the erroneous
exclusion of these six prospective jurors for cause in violation of Witherspoon.




                                          -3-
      The district court reached the merits of this claim, despite the state's procedural
bar defense. The district court stated that, "I have carefully reviewed the record, and
agree with Clemons that [Claims 4A & B] were properly preserved at trial, in the
motion for judgment of acquittal, and on the consolidated appeal. The Missouri
Supreme Court's finding otherwise is in error." Clemons II, 212 F. Supp. 2d at 1119.

       Reviewing Claim 4B on its merits, the district court found that in excluding
these six prospective jurors, the trial court misapplied Witherspoon and Wainwright
v. Witt, 469 U.S. 412, 424 (1985) (clarifying Witherspoon and holding that a
veniremember can be stricken when his or her views on the death penalty would
"prevent or substantially impair the performance of his duties as a juror") (internal
quotations omitted). The district court found that the prosecutor had not accurately
described accomplice-liability law and that, as a result, the trial court adjudication of
these voir dire claims was an unreasonable application of Supreme Court precedent.
Clemons II, 212 F. Supp. 2d at 1122.

       Claim 4A involved prospective juror Doss. The district court found that Doss
was correctly dismissed for cause and denied relief on this claim. Initially Doss
stated that he could never vote for the death penalty under any circumstances. But
upon further questioning from the prosecutor, Doss equivocated. The trial judge,
however, struck Doss for cause, stating that he had unequivocally indicated his
inability to impose the death penalty. The district court found that the Missouri
Supreme Court,1

      correctly identified the controlling federal law and I cannot say that it
      unreasonably applied the law or made an unreasonable determination of


      1
        The district court identified the Missouri Supreme Court's adjudication of this
issue as the decision that it reviewed under 28 U.S.C. § 2254. However, the Missouri
Supreme Court only reviewed the Doss issue as it related to counsel's ineffectiveness–
the claim raised in the Rule 29.15 motion. The Missouri Supreme Court did not
review this substantive claim on its merits.

                                          -4-
      the facts. Doss's first answer was unequivocally that he could not apply
      the death penalty for religious reasons. His later equivocation is not
      sufficient to overcome the initial unequivocal statement, even though the
      trial judge may have misremembered the exact details of it.

Id. at 1121.

       Finally, the district court found that most (Claims 6B-E and Claim 8) of
Clemons's claims for prosecutorial misconduct were procedurally barred because they
were not adjudicated by the state courts. Id. at 1123. The district court reached the
merits of two of the claims because the Missouri courts had done so. These two
claims were that the prosecutor threatened and intimidated a possible exculpatory
witness (Michael Chapey) into not testifying (Claim 6A), and that the prosecution
made improper comments during penalty-phase closing arguments (Claim 11). The
district court denied these claims. Id. at 1125-27.

       The state appeals the district court's adverse ruling on Claim 4B (the six
purportedly death-qualified veniremembers), and the district court granted Clemons
a certificate of appealability on Claim 4A (Doss) and Claims 6A-E, Claim 8, and
Claim 11 (prosecutorial misconduct).

II.   DISCUSSION

      We review the district court's legal conclusions de novo, and its factual
findings for clear error. Kinder v. Bowersox, 272 F.3d 532, 538 (8th Cir. 2001).
Pursuant to the AEDPA's amendment's to 28 U.S.C. § 2254, a state prisoner may
obtain federal habeas relief with respect to a claim that has been adjudicated on the
merits in state court only when the state decision was either contrary to or involved
an unreasonable application of clearly established Supreme Court precedent. 28
U.S.C. § 2254(d).




                                        -5-
       The first step in evaluating a challenge to the state court's adjudication is to
determine what, if anything, the Supreme Court has said on the subject. Kinder, 272
F.3d at 537-38. Next, we look carefully at the state court's decision under the
AEDPA standards and will find the result "contrary to" clearly established federal law
only if the court has applied a rule that directly contradicts Supreme Court precedent
or has reached a result opposite to a result reached by the Supreme Court on
"materially indistinguishable" facts. Williams v. Taylor, 529 U.S. 362, 405 (2000)
(concurring opinion of O'Connor, J., for the Court). And, an "unreasonable
application" of the law is not the same as "incorrect." Penry v. Johnson, 532 U.S.
782, 793 (2001). In other words, the state court's application might be erroneous in
our independent judgment without being "objectively unreasonable." Wiggins v.
Smith, 539 U.S. 510, 521 (2003) (internal quotations omitted).

      A.     Voir Dire Claims

             1.   Claim 4B

        As noted earlier, in Claim 4B, Clemons alleges that six prospective jurors were
improperly excluded as not death-qualified. At the outset, we must address the state's
procedural default argument. The state alleges that because defense counsel made
inadequate objections at trial and did not include these claims in the motion for new
trial, the state appellate courts did not review the voir dire issues. Thus, the state
says, these jury selection issues are procedurally defaulted.

       A federal district court is precluded from substantively considering a habeas
corpus claim that a state court has disposed of on independent and adequate non-
federal grounds, including state procedural grounds. Reagan v. Norris, 279 F.3d 651,
656 (8th Cir. 2002). A state prisoner procedurally defaults a claim when he violates
a state procedural rule that independently and adequately bars direct review of the
claim by the United States Supreme Court, unless the prisoner can show cause and
prejudice for the default, or actual innocence. Coleman v. Thompson, 501 U.S. 722,

                                         -6-
750 (1991). In other words, a state prisoner who fails to satisfy state procedural
requirements forfeits his right to present his federal claim through a federal habeas
corpus petition, unless he can meet strict cause and prejudice or actual innocence
standards. Murray v. Carrier, 477 U.S. 478, 493-96 (1986).

       For the federal court to enforce a state procedural bar, either the state court
must have declined to reach the issue for procedural reasons or it is clear that the state
court would hold the claim procedurally barred. The default must have been actually
imposed; it is not enough that the state court could or should have imposed a default.
Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). The federal court looks to the
last, reasoned state court opinion dealing with the claim to determine whether a
specific contention is procedurally defaulted. "If the last state court to be presented
with a particular federal claim reaches the merits, it removes any bar to federal-court
review that might otherwise have been available." Ylst v. Nunnemaker, 501 U.S.
797, 801 (1991). And, federal courts should not consider whether the state court
properly applied its default rule to the claim; federal courts do not sit to correct a state
court's application of its ordinarily adequate procedural rules, Sweet v. Delo, 125
F.3d 1144, 1151 (8th Cir. 1997), except in unusual circumstances not present here,
see Lee v. Kemna, 534 U.S. 362, 376 (2002).

     In its ruling on Clemons's direct appeal and Rule 29.15 motion, the Missouri
Supreme Court stated:

       Appellant raises numerous claims of trial court error on direct appeal
       that were not properly preserved because they were either not objected
       to at trial or not raised in the motion for new trial. These claims are
       reviewable, if at all, only for plain error. The "plain error" rule is to be
       used sparingly and may not be used to justify a review of every point
       that has not been otherwise preserved for appellate review. Appellant
       must demonstrate that manifest injustice or a miscarriage of justice will
       occur if the error is not corrected. . . . None of appellant's unpreserved
       claims raise a substantial ground for finding plain error. Therefore, we
       decline to subject these claims to our discretionary review under Rule

                                            -7-
      30.20. However, to the extent appellant properly raises the issue under
      Rule 29.15, we will review appellant's additional claims for ineffective
      assistance of counsel, either for failing to preserve the alleged trial error
      or for ineffective assistance regarding the circumstances of the trial error
      itself.

Clemons I, 946 S.W.2d at 224 (citations omitted). The Missouri Supreme Court then
analyzed as a "particular" constitutional claim whether Clemons's two trial attorneys
were ineffective for failing to object to the purportedly improper voir dire questions
asked of the veniremembers, thereby causing erroneous dismissals for cause. Id.

        We agree with the state's contention that the Missouri Supreme Court applied
a procedural bar to Clemons's substantive voir dire claim. Notwithstanding this
unequivocal ruling, the district court found that this claim was properly preserved at
trial, and that the Missouri courts improperly applied a procedural bar. The district
court erred in this regard. As previously stated, federal courts do not look at whether
state courts have correctly applied their own procedural rules. They simply determine
whether those procedural rules were applied to bar the claim. Sweet, 125 F.3d at
1151. If they were, the petitioner is left to show cause and prejudice or actual
innocence. Because counsel did not correctly2 protect this voir dire issue for
appellate review, the state supreme court declined to review the matter on appeal.

      The Missouri court did, however, fully and independently review the
ineffective assistance of counsel assertions arising from this unpreserved voir dire
claim, but not its substantive merit, standing alone. Clemons argues that he "fairly
presented" this claim to the state court, and should not be penalized for poor
draftsmanship or inartful arguments. In this regard, however, Clemons makes an
exhaustion argument, not a procedural bar argument, and the two concepts are quite


      2
       The trial transcript indicates that counsel did generally object each time that
one of the prospective jurors was dismissed for cause. However, counsel did not
include these specific claims in the motion for new trial.

                                          -8-
separate. Justus v. Murray, 897 F.2d 709, 713 (4th Cir. 1990). Exhaustion requires
fair presentment of a claim to the state courts for initial adjudication, while procedural
default requires the federal courts to abstain from considering an issue if that issue
was decided on independent and adequate state grounds. Id.

      Although Clemons did attempt to fairly present these claims to the state courts
for purposes of exhaustion,3 the failure of counsel to later preserve these claims
prompted the state courts to dispose of the voir dire arguments on procedural
grounds, an independent and adequate state basis. Absent any reason to lift the
procedural bar (cause and prejudice or actual innocence), our review is precluded.

       In his traverse to the district court, Clemons argued that an ineffective lawyer
caused his procedural default, and that he was prejudiced by this mistake. In order
for deficient trial work to constitute the kind of "cause" that would excuse a
procedural bar, counsel must have been constitutionally ineffective under Strickland
v. Washington, 466 U.S. 668, 687-88 (1984) (holding that to constitute ineffective
assistance of counsel under the Sixth Amendment, counsel's performance must have
fallen below an objective standard of reasonableness that prejudiced the defendant).
And, petitioner must have independently presented this ineffective assistance claim
to the state court for adjudication. Carrier, 477 U.S. at 489.




      3
        Clemons did not present the voir dire claim with regard to one of the six jurors
(Wetteroth) to the state courts. The Missouri Supreme Court opinion mentions five
of the six that Clemons currently challenges in his habeas corpus petition, but not
Wetteroth. Nor did Clemons include the Wetteroth claim in his briefing to the state
supreme court. See App. Vol. II, at 626. However, in its response to the habeas
corpus petition, the state expressly waived exhaustion, as required by 28 U.S.C. §
2254(b)(3). We therefore consider the claim as though it has been exhausted, but also
procedurally defaulted. See Nave v. Delo, 62 F.3d 1024, 1030 (8th Cir. 1995).

                                           -9-
       Clemons did present this ineffective assistance claim to the state courts.4
Thus, if counsel was constitutionally deficient under Strickland standards, the cause
factor necessary to lift the procedural bar is established.

      But, even if counsel's performance with regard to Claim 4B fell below a
standard of objective reasonableness as a result of an inadequate trial objection or an
incomplete motion for new trial, we find, as did the Missouri Supreme Court, that
under the second part of the Strickland test, Clemons was not prejudiced.5 That is


      4
        The Missouri Supreme Court found no merit in Clemons's ineffective
assistance claim. 946 S.W.2d at 225. The district court also rejected this habeas
corpus claim and the issue was not included in the certificate of appealability. This
precludes our further consideration of the merits of this decision. Nonetheless, the
question remains, through what lens should we view the ineffective assistance claim?
Should we perform a straightforward Strickland analysis (de novo), or give 28 U.S.C.
§ 2254(d) deference to the state court's adjudication of the claim? Because the
ineffective assistance claim is not part of our certificate, it seemingly is not a "claim"
as defined by the plain language of Section 2254(d). On the other hand, Carrier
requires that ineffective assistance must first be raised as an independent
constitutional claim to the state courts before it can be advanced as cause for
procedural default. Presumably the Supreme Court would not require a state court
to initially review the claim if no deference to that adjudication is warranted.
However, the Supreme Court has not expressly mandated that we give Section
2254(d) deference to the state court's adjudication of the ineffective assistance claim.
See Lee v. Davis, 328 F.3d 896, 901 (7th Cir. 2003) (declining to decide what level
of deference to give a previously adjudicated ineffective assistance claim, because the
result would be the same under either analysis). Like our sister circuit, we decline to
take up this unresolved issue because the outcome of the ineffective assistance claim
would be the same under either analysis.
      5
        When ineffective assistance of trial counsel is asserted as the basis of cause
in the cause/prejudice procedural bar analysis, the presence of a "prejudice" factor in
both the Strickland paradigm and the test outlined in Murray v. Carrier, sometimes
makes this multi-step evaluation a bit confusing. The standards for Strickland
prejudice and for Carrier prejudice are either the same, or procedural bar prejudice
is somewhat higher. Compare Mercer v. Armontrout, 864 F.2d 1429, 1434 (8th

                                          -10-
because the outcome of the state court proceeding would not have been different
absent counsel's purported failures. Strickland, 466 U.S. at 691-92. The trial court
did not err in excluding these potential jurors and thus, their absence had no effect on
the jury's imposition of the death penalty.

       A trial court's finding of death qualification in the voir dire process is a factual
determination entitled to the presumption of correctness established in 28 U.S.C. §
2254(e). See Witt, 469 U.S. at 429 (holding that voir dire findings were "factual
issues" entitled to the presumption of correctness formerly found in Section 2254(d)).
Under this standard of review, Clemons has not shown that the trial court's finding
was wrong under Witherspoon and Witt. The trial court concluded that, based on
their answers to the prosecutor's questions, these prospective jurors' beliefs would
prevent or substantially impair their performance as jurors. Each veniremember
unequivocally stated that he or she could not impose the death penalty under the
circumstances posed by the prosecutor.

       Defense counsel asked each one if he or she could impose the death penalty,
and each indicated "yes." However, the prosecutor had asked these prospective jurors
the same question. It was only when the prosecutor clarified that the jury might be
asked to impose the death penalty for accomplice liability that the prospective jurors
balked. Defense counsel only delved into accomplice liability with three of the six
jurors, and two of them reiterated their earlier statement that they could not impose
death for accomplice liability. One of them arguably agreed to impose death after


Cir.1988) (noting prejudice needed to overcome procedural default is "not
dissimilar to Strickland's prejudice test for ineffective assistance of counsel")
with Zinzer v. Iowa, 60 F.3d 1296, 1299 n.7 (8th Cir. 1995) (opining in dicta
that "actual prejudice" required to surmount procedural bar is a higher standard
than Strickland prejudice). Because we dispose of this claim on the cause prong of
the cause and prejudice exception to the procedural bar doctrine (which here involved
ineffective assistance), we have no occasion to address the Carrier prejudice prong
or how it differs, if at all, from Strickland.

                                           -11-
much prodding by defense counsel. However, our review of the trial transcript
indicates that the trial court reasonably could have construed the purported
rehabilitation of this juror (Wetteroth) as inadequate. Faced with these prospective
jurors' answers to the death qualification questions, the trial court's dismissal of these
six veniremembers for cause withstands review under Section 2254(e).

      Clemons makes much of the fact that the prosecutor's voir dire inquiry
allegedly misstated the circumstances under which a Missouri jury could sentence a
defendant to death. Specifically, Clemons charges the prosecutor with failing to
include the "cool reflection" standard in his questioning and with injecting a robbery
scenario into the hypothetical posed to some of the veniremembers. We find neither
argument persuasive. We are not persuaded that the prosecutor misstated the law on
"cool reflection." The record indicates that before questioning the veniremembers
individually, all six prospective jurors involved in Claim 4B heard, as a group, that
the requisite mental state for first-degree murder was "cool reflection." The
prosecutor was not required to repeat each element of first-degree murder while
individually questioning each prospective juror. Otherwise, we fail to see the point
of addressing the venire as a group.

       Clemons and the district court have both pointed to the prosecutor's robbery
hypothetical as especially prejudicial. The prosecutor used this hypothetical to
explain accomplice liability, while individually questioning prospective jurors other
than the six in question here. Each of the six heard the hypothetical, but none of the
prospective jurors were specifically and individually questioned with the robbery
hypothetical. Instead, each was asked whether he or she could impose the death
penalty if Clemons did not actually push the women off the bridge. We are satisfied
that these prospective jurors knew that they were being asked if they could impose
the death penalty under an accomplice to murder theory, not a robbery.

      This is not to say that a misleading prosecutor could always exclude
prospective jurors under Witherspoon and Witt without violating the defendant's

                                          -12-
constitutional rights. For example, if the prosecutor asks veniremembers, "if I only
prove that the killing was accidental, could you still impose the death penalty," and
prospective jurors were excluded for cause when they answered "no." Under such
circumstances, the defendant's due process and Sixth Amendment rights would likely
be violated. This is not that case.

       Clemons has no claim that his procedural default should be excused. He
cannot show cause. His counsel's performance, while possibly deficient, cannot be
said to have affected the outcome of the proceeding. So, the prejudice portion of the
ineffective assistance test has not been met. Strickland, 466 U.S. at 691-92. The trial
court's exclusion of these prospective jurors withstands scrutiny under Section
2254(e), and these voir dire claims are procedurally barred unless Clemons can
establish actual innocence.

       Clemons makes no argument in briefing to this court about actual innocence.
In the district court, Clemons argued6 that he was actually innocent because there was
no evidence from which a reasonable jury could find that he deliberated or planned
to murder the Kerry sisters. The district court found that such evidence did exist and
rejected Clemons's claim of actual innocence. 212 F. Supp. 2d at 1114-15. We agree
with the district court that Clemons failed to make the requisite showing of actual
innocence.7


      6
       The district court points out that Clemons's actual innocence claim is actually
Claim 1 of the habeas corpus petition, and in substance, is more of a claim that his
due process rights were violated due to insufficiency of the evidence. 212 F. Supp.
2d at 1114. Nonetheless, we treat the claim as Clemons's assertion that actual
innocence excuses his procedural default.
      7
        There are several troubling aspects to this case. Apparently Cummins, one of
the alleged victims, initially made a confession to police that he had murdered his two
cousins by pushing them off of the bridge. After the four eventual suspects were
caught, Cummins retracted and said that he had been mistreated by police and coerced
into giving the confession. In his petition for habeas corpus, Clemons makes similar

                                         -13-
             2.   Claim 4A

       Although it appears to us that the same procedural default analysis would apply
to Juror Doss as to the Claim 4B jurors discussed above, in its briefing and at oral
argument, the state has waived its procedural bar defense with regard to this claim.
So we must review it on its merits. However, because the Missouri Supreme Court
peripherally addressed the merits of this claim, but only as a subsidiary point in its
analysis of whether Clemons was prejudiced by alleged ineffective assistance of
counsel, it is unclear whether we have a state court adjudication that is entitled to
Section 2254(d) deference. See ante, note 1. Assuming arguendo that the Doss claim
was not "adjudicated on the merits" within the meaning of Section 2254(d), "we
likely should apply the pre-AEDPA standard of review." Robinson v. Crist, 278 F.3d
862, 865 (8th Cir. 2002). Prior to AEDPA, we reviewed Sixth Amendment death
qualification issues under the standards set forth in Witherspoon and Witt. Even then,
however, a trial court's voir dire factual findings were entitled to a presumption of
correctness, Witt, 469 U.S. at 429, which is essentially equivalent to the factual
presumption of correctness currently found in Section 2254(e)(1). With this standard
in mind, we analyze the trial court's voir dire findings with regard to Juror Doss.

        Doss initially stated, unequivocally, that he could not apply the death penalty
for religious reasons. Upon further questioning by the prosecutor, he equivocated and


allegations of police brutality and coercion. And the prosecutor, Nels Moss, was held
in contempt by the trial court for making improper arguments to the jury. The district
court correctly described Moss as "abusive and boorish, and that his tactics overall
were calculated to intimidate the defense at every turn." Clemons II, 212 F. Supp. 2d
at 1123. However, in his actual innocence claim and elsewhere, Clemons does not
argue that he was not with the group of four that encountered the Kerrys and
Cummins on the bridge, nor does he point to Cummins as the real culprit; instead, he
alleges that he was not at the place on the bridge where the Kerrys were actually
pushed. His best evidence of this, though, is the hearsay testimony of Marlin Gray's
prison cellmate. The district court's conclusion that Clemons's evidence of actual
innocence is not credible is not clearly erroneous.

                                         -14-
said there might be a factual scenario under which he could impose the death penalty.
But when presented with the accomplice-liability theory, Doss stated that he could
not impose the death penalty. Shortly after this statement, Doss reversed course and
stated that he could impose death even if Clemons did not push the women off of the
bridge. When questioned by defense counsel, Doss stated that he could impose the
death penalty under the "acting with another" theory.

      When Doss was dismissed for cause, the trial court stated:

      And Mr. Doss initially said no death penalty, religious reasons, then
      backtracked a little. He initially said all doubt, and I don't think he has
      been rehabilitated by just asking, "Well, would you follow the
      instructions? Would you do what the Judge tells you?" I think these
      people need to be given an alternative to rehabilitate them. . . . He said
      no death penalty on acting with another.

App. Vol. II, at 397.

       The trial court did mischaracterize Doss's statements regarding the death
sentence for "acting with another." Doss originally said that he could not impose the
death penalty in those circumstances, though he later retreated from that position.
But, we find that the trial judge was left with the firm conviction that Doss's religious
beliefs would ultimately substantially impair his ability to act as a juror. This
credibility determination is entitled to great deference at any level of review, but
especially in a federal habeas proceeding. The Witt Court noted that a juror's bias
need not be proved with "unmistakable clarity," 469 U.S. at 424, and it follows that
the trial judge's findings attain the utmost importance. As the Witt Court stated:

      Despite this lack of clarity in the printed record, however, there will be
      situations where the trial judge is left with the definite impression that
      a prospective juror would be unable to faithfully and impartially apply
      the law. . . . [T]his is why deference must be paid to the trial judge who
      sees and hears the juror.

                                          -15-
Id. at 425-26.

        Under Witt, and its mandate that we apply a presumption of correctness to the
trial judge's impressions of prospective juror Doss, we cannot say that Clemons has
overcome that presumption. Although the trial court did not remember that Doss
changed his mind about imposing the death penalty for accomplice liability, he
correctly remembered that Doss held strong beliefs against the death penalty and was
therefore unconvinced that Doss had been rehabilitated. Indeed the Missouri
Supreme Court observed that, "Doss's equivocal and shifting responses to questions
focusing on his ability to impose the death penalty provide a sufficient rationale for
the trial court's decision to sustain the state's motion." Clemons I, 946 S.W.2d at 225.
The printed record may show a lack of clarity on this issue, but as the Witt Court
anticipated, the trial court's firsthand impressions trump the cold record.
Accordingly, Clemons cannot prevail here.

      B.     Prosecutorial Misconduct Claims

       First, we address the procedurally defaulted claims. The district court found
that Claim 8 and Claims 6B–6E were not decided on the merits by the Missouri state
courts. Clemons's claims are that the prosecution made improper statements during
guilt-phase closing arguments (Claim 8); that the state tampered with evidence (Claim
6B); a Brady v. Maryland violation (Claim 6C); that the prosecutor improperly
introduced out-of-court statements in violation of the Confrontation Clause (Claim
6D); and that the state knowingly presented perjured testimony (Claim 6E). Despite
the fact that the district court issued a certificate of appealability for these claims,
Clemons did not brief the issues on appeal. We decline to take up these matters for
him and deem them abandoned. United States v. Walrath, 324 F.3d 966, 970 n.2 (8th
Cir. 2003). And even if these arguments had not been abandoned, we agree with the
district court's procedural default analysis for these prosecutorial misconduct
allegations. See 8th Cir. R. 47B.

                                         -16-
             1.    Intimidated Witness Claim

        Clemons claims that the prosecutor intimidated witness Michael Chapey into
not testifying at trial.8 Clemons planned to introduce Chapey's evidence to impeach
Winfrey, the state's witness, and one of the men on the bridge that night. Chapey and
Winfrey were incarcerated together at some point in time after these crimes occurred.
Chapey claimed that after he appeared on Clemons's trial witness list, the prosecutor
visited his cell and threatened retaliation in future (theoretical) criminal prosecutions.
The district court granted an evidentiary hearing on this claim. The hearing revealed
that, instead, Chapey called the prosecutor to his jail cell and asked if he could help
with his parole adjudication. The prosecutor responded that he was not in the
business of helping out defense witnesses. The district court determined that
Chapey's testimony was not credible, stating:

      I find from the evidence presented to me that Chapey is a very
      uncredible [sic] witness. Chapey impressed me as someone who only
      does what will help Chapey. I certainly do not believe him about what
      he claims Daniel Winfrey told him, and I find it unlikely that a jury

      8
        It is questionable whether this claim was actually presented to the state courts
by Clemons, and if it was, whether there is a state court adjudication of the issue. The
Rule 29.15 post-conviction court mentions Michael Chapey once in its factual
recitations but does not mention Chapey in its legal conclusions. The first amended
29.15 motion does not mention prosecutor misconduct based on Chapey's failure to
testify at trial. The Missouri Supreme Court nowhere mentions Chapey in its opinion.
However, in its reply brief, the state does not assert that this claim is procedurally
defaulted. Rather than further parsing the voluminous record to find evidence of the
state court adjudication of this issue, we will treat it as though it was presented to the
state court for adjudication, but ignored. Under these circumstances, the issue was
not decided on independent and adequate state grounds. Thus, we apply a pre-
AEDPA standard of review. Taylor v. Bowersox, 329 F.3d 963, 967-68 (8th Cir.
2003) (holding that when there is no state court adjudication of a claim, we need not
apply the AEDPA's deferential standard of review but review the district court's
factual determinations for clear error and its legal conclusions de novo), cert. denied,
124 S. Ct. 1681 (2004).

                                          -17-
      would have believed him either. He has admitted that he was willing to
      change his testimony in whatever way would benefit him, and had he
      been called as a witness, there is no telling what he would have actually
      said.

Clemons II, 212 F. Supp. 2d at 1125.

      This factual finding by the district court was not clearly erroneous.
Furthermore, we agree with the district court's legal conclusion that the outcome of
Clemons's trial would not have been different if Chapey had testified. See Peeler v.
Wyrick, 734 F.2d 378, 381-82 (8th Cir. 1984) (holding that harmless error rule
applies for habeas corpus witness intimidation claim).

             2.   Improper Penalty-Phase Closing Argument

      The final claim we consider is that the prosecutor made an improper penalty-
phase closing argument. Clemons contends that the prosecutor's reference to Charles
Manson and John Wayne Gacy during the penalty phase violated his rights under the
Due Process Clause.

      The question here is "whether the prosecutors' comments 'so infected the trial
with unfairness as to make the resulting conviction a denial of due process.'" Darden
v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)). Relief is available only if "the prosecutor'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). Because this claim was adjudicated on the merits by the state courts, we apply
28 U.S.C. § 2254(d), and can grant relief only if the state court unreasonably applied
Supreme Court precedent in disposing of this claim. Williams, 529 U.S. at 405
(concurring opinion of O'Connor, J., for the Court).




                                        -18-
       The Missouri Supreme Court noted that the trial court sustained the defense's
immediate objection to those statements, admonished the prosecutor to refrain from
this argument, ordered the jury to disregard the comments, and had them stricken
from the record. The court held that the trial's fairness was the key component in a
prosecutorial misconduct case, and that a reversal is reserved for extraordinary
circumstances–where the failure of the trial court to grant a mistrial resulted in the
denial of a fair trial. The court then rejected this claim. Clemons I, 946 S.W.2d at
217. We find that the Missouri Supreme Court's adjudication of this claim was not
an unreasonable application of Supreme Court precedent. See Darden, 477 U.S. at
181.

      III.   CONCLUSION

       For the reasons stated herein, we reverse the district court's grant of habeas
corpus on Claim 4B of the habeas corpus petition, and affirm the district court's
denial of relief with regard to the remaining claims. This matter is remanded to the
district court for further proceedings not inconsistent with this opinion.

MELLOY, Circuit Judge, concurring in part and dissenting in part.

       I concur in the majority opinion on voir dire claim 4B, concerning the
exclusion of six prospective jurors, and both of Clemons’ prosecutorial misconduct
claims. However, I respectfully dissent from the majority opinion as to claim 4A,
concerning the exclusion of venireperson Doss. I believe clear and convincing
evidence overcomes the presumption of correctness we afford to the state court’s
ruling. I would reverse and remand on that claim.

      In my view, claim 4A was not adjudicated on the merits by the Missouri
Supreme Court. See State v. Clemons, 946 S.W.2d 206, 224 (Mo. 1997). Thus, the
factual findings underlying the decision are entitled to a presumption of correctness
that may be overcome by clear and convincing evidence.

                                        -19-
        During voir dire, Doss originally said he would not vote for the death penalty
for religious reasons. The prosecutor then asked whether the belief was so strong that
he could not put it aside for this case. Doss answered that it was not. The prosecutor
then rephrased and asked if his beliefs were so strong that he would not be able to
recommend the death penalty. Doss answered they were not. The prosecutor then
asked what standard of proof Doss would need to vote for the death penalty. He
answered that he would need to be firmly convinced. The prosecutor followed up by
asking whether he could vote for death if he found aggravating circumstances and
was firmly convinced. Doss responded that he could.

      Next, the prosecutor asked Doss about accomplice liability. Doss first said that
he could not recommend death if Clemons did not himself push the girls off the
bridge. The prosecutor then asked whether there was anything the government could
show that would change Doss’s mind. Doss responded that his mind could be
changed. The prosecutor then asked again whether there was something the
government might be able to show that would convince Doss to vote for death, even
if Clemons was an accomplice only. Doss confirmed that he could vote for death.

      Defense counsel also questioned Doss. Doss reiterated multiple times that he
could recommend the death penalty. He also reiterated that to recommend death, he
would need to be firmly convinced beyond a reasonable doubt.

      When the state moved to strike Doss for cause, the Court stated:

      Mr. Doss initially said no death penalty, religious reasons, then
      backtracked a little. He initially said no doubt, and I don’t think he has
      been rehabilitated by just asking, “Well, would you follow the
      instructions? Would you do what the Judge tells you?” I think these
      people need to be given an alternative to rehabilitate them. You know,
      much to the extent that he did with Ms. Farrario, but we’ll get to her. He
      said no death penalty on acting with another.


                                        -20-
(App. at 397.) The majority opinion acknowledges that the trial court
mischaracterized Doss’s statements regarding accomplice liability, but ultimately
concludes that the state court judge was left with a firm conviction that Doss’s
religious beliefs would preclude him from following the law. However, the majority
ignores what comes next in the exchange between the court and counsel:

      Counsel: Judge, when we started yesterday, he said, no. Then I
      rehabilitated him. And he said, “I could give it” today. And I asked him
      if he could follow the instructions, and he understood the difference
      between the two. And he said he certainly did.

      The Court: My recollection, or my notes, he stated yes, that with respect
      to acting with another he could not consider the death penalty. And I
      don’t think he was rehabilitated on that today. So I’ll grant the State’s
      motion to strike Juror No. 948, Virto Doss for cause.

(App. at 397-98.) This passage demonstrates that it was the court’s inaccurate
recollection of Doss’s statements on accomplice liability, and not Doss’s religious
beliefs, that led the court to exclude him.

       In addition, the majority fails to mention that the trial judge also
misremembered Doss’s statements on the standard of proof. While the court stated
that Doss “initially said all doubt” would need to be removed before he could vote for
death, this is not the case. Doss said from the beginning and multiple times that he
would need to be firmly convinced.

      The majority claims that “the trial court’s firsthand impressions trump the cold
record.” I respectfully disagree. While the Court owes deference to the trial court’s
factual findings, this deference may be overcome by clear and convincing evidence.
28 U.S.C. § 2254(e)(1); Hall v. Luebbers, 341 F.3d 706, 714 (8th Cir. 2003).



                                        -21-
      Even in the context of federal habeas, deference does not mean
      abandonment or abdication of judicial review. Deference does not by
      definition preclude relief. A federal court can disagree with a state
      court’s credibility determination and, when guided by AEDPA, conclude
      the decision was unreasonable or that the factual premise was incorrect
      by clear and convincing evidence.

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

       I would conclude that clear and convincing evidence shows that the trial
court’s decision was based on an incorrect factual premise. The judge simply
misremembered venireperson Doss’s answers to the attorney’s questions. He then
based Doss’s exclusion on these incorrect facts. Our deference to factual findings
should not extend so far as to let rulings stand that were based on facts about which
the state court judge was simply mistaken. I would reverse and remand on this issue.
                       ______________________________




                                        -22-
