                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 04-3827
                               ________________

William L. Rousan,                      *
                                        *
            Appellant,                  *
                                        *      Appeal from the United States
      v.                                *      District Court for the Eastern
                                        *      District of Missouri.
Donald P. Roper, Superintendent,        *
Potosi Correctional Center,             *
                                        *
            Appellee.                   *

                               ________________

                         Submitted: November 16, 2005
                             Filed: February 8, 2006
                               ________________

Before ARNOLD, MURPHY and GRUENDER, Circuit Judges.
                       ________________


GRUENDER, Circuit Judge.

      A Missouri state court sentenced William L. Rousan (“Rousan”) to death after
he was convicted of two counts of first-degree murder. The Missouri Supreme Court
affirmed the convictions and sentence and subsequently affirmed the denial of
Rousan’s motion for post-conviction relief. Rousan timely petitioned for a writ of
habeas corpus under 28 U.S.C. § 2254, seeking relief on nineteen separate grounds.
The district court1 denied habeas relief but granted a certificate of appealability on
eight of the grounds. Rousan now appeals the denial of the writ on those eight
grounds. We affirm.

I.    BACKGROUND

       In September 1993, Rousan resided at the farm of his girlfriend, Mary Lambing.
Rousan, his son, Brent Rousan (“Brent”), and his brother, Robert Rousan (“Robert”),
decided to steal cattle from the nearby farm of sexagenarians Charles and Grace
Lewis. They drove to the Lewis farm in Rousan’s truck. During the drive, the three
men discussed the prospect of killing the Lewises and agreed that “if it had to be done
it had to be done.”

        Rousan parked the truck approximately two miles from the Lewis farm. Rousan
then pulled out Lambing’s .22 caliber rifle and loaded it “in case anyone was home.”
Brent asked to be the one who carried the rifle, stating that he was “man enough to do
whatever needed to be done and that he would use the weapon.” After debating
whether Brent was “man enough,” Rousan yielded the gun to Brent. He warned Brent
that if they were caught, they would “fry.” The three men then approached on foot to
within viewing distance of the Lewis residence and sought cover behind a fallen tree.

       The three men lay in wait until the Lewises returned to their residence that
afternoon. Charles Lewis mowed the lawn, while Grace Lewis talked on the phone
to the couple’s daughter. Brent became impatient and said he wanted to “do it.”
Rousan instructed Brent to remain behind the tree while he and Robert secured the
house. Before Rousan reached the house, however, Charles Lewis spotted Brent and
shouted at him. Brent shot Charles Lewis six times with the rifle, causing his death.


      1
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
                                          -2-
Inside the house, Grace Lewis told her daughter on the phone that she heard gunfire
and hung up. When Grace ran out the front door to investigate, Brent shot her several
times, fracturing both of her arms. Grace turned and ran back into the house. Rousan
followed. Rousan placed a garment bag over Grace’s head and the upper part of her
body, picked her up, carried her back outside and placed her on the ground. At that
point, Grace was still alive. Rousan instructed Brent to “finish her off.” Brent fired
one shot into Grace’s head. That shot was fatal.

       Rousan, Brent and Robert took the bodies to the Lambing farm and buried
them. About a year later, Rousan’s brother-in-law called the police, believing the call
to be anonymous, and informed them where the Lewises’ killer resided. The police
traced the call to Rousan’s brother-in-law, interviewed him for more information, and
eventually apprehended Rousan hiding on another nearby farm.

       A jury found Rousan guilty on two counts of first-degree murder for the
murders of Grace and Charles Lewis. The jury recommended a death sentence on
both counts, finding five statutory aggravating circumstances in reaching each
decision. The trial judge pronounced a death sentence for the murder of Grace Lewis
and a sentence of life without parole for the murder of Charles Lewis. On direct
appeal, the Missouri Supreme Court affirmed the convictions and sentences. State v.
Rousan, 961 S.W.2d 831 (Mo. banc 1998). After exhausting his state-law post-
conviction remedies, see Rousan v. State, 48 S.W.3d 576 (Mo. banc 2001), Rousan
sought a writ of habeas corpus under 28 U.S.C. § 2254 on nineteen separate grounds.
The district court denied habeas relief but granted a certificate of appealability on the
following eight claims: (1) the striking of three jurors for cause violated Rousan’s
rights under the Sixth, Eighth and Fourteenth Amendments; (2) insufficient evidence
supported the conviction for first-degree murder of Charles Lewis, violating the due
process clause of the Fourteenth Amendment; (3) the admission into evidence of
victim photographs violated due process; (4) trial counsel was ineffective for failing
to move to redact references to Rousan’s prior convictions when Rousan’s statement

                                           -3-
to police was introduced as evidence; (5) the prosecutor’s penalty phase closing
argument violated due process; (6) a jury instruction on accomplice liability
prejudicially confused the jury, violating due process; (7) a jury instruction on
statutory aggravating circumstances prejudicially confused the jury, violating
Rousan’s rights under the Eighth and Fourteenth Amendments; and (8) the trial
court’s refusal to instruct on specific non-statutory mitigating circumstances, violating
Rousan’s rights under the Eighth and Fourteenth Amendments.

II.   DISCUSSION

       We review the district court’s findings of fact for clear error and its conclusions
of law de novo. Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir. 2005). To succeed
on a claim for habeas relief under § 2254, an applicant must show that the state court
adjudication:

      (1) 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; or

      (2) 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.

Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d) (“AEDPA”). “A
decision is ‘contrary to’ federal law . . . if a state court has arrived ‘at a conclusion
opposite to that reached by [the Supreme Court] on a question of law’ or if it
‘confronted facts that are materially indistinguishable from a relevant Supreme Court
precedent’ but arrived at an opposite result.” Davis v. Norris, 423 F.3d 868, 874 (8th
Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)) (alteration in
Davis). “A state court unreasonably applies clearly established federal law when it
‘identifies the correct governing legal principle from [the Supreme] Court’s decisions
but unreasonably applies that principle to the facts of the prisoner’s case.’” Id.

                                           -4-
(quoting Williams, 592 U.S. at 413) (alteration in Davis). In other words, it is not
enough for us to conclude that, in our independent judgment, we would have applied
federal law differently from the state court; the state court’s application must have
been objectively unreasonable. Lyons, 403 F.3d at 592. Finally, facts found by the
state court are presumed to be correct unless the applicant can rebut the presumption
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

      A. The Striking of Three Potential Jurors for Cause

       Rousan claims the trial court violated his constitutional rights in striking three
potential jurors for cause. Potential jurors may not be struck for cause simply because
they state general conscientious or religious scruples with regard to the death penalty.
Gray v. Mississippi, 481 U.S. 648, 657 (1987). However, a potential juror may be
struck for cause if his views “would prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions and his oath.” Wainwright
v. Witt, 469 U.S. 412, 424 (1985) (quotation omitted). In striking such a juror, it is not
necessary to prove with “unmistakable clarity” that a potential juror’s ability is
impaired. Id.

       Rousan points to statements made during voir dire by each of the three potential
jurors, venirepersons Cowan, Henkins and Davis, to the effect that they could put
aside their personal reservations and apply the law as instructed with regard to the
death penalty:

      DEFENSE COUNSEL: [Y]ou personally will be satisfied if they prove
      the defendant guilty beyond a reasonable doubt to you, is that right?

      COWAN: Yes.

      DEFENSE COUNSEL: You won’t make them do more than what the
      law says, you will apply the burden of proof which says that the State
      must prove the defendant guilty beyond a reasonable doubt, that’s the
      standard you use?

                                           -5-
      COWAN: Yes.

      ***

      DEFENSE COUNSEL: Can you set aside your opinion for the purposes
      of doing citizenship duty as a juror . . . ?

      HENKINS: I believe so.

      ***

      COURT: Could you follow the instructions and give realistic
      consideration to both sides?

      DAVIS: Yes.

      COURT: Could you under any circumstances return a verdict of death
      in a case?

      DAVIS: Yes, I think.

       The Missouri Supreme Court summarized the voir dire of the three potential
jurors as follows:

      During the state’s voir dire, venireperson Cowan expressed doubt that he
      could vote for the death penalty. He also stated that “there would have
      to be no doubt at all” before he would vote to impose the punishment of
      death and that he probably would require more proof of guilt in a capital
      case than in other cases. In response to later questions, however, Cowan
      equivocated about his ability to follow the law. Cowan stated that he
      could sign the death verdict if he were foreman. During the defense’s
      voir dire, Cowan stated a number of times that he could follow the law,
      but also stated once that he was not sure he could do so. When later
      questioned by the court and by the state, Cowan stated that he was not
      sure whether he would require extra proof in a capital case and that he
      was not sure that his nerves would “hold up” during the trial. Based in

                                         -6-
      part on Cowan’s increasing indications of stress during voir dire, the
      court sustained the state’s motion to strike Cowan for cause.

      ***

      Venireperson Henkins stated unequivocally that she could not vote for
      the death penalty. She later stated to appellant’s counsel, “I can't
      conceive of me voting that way.” In response to further questioning
      about whether she could set aside her opinion for purposes of doing her
      duty as a citizen, however, Henkins offered, “I believe so.”

      The record shows that venireperson Henkins repeatedly and
      unequivocally indicated that she could not vote for the death penalty.
      Despite her one equivocal statement to the contrary, the trial court
      clearly did not err in sustaining the state’s motion to strike venireperson
      Henkins for cause.

      Venireperson Davis initially equivocated about whether he could vote
      for the death penalty. In response to further questions from the state
      about voting for the death penalty, Davis stated, “It would be very hard,
      I honestly do not know if I could do this.” The state then asked whether
      Davis could sign the death verdict if he were the foreperson. Davis
      stated “no” and then repeated that he would be unable to do that. During
      the defense’s voir dire, Davis stated, “I honestly don’t know that I could
      vote for the death penalty.” He later repeated his uncertainty regarding
      his ability to impose this punishment.

State v. Rousan, 961 S.W.2d at 839-40 (citations omitted).

       The Missouri Supreme Court then summarized its response to Rousan’s claim:

      Although the juror’s ability to follow the law is the ultimate issue in
      capital cases, the court may, and should, consider a venireperson’s
      answers to all questions relevant to this issue, not just the questions
      phrased in one particular way. In each of these cases, the totality of the
      voir dire establishes that the trial court did not abuse its discretion in
      sustaining the state’s motion to strike for cause.

Id. at 841.
                                          -7-
        The availability of habeas relief for a claim that the state court improperly
struck a potential juror for cause is both a legal and factual question. Kinder v.
Bowersox, 272 F.3d 532, 544 (8th Cir. 2001). First, the Missouri Supreme Court’s
holding was not contrary to, nor an unreasonable application of, clearly established
federal law. The Missouri Supreme Court correctly identified the governing
principle—that the ultimate issue is the potential juror’s ability to follow the law as
instructed by the court, rather than the potential juror’s personal views about the death
penalty. Gray, 481 U.S. at 657-58; Wainwright, 469 U.S. at 424. It was reasonable
to apply that principle to the facts of the case by examining the totality of the
responses of each potential juror during voir dire, rather than relying on isolated
responses that appeared favorable to Rousan’s argument. Second, there is no clear
and convincing evidence to rebut the presumption of correctness we must afford to the
state court’s factual finding that the performance of the three potential jurors would
be substantially impaired. See Kinder, 272 F.3d at 543 (“In this case, Judge Blackwell
found that regardless of their recantations or rehabilitation, the four jurors needed to
be excused for cause. It was ‘peculiarly within [the] trial judge’s province’ to evaluate
the ‘demeanor and credibility’ of the venire members and to make that
determination.”) (quoting Wainwright, 469 U.S. at 428) (alteration in Kinder).
Therefore, we affirm the district court’s denial of habeas relief based on the claim that
the trial court violated Rousan’s constitutional rights in striking three potential jurors
for cause.

    B. Sufficiency of the Evidence to Support the Conviction for First-Degree
Murder of Charles Lewis

       Rousan contends that the evidence did not support a finding that he deliberated
in the killing of Charles Lewis. Under Missouri law, deliberation, described as “cool
reflection upon the victim’s death for some amount of time, no matter how short,” is
required for a first-degree murder conviction under an accomplice liability theory and
may not be imputed from an accomplice. State v. O’Brien, 857 S.W.2d 212, 217-18
(Mo. banc 1993). Reviewing all the facts in a light most favorable to the verdict, the
Missouri Supreme Court determined that a reasonable juror could have found
                                           -8-
deliberation beyond a reasonable doubt. State v. Rousan, 961 S.W.2d at 841-42. That
is precisely the analysis required by federal law. See Jackson v. Virginia, 443 U.S.
307, 319 (1979).

       We find no clear and convincing evidence in the record to rebut the
presumption of correctness in the state court’s factual finding. In particular, Rousan’s
agreement that “if it had to be done it had to be done,” his act of loading the rifle “in
case anyone was home” and his warning as he handed the rifle to Brent that they
would “fry” if they were caught support the finding that Rousan deliberated in the
killing of Charles Lewis. Therefore, the district court did not err in denying habeas
relief on this ground.

      C. The Admission into Evidence of Victim Photographs

      The trial court admitted seven photographs of the victims’ bodies taken after
the bodies were recovered. The bodies, recovered one year after the murders, were
severely decomposed. Rousan argues the gruesome appearance of the bodies rendered
the photographs unfairly prejudicial.

       “Questions regarding admissibility of evidence are matters of state law, and
they are reviewed in federal habeas inquiries only to determine whether an alleged
error infringes upon a specific constitutional protection or is so prejudicial as to be a
denial of due process.” Logan v. Lockhart, 994 F.2d 1324, 1330 (8th Cir. 1993). The
petitioner must show that “the alleged improprieties were so egregious that they
fatally infected the proceedings and rendered his entire trial fundamentally unfair.”
Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995) (quotation omitted).

      The Missouri Supreme Court found that the photographs were probative
because they “tended to corroborate the testimony of Robert Rousan, one of the state’s
key witnesses,” “assisted the jury in understanding the testimony of the pathologist”
and “assisted the state’s proof of deliberation” by showing that Grace Lewis was
bound and shot at close range, State v. Rousan, 961 S.W.2d at 844-45, and concluded
                                           -9-
that “this Court cannot say that the allegedly prejudicial impact of these photographs
outweighed their probative value [or that] the admission of the photographs caused the
jury to act on the basis of passion, rather than reason,” id. at 845. This was not
contrary to, nor an unreasonable application of, clearly established federal law. See
Kuntzelman v. Black, 774 F.2d 291, 292-93 (8th Cir. 1985) (per curiam) (finding no
error of constitutional magnitude in the admission of “flagrantly gruesome”
photographs where the photographs “were at least arguably relevant and probative in
showing the identity and condition of the deceased, the location of the wound, and the
intent of [the petitioner] in firing the shot that killed [the victim]”). We also find that
the admission of the photographs, even if it had been erroneous, did not “fatally infect
the proceedings,” Anderson, 44 F.3d at 679, because “[t]he jury’s finding . . . clearly
rests on a substantial factual basis, even absent the photographic evidence in
controversy here,” Kuntzelman, 774 F.2d at 292. Therefore, the district court did not
err in denying habeas relief on this ground.

      D. Ineffectiveness of Trial Counsel for Not Moving to Redact References
to Prior Convictions from Rousan’s Statement to Police

       Rousan referred to his prior convictions in his videotaped confession to the
police. The police did not prompt Rousan to talk about the convictions; rather,
Rousan volunteered the information to explain how he had initially met the Lewises.
Rousan v. State, 48 S.W.3d at 590-91. The videotaped confession was played at trial,
and trial counsel objected to the inclusion of Rousan’s mention of his illegal drug use,
but not to Rousan’s references to his other prior convictions for assault, rape, unlawful
use of a weapon, and escape. Rousan argues that his trial counsel’s failure to move
to redact those references from the confession allowed the jury to convict him
improperly on the basis of his prior convictions.

      In order to overturn a conviction on grounds of ineffective assistance of
counsel, the defendant must show that his trial counsel’s performance fell below the
standard of customary skill and diligence that a reasonably competent attorney would
display and that there is a reasonable probability that the outcome would have been
                                           -10-
different but for the substandard actions of counsel. Strickland v. Washington, 466
U.S. 668, 694 (1984). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.

       The Missouri Supreme Court found no reasonable probability that the failure
to move to redact the references to those prior convictions prejudiced Rousan because
(1) the jury already had learned of the prior convictions during voir dire and had been
given a limiting instruction that they could not use the convictions to determine guilt
or innocence, and (2) the objection would have been fruitless because the references

were necessary to explain the story Rousan told in his confession.2 Rousan v. State,
48 S.W.3d at 590-91. The Missouri Supreme Court properly applied Strickland, and
its analysis was not contrary to, nor an unreasonable application of, clearly established


      2
       Rousan’s story to the police was as follows:

      [Rousan] told the police that he had first met the victims in 1975. He
      saw them again in 1989 after he escaped from custody in the State of
      Washington and sought refuge at the Lewises’ farm. When Mr. Lewis
      discovered [Rousan] hiding in his barn, he fed him, clothed him, and
      when [Rousan] left the farm two weeks later, Mr. Lewis gave him twenty
      dollars. Shortly after that time, [Rousan] was apprehended and returned
      to prison.

      After release from prison in June of 1993, [Rousan] returned to the farm
      to thank Mr. and Mrs. Lewis for their kindness and to rekindle their
      friendship, he said. According to [Rousan], Mrs. Lewis was in poor
      health. [Rousan] explained that Mr. Lewis asked [Rousan] to kill Mrs.
      Lewis to put her out of her misery and to kill him because he did not
      want to live without his wife. [Rousan] also claimed that he was hired
      by Charles Lewis, IV, son of Mr. and Mrs. Lewis, to kill them in
      exchange for fifty-thousand dollars. [Rousan] maintained, however, that
      his actual motivation for the murders was mercy.

State v. Rousan, 961 S.W.2d at 838-39.
                                          -11-
federal law. Therefore, the district court did not err in denying habeas relief on this
ground.

      E. The Prosecutor’s Penalty Phase Closing Argument

       During penalty-phase rebuttal closing argument, the prosecutor addressed the
defense’s request for mercy. The prosecutor stated that “[m]ercy is good” but went
on to make the state’s argument that Rousan did not deserve mercy under the facts and
circumstances of the case. The prosecutor then concluded, “The defense has asked
you for mercy and what they are hoping for is weakness. . . . Weakness is something
we can no longer afford. Do your duty.” Rousan argues that the closing admonition
not to be “weak” improperly influenced the jury’s decision to recommend the death
penalty.

       To grant habeas relief based on an inappropriate comment from a prosecutor,
the comment must be so inappropriate as to make the trial fundamentally unfair. See
Darden v. Wainwright, 477 U.S. 168, 180-81 (1986). There must be a “reasonable
probability” that the error affected the jury’s verdict and that without the error, the
jury’s verdict would have been different. Newlon v. Armontrout, 885 F.2d 1328,
1336-37 (8th Cir. 1989).

       The Missouri Supreme Court found that the prosecutor should have avoided
suggesting that the jury would be “weak” if it returned a certain verdict. However, the
Missouri Supreme Court found no reversible error because the statement was brief,
isolated, and followed a proper discussion of mercy and the jury’s role in sentencing.
State v. Rousan, 961 S.W.2d at 850-51. The Missouri Supreme Court did not act
contrary to, nor unreasonably apply, clearly established federal law in determining that
there was no reasonable probability that the verdict would have been different absent
the prosecutor’s statement. See, e.g., Kinder, 272 F.3d at 551 (holding it was not an
unreasonable application of federal law for the Missouri Supreme Court to find no
reversible error where the prosecutor stated during penalty-phase argument that the

                                          -12-
defendant was “pure evil. Evil stares at you in the courtroom, and I ask you to stare
back and do not blink. . . . We don’t want to share our streets one day with evil. We
cannot risk one day sharing our lives and our world with evil.”). Therefore, the
district court did not err in denying habeas relief on this ground.

      F. The Jury Instruction on Accomplice Liability

       The general accomplice-liability jury instruction given in Rousan’s trial stated
that “[a] person is responsible . . . for the conduct of another person . . . if, for the
purpose of committing that offense, he aids or encourages the other person in
committing it.” Rousan argues that the jury could have used that instruction to ascribe
to Rousan liability for Brent’s commission of first-degree murder without a finding
that Rousan deliberated. To support a conviction for first-degree murder based on
accomplice liability, the deliberation element cannot be imputed; the state had to
prove deliberation by Rousan. State v. Rousan, 961 S.W.2d at 841.

       Where the defendant alleges that jury instructions may have been erroneously
interpreted, the proper inquiry under federal law “is whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way that prevents
the consideration of constitutionally relevant evidence.” Boyde v. California, 494
U.S. 370, 380 (1990). In conducting this analysis, the jury instructions must be
viewed as a whole. Id. at 378.

       The instructions in this case are similar to those we considered in Johns v.
Bowersox, 203 F.3d 538 (8th Cir. 2000). The petitioner in Johns challenged a portion
of the jury instructions that required the jury to find only that either the defendant or
his accomplice acted with deliberation. Id. at 542-43. However, the verdict-directing
instruction also required a finding “that with the purpose of promoting or furthering
the commission of capital murder, the defendant acted together with or aided or
encouraged [the accomplice] in committing that offense.” Id. at 543 (emphasis
added). Applying the pre-AEDPA standard of review, we agreed with the Missouri

                                          -13-
Supreme Court that these instructions, viewed as a whole, “effectively required the
jury to find deliberation” by the petitioner. Id.

        Similarly, in this case, the verdict-directing jury instructions for both first-
degree murder counts required the jury to find that “the defendant aided, or
encouraged [the murder] and did so after deliberation, which means cool reflection
upon the matter for any length of time no matter how brief,” in order to find Rousan
guilty. See State v. Rousan, 961 S.W.2d at 847-48. The Missouri Supreme Court,
viewing the jury instructions as a whole, found no reasonable likelihood that the
general accomplice-liability instruction caused the jury to ignore the explicit
requirement for a finding of deliberation by Rousan in the verdict-directing
instructions. Id. As suggested by Johns, the Missouri Supreme Court’s conclusion
in this case was not contrary to, nor an unreasonable application of, clearly established
federal law. Therefore, we find that the district court did not err in denying habeas
relief on this ground.

      G. The Jury Instruction on Statutory Aggravating Circumstances

       Rousan contends that the jury instruction on statutory aggravating
circumstances in the murder of Grace Lewis prejudicially confused the jury. Jury
Instruction No. 25 read as follows (emphasis added):

      In determining the punishment to be assessed under Count I against
      defendant for the murder of Grace Lewis, you must first unanimously
      determine whether one or more of the following statutory aggravating
      circumstances exists:

      ***

      4. Whether the defendant directed Brent Rousan to murder Grace Lewis.

      5. Whether the murder of Grace Lewis involved depravity of mind and
      whether, as a result thereof, the murder was outrageously and wantonly

                                          -14-
      vile, horrible, and inhuman. You can make a determination of depravity
      of mind only if you find:

      That the defendant killed Grace Lewis after she was bound or otherwise
      rendered helpless by defendant or Brent Rousan and that defendant
      thereby exhibited a callous disregard for the sanctity of all human life.

       The jury found the presence of five aggravating circumstances in the murder of
Grace Lewis, including the fourth and fifth aggravating circumstances as listed
above.3 Rousan argues that the use of the word “killed” instead of “murdered” in
describing the fifth aggravating circumstance prejudicially confused the jury because
“killing,” unlike “murder,” could not be imputed to Rousan as an accomplice of Brent.
Rousan contends the jury was confused because it found that he both directed Brent
to commit the murder, as stated in the fourth aggravating circumstance, and “killed”
Grace Lewis himself, as stated in the fifth. Because Rousan did not object to the
instruction at trial, this claim was reviewed by the Missouri Supreme Court for plain
error resulting in manifest injustice.4 State v. Rousan, 961 S.W.2d at 852.

       Where a petitioner claims that an instruction confused the jury, federal law
requires the court to determine “whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due process.” Estelle v. McGuire, 502
U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The
challenged instruction “must be considered in the context of the instructions as a
whole and the trial record.” Id.



      3
        The other three statutory aggravating circumstances that the jury found to exist
were a 1988 Washington conviction for rape, a 1998 Washington conviction for
assault and the fact that Rousan murdered Grace Lewis while he also was engaged in
the unlawful homicide of Charles Lewis. Rousan does not challenge the jury’s finding
on these three statutory aggravating circumstances.
      4
       An issue that receives plain-error review on direct appeal in state court is not
procedurally barred from review under the AEDPA. James v. Bowersox, 187 F.3d
866, 869 (8th Cir. 1999).
                                          -15-
      The Missouri Supreme Court agreed with Rousan that the fourth and fifth
aggravating circumstances were inconsistent with each other. However, it found the
inconsistency would not undermine confidence in the jury’s penalty-phase
deliberations because:

      The state’s theory throughout trial, the evidence, and the jury’s finding
      at the close of the guilt phase supported a sole finding that appellant was
      guilty of first degree murder as an accomplice; therefore, the statement
      in the depravity of mind aggravator that “defendant killed Grace Lewis”
      would be insufficient to confuse the jury as to the nature of appellant’s
      involvement in the murders.

State v. Rousan, 961 S.W.2d at 853. The Missouri Supreme Court’s analysis of the
allegedly confusing jury instruction was not contrary to, nor an unreasonable
application of, clearly established federal law.

      The Missouri Supreme Court did invalidate the jury’s finding that the fifth
aggravating circumstance was present because there was insufficient evidence to show
Rousan “killed” Grace Lewis himself, rather than by imputation as an accomplice to
Brent. Id. However, that court found that even if the fourth and fifth aggravating
circumstances were both invalidated, the remaining three aggravating circumstances
found by the jury would still support the death sentence because, under Missouri law,
“only one valid aggravating circumstance need exist to uphold a death sentence.” Id.

       Rousan contends that a death sentence premised on a jury’s finding of even one
invalid aggravating circumstance is unconstitutional because the invalid aggravating
circumstance may have skewed how the jury weighed aggravating and mitigating
evidence. We have long analyzed the effect of an invalid aggravating circumstance
on the constitutionality of a death sentence by first determining whether the defendant
was sentenced in a “weighing” or “non-weighing” state. See, e.g., Clay v. Bowersox,
367 F.3d 993, 1005 (8th Cir. 2004) (“In a nonweighing state such as Missouri, a
finding of one valid aggravating circumstance renders harmless the conclusion that
a second aggravating circumstance was constitutionally infirm.”); Sloan v. Delo, 54

                                         -16-
F.3d 1371, 1385 & n.13 (8th Cir. 1995). However, in a recently announced decision,
Brown v. Sanders, No. 04-980 (U.S. Jan. 11, 2006), the Supreme Court has stated that
the “weighing/non-weighing scheme is accurate as far as it goes, but it now seems to
us needlessly complex and incapable of providing for the full range of possible
variations” in state death-penalty sentencing procedures. Id., slip op. at 7. Instead,
“we are henceforth guided by the following rule: An invalidated sentencing factor
(whether an eligibility factor or not) will render the sentence unconstitutional by
reason of its adding an improper element to the aggravation scale in the weighing
process unless one of the other sentencing factors enables the sentencer to give
aggravating weight to the same facts and circumstances.” Id. at 7-8 (footnote
omitted). In other words, where the allegation of error is “the skewing that could
result from the jury’s considering as aggravation properly admitted evidence that
should not have weighed in favor of the death penalty,” id. at 8, constitutional error
occurs “only where the jury could not have given aggravating weight to the same facts
and circumstances under the rubric of some other, valid sentencing factor,” id. at 9.
In addition to the narrow situation addressed in Sanders, the Court recognized that
constitutional error also may arise from “other distortions caused by the invalidated
factor beyond the mere addition of an improper aggravating element.” Id. at 8 n.6.

       Analyzing California’s death-penalty sentencing procedure, the Supreme Court
noted that the jury first must find the existence of at least one statutory “eligibility
factor,” or “special circumstance” in the parlance of the California statute, to render
the defendant eligible for the death penalty. Id. at 9. If the jury finds one of these
eligibility factors, it then considers a separate list of “sentencing factors” in
determining whether the individual defendant merits the death penalty. The list of
sentencing factors directs the jury to consider, among other things, any special
circumstances found in the eligibility phase and the circumstances of the crime in
general. Id. at 9. The jury in habeas petitioner Sanders’s case found four special
circumstances to be present and pronounced a death sentence; two of the special
circumstances were later invalidated by the state supreme court. Id. at 10-11. The
Supreme Court found that the jury’s consideration of the two invalidated eligibility
factors did not render Sanders’s death sentence unconstitutional because at least one
                                          -17-
eligibility factor was valid and “[a]ll of the aggravating facts and circumstances that
the invalidated factor permitted the jury to consider were also open to their proper
consideration under one of the other factors,” namely the general circumstances-of-
the-crime sentencing factor. Id. at 10.

       The Missouri death-penalty sentencing procedure has the same salient aspects
as the California scheme considered in Sanders. In Rousan’s case, Jury Instruction
No. 25 instructed the jury that “if you do not unanimously find from the evidence
beyond a reasonable doubt that at least one of the foregoing statutory aggravating
circumstances exists, you must return a verdict [of] imprisonment for life.” The
statutory aggravating factors fulfill the role of the “eligibility factors” described in
Sanders. Jury Instruction No. 26 instructed the jury that, in the event it had found the
presence of at least one of the statutory aggravating circumstances listed in Instruction
No. 25, it was then to consider all evidence from the guilt and penalty phases of the
trial and “decide whether there are facts and circumstances in aggravation of
punishment which, taken as a whole, warrant the imposition of a sentence of death
upon the defendant.” This is analogous to the general circumstances-of-the-crime
sentencing factor in Sanders.

       We find that the fourth and fifth aggravating circumstances did not permit the
jury to consider any aggravating facts and circumstances that were not already “open
to their proper consideration” as stated in Jury Instruction No. 26. Sanders, slip op.
at 10. Thus “[t]he erroneous factor[s] could not have ‘skewed’ the sentence, and no
constitutional violation occurred.”5 Id. Furthermore, we find no constitutional error


      5
        We would reach the same result under the previous weighing/non-weighing
jurisprudence. See Clay, 367 F.3d at 1005.

       Contrary to Rousan’s argument, the presence of an aggravating-versus-
mitigating-factors weighing step anywhere in the jury instructions does not establish
Missouri as a “weighing state” under that framework. In this case, the jury was
required to find the existence of one of the listed statutory aggravating circumstances
as a necessary prelude to contemplating the death penalty, but it was then instructed
                                          -18-
arising from any “other distortions caused by the invalidated factor.” Id. at 8 n.6; see
supra 14-17 (discussing Rousan’s claim that the invalid factor confused the jury).

       We conclude that the Missouri Supreme Court did not act contrary to, nor
unreasonably apply, clearly established federal law in determining that the
inconsistent wording in the fifth aggravating circumstance did not prejudicially
confuse the jury’s death-penalty deliberations and that the first three aggravating
circumstances found by the jury were each sufficient to permit the jury to consider the
death penalty. Therefore, we find that the district court did not err in denying habeas
relief on this ground.

     H. The Trial Court’s Refusal to Instruct on Specific Non-Statutory
Mitigating Circumstances

        Missouri law lists seven specific mitigating circumstances that must be included
in the jury instructions in a death penalty case if suggested by the evidence. R.S. Mo.
§ 565.032.3. Rousan proposed two additional specific mitigating circumstances for
inclusion in the jury instructions that would have directed the jury to consider his



to consider, or “weigh,” all facts and circumstances of the case in deciding whether
the death penalty should apply. This establishes Missouri squarely as a non-weighing
state. See Stringer v. Black, 503 U.S. 222, 229-30 (1992) (“[I]n Georgia [a non-
weighing state], the jury must find the existence of one aggravating factor before
imposing the death penalty, but aggravating factors as such have no specific function
in the jury’s decision whether a defendant who has been found to be eligible for the
death penalty should receive it under all the circumstances of the case. Instead, under
the Georgia scheme, in making the decision as to the penalty, the factfinder takes into
consideration all circumstances before it from both the guilt-innocence and the
sentence phases of the trial. These circumstances relate both to the offense and the
defendant.”) (internal quotations omitted); Sloan, 54 F.3d at 1385-86 (“In a
nonweighing state such as Missouri, a finding of at least one aggravating circumstance
is a threshold requirement to imposing a death sentence. Here the jury found one
valid aggravating circumstance, that of multiple murders, and was free then to
consider all evidence in aggravation and mitigation.”)
                                          -19-
“early life and upbringing” and the fact that “other participants in this crime have
received sentences of less than death.” The trial court rejected the two specific
additional mitigating circumstances. However, the instruction stated, “You shall also
consider any other facts or circumstances which you find from the evidence in
mitigation of punishment.” Rousan contends that the trial court’s rejection of his two
proffered specific circumstances violated his rights under the Eighth and Fourteenth
Amendments.6

       Once a jury has determined, through a process that channels and limits the
jury’s discretion to ensure that the death penalty is not imposed in an arbitrary or
capricious manner, that a defendant is eligible for the death penalty, the jury must be
allowed to conduct “a broad inquiry into all relevant mitigating evidence to allow an
individualized determination” as to whether the death penalty is warranted in a
specific case. Buchanan v. Angelone, 522 U.S. 269, 275-76 (1998). “[T]he State may
shape and structure the jury’s consideration of mitigation so long as it does not
preclude the jury from giving effect to any relevant mitigating evidence.” Id. at 276.
There is no requirement that the jury be instructed on particular mitigating factors.
Weeks v. Angelone, 528 U.S. 225, 232-33 (2000). “[T]he standard for determining
whether jury instructions satisfy these principles [is] ‘whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way that prevents
the consideration of constitutionally relevant evidence.’” Buchanan, 522 U.S. at 276.




      6
       Rousan also argues that his two proposed specific mitigating circumstances
should have been included in the instructions because they fit within two of
Missouri’s statutorily required mitigating circumstances. To the extent this claim
challenges the Missouri courts’ application of a Missouri statute, rather than alleging
a violation of Rousan’s constitutional rights, we cannot review it. See Lupien v.
Clarke, 403 F.3d 615, 619 (8th Cir. 2005) (“We may not review questions of state law
that have been decided by a state court, even under the deferential standard of 28
U.S.C. § 2254(d).”) (internal quotation omitted).
                                         -20-
        The Missouri Supreme Court noted Rousan’s acknowledgment that it had
repeatedly rejected this argument in other cases, and it chose not to revisit the issue.
State v. Rousan, 961 S.W.2d at 849. We have previously agreed with the Missouri
Supreme Court’s determination that an essentially identical instruction “adequately
covered the jury’s consideration of mitigating evidence and complied with
constitutional requirements for the submission of mitigating circumstances in death
penalty cases.” Tokar v. Bowersox, 198 F.3d 1039, 1050 (8th Cir. 1999). Therefore,
we find that the refusal to list Rousan’s proffered specific mitigating circumstances
in the jury instructions was not contrary to, nor an unreasonable application of, clearly
established federal law. The district court did not err in denying habeas relief on this
ground.

III.   CONCLUSION

      We conclude that the district court did not err in denying habeas relief on each
of the eight grounds for which Rousan was granted a certificate of appealability.
Therefore, we affirm the judgment of the district court denying the writ of habeas
corpus.
                      ______________________________




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