                   United States Court of Appeals
                               For the Eighth Circuit
                           ___________________________

                                   No. 13-3627
                           ___________________________

                                    Roderick Nunley

                         lllllllllllllllllllllPetitioner - Appellant

                                             v.

                                 Michael S. Bowersox

                         lllllllllllllllllllllRespondent - Appellee
                                         ____________

                       Appeal from United States District Court
                  for the Western District of Missouri - Kansas City
                                   ____________

                              Submitted: January 14, 2015
                                 Filed: April 27, 2015
                                    ____________

Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
                          ____________

MURPHY, Circuit Judge.

       Roderick Nunley pled guilty in Missouri state court to the kidnapping, rape, and
murder of a fifteen year old girl named Ann Harrison. After Nunley waived his right
to jury sentencing, the state court sentenced him to death. He now brings this 28
U.S.C. § 2254 action alleging that the state denied his constitutionally protected
liberty interest in the right to capital jury sentencing as articulated in Ring v. Arizona,
536 U.S. 584 (2002), and later applied retroactively under Missouri law by State v.
Whitfield, 107 S.W.3d 253 (Mo. 2003) (en banc). The district court1 denied Nunley's
petition, and we affirm.

       In January 1991, Nunley pled guilty in a Missouri court to kidnapping, raping,
and murdering Ann Harrison. The state court sentenced Nunley to death, and shortly
thereafter he filed a post conviction motion attempting to withdraw his guilty plea and
alleging that his sentencing judge had been drinking prior to the sentencing
proceeding. Nunley's motion to withdraw his plea was denied. He then appealed to
the Missouri Supreme Court. That court entered a summary order "vacating the
judgment and remanding for a new penalty hearing, imposition of sentence and entry
of new judgment," but it did not "reverse the plea" or order "a new plea hearing."
State v. Nunley, 923 S.W.2d 911, 916 (Mo. 1996) (en banc). On remand, Nunley
moved to withdraw his guilty plea and requested jury sentencing. The state trial court
denied his motion and again sentenced Nunley to death. The Missouri Supreme Court
affirmed, reasoning that Nunley had "waived his right to trial by jury when he pleaded
guilty" and had "testified at his plea hearing he understood he had a right to a jury trial
and he was waiving the right." Id. at 923.

       Nunley filed a § 2254 petition in April 2000 challenging his conviction. He
alleged that the state court had violated his constitutional rights when it denied his
motion to withdraw his guilty plea and his request for jury sentencing. During the
pendency of Nunley's federal habeas petition, the United States Supreme Court issued
its decision in Ring that the Sixth Amendment gives defendants the right to have a
jury "find an aggravating circumstance necessary for imposition of the death penalty."
536 U.S. at 609. Nunley then supplemented his § 2254 petition to include a claim
under Ring. A short time later the Supreme Court decided that Ring did not apply to
cases that were "already final on direct review." Schriro v. Summerlin, 542 U.S. 348,


      1
       The Honorable Fernando J. Gaitan, United States District Judge for the
Western District of Missouri.

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358 (2004). Nunley then argued in his § 2254 petition that the Missouri Supreme
Court had applied Ring retroactively as a matter of state law in Whitfield, see 107
S.W.3d at 268–69, thereby entitling him to capital jury sentencing even though his
case was already final on direct review. We denied Nunley's petition, ruling that the
state law "issue he raises" should be "addressed in the first instance—if at all—by a
state court." Nunley v. Bowersox, 394 F.3d 1079, 1081 (8th Cir. 2005).

       Thereafter, the Missouri Supreme Court set Nunley's execution date for October
20, 2010, and Nunley moved to recall the mandate. He argued that his sentence
violated Ring because a judge had made the factual findings which supported the
"aggravating circumstance necessary for imposition of the death penalty." See 536
U.S. at 609. He again argued that Whitfield had applied Ring retroactively as a matter
of Missouri law. See 107 S.W.3d at 268–69. The state supreme court denied his
motion, reasoning that Nunley had waived his right to jury sentencing when he made
the strategic decision to plead guilty. See State v. Nunley, 341 S.W.3d 611, 621 (Mo.
2011) (en banc).

       Nunley then filed a supplemental habeas petition in federal court arguing that
Whitfield had guaranteed his right to have a jury find the aggravating circumstance
necessary for imposition of the death penalty, and the supreme court's refusal to grant
his request for jury sentencing thus deprived him of a "liberty interest" secured by the
Fourteenth Amendment. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). The
federal district court denied his petition. We later granted a certificate of appealability
on whether Nunley had a liberty interest in the retroactive application of Ring and on
whether the state supreme court had unreasonably applied Hicks or made an
unreasonable determination of the facts in light of the state court record.

      We review legal issues presented in a habeas petition "de novo, but we review
any underlying factual findings for clear error." Baranski v. United States, 515 F.3d
857, 859 (8th Cir. 2008). The "focus of our inquiry is whether the state supreme court

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acted contrary to or unreasonably applied clearly established federal law." Losh v.
Fabian, 592 F.3d 820, 823 (8th Cir. 2010). In § 2254 proceedings, a "federal court
may not re-examine a state court's interpretation and application of state law."
Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir. 1994).

       Nunley argues that he has a liberty interest in capital jury sentencing because
Whitfield applied Ring retroactively in Missouri. See Whitfield, 107 S.W.3d at
268–69. He asserts that if "a State has provided for the imposition of criminal
punishment in the discretion of the trial jury," a defendant in such a case has a liberty
interest that the "Fourteenth Amendment preserves against arbitrary deprivation by
the state." Hicks, 447 U.S. at 346 (citation omitted). Nunley contends that the
Missouri Supreme Court unreasonably applied clearly established federal law under
Hicks by refusing to recognize his right to jury sentencing.

       The record indicates, however, that Nunley unequivocally waived his right to
jury sentencing when he pled guilty. At that time the state trial court informed Nunley
that by entering a guilty plea, he was giving up his constitutional right to trial by jury
and his right to jury sentencing. Nunley acknowledged these warnings and waived his
rights. He has since admitted that he made a strategic choice to waive jury sentencing
because he believed a court was less likely to be inflamed by the details of his crime
than a jury. After the trial court sentenced him to death, Nunley changed his tactics
and moved to withdraw his plea. Although the state supreme court later vacated the
trial court's judgment and remanded "for a new penalty hearing, imposition of
sentence and entry of new judgment," it did not "reverse the plea" or order "a new plea
hearing." Nunley, 923 S.W.2d at 916, 919. Nunley's guilty plea and waiver of jury
sentencing thus remained in effect on remand, and he has not established that the state
supreme court unreasonably applied clearly established federal law by denying his
motion to withdraw his plea. See Losh, 592 F.3d at 823.




                                           -4-
       Nunley argues that his waiver was not knowing or voluntary because at the time
he pled guilty, capital defendants had "no recognized right" to have a jury find the
aggravating circumstance necessary for imposition of the death penalty. See Halbert
v. Michigan, 545 U.S. 605, 623 (2005). Nunley nevertheless has no recognized
federal right under Ring given that the Supreme Court did not make that decision
retroactive. See Schriro, 542 U.S. at 358. State law offers him no additional relief.
The Missouri Supreme Court has explained that Whitfield only applies to cases in
which a judge imposed the death penalty after a jury deadlocked over a defendant's
sentence; it does not apply to defendants "who strategically pled guilty to avoid jury
sentencing." Nunley, 341 S.W.3d at 622 (citing Whitfield, 107 S.W.3d at 261–62).
We "may not re-examine a state court's interpretation and application of state law" in
deciding a § 2254 petition, and Nunley's argument under Whitfield thus fails. See
Schleeper, 36 F.3d at 737.

       Nunley also challenges the constitutionality of the statutory scheme under
which he was convicted, asserting that it violated Ring and Apprendi v. New Jersey,
530 U.S. 466 (2000). The relevant Missouri statute provided that no "defendant who
pleads guilty to a homicide offense . . . shall be permitted a trial by jury on the issue
of punishment to be imposed, except by agreement of the state." Mo. Stat. § 565.006
(1991). Nunley nevertheless cites two supreme court opinions from other states which
held that statutes linking a guilty plea to an automatic waiver of jury sentencing
violate Ring. See People v. Montour, 157 P.3d 489, 499 (Colo. 2007) (en banc); State
v. Piper, 709 N.W.2d 783, 803 (S.D. 2006).

       The Missouri Supreme Court rejected Nunley's challenge to Mo. Stat. §
565.006, and its conclusion was not an "unreasonable application of clearly
established federal law." See Losh, 592 F.3d at 823. We have stated that "in the
habeas corpus context, the objective reasonableness of a state court's application of
Supreme Court precedent may be established if our sister circuits have similarly
applied the precedent." Colvin v. Taylor, 324 F.3d 583, 588 (8th Cir. 2003). The

                                          -5-
Fourth Circuit has concluded, as did the Missouri Supreme Court, that "neither
Apprendi nor Ring holds that a defendant who pleads guilty to capital murder and
waives a jury trial under the state's capital sentencing scheme retains a constitutional
right to have a jury determine aggravating factors." Lewis v. Wheeler, 609 F.3d 291,
309 (4th Cir. 2010). The Fourth Circuit's interpretation of Ring indicates that
"fairminded jurists could disagree" with Nunley's challenge to Missouri's plea statute,
and thus the state supreme court's conclusion was not an unreasonable application of
clearly established federal law. See Armstrong v. Hobbs, 698 F.3d 1063, 1066 (8th
Cir. 2012).

       Finally, Nunley argues that the state supreme court made an "unreasonable
determination of the facts in light of the evidence presented in the state court" by
concluding that he had waived his right to jury sentencing. See Davis v. Norris, 423
F.3d 868, 881 (8th Cir. 2005). Nunley contends that he revoked his waiver by
requesting a jury for his second sentencing proceeding after remand and that the state
supreme court's conclusion to the contrary was unreasonable. The record establishes,
however, that the Missouri Supreme Court had only remanded the case for a new
penalty hearing. See Nunley, 923 S.W.2d at 916. The court never reversed the plea
or ordered a new plea hearing. Id. Given that Nunley's waiver was still in effect when
he attempted to adopt a new strategy and requested jury sentencing at his second
capital penalty proceeding, the state supreme court did not make an unreasonable
factual determination in light of the evidence presented. See Davis, 423 F.3d at 881.

      For these reasons we affirm the judgment of the district court.
                      ______________________________




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