                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3961
                                   ___________

Roderick Nunley,                    *
                                    *
            Appellant,              *
                                    * Appeal from the United States
      v.                            * District Court for the
                                    * Western District of Missouri.
Michael Bowersox, Superintendent,   *
Potosi Correctional Center,         *
                                    *
            Appellee.               *
                               ___________

                             Submitted: December 15, 2004
                                Filed: January 14, 2005
                                 ___________

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

BOWMAN, Circuit Judge.

       Roderick Nunley pleaded guilty in Jackson County, Missouri, circuit court to
first-degree murder, armed criminal action, kidnapping, and forcible rape, charges
arising from the 1989 stabbing death of Ann Harrison, a fifteen-year-old girl who was
abducted by Nunley and Michael Taylor while she waited for the school bus. The
court sentenced Nunley to death. The case took a number of turns in the state courts,
including resentencing by another judge, before landing in federal court on Nunley's
motion under 28 U.S.C. § 2254 for habeas relief. The District Court1 denied the
petition but granted a certificate of appealability (COA) on an issue that the court had
not addressed on the merits. We affirm the denial of habeas relief.

        In June 2002 (after Nunley filed his § 2254 petition but a month before he filed
his traverse), the United States Supreme Court held that the Sixth Amendment right
to trial by jury required that a jury, not a judge, "find an aggravating circumstance
necessary for imposition of the death penalty." Ring v. Arizona, 536 U.S. 584, 609
(2002). Because he was sentenced by a judge, Nunley sought to raise a Ring claim
late in the § 2254 proceedings, after he filed his traverse, but the District Court
refused to allow Nunley to argue the issue in a supplemental traverse. Nevertheless,
in an order dated December 4, 2003, the District Court granted Nunley a COA, noting
that the Supreme Court had granted certiorari in a case from the Ninth Circuit to
address questions regarding the retroactivity of Ring.

       A few weeks after Nunley filed his main brief in this appeal, the Supreme Court
handed down its opinion in the Ring retroactivity case, Schriro v. Summerlin, 124
S. Ct. 2519 (2004). The Court said, "Ring announced a new procedural rule that does
not apply retroactively to cases already final on direct review." 124 S. Ct. at 2526.2


      1
      The Honorable Fernando J. Gaitan, United States District Judge for the
Western District of Missouri.
      2
       The Court applied the test it had set out in its previous opinion in Teague v.
Lane, 489 U.S. 288 (1989), and concluded that the rule of Ring did not "alter[] the
range of conduct or the class of persons that the law punishes" but only "altered the
range of permissible methods for determining whether a defendant's conduct is
punishable by death." Schriro v. Summerlin, 124 S. Ct. 2519, 2523 (2004). Further,
the Ring rule did not change the elements of the offense. Finally, the Court held that
the opinion in Ring had not declared a watershed rule of criminal procedure that
would require the federal courts to apply it retroactively, since the fairness and
accuracy of the sentences in question were not affected.

                                          -2-
That decision would seem to settle the matter for Nunley in his bid in federal court
for collateral review of his death sentence under Ring, but Nunley argues otherwise.

       A year before the Summerlin opinion was filed, the Missouri Supreme Court
issued its opinion in State v. Whitfield, 107 S.W.3d 253 (Mo. 2003) (en banc). The
state's highest court decided, as a matter of state law, not to apply the analysis of
Teague v. Lane, 489 U.S. 288 (1989), to determine if Ring should apply retroactively
to the case before it. Instead, the court chose "to continue applying the Linkletter-
Stovall approach to the issue of the retroactivity of Ring." Whitfield, 107 S.W.3d at
268.3 The court noted that the Teague test was narrower than the older Linkletter-
Stovall test and so the court's application of the latter to the question of Ring's
retroactivity would "pass constitutional muster." Id. at 267. The court proceeded to
analyze Ring under the broader test and concluded that the Ring holding would be
retroactive as to "those few Missouri death penalty cases that are no longer on direct
appeal and in which the jury was unable to reach a verdict and the judge made the
required factual determinations and imposed the death penalty." Id. at 268–69; see
also id. at 269 n.17 (identifying five potential cases, besides Whitfield's, to which its
holding that Ring should apply retroactively might be relevant). Although the factual
scenario of Nunley's sentencing does not come within this narrow description of
cases, he nevertheless argues that Ring should apply to invalidate his death sentence.

      In his reply brief, in maintaining that this Court can—and should—vacate his
death sentence, Nunley asserts that "[w]here a state creates certain rights for a
criminal defendant, the law is clear that the Fourteenth Amendment Due Process
Clause requires that the federal courts enforce such rights." Appellant's Reply Brief
at 3. But in the cases he cites, the state courts in question had failed to act in
accordance with due process in applying state law. Such is not the case here. No


      3
       Stovall v. Denno, 388 U.S. 293 (1967); Linkletter v. Walker, 381 U.S. 618
(1965).

                                          -3-
state court has declined to hear Nunley's arguments on a Ring claim or on the
retroactivity of Ring under Whitfield. Moreover, the order granting the COA makes
no mention of Nunley's due process rights or a state court's violation thereof. We do
not dispute the proposition that Missouri may "provide greater protections in [its]
criminal justice system than the Federal Constitution requires." California v. Ramos,
463 U.S. 992, 1014 (1983). But Nunley has chosen the wrong forum in which to seek
those "greater protections." The issue he raises should, in this case, be addressed in
the first instance—if at all—by a state court. See 28 U.S.C. § 2254(b). Under federal
law, which we are bound to follow, Ring is not retroactive on collateral review.

      The District Court's denial of Nunley's petition for habeas relief is affirmed.
                      ______________________________




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