                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 11-1016
                                     ___________

Richard D. Clay,                          *
                                          *
      Petitioner - Appellant,             * Appeal from the United States
                                          * District Court for the
      v.                                  * Western District of Missouri.
                                          *
Michael Bowersox,                         *     [TO BE PUBLISHED]
                                          *
      Respondent - Appellee.              *
                                     ___________

                                Submitted: January 6, 2011
                                   Filed: January 6, 2011
                                    ___________

Before WOLLMAN, LOKEN and COLLOTON, Circuit Judges.
                          ___________

PER CURIAM.

      Richard D. Clay was convicted of murder in Missouri and sentenced to death.
See Clay v. Bowersox, 367 F.3d 993 (8th Cir. 2004); State v. Clay, 975 S.W.2d 121
(Mo. 1998). The Supreme Court of Missouri has scheduled Clay’s execution for
January 12, 2011. Clay has filed with this court an application for a certificate of
appealability from the district court’s1 order of January 3, 2011, denying his
Supplemental Petition for Writ of Habeas Corpus. He also filed a motion for stay of

      1
        The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
execution. For the reasons that follow, we deny the application and dismiss the
appeal. We also deny the motion for stay of execution.

       Clay’s supplemental petition argued that the State of Missouri violated his
rights under the Due Process Clause of the Fourteenth Amendment, as construed in
Hicks v. Oklahoma, 447 U.S. 343, 346 (1980).2 Clay contends that the State
arbitrarily denied him the right to proportionality review of his death sentence under
Mo. Rev. Stat. § 565.035.3, as recently defined by the Supreme Court of Missouri in
State v. Dorsey, 318 S.W.3d 648, 659 (Mo. 2010). Whereas the state supreme court
in Clay’s case conducted proportionality review by comparing his case only to other
similar cases in which the death penalty was imposed, Clay, 975 S.W.2d at 146, the
court recently changed its construction of the statute, and held that proportionality
review now requires consideration of all factually similar cases in which the death
penalty was submitted to the jury, including those resulting in a sentence of life
imprisonment without the possibility of probation or parole. Dorsey, 318 S.W.3d at
659. In support of his application for a certificate of appealability, Clay points out
that this court, on November 12, 2010, granted a certificate of appealability in
Goodwin v. Roper, No. 10-2816, on the question whether the Supreme Court of

      2
        The Anti-Terrorism and Effective Death Penalty Act restricts the authority of
a district court to consider “second or successive” habeas corpus applications under
28 U.S.C. § 2254, and it requires authorization from a court of appeals before a second
or successive application may be filed in the district court. 28 U.S.C. § 2244(b). The
State took the position in the district court that “Clay’s claim is not ‘second or
successive’ under 28 U.S.C. § 2244(b) because he was not able to raise his claim in
his original habeas petition.” R. Doc. 81, at 1 n.1. As in Jones v. Roper, 311 F.3d
923, 924-25 (8th Cir. 2002) (per curiam), we assume this point for purposes of
analysis. See Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001) (“Courts
considering the construction of § 2244(b) have uniformly rejected a literal reading.”).
But cf. Magwood v. Patterson, 130 S. Ct. 2788, 2798 (2010) (“AEDPA uses the
phrase ‘second or successive’ to modify ‘application.’ The State reads the phrase to
modify ‘claims.’ We cannot replace the actual text with speculation as to Congress’
intent.”) (citations omitted).

                                         -2-
Missouri unreasonably applied Hicks when it conducted proportionality analysis by
comparing Goodwin’s case only to similar cases in which death was imposed.

       After this court granted a certificate in Goodwin, the Supreme Court of
Missouri explained that Clay “received proportionality review in the manner provided
by law at the time of that review,” and that proportionality review as provided in the
recent Dorsey decision “is not to be applied retrospectively.” Order, State v. Clay, No.
SC78373 (Mo. Dec. 9, 2010). In light of this explanation by the Missouri court, we
conclude that Clay has not made “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), as required for the issuance of a
certificate of appealability, see Miller-El v. Cockrell, 537 U.S. 322, 327 (2003), or
shown a significant possibility of success on the merits, as required for a stay of
execution. See Hill v. McDonough, 547 U.S. 573, 584 (2006).

       The Supreme Court in Wainwright v. Stone, 414 U.S. 21 (1973) (per curiam),
held that a state supreme court is not constitutionally compelled to make retroactive
its new construction of a state statute, id. at 23-24, explaining that “‘[a] state in
defining the limits of adherence to precedent may make a choice for itself between the
principle of forward operation and that of relation backward. It may say that decisions
of its highest court, though later overruled, are law none the less for intermediate
transactions.’” Id. at 24 (quoting Great N. Ry. Co. v. Sunburst Oil & Ref. Co., 287
U.S. 358, 364 (1932)). Hicks did not involve a question of retroactivity, and it did not
cast doubt on the discussion of retroactivity in Stone. Clay therefore has not made a
substantial showing that the decision of the Supreme Court of Missouri to apply its
new construction of Mo. Rev. Stat. § 565.035.3 prospectively only is an unreasonable
application of clearly established federal law, as determined by the Supreme Court of
the United States.

      The application for a certificate of appealability is denied, and the appeal is
dismissed. The motion for stay of execution is denied.
                      ______________________________

                                          -3-
