                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3058
                                   ___________

Stacey Eugene Johnson,                *
                                      *
            Appellant,                *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Eastern District of Arkansas.
Larry Norris, Director, Arkansas      *
Department of Correction,             *
                                      *
            Appellee.                 *
                                 ___________

                             Submitted: May 12, 2008
                                Filed: August 8, 2008
                                 ___________

Before LOKEN, Chief Judge, BYE, and COLLOTON, Circuit Judges.
                              ___________

COLLOTON, Circuit Judge.

       Stacey Eugene Johnson was convicted of the murder of Carol Heath and
sentenced to death in 1994. The Supreme Court of Arkansas reversed the conviction,
see Johnson v. Arkansas, 934 S.W.2d 179 (Ark. 1996) (“Johnson I”), and the case was
retried. Johnson was again convicted and sentenced to death, and a divided Supreme
Court of Arkansas affirmed. Johnson v. Arkansas, 27 S.W.3d 405 (Ark. 2000)
(“Johnson II”). After the state circuit court denied Johnson’s petitions for post-
conviction relief, the Supreme Court of Arkansas affirmed in part, but remanded the
case for the limited purpose of conducting a second round of DNA testing of evidence
from the murder scene. Johnson v. Arkansas, 157 S.W.3d 151 (Ark. 2004) (“Johnson
III”). The court subsequently acknowledged that a second round of DNA testing
already had occurred, and thus affirmed the decision of the circuit court denying the
petitions for post-conviction relief. Johnson v. Arkansas, 235 S.W.3d 872 (Ark. 2006)
(“Johnson IV”). Having exhausted his state remedies, Johnson petitioned the district
court1 for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied
relief, Johnson v. Norris, No. 5:06CV00185 JLH, 2007 WL 2343883 (E.D. Ark. 2007)
(“Johnson V”), but granted Johnson a certificate of appealability on several issues.
We affirm.

                                         I.

      We recite the pertinent facts as set forth by the Supreme Court of Arkansas in
Johnson I and Johnson II, which are cited with approval in that court’s two decisions
upholding the denial of post-conviction relief.

       On the morning of April 2, 1993, a friend discovered Carol Heath’s body in the
living room of Heath’s apartment in DeQueen, Arkansas. When the police removed
Heath’s two children from the home, Ashley Heath, then six years old, told Heath’s
friend that a man had broken into the home during the night. Johnson II, 27 S.W.3d
at 408. Ashley was interviewed by Arkansas state police investigator Hayes
McWhirter a few hours later. Ashley told McWhirter that a black male with “a girl
sounding name” had come to the house during the night. Ashley said that the man,
who was wearing a green shirt and sweater, told Heath that he had just been released
from jail, and said that the man was mad at Heath for dating another man, Branson
Ramsey. Ashley said that after her mother and the man fought, she saw her mother
on the floor bleeding, and that the man was next to her mother, holding a knife. Id.
at 409. After this exchange, McWhirter handed Ashley a stack of seven photographs


      1
        The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.

                                         -2-
from which to identify the intruder, and she selected a photograph of Johnson.
Johnson I, 934 S.W.2d at 181.

       Johnson was arrested in Albuquerque, New Mexico, on April 14th, 1993, after
falsely identifying himself to officers during a traffic stop. According to one officer,
Johnson offered each officer $5000 to let him go, and told the officers that he had
killed someone in Arkansas. Johnson was taken into custody and returned to
Arkansas. See Johnson III, 157 S.W.3d at 164.

        DNA from hair found in Heath’s apartment was consistent with Johnson’s, and
initial testing showed that the DNA pattern in the hair appeared in one of every 250
African-Americans. More precise DNA testing later revealed that the DNA pattern
occurs in only one of every 720 million African-Americans. Johnson IV, 235 S.W.3d
at 874-75. DNA testing on a cigarette butt and a bloody green shirt found by the
roadside yielded similar results. The DNA from the saliva on the cigarette butt was
consistent with Johnson’s and occurred with a frequency of 1 in every 28 million
African-Americans. Johnson III, 157 S.W.3d at 162-63. The DNA from the blood
on the shirt was consistent with Heath’s, and occurred with a frequency of 1 in 380
million Caucasians, 1 in 6.4 billion African-Americans, and 1 in 390 million western
Hispanics. Johnson V, 2007 WL 2343883 at *3.

       At Johnson’s first trial, conducted in Sevier County, Ashley was seven years
old, and she could not be persuaded to testify. The trial judge deemed her not
competent to testify, and allowed investigator McWhirter to read Ashley’s prior
statement to the jury. McWhirter testified that Ashley identified Johnson as the
intruder after she viewed a stack of photographs. Johnson II, 27 S.W.3d at 410. The
Supreme Court of Arkansas reversed and ordered a new trial after determining that the
trial court erred in allowing McWhirter to testify about Ashley’s identification of
Johnson. The court concluded that the evidence was not admissible under the excited
utterance exception to the hearsay rule. Johnson I, 934 S.W.2d at 182.

                                          -3-
       On remand, Johnson asked that the trial be moved to Little River County in
light of the extensive publicity in Sevier County. The trial judge granted the motion
for a change of venue, but moved the trial to Pike County rather than Little River
County. Johnson objected to the judge’s choice of venue on the ground that the
percentage of African-Americans in Pike is much smaller than that in either Sevier or
Little River. The judge overruled Johnson’s objection, and the case was transferred
to Pike County.

       Ashley was ten years old at the time of the second trial, and she had been
treated by a psychotherapist in the years after the murder of her mother. Prior to a
hearing about Ashley’s competency to testify in the second trial, Johnson requested
discovery of notes taken during Ashley’s psychotherapy sessions. Although Arkansas
law recognizes a privilege protecting confidential communications between a
psychotherapist and her patient, Ark. R. Evid. 503(b), Johnson argued that these
records were necessary for him to present an adequate defense, for they would enable
him to challenge the witness’s competency at the competency hearing and before the
jury, and to show the need for a defense expert. Ashley had waived the
psychotherapist privilege for the first trial, but her attorney ad litem invoked the
privilege as it related to counseling that occurred after the first trial. The trial judge
agreed that communications occurring after the first trial were privileged, and denied
Johnson’s motion to discover records that would disclose those communications.
Johnson II, 27 S.W.3d at 410.

       Prior to the second trial, Johnson also moved to suppress the statements made
to the arresting officers in Albuquerque. Johnson did not testify at the suppression
hearing. Johnson’s motion to suppress was ultimately denied. Johnson III, 157
S.W.3d at 164. At trial, Johnson sought to introduce testimony from Cordelia
Vinyard, Branson Ramsey’s ex-wife, in an effort to portray Ramsey as an alternative
suspect. The trial court excluded the testimony. Id. at 166.



                                           -4-
       Johnson was convicted at the second trial and sentenced to death. In the penalty
phase of the proceeding, the jury found that the State proved three statutory
aggravating circumstances, see Ark. Code. 5-4-604, including that Johnson committed
the murder in an “especially cruel manner.” Id. § 5-4-604(8). The State also
presented certain victim impact evidence, pursuant to Ark. Code § 5-4-602(4), which
was admitted over Johnson’s objection. The Supreme Court of Arkansas concluded
on direct appeal that the trial court correctly applied state law when it refused to
provide access to Ashley’s psychotherapy records, did not abuse its discretion in
excluding Vinyard’s testimony, and properly admitted victim impact evidence. In
anticipation of a retrial after Johnson’s first conviction, the state supreme court also
had ruled that the “especially cruel” aggravating circumstance was not
unconstitutionally vague or overbroad, and that the Arkansas victim impact statute
was constitutional. In a post-conviction proceeding, the state courts concluded that
Johnson did not receive ineffective assistance of counsel, and that the consideration
of victim impact evidence did not violate the Constitution. These federal proceedings
followed.

                                          II.

       A federal court shall not grant a writ of habeas corpus on a claim that was
adjudicated on the merits by a state court unless the state court’s decision “was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court,” or the state court’s decision “was based
on an unreasonable determination of the facts in light of the evidence presented in the
State court.” 28 U.S.C. § 2254(d). With this standard of review in mind, we turn to
Johnson’s claims.




                                          -5-
                                           A.

       Johnson first argues that his rights under the Sixth and Fourteenth Amendments
were violated when the district court denied Johnson access to Ashley’s
psychotherapist records. Johnson claims that this denial limited his “right to present
a defense” by infringing on “his rights of compulsory process, confrontation, and due
process.” Specifically, Johnson claims that the psychotherapy records would have
allowed him to impeach Ashley during the competency hearing and at trial. He
contends that by denying him access to these records, the trial court prevented him
from presenting material information to the jury and impaired his ability to confront
the witness. Johnson argues that his constitutional rights override the psychotherapist
privilege embodied in Arkansas Rule of Evidence 503.

        The Arkansas courts rejected this argument, reasoning that the denial of access
did not violate Johnson’s Sixth and Fourteenth Amendment rights, because according
to Jaffee v. Richmond, 518 U.S. 1 (1996), the psychotherapist “privilege is more
important than ‘the need for probative evidence.’” Johnson II, 27 S.W.3d at 412
(quoting Jaffee, 518 U.S. at 9-10). In response to Johnson’s claim that the records
would have allowed him more effectively to challenge Ashley’s competency, the
Supreme Court of Arkansas reasoned that “[a]ccess to the records of [Ashley’s]
second therapist would have in no way aided the defense in challenging whether or
not the child was able to appreciate telling the truth on the witness stand, as the child
herself was available for cross-examination on this point.” Id. at 410. The state court
further rejected Johnson’s claim that he was entitled to obtain the records for use at
trial, because it thought Jaffee established that the “psychotherapist-patient privilege
is paramount to the need to gain access to the privileged material for evidentiary
purposes.” Johnson II, 27 S.W.3d at 412.

      Johnson claims that the rationale of Jaffee is inapplicable here, because that
decision did not consider whether the privilege must give way to the rights of an

                                          -6-
accused in a criminal case. He contends that the Arkansas courts unreasonably
applied another precedent, Pennsylvania v. Ritchie, 480 U.S. 39 (1987), which held
that the Due Process Clause of the Fourteenth Amendment entitled an accused to have
a trial court conduct in camera review of a state agency’s confidential file to
determine whether any information in the file was material to the accused’s defense.
Id. at 60. The Pennsylvania statute at issue in Ritchie, however, contemplated some
use of agency records in judicial proceedings, and provided that information would
be disclosed when directed by court order. Id. at 58. The Supreme Court expressed
no opinion on whether the result would be different if the statute had protected the
agency files from disclosure to anyone, including law enforcement and judicial
personnel. Id. at 57 n.14. Unlike the confidentiality protection for the agency files
in Ritchie, the psychotherapist privilege in Arkansas is unqualified, and it is waivable
only by the person who is entitled to assert it. Ark. R. Evid. 503(b)-(c). Ritchie thus
does not dictate the conclusion in this case.

       In Newton v. Kemna, 354 F.3d 776, 781 (8th Cir. 2004), we considered a
contention similar to Johnson’s. In that case, the petitioner argued that his
constitutional right to confront witnesses against him should trump an unqualified
Missouri privilege that protected physician-patient communications, and that the state
court’s invocation of the privilege to limit his cross-examination of a prosecution
witness violated the Sixth Amendment. We concluded that whether a constitutional
right overrides a state policy to protect confidentiality “seems to be a function of the
relative strength of the privilege and the nature of the constitutional right at stake.”
354 F.3d at 782. The right to cross-examine a key witness prevailed over a state
policy of protecting the anonymity of juvenile offender records in Davis v. Alaska,
415 U.S. 308, 319-20 (1974), but the Court “expressly left open the question of
whether a criminal defendant’s constitutional rights might overcome the attorney-
client privilege” in Swidler & Berlin v. United States, 524 U.S. 399, 408 n.3 (1998).
Newton, 354 F.3d at 781; see also Ritchie, 480 U.S. at 56 (observing that the
applicability of the Compulsory Process Clause to a claim for discovery of evidence

                                          -7-
is “unsettled”). Because we were “unable to discern any transcendental governing
principles” that foreshadowed how the Supreme Court would resolve a claim that the
right to confrontation prevails over the physician-patient privilege, we held in Newton
that the state court’s decision was not contrary to or an unreasonable application of
clearly established law. 354 F.3d at 782.

        We reach the same conclusion with respect to Johnson’s claim. Although Davis
and Ritchie establish that in at least some circumstances, an accused’s constitutional
rights are paramount to a State’s interest in protecting confidential information, those
decisions do not establish a specific legal rule that answers whether a State’s
psychotherapist-patient privilege must yield to an accused’s desire to use confidential
information in defense of a criminal case. In Newton, moreover, we specifically
rejected an argument in the context of a discovery dispute that Jaffee allows for a
“balancing” approach to the psychotherapist-patient privilege. 354 F.3d at 784. Even
if the Supreme Court’s decisions suggest that some degree of balancing is necessary
in a criminal case, they seem to provide only general guidance. “Applying a general
standard to a specific case can demand a substantial element of judgment,”
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004), and under AEDPA, “[t]he more
general the rule, the more leeway courts have in reaching outcomes in case-by-case
determinations.” Id. Given the absence of direct guidance from the Supreme Court
in this area, the decisions of the Arkansas courts to enforce the psychotherapist-patient
privilege under these circumstances were within the range of reasonableness permitted
by AEDPA.

      Johnson also argues that production of the psychotherapy records was required
under the due process rationale of Brady v. Maryland, 373 U.S. 83 (1963). The
Supreme Court of Arkansas rejected this contention, because the argument
“presupposes that the State had access to or knowledge of the records and their
contents,” and Johnson had “not shown that the State had access to the records
sought.” Johnson II, 27 S.W.3d at 412-13. The Arkansas court did not unreasonably

                                          -8-
apply Brady when it said that the State has no obligation to disclose medical records
that are not in its possession. See United States v. Riley, 657 F.2d 1377, 1386 (8th Cir.
1981). Johnson does not refute the state court’s determination that the prosecution
had no access to records of Ashley’s psychotherapy treatment. Accordingly, the
Arkansas court did not unreasonably apply clearly established federal law in rejecting
Johnson’s Brady claim.

                                           B.

       Johnson next argues that his Sixth Amendment right to counsel was violated
because his trial counsel was ineffective at the pre-trial suppression hearing. Johnson
claims that he never made an unprovoked confession to the arresting officers in
Albuquerque, and that trial counsel failed to challenge the testimony of police officers
that Johnson made admissions to them. Johnson says that he would have disputed the
police testimony if he had been called as a witness, but that trial counsel urged him
not to testify. Counsel, he contends, was ignorant of Arkansas Rule of Evidence
104(d), which allows a defendant at a preliminary hearing to avoid cross-examination
on the merits of a case. Johnson also argues that even if he did confess to the officers
in New Mexico, trial counsel was ineffective for not attempting more vigorously to
exclude the confession, and for failing to object to the admission of other
incriminating statements made at the same time as the confession.

       Johnson’s ineffective assistance claim is governed by Strickland v. Washington,
466 U.S. 668 (1984), which requires a defendant to show both that counsel’s
performance was deficient and that the deficiency prejudiced his defense. The
Supreme Court of Arkansas determined that Johnson had not made either showing.
Johnson III, 157 S.W.3d at 164. The state court explained that even though trial
counsel did not file a written motion to suppress, counsel was able to litigate the
suppression issue at a pretrial hearing. We agree that Johnson has not demonstrated
that counsel’s failure to present a motion in writing, rather than orally, was such a

                                          -9-
serious failure that “counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment,” Strickland, 466 U.S. at 687, or that Johnson was
prejudiced by counsel’s choice to proceed in that manner. The state court’s rejection
of this ineffective-assistance claim was not an unreasonable application of Strickland.

        As for Johnson’s claim that his counsel should have called him to testify at the
pretrial hearing, the state circuit court determined that counsel’s decision was a matter
of trial strategy, (Johnson App. 2313), and the Supreme Court of Arkansas accepted
the testimony of trial counsel that Johnson made the decision not to testify after
counsel explained the situation. Johnson III, 157 S.W.3d at 164. Johnson relies on
an admission by a junior member of Johnson’s trial team that he was unfamiliar with
Arkansas Rules of Evidence, but the record does not refute the state court’s
determination that Johnson was able to make his own decision about whether to testify
after counsel explained the situation. This is because Johnson’s lead counsel testified
that he informed Johnson that the rules of evidence would limit the scope of cross-
examination at the hearing, but there was still a risk to Johnson if he took the stand.
According to counsel, he advised Johnson of the risk that testimony by the defendant
would “open the door” to potentially damaging evidence, and that prosecutors “are
going to figure out a way a lot of times to get something else in.” Counsel recounted
his advice to Johnson that “if the defendant cannot really, really help himself, he
should never take the stand because if he can’t help himself and he takes the stand, he
puts himself subject to cross-examination by the prosecutor.” This advice reflects
counsel’s strategic understanding of the risks and benefits of his client testifying at the
suppression hearing. It was not an unreasonable application of Strickland for the state
courts to determine that counsel acted within the wide range of professionally
competent assistance when he gave this advice to Johnson before allowing Johnson
to decide whether to testify.

        Finally, Johnson claims that his trial counsel was ineffective in failing to object
to the admission of other statements that Johnson made to the officers in New Mexico.

                                           -10-
In particular, one officer testified that Johnson “start[ed] talking about some
homicides in Arizona and [was] talking about drugs.” Johnson contends that this
testimony suggested that he had committed other crimes, and that counsel should have
tried to exclude them. At the post-conviction hearing, trial counsel testified that he
believed the statements would be admitted, and he decided not to object as part of a
strategy to make Johnson’s statements (including the confession to the Heath murder)
appear to be “outrageous ramblings” and “not credible.” Johnson III, 157 S.W.3d at
164. The Arkansas circuit court and the Supreme Court of Arkansas determined that
this decision was part of defense counsel’s trial strategy, and thus not grounds for
postconviction relief. Id. The Supreme Court’s guidance is that strategic decisions
by counsel are “virtually unchallengeable” unless they are based on deficient
investigation. See Strickland, 466 U.S. at 690; Link v. Luebbers, 469 F.3d 1197, 1204
(8th Cir. 2006). The Supreme Court of Arkansas decision on this point is therefore
not contrary to, or an unreasonable application of, clearly established federal law.

                                           C.

        Johnson’s next claim is that his trial counsel was ineffective when he failed to
raise a constitutional challenge to the trial court’s refusal to admit Cordelia Vinyard’s
testimony. Vinyard had been married to Branson Ramsey until April 1, 1993, the date
of Heath’s death. Johnson proffered that Vinyard would have testified that Ramsey
had physically abused her and had bitten her breast at times during the four years prior
to their divorce. Ramsey was dating Heath at the time of the murder, and Johnson
sought to use her testimony to portray Ramsey as an alternative suspect, by connecting
the bite marks that Vinyard allegedly suffered with the bite marks on Heath’s body.
Johnson’s trial counsel argued that the evidence was relevant to the defense, but the
trial judge excluded the testimony as a matter of state evidentiary law, on the ground
that it would do “no more than create an inference or conjecture as to another’s guilt.”
Zinger v. State, 852 S.W.2d 320, 323 (Ark. 1993) (internal quotation omitted).



                                          -11-
Johnson now argues that his counsel also should have raised a federal constitutional
argument for admitting the testimony.

       The Supreme Court of Arkansas rejected Johnson’s claim, holding that he failed
to show a reasonable probability that the outcome would have been different if
counsel had couched the argument for admission of Vinyard’s testimony in
constitutional terms. Johnson III, 157 S.W.3d at 166. This was not an unreasonable
application of the prejudice component of Strickland. The state trial court rejected the
proffered testimony under the Zinger rule, concluding that it provided only an
“inference or conjecture” of Ramsey’s guilt. Johnson II, 27 S.W.3d at 201 (citing
Zinger, 852 S.W.2d at 323). Given the state law basis for rejecting the testimony,
there is little reason to believe that the trial court would have accepted an argument
to admit Vinyard’s testimony based on a constitutional right “to present a defense.”
The Supreme Court recently recognized the “well-established” and “widely accepted”
rules of evidence that “permit trial judges to exclude evidence if its probative value
is outweighed by certain other factors such as unfair prejudice, confusion of the
issues, or potential to mislead the jury.” Holmes v. South Carolina, 547 U.S. 319,
326-27 (2006). These rules include those excluding evidence “proffered by criminal
defendants to show that someone else committed the crime with which they are
charged.” Id. at 327. This discussion and the cited authorities lead us to conclude that
any constitutional argument that might have been advanced by Johnson’s counsel
would have been unsuccessful. Because no prejudice resulted from trial counsel’s
failure to make a constitutional argument on this point, the state court did not
unreasonably apply Strickland in holding that counsel was not ineffective.

                                          D.

      Under Arkansas law, a defendant found guilty of capital murder may be
sentenced to death if a jury finds, beyond a reasonable doubt, that an aggravating
circumstance exists and that all the aggravating circumstances outweigh mitigating


                                         -12-
circumstances and justify the penalty of death. Ark. Code Ann. § 5-4-603. One of the
aggravating circumstances found by the jury in Johnson’s case was that the murder
was committed in “an especially cruel manner.” Ark. Code Ann. § 5-4-604(8)(A).
The Arkansas statute further provides that a capital murder is committed in an
“especially cruel manner” when “as part of a course of conduct intended to inflict
mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s
death, mental anguish, serious physical abuse, or torture is inflicted.” “Mental
anguish” is further defined as “the victim’s uncertainty as to his or her ultimate fate.”
§ 5-4-604(8)(A)(ii)(a). “Serious physical abuse” means physical abuse that creates
a substantial risk of death or that causes protracted impairment of health, or loss or
protracted impairment of any bodily member or organ,” and “torture” means “the
infliction of extreme physical pain for a prolonged period of time prior to the victim’s
death.” § 5-4-604(8)(A)(ii)(b)-(c). The jury was instructed in accordance with these
definitions.

       Johnson argues that the “especially cruel manner” aggravating circumstance is
unconstitutionally vague. The state supreme court rejected Johnson’s vagueness
argument, relying on its earlier decision in Greene v. State, 878 S.W.2d 384, 390 (Ark.
1994). See Johnson I, 934 S.W.2d at 188 (addressing issues in anticipation of retrial).
Greene explained that Arkansas’s “cruel or depraved manner” aggravating
circumstance was modeled after Arizona’s comparable aggravating circumstance,
which was upheld against an Eighth Amendment challenge in Walton v. Arizona, 497
U.S. 639 (1990), overruled on other grounds in Ring v. Arizona, 536 U.S. 584 (2002).
In Walton, the Court held that the Arizona Supreme Court’s limiting interpretation of
its “heinous, cruel or depraved” aggravating circumstance was not unconstitutionally
vague. The Arizona court interpreted “cruel” to mean that the perpetrator “inflicts
mental anguish or physical abuse before the victim’s death,” and that “mental anguish
includes a victim’s uncertainty as to his ultimate fate.” Id. at 646. The Supreme Court
in Walton concluded that this limiting interpretation was sufficient to give
“meaningful guidance to the sentencer,” and not impermissibly vague. Id. at 655.


                                          -13-
The Supreme Court of Arkansas in Greene (and Johnson I) determined that the nearly
identical Arkansas statute was constitutional as well. See Johnson I, 934 S.W.2d at
188. In view of Walton’s holding regarding a comparable aggravating circumstance,
the Arkansas court did not unreasonably apply clearly established federal law in
rejecting Johnson’s vagueness challenge.

       Johnson also claims that the limitation imposed by the “especially cruel”
aggravating circumstance is illusory, because the circumstance can be applied “to any
homicide in which the victim did not die almost instantly.” Even if the circumstance
is limited to that subset of homicides, it was not unreasonable for the Supreme Court
of Arkansas to conclude that the aggravating circumstance genuinely narrows the class
of death-eligible persons, and therefore complies with the Eighth Amendment. See
Lowenfield v. Phelps, 484 U.S. 231, 244 (1988). At the time of the state court’s
decision, there was no clearly established federal law that an aggravating circumstance
must narrow the class of death-eligible persons to any particular degree. The Supreme
Court’s guidance has been that “the circumstance may not apply to every defendant
convicted of a murder; it must apply only to a sub-class of defendants convicted of
murder.” Tuilaepa v. California, 512 U.S. 967, 972 (1994); see also Arave v. Creech,
507 U.S. 463, 474 (1993) (“If the sentencer fairly could conclude that an aggravating
circumstance applies to every defendant eligible for the death penalty, the
circumstance is constitutionally infirm.”). Johnson’s argument presupposes that the
“especially cruel” circumstance does not apply to every murderer, because he
acknowledges that it excludes at least those who kill their victims almost instantly.
Therefore, we conclude that the Arkansas courts did not unreasonably apply clearly
established federal law in rejecting his overbreadth challenge to the aggravating
circumstance.




                                         -14-
                                          E.

       Johnson next challenges the use of victim impact testimony at the sentencing
phase of his trial. Two weeks after Heath’s murder, Arkansas passed a law permitting
the introduction of victim impact testimony in capital proceedings. See Ark. Code
Ann. § 5-4-602. Johnson argues that the application of this law to his case violates
the Constitution’s prohibition on ex post facto laws. This contention is foreclosed by
Nooner v. Norris, 402 F.3d 801, 806-07 (8th Cir. 2005), where we held that “the
Arkansas victim impact evidence statute is procedural in nature and does not offend
the ex post facto clause.” Id. at 807.

       Johnson also argues that the Arkansas victim impact statute is unconstitutional
because it allows the admission of irrelevant and prejudicial evidence, and that victim
impact evidence “has no place in the aggravation-mitigation weighing process.” The
Supreme Court of Arkansas has concluded, as a matter of state law, that victim impact
evidence is not an aggravating circumstance, but is “simply evidence to be
considered” in the statutory weighing process. Johnson III, 157 S.W.3d at 173. In
response to a contention that victim impact evidence conflicts with the weighing
process for aggravating and mitigating circumstances, the Arkansas court alluded to
“the State’s legitimate interest in counteracting the defendant’s mitigating evidence,”
Kemp v. State, 919 S.W.2d 943, 956 (Ark. 1996) (cited in Johnson III, 157 S.W.3d at
173), and relied on the Supreme Court’s recognition that “there is nothing unfair about
allowing the jury to bear in mind [the specific harm caused by the defendant] at the
same time it considers the mitigating evidence introduced by the defendant.” Id.
(quoting Payne v. Tennessee, 501 U.S. 808, 826 (1991)). We agree with the state
court’s application of Payne, and conclude that the decision does not unreasonably
apply established federal law.

     In a related argument, Johnson complains that the consideration of victim
impact evidence in his case was unconstitutional because the jury was not directed


                                         -15-
how to consider the evidence. The Supreme Court of Arkansas has rejected this claim,
citing the Supreme Court’s direction that “‘[a] capital sentencer need not be instructed
on how to weigh any particular fact in the capital sentencing decision.’” Kemp, 919
S.W.2d at 956 (quoting Tuilaepa, 512 U.S. at 979). See Johnson I, 934 S.W.2d at 189
(citing Kemp). Particularly given the Court’s statement in Payne that “[t]here is no
reason to treat [victim impact] evidence differently than other relevant evidence is
treated,” 501 U.S. at 827, the state court’s decision to require no special instruction
is consistent with established federal law. We further agree with the district court that
nothing in the Supreme Court’s decisions regarding unconstitutionally vague statutes,
e.g., Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Lanzetta v. New
Jersey, 306 U.S. 451 (1939), suggests that a State may not allow victim impact
evidence in the penalty phase of a capital case without a specific instruction to the jury
about how to consider that evidence.

        Johnson next claims that the admission of victim impact testimony violates the
Sixth Amendment because victim impact constitutes a “de facto aggravating
circumstance,” and because under Ring v. Arizona, 536 U.S. 584 (2002), the Sixth
Amendment requires that an aggravating circumstance that increases the maximum
punishment available must be proved to a jury beyond a reasonable doubt. Under
Arkansas law, however, victim impact is not an aggravating circumstance. Rather,
admission of victim impact evidence is provided for separately as “[o]ther matter
relevant to punishment.” Ark. Code Ann. § 5-4-602(4)(A)(iii). It is “not an additional
aggravating circumstance but rather is relevant evidence which informs the jury of the
toll the murder has taken on the victim’s family.” Noel v. State, 960 S.W.2d 439, 446
(Ark. 1998). Unlike a statutory aggravating circumstance, victim impact testimony
is not “necessary to support a death sentence,” Ring, 536 U.S. at 607, and it does not
qualify the defendant for the death penalty like an aggravating circumstance under
Ark. Code Ann. § 5-4-603(a). As a result, the Supreme Court of Arkansas did not
unreasonably apply federal law in concluding that Ring is inapplicable. See also



                                          -16-
Schriro v. Summerlin, 542 U.S. 348, 358 (2004) (holding that Ring does not apply
retroactively to cases on collateral review).

                                          F.

       Johnson also disputes the trial court’s decision to move the case to Pike County
rather than Little River County, after Johnson requested to change venue due to
pretrial publicity. African-Americans constituted 19 percent of the population in
Little River County, but only 3.2 percent in Pike County. Johnson argues that the trial
court’s decision to move the case to Pike County violated his rights under the Sixth
Amendment to be tried by a jury that represents a fair cross-section of the community.
See Taylor v. Louisiana, 419 U.S. 522, 530 (1975). He further contends that the
decision of the Supreme Court of Arkansas was an unreasonable application of
decisions “forbidding manipulative practices which would have the effect of reducing
minority participation,” citing the Supreme Court’s holding that the Equal Protection
Clause prohibits racially motivated peremptory challenges during jury selection. See
Batson v. Kentucky, 476 U.S. 79 (1986)

       There is no discussion of these claims in the decisions of the Supreme Court of
Arkansas, but the State suggests that the court rejected the arguments summarily as
part of its review of the record for prejudicial error pursuant to Ark. Sup. Ct. R. 4-
3(h). See Johnson II, 27 S.W.3d at 416.2 Whether or not these claims have been
exhausted and decided on the merits by the state supreme court, see 28 U.S.C.

      2
        In his brief filed with the Supreme Court of Arkansas, Johnson discussed his
motion for change of venue in a section advanced “pursuant to Rule 4-3 of the Rules
of the Supreme Court,” and entitled “Other Objections.” (R. Doc. 10, Resp. Exh. F,
at 907-08). Johnson explained that he sought to move the case to Little River County
rather than Pike County, explained the percentage of black persons in the population
of each county, and noted that the defense “did not move to quash the panel and did
not object to the seating of the jury as it was.” The brief advanced no argument based
on the fair cross-section requirement of the Sixth Amendment.

                                         -17-
§ 2254(b)(2). they are in any event foreclosed by our decision in Mallett v. Bowersox,
160 F.3d 456 (8th Cir. 1998). In Mallett, a black man argued that the state trial court
violated his rights under the Sixth Amendment, Equal Protection Clause, and Due
Process Clause by transferring his case to a county in which no black person resided.
Our court held that Batson was inapplicable to a change of venue, because the trial
court’s decision on venue had nothing to do with prosecutorial discrimination in
striking venirepersons based on race. Id. at 460. We also rejected Mallett’s claim that
the change of venue deprived him of a jury drawn from a fair cross-section of the
community, because “[n]o authority exists for the proposition that the term
‘community,’ as used in the context of this Sixth Amendment claim, means any place
other than” the county from which the jury venire ultimately was drawn. Id. at 461.
For the reasons given in Mallett, Johnson cannot establish that the change in venue in
this case violated his constitutional rights.

                                          G.

       Johnson’s final argument is that the certificate of appealability should be
expanded to encompass a claim that his constitutional rights were violated when the
Arkansas courts refused to order a third round of DNA testing on certain evidence
relating to the murder, and to order testing on a number of Caucasian hairs that the
prosecution stipulated did not belong to Johnson. For the reasons stated by the district
court, Johnson, 2007 WL 2343883, at *18-19, we conclude that Johnson has not
“made a substantial showing of the denial of a constitutional right” on these claims.
28 U.S.C. § 2253(c)(2).

                                   *       *       *

      The judgment of the district court is affirmed.
                     ______________________________



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