                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1466
                         ___________________________

                                   Donald R. Nash

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                                    Terry Russell

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                          Submitted: September 22, 2015
                            Filed: November 24, 2015
                                 ____________

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

MELLOY, Circuit Judge.

      A jury convicted Donald R. Nash of capital murder in violation of section
565.001 of the Revised Statutes of Missouri (1978) in 2009. Following an
unsuccessful appeal to the Missouri Supreme Court, Nash filed this 28 U.S.C. § 2254
habeas corpus petition. He argues that his conviction is not supported by sufficient
evidence and his constitutional rights were violated by Missouri’s “direct connection
rule,” under which the trial court excluded evidence of a third-party’s potential guilt.
The district court1 denied the petition, and Nash appeals. We affirm.

                                    I. Background

       On March 11, 1982, Judy Spencer was found dead in a rural area near Salem,
Missouri. Her body had been dragged to and dumped in the foundation of an
abandoned outhouse about thirty minutes from where her car was found stuck down
a steep embankment on the side of a road. An initial police investigation determined
Spencer had been strangled with her shoelace, then shot in the neck by a shotgun
postmortem. Her postmortem blood alcohol content was 0.18.

       At the time of her death, Spencer had been living with her boyfriend, Appellant
Nash. Spencer had spent the afternoon and evening of March 10 driving around and
drinking with friends. Because Spencer had agreed with Nash to stop drinking, she
lied to him about her whereabouts. When Nash learned that Spencer was drinking at
Janet Jones’s apartment, he went to the apartment and confronted her, saying: “This
is the last time you’ll ever lie to me, bitch.” After Nash left Jones’s apartment,
Spencer washed her hair in a sink and restyled it. She then went to the home she
shared with Nash, where they continued to argue about her drinking and where she
changed her clothes. Spencer returned to Jones’s apartment and invited Jones to go
drinking at bars in Houston, Missouri, more than thirty miles away. Jones declined,
and Spencer left the apartment alone around 8:30pm.

      Nash told investigators that he had spent the evening of March 10 searching
for Spencer in Salem. A witness saw Nash drive past the American Legion Hall
around 8:30pm. The State contends Nash told investigators that he returned home


      1
        The Honorable Terry I. Adelman, United States Magistrate Judge for the
Eastern District of Missouri.

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shortly thereafter and did not leave until the next morning, but Nash maintains he told
a private investigator he continued searching until midnight. A witness saw Nash
driving by Jones’s apartment complex between 10:00pm and 11:00pm. Nash also
called Jones several times to express concern for Spencer and to ask Jones to give
him a wake-up call at 6:00am. The next day, Nash continued to search for Spencer
in Salem. He also traveled to Houston, Missouri, with Jones in the afternoon to
continue searching.

      When Nash and Jones returned to Salem, a state trooper informed them that
Spencer had been killed. Jones testified that Nash appeared heartbroken. At the
hospital, investigators administered a gunshot residue test on Nash. The test results
were negative. Shortly after Spencer’s death, Nash became involved with another
woman. Several months later, Jones recorded a conversation with Nash in which he
(1) admitted he was angry with Spencer; (2) said he did not have an alibi for March
10; and (3) maintained he was innocent.

       The case remained unsolved for twenty-five years until 2007, when Spencer’s
sister requested that investigators reopen the investigation. The investigators
collected a DNA sample from Nash to compare with DNA evidence found on
fingernail clippings taken from Spencer’s body in 1982. Nash appeared nervous
when the sample was taken and asked to be notified “if I am eliminated” as a suspect.
Nash’s DNA sample matched one of two DNA profiles identified on Spencer’s
fingernails (the second profile matched Spencer’s DNA). When he was informed of
this, Nash said it was not possible and his hands started shaking. Ultimately, Nash
was charged with capital murder in violation of section 565.001 of the Revised
Statutes of Missouri (1978).

      Before trial, the State moved to exclude evidence of a third party’s fingerprints
found on Spencer’s car under the “direct connection rule,” which permits the
exclusion of evidence of a third-party’s guilt unless that evidence “prove[s] that the

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other person committed some act directly connecting him with the crime.” State v.
Nash, 339 S.W.3d 500, 513 (Mo. 2011). The third-party fingerprints belonged to
Lambert Anthony Feldman III. Nash alleges Feldman had been seen with Spencer
in Salem, Missouri, a few days before her death. In addition, Feldman had an
extensive criminal history and was known to carry a shotgun in the trunk of his car
at the time of Spencer’s murder. He committed suicide using a shotgun in 2008. The
court granted the motion to exclude the Feldman evidence.

       At trial, the jury considered expert testimony from both sides regarding the
presence of Nash’s DNA under Spencer’s fingernails. In particular, the parties
disputed whether Spencer’s act of washing her hair would have affected the presence
of DNA under her fingernails. The State’s expert testified that she “expect[ed] that
washing your hair . . . would remove DNA from underneath the fingernails.” Nash
presented evidence that co-habitants frequently have each other’s DNA under their
fingernails and that frequent hand washing, even in a hospital setting, would not
remove all foreign DNA. The State contended that Nash’s DNA got under Spencer’s
fingernails sometime after she washed her hair and before her death. Nash argued
that his DNA was under Spencer’s fingernails because they lived together, and it
remained there after Spencer washed her hair. The jury also heard evidence as to
Spencer and Nash’s argument at Jones’ apartment and Nash’s statements to
investigators. Ultimately, the jury found Nash guilty of Spencer’s murder, and he was
sentenced to life without parole.

       On direct appeal of his conviction, Nash raised four issues, contending the trial
court erred by: (1) denying his motion to quash the indictment and dismiss on the
grounds he cannot be prosecuted under the 1978 murder statute; (2) denying his
motion for judgment of acquittal and motion for a new trial on the grounds of
insufficient evidence to support his conviction; (3) failing to provide the jury an
instruction on circumstantial evidence; and (4) granting the state’s motion in limine
to exclude evidence of third party guilt in violation of the Sixth Amendment. The

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Missouri Supreme Court affirmed Nash’s conviction on all grounds. Nash did not file
a timely motion for state postconviction relief.

       On October 3, 2012, Nash filed the present federal petition for writ of habeas
corpus under 28 U.S.C. § 2254. He argues: (1) the evidence was insufficient to
support his conviction under Jackson v. Virginia, 443 U.S. 307 (1976), because the
state supreme court reached an unreasonable determination of the facts; and (2) the
application of the “direct connection rule” regarding the Feldman evidence was an
unreasonable application of clearly established Supreme Court precedent because it
deprived Nash of a meaningful opportunity to present a complete defense. In later
motions to amend his petition, Nash also argued the court should consider new
evidence that was not available at trial, including: (1) a DNA test on Spencer’s shoe
showing an unidentified male DNA profile; (2) a scientific study which tested the
effect of washing on the presence of foreign DNA under fingernails, and (3) an expert
report concluding that Spencer had Nash’s DNA under her fingernails because they
lived together.

       On his sufficiency of the evidence claim, the district court concluded that
Nash’s conviction was supported by sufficient evidence under the Jackson standard.
In addition, the district court determined his “direct connection rule” claim was
procedurally defaulted because on direct appeal Nash challenged the rule as facially
unconstitutional but now makes an as-applied challenge. The district court further
concluded that even if the claim were not procedurally defaulted, Nash would not be
entitled to relief. Finally, the district court denied Nash’s motions to amend his
petition to present newly discovered evidence in support of an actual innocence
claim. Nash appeals the district court’s decisions on all of these issues.




                                        -5-
                                     II. Discussion

       Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
we may grant habeas relief only if “the state court’s decision was ‘contrary to, or
involved an unreasonable application of, clearly established [f]ederal law, as
determined by the Supreme Court of the United States.’” Armstrong v. Hobbs, 698
F.3d 1063, 1066 (8th Cir. 2012) (quoting 28 U.S.C. § 2254(d)(1)). In Williams v.
Taylor, 529 U.S. 362, 412 (2000), the Supreme Court held that a state court decision
is “contrary to” clearly established federal law if it “arrives at a conclusion opposite
to that reached by [the Supreme] Court on a question of law or if [it] decides a case
differently than [the Supreme] Court has on a set of materially indistinguishable
facts.” In addition, a state court decision is an “unreasonable application” of clearly
established federal law if 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.

       The AEDPA standard is difficult to meet as it is intended as “a ‘guard against
extreme malfunctions in the state criminal justice systems,’ not a substitute for
ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86,
102–03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
Accordingly, we assume that any facts found by the state court were correct, and the
petitioner bears the burden to show us by clear and convincing evidence that such
factual conclusions below were incorrect. 28 U.S.C. § 2254(e)(1). We take “only a
limited and deferential review of underlying state court decisions.” Worthington v.
Roper, 631 F.3d 487, 495 (8th Cir. 2011). We review the district court's findings of
fact for clear error and its legal conclusions de novo. Id.




                                          -6-
                           A. Sufficiency of the Evidence

      Nash argues that his conviction was not supported by sufficient evidence
because no reasonable jury a could have found him guilty by relying on the State’s
speculative expert testimony and non-DNA evidence.

       In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court articulated a
narrow standard of review for questions of sufficiency of the evidence. Under
Jackson, a habeas petitioner is entitled to relief if we conclude “that upon the record
evidence adduced at the trial no rational trier of fact could have found proof of guilt
beyond a reasonable doubt.” Id. at 324. In applying this standard, we do not re-
weigh the evidence, and we must resolve inconsistencies in favor of the prosecution.
Id. at 319. Under AEDPA, “we may grant relief only if we find the [Missouri
Supreme Court’s] conclusion that the evidence satisfied the Jackson sufficiency of
the evidence standard ‘both incorrect and unreasonable.’” Garrison v. Burt, 637 F.3d
849, 855 (8th Cir. 2011) (quoting Cole v. Roper, 623 F.3d 1183, 1187 (8th Cir.
2010)).

       The Missouri Supreme Court noted a number of pieces of evidence that could
allow the jury to make inferences that point to Nash’s guilt. Specifically, a reasonable
juror could have found Nash guilty of Spencer’s murder considering: DNA from Nash
and Spencer were the only DNA profiles found under Spencer’s fingernails; expert
testimony that the amount of DNA found would not have come from “low-level
contact”; Nash’s nervousness when asked for a DNA sample; his reaction when
informed that his DNA matched the sample taken from Spencer’s fingernails; Nash’s
statement to Spencer, “That’s the last time you’ll lie to me bitch”; Nash’s inconsistent
statements regarding what time he went home on the night of March 10; his request
that Jones provide a wake-up call on March 11; and Nash’s involvement with another
woman shortly after Spencer’s death. The district court also relied on this evidence



                                          -7-
in concluding the state court did not unreasonably apply the Jackson principle. We
agree.

       While the jury certainly could have resolved the conflicting evidence in Nash’s
favor, we are bound by Jackson to view the facts in the light most favorable to the
prosecution and defer to the state courts where there is some evidence by which a
“rational trier of fact could have found proof of guilt beyond a reasonable doubt.”
Jackson, 443 U.S. at 324. As discussed above, a number of pieces of evidence
support the jury’s guilty verdict. As such, the Missouri Supreme Court’s conclusion
that Nash’s conviction was supported by sufficient evidence is neither incorrect nor
unreasonable. Therefore, Nash is not entitled to habeas relief on this ground.

                            B. The Direct Connection Rule

      Nash next argues that his Sixth Amendment right to present a complete defense
was violated when the trial court excluded the Feldman evidence under Missouri’s
“direct connection rule.” We must first address whether this claim is properly before
this Court.

       Under AEDPA, a petitioner “must exhaust available state remedies” by “‘fairly
present[ing]’ his claim in each appropriate state court.” Baldwin v. Reese, 541 U.S.
27, 29 (2004). In order to “fairly present” a claim, “a petitioner is required to refer
to a specific federal constitutional right, a particular constitutional provision, a federal
constitutional case, or a state case raising a pertinent federal constitutional issue.”
Barrett v. Acevedo, 169 F.3d 1155, 1161–62 (8th Cir. 1999) (en banc). This
requirement is not met by “[p]resenting a claim that is merely similar to the federal
habeas claim.” Id. at 1162. For example, we have previously held that where, on
direct appeal, “[a petitioner] challenged the State’s use of peremptory strikes
generally, but not the strikes of [two black jurors] specifically[,]” the latter claim was



                                            -8-
barred for review by a federal habeas court. Williams v. Norris, 576 F.3d 850, 865
(8th Cir. 2009).

       In this case, the district court determined that Nash did not meet the
requirement to “fairly present” his claim to the state court because Nash presented a
facial challenge to the “direct connection rule” in state court, then presented an as-
applied challenge to the rule in federal court. We agree. Nash argues that his claim
before the Missouri state courts “could only be [interpreted as] an argument as
applied.” Appellant’s Brief at 51. However, there is no clear indication in Nash’s
state supreme court brief that he intended to argue the “direct connection rule”
violated the U.S. Constitution as it was applied in his case. Further, the Missouri
Supreme Court understood Nash’s claim as challenging only the constitutionality of
the “direct connection rule” under Holmes v. South Carolina, 547 U.S. 319 (2006)—a
facial-challenge case. Therefore, we conclude Nash’s “direct connection rule” claim
is procedurally barred, and we need not reach the merits.

                          C. Gateway to Actual Innocence

       Nash argues that even if his “direct connection rule” claim is procedurally
barred, we can review it because he has presented a “gateway” claim of actual
innocence by providing new evidence of Feldman’s guilt. Schlup v. Delo, 513 U.S.
298 (1995). Nash contends the new evidence—including unidentified male DNA on
Spencer’s shoelace, a scientific study which tested the effect of washing on the
presence of foreign DNA under fingernails, and an expert report concluding that
Spencer had Nash’s DNA under her fingernails because they lived together—would
be sufficient to show the application of Missouri’s “direct connection rule” to his case
was unconstitutional.

       To obtain review of an otherwise procedurally barred claim, a petitioner must
satisfy a two-part test: (1) the “allegations of constitutional error must be supported

                                          -9-
with new reliable evidence not available at trial”; and (2) “it is more likely than not
that no reasonable juror would have convicted him in light of the new evidence.”
Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001) (citing Schlup, 513 U.S.
at 327–28). In Schlup, the Court provided several examples of “reliable evidence,”
including “exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence.” Schlup, 513 U.S. at 324. We have further defined “new
evidence” as evidence that “was not available at trial and could not have been
discovered earlier through the exercise of due diligence.” Amrine, 238 F.3d at 1028;
see also Kidd v. Norman, 651 F.3d 947, 951–53 (8th Cir. 2011) (discussing how
various circuits have defined “new” and approving of the Amrine definition).

       The district court interpreted Nash’s motions to amend his petition as asserting
a freestanding claim of actual innocence because Nash did not clearly point to a
procedurally barred claim. We have recognized that if the Supreme Court were to
grant relief on this type of claim, “the threshold . . . would be extraordinarily high
[and] would require more convincing proof than the gateway standard.” Dansby v.
Hobbs, 766 F.3d 809, 816 (8th Cir. 2014) (citation omitted). The district court
concluded that Nash did not meet this threshold because his proffered DNA evidence
was not “new.” In particular, the DNA evidence could have been discovered at trial
through due diligence, and the new scientific studies and expert evidence duplicated
what was presented at trial. Accordingly, the district court denied Nash’s motions to
amend his petition.

        Before this Court, Nash clearly asserts actual innocence as a gateway claim
under Schlup. Even under this less burdensome standard, we agree with the district
court: the evidence Nash seeks to add to the record is not “new” in the sense required
under Amrine. In addition, a reasonable jury could still weigh the evidence presented
at trial, including Nash’s DNA under Spencer’s fingernails, more heavily than the
unidentified male DNA on Spencer’s shoe to support a guilty verdict. Similarly,
although the scientific studies and expert report raise significant questions about the

                                         -10-
testimony of the State’s expert, Nash’s jury heard at least some evidence that Spencer
picked up Nash’s DNA through cohabitation and that hand-washing may not be
sufficient to remove DNA from under fingernails. Therefore, we conclude that even
considering Nash’s newly proffered evidence, a reasonable jury could find Nash
guilty. Amrine, 238 F.3d at 1029.

                                   III. Conclusion

        After careful review of the record, we conclude that Nash has not established
grounds for federal habeas relief. However, as the district court noted below, the
newly presented evidence in this case deserves “serious consideration” in the state
courts. Missouri provides a procedure for a prisoner to petition for habeas corpus
relief in its courts. See Mo. Sup. Ct. Rule 91. We suggest, without weighing in on
the merits, that state court would be a more appropriate forum for Nash’s claims.
Accordingly, we affirm the judgment of the district court.
                         ______________________________




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