                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3160
                                    ___________

John Middleton,                          *
                                         *
              Appellant,                 *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Don Roper,1                              *
                                         *
              Appellee.                  *
                                    ___________

                              Submitted: December 12, 2005
                                 Filed: July 6, 2006
                                  ___________

Before LOKEN, Chief Judge, WOLLMAN and RILEY, Circuit Judges.
                             ___________

RILEY, Circuit Judge.

      A Missouri state court sentenced John A. Middleton (Middleton) to death
following Middleton’s convictions for two counts of first-degree murder. The
Missouri Supreme Court affirmed Middleton’s convictions and sentences on direct
appeal, and later affirmed the denial of his motion for post-conviction relief.
Middleton timely applied for a writ of habeas corpus under 28 U.S.C. § 2254. The



      1
        Pursuant to Fed. R. App. P. 43(c)(2), Don Roper, the current Superintendent
of the Potosi Correctional Center and successor to Al Luebbers, is substituted as party
appellee.
district court2 denied habeas relief, but granted Middleton a certificate of appealability
on eight grounds. We affirm.

I.    BACKGROUND
      We recite the facts of Middleton’s crimes as found by the Missouri Supreme
Court in previously published opinions in this case. See State v. Middleton, 998
S.W.2d 520, 523-24 (Mo. 1999) (en banc) (affirming Middleton’s convictions and
sentences on direct appeal); Middleton v. State, 80 S.W.3d 799, 803-04 (Mo. 2002)
(en banc) (affirming the denial of Middleton’s motion for post-conviction relief).

      On June 10, 1995, several drug dealers were arrested in Cainsville, Missouri.
Middleton, a drug dealer who was not arrested, worried informants would implicate
him. That afternoon, Middleton told another individual there were “some snitches that
should be taken care of,” because Middleon did not want to return to prison.
Middleton mentioned several names, including Randy “Happy” Hamilton (Hamilton).

       On June 11, Middleton and his girlfriend met Hamilton and Stacey Hodge
(Hodge), Hamilton’s girlfriend, on a gravel road. Middleton shot Hamilton in the
back once with an SKS rifle and shot Hodge in the back three times. Middleton then
killed Hamilton with a shot to the head. Middleton’s girlfriend killed Hodge with
another SKS rifle by shooting Hodge in the head. Middleton and his girlfriend placed
both bodies in the trunk of Hamilton’s car. Middleton drove Hamilton’s car, looking
for a place to dispose of the bodies, with Middleton’s girlfriend following in a truck.
While driving around in Hamilton’s car, Middleton encountered Danny Spurling
(Spurling). Middleton, covered in blood, told Spurling he had “taken care” of
Hamilton. Middleton then asked Spurling for advice on what to do with the bodies.
Middleton indicated he might burn the bodies in Hamilton’s old house. The next
morning, Middleton gave Spurling the car stereo from Hamilton’s car and said “they

      2
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
                                       -2-
were really going to freak out when they found those two.” Middleton also showed
Spurling a written list of names and asked if Spurling knew anyone on the list.

       About a week and a half later, Middleton told Richard Pardun (Pardun) “there
was a narc around and they were going to take care of it.” Middleton said he had a
“hit list” and mentioned several names on it, including Hamilton, Alfred Pinegar
(Pinegar), and William Worley (Worley). Middleton offered Pardun $3,500 to set up
a meeting with Worley.

       On June 25, John Thomas (Thomas) and Middleton discussed informants at
Middleton’s house. Middleton named several people who “needed to be taken care
of,” including Hamilton, Pinegar, and Worley. While at Middleton’s house, Thomas
noticed two SKS rifles as well as a box belonging to Hamilton. When Thomas
inquired about the box, Middleton replied “the guy who owned that box wouldn’t be
needing it no more.”

      Around the same time, Middleton visited Dennis Rickert (Rickert) in Iowa.
Middleton told Rickert, “I’d knowed ‘Happy’ for 15 [years]. He knew enough to put
me away for life. I done ‘Happy.’” Middleton then gave Rickert several guns,
including two SKS rifles, which Rickert later turned over to the police.

       Pinegar was found murdered on June 26, 1995, and Middleton was arrested for
Pinegar’s murder shortly thereafter.3 On July 10, Hamilton’s car was discovered
abandoned in the woods. Hamilton’s and Hodge’s decomposed bodies were found in
the trunk, and the car stereo was missing. Bullet fragments taken from Hodge’s body
displayed class characteristics consistent with the SKS rifles Middleton gave to
Rickert.



      3
      Middleton was convicted in 1997 for Pinegar’s murder.          See State v.
Middleton, 995 S.W.2d 443 (Mo. 1999) (en banc).
                                     -3-
       While awaiting trial, Middleton confessed to fellow jail inmate Douglas
Stallsworth, who testified Middleton described the murders, admitted killing Hamilton
and Hodge because they were informants, and acknowledged hiding their bodies and
taking the rifles to Iowa.

        Following a jury trial in the Circuit Court of Callaway County, Missouri,
Middleton was convicted of two counts of first-degree murder and two counts of
armed criminal action. He was sentenced to death for each of the two murders and
given consecutive ten-year sentences on the armed criminal action counts. The
Missouri Supreme Court affirmed Middleton’s convictions and sentences on direct
appeal, Middleton, 998 S.W.2d at 531, and later affirmed the denial of post-conviction
relief, Middleton, 80 S.W.3d at 817.

       Middleton then sought a writ of habeas corpus under 28 U.S.C. § 2254 in
federal district court. The district court denied habeas relief, but granted a certificate
of appealability on the following eight claims: (1) trial counsel’s failure to call
Middleton’s family members or former employers during the penalty phase to testify
about Middleton’s mental impairments and diligent work ethic; (2) trial counsel’s
failure to elicit additional mitigating evidence from Middleton’s mother during the
penalty phase; (3) trial counsel’s failure to present evidence during the guilt phase
regarding Middleton’s mental state or intent; (4) trial counsel’s failure to object to the
prosecution’s reference to “society’s drug problem”; (5) violation of Middleton’s right
to be present at three pretrial hearings; (6) the prosecution’s failure to disclose deals
made with two of the state’s witnesses; (7) admission of testimony from Sheriff
George Martz (Sheriff Martz) regarding why charges were dropped against a state
witness; and (8) the prosecution’s penalty phase argument concerning the jury’s
imposition of a death sentence.




                                           -4-
II.     DISCUSSION
        When considering the district court’s denial of a habeas petition, “we review
the district court’s findings of fact for clear error and its conclusions of law de novo.”
Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir. 2005) (internal quotation omitted).
Under 28 U.S.C. § 2254(d), “[w]hen a claim has been adjudicated on the merits in
state court, habeas relief is warranted only if the state court proceeding resulted in
(1) ‘a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,’ or (2) ‘a decision that
was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’” Bucklew v. Luebbers, 436 F.3d 1010, 1015
(8th Cir. 2006) (quoting 28 U.S.C. § 2254(d)(1), (2); see, e.g., Rompilla v. Beard, 545
U.S. 374, 125 S. Ct. 2456, 2462 (2005)). A decision is “contrary to” federal law “if
the state court arrives at a conclusion opposite to that reached by [the Supreme] Court
on a question of law or if the state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 412-13 (2000). A decision is “an unreasonable application” of federal law “if the
state court 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. at 413. “In other words, it is not enough for us to conclude that, in our independent
judgment, we would have applied federal law differently from the state court; the state
court’s application must have been objectively unreasonable.” Rousan v. Roper, 436
F.3d 951, 956 (8th Cir. 2006) (citation omitted). Furthermore, in federal habeas
proceedings, we bestow a presumption of correctness on the factual findings of the
state courts, and absent procedural error, we may set such findings aside “only if they
are ‘not fairly supported by the record.’” Simmons v. Luebbers, 299 F.3d 929, 942
(8th Cir. 2002) (quoting Purkett v. Elem, 514 U.S. 765, 769 (1995)).




                                           -5-
        A.    Ineffective Assistance of Counsel
        Middleton raises several claims of ineffective assistance of counsel, which
involve mixed questions of law and fact. See McReynolds v. Kemna, 208 F.3d 721,
723 (8th Cir. 2000). To overturn a conviction on grounds of ineffective assistance of
counsel, Middleton must demonstrate (1) his trial counsel’s performance was so
deficient as to fall below an objective standard of the customary skill and diligence
displayed by a reasonably competent attorney, and (2) there is a reasonable probability
the outcome of the trial would have been different absent the substandard actions of
trial counsel. See Strickland v. Washington, 466 U.S. 668, 687-94 (1984). “Judicial
scrutiny of counsel’s performance is highly deferential, indulging a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional judgment.” Bucklew, 436 F.3d at 1016 (citing Strickland, 466 U.S. at
689). With this standard in mind, we address each of Middleton’s ineffective
assistance claims in turn.

               1. Failure to Call Family Members and Former Employers During
                  Penalty Phase
       Middleton first contends trial counsel provided ineffective assistance by failing
to contact four former employers and two family members or call them as witnesses
during the penalty phase. The former employers, for whom Middleton worked for a
few years during the early 1980s, would have testified Middleton was hard-working,
diligent, reliable, quiet, and a person of limited intellect. Middleton’s uncle, Glenn
Williams (Williams), would have testified Middleton’s father was incarcerated for
stealing, and Middleton was mentally slow and was mistreated by one of his mother’s
boyfriends. Middleton’s aunt, Sylvia Purdin (Purdin), often babysat Middleton when
his mother visited his father in the penitentiary. Purdin said Middleton was quiet,
reserved, played alone, and acted as though he were “in a daze.” Both Williams and
Purdin would have testified Middleton’s mother inhaled gas fumes as a child.
Middleton argues reasonably competent counsel would have investigated and called
the aforementioned witnesses and there is a reasonable probability the witnesses’
testimony would have persuaded the jury not to impose a death sentence. Rejecting
                                          -6-
this claim, the Missouri Supreme Court concluded trial counsel’s investigation was
reasonable and Middleton failed to prove ineffectiveness. Middleton, 80 S.W.3d at
809.

      The state court’s decision was a reasonable application of the Strickland
standard. As the Missouri Supreme Court noted, defense counsel

      reviewed 12 boxes of materials his former attorneys gathered. These
      materials included deposition transcripts, some hearing transcripts, notes
      from witnesses, photographs, police reports, coroner reports, and
      forensic reports. The attorneys also reviewed his work history, engaged
      two mental health experts, and talked to Department of Corrections
      employees.

Id. We agree with the district court that this is not a case of inadequate investigation;
rather, Middleton’s counsel “had the information in hand and after consideration
chose not to present it.”

       Middleton contends counsel’s possession of the twelve boxes of materials does
not indicate counsel made a strategic decision not to call one or more of the witnesses
and further argues there is no reason to assume the boxes contained information that
could have led trial counsel to conclude the witnesses were not worth investigating.
Such an argument ignores two fundamental duties under Strickland: this court’s duty
to “indulge a strong presumption” trial counsel rendered reasonable professional
assistance, and Middleton’s duty to overcome this presumption. See Strickland, 466
U.S. at 689. At Middleton’s post-conviction hearing, Middleton neglected to adduce
evidence demonstrating trial counsel lacked a strategic justification for not calling or
investigating the witnesses. No basis exists for overcoming the highly deferential
Strickland presumption in favor of trial counsel’s reasonable conduct. Thus, the state
court’s conclusion Middleton did not prove ineffective assistance of trial counsel was
not an unreasonable application of federal law.


                                          -7-
              2. Failure to Elicit Mitigating Evidence from Middleton’s Mother
        Middleton next argues trial counsel was ineffective for failing to elicit
additional mitigating evidence during the penalty phase from Middleton’s mother.
Middleton’s mother had testified on behalf of her son during the Pinegar murder
trial’s penalty phase, after which Middleton was sentenced to death. During the
Pinegar trial penalty phase, Middleton’s mother testified to the following additional
facts: Middleton’s blood condition and medical problems at birth and during his
childhood; the head injury Middleton suffered as a child; his alcoholic and often
unemployed father who spent time in prison, did not want a family, abused
Middleton’s mother, and had extramarital affairs; the abusive environment in which
Middleton was raised; Middleton’s receipt of alcohol and marijuana from his mother’s
boyfriend, his sister’s husband, and a cousin; and Middleton’s learning impairments.
During the post-conviction hearing, Middleton introduced the Pinegar trial transcript
of his mother’s testimony and questioned trial counsel, who testified she did not recall
reading the mother’s Pinegar trial testimony. Counsel’s failure to do so, Middleton
argues, demonstrates Middleton suffered prejudice because there is a reasonable
probability the jury would have rendered a punishment other than death had it heard
this additional testimony from Middleton’s mother.

       The Missouri Supreme Court concluded Middleton failed to prove trial
counsel’s conduct was unreasonable, stating, “[t]his evidence–that trial counsel did
not read [Middleton’s] mother’s Pinegar testimony–proves only that counsel did not
learn these facts from the Pinegar trial. Defendant did not question defense counsel
about her knowledge and why she chose not to elicit these facts.” Middleton, 80
S.W.3d at 810. Additionally, the Missouri Supreme Court found Middleton failed to
demonstrate a reasonable probability he would have received a punishment other than
death, given he was sentenced to death in the Pinegar trial, despite the jury having
heard the testimony in question from Middleton’s mother. Id.

     We agree with this reasoning and thus hold the state court’s conclusion
Middleton failed to demonstrate ineffective assistance of counsel was not an
                                     -8-
unreasonable application of Strickland. There is no evidence trial counsel either was
unaware of the additional information from Middleton’s mother or lacked a rational
justification for omitting it from the penalty phase. Middleton did not satisfy his
burden to overcome the presumption of counsel’s reasonable performance. Further,
the fact the jury sentenced Middleton to death in the Pinegar trial weakens
Middleton’s argument that a different outcome would have resulted in this case but
for counsel’s failure to elicit additional testimony from Middleton’s mother. As the
district court recognized, “different juries may come to different conclusions, but the
tactic’s failure in one case certainly provided justification for counsel not to pursue
it a second time.” Accordingly, finding no error by the courts below, we deny
Middleton’s claim for habeas relief on this point.

             3. Failure to Present Evidence Regarding Middleton’s Mental State
      During the trial’s guilt phase, defense counsel did not present any evidence.
Rather, defense counsel attacked the credibility of the state’s witnesses and contended
during closing argument the state had not proven guilt beyond a reasonable doubt.
Following the jury’s verdict of guilty and during the penalty phase, the defense called
Dr. Jonathan Lipman (Dr. Lipman), a neuropharmacologist, who testified Middleton’s
chronic methamphetamine use caused him symptoms consistent with paranoid
schizophrenia such as delusions, hallucinations, and paranoia, and concluded
Middleton suffered from extreme mental or emotional disturbance at the time of the
murders. During the penalty phase closing argument, defense counsel relied upon this
testimony to support one of its arguments against imposing the death penalty.

       Middleton now asserts counsel provided ineffective assistance by failing
to present expert testimony during the guilt phase that Middleton was not guilty by
reason of mental disease or defect or suffered from diminished capacity. Specifically,
Middleton argues counsel should have called Dr. Lipman, along with Dr. Philip
Murphy (Dr. Murphy), a clinical psychologist, and Dr. A.E. Daniel (Dr. Daniel), a
psychiatrist, to testify during the guilt phase that Middleton’s drug use impaired his
mental faculties, and that Middleton lacked the ability to recognize the wrongfulness
                                            -9-
of his actions or thereby form the intent necessary to be convicted of first-degree
murder. According to Middleton, presenting such evidence during the guilt phase
would have resulted in a more unified, consistent theme during the two phases of the
trial, making it more likely the jury would have imposed only a life sentence.

       Rejecting Middleton’s claim of error, the Missouri Supreme Court held counsel
investigated but reasonably chose not to present defenses of diminished capacity and
mental disease or defect during the guilt phase based on (1) Middleton’s assertion he
did not want to present that defense, (2) Middleton’s assertion of innocence, and
(3) counsel’s fear that presenting contradictory defenses during the guilt phase was
not sound trial strategy. Middleton, 80 S.W.3d at 806-07. The district court agreed,
noting the evidence relied upon by Middleton was not entirely helpful and did not
clearly demonstrate Middleton lacked the ability to form the requisite intent. Thus,
the district court concluded Middleton did not demonstrate ineffective assistance of
counsel.

       In determining whether Middleton is entitled to relief, we examine whether
counsel acted in an objectively reasonable manner in choosing not to present evidence
of Middleton’s mental condition or intent during the trial’s guilt phase. Based on our
review of the record, we conclude trial counsel acted reasonably in eschewing the
introduction of such evidence for several reasons. First, “[t]he reasonableness of
counsel’s actions may be determined or substantially influenced by the defendant’s
own statements or actions.” Strickland, 466 U.S. at 691. At Middleton’s post-
conviction proceeding, trial counsel testified Middleton was aware of the possibility
of pursuing a defense based on diminished capacity or mental disease or defect, but
insisted he was not present at the murder scene. Professing his innocence, Middleton
asserted he did not want counsel to present a diminished capacity defense. Middleton
did not testify at the post-conviction proceeding; thus, counsel’s testimony on this
point stands unrebutted. Counsel’s adherence to Middleton’s desired defense supports
a conclusion of reasonably effective assistance.

                                        -10-
       Second, while presenting inconsistent theories or defenses may be plausible in
some cases, at other times it may not be sound trial strategy. We give great deference
to counsel’s informed strategic decisions, noting we “must resist the temptation to
second-guess a lawyer’s trial strategy.” Laws v. Armontrout, 863 F.2d 1377, 1393
(8th Cir. 1988) (en banc) (citation omitted). “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland, 466 U.S. at 690. In Weekley v. Jones, 76 F.3d 1459,
1462 (8th Cir. 1996) (en banc), this court rejected a claim of ineffective assistance for
counsel’s failure to pursue a defense of not guilty by reason of insanity. In doing so,
we recognized that while pleading in the alternative is legally permissible, “there is
much respectable opinion to the effect that jurors are put off by it and regard it with
suspicion. In fact, there is considerable empirical evidence that insanity pleas in and
of themselves are not received favorably by jurors.” Id. at 1463.

       Third, trial counsel’s reasonable hesitance in presenting alternative defenses is
bolstered by other difficulties in the case, including evidence of advance planning and
expert testimony that contradicted the notion of Middleton’s inability to form the
requisite intent. We agree with the district court’s remarks that “the facts surrounding
the commission of the crime suggest (1) a legitimate reason for [Middleton]’s fears
that the victims might be a threat to his freedom, and (2) a degree of planning and
advance thought that demonstrated the requisite mental state.” Furthermore, the
proffered expert opinions are not entirely favorable to Middleton’s position on appeal.
During the trial’s penalty phase, Dr. Lipman testified Middleton would have known
it was illegal to kill someone despite the fact Middleton suffered from an extreme
emotional disturbance. In addition, although Dr. Daniel would have testified about
Middleton’s inability to reflect coolly in advance upon his actions, Dr. Daniel also
admitted he was unaware of certain facts about the murder, such as Middleton’s
arrangement of a meeting with the victims in an isolated location, and that such facts
might affect his ultimate conclusion. As the district court correctly found, the state
court reasonably applied federal law in denying this claim.

                                          -11-
               4. Failure to Object to Prosecution’s Closing Argument
        Middleton asserts trial counsel was ineffective for failing to object during
penalty phase closing arguments following the prosecution’s reference to society’s
drug problems. “To establish ineffective assistance of counsel for failing to object to
a prosecutor’s closing argument, [Middleton] must demonstrate, as in every
ineffective assistance claim, not only that counsel’s performance was deficient, but
also that there is a reasonable probability that, but for counsel’s failure to object, the
result of the proceeding would have been different.” Bucklew, 436 F.3d at 1021. We
will grant habeas relief if the prosecutor’s comments were so inappropriate as to make
the trial fundamentally unfair and the resulting conviction a denial of due process. See
Darden v. Wainwright, 477 U.S. 168, 180-81 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637 (1974)).

      During closing arguments in the penalty phase, the prosecution argued:

             Another reason you need to give [Middleton] the death penalty for
      both of these crimes is because you have heard a lot about drugs, not
      only in this trial about methamphetamine but you’ve probably heard on
      the news how bad the methamphetamine problem is. Hear all the time
      about labs getting shut down and how the problem keeps growing. Well,
      what kind of message do you send to those drug dealers out there–

The court overruled an objection by defense counsel, and the prosecution continued:

             What kind of message do you send to those drug dealers out there
      who are keeling [sic] methamphetamine who are afraid of going to jail,
      afraid of getting caught when you give somebody life without parole?
      Not a very strong message. . . . When you give them the highest
      punishment this state has to offer, which is the death penalty, you send
      a message. . . . We’re not going to tolerate drugs and we’re not going to
      tolerate anybody who kills because of drugs. And that’s why you need
      to give this man, not one, but finish that circle and give him two more
      death penalties. Do it as an insurance policy and do it so that everybody
      in the northeast Missouri will know that the people of Missouri are not
                                          -12-
      going to tolerate people killing to save themselves from going to jail.
      Because that’s exactly what this man did.

Defense counsel did not object a second time. Middleton faults counsel for failing to
do so, contends the argument invited the jury to sentence him to death for drug
dealing, a non-capital offense, and argues but for this error, Middleton would have
received a sentence of life imprisonment without parole.

       The Missouri Supreme Court rejected Middleton’s claim, finding the trial court
overruled defense counsel’s first objection, and repeated objections might have
alienated jurors or drawn attention to the complained-of argument. Middleton, 80
S.W.3d at 816. The Missouri Supreme Court further found the prosecution’s
argument, as a whole, was proper, given the prosecution clarified that persons who
murder to facilitate drug dealing deserve the death penalty, after initially inferring
mere drug dealing warranted the death penalty. Id. The district court agreed:
although it found the prosecution’s argument “arguably improper,” it held Middleton
suffered no prejudice. Viewing the prosecution’s closing argument in its entirety and
in context, the district court concluded the jury was not invited to vote for the death
penalty simply because of Middleton’s involvement with drugs.

       We agree with the conclusion of the Missouri Supreme Court and the district
court that trial counsel did not provide ineffective assistance. Middleton fails to
demonstrate trial counsel’s performance was deficient. See Strickland, 466 U.S. at
687. Often, trial counsel will withhold objections during otherwise improper
arguments–especially during closing arguments–for strategic purposes. Where an
objection previously has been made and overruled, repeated objections to the same
subject matter may simply draw the jury’s attention to the complained-of argument
or perhaps irritate or alienate the jury. Here, trial counsel objected once during the
prosecution’s closing argument and was overruled. Counsel’s decision to forgo
repeated objections falls within the wide range of reasonable professional conduct.


                                         -13-
       Similarly, Middleton fails to demonstrate a reasonable probability the error
complained of affected the proceeding’s outcome. See id. The prosecution’s
argument advocated capital punishment for people who murder to facilitate drug
dealing or to avoid going to jail, as opposed to people who simply use, deal, or are
involved with drugs. For that reason, we also are unconvinced this argument, as a
whole, was improper. Thus, the Missouri Supreme Court did not act contrary to, nor
unreasonably apply, clearly established federal law in determining trial counsel was
not ineffective for withholding additional objections during the prosecution’s closing
argument.

              5. District Court’s Failure to Consider Cumulative Effect of
                 Ineffective Assistance Claims
       Notwithstanding the deficiencies of each ineffective assistance of counsel
claim, Middleton argues the district court erred by analyzing individually the
prejudice resulting from his multiple claims and by concluding each claim must rise
or fall on its own merits. Citing Strickland and its progeny, including Wiggins v.
Smith, 539 U.S. 510 (2003), and Williams v. Taylor, 529 U.S. 362 (2000), Middleton
contends the district court should have considered the cumulative effect of trial
counsel’s errors in determining Strickland prejudice.

       We reject Middleton’s argument for two reasons. First, Middleton advances an
erroneous interpretation of Supreme Court precedent. Neither Wiggins nor Williams
stand for the proposition courts should accumulate the prejudice from separate
ineffective assistance claims in determining whether to grant habeas relief. Rather,
both decisions involved only a single claim of ineffective assistance of
counsel–namely, trial counsel’s failure to investigate and present mitigating evidence
during the trial’s penalty phase. See Wiggins, 539 U.S. at 514; Williams, 529 U.S. at
390.

      Second, Middleton’s argument contradicts Eighth Circuit precedent. We
repeatedly have recognized “a habeas petitioner cannot build a showing of prejudice
                                        -14-
on a series of errors, none of which would by itself meet the prejudice test.” Hall v.
Luebbers, 296 F.3d 685, 692 (8th Cir. 2002) (citation omitted); see, e.g., United States
v. Robinson, 301 F.3d 923, 925 n.3 (8th Cir. 2002) (recognizing “the numerosity of
the alleged deficiencies does not demonstrate by itself the necessity for habeas relief,”
and noting the Eighth Circuit’s rejection of cumulative error doctrine); Wainwright
v. Lockhart, 80 F.3d 1226, 1233 (8th Cir. 1996) (“Errors that are not unconstitutional
individually cannot be added together to create a constitutional violation.” (citation
omitted)); Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir. 1990) (holding “cumulative
error does not call for habeas relief, as each habeas claim must stand or fall on its
own” (citation omitted)). Therefore, we have no hesitancy in rejecting Middleton’s
argument and concluding the cumulative effect of alleged trial counsel errors is not
grounds for granting habeas relief.

       B.     Proceedings In Abstentia
       Middleton next argues his absence at three pretrial motion hearings held on
October 24, 1997, February 13, 1998, and March 13, 1998, violated his statutory and
constitutional rights to be present at trial.4 On direct appeal, the Missouri Supreme
Court rejected Middleton’s claim, finding (1) Missouri statutory law has not
interpreted the right to be personally present during trial to include pretrial motion
hearings, (2) the Missouri constitutional right to be present is waived unless the
defendant’s presence is requested and Middleton’s defense counsel at each hearing
expressly waived Middleton’s presence, and (3) the United States Constitution did not
require Middleton’s presence at the pretrial hearings. Middleton, 998 S.W.2d at 524-
26. The district court affirmed, concluding that it was not empowered to review the
state court’s determination concerning Middleton’s rights under state law and that
Middleton’s absence did not violate his due process rights.




      4
       Middleton also alleges he was absent from a fourth hearing held on December
19, 1997. However, the record indicates Middleton was present for that hearing.
                                       -15-
       Like the district court, we lack authority to review the Missouri Supreme
Court’s interpretation and application of state law, for “it is not the province of a
federal habeas court to reexamine state-court determinations on state-law questions.”
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “In conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.” Id. at 68 (citations omitted). Thus, we limit our
inquiry to whether Middleton’s absence at three pretrial hearings violated his federal
constitutional right to be present at trial.

       A defendant has a due process right to be personally present in judicial
proceedings “whenever his presence has a relation, reasonably substantial, to the
fulness of his opportunity to defend against the charge.” Kentucky v. Stincer, 482
U.S. 730, 745 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)).
The defendant’s “privilege of presence is not guaranteed when presence would be
useless, or the benefit but a shadow, [but] due process clearly requires that a defendant
be allowed to be present to the extent that a fair and just hearing would be thwarted
by his absence.” Id. (internal quotations and citations omitted). When there is no
indication the defendant could have done or gained anything had he attended the
hearing, there is no due process violation. See United States v. Gagnon, 470 U.S. 522,
527 (1985) (per curiam).

       Our review of the nature of the proceedings in question leads us to conclude no
due process violation occurred because of Middleton’s absences. The first pretrial
hearing, held on October 24, 1997, involved the scheduling of pretrial conferences as
well as the prosecution’s motion to compel the discovery of tapes and notes possessed
by Drs. Murphy and Lipman. The scheduling of conferences did not require
Middleton’s presence. Simply put, there is no indication Middleton could have done
or gained anything concerning these matters had he attended the hearing, and thus no
due process violation occurred. We reach a similar conclusion with respect to the
prosecution’s motion to compel. The materials sought by the prosecution had been
prepared in connection with the Pinegar murder trial, and at the time of the motion to
                                          -16-
compel, Middleton’s trial counsel had not yet fully examined the materials, because
counsel still was contemplating whether to pursue a defense based on mental disease
or defect. During the hearing, defense counsel moved to withdraw the notice of intent
to rely on such a defense, which had been filed by Middleton’s prior attorneys, to
consider the matter more fully and to avoid providing materials not mandated by the
law. Defense counsel refiled the notice, and the trial court considered the subject at
a hearing on December 19, 1997, at which Middleton was present. Given defense
counsel withdrew the notice and the trial court later addressed the notice extensively
during a hearing at which Middleton was present, Middleton’s presence at the October
24, 1997, hearing would have been “useless, or the benefit but a shadow.” See
Stincer, 482 U.S. at 745. In addition, Middleton’s defense counsel informed the court
Middleton consented to proceeding with the hearing in his absence. Thus, the
Missouri Supreme Court reasonably applied federal law in concluding no due process
violation occurred.

        The February 13, 1998, hearing similarly involved routine scheduling matters.
Also during the hearing, the prosecution stated Middleton had refused to talk to the
court appointed psychiatrist. Defense counsel responded Middleton now was willing
to meet and cooperate with the psychiatrist. The trial court then set a two-week
deadline for Middleton’s mental examination. Middleton asserts his refusal to submit
to the court ordered mental examination “strongly suggests his disagreement with his
counsel’s decision to present a mental illness defense,” and that because of his
absence, “the court could not make inquiry” regarding Middleton’s position. For
several reasons, we reject such an argument as wholly illogical. First, at trial
Middleton presented no evidence of a mental disease or defect; thus, counsel clearly
complied with Middleton’s reported resistance to this defense. Second, Middleton
fails to demonstrate how his presence at the hearing was necessary or would have
been useful, how his absence prejudiced his defense, or how the outcome of the
proceedings would have been different. Third, Middleton’s alleged disagreement to
the presentation of a mental illness defense contradicts his other argument that defense
counsel provided ineffective assistance by failing to present expert testimony during
                                          -17-
the guilt phase of Middleton’s mental state or intent, as discussed supra. Fourth,
Middleton’s defense counsel stated he “[v]oluntarily waive[s] my client’s presence.”
Thus, no due process violation resulted from Middleton’s absence at the February 13,
1998, hearing.

       Finally, during the March 13, 1998, hearing, the trial court addressed forty-one
defense motions: eight were granted at the hearing, thirteen were taken with the case
to be considered later, three motions involving discovery issues and one motion
expressing Middleton’s desire to wear street clothes at trial and to appear without
restraints were granted in part and denied in part, and sixteen motions dealing with
legal issues or procedural matters were denied. No evidence was presented and no
witnesses testified during this hearing. Middleton summarily contends he “was
entitled to be present, to assist his counsel in presenting these motions, and to hear the
court’s rulings on them.” However, he fails to demonstrate what could have been
gained by his presence, what was lost by his absence, or what could have been added
to counsel’s arguments. Moreover, the hearing began by Middleton’s defense counsel
noting she “did not writ [Middleton] in for this hearing.”

       On the record before us, we cannot say Middleton’s absence from any of the
three pretrial hearings resulted in a due process violation.




                                          -18-
       C.     Undisclosed Deals for Two Prosecution Witnesses
       Middleton claims the prosecution failed to disclose deals made in exchange for
the testimony of two prosecution witnesses, Thomas and Spurling, in violation of the
Fourteenth Amendment’s Due Process Clause. The Missouri Supreme Court held
Middleton did not prove any understanding for favorable treatment between any
prosecutor and the two witnesses at issue. Middleton, 80 S.W.3d at 804-06. The
district court agreed, concluding the state courts’ determinations there were no deals
was a reasonable interpretation of the evidence.

      The pertinent facts regarding Thomas show that on June 8, 1995, Thomas was
charged with selling drugs, a class B felony. On February 27, 1998, Thomas, his
counsel, and the state appeared in court, and the state advised the court Thomas’s
proceedings were delayed due to Thomas’s participation as a witness in a companion
proceeding. On March 17, Thomas waived arraignment and pled not guilty, and the
case was continued. On March 31, Thomas testified for the state in Middleton’s trial.
Less than one month later, Thomas pled guilty to attempting to sell drugs, a class C
felony, and eventually was sentenced to five years’ supervised probation.

       With regard to Spurling, after Middleton’s arrest in 1995 for the murders in this
case, Spurling faced eight criminal charges in Missouri. Two charges were dismissed
in September 1996, almost nineteen months before Spurling testified against
Middleton on March 31, 1998. Fourteen months before testifying, Spurling negotiated
a plea agreement and pled guilty to two charges. The remaining four charges were
dismissed one year before Middleton’s trial, resulting in no pending charges when
Spurling testified against Middleton.

       “In habeas proceedings in federal courts, the factual findings of state courts are
presumed to be correct, and may be set aside, absent procedural error, only if they are
not fairly supported by the record.” Simmons, 299 F.3d at 942 (internal quotation
omitted). Middleton bears the burden of rebutting this presumption of correction by
putting forth clear and convincing evidence. See 28 U.S.C. § 2254(e). Middleton
                                         -19-
failed to do so. Relying purely on the sequence of events surrounding each witness,
Middleton points to no evidence, beyond mere speculation, of an undisclosed deal
offered by the prosecution or even an “understanding” Thomas or Spurling would be
given leniency in exchange for testifying against Middleton. Middleton’s defense
counsel knew of Thomas’s pending criminal charge as well as Spurling’s charges and
thoroughly questioned both men about the charges at trial. Both Thomas and Spurling
denied the existence of a deal with the prosecution in exchange for their testimony.
Although Middleton cites a plethora of decisions where prosecutors failed to disclose
favorable deals with witnesses, Middleton utterly fails to demonstrate any analogous
factual similarities to the present case. Rather, Middleton’s contention is founded
solely on speculation: “it appears [from the sequence of events] that Thomas and
Spurling testified against [Middleton] in return for favorable consideration in the cases
against them” (emphasis added). In the face of such unsupported allegations, we
conclude the district court properly denied habeas relief on this ground.

       D.      Admission of Testimony from Sheriff Martz
       Following Middleton’s arrest in 1995, Spurling faced criminal charges in Iowa
that later were dismissed. During cross-examination of Spurling, defense counsel
elicited that the charges against Spurling were dismissed following a meeting between
Spurling, Spurling’s attorney, and then Harrison County, Missouri, Sheriff Martz.
Later, during cross-examination of Sheriff Martz, defense counsel established Sheriff
Martz had a conversation with the Iowa prosecutor’s office, and following the
conversation, the charges against Spurling were dismissed. The prosecution recalled
Sheriff Martz to rebut the presumption he asked the Iowa prosecutor to dismiss the
charges against Spurling. On cross-examination, Sheriff Martz again admitted to
talking to the Iowa prosecutor about the charges and thereafter the charges were
dismissed. On redirect, the prosecution questioned Sheriff Martz whether he asked
the Iowa prosecutor about the strength of Spurling’s pending cases. Over defense
counsel’s hearsay objection, Sheriff Martz was allowed to testify the Iowa prosecutor
“indicated the strength of the case [against Spurling] was weak.”

                                          -20-
        On direct appeal, Middleton argued Sheriff Martz’s testimony regarding the
Iowa prosecutor’s statement was inadmissible hearsay and violated his Sixth
Amendment right to confront witnesses. Rejecting Middleton’s evidentiary claim, the
Missouri Supreme Court found the testimony was admissible under the state law
doctrine of curative admissibility because defense counsel created the inference
Spurling’s charges were dropped at Sheriff Martz’s request and the hearsay was
properly admitted in rebuttal. Middleton, 998 S.W.2d at 527-28. The state court did
not address the merits of Middleton’s constitutional claim. The district court affirmed,
holding (1) it lacked authority to address the state court’s decision based on the state’s
rules regarding curative admissibility; (2) Middleton procedurally defaulted the
constitutional issue by failing to raise a constitutional objection at trial; (3) even if the
claim had not been defaulted, no violation of the Confrontation Clause occurred
because the statement was not testimonial in nature; and (4) even if there were a
Confrontation Clause violation, any error was harmless. Again, we lack authority to
review the state court’s decision that the hearsay testimony was admissible under the
state law doctrine of curative admissibility. See Estelle, 502 U.S. at 67-68. We thus
turn our attention to Middleton’s Confrontation Clause claim.

        Before a state prisoner is entitled to federal habeas corpus relief, he first must
exhaust his state law remedies and fairly present the facts and substance of his habeas
claim to the state court. See Barrett v. Acevedo, 169 F.3d 1155, 1161 (8th Cir. 1999)
(en banc); Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996) (en banc). “If a
prisoner has not presented his habeas claims to the state court, the claims are defaulted
if a state procedural rule precludes him from raising the issues now.” Abdullah, 75
F.3d at 411. To satisfy the “fairly present” requirement, Middleton must have
“refer[red] to a specific federal constitutional right, a particular constitutional
provision, a federal constitutional case, or a state case raising a pertinent federal
constitutional issue in the Missouri state court.” Id. at 411-12 (internal quotation
omitted); see, e.g., Morris v. Norris, 83 F.3d 268, 270 (8th Cir. 1996) (holding
“habeas petitioners must have explicitly cited to the United States Constitution or
federal case law in their direct appeal to preserve federal review” (citation omitted)).
                                            -21-
       Unlike the district court, we are not convinced Middleton procedurally
defaulted his federal constitutional claim. Although at trial Middleton did not argue
Sheriff Martz’s hearsay testimony violated the Confrontation Clause, Middleton
specifically raised this federal claim in his brief on direct appeal to the Missouri
Supreme Court, thereby “fairly presenting” and preserving the claim for federal
review. See Jones v. Jerrison, 20 F.3d 849, 854 (8th Cir. 1994) (“The federal legal
theory . . . must plainly appear on the face of the petitioner’s state-court briefs.”).
Without mentioning the Sixth Amendment issue or referencing any federal law, the
Missouri Supreme Court concluded the hearsay was properly admitted in rebuttal.
Middleton, 998 S.W.2d at 527-28. The absence of any explicit discussion of the
constitutional issue by the state court arguably could indicate its implicit rejection of
the claim on procedural default grounds, an interpretation apparently adopted by the
district court when it concluded Middleton defaulted the claim by failing to object on
constitutional grounds at trial. However, the United States Supreme Court has
instructed “a procedural default does not bar consideration of a federal claim on . . .
habeas review unless the last state court rendering a judgment in the case clearly and
expressly states that its judgment rests on a state procedural bar.” Harris v. Reed, 489
U.S. 255, 263 (1989) (emphasis added) (internal quotation and citation omitted). The
question is not whether the state court could have relied on the state procedural bar
to reject the federal constitutional claim, but instead whether the court actually relied
on the procedural bar as an independent basis for its disposition of the case. See id.
at 261-62. Absent a clear and express indication of reliance on a state procedural bar,
we cannot construe the state court’s opinion to have done so.5


      5
        We reject the appellee’s argument that the state court’s opinion addressed
Middleton’s constitutional claim “at least by implication” by concluding the testimony
fell within a firmly rooted hearsay exception. The Missouri Supreme Court never
reached such a conclusion; it only deemed the hearsay admissible under the doctrine
of curative admissibility. Middleton, 998 S.W.2d at 528. “The Supreme Court has
rejected the argument that a state court determination admitting hearsay under state
law is dispositive of a petitioner’s habeas claim that his constitutional confrontation
rights were violated by the admission.” Paxton v. Ward, 199 F.3d 1197, 1208 (10th
                                          -22-
       Thus, we treat the issue as though it were adequately presented to the state court
for review, but ignored. Because the state court did not adjudicate Middleton’s
constitutional claim on the merits, the deferential standard of review under 28 U.S.C.
§ 2254(d) does not apply, and we review the district court’s factual findings for clear
error and its conclusions of law de novo. See Taylor v. Bowersox, 329 F.3d 963, 967-
68 (8th Cir. 2003) (citations omitted).

      The district court concluded Middleton’s constitutional claim would fail on the
merits, even if not procedurally defaulted. In Crawford v. Washington, 541 U.S. 36,
52-54 (2004), the Supreme Court held a witness’s out-of-court statements that are
testimonial in nature are barred under the Confrontation Clause, unless the witness is
unavailable and the defendant had a prior opportunity to cross-examine. The Supreme
Court recently reaffirmed this holding in Davis v. Washington, Nos. 05-5224 and 05-
5705, 2006 WL 1667285, at *6 (U.S. June 19, 2006). The district court determined
the Iowa prosecutor’s statement, as related by Sheriff Martz, was not testimonial in
nature and thus did not fall under Crawford’s rule of exclusion.

       This court previously has questioned whether Crawford applies retroactively,
noting the Crawford Court did not suggest the doctrine would apply retroactively and
the doctrine does not appear to fall within the narrow exceptions to non-retroactivity
under Teague v. Lane, 489 U.S. 288 (1989). See Evans v. Luebbers, 371 F.3d 438,
444 (8th Cir. 2004), cert. denied, 125 S. Ct. 902 (2005). However, even assuming the
doctrine could apply retroactively, Crawford’s categorical rule does not govern the
facts of this particular case because the statement was not “testimonial.” Although
Crawford specifically left ambiguous the term “testimonial,” the Court noted the term,


Cir. 1999) (citing Lee v. Illinois, 476 U.S. 530, 539 (1986)). Furthermore, the
doctrine of curative admissibility is not a firmly rooted hearsay exception. See Idaho
v. Wright, 497 U.S. 805, 817 (1990) (identifying characteristics of firmly rooted
exceptions); see, e.g., United States v. Morga, 66 F.3d 336, 1995 WL 520029, at *2
(9th Cir. 1995) (unpublished table decision) (“Curative admissibility is not a firmly
rooted exception.”).
                                           -23-
at a minimum, applies to “prior testimony at a preliminary hearing, before a grand
jury, or at a former trial[,] and to police interrogations.” Crawford, 541 U.S. at 68.
The Supreme Court also recognized in Crawford, and reaffirmed in Davis, the
principle that “[a]n accuser who makes a formal statement to government officers
bears testimony in a sense that a person who makes a casual remark to an
acquaintance does not.” Id. at 51; Davis, 2006 WL 1667285, at *7. While not
exhaustive, these definitions lead us to conclude the statement at issue in this case was
not testimonial in nature. As the district court observed, the information related by
Sheriff Martz “was not the product of an adversarial or custodial interview or
interrogation similar to that described in Crawford,” but instead emerged through
circumstances more akin to “a non-custodial conversation.” We agree, and thus
conclude the Iowa prosecutor’s comments “are not the kind of memorialized, judicial-
process-created evidence of which Crawford speaks.” See United States v. Manfre,
368 F.3d 832, 838 n.1 (8th Cir. 2004); cf. Davis, 2006 WL 1667285, at *8-9.

      Furthermore, even if the statement violated the Confrontation Clause, any error
in admitting the statement was harmless. “A violation of the Confrontation Clause is
subject to harmless error analysis,” which we review de novo. Barrett, 169 F.3d at
1164 (citing Pruett v. Norris, 153 F.3d 579, 590 (8th Cir. 1998)). Because it is unclear
whether the state court reviewed Middleton’s constitutional claim, we apply the
harmless error standard of review articulated in Chapman v. California, 386 U.S. 18
(1967), and inquire whether the alleged error is harmless beyond a reasonable doubt.
See Harrington v. Iowa, 109 F.3d 1275, 1279 (8th Cir. 1997); see also Barrett, 169
F.3d at 1164. In assessing whether it appears beyond a reasonable doubt the
complained-of error did not contribute to the verdict obtained, we consider the
importance of the witness’s testimony to the entire case, whether the testimony was
cumulative, whether corroborating or contradicting evidence existed, the extent of
cross-examination otherwise permitted, and the overall strength of the prosecution’s
case against Middleton. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986);
Harrington, 109 F.3d at 1279.

                                          -24-
       With these considerations in mind, we conclude any error stemming from the
admission of the Iowa prosecutor’s statement was harmless beyond a reasonable
doubt. As the district court correctly observed, the statement did not directly implicate
Middleton and addressed a rather minor point in the proceedings; much of Spurling’s
testimony was corroborated by other evidence in the case; and there was other,
significant evidence establishing Middleton’s guilt. The importance of the statement
to the entire case was minimal, given Spurling previously denied the existence of any
deal with the prosecution in exchange for his testimony and there was no other
evidence, beyond mere speculation, to support the existence of such a deal.
Furthermore, defense counsel extensively cross-examined both Spurling and Sheriff
Martz regarding the dismissal of Spurling’s criminal charges in Iowa. The
overwhelming evidence against Middleton, as well as the aforementioned
considerations, satisfy us any error was harmless beyond a reasonable doubt, and we
therefore deny habeas relief on this ground.6

      E.     Prosecution’s Appeals Process Argument

      6
        We reach this conclusion without deciding whether the statement violated the
Confrontation Clause under the Supreme Court’s pre-Crawford decisions. We have
recognized Crawford casts some doubt on whether the reliability analysis discussed
in Ohio v. Roberts, 448 U.S. 56 (1980), and Roberts’s progeny, “remains good law
when applying the Confrontation Clause to nontestimonial hearsay.” Ferguson v.
Roper, 400 F.3d 635, 639-40 (8th Cir. 2005), cert. denied, 126 S. Ct. 1028 (2006)
(citing Crawford, 541 U.S. at 52). However, were we to apply the Supreme Court’s
pre-Crawford decisions to this issue, we could not conclude on the record before us
whether such decisions aid Middleton’s habeas appeal. As noted supra in footnote
5, clearly the statement does not fall within a firmly rooted hearsay exception, yet we
cannot determine from the record if the statement “is supported by a showing of
particularized guarantees of trustworthiness.” See Wright, 497 U.S. at 816 (internal
quotation and citation omitted). Indeed, the record reveals little regarding the
circumstances surrounding the making of the statement or describing the declarant’s
credibility or trustworthiness, or the lack thereof. See id. at 820. Nevertheless, even
assuming arguendo the statement violated the Confrontation Clause, any error in
admitting the statement was harmless.
                                           -25-
       Finally, Middleton argues he is entitled to habeas relief because the
prosecution’s remarks during closing argument unconstitutionally diminished the
jury’s view of its responsibility for imposing the death penalty. During closing
arguments, defense counsel argued Middleton was already under a death sentence for
the Pinegar murder and additional death sentences would only devalue human life:

             The fact of the matter is John Middleton can only be killed once.
      And he’s already under a sentence of death. John Middleton can only be
      strapped down to a gurney one time and only once can a needle be
      inserted into his arm and only once can a lethal dose of poison be
      injected into his body and only once can John Middleton give up a life,
      have his life taken in return for these cases. . . .

             And it might be said that you should impose two more sentences
      of death to make a total of three sentences of death because maybe he
      won’t be executed the first time around. Missouri is a killing state.
      We’re right up there behind Texas and Florida. We kill our killers. We
      do that in Missouri. . . . In those rare occasions where you might have
      heard somebody under a sentence of death has had their life spared,
      chalk it up to a higher intervention.

In its rebuttal argument, the prosecution responded:

      [Defense counsel] may be real sure that this defendant isn’t going to get
      out, but I’m not. . . . [Defense counsel] mentioned to you about those
      few occasions where a person’s life is spared. She didn’t talk to you
      about the many appeals that people go through. . . . She didn’t talk to
      you about the many different levels of appeals that these cases go
      through. She didn’t talk to you about the Federal Court of Appeals and
      how often those cases get overturned on appeal because they’re death
      penalty cases. She didn’t talk to you about any of that, did she?

The trial court overruled defense counsel’s objections to the prosecution’s remarks.

      Middleton argues the prosecution’s remarks violated Caldwell v. Mississippi,
472 U.S. 320, 328-29 (1985), in which the Supreme Court held “it is constitutionally
                                        -26-
impermissible to rest a death sentence on a determination made by a sentencer who
has been led to believe that the responsibility for determining the appropriateness of
the defendant’s death rests elsewhere.” Caldwell is limited to comments “that mislead
the jury as to its role in the sentencing process in a way that allows the jury to feel less
responsible than it should for the sentencing decision.” Romano v. Oklahoma, 512
U.S. 1, 9 (1994) (quoting Darden v. Wainwright, 477 U.S. 168, 184 n.15 (1986)). “To
establish a Caldwell violation, a defendant necessarily must show that the remarks to
the jury improperly described the role assigned to the jury by local law.” Dugger v.
Adams, 489 U.S. 401, 407 (1989).

       Middleton’s Caldwell claim is without merit. Contrary to Middleton’s
assertion, the prosecution’s remarks did not diminish the jury’s sense of responsibility
for imposing the death penalty. Instead, the prosecution responded to defense
counsel’s argument concerning Middleton’s death sentence for the Pinegar murder,
the strong likelihood Middleton would in fact be put to death, and the illogicality of
imposing additional death sentences on Middleton. To emphasize the importance of
the jury’s role in the present case, the prosecution reminded the jury Middleton’s
death sentence for Pinegar’s murder was not yet final and potentially could be
reversed on appeal. Considered as a whole, the prosecution’s statements focused the
jury on the case before it and did not “present[] an intolerable danger that the jury
[would] in fact choose to minimize the importance of its role.” See Caldwell, 472
U.S. at 333. Thus, we conclude the Missouri Supreme Court’s rejection of
Middleton’s argument was a reasonable application of Caldwell to the facts of this
case.

III.   CONCLUSION
       We affirm the district court’s denial of habeas relief.
                       ______________________________




                                           -27-
