                                   ___________

                                   No. 95-3652
                                   ___________

Elroy Preston,                          *
                                        *
           Appellant,                   *    Appeal from the United States
                                        *    District Court for the
     v.                                 *    Eastern District of Missouri.
                                        *
Paul K. Delo, Warden,                   *
                                        *
           Appellee.                    *
                                   ___________

                     Submitted:    September 10, 1996

                          Filed:   November 14, 1996
                                   ___________

Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and
      HANSEN, Circuit Judge.
                               ___________


WOLLMAN, Circuit Judge.


     Elroy Preston, a Missouri inmate sentenced to death, appeals from the
district court's1 denial of his 28 U.S.C. § 2254 petition.     We affirm.


                                       I.


     After a day of drinking and arguing at the home of Ervin Preston on
September 20, 1980, Willie "Pee Wee" Richardson and Betty Klein went
upstairs to bed, while Ervin, his brother Elroy Preston, and Elroy's
girlfriend, Sherry Brown, remained downstairs.    In the early morning hours
of September 21, Elroy Preston went upstairs and ordered Richardson and
Klein to go back downstairs.   When they were downstairs, Preston announced
that he would kill




     1
      The Honorable Donald F. Stohr, United States District Judge
for the Eastern District of Missouri.
Richardson   and   Klein   after   he    removed   his    clothes.    After    Preston
undressed, he stabbed Richardson several times, killed Klein with a single
stab wound to the neck (severing her spinal cord), then returned to the
still-living Richardson and stabbed him several more times.                   When his
victims were dead, Preston took some fried chicken, dipped it in their
blood, and ate it while taunting the victims.              Preston then dragged the
bodies into an alley and attempted to clean up the house.


     Preston was convicted of the capital murder of Richardson and the
second-degree murder of Klein.          His convictions were affirmed on direct
appeal, see State v. Preston, 673 S.W.2d 1 (Mo.), cert. denied, 469 U.S.
893 (1984), and the denial of his motion for post-conviction relief was
also affirmed on appeal.    See Preston v. State, 736 S.W.2d 53 (Mo. Ct. App.
1987), cert. denied, 484 U.S. 1020 (1988).               The Missouri Supreme Court
subsequently denied Preston's petition for a writ of habeas corpus and his
motion to recall the mandate.       State ex rel. Preston v. Delo, No. 75519
(Mo. 1993) (unpublished) (habeas petition); State v. Preston, No. 64186
(Mo. 1993) (unpublished) (motion to recall the mandate).2            Preston alleged
more than 250 grounds for relief in his section 2254 petition filed in the
district court.    The district court concluded that the vast majority of
Preston's claims were procedurally barred and rejected his remaining claims
on their merits.


                                         II.


     Preston's primary argument on appeal is that the district




     2
      Preston filed a second Rule 91 habeas petition in 1995. The
Missouri Supreme Court denied this petition, stating that all
claims presented in it were procedurally defaulted. State ex rel.
Preston v. Delo, No. 77812 (Mo. 1995) (unpublished).       The 1995
petition and the court's order are part of the record in this
appeal, but Preston makes no arguments regarding his 1995 petition.
Hence, our opinion will refer only to his 1992 petition.

                                         -2-
court erroneously ruled that his Brady3 claim was procedurally barred.4
Preston contends that the prosecutor prevented him from reviewing and
presenting Ervin Preston's medical records at trial.    These records show
that Ervin was treated in 1974 for severe alcoholism and suggest that he
suffered from auditory hallucinations, blackouts, and memory problems.   The
records were in court on the day of trial, subpoenaed by Preston, but the
trial court ruled they were inadmissible because of remoteness in time and
denied Preston access to the records.    Preston argues that these records
could have impeached Ervin's ability to clearly discern and to recall,
after a day of drinking, whether Preston was sober and knew what he was
doing at the time of the murders, as Ervin so testified.     Preston places
great emphasis on Ervin's perceptive ability because Preston's lack of
mental capacity to commit capital murder was the defense at trial.   During
the direct appeal and state post-conviction proceedings, none of Preston's
attorneys ever obtained and reviewed these records.    Preston's counsel in
this habeas action was the first to do so.


     Preston first presented his Brady claim to the Missouri Supreme Court
in a Missouri Supreme Court Rule 91 habeas petition




     3
      See Brady v. Maryland, 373 U.S. 83 (1963); United States v.
Bagley, 473 U.S. 667 (1985).
         4
         The State argues that this appeal is governed by the
provisions of the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1218-19 (April
24, 1996), which amended section 2254. It urges us to follow the
Seventh Circuit's decision in Lindh v. Murphy, 96 F.3d 856, 865-67
(7th Cir. 1996) (en banc), petition for cert. filed, (Oct. 14,
1996) (No. 96-6298) (Act's amendments codified at section 2254(d)
apply to pending cases).     We have not yet taken a position on
whether the amendments to section 2254 apply to cases that were
pending on April 24, 1996. See Oliver v. Wood, 96 F.3d 1106, 1108
n.2 (8th Cir. 1996); Rehbein v. Clarke, 94 F.3d 478, 481 n.4 (8th
Cir. 1996).      Because most of Preston's claims are either
procedurally barred or fail under the more lenient provisions of
the old law, we leave the decision of the issue presented by the
State to a more appropriate case.

                                   -3-
in December 1992.       On January 25, 1993, the court summarily denied
Preston's petition, stating only:     "Now at this day, on consideration of
a petition for writ of habeas corpus to the said respondent, it is ordered
by the court [h]ere that the said petition be, and the same is hereby
denied."     Based on this order, the district court ruled that Preston
procedurally defaulted his Brady claim in the state courts.


        Preston argues that his claim is not procedurally barred because the
Missouri Supreme Court reviewed the merits of his Brady claim.     He cites
two reasons:    First, because roughly four weeks elapsed between the time
he filed his Rule 91 petition and its denial, and second, because his claim
of newly discovered evidence was a proper basis for a state habeas claim.
See State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. 1993) (en
banc) (Rule 91 petition "may be used to challenge a final judgment after
an individual's failure to pursue appellate and post-conviction remedies
only to raise jurisdictional issues or in circumstances so rare and
exceptional that a manifest injustice results."); Wilson v. State, 813
S.W.2d 833, 834-35 (Mo. 1991) (en banc) (newly discovered evidence can be
basis for Rule 91 petition).


        Prior to the decision in Simmons, we decided Byrd v. Delo, 942 F.2d
1226 (8th Cir. 1991), a case involving the Missouri Supreme Court's summary
denial of a Rule 91 habeas petition with the same language as used in this
case.     We stated, "[a]fter Coleman [v. Thompson, 501 U.S. 722 (1991)],
there is simply no reason to construe an unexplained Rule 91 denial as
opening up the merits of a previously defaulted federal issue," because
such a denial rests on the Missouri procedural rule that Rule 91 cannot be
used to raise claims that could have been raised on direct appeal or in a
timely motion for post-conviction relief.     Byrd, 942 F.2d at 1232.   Both
before and after Simmons, we have consistently followed Byrd's rule
regarding unexplained denials of Rule 91 petitions.   See Reese v. Delo, 94
F.3d 1177, 1181 (8th Cir. 1996); Charron v. Gammon, 69




                                     -4-
F.3d 851, 857 (8th Cir. 1995), cert. denied, 116 S. Ct. 2533 (1996);
Anderson v. White, 32 F.3d 320, 321 n.2 (8th Cir. 1994); Battle v. Delo,
19 F.3d 1547, 1561 (8th Cir. 1994) (subsequent history omitted); Blair v.
Armontrout, 976 F.2d 1130, 1136 (8th Cir. 1992), cert. denied, 508 U.S. 916
(1993).


       Preston argues that these cases following Byrd are distinguishable
because   none of them involved a claim of newly discovered evidence
suppressed by the prosecutor.        We disagree.     We see no reason to deviate
from the rule enunciated in Byrd, and we decline to create a new body of
case   law   making   distinctions    between   the    Missouri   Supreme   Court's
unexplained summary denials of Rule 91 petitions in various cases.


       In any event, to the extent we can read meaning into the Missouri
Supreme Court's order, we find that the summary denial rested on Missouri's
procedural rules.     While a claim of newly discovered evidence is cognizable
in a Rule 91 petition, the Missouri Supreme Court has also stated that to
avoid a procedural default a habeas petitioner "would have to establish
that the grounds relied on were not `known to him' while proceeding" on his
normal post-conviction relief motion.      White v. State, 779 S.W.2d 571, 572
(Mo. 1989) (en banc); see also State ex rel. Simmons, 866 S.W.2d at 446-47;
Reese, 94 F.3d at 1181; Sloan v. Delo, 54 F.3d 1371, 1382 (8th Cir. 1995),
cert. denied, 116 S. Ct. 728 (1996).       Preston argues that Ervin's medical
records are newly discovered.        He also argues that the prosecutor misled
Preston's counsel by misrepresenting the contents of the records as
relating only to Ervin's diabetes.       To the contrary, the trial transcript
shows that Preston's attorney knew that the medical records related to
Ervin's alcoholism and possible psychiatric problems.             Simply put, the
basis of Preston's Brady claim was known to him from the day of his trial,
and there is no evidence in the record that it could not have been further
investigated and raised in his direct appeal or post-conviction relief
motion.




                                        -5-
     Preston can lift the procedural bar to his Brady claim if he shows
cause and actual prejudice.   Coleman v. Thompson, 501 U.S. 722, 750 (1991);
Reese, 94 F.3d at 1182.       Preston alleges as grounds for cause state
interference, the ineffective assistance of trial and appellate counsel,
and mental illness during the pendency of his state court proceedings.
Even if we were to assume in this case that any of these grounds could
serve as cause, Preston has failed to demonstrate that he was actually
prejudiced.    "`To demonstrate prejudice, a petitioner must show that the
errors    of which he complains "worked to his actual and substantial
disadvantage, infecting his entire [trial] with error of constitutional
dimensions."'"     Charron, 69 F.3d at 858 (quoting Jennings v. Purkett, 7
F.3d 779, 782 (8th Cir. 1993) (quoting United States v. Frady, 456 U.S.
152, 170 (1982))); see also Zinzer v. Iowa, 60 F.3d 1296, 1299 n.7 (8th
Cir. 1995).


     We have reviewed the medical records in question, and we conclude
that they would have had only marginal impeachment value.      As the trial
court ruled, the records are remote in time and there is no evidence that
the problems for which Ervin was treated reoccurred between 1974 and the
time of the killings in 1980.        Furthermore, Preston's trial counsel
attempted to impeach Ervin by questioning him about his alcoholism, his
drinking on the day of the murders, his vague and internally inconsistent
testimony, and the serious conflicts between his testimony and that of
Sherry    Brown.   Moreover, the State did not rely solely on Ervin's
statements that Preston was sober and knew what he was doing to prove
Preston's mental capacity to commit capital murder.5


      5
      The State relied heavily on the facts of the crime: After
arguing with his brother about a matter related to the two victims,
Preston went upstairs, got the victims out of bed, brought them
downstairs, cut the wire to the telephone, and briefly argued with
them. He told them he would kill them as soon as he undressed, and
then undressed and killed them, twice stabbing Richard multiple
times. Preston then disposed of the bodies, cleaned up the blood
in the house, and disposed of blood-soaked evidence. He drove his
girlfriend home, then returned and tried to sleep until police
officers arrived and he let them into the house. The State also
relied on the lack of evidence that Preston suffered from a mental
disease or defect; the existence of motive, based on Preston's

                                    -6-
Therefore, we conclude that Preston has not demonstrated he was actually
prejudiced by his inability to use Ervin's medical records at trial or
counsel's failure to raise the issue on appeal.


     Finally, the district court did not abuse its discretion in declining
to hold an evidentiary hearing on either the procedural bar issue or on the
merits of Preston's claim.   See Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12
(1992); Sidebottom v. Delo, 46 F.3d 744, 750 (8th Cir.), cert. denied, 116
S. Ct. 144 (1995).


                                   III.


     Preston alleges five instances of prosecutorial misconduct violating
his right to due process, which stemmed from the prosecutor's closing
arguments at the guilt and penalty phases of the trial.    Four of the five
claims were defaulted in state court because they were not presented on
direct appeal or developed in collateral proceedings.     Nave v. Delo, 62
F.3d 1024, 1030 (8th Cir. 1995), cert. denied, 116 S. Ct. 1837 (1996).
Preston argues that the Missouri Supreme Court reviewed the merits of these
claims in considering his 1992 Rule 91 habeas petition.      We reject his
argument on this point for the same reasons we rejected his argument
regarding his Brady claim.   See section II, supra.   Preston has not shown
cause for his default, much less actual prejudice, and these four claims
are procedurally barred.




arguments with the victims earlier that day; and the testimony of
two police officers who observed Preston at the house after the
murders, one of whom spoke with Preston.

                                    -7-
       The only claim preserved for our review6 stems from the prosecutor's
penalty-phase closing argument, in which he stated:


       You know, recently, in New York, Norman [Mailer's] protege,
       after being paroled for murder . . . murdering another
       individual . . . and the -- the photograph of the victim in
       that particular case, though not particularly eloquent, after
       the defendant was again sentenced, said, you know, this was in
       New York, he said, people of New York, people of New York, what
       do you do at the end of the day with the garbage that you have
       accumulated? . . . You throw it out. You don't take it home
       and put it in your refrigerator.


Preston argues that the reference to a paroled murderer who killed again,
combined with the statements in his procedurally defaulted claims, "so
frightened   and   inflamed   the   jury   that   a   reasoned   and   responsible
determination of the sentence to be imposed was impossible."


       We will consider only the specific statement quoted above, and not
the defaulted statements, because the prosecutor's statement stood on its
own.   This distinguishes this case from Miller v. Lockhart, 65 F.3d 676
(8th Cir. 1995), in which we considered the prosecutor's entire penalty-
phase closing argument because that prosecutor's argument created an
"interwoven theme" culminating with the comment leading to the defendant's
objection raising the entire, "interconnected," line of argument.          Id. at
683.   Here, Preston objected to the prosecutor's statement in isolation and
not in relation to any related line of argument.




         6
        We conclude that this claim was preserved, despite the
district court's unexplained ruling that the claim was procedurally
barred. The State's brief argues the merits of this claim. See
Sidebottom, 46 F.3d at 756-57 (rejecting claim on its merits
despite district court's erroneous finding that claim procedurally
defaulted).

                                      -8-
     Whether an improper closing argument at the penalty phase of a trial
rises to the level of a due process violation is determined by


     (1) measur[ing] the type of prejudice that arose from the
     argument; (2) examin[ing] what defense counsel did in
     [counsel's] argument to minimize the prejudice; (3) review[ing]
     jury instructions to see if the jury was properly instructed;
     and (4) determin[ing] if there is a reasonable probability that
     the outcome of the sentencing phase would have been different,
     taking into account all of the aggravating and mitigating
     circumstances.


Antwine v. Delo, 54 F.3d 1357, 1363 (8th Cir. 1995), cert. denied, 116 S.
Ct. 753 (1996); Miller, 65 F.3d at 683.    We examine the totality of the
circumstances in determining whether there is a reasonable probability that
the error complained of affected the outcome of the sentencing phase.
Newlon v. Armontrout, 885 F.2d 1328, 1338 (8th Cir. 1989), cert. denied,
497 U.S. 1038 (1990).


     We conclude that this case does not present a close question, and
thus we will not go through each element of the Antwine test.       Rather,
turning to the ultimate question, we conclude that there is no reasonable
probability that this statement more than minimally affected the outcome
of the sentencing phase and that the comment did not "`so infect[] the
[sentencing phase] with unfairness as to make the resulting [sentence] a
denial of due process.'"   Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(alterations added) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)); Six v. Delo, 94 F.3d 469, 477 (8th Cir. 1996).     Preston objected
only to the reference to Norman Mailer's protege.    That reference does not
equate with the comparison between the defendant and notorious mass
murderers that was a part of the improper argument in Newlon, 885 F.2d at
1342, but rather was merely a lead-in for the prosecutor's argument
regarding the quote about throwing away garbage.    The prosecutor's garbage
comment was mean-spirited and unnecessary; he should have confined himself
to arguing the facts of the case and




                                   -9-
the aggravating circumstances justifying the death penalty, rather than
employing a dehumanizing comparison of Preston to a useless, discardable
object.    Although we strongly disapprove of the prosecutor's comments, we
conclude that the challenged reference to Norman Mailer's protege did not
make   Preston's    sentencing    phase    fundamentally      unfair   or    its     result
unreliable.


                                          IV.


       Preston contends that trial counsel was ineffective in several
respects, each of which was rejected by the district court.                An ineffective
assistance claim presents a mixed question of law and fact; we review the
district    court's   factual    findings       for   clear   error,   and    its     legal
conclusions de novo.    Sidebottom, 46 F.3d at 752.           To prevail, Preston must
establish    that   counsel's    performance      was    deficient   and    that    he   was
prejudiced by that deficient performance.               Strickland v. Washington, 466
U.S. 668, 687 (1984).    We conclude that Preston's attorneys did not perform
deficiently regarding any of Preston's claims, and accordingly we do not
reach the prejudice issue.


                                           A.


       Preston argues that his attorneys were ineffective for failing to
present to examining psychiatrists and the jury information that he may
have been under the influence of phencyclidine hydrochloride (PCP) on the
day of the murders.     The Missouri courts rejected this claim, finding that
the evidence supported the conclusion that Preston did not tell counsel of
his drug use, that counsel could not have independently discovered such
drug use, and that Preston denied drug use to the psychiatrists.                   Preston,
736 S.W.2d at 55.


       Like the district court, we defer to the state court's factual
findings, as they find support in the record made at the post-conviction
relief hearing.     See 28 U.S.C. § 2254(d) (1994).           The




                                          -10-
record reveals that Sherry Brown did not disclose possible marijuana and
PCP use to Preston's counsel until the week before the post-conviction
relief hearing.   Preston himself was unsure of whether he had actually used
PCP the day of the murders, and he twice testified that he had not told
either the psychiatrists or his own lawyers that he had used PCP the day
of the murders.    Both psychiatrists retained by Preston denied knowledge
of his drug use, and they stated that Preston affirmatively denied using
drugs.   In light of the finding that counsel did not possess information
regarding   Preston's    drug   use   and    could   not   have   learned   of   this
information, counsel did not perform deficiently regarding the PCP issue.


                                        B.


     Preston argues that counsel failed to inform him of his right to
testify and that counsel prevented him from testifying at the second phase
of his trial.     Based on the testimony developed at the post-conviction
relief hearing, the Missouri Court of Appeals and the district court
rejected these claims.    We do likewise.     The hearing transcript shows that
both of Preston's attorneys discussed his right to testify with him.
Preston admitted that he knew he had a right to testify at the penalty
phase of the trial and could have told the judge that he wanted to do so.
Preston clearly knew of his right to testify, and there is nothing in the
record to indicate that counsel prevented him from doing so.


                                        C.


     Finally, Preston argues that counsel was ineffective for failing to
present any evidence at the penalty phase of the trial.             Preston argues
that counsel should have presented his testimony, the testimony of family
members, and that of mental health experts.          Although the decision not to
present any evidence at the sentencing phase of a capital trial is one not
lightly to be made, there is no




                                       -11-
per se rule that a failure to present such evidence constitutes ineffective
assistance.   Laws v. Armontrout, 863 F.2d 1377, 1382, 1386 (8th Cir. 1988)
(en banc), cert. denied, 490 U.S. 1040 (1989).   Counsel's decision in this
case was the product of reasonable investigation and trial strategy and did
not constitute deficient performance.   See id. at 1382-82 ("[T]he decision
not to present evidence at the penalty phase is well within the range of
practical choices that are not to be second-guessed, as long as they are
based on informed and reasoned judgment.").


     Peter Stragand was the attorney responsible for presenting Preston's
penalty-phase defense.    He testified that he did not put Preston on as a
witness because he thought Preston was "too quiet" and would be a bad
witness.   Stragand testified that he did not think that the jury did not
like Preston or had a "bad feeling towards [Preston] as a person."
Stragand testified that he did not call Sherry Brown to testify because she
had already testified twice in the guilt phase of the trial and he did not
think she would be helpful at the penalty phase.         Viewing Stragand's
decisions as of the time they were made, see Strickland, 466 U.S. at 689-
90, his decisions regarding whether to call Preston or Brown were strategic
choices based on a reasonable evaluation that Preston and Brown would not
have been effective witnesses.    Cf. Burger v. Kemp, 483 U.S. 776, 791-92
(1987) (counsel reasonably concluded that it was unwise to put defendant
on stand because defendant never expressed remorse and might have bragged
about crime, causing jury to view him as indifferent or worse).


     Preston's family members were contacted before trial.         Although
Stragand did not explain at the post-conviction hearing why he did not call
them to testify, counsel was aware that Preston had had a history of
violence towards his family members.    Preston had been abusive towards his
wife, had damaged his mother's home, and had kicked the windows out of his
father's car.   His mother had kicked him out of her house shortly before
the murders out of fear




                                   -12-
that Preston would harm family members.              Stragand's investigation was not
inadequate, and he could reasonably have concluded that Preston's family
members would not have been effective witnesses and might have introduced
harmful facts.     See Burger, 483 U.S. at 792 (counsel reasonably decided not
to call defendant's mother to testify because proposed testimony would not
have helped and would have introduced damaging historical facts); Schneider
v. Delo, 85 F.3d 335, 341 (8th Cir. 1996), petition for cert. filed, (Oct.
18, 1996) (No. 96-6372) (counsel's decision not to call family members was
reasonable because they were "weak and offered little" and because counsel
determined      they    were   too   upset    by    guilty     verdict    to   be   effective
witnesses); Laws, 863 F.2d at 1390-91 (family members refused to testify
on Laws's behalf, and testimony would have revealed the relatives' total
lack of support for Laws).           Furthermore, the record does not reveal what
Preston's family members would have testified to, so we have no basis upon
which to find that Stragand's judgment on this point was erroneous.                      Cf.
Burger,   483    U.S.    at    792-93   (where      nothing    was   in   record    regarding
potentially mitigating nature of proposed witness's testimony, the state
of the record "d[id] not permit" the court to reach the conclusion that
counsel's judgment was erroneous).


     Both of Preston's attorneys testified that they had planned to call
two mental health experts who had examined Preston to testify during the
penalty phase of the trial.          One of Preston's doctors diagnosed Preston as
suffering from alcohol amnestic disorder, which, while not preventing
Preston   from knowing right from wrong, would impair his ability to
willfully and deliberately take some actions.                   Preston's doctors agreed
there was also some evidence that Preston had some mental abnormality or
impairment related to his alcohol use.


     Regardless of whether the doctors' testimony was of some potential
value,    Stragand      made   an    informed      decision,    after     deliberation    and
consultation with co-counsel, not to present their




                                             -13-
testimony.    The State also had two doctors who had examined Preston, both
of whom concluded that Preston had no mental disease or defect, nor any
mental impairment at the time of the crime.        Stragand testified that
essentially it would have been Preston's doctors versus the State's
doctors.     Furthermore, Stragand knew that if he called Preston's doctors
to testify, they would be subject to cross-examination regarding the bases
of their opinions.     This cross-examination would have revealed Preston's
prior history of violence toward his family and Sherry Brown; Preston's
claims that he could not remember the crime, that he was not there, that
he did not know the victims, and that his brother Ervin was framing him;
Preston's prior violent criminal history (although some of this came in
through the State's evidence); Preston's past violence towards persons and
property; and Preston's history of alcohol-related blackouts and outbursts
of temper.


     Counsel can reasonably decide not to present potentially helpful
mitigating evidence—including the testimony of mental experts—if such
evidence would result in the introduction of damaging evidence.         See
Burger, 483 U.S. at 792; Darden v. Wainwright, 477 U.S. 168, 186 (1986);
Strickland, 466 U.S. at 699; Six, 94 F.3d at 474; Whitmore v. Lockhart, 8
F.3d 614, 617 (8th Cir. 1993); Laws, 863 F.2d at 1389-90.        Stragand's
decision not to present Preston's doctors' testimony in this case was
reasonable     because of the damaging evidence that would have been brought
out on cross-examination.


     Many of Stragand's strategic decisions regarding his handling of the
penalty phase were influenced by his theory about the jury's mindset.    He
and his co-counsel both testified they thought that the jury had decided
not to sentence Preston to death.     In addition to Stragand's belief that
the jury did not have a "bad feeling" towards Preston, Stragand testified
that he believed the verdicts indicated that the jury, which knew from voir
dire that this was a death penalty case, had reached a compromise.
Stragand's theory




                                    -14-
was that because the murders were committed contemporaneously they were of
equal culpability.      Thus, when the jury returned a verdict of capital
murder on only one count and of second-degree murder on the other, it had
reached a compromise and would not vote to sentence Preston to death.
While Stragand's "feel" for the jury may have been wrong, it was the
contemporaneous product of having investigated, prepared, and tried the
case.    It is wrong only in hindsight and is not the basis for a finding of
deficient performance.    See Laws, 863 U.S. at 1393 ("In examining counsel's
performance, we do not use 20-20 hindsight."); cf. Strickland, 466 U.S. at
673, 699 (counsel's unsuccessful strategy for sentencing-phase argument
relied in part on judge's reputation for placing importance on a defendant
owning up to crime).


                                    Conclusion


        The judgment is affirmed.   We thank counsel for her zealous   efforts
on Preston's behalf.


        A true copy.


             Attest:


                   CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                      -15-
