                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1771
                                    ___________

Daniel Basile,                         *
                                       *
                   Appellant,          *
                                       * Appeal from the United States
      v.                               * District Court for the Eastern
                                       * District of Missouri.
Al Luebbers, Superintendent, Potosi    *
Correctional Center,                   *
                                       * [UNPUBLISHED]
                   Appellee.           *
                                  ___________

                              Submitted: November 15, 2000

                                   Filed: January 9, 2001
                                    ___________

Before BOWMAN, FAGG, and BEAM, Circuit Judges.
                           ___________

PER CURIAM.

        A Missouri jury convicted Daniel Basile of first-degree murder for killing
Elizabeth DeCaro. At trial, the evidence showed Elizabeth's husband, Richard, was
looking for someone to steal his van and kill his wife. In response to his inquiries,
Richard was introduced to Basile. Richard offered Basile $15,000 to steal his van and
kill Elizabeth. Basile stole the van and burned it. A few days later, Basile obtained a
.22 caliber pistol and latex gloves. On March 6, 1992, Basile told his half-brother he
could not work that day because he was working for Richard DeCaro. The same day,
Richard left his home in St. Louis around noon with his four children and the family
dog, and checked into a motel at the Lake of the Ozarks at 2:59 p.m. Elizabeth left
work at 2:20 p.m. driving the family Blazer. About 3:15 p.m., the Blazer was in the
DeCaros' garage, but no one answered the doorbell when a neighbor rang. At 4:15
p.m., Basile was seen driving the Blazer. Around 8:00 p.m., Elizabeth's sister found
her dead on her kitchen floor with two gunshot wounds in the back of her neck. The
bullets recovered from Elizabeth's body were .22 caliber. The DeCaros' dismantled
Blazer was later found in a garage provided to Basile by his half-brother.

       Basile did not testify on his own behalf, but the defense put forth a theory that
Basile was merely a thief who had been framed by Richard for Elizabeth's murder.
Following Basile's conviction and the penalty phase of the trial, the jury found no
mitigating circumstances, but found two statutory aggravating circumstances: that
Basile murdered Elizabeth for another in exchange for money, and Basile murdered
Elizabeth as Richard's agent and at his direction. Basile was sentenced to death. The
Missouri Supreme Court rejected Basile's appeal and affirmed the denial of state
postconviction relief. See State v. Basile, 942 S.W.2d 342 (Mo. 1997) (en banc). The
United States Supreme Court denied certiorari. See Basile v. Missouri, 118 S. Ct. 213
(1997). Basile then filed a federal habeas petition under 28 U.S.C. § 2254. The district
court denied relief, but certified several issues for appeal. See Basile v. Bowersox, No.
497CV1110ERW, 1999 WL 33226457 (E.D. Mo. Dec. 16, 1999).

       Because Basile filed his habeas petition after enactment of the Antiterrorism and
Effective Death Penalty Act of 1996, the Act governs our review. As amended by the
Act, 28 U.S.C. § 2254(d)(1) places new constraints on our power to grant a state
prisoner's habeas petition on claims decided on the merits in state court. See Williams
v. Taylor, 120 S. Ct. 1495, 1523 (2000). We can only grant a habeas petition if the
state court decision "was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States," 28 U.S.C. § 2254(d)(1) (Supp. III 1997), or "was based on an unreasonable

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determination of the facts in light of the evidence presented in the State court
proceeding" id. § 2254(d)(2). Basile does not assert that the Missouri Supreme Court's
decision was contrary to clearly established federal law or that the Missouri Supreme
court wrongly decided the facts. Instead, Basile contends that in rejecting the issues
certified for appeal, the Missouri Supreme Court unreasonably applied the correct legal
principles to the facts of his case. See Williams, 120 S. Ct. at 1523. In assessing the
reasonableness of the state court's treatment of the issues, we look to federal court
decisions of factually similar cases. See Copeland v. Washington, 232 F.3d 969 (8th
Cir. 2000). We turn to the certified issues now.

        Basile first asserts the prosecutor's closing arguments in the guilt and penalty
phases violated his right to a fair trial, and the defense attorney's failure to object to
some of the prosecutor's allegedly prejudicial statements violated Basile's right to
effective assistance of counsel. The Missouri Supreme Court quoted all of the claimed
improper statements and rejected Basile's claim. See 942 S.W.2d at 349-53. The
district court thoroughly reviewed the claim, and rejected it as well. Our review is
extremely limited. We may grant Basile relief on this issue "only if 'the prosecutor's
closing argument was so inflammatory and so outrageous that any reasonable trial
judge would have sua sponte declared a mistrial.'" Sublett v. Dormire, 217 F.3d 598,
600 (8th Cir. 2000) (quoting James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999)).
Having carefully reviewed the prosecutor's closing arguments, we conclude Basile has
not met this standard. Further, the Missouri Supreme Court's decision that the closing
arguments did not violate due process was not an unreasonable application of clearly
established federal law. See id. Counsel's decision not to object to some of the
statements was reasonable, see Strickland v. Washington, 466 U.S. 668, 690 (1984),
and even if counsel was ineffective, Basile has not shown that but for the failure to
object, the result of the guilt and penalty proceedings would have been different, see
id. at 694.




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       Second, Basile asserts his right to confront witnesses was violated by the
admission of hearsay statements, and defense counsel was ineffective for failing to
object to them. The Missouri Supreme Court rejected the assertion, concluding the
testimony was admissible. See 942 S.W.2d at 356-57. The Missouri Supreme Court's
conclusion is objectively reasonable. As the district court noted, all of the testimony
supported the defense theory that the DeCaros' marriage was in trouble, that Richard
wished Elizabeth dead, and that Richard hired Basile to steal his van and Blazer and
then framed him for Elizabeth's murder. Counsel's strategic decision not to object was
reasonable, see Strickland, 466 U.S. at 690, and even if counsel was ineffective, Basile
suffered no prejudice, see id. at 694.

         Third, Basile contends his right to a fair trial was violated when evidence of
other crimes and bad acts was introduced, and defense counsel was ineffective for
failing to object to its admission. Like the Missouri Supreme Court, see 942 S.W.2d
at 355-56, we disagree. The evidence consisted of references to Basile's stealing and
stripping cars, smoking marijuana, being in jail and on parole, and having problems
with girlfriends. Most of the evidence was consistent with the defense theory of the
case and would have been admissible over an objection, and the remaining evidence
involved minor misconduct that could not reasonably be believed to have affected the
trial's result. Basile has not carried his burden of showing "prejudice 'worked to his
actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.'" Harris v. Bowersox, 184 F.3d 744, 755 (8th Cir. 1999) (quoting United
States v. Frady, 456 U.S. 152, 170 (1982)). Counsel was not ineffective for failing to
object to the evidence, see Strickland, 466 U.S. at 690, and even if counsel was
ineffective, Basile was not prejudiced by its admission, see id. at 694.

       Fourth, Basile asserts the admission of victim impact evidence during the penalty
phase violated his right to due process and a fair trial, and created an impermissible risk
of the arbitrary and capricious imposition of a death sentence. The evidence described
the impact of Elizabeth's death on her family, and did not characterize Basile or the

                                            -4-
crime or contain a suggestion by Elizabeth's family about an appropriate sentence. See
942 S.W.2d at 358-59. Because the evidence was proper, see Payne v. Tennessee, 501
U.S. 808, 814-17, 826 (1991), no constitutional violation occurred when it was
admitted.

       Fifth, Basile challenges two jury instructions in the penalty phase. He contends
instruction number 13 duplicated two statutory aggravators, the two found by the jury.
The two statutory aggravating circumstances are not duplicative, however, see 942
S.W.2d at 360, and even if they were, Basile was not prejudiced because Missouri is
a nonweighing state in which the finding of a single aggravating circumstance creates
eligibility for the death penalty, see LaRette v. Delo, 44 F.3d 681, 687 n.4 (8th Cir.
1995). Basile asserts instruction number 14 omitted mandatory language that each
nonstatutory aggravating circumstance must be found beyond a reasonable doubt. Any
error in instruction 14 was harmless beyond a reasonable doubt. No prejudice could
have resulted because a separate instruction told the jury any nonstatutory aggravating
factors must be found beyond a reasonable doubt, and the jury found no nonstatutory
aggravating factors. See 942 S.W.2d at 360.

       Sixth, Basile contends the Missouri Supreme Court failed to conduct a full and
fair proportionality review of his sentence. See 942 S.W.2d at 361. Our cases prevent
us from looking behind the Missouri Supreme Court's conclusion that Basile's sentence
is not disproportionate to the penalty imposed in similar cases. See LaRette, 44 F.3d
at 688.

       Last, Basile asserts the reasonable doubt instructions in the guilt and penalty
phases were constitutionally inadequate. The instruction is taken from the Missouri
pattern instruction on reasonable doubt, see 942 S.W.2d at 362, and we have held it is
constitutional, see Harris, 184 F.3d at 751-52.




                                          -5-
       We conclude the Missouri Supreme Court's rejection of Basil's claims was
objectively reasonable, see Williams, 120 S. Ct. at 1522, and thus affirm Basile's
conviction and sentence.

      A true copy.

            Attest:

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




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