                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1984
                                   No. 07-2115
                                   ___________

Marcel Wayne Williams,                *
                                      *
      Petitioner - Appellee/          *
      Cross Appellant,                *
                                      * Appeals from the United States
      v.                              * District Court for the
                                      * Eastern District of Arkansas.
Larry Norris, Director, Arkansas      *
Department of Corrections,            *
                                      *
      Respondent - Appellant/         *
      Cross Appellee.                 *
                                 ___________

                             Submitted: January 15, 2009
                                Filed: August 17, 2009
                                 ___________

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

LOKEN, Chief Judge.

       An Arkansas jury found Marcel Wayne Williams guilty of the capital murder
of Stacy Errickson and sentenced him to death. The Supreme Court of Arkansas
affirmed the conviction and sentence. The state trial court denied Williams’s petition
for state post-conviction relief, and the Supreme Court of Arkansas again affirmed.
Williams then filed this petition for a federal writ of habeas corpus, alleging
ineffective assistance of counsel and other claims. After an evidentiary hearing, the
district court granted the writ solely on the ground of ineffective assistance of counsel
at the penalty phase of the trial. The State appeals, arguing that Williams established
neither constitutionally deficient performance nor prejudice under Strickland v.
Washington, 466 U.S. 668 (1984). Williams cross-appeals the dismissal of other
claims. After careful review of the record, we reverse the grant of habeas relief and
affirm the dismissal of the remaining claims.

                      I. Factual and Procedural Background

       Williams abducted Errickson from a suburban Little Rock convenience store
on the morning of November 20, 1994. He brandished a firearm and pushed his way
into her truck, forced her to withdraw $350 at several nearby ATMs, and then raped
and murdered her. Nine days later, North Little Rock police arrested Williams on an
outstanding warrant, suspecting he was involved in Errickson’s disappearance and in
sexual assaults of two other women. Williams waived his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), and made inculpatory, contradictory statements over
the course of a thirteen-hour interrogation. He confessed that he abducted Errickson
and forced her to make ATM withdrawals but denied sexual assault and claimed that,
as far as he knew, Errickson was still alive. On December 5, 1994, police found
Errickson’s body buried in a shallow grave in North Little Rock. Williams’s semen
was found in her vagina. The medical examiner identified the cause of death as
asphyxia due to suffocation.

      A. The Trial. Williams was charged with capital murder, kidnapping, rape, and
aggravated robbery. Two attorneys were appointed to defend him. Lead attorney
Herbert Wright, a former law clerk to a state judge, had five years experience as a
criminal attorney in Little Rock and had been involved in three other capital cases, one
of which went to trial. Phillip Hendry was in charge of the penalty phase. He had
four years experience, including two and one-half years in the Little Rock public
defender’s office. He had represented defendants in two other capital trials and had

                                          -2-
received training in representing capital murder defendants. A third attorney, William
James, assisted the trial team. He had been licensed to practice for less than a year.

       Williams’s case was tried to a Little Rock jury in January 1997. During the
guilt phase, defense counsel conceded guilt in the opening statement but vigorously
challenged the State’s evidence. That evidence, which the jury considered at the
penalty phase, see Ark. Code Ann. § 5-4-602(4)(D), included autopsy photos, photos
of Errickson’s partially decomposed body being unearthed from a shallow grave, an
ATM video showing her frightened face, testimony by other women Williams chased
in his car shortly before abducting Errickson, and Williams’s statement to police, in
which he blamed others for the crimes and would not reveal the location of
Errickson’s body. He was convicted on all counts.

        At the penalty phase, the State submitted three aggravating circumstances: a
prior violent felony conviction (aggravated robbery), murder for pecuniary gain, and
murder committed in an “especially cruel or depraved” manner. See id. § 5-4-604(3),
(6), (8). The State’s penalty phase evidence was compelling. Williams’s prior
convictions for aggravated robbery and kidnapping were introduced. Another woman
testified that he abducted and sexually assaulted her four days after he abducted
Errickson. Errickson’s mother testified to the murder’s effect on Errickson’s four-
year-old daughter:

             On Mother’s Day we went to plant some flowers on her grave,
      because her mama always liked flowers. Instead of Brittany helping
      plant flowers, she started digging a hole, where she could go be with her
      mama. Many times she’s wished that the mean man would come and get
      her, where she could go be with her mama, too.

Errickson’s twin brother testified to her hard work and study to be a respiratory
therapist, and the heartache of having to care for her grieving daughter.



                                         -3-
      The defense urged six mitigating circumstances: (1) extreme mental or
emotional disturbance; (2) unusual pressures or influences; (3) reduced capacity to
appreciate the wrongfulness of the offense conduct, or impairment as a result of
mental disease or defect, intoxication, or drug abuse; (4) youth; (5) acceptance of
responsibility; and (6) remorse. See id. § 5-4-605(1)-(4). The defense offered
testimony by one witness, Michael Orndorff, an Arkansas inmate whose death
sentence was commuted to life without parole and who testified that life without
parole was more severe punishment because of the miserable conditions of prison life.

       The jury unanimously recommended a death sentence, finding that the State
proved all three aggravating circumstances beyond a reasonable doubt, that Williams
proved one mitigating circumstance -- acceptance of responsibility -- by a
preponderance of the evidence, and that the aggravating circumstances outweighed
the mitigating circumstance beyond a reasonable doubt. See id. § 5-4-603. The trial
court accepted the jury’s recommendation. The Supreme Court of Arkansas affirmed.
Williams v. State, 991 S.W.2d 565 (Ark. 1999) (Williams I).

        B. The State Post-conviction Proceedings. Williams petitioned for state post-
conviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure. The
trial court ordered an evidentiary hearing and appointed attorney William McLean to
represent Williams during the post-conviction proceedings. McLean was qualified for
a capital case appointment. See Ark. R. Crim. P. 37.5(c)(1). He had practiced
criminal law for over ten years, served as lead counsel in other capital murder cases,
handled other post-conviction matters, and tried at least 100 jury cases.

       Williams initially urged many grounds for post-conviction relief but later
withdrew all except one -- that his trial counsel rendered ineffective assistance at the
penalty phase by failing adequately to investigate and present mitigating evidence of
his difficult past. At the evidentiary hearing, Williams presented testimony by his
three trial attorneys. All three testified that their trial strategy was to concede guilt,

                                           -4-
in the face of the State’s overwhelming evidence, and to seek mercy at the penalty
phase. Lead penalty phase attorney Hendry testified that he and co-counsel
interviewed Williams “a number of times,” obtained his school, prison, and medical
records, and reviewed the report of a state psychologist who examined Williams and
determined he was competent to stand trial. See Ark. Code Ann. § 5-2-305(b)(1). As
Hendry explained, this investigation apprised counsel of Williams’s “troubled past”:

       [H]e had been in training school early, you know, 11, 12, 13 years old.
       . . . Committed another offense that ended up getting him in the
       Department of Corrections. From talking with him, his mother didn’t
       provide very much of a home life for him. I believe he had a step-father
       or another man living in the house who he had confrontations with. I
       don’t believe that there was a lot of food . . . I think there were times
       where they didn’t have what they needed. I believe there was some
       discussions of his mother having . . . a revolving door. . . . [S]he
       possibly used drugs and used drugs in his presence and he used drugs
       with her.

Hendry testified that counsel knew from Williams’s prison records that he allegedly
was raped by a fellow inmate at age sixteen, and had committed “major” disciplinary
violations and received psychiatric treatment while incarcerated.

       Counsel testified that they decided not to have Williams testify at the penalty
phase because they feared damaging cross-examination about his drug use and
criminal history and the gruesome details of the crime. Hendry considered Williams
not to be a credible witness because of the numerous fabrications in his custodial
statement. Williams told counsel he did not wish to testify. Counsel twice tried to
interview Williams’s mother, Sara Riggs, who briefly testified for the State during the
guilt phase. Counsel elected not to call Riggs during the penalty phase because she
was “not very cooperative” and because, when subpoenaed by the State to testify at
a pre-trial hearing, she was “pitiful. . . . She could barely talk in front of just the judge
and counsel.” Counsel testified they did not try to contact Williams’s half sister,

                                            -5-
Peggy O’Neal, because Williams told them he and Peggy lost contact nearly a decade
earlier. Attorney Wright testified that Williams did not identify other family members
or persons who could testify about his background. Counsel tried to locate a witness
to testify to the alleged prison rape but found no one.

       Lead attorney Hendry testified that counsel elected to forgo presenting
potentially mitigating social history evidence because neither Williams nor his mother
would be a viable witness. Hendry emphasized his concern that any mitigating
evidence presented through an expert could open the door to damaging cross-
examination; “naturally, [when] somebody takes the stand, I think they’re open to
bring out the good and the bad.” He was not asked whether he knew the defense
could use a social history expert to gather and present such evidence. By contrast,
Wright and James testified that they did not know that a social history expert could
have testified to Williams’s troubled past. Wright described this tactic as “foreign”
at the time.1 Inexperienced attorney James, whose opinion was entitled to little
weight, testified that the testimony of Orndorff was not a product of “trial strategy.”

       The state trial court denied post-conviction relief. Applying Strickland, the
court concluded that Williams failed to prove that counsel’s decision not to develop
and present expert social history testimony was prejudicial:

      What is obvious to this Court, is that we do not, nor cannot ever know
      what a psychiatrist would have said in Mr. Williams’ trial. . . . Petitioner
      has offered no factual substantiation that convinces this Court that there
      is a reasonable probability that the outcome of the sentencing phase of

      1
        Given Hendry’s experience, Wright’s selection of Hendry to be in charge of
the penalty phase, and the cases cited in note 5, infra, we are inclined to think the
district court clearly erred in assuming that Hendry was as ignorant in this regard as
his co-counsel, an assumption critical to the court’s conclusion that counsel were
guilty of deficient performance under Strickland. But we put this concern aside and
focus exclusively on the issue of Strickland prejudice.

                                          -6-
      the trial would have been different had the jury heard specific testimony
      of a specific witness.

The Supreme Court of Arkansas affirmed, holding that Williams established neither
deficient performance nor prejudice under Strickland. Williams v. State, 64 S.W.3d
709 (Ark. 2002) (Williams II). One Justice concurred solely on the no-prejudice
ground. The Court observed that, unlike Williams, successful post-conviction
petitioners in Supreme Court of Arkansas and United States Supreme Court cases had
“offered factual substantiation of such a substantial amount of omitted mitigating
evidence that the Court was convinced that there was a reasonable probability that the
evidence could have changed the result of the sentencing phase.” Id. at 715-16, citing
Williams v. Taylor, 529 U.S. 362 (2000) (Terry Williams), and Sanford v. State, 25
S.W.3d 414 (Ark. 2000).

       C. The Federal Habeas Proceedings. Williams timely filed a federal habeas
corpus petition. His amended petition raised numerous claims, including an
ineffective assistance claim based on counsel’s failure to develop and present during
the penalty phase mitigating social history evidence through testimony by an expert
such as a psychiatrist, a psychologist, or a social worker. In October 2004, appointed
counsel filed a Motion for Additional Time to File an Amended Petition and Conduct
an Extensive Social History Investigation, detailing the investigation counsel would
conduct and requesting, without supporting legal argument, an evidentiary hearing.
The State objected, arguing that a federal habeas proceeding is not an opportunity to
retry the case and that, “this Court has before it ample information to determine [the
ineffective assistance question].” The district court granted the motion, noting it
would “conduct an evidentiary hearing, if one is necessary,” without further
explanation. Williams filed his amended petition in April 2005. In June 2006, the
court issued an order that the Supreme Court of Arkansas made “an unreasonable
determination” that trial counsel did not perform deficiently at the penalty phase. See
28 U.S.C. § 2254(d)(2). Citing Rule 8(a) of the Rules Governing Section 2254 Cases,


                                         -7-
the court ordered an evidentiary hearing on the issue of Strickland prejudice in
December 2006.

       At the evidentiary hearing, Williams presented mitigating evidence he contends
counsel should have introduced during the penalty phase. The cornerstone of this
evidence was testimony by Dr. David Lisak, a psychologist who recounted Williams’s
social history based on interviews with Williams, his mother, half-sister Peggy
O’Neal, and a cousin, and reviews of Williams’s medical, training school, and prison
records. O’Neal, four cousins, and a training school counselor also testified.

       Lisak testified that Williams had been “exposed to pretty much every category
of traumatic experience that is generally used to describe childhood trauma,”
including physical, sexual, and psychological abuse, and neglect. According to Lisak,
Sara Riggs and Williams’s stepfather, James Riggs, often beat Williams, and Sara
intentionally burned him twice. Sara “pimped [Williams] to older women from the
age of ten on,” and two of her many male companions sexually molested him. Sara
and James fought in front of the children, and neither was affectionate toward
Williams. Sara abused alcohol and would leave the children home alone for days at
a time while partying. The cousins described Williams’s family homes as roach-
infested and “nasty,” in neighborhoods riddled with drug activity and violence.
Living in poverty and neglect, Williams began stealing and shoplifting to support his
siblings. Lisak testified that Williams was sent to two training schools between the
ages of twelve and fourteen for theft-related offenses. He resumed stealing shortly
after his release and was convicted of aggravated robbery as an adult in 1986, when
he was sixteen. He was sentenced to eight years in prison, where he allegedly was
raped by three fellow inmates.

       Lisak opined that the abuse and neglect Williams suffered can cause a young
person to develop accentuated impulses and inhibit his ability to control the impulses
in response to stimuli. He further opined that Williams had exhibited symptoms of

                                         -8-
post-traumatic stress disorder for some time. Lisak opined that a person with his
qualifications and experience could have provided similar testimony at the penalty
phase. Peggy O’Neal and Williams’s cousins testified that they would have testified
at his trial if asked. Sara Riggs again did not testify.

       Based on this evidence, the district court granted the relief on the ineffective
assistance claim. On the Strickland prejudice issue, the court concluded:

      The evidence here is as compelling as the evidence in Wiggins [v. Smith,
      539 U.S. 510 (2003)], where the Supreme Court granted a petition for
      writ of habeas corpus pursuant to the standards of . . . 28 U.S.C. § 2254
      . . . . Likewise, the evidence here is as compelling as the evidence in
      Simmons v. Luebbers, 299 F.3d 929 (8th Cir. 2002)[, cert. denied, 538
      U.S. 923 (2003)], where the court also granted a petition for writ of
      habeas corpus, finding that the lawyers . . . in a capital case were
      ineffective for failing to present at the penalty phase evidence that the
      defendant had been abused and neglected during his childhood.

The court denied Williams’s other claims, set aside the death sentence, and ordered
the State to afford Williams a new penalty phase trial or change his penalty to life in
prison without parole. The court stayed its order pending these appeals.

       The State appeals the ineffective assistance ruling. In his cross-appeal,
Williams argues that the prosecutor exercised peremptory strikes in a racially
discriminatory manner; that the denial of a for-cause challenge abridged his
constitutional right to a fair and impartial jury; that his in-custody statement was
unconstitutionally admitted; that Arkansas’ capital murder and death penalty statutes
are unconstitutional; that premising an aggravating circumstance on juvenile conduct
violates Roper v. Simmons, 543 U.S. 551 (2005); that the pecuniary gain aggravating
circumstance constituted unconstitutional “double counting”; and that the “cruel,
depraved, or indifferent” aggravating circumstance was unconstitutionally vague and
supported by insufficient evidence.

                                         -9-
                       II. Ineffective Assistance of Counsel

       To obtain relief based on ineffective assistance of trial counsel, Williams must
establish that counsel’s performance fell below an objective standard of
reasonableness and that this deficient performance prejudiced his defense. Strickland,
466 U.S. at 687. Although the Supreme Court of Arkansas considered both deficient
performance and prejudice, we need address only its prejudice ruling. See id. at 697
(“If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be
followed.”). To demonstrate prejudice, a petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. When the claim is that additional
mitigating evidence should have been presented at the penalty phase, petitioner must
show “a reasonable probability that at least one of the jurors would have voted against
the imposition of the death penalty.” Simmons v. Luebbers, 299 F.3d at 939.

        Because the state courts ruled on the merits of this claim, we must apply the
deferential standards for reviewing state court determinations mandated by AEDPA.
See Helmig v. Kemna, 461 F.3d 960, 966 (8th Cir. 2006). Therefore, Williams must
demonstrate that the state court adjudication “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established law, as determined
by the Supreme Court of the United States,” or “resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence” presented in
state court. 28 U.S.C. § 2254(d)(1), (2). Findings of fact by the state trial and
appellate courts are presumed correct unless rebutted by “clear and convincing
evidence.” § 2254(e)(1).

       1. In holding that Williams failed to prove Strickland prejudice, the Supreme
Court of Arkansas explained: “We will not grant postconviction relief for ineffective
assistance of counsel where the petitioner failed to show what the omitted testimony

                                         -10-
was and how it could have changed the outcome.” 64 S.W.3d at 716.2 The Court
carefully distinguished the state post-conviction record in Terry Williams, 529 U.S.
at 370-71, concluding that in that case, the petitioner factually substantiated that the
omitted evidence would likely have changed the result of the penalty phase. Here, on
the other hand, Williams “failed to call anyone to the stand at his Rule 37 hearing or
to proffer the substance of any specific testimony to show what evidence could have
been presented and whether it would have changed the mind of one of the jurors.” 64
S.W.3d at 716.

       We conclude that this no-prejudice ruling, based on the state post-conviction
record, was not contrary to nor an unreasonable application of Strickland. Williams
virtually concedes the point, arguing only that the district court was correct in ruling
that the evidence presented at the federal evidentiary hearing makes this case
indistinguishable from Wiggins and Simmons. But those cases, like Terry Williams,
were decided by reviewing3 state post-conviction records that included detailed
explanation and substantiation of what omitted mitigating evidence could have been
presented and its probable impact on the penalty phase jury, precisely the evidence the
Supreme Court of Arkansas found lacking here. In other words, the district court
granted habeas relief on an evidentiary record never presented to the state courts. The
critical question is whether the district court erred by proceeding in that manner.



      2
        The Court has relied on this principle in denying ineffective assistance claims
in numerous cases. See Noel v. State, 26 S.W.3d 123, 126 (Ark. 2000); Pyle v. State,
8 S.W.3d 491, 499 (Ark. 2000); Johnson v. State, 900 S.W.2d 940, 946-47 (Ark.
1995); Fretwell v. State, 728 S.W.2d 180, 183 (Ark. 1987), quoted in Fretwell v.
Norris, 133 F.3d 621, 622 (8th Cir.), cert. denied, 525 U.S. 846 (1998); Gilbert v.
State, 669 S.W.2d 454, 456 (Ark. 1984).
      3
       The Maryland Court of Appeals did not rule on prejudice in Wiggins, so the
Supreme Court reviewed the prejudice issue de novo, unconstrained, as we are, by the
deferential AEDPA standard of review. See 539 U.S. at 534.

                                         -11-
       2. Codifying the standard of diligence adopted by the Supreme Court in
Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12 (1992), AEDPA enacted mandatory
restrictions barring evidentiary hearings in most federal habeas proceedings:

             If the applicant has failed to develop the factual basis of a claim
      in State court proceedings, the court shall not hold an evidentiary hearing
      on the claim unless the applicant shows that--

             (A) the claim relies on--

                    (i) a new rule of constitutional law, made retroactive to
                    cases on collateral review by the Supreme Court, that was
                    previously unavailable; or

                    (ii) a factual predicate that could not have been previously
                    discovered through the exercise of due diligence; and

             (B) the facts underlying the claim would be sufficient to establish
             by clear and convincing evidence that but for constitutional error,
             no reasonable fact-finder would have found the applicant guilty of
             the underlying offense.

28 U.S.C. § 2254(e)(2) (emphasis added). Only if the habeas petitioner “was unable
to develop his claim in state court despite diligent effort” is an evidentiary hearing not
barred by § 2254(e)(2). Williams v. Taylor, 529 U.S. 420, 437 (2000) (Michael
Williams). In that case, “the decision to grant such a hearing rests in the discretion of
the district court.” Schriro v. Landrigan, 127 S. Ct. 1933, 1937 (2007).

      Here, Williams requested an evidentiary hearing without citing § 2254(e)(2) or
attempting to satisfy its mandatory restrictions. The district court granted the hearing
without reference to § 2254(e)(2), citing only Rule 8(a) of the Rules Governing




                                          -12-
Section 2254 Cases.4 This was reversible error. Bradshaw v. Richey, 546 U.S. 74,
79 (2005) (per curiam); Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per
curiam).

      Williams argues that the State never objected to an evidentiary hearing and thus
waived § 2254(e)(2)’s restrictions, a contention the Supreme Court summarily rejected
in Holland, 542 U.S. at 653 n.1. We disagree. The State’s Objections to Williams’s
motion for additional time and an evidentiary hearing argued that, under AEDPA, “the
[federal] court is prevented from re-trying a state criminal case.” That incorporated
the fundamental purpose behind the restrictions on evidentiary hearings in
§ 2254(e)(2) and in the judicial doctrines it codified. See Michael Williams, 529 U.S.
at 436-37; Keeney, 504 U.S. at 8-9.

       Even if the State had not objected, we would exercise our discretion to review
the district court’s non-compliance with § 2254(e)(2). See King v. Kemna, 266 F.3d
816, 821-22 (8th Cir. 2001) (en banc), cert. denied, 535 U.S. 934 (2002); see generally
Day v. McDonough, 547 U.S. 198 (2006). Interests of comity, federalism, and the
administration of justice dictate that, “when a prisoner alleges that his [punishment]
for a state court conviction violates federal law, the state courts should have the first
opportunity to review this claim and provide any necessary relief.” Michael Williams,
529 U.S. at 437 (quotation omitted). In this case, where the issue is whether the
omitted mitigating evidence presented at the evidentiary hearing established that
Williams was prejudiced by trial counsel’s deficient performance at the penalty phase,
there are strong reasons for enforcing those policies.

      First, a threshold question, unexplored by the district court, is whether Dr.
Lisak’s testimony would have been admissible at the penalty phase without other

      4
        The Advisory Committee Notes to the 2004 amendment to Rule 8 expressly
state, “Rule 8(a) is not intended to supersede the restrictions on evidentiary hearings
contained in 28 U.S.C. § 2254(e)(2).”

                                          -13-
witnesses providing factual foundation for his opinions. In an Arkansas capital case,
“[e]vidence as to any mitigating circumstance may be presented by either the state or
the defendant regardless of the evidence’s admissibility under the rules governing
admission of evidence in a trial of a criminal matter.” Ark. Code Ann. § 5-4-
602(4)(B)(i). But “this statute was not designed to create a vehicle for intentional
circumvention of the rules of evidence.” Hill v. State, 628 S.W.2d 284, 291 (Ark.
1982) (excluding hearsay when declarant was available). Numerous reported cases
confirm that, by the time of Williams’s trial, expert testimony presenting the
defendant’s social history as mitigating evidence at the penalty phase of Arkansas
capital cases was not uncommon.5 But in these cases other witnesses, usually the
defendant, also testified and provided factual foundation for the experts’ opinions.
The state trial court in a Rule 37 evidentiary proceeding is best positioned to consider
this question.

        Second, if other witnesses were needed to provide a factual basis for Dr. Lisak’s
social history and expert opinions, who would those witnesses have been? Williams
was obviously the source for much of Lisak’s testimony. But it is undisputed that trial
counsel’s decision not to have Williams testify was reasonable. Williams’s mother,
Sara Riggs, was another source. But Riggs was uncooperative with trial counsel and
did not testify at either post-conviction hearing. Lisak interviewed her and then
testified she was guilty of pervasive parental abuse that she refused to admit. Would
that testimony be admissible and, if so, credible? The other family members who
testified at the evidentiary hearing -- Peggy O’Neal and four cousins -- did not have
first-hand knowledge of the pervasive home abuse to which Lisak testified.
Moreover, discrepancies between Lisak’s and Peggy’s accounts of Williams’s


      5
         See Ruiz v. State, 772 S.W.2d 297, 306 (Ark. 1989) (psychologist testified at
trial); Johnson v. State, 823 S.W.2d 800, 810 (Ark. 1992) (error to exclude); Echols
v. State, 127 S.W.3d 486, 506-07 (Ark. 2003) (psychologist testified at pre-1996
trial); Rankin v. State, 227 S.W.3d 924, 928 (Ark. 2006) (psychologist testified at
1996 trial); Fretwell, 133 F.3d 621, 623 (psychologist testified at 1985 trial).

                                          -14-
childhood -- Lisak testified that Sara abused Williams, but Peggy portrayed her
mother’s “whoopings” as discipline -- would weaken Lisak’s testimony, despite
Lisak’s unsubstantiated dismissal of these discrepancies as Peggy “minimizing what
was going on in the home.”

      Third, Hendry and Wright testified at the Rule 37 hearing that they contacted
any family members Williams told them might be of assistance. There is no evidence
Williams told them about the cousins who testified at the federal hearing, and it is
undisputed that counsel did not contact Peggy O’Neal because Williams told them he
and Peggy had lost contact for many years. If counsel’s failure to seek them out was
not constitutionally defective, see Fretwell, 133 F.3d at 627, should their post-
conviction testimony be factored into the prejudice inquiry?

       Fourth, even if Lisak’s testimony and opinions were admissible without
corroboration, if Williams would not or should not testify to substantiate the claimed
mitigating social history, does the claim raise a reasonable probability of a different
outcome in the face of the State’s powerful case of aggravating circumstances? The
historical records on which Lisak relied contained much damaging evidence, unlike
the record in Wiggins, 539 U.S. at 537. For example, Williams’s prison records listed
some sixty disciplinary violations, several violent, and described Williams as
“manipulative.” While Lisak portrayed Williams’s juvenile offenses as attempts to
provide basic necessities for the family, a training school evaluator wrote that
Williams’s “only reason for involvement in acts of Theft is the excitement of getting
away with it.” Compare Echols v. State, 936 S.W.2d 509, 520-21 (Ark. 1996)
(describing cross-examination of social history expert on damaging information in the
defendant’s medical records). Arkansas juries have imposed the death penalty even
after finding the defendant’s dysfunctional past a mitigating circumstance. See
Coulter v. State, 31 S.W.3d 826, 831-32 (Ark. 2000).




                                         -15-
       Unless Williams was foreclosed from developing a full factual record in the
Rule 37 proceedings, these are questions that should be presented to and answered by
the state courts. “The state court is the appropriate forum for resolution of factual
issues in the first instance, and . . . the deferral of factfinding to later federal-court
proceedings can only degrade the accuracy and efficiency of judicial proceedings.”
Keeney, 504 U.S. at 9.

       3. We further conclude that the state court record establishes, as a matter of
law, that Williams “failed to develop the factual basis of [this] claim in State court
proceedings,” as § 2254(e)(2) was construed and applied by the Supreme Court in
Michael Williams, 529 U.S. at 432 (failure to develop means “there is lack of
diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel”).
Indeed, Williams does not argue to the contrary. When he filed his Rule 37 petition
for post-conviction relief, the trial court promptly appointed experienced, well-
qualified counsel and ordered an evidentiary hearing. The hearing record reveals no
state court ruling or other state-created impediment that prevented Williams from
developing the factual basis for his ineffective assistance of counsel claim. As the
Supreme Court of Arkansas observed in denying post-conviction relief, Williams and
his counsel were responsible for the lack of evidence establishing and substantiating
Strickland prejudice. “Attorney negligence . . . is chargeable to the client and
precludes relief unless the conditions of § 2254(e)(2) are satisfied.” Holland, 542 U.S.
at 653; see Gingras v. Weber 543 F.3d 1001, 1004 (8th Cir. 2008).

       Because Williams failed to develop in the state proceedings the facts he sought
to develop in the district court, that court “was barred from granting an evidentiary
hearing absent [Williams’s] compliance with the balance of § 2254(e)(2)’s stringent
requirements.” Osborne v. Purkett, 411 F.3d 911, 916 (8th Cir. 2005), cert. denied,
547 U.S. 1022 (2006). Here, as in Koste v. Dormire, Williams has not argued that
either exception in § 2254(e)(2)(A) and (B) applies, and it is apparent that neither
does. 345 F.3d 974, 986 (8th Cir. 2003), cert. denied, 541 U.S. 1011 (2004).

                                           -16-
Strickland was a well-established rule of constitutional law, available at the time of
Williams’s trial and post-conviction proceedings. The historical facts that Williams
claims counsel should have developed and presented were, by definition, discoverable
at the time of the state court proceedings by reviewing prison and mental health
records, interviewing family members, and so forth. Attorney McLean was aware that
trial counsel could have presented testimony by a social history expert at the penalty
phase, and that he could have presented such testimony at the Rule 37 hearing to
establish prejudicial ineffective assistance, as evidenced by McLean’s examination of
trial counsel at the Rule 37 hearing and by the cases cited in note 5, supra.

       The district court erred in granting an evidentiary hearing when the mandatory
restrictions in 28 U.S.C. § 2254(e)(2) barred a hearing. Accordingly, we must decline
to consider the evidence presented at that hearing and review, under AEDPA
standards, the state court determination that Williams failed to prove Strickland
prejudice on the factual record he developed in state court. On that record, the state
court decision was neither contrary to nor an unreasonable application of Strickland.
Accordingly, habeas relief on this claim must be denied. See Smith v. Bowersox, 311
F.3d 915, 922 (8th Cir. 2002), cert. denied, 540 U.S. 893 (2003).

                               III. Batson Challenges

       On cross-appeal, Williams first argues that the State’s use of peremptory strikes
to remove three prospective African American jurors violated Batson v. Kentucky,
476 U.S. 79, 85, 95-96 (1986). Batson mandates a three-step inquiry -- did the
defendant make a prima facie showing that a strike was racially motivated; if so, did
the prosecutor provide a race-neutral reason for the strike; and if so, did the defendant
prove purposeful discrimination by showing that the proffered reason was pretextual
or unpersuasive. Smulls v. Roper, 535 F.3d 853, 859 (8th Cir. 2008) (en banc), cert.
denied, 129 S. Ct. 1905 (2009). The state courts, applying Batson, decided these fact-
intensive issues on the merits. Therefore, Williams must establish that the state court

                                          -17-
rulings were “based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). In
resolving this issue, we presume state court fact finding is correct unless Williams
presents clear and convincing evidence to the contrary. See id. § 2254(e)(1); Miller-El
v. Dretke, 545 U.S. 231, 240 (2005); Weaver v. Bowersox, 241 F.3d 1024, 1029-31
(8th Cir. 2001).

       At trial, after preliminary screening, thirty-three members of the venire panel
were available to be seated, twenty-five whites and eight African Americans. The
State used seven of its eleven peremptory strikes, striking four African Americans and
three whites. The defense used its thirteen strikes to strike twelve whites and one
African American. Three of the twelve jurors selected were African Americans, and
an African American alternate replaced a white juror who became ill at the start of
trial. Thus, four of the twelve jurors who convicted and sentenced Williams were
African Americans.

       A. Prospective Juror Artis. Williams challenged each peremptory strike of
an African American. The first was prospective juror Shirley Artis, struck by the
prosecutor after another African American had been seated. The trial judge asked the
State’s reasons for the strike. The prosecutor responded that Artis had only a high
school education, and the State wanted to “get the best educated jurors that we can”
because it planned to introduce complex DNA evidence. The judge reserved ruling
to see if a pattern developed and then denied the Batson challenge to Artis just before
the last juror was seated. The court found (i) Williams had not established a prima
facie case based on the race of the eleven jurors then seated, which included three
African Americans, and (ii) the State had proffered a race-neutral reason.

      On direct appeal, Williams challenged the strike of juror Artis. The Supreme
Court of Arkansas affirmed the trial judge’s finding that the State offered a race-
neutral explanation for the strike. See Williams I, 991 S.W.2d at 572-73. The district

                                         -18-
court in a lengthy discussion of all juror selection issues agreed, concluding “there is
evidence from which the Arkansas courts could reasonably find that the prosecutor did
not engage in purposeful racial discrimination in the selection of the jury,” and the
decision upholding the strike of juror Artis “is a reasonable decision based on the
record.” Applying the deferential standard of review mandated by AEDPA, the court
denied habeas relief.

       On appeal, Williams argues that the prosecutor’s proffered reason for striking
Artis was clearly pretextual because the State accepted Brenda Sherrill, a white
woman who also had a high school education, and seven other white jurors who had
a high school education or less. Striking a black panelist for reasons that apply as well
to similar nonblacks who serve “is evidence tending to prove purposeful
discrimination.” Dretke, 545 U.S. at 241; see Nicklasson v. Roper, 491 F.3d 830, 842
(8th Cir. 2007), cert. denied, 128 S. Ct. 2052 (2008). But here, the argument
misconstrues the trial record. After the trial judge deferred ruling on the Artis
challenge, the State did not strike juror Sherrill. The trial judge commented, sua
sponte, “I also want to show that Ms. Sherrill has a high school education and was
accepted by the State. I think that ought to be part of the record.” The prosecutor then
elaborated on the strike of Artis:

      She did not appear to me to be bright when I was talking to her. She also
      was a shipping clerk for Maybelline. All of these things worried me in
      conjunction with DNA. Ms. Sherrill appeared to be articulate. She’s
      also a manager of a store. I felt like that . . . boded well for the DNA --
      understanding the DNA evidence.

In denying the challenge to this strike, the trial judge explained:

      I think the high school [education] was probably [an] inappropriate way
      to say it, but I think [the State] felt that from her responses and her
      background that perhaps she wasn’t the person they wanted because of
      her ability to understand the evidence in this case.

                                          -19-
Thus, ability to understand DNA evidence, not education level, was the race-neutral
reason for striking juror Artis, as understood by the trial judge. The Supreme Court
of Arkansas agreed with this finding, upholding the strike of Artis because it was
“made to obtain a jury capable of understanding the complex evidence, particularly,
DNA evidence.” Williams I, 991 S.W.2d at 572.

      Ability to understand complex evidence, like intelligence, is a factor “that can
be appraised by the trial judge who questioned those jurors during voir dire (or who
watched them being questioned by counsel).” Olson v. Ford Motor Co., 481 F.3d 619,
623 (8th Cir. 2007); see Smulls, 535 F.3d at 859. Prior to AEDPA, the Supreme
Court held that such evaluations lie “peculiarly within a trial judge’s province” and
must be accorded deference “in the absence of exceptional circumstances.”
Hernandez v. N.Y., 500 U.S. 352, 365-66 (1991) (quotation omitted).

       Williams further argues the trial judge erred because he “believed that [he]
could consider only the record at the time the juror was struck for purposes of
determining whether the defense had made a prima facie showing.” This contention
is without merit. The judge deferred ruling on juror Artis until nearly all jurors had
been seated, and demonstrated that he in fact considered later evidence by referring
to the African American juror he reseated after upholding a later Batson challenge,
and by taking into account the prosecutor’s additional explanation of the reasons for
the strike. In finding that Williams did not make a prima facie showing of
discrimination, the trial judge was entitled to accord weight to the seating of nearly
half of the eligible African American jurors, as compared to about twenty percent of
the eligible white jurors. See Weaver, 241 F.3d at 1030. We agree with the district
court that Williams failed to overcome the presumption of correctness we must accord
the trial judge’s finding of no prima facie showing. See 28 U.S.C. § 2254(e)(1).




                                        -20-
        Williams further argues that the trial court’s fact-finding was tainted by the
judge’s “resistan[ce] to the requirements of Batson from the start.” This contention,
too, is without merit. As the district court noted, “the trial judge expressed some
frustration with the lack of guidance from the Supreme Court as to how to implement
Batson,” but the judge “agreed with the central holding of Batson” and applied it. The
comments in question were made in the course of sustaining a Batson challenge. This
is not an exceptional circumstance rebutting the state courts’ finding that the strike of
Artis was not based on race.

       B. Other Challenges. After the third African American panel member was
seated, the State struck the fourth and fifth, Columbus Strain and Lou Chandler. The
court overruled Batson challenges. The court upheld the Batson challenge to the
State’s strike of the sixth African American, and she was seated. Williams struck the
seventh. The eighth was seated as an alternate and ultimately served. On direct
appeal, Williams challenged the State’s use of peremptory strikes generally, but not
the strikes of Strain and Chandler specifically. The Supreme Court of Arkansas
affirmed the trial judge’s rulings. Williams I, 991 S.W.2d at 571-73. The district
court held that specific challenges to the strikes of jurors Strain and Chandler were
procedurally defaulted because not raised on appeal, and that the Arkansas courts
reasonably found no purposeful racial discrimination in the selection of the jury.

       Arkansas Supreme Court Rule 4-3(h)6 mandates Supreme Court review of “all
errors prejudicial to the appellant.” Williams argues that this rule “overcomes
procedural bar as to those errors preserved in [the trial court] record,” citing Starr v.
Lockhart, 23 F.3d 1280, 1287 (8th Cir.), cert. denied, 513 U.S. 995 (1994). But our
decision in Starr, at least as broadly construed by Williams, was overruled by AEDPA
as applied in Baldwin v. Reese, 541 U.S. 27 (2004). See also Bell v. Cone, 543 U.S.
447, 451 n.3 (2005). On direct appeal, Williams challenged the strike of Artis


      6
       Recodified without substantive change as Ark. Sup. Ct. R. 4-3(i).

                                          -21-
specifically and the State’s strike of four African Americans generally. The Supreme
Court of Arkansas addressed in detail only those issues. Other issues relating to the
strikes of Strain and Chandler were not “fairly presented” to the state appellate court,
and therefore Williams did not exhaust available state remedies. Baldwin, 541 U.S.
at 29, applying 28 U.S.C. § 2254(b)(1). The district court properly held those issues
procedurally barred.

       The district court went on to consider whether the strikes of prospective jurors
Strain and Chandler cast doubt on the Supreme Court of Arkansas’ finding that the
State was not guilty of purposeful race discrimination in selecting the jury. During
voir dire, Strain said he recognized Williams. When asked whether this would affect
his ability to impose the death penalty, Strain responded, “It might. It might. I’m
being honest about it.” At another point he stated, “I really don’t believe in the death
penalty.” The prosecutor gave as reasons for striking Strain: “he thought he
recognized the Defendant and that he might have a problem putting his name on the
death penalty form.” During voir dire, prospective juror Chandler said that her son
had been convicted of a drug charge but she believed the criminal justice system was
fair. Chandler said she could think of circumstances in which the death penalty would
be appropriate, and would follow the law as the judge explained it. But when asked
if any “religious, moral or ethical beliefs” affected her view of the death penalty, she
responded, “As far as my religious belief, I don’t believe in capital punishment.” The
prosecutor gave as reasons for striking Chandler: “that her son had had a prior drug
conviction [and] religiously she was against the death penalty.”

      Williams argues the State did not strike white jurors who expressed mixed
views on the death penalty like Strain. But no juror was similarly situated to Strain,
who recognized Williams and acknowledged that this might affect his ability to




                                         -22-
impose the death penalty.7 Likewise, the proffered reasons for striking Chandler -- her
son had a prior drug conviction, and she was religiously opposed to the death penalty
-- withstand pretext scrutiny.8 We agree with the district court that Williams neither
rebutted the trial court’s findings of no purposeful discrimination by clear and
convincing evidence nor proved that the state courts’ disposition of the Batson claims
was unreasonable. See 28 U.S.C. §§ 2254(d)(2), (e)(1). “A federal court can only
grant habeas relief if the state court’s credibility determinations were objectively
unreasonable.” Smulls, 535 F.3d at 864.

                         IV. Denial of a Strike for Cause

       During jury selection, the trial court denied Williams’s motion to strike juror
Kay Barfield for cause based on her attitudes toward the death penalty. Williams did
not exercise one of his remaining peremptory challenges, commenting “she was good
for the defense.” After the final juror was seated, Williams renewed motions for cause
regarding three jurors against whom he had exercised peremptory strikes, but he did
not renew his motion regarding Barfield, and she served on the jury. Williams raised
the denial of his motions to strike the other three on direct appeal; it is not clear
whether he challenged the seating of Barfield.9 The Supreme Court of Arkansas held,



      7
       Our en banc decision in Smulls, 535 F.3d at 860, rejected Williams’s additional
contention that the trial judge failed to make specific findings to support his
determination that the strike of Strain was not racially discriminatory.
      8
       Andrea Seaman, a white prospective juror, said she was raised a Catholic and
would be “real iffy” about imposing a death sentence. The State struck Seaman as
well as Chandler.
      9
       The Supreme Court of Arkansas referred to its rule that an appellant must be
forced to accept a juror because peremptory strikes have been exhausted in order to
preserve a claim that a juror should have been struck for cause. See Patterson v. State,
885 S.W.2d 667, 669 (Ark. 1994).

                                         -23-
“Williams did not show he was forced to accept a juror who should have been excused
for cause.” Williams I, 991 S.W.2d at 573.

       On appeal, Williams argues that refusing to strike juror Barfield for cause
violated his right to a fair and impartial jury in a capital case. See Morgan v. Illinois,
504 U.S. 719, 726-28 (1992). Although it appears this issue was procedurally barred
in the state courts, the district court reviewed the voir dire of Barfield at length and
concluded that Williams failed to show that Barfield should have been excused for
cause. After careful review of the record, we agree. The issue was whether Barfield’s
views would “prevent or substantially impair” performance of her duties as a juror,
an issue on which “deference must be paid to the trial judge who sees and hears the
juror.” Wainwright v. Witt, 469 U.S. 412, 424-25 (1985) (quotation omitted).
Williams failed to show by clear and convincing evidence that the trial court’s finding
of no actual bias was constitutionally infirm.

                    V. Admission of the Inculpatory Statement

       Williams argues that his partially inculpatory custodial statement should not
have been admitted during the guilt phase because his waiver of Miranda rights was
invalid and the statement was involuntary. The district court rejected these claims,
concluding that the state courts’ conclusions did not involve an unreasonable
application of Colorado v. Spring, 479 U.S. 564, 575-76 (1987). We agree.

        At the North Little Rock police station following Williams’s arrest, Detective
Dan Cook and Sergeant Kenny Boyd presented Williams with a Miranda waiver form
titled “Statement of Rights.” Cook explained the form, read Williams each right, and
told him he would be questioned about “kidnapping.” Williams initialed and signed
the form, stating “I’ve been through this.” He also recorded his education level:
“GED. 1½ semester college -- read & write.” Without naming the victim, Cook then
questioned Williams about the abduction of “a girl” that involved forced ATM

                                          -24-
withdrawals. Williams said he knew they wanted him to talk about an abduction
that’s “been all over the news” and began telling a story about the abduction of
Errickson, which he later changed several times and which ultimately proved to be
false. The officers then mentioned Errickson by name and continued questioning
Williams about her disappearance, attempting to learn her whereabouts from
Williams, who maintained she was still alive.

       The police questioned Williams from 4:22 p.m. on November 29 until nearly
6:00 the next morning. Between 7:15 and 9:15 p.m., Williams and three officers
drove around Little Rock trying to locate a house where Williams said they would find
Errickson. The rest of the videotaped interview was conducted in an eight-by-ten-foot
room by four officers, only two of whom questioned Williams at any given time. The
officers allowed Williams ten-to-thirty-minute bathroom breaks and provided him
with food, water, and cigarettes. His request to speak with Sergeant Boyd, whom he
knew from a previous arrest, was granted.

        Early in the interview, Williams asked about “the chance of gettin’ some help
from the [prosecutor] if I can help you find that girl that’s missing.” Detective Mike
Jeu replied, “I will go to the prosecutor myself, and tell the prosecutor that you fully
cooperated and you assisted us in finding this girl, and that you realize that you made
a mistake.” Jeu later added, “you know . . . the more cooperative you are, the
prosecutor takes that into consideration.” Still later, Jeu said Williams would be better
off if he disclosed Errickson’s location; “you know the prosecutor’s not going to stick
their necks out and say, ‘Yeah, he fully cooperated, but we still hadn’t found Stacy.’”
Jeu knew that the prosecutor was watching the interview from another room.

       The officers also urged Williams to give Errickson’s family the “opportunity
for a Christian burial” and posited that her body had been laying out in the cold with
“animals eat[ing] on her.” The officers quoted the Bible in urging Williams to come
clean and appealed to his concern for his ill mother. Williams never confessed to

                                          -25-
killing Errickson but did confess to kidnapping her and robbing her through ATM
withdrawals. The prosecution introduced portions of the statement at trial as
substantive evidence of Williams’s commission of kidnapping and robbery, and as
evidence of fabrication concerning the murder and rape charges.

       A. Validity of Miranda Waiver. To be valid, a waiver of the rights protected
by Miranda must be voluntary, knowing, and intelligent. 384 U.S. at 444. Williams
argues his waiver was neither knowing nor intelligent because he understood he would
be questioned about one kidnapping, but the police in fact questioned him about a
separate kidnapping and murder. The Supreme Court of Arkansas affirmed the trial
court’s findings that Williams “understood he was voluntarily giving up substantial
rights and . . . understood the potential consequences.” Williams I, 991 S.W.2d at
573. We agree with the district court that this was not an unreasonable application of
Spring. “The Constitution does not require that a criminal suspect know and
understand every possible consequence of a waiver of the Fifth Amendment
privilege.” Spring, 479 U.S. at 574. When Detective Cook said the subject of the
interview was a “kidnapping,” Williams himself first raised the subject of Errickson’s
disappearance. There was no “affirmative misrepresentation . . . as to the scope of the
interrogation,” an issue the Supreme Court left open in Spring, 479 U.S. at 576 n.8.

      B. Voluntariness. An inculpatory statement is inadmissible if the defendant
proves that his “will was overborne and [his] capacity for self-determination critically
impaired” by coercive police activity. Jenner v. Smith, 982 F.2d 329, 333 (8th Cir.)
(quotation omitted), cert. denied, 510 U.S. 822 (1993). But it is a rare case when a
defendant “can make a colorable argument that a self-incriminating statement was
compelled despite the fact that the law enforcement authorities adhered to the dictates
of Miranda.” Simmons v. Bowersox, 235 F.3d 1124, 1132 (8th Cir.) (quotation
omitted), cert. denied, 534 U.S. 924 (2001).




                                         -26-
      Williams argues that he was subjected to a variety of coercive practices --
“marathon interrogation” by a team of officers at night in a cramped room; appeal to
divine authority and to sympathy for Errickson’s family and Williams’s ill mother;
and Detective Jeu’s promises of leniency. In rejecting this claim, the Supreme Court
of Arkansas found “no false promise of leniency” because Jeu’s statements were not
promises of leniency, nor did Williams interpret them as such, and “no impermissible
coercion.” Williams I, 991 S.W.2d at 574. The district court held that this was not
an unreasonable interpretation of the Supreme Court’s voluntariness precedents. After
careful review of the record, we agree.

        Though lengthy interrogation, appeals to God and family, and promises of
leniency can be coercive, the question is whether the totality of the circumstances
demonstrate that Williams’s will was overborne by coercion. Here, there is no
evidence of such an effect on Williams. Questioning a suspect for thirteen hours is
not unconstitutional per se, particularly when a crime victim has disappeared and may
still be alive. Williams received a two-hour respite during the car trip, several breaks,
and food, water, and cigarettes. He was relatively well educated and experienced with
the criminal justice system. He spoke rationally and articulately throughout the
interview, repeatedly acknowledging responsibility for his conduct, pledging to plead
guilty to any charges, and stating, “I’m not expecting a slap on the wrist for this. I’ve
already prepared myself from a mental standpoint . . . .” Williams himself initiated
the question of leniency; after Jeu’s final offer, Williams said, “You didn’t put me in
this situation. I did . . . . [S]omehow I gotta walk alone.”10 These are not the words
of a suspect with an overborne will or an impaired capacity for self-determination.
See Smith v. Bowersox, 311 F.3d at 922-23; Simmons v. Bowersox, 235 F.3d at 1132-
33. The Supreme Court of Arkansas’ voluntariness ruling was reasonable. See 28
U.S.C. § 2254(d)(1).

      10
        Telling a suspect it “would be better for him” to tell the truth is not a promise
of leniency. Bolder v. Armontrout, 921 F.2d 1359, 1366 (8th Cir. 1990), cert. denied,
502 U.S. 850 (1991).

                                          -27-
                    VI. Constitutionality of Arkansas Statutes

       A. Capital and First-Degree Murder Statutes. At the conclusion of the guilt
phase of the trial, the trial court instructed the jury on the elements of capital murder
and first-degree murder, which were substantively identical in this case because the
underlying felony for both offenses was kidnapping. See Ark. Code Ann. §§ 5-10-
101(a)(1), 5-10-102(a)(1). Williams argues this overlap violated due process because
it risked arbitrary decisionmaking in a capital case. The state courts summarily
rejected this claim. We agree with the district court that the claim is foreclosed by our
prior decision in Simpson v. Lockhart, 942 F.2d 493, 496-97 (8th Cir. 1991), which
we are not at liberty to revisit.

       B. Death Penalty Statutory Framework. At the penalty phase, the jury was
instructed consistently with Ark. Code Ann. § 5-4-603, which provides:

      (a) The jury shall impose a sentence of death if the jury unanimously
      returns written findings that:

        (1) An aggravating circumstance exists beyond a reasonable doubt;

        (2) Aggravating circumstances outweigh beyond a reasonable doubt
      any mitigating circumstances found to exist; and

        (3) Aggravating circumstances justify a sentence of death beyond a
      reasonable doubt.

Williams argues this sentencing regime is facially unconstitutional because it does not
permit the jury to give adequate effect to mitigating evidence. The state courts and
the district court summarily rejected this contention. The contention is foreclosed by
our prior decision in Singleton v. Lockhart, 962 F.2d 1315, 1323 (8th Cir.), cert.
denied, 506 U.S. 964 (1992). Williams argues that Singleton was “abrogated” by the
Supreme Court’s later decisions in Smith v. Texas, 543 U.S. 37 (2004), and Tennard

                                          -28-
v. Dretke, 542 U.S. 274 (2004). We disagree. Those cases involved a mandatory
“nullification instruction” used in applying a different Texas statute. See Smith v.
Texas, 543 U.S. at 46-48. In both decisions, the Supreme Court cited favorably to
Boyde v. California, 494 U.S. 370 (1990), on which we relied in Singleton.

                         VII. Aggravating Factor Issues

       A. Use of a Prior Felony Committed as a Juvenile. The jury found as an
aggravating circumstance that Williams had committed a prior violent felony. See
Ark. Code Ann. § 5-4-604(3). One of the prior felonies the State urged in support of
this factor was a prior conviction for a robbery Williams committed when he was
fifteen years old. Relying on the Supreme Court’s decision in Roper v. Simmons, 543
U.S. 551 (2005), that the execution of a sixteen-year-old is unconstitutional, Williams
argues that use of this conviction as an aggravating circumstance violated the Eighth
and Fourteenth Amendments.

       As this claim was not presented to the state courts, the district court properly
denied it as procedurally barred. Williams urges us to remand for a determination
whether cause and prejudice excuse his procedural default, asserting that he can
establish cause because Roper was not decided until after his state postconviction
proceedings. Putting aside the obvious difference between executing a juvenile and
considering conduct as a juvenile in determining whether an adult warrants the death
penalty, cf. United States v. Jones, No. 08-2851, 2009 WL 2194820, at *5 (8th Cir.
July 24, 2009), we conclude the contention that cause excuses his default is without
merit. In 1988, years before Williams’s criminal trial, a plurality of the Supreme
Court wrote that execution of a fifteen-year-old would violate the Eighth Amendment.
Thompson v. Oklahoma, 487 U.S. 815, 838 (1988). Thus, the argument Williams
belatedly seeks to raise was not “so novel that its legal basis [was] not reasonably
available” to him in state court. See Reed v. Ross, 468 U.S. 1, 16 (1984).



                                         -29-
       B. The Pecuniary Gain Aggravator. Williams argues that this statutory
aggravating factor unconstitutionally fails to narrow the class of death-eligible
offenders because it merely duplicates an element of the underlying crime of felony
murder during the course of a robbery. He asserts that Collins v. Lockhart, 754 F.2d
258, 264 (8th Cir. 1985), was correctly decided and improperly overruled by Perry v.
Lockhart, 871 F.2d 1384 (8th Cir.), cert. denied, 493 U.S. 959 (1989), a question the
Supreme Court noted but did not decide in Lockhart v. Fretwell, 506 U.S. 364, 371
n.4 (1993). As the district court correctly concluded, this argument is foreclosed by
later decisions of this court, if not by Perry. See Wainwright v. Lockhart, 80 F.3d
1226, 1232 (8th Cir.), cert. denied, 519 U.S. 968 (1996).

       Moreover, the contention is without merit for another reason. The jury was
instructed that the felony underlying the charge of capital murder by Williams was
kidnapping, not robbery. See Ark. Code Ann. § 5-10-101(a)(1)(iii). Consistent with
the statutory definition of kidnapping, the jury was instructed that it had to find
Williams “restrained Stacy Errickson with the purpose of inflicting physical injury
upon her or engaging in sexual intercourse or sexual contact, or of committing
aggravated robbery or any flight thereafter.” See Ark. Code Ann. § 5-11-102(a)(3)-
(5). After convicting Williams of capital murder, the jury found in the penalty phase
that he committed the murder for pecuniary gain, consistent with § 5-4-604(6). There
was no duplication, of constitutional dimension or otherwise.

       C. The “Especially Cruel or Depraved” Aggravator. The jury unanimously
found as an aggravating circumstance that capital murder was committed “in an
especially cruel or depraved manner.” Ark. Code Ann. § 5-4-604(8)(A). Williams
attacks this finding in two ways. First, he argues that it was not supported by
constitutionally sufficient evidence. Consistent with Ark. Code Ann. § 5-4-604(8)(B),
the jury was instructed:




                                        -30-
      [A] capital murder is committed in an especially cruel manner when, as
      part of a course of conduct intended to inflict mental anguish, serious
      physical abuse, or torture upon the victim prior to the victim’s death,
      mental anguish, serious physical abuse, or torture is inflicted.

On direct appeal, the Supreme Court of Arkansas concluded that the evidence
supported the jury’s finding of this aggravating circumstance:

      The State’s evidence reflected Williams forcibly abducted Stacy
      Erri[c]kson, robbed her, raped her, and killed her. It further showed
      Erri[c]kson had a significant period of time to contemplate her fate. The
      physical evidence established a violent physical assault by appellant
      against the victim. Injuries to her head indicated deep bruising to her
      neck and to her face. The victim was bound with her hands behind her
      back. The medical testimony further indicated her death was by
      asphyxiation from strangulation.

Williams I, 991 S.W.2d at 571. Even before AEDPA (and Williams cites no later
cases), the scope of our review of this issue was “extremely limited” -- applying the
standard adopted in Jackson v. Virginia, 443 U.S. 307, 319 (1979), we determine
whether, viewing the evidence in the light most favorable to the State, a rational trier
of fact could have found the existence of the aggravating circumstance beyond a
reasonable doubt. See Lewis v. Jeffers, 497 U.S. 764, 780-84 (1990); Skillicorn v.
Luebbers, 475 F.3d 965, 977 (8th Cir.), cert. denied, 128 S. Ct. 297 (2007).

      Williams argues that the evidence did not establish his intent to inflict mental
anguish, serious physical abuse, or torture because there was no eyewitness to the
murder or to his mental state after the murder, and his custodial statement did not
reveal the requisite intent.11 But the issue is whether a rational jury could find the
requisite intent from circumstantial evidence in the record. “[A] federal habeas corpus

      11
        We reject summarily Williams’s convoluted contention that the prosecutor’s
closing argument somehow conceded failure to prove all but “mental anguish.”

                                         -31-
court faced with a record of historical facts that supports conflicting inferences must
presume -- even if it does not affirmatively appear in the record -- that the trier of fact
resolved any such conflicts in favor of the prosecution, and must defer to that
resolution.” Jackson, 443 U.S. at 326. The Supreme Court of Arkansas’
determination was not an unreasonable application of Jeffers and Jackson.

       Second, Williams contends that this statutory aggravating circumstance is
unconstitutionally vague and overbroad. This contention is foreclosed by our recent
decision in Johnson v. Norris, 537 F.3d 840, 849-50 (8th Cir. 2008), cert denied, 129
S. Ct. 1334 (2009).

                                    X. Conclusion

      For the foregoing reasons, the judgment of the district court is affirmed in part
and reversed in part. The petition for a writ of habeas corpus is denied in its entirety.
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