                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-3729
                                    ___________

Dennis Skillicorn,                       *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the Western
                                         * District of Missouri
Al Luebbers,                             *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: September 25, 2006
                                 Filed: February 6, 2007 (corrected 2/8/07)
                                  ___________

Before LOKEN, Chief Judge, BEAM, and GRUENDER, Circuit Judges.
                              ___________

BEAM, Circuit Judge.

       Dennis Skillicorn was convicted in Missouri state court of first-degree murder
and sentenced to death. The district court1 denied Skillicorn's petition for habeas
corpus pursuant to 28 U.S.C. § 2254, but granted a certificate of appealability on eight
issues. We affirm the district court.




      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
I.    BACKGROUND

        In late August 1994, Skillicorn, Allen Nicklasson, and Tim DeGraffenreid
headed east from Kansas City to obtain illegal drugs. On August 23, 1994, the 1983
Chevrolet Caprice in which they were traveling broke down on I-70. They refused a
state trooper's offer of help. When the three had progressed only a few more miles the
following day, they decided to burglarize a home in the vicinity. They stole guns and
money, using the stolen money to pay for a tow to nearby Kingdom City, Missouri.
A garage in Kingdom City was unable to fully repair the car's mechanical problems.
The trio then drove the car back east toward the site of their earlier robbery. The car
stalled again just outside of Kingdom City. Richard Drummond was driving by and
saw the stranded motorists. Unfortunately for Drummond, he stopped and offered to
take them to use a phone.

       The three loaded the loot from the earlier burglary into the trunk of
Drummond's car, and got in, with DeGraffenreid in the front, and Skillicorn and
Nicklasson in the back. Nicklasson pulled a gun on Drummond, forcing him to drive
them at gunpoint. According to Skillicorn's statement to the FBI, as Nicklasson held
a gun to Drummond's head, Skillicorn asked Drummond questions ostensibly in order
to calm him down, but included in the questioning whether Drummond's "old lady"
would miss him. As Drummond drove east, Skillicorn "got to thinking . . . if we let
this guy off, he's got this car phone." Skillicorn told Drummond that they would have
to disable the car phone, and take Drummond "out in the woods somewhere on one
of these side roads" and "lose" him. At some point during this time, Nicklasson and
Skillicorn discussed what they should do with Drummond. Skillicorn claimed that
Nicklasson told him that Nicklasson was going have to "do something to this guy. I
tell him–you know, now, we're trying to talk on the pretenses that–that, uh, this guy
in the front seat don't hear us too. Right? Right. 'Cause, uh, I didn't want him
panicking."



                                         -2-
      They ultimately directed Drummond to a secluded area off an I-70 exit just east
of Higginsville, Missouri. As Nicklasson prepared to walk Drummond through a field
toward a wooded area, Skillicorn demanded Drummond's wallet. Knowing that
Nicklasson carried a loaded .22 caliber pistol, Skillicorn watched as Nicklasson led
Drummond into the wooded area. There, Nicklasson shot Drummond twice in the
head. Skillicorn acknowledged hearing two shots from the woods and that Nicklasson
returned and stated that he had "done what he had to do." Drummond's remains were
found eight days later.

       Following this murder, Skillicorn and Nicklasson dropped DeGraffenreid off
in Blue Springs, Missouri, and then fled the state. While on the run, in Arizona,
Nicklasson shot and killed a man under circumstances similar to the Drummond
murder–the man tried to help them retrieve their car from where it was stuck in the
sand. After killing this good Samaritan, the two went back to his house and
Nicklasson killed the man's wife as well. Nicklasson and Skillicorn then absconded
across California, stealing a purse from a woman in a supermarket and committing
armed robbery along the way. They eventually made it to Mexico, where, according
to Skillicorn, Nicklasson killed a waitress at a diner. Eventually the two returned to
the United States, and both were arrested in San Diego after the police picked them
up on successive days as hitchhikers.

      Following his arrest in San Diego, Nicklasson gave a confession to the FBI.
Nicklasson admitted that he marched Drummond into the woods at gunpoint.
Nicklasson alleged in this statement that he had a rope in his pocket to tie Drummond
up, but he "snapped" and instead decided to shoot him, somewhat on an impulsive
whim. Nicklasson also described the Arizona murders and numerous robberies the
two committed while on the lam, and how he had killed his own abusive father at age
nine.




                                         -3-
      Skillicorn also gave a sworn statement to the FBI admitting his involvement in
the Drummond murder and giving some of the details about Drummond's final drive,
recounted above. In his statement, Skillicorn told the FBI that he knew Nicklasson
did not have a rope in his pocket as he led Drummond into the woods. Skillicorn also
recounted the Arizona murders, the burglaries and armed robberies committed on the
journey, and described how Nicklasson had killed the waitress in Mexico. Skillicorn
was charged by the state of Missouri with first-degree murder on an accomplice
theory. He proceeded to trial primarily on the theory that he did not possess the
requisite culpable state of mind–deliberation–to be convicted of first-degree murder.

       Prior to Skillicorn's trial, the defense filed a motion to admit the statement of
Nicklasson (who was unavailable as a witness due to his invocation of his Fifth
Amendment rights). Skillicorn wanted to introduce this evidence–through the
testimony of the FBI agent who interviewed both Skillicorn and Nicklasson in San
Diego–to help prove that he did not know Nicklasson was going to kill Drummond.
Skillicorn argued that the statement was admissible because it was a statement against
Nicklasson's penal interest that was exculpatory of Skillicorn. The trial court ruled
pretrial that the hearsay statement was not admissible, but noted that he might
reconsider the issue when the agent testified during the state's case-in-chief. During
the guilt phase2 of the trial, the jury did not hear any portion of Nicklasson's statement.

       During the penalty phase of trial, the defense sought to introduce the testimony
of a psychiatrist, Dr. Spiridigliozzi. Spiridigliozzi had examined Skillicorn and was
prepared to testify that Skillicorn had a lower IQ, and that his dependent personality
made him a "follower." Spiridigliozzi brought Skillicorn's file with him to the witness
stand when he was called to testify. The prosecutor objected because he had not been
supplied with the file, even though he had requested all relevant discovery materials.

      2
      During the penalty phase, the jury did hear portions (including the "snapped"
comment) of Nicklasson's statement, as one of Skillicorn's attorney's read parts of the
FBI agent's testimony into the record.

                                           -4-
After a lengthy in-chambers exchange between the court and counsel for both parties,
the trial court ordered the defense to turn the file over, or risk exclusion of the witness,
and Skillicorn's attorney chose the latter option.

      Skillicorn was convicted of first-degree murder by the jury. The same jury
recommended a death sentence following the penalty phase of trial. On March 18,
1996, the trial court sentenced Skillicorn to death.

State Court Adjudication

       On direct appeal, the Missouri Supreme Court found that Skillicorn's federal
due process rights were not violated by exclusion of Nicklasson's statement, and
applied Chambers v. Mississippi, 410 U.S. 284 (1973), in conducting this analysis.
The court held that because the statement did not have considerable assurances of
reliability, its admission was not required under Chambers. State v. Skillicorn, 944
S.W.2d 877, 884-85 (Mo. 1997) (Skillicorn I). The court deemed the statement not
reliable because in it, Nicklasson sought to exonerate himself of the mental state
required for first-degree murder and because the statement was uncorroborated by
evidence. Id. at 885. With regard to the absence of the expert testimony and the
refusal of defense counsel to turn over the file, the Missouri Supreme Court found that
Skillicorn waived any physician-patient privilege by putting his mental condition at
issue during the penalty phase. The court also found that the file was not attorney
work product. Id. at 897-98.

       Skillicorn then petitioned the trial court for postconviction relief, raising several
claims of ineffective assistance of counsel. The trial court rejected these claims, and
the Missouri Supreme Court affirmed. Skillicorn v. State, 22 S.W.3d 678, 682-90
(Mo. 2000) (Skillicorn II). Skillicorn then filed the current petition for habeas corpus
relief under 28 U.S.C. § 2254. The district court denied the petition, but granted a
certificate of appealability on eight claims.

                                            -5-
II.   DISCUSSION

       We may not grant a writ of habeas corpus with respect to any issue decided by
the Missouri state courts unless the decision "was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court" or "was based on an unreasonable determination of the facts in light
of the evidence presented in the State court." 28 U.S.C. § 2254(d). Pursuant to the
Antiterrorism and Effective Death Penalty Act (AEDPA), a "federal habeas court may
not issue the writ simply because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established federal law erroneously
or incorrectly. Rather, that application must also be unreasonable." Williams v.
Taylor, 529 U.S. 362, 411 (2000). We address each issue from the certificate in turn.

      A.     Exclusion of Nicklasson's Confession

       Skillicorn argues the Missouri Supreme Court unreasonably applied Chambers
in rejecting his claim that the trial judge inappropriately excluded Nicklasson's
confession to an FBI agent, violating his due process rights to a fair trial. The district
court concluded that the Missouri Supreme Court did not unreasonably apply
Chambers. In Chambers, the Supreme Court held that a defendant has a constitutional
right to proffer exonerating statements, that would otherwise be hearsay, if they were
made under circumstances providing "considerable assurance of their reliability." 410
U.S. at 300. One of those indicia is that the statement is truly against the penal
interest of the speaker. Id. at 301. The district court agreed with the Missouri
Supreme Court that Nicklasson's statement was not against his penal interest because
he was arguably attempting to minimize his deliberation by saying that he had a rope,
but killed Drummond only after "snapp[ing]." Therefore, the statement was not
"unquestionably against interest." Id. We agree with the district court's analysis that
the statement was not unquestionably against Nicklasson's interest.


                                           -6-
       Furthermore, we note that the statement lacked corroboration. In it, Nicklasson
said that he had a rope in his back pocket. But in Skillicorn's statement, he said that
he knew Nicklasson did not have a rope with which Drummond could have been tied
instead of being killed. In fact, besides Nicklasson's statement, there was no other
evidence of a rope, unlike the Chambers statement which was corroborated by
numerous pieces of evidence. Id. at 300. Finally, the Chambers statement was "made
spontaneously to a close acquaintance shortly after the murder had occurred." Id.
That clearly was not the case with Nicklasson's statement. Nicklasson's statement was
made to an FBI agent several weeks after the murder. We do not mean to suggest that
Mirandized statements to authorities are inherently unreliable. We simply note that
the statement was made under far different circumstances than the Chambers
statement. The Chambers Court intimated that a spontaneous utterance to a close
friend would normally be considered reliable. Id. By the time Nicklasson gave a
statement to the FBI, he had committed numerous other murders and armed robberies.
He may have been motivated to paint the most flattering portrait of himself as possible
to the authorities. It is also possible that the statement was reliable because, at that
point, Nicklasson's case was beyond hope, and he had no motivation to do anything
but come clean. At any rate, however, we find that the Missouri Supreme Court's
adjudication of this issue was not unreasonable.

      Skillicorn argues that the Missouri court wrongly decided that no statement is
ever admissible unless it falls into one (or all) of the three categories delineated by
Chambers, and that this is contrary to later Supreme Court decisions interpreting
Chambers. However, the later cases cited by Skillicorn are distinguishable. In Crane
v. Kentucky, 476 U.S. 683, 688-90 (1986), the Court's key holding was that if a
confession is admitted, the circumstances of how it was obtained are admissible. In
Green v. Georgia, 442 U.S. 95 (1979) (per curiam), the Court held that a co-
defendant's confession was admissible at the penalty phase of a murder trial. The
Court deemed the statement reliable, among other reasons, because it was made
spontaneously to a close friend, it was against the speaker's penal interest and


                                          -7-
corroborated by other evidence, and the defendant had no ulterior motive to make the
statement. Id. at 97. As we have noted, this is distinguishable from the situation with
Nicklasson's statement.

       Nor is Skillicorn's characterization of the Missouri Supreme Court's opinion
accurate. The Missouri court did not so closely circumscribe the conditions under
which an accomplice's statement might be admissible. The court merely noted that
Chambers had set forth three tests of reliability, and that none of those "indicators of
reliability delineated in Chambers" were present in Skillicorn's case. Skillicorn I, 944
S.W.2d at 885. After discussing the circumstances in which Nicklasson's statement
was made to the FBI and the content of the statement, the court held that there were
not considerable assurances of the statement's reliability. Id. Far from unreasonably
applying Chambers, the Missouri court appears to have correctly applied it.

       Finally, Skillicorn argues that his due process rights were violated with regard
to Nicklasson's statement because the same statement that was deemed unreliable in
Skillicorn's trial, was successfully used by the government to convict Nicklasson of
first-degree murder in his own trial. We disagree. Nicklasson's statement was hearsay
in Skillicorn's trial. In Nicklasson's trial, it was an admission, and therefore not
hearsay. State v. Case, 140 S.W.3d 80, 85 (Mo. Ct. App. 2004). Because the
statement was of a completely different character in the two proceedings, Skillicorn's
due process argument fails.

       Chambers is the controlling Supreme Court precedent on this issue, and the
Missouri Supreme Court did not apply it unreasonably to the facts of Skillicorn's case
in determining that the statement was not reliable. Therefore, that court correctly
dispatched its duty under 28 U.S.C. § 2254(d). Skillicorn's argument is without merit.




                                          -8-
      B.     Exclusion of Skillicorn's Expert Witness

        Skillicorn next argues that the trial court erred in excluding his expert's
proffered testimony during the penalty phase. The Missouri Supreme Court found
that Skillicorn waived any physician-patient privilege by placing his mental condition
at issue during the penalty phase. The court also found that the file was not attorney
work product. Skillicorn I, 944 S.W.2d at 897-98. Thus, the files and notes the doctor
sought to rely upon to testify should have been disclosed to the government prior to
trial. Though raised by Skillicorn, the Missouri court did not adjudicate a federal due
process3 claim with regard to this issue. Accordingly, our standard of review is less
deferential. See Taylor v. Bowersox, 329 F.3d 963, 967-68 (8th Cir. 2003) (holding
that when there is no state court adjudication of a claim, we do not apply the AEDPA's
deferential standard of review but review the district court's factual determinations for
clear error and its legal conclusions de novo).

       The exclusion of a witness based on state evidentiary rules results in the denial
of due process only if there was an impropriety so egregious that it made the entire
proceeding fundamentally unfair. Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir.
1995). To meet this burden, a habeas petitioner must show that "absent the alleged
impropriety the verdict probably would have been different." Id. (quotation omitted).
In the context of this penalty-phase argument, Skillicorn must demonstrate that the
jury probably would not have recommended the death penalty had it heard Dr.
Spiridigliozzi's testimony. Skillicorn cannot clear this high hurdle.




      3
       To the extent Skillicorn attempts to raise an equal protection claim, it was not
presented to the state courts. Thus, it is unexhausted and at this point, procedurally
defaulted because there is no remaining state remedy. Interiano v. Dormire, 471 F.3d
854, 856 (8th Cir. 2006). Therefore, we do not consider the equal protection claim,
though we strongly doubt that it would have succeeded.

                                          -9-
       In support of his argument that there was impropriety at trial, Skillicorn asserts
that the trial court wrongly found that his trial counsel had committed a discovery
violation with regard to the expert's file. He further contends that the Missouri
Supreme Court applied arbitrary and mechanistic rules to deny him the right to present
evidence. A review of the record indicates that the trial court believed that Skillicorn's
counsel had displayed willful blindness with regard to his expert–counsel did not ask
for a copy of the doctor's post-examination reports or conclusions concerning
Skillicorn so that counsel would not have to turn over such documents during
discovery. Trial counsel's counter-argument was that he had disclosed Spiridigliozzi
as a witness, and if the government wanted to know what he was going to say, it could
have taken Spiridigliozzi's deposition.

        We find that the Missouri Supreme Court did not improperly apply its
evidentiary rules in upholding the trial court's decision to exclude this evidence.
Despite Skillicorn's arguments to the contrary, the Missouri Supreme Court applied
rather ordinary rules of discovery and evidence in finding that the trial court acted
appropriately in excluding this evidence. As a named expert, the materials he planned
to rely upon in testifying were certainly discoverable. State v. Thompson, 985 S.W.2d
779, 786 (Mo. 1999). And because the defense placed Skillicorn's mental state at
issue during the penalty phase of trial, any physician-patient privilege that might
protect the file was waived. Id.

       After reviewing the record, including the lengthy exchange in chambers
between the court, counsel, and Dr. Spiridigliozzi, we are left with the same
impression as the trial court–trial counsel attempted to use the file as both a shield and
a sword. Counsel claimed that he had no knowledge of or control over the file and
therefore was not required to produce it during discovery. But during the exchange
in chambers, when the court asked Dr. Spiridigliozzi himself to turn over the file,
counsel exerted control over the file by refusing to allow the doctor to do so. The trial
court's exclusion of the witness under these circumstances does not seem arbitrary or


                                          -10-
mechanistic–to the contrary, it seems a fair exercise of its discretion. See, e.g., State
v. Tripp, 168 S.W.3d 667, 673 (Mo. Ct. App. 2005) ("The decision of whether or not
to suppress evidence as a sanction for noncompliance with discovery rests within the
trial court's discretion."). We see no error of constitutional magnitude in the Missouri
courts' handling of this matter. Skillicorn's due process argument is denied.


      C.     Ineffective Assistance of Counsel


       Skillicorn alleges that his Sixth Amendment rights were violated by several
instances of ineffective assistance of trial counsel. The Missouri Supreme Court
adjudicated these claims in the postconviction appeal in Skillicorn II. A claim of
ineffective assistance of counsel requires proof that defense counsel's representation
fell below an objective standard of reasonableness and thereby prejudiced the
defendant's case. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail,
Skillicorn must do more than "show that he would have satisfied Strickland's test if
his claim were being analyzed [in state court] in the first instance." Bell v. Cone, 535
U.S. 685, 698-99 (2002). Under AEDPA, he must establish that the state court
"applied Strickland to the facts of his case in an objectively unreasonable manner." Id.
at 699.
              1. Annie Wyatt's Testimony


        Skillicorn argues the Missouri Supreme Court erred in disposing of his
ineffective assistance claim regarding counsel's failure to elicit specific testimony
from Annie Wyatt. Wyatt was Nicklasson's girlfriend, and allegedly would have
testified that Nicklasson told her that they did not plan to kill Drummond, and that
Skillicorn remained in the car during the shooting. Wyatt testified for the prosecution
during trial. In Skillicorn II, the Missouri Supreme Court found that since the
testimony would have been inadmissible hearsay, counsel was not ineffective. 22
S.W.3d at 686-87. Furthermore, the district court noted that Wyatt testified at the

                                          -11-
postconviction hearing that her boyfriend did not make a statement to her. Skillicorn
v. Missouri, No. CV197-240CC, PCR Tr. at 128-29 (July 7, 1998).4 Accordingly, the
district court found that counsel was not ineffective for failing to elicit evidence that
the witness did not possess.


       The Missouri Supreme Court did not unreasonably apply Strickland regarding
this issue.5 First, we take no issue with the Missouri court's application and
interpretation of its evidentiary rules. See Schleeper v. Groose, 36 F.3d 735, 737 (8th
Cir. 1994) ("A federal court may not re-examine a state court's interpretation and
application of state law."). Wyatt would not have been allowed to testify about
Nicklasson's hearsay statements to her. Consequently, counsel is not ineffective for
failing to call a witness who would have been unable to testify regarding the pertinent
information. And, counsel is certainly not ineffective for failing to ask a witness to
testify about things that did not occur. This argument is without merit.




      4
      The Missouri Supreme Court appears to have made a finding to the contrary–
that Wyatt said Nicklasson did make such a statement to her. 22 S.W.3d at 686.
Though state court factual findings are entitled to a presumption of correctness, 28
U.S.C. § 2254(e)(1), we find the presumption rebutted by clear and convincing
evidence here, based on the transcript of the postconviction proceedings.
      5
        Skillicorn argues that the Missouri Supreme Court sidestepped the usual
Strickland analysis when reviewing this claim. We disagree. The court had initially
set out the Strickland standard at the beginning of its analysis in a section called "Our
Standard of Review," 22 S.W.3d at 681, and then referred to the legal principles
(without necessarily citing Strickland) while disposing of the various claims. This is
not sidestepping the Strickland standard. See Early v. Packer, 537 U.S. 3, 8 (2002)
(per curiam) (holding that a state court's decision was not infirm under AEDPA simply
because it did not cite Supreme Court precedent, so long as neither the reasoning nor
the result of the state court opinion contradicted such precedent).

                                          -12-
             2.    Failure to Develop Mitigating Evidence


        Skillicorn next argues the Missouri Supreme Court unreasonably applied
Strickland to his ineffective assistance claim regarding counsel's failure to develop
more mitigating evidence of his background and social history for the penalty phase
of trial. Primarily he argues that counsel should have called an expert to testify about
Skillicorn's substance abuse, childhood and family background–how each of these
things contributed to Skillicorn becoming a compliant follower of sociopaths.


       The Missouri Supreme Court rejected this claim. The court noted that counsel
did intend to present such testimony, and in fact Spiridigliozzi initially took the stand,
but the discovery dispute about his file, discussed previously, prevented him from
testifying. Skillicorn II, 22 S.W.3d at 684 n.7. Furthermore, the court found that the
proposed evidence was either already in front of the jury through other witnesses, or
was unpersuasive. Accordingly, counsel was not ineffective for failing to present such
evidence. Id. at 685-86.


       The Missouri court did not unreasonably apply Strickland with regard to the
mitigating evidence. The district court found that Strickland's performance prong was
satisfied with regard to this claim but denied relief because Skillicorn could not
establish prejudice. The court found that there was no reasonable probability that the
outcome of the sentencing would have been different had the evidence been presented,
because the mitigating "childhood" evidence was not particularly egregious, and
evidence of his drug and alcohol problems would not have swayed the jury not to
impose the death penalty.


      We do not necessarily agree with the district court that the performance prong
was satisfied in this case. The record reflects that trial counsel put on mitigating


                                          -13-
evidence regarding Skillicorn's childhood through the testimony of his sister. There
was no evidence that Skillicorn suffered child abuse. His mother died of cancer when
he was eight, and, according to his sister, his father had some difficulties as a result
of that traumatic event. She also testified that Skillicorn was not a violent person. A
worker from the Clay County Detention Center testified that Skillicorn was a good,
non-violent prisoner. Counsel attempted to present expert testimony about Skillicorn's
low IQ and his tendency to be a "follower," but was thwarted at the eleventh hour due
to the expert's unexpected possession of previously undisclosed documents.
Apparently there was significant damning evidence in Spiridigliozzi's file that trial
counsel did not want to turn over to the prosecution. In light of that, counsel did not
make an unreasonable decision by not allowing the expert to testify. Presumably any
other expert that counsel could have employed would have had the same difficulty.
This is far from a situation where counsel ignored reams of traumatic childhood abuse
and other similar experiences. E.g., Williams v. Taylor, 529 U.S. at 395-96; Wiggins
v. Smith, 539 U.S. 510, 525-27 (2003). Accordingly, we do not think counsel's
performance was constitutionally deficient.


        Further, given the other evidence, such as Skillicorn's past conviction for
second-degree murder, and the spate of crimes he and Nicklasson committed while on
the run, any mitigating testimony likely would have been outweighed even if
presented. We do not think more testimony about his childhood and battles with
alcohol and drugs would have saved Skillicorn from receiving a sentence of death.
See Garcia v. Bertsch, 470 F.3d 748, 757 (8th Cir. 2006) (holding that "friends and
family" mitigating evidence would not have resulted in a more lenient sentence in
light of aggravating circumstances). Accordingly, Skillicorn could not establish
Strickland's prejudice prong in this case. The Missouri Supreme Court's resolution of
this issue was not objectively unreasonable, and this claim is without merit.




                                         -14-
             3.   Failure to Put on Good Character Evidence


        Skillicorn argues the Missouri Supreme Court unreasonably applied Strickland
to his ineffective assistance claim that counsel wrongly did not put on penalty-phase
evidence about Skillicorn's good behavior while he was in a drug treatment center, and
while he was at county jail awaiting trial. Trial counsel investigated the potential
witnesses from the drug treatment center, but apparently did not believe that their
testimony would be terribly helpful. As noted in the previous section, trial counsel
did present evidence about Skillicorn's time in the county jail. The Missouri Supreme
Court held that the proposed evidence added little to the mitigating evidence actually
presented. Skillicorn II, 22 S.W.3d at 683. The court also concluded that the volume
of aggravating evidence against Skillicorn (including three murders perpetrated by
Skillicorn and Nicklasson while on the lam for the Missouri murder) precluded
Skillicorn from establishing Strickland prejudice due to counsel's alleged error in
omitting this evidence. Id. at 683-84.


        This was not an unreasonable application of Strickland. This claim is closely
related to the previous ineffective assistance claim, and failed in the Missouri courts
for a similar reason–counsel did put on mitigating evidence, Skillicorn just claims that
it was not enough. Skillicorn argues that Skipper v. South Carolina, 476 U.S. 1
(1986), and Lockett v. Ohio, 438 U.S. 586 (1978), held that trial counsel has a
professional obligation to present all relevant mitigation evidence. That blanket
statement overstates these holdings. The holdings in both cases revolved around the
issue of whether certain mitigating evidence was admissible. Skipper, 476 U.S. at 4-6;
Lockett, 438 U.S. at 604. This ineffective assistance claim is without merit.




                                         -15-
             4.   Closing Argument


        Skillicorn argues the Missouri Supreme Court unreasonably applied Strickland
to his ineffective assistance claim that counsel erred by not addressing the "rope" issue
in closing argument: in his confession to police, Skillicorn said that he "knew"
Nicklasson did not have a rope when he walked with Drummond into the woods to get
rid of him. He later found out that Nicklasson allegedly said he did have a rope. So
Skillicorn's theory of defense at trial was that he thought Nicklasson was going to tie
Drummond up, rather than shoot him. But immediately prior to trial, Nicklasson's
confession was deemed inadmissible, while the jury heard Skillicorn's confession.
Consequently, Skillicorn's counsel was left in a difficult position with his theory of
the case and the evidence he could present.


        The Missouri Supreme Court found that counsel was not ineffective simply
because he could not explain away the glaring inconsistencies in Skillicorn's case. Id.
at 689. Rather than draw attention to the problem by talking about it during closing,
counsel attempted to minimize it. The Missouri court found that this was appropriate
trial strategy, and counsel's conduct did not run afoul of the Strickland standard. Id.


      We agree that this application of Strickland is reasonable. The record supports
the notion that counsel made the decisions he did for strategic reasons. Clearly
counsel was left in a bad position when Nicklasson's confession was deemed
inadmissible. But this position was not counsel's fault as much as the fault of the
unfortunate facts of this murder case. This claim is without merit.




                                          -16-
      D.     Mexico Murder


       Skillicorn's next claim is that the trial court erred in allowing the state, during
the penalty phase, to present evidence of his involvement in the murder at the Mexican
diner. The evidence came in through the use of his pre-trial statement to authorities.
He contends that habeas corpus counsel later found out that the authorities could not
find corroborating evidence of this murder. Accordingly, the state's failure to disclose
this fact to him violated his right to exculpatory evidence under Brady v. Maryland,
373 U.S. 83 (1963), and also his Eighth Amendment rights because the jury possibly
sentenced him to death based upon his involvement in a "murder that never occurred."


       Skillicorn concedes that this claim was not presented to the state courts, and the
district court determined that this claim was procedurally barred. Claims that have not
been presented to the state courts, and for which there are no remaining state remedies,
are procedurally defaulted. Interiano v. Dormire, 471 F.3d 854, 856 (8th Cir. 2006).
Unless a habeas petitioner shows cause and prejudice or that he is actually innocent
of the charges, a court may not reach the merits of procedurally defaulted claims in
which the petitioner failed to follow applicable state procedural rules in raising the
claims. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Murray v. Carrier, 477 U.S.
478, 492, 496 (1986).


        Skillicorn asserts as cause the fact that the government failed to disclose to him
that it was not able to find evidence of the Mexico murder. The district court found
that this was not an adequate "cause" for the default, because Skillicorn knew at trial
whether or not he had participated in the Mexico murder. Nor was Skillicorn
prejudiced because the jury heard about several other crimes Skillicorn participated
in while running from authorities, in addition to the Mexico murder. We agree with
the district court's analysis of this issue. Skillicorn cannot establish cause or actual
prejudice as contemplated by Murray v. Carrier, and this claim is procedurally barred.

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       Moreover, we agree with the government that if the claim were adjudicated on
the merits, it would fail. The jury heard evidence about the murder in Mexico through
Skillicorn's own statement regarding his involvement. We fail to see how the fact that
the government did not find evidence of a murder, committed at a diner in rural
Mexico, is in any way relevant to whether Skillicorn's own admissions about the
murder were admissible at trial. This claim is without merit.


      E.     Sufficiency


       Finally, Skillicorn argues the Missouri Supreme Court unreasonably applied
Jackson v. Virginia, 443 U.S. 307 (1979), in finding that the evidence was sufficient
to support his conviction and sentence. In assessing the Missouri court's
determination of whether there was sufficient evidence to support Skillicorn's
conviction and death sentence, the scope of our review is extremely limited.
Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003). We must determine
"whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt." Jackson, 443 U.S. at 319. This standard recognizes that it is the
province of the fact-finder, not this court, "to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts." Id.


       The Missouri Supreme Court quoted from the portions of Skillicorn's statement
regarding the conversations in the car, both with Drummond, and behind his back with
Nicklasson. The court found that based on this evidence, the jury could infer that
Nicklasson and Skillicorn were furtively discussing Drummond's murder in the back
seat; that Skillicorn knew Nicklasson was going to shoot Drummond because he did
not have a rope; and that he knew all along that Nicklasson was going to shoot
Drummond because he stated that Nicklasson returned from the woods after doing

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"what he had to do." Skillicorn I, 944 S.W.2d at 895. Accordingly, the court denied
Skillicorn's sufficiency challenge to the guilty verdict. Id.


       With regard to the sentence, the court noted that the jury had found the
following three statutory aggravating factors: Skillicorn's previous conviction for
second- degree murder, Drummond's murder was committed in conjunction with his
kidnaping, and in conjunction with robbery. The court noted that the evidence
supported these findings. Id. at 899. The court also found that the sentence was not
disproportionate to sentences imposed in other cases, noting that Drummond was
killed for the convenience of his murderers, and that Skillicorn's crimes graduated in
severity from burglary, to kidnaping and eventually murder. The court accordingly
denied the challenge to the sentence. Id. at 898-99.


       We think all of the foregoing amply demonstrates the sufficiency of the
evidence, and the Missouri courts did not unreasonably apply the Jackson v. Virginia
standard.6 Skillicorn argues there was inadequate evidence of his deliberation,
required for first-degree murder. But Skillicorn admits that he knew Nicklasson was
going to take Drummond into the woods, at gunpoint, and "lose" him, that he did not
want Drummond, who was driving the car, to panic by hearing the trio's plans for him,
and finally, that he knew Nicklasson did not really have a rope to "tie up" Drummond
instead of shooting him. This is enough evidence for a rational jury to infer that
Skillicorn deliberated while Drummond drove the car, and then walked to a wooded
area that would become his eventual grave. The Missouri Supreme Court did not
unreasonably apply the Jackson v. Virginia standard in disposing of this claim.




      6
       The Missouri Supreme Court did not actually cite Jackson v. Virginia, but did
use the appropriate legal standard in reviewing the claim. Packer, 537 U.S. at 8.

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      Regarding the sentence, the jury's decision to recommend the death penalty is
supported by sufficient evidence in these circumstances. Skillicorn cannot seriously
challenge that he had the requisite mental state to make him eligible for the death
penalty under Enmund v. Florida, 458 U.S. 782 (1982).


III.   CONCLUSION


      We affirm the judgment of the district court denying Skillicorn's petition for
habeas corpus.
                       ______________________________




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