                       United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-1893
                                    ___________

Vernon Sublett, Jr.,                     *
                                         *
             Appellant,                  *
                                         *
             v.                          * Appeal from the United States
                                         * District Court for the Western
Dave Dormire, Superintendent;            * District of Missouri.
Jeremiah (Jay) Nixon, Attorney           *
General, State of Missouri,              *
                                         *
             Appellees.                  *
                                    ___________

                              Submitted: April 12, 2000

                                   Filed: June 28, 2000
                                    ___________

Before BEAM, ROSS, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

      Vernon Sublett, Jr., appeals from the district court's1 denial of his 28 U.S.C. §
2254 petition for a writ of habeas corpus. We affirm.




      1
      The Honorable Dean Whipple, Chief Judge, United States District Court for the
Western District of Missouri.
I.    BACKGROUND

        Sublett was convicted of robbery and armed criminal action for robbing a woman
in the Westport area of Kansas City, Missouri. Westport is a popular entertainment
district. Sublett was sentenced to twenty years on the robbery charge and thirty years
for armed criminal action, to be served consecutively. The Missouri Court of Appeals
affirmed his conviction but remanded for a Rule 29.15 hearing on the issue of whether
counsel was ineffective for failing to object to the prosecutor's closing argument and
for failing to present alibi witnesses. See State v. Sublett, 887 S.W.2d 618, 622 (Mo.
Ct. App. 1994). The Missouri Court of Appeals subsequently affirmed the denial of
postconviction relief. See Sublett v. State, 935 S.W.2d 747 (Mo. Ct. App. 1996).

       The issue certified for appeal is whether the prosecutor's closing argument denied
Sublett's due process right to a fair trial. In the closing argument, the prosecutor asked
the jury to "send a message" by giving Sublett a lengthy sentence and suggested 500
and 1000-year sentences be advertised on billboards to deter robbers in the Westport
area.

      The Missouri Court of Appeals analyzed this claim for plain error because trial
counsel did not timely object,2 and found that under plain error standards, no reversal
was warranted. See Sublett, 887 S.W.2d at 619-20.




      2
       Our review of the record shows that trial counsel objected at one point while the
prosecutor was arguing about length of sentence, and was overruled. However, it is not
clear whether counsel was objecting to the length of sentence argument or because the
prosecutor suggested that Sublett used an alias. Following the ruling, there was no
other objection after the prosecutor suggested the 500 and 1000-year sentences.


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II.   DISCUSSION

       Sublett asserts in his habeas corpus petition that his due process rights were
impaired by the prosecutor's inflammatory closing argument. Sublett's petition was
filed in the district court on January 26, 1998, after the effective date of the Anti-
terrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, we are
governed by the AEDPA's standard that habeas relief "shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings unless" the
state court's decision was "contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States," or "was 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).

       In determining whether the prosecutor's closing argument violated the defendant's
due process rights, the pertinent inquiry is "whether the prosecutors' comments 'so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). Thus, we may grant Sublett federal habeas
corpus relief only if "the prosecutor's closing argument was so inflammatory and so
outrageous that any reasonable trial judge would have sua sponte declared a mistrial."
James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999). In James we noted, the
combination of "the strict due process standard of constitutional review, the deferential
review mandated by the AEDPA, and our less reliable vantage point for gauging the
impact of closing argument on the overall fairness of a trial" resulted in an exceptionally
limited review of the same issue— whether the prosecutor's closing argument violated
the petitioner's due process. Id.

       Viewing the record under this strict standard, we must affirm. The prosecutor
here argued:


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      Our only benefit is if we can send a message. Our only hope is that by
      punishing him, we can deter others. . . . But where you get to send the
      message is on the Armed Criminal Action, because there is no end, and
      that's where you send your message. The message that you put on the
      billboards, "Welcome to Westport, Robbers. On October 25th, the jury
      sentenced Vernon Sublett, a robber, too (sic), 500 years." We don't ever
      want you back. A thousand years. The purpose of this is to deter others.
      And we don't want him back. So I leave it to you. It's your community.
      We all go to Westport or the Landing or whatever part of town that a
      particular robber (sic) is going to take place. But the message is sent by
      you guys today. And that's why I'm here. That's why we're here. That's
      why we've gone through this ordeal is to send that message. There is no
      doubt that this is the robber. Now let's send a message.

        While the prosecutor no doubt crossed the line of what is appropriate argument,
see United States v. Johnson, 968 F.2d 768, 770 (8th Cir. 1992) (improper argument
when prosecutor exhorted jurors to "stand as a bulwark against the continuation of what
[defendant] is doing on the street, putting this poison on the streets"), we find no error
in the trial court's failure to sua sponte declare a mistrial following this argument. See,
e.g., James, 187 F.3d at 870 (during closing argument prosecutor called defendant "a
big time, drug dealing, murdering, robbing slime"). While we express strong
disapproval of the prosecutor's use of improper closing argument, we recognize that our
concerns do not always render a trial fundamentally unfair. This is especially true in
light of the jury's "common sense ability to put aside a particular type of overzealous
advocacy with the help of the court's standard instruction that arguments of counsel are
not evidence." Id. While we do not approve of a prosecutor exhorting the jury to
impose 500 and 1000-year sentences for armed criminal action, we find the jury likely
understood that the prosecutor was exaggerating, and, in fact, imposed a thirty-year
sentence for this charge. Thus, the trial court was not unreasonable for not sua sponte
declaring a mistrial in response to the prosecutor's inappropriate remarks about
sentencing.



                                           -4-
       Further, the Missouri appellate court's determination that the closing argument
did not violate due process was not contrary to, or an unreasonable application of,
clearly established federal law, as determined by the Supreme Court of the United
States. In Darden, the Supreme Court found no due process violation when the
prosecutor argued to the jury that the death penalty was the only guarantee against a
future criminal act, referred to the defendant as an animal that should be kept on a leash
with a prison guard at the other end, and stated it was unfortunate the victim had not
taken a shotgun and blown the defendant's face off. 477 U.S. at 180-81. The Court
found the argument did not mischaracterize the evidence or implicate other specific
rights of the accused, such as the right to counsel or to remain silent, and thus did not
deprive the defendant of a fair trial. See id. at 181-82. In this case, the prosecutor also
did not mischaracterize evidence or implicate any other of Sublett's specific
constitutional rights. The prosecutor simply asked the jury to impose an excessive
sentence, which the jury did not do. While there was no "send a message" argument
in Darden, the Supreme Court noted the prosecutor's "comments undoubtedly were
improper." Id. at 180. Here, we also believe the prosecutor's comments were
improper, but the comments did not "'so infect[] the trial with unfairness as to make the
resulting conviction a denial of due process.'" Id. at 181 (quoting Donnelly, 416 U.S.
at 643). Thus, under Darden, the state court's findings were not contrary to clearly
established federal law as determined by the Supreme Court.

III.   CONCLUSION

       Under the strict standard of review required by the AEDPA, Sublett is not
entitled to habeas corpus relief. The judgment of the district court is affirmed.




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A true copy.

      Attest:

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




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