Full opinion text
MEMORANDUM AND ORDER PERRY, District Judge. Before the Court is Jeffrey Lane Tokar’s petition for a writ of habeas corpus under 28 U.S.C. § 2254, and his request for an eviden-tiary hearing and for funds for an expert witness. For the reasons that follow, the Court will deny the petition for writ of habe-as corpus and the related motions. Petitioner Jeffrey Lane Tokar was sentenced to death for the murder of Johnny Douglass. Douglass was killed with his own shotgun on March 11, 1992, when he and his two children interrupted a burglary at their rural Audrain County, Missouri, home. The guilt phase of petitioner’s trial began on Monday, May 3, 1993, and lasted five days, with jury selection taking two days. Among the witnesses who testified at the trial were petitioner’s girlfriend/accomplice Sandra Stickley, who testified that although she did not witness the shooting, she was assisting petitioner in the burglary of the Douglass home when the victim and his children arrived. Stickley testified that petitioner loaded the shotgun and walked, gun in hand, toward the garage. She heard conversation between the victim and petitioner and heard two gunshots; she testified that petitioner later told her he had killed the victim. Jarad Douglass, petitioner’s eight year old son, identified petitioner as the man he saw pointing the gun at his father immediately before he was killed, and identified petitioner’s car as the one the family discovered parked in them drive when they returned home and surprised the intruders. Mr. Douglass’s five year old daughter, who was standing next to her father when he was shot, did not testify. The state called sixteen witnesses and defendant called nine witnesses during the guilt phase of the trial. On Friday, May 7, 1993, the jury found petitioner guilty after hearing evidence for three days and deliberating for approximately three hours. The penalty phase of the trial was conducted on Saturday, May 8, 1993. The state called six witnesses during the penalty phase, and defendant called eight witnesses. The jury then recommended that petitioner be put to death, after deliberating for two hours and fifteen minutes. After denying petitioner’s motion for a new trial, the trial court entered a sentence of death. Petitioner filed a pro se motion for post-conviction relief under Missouri Supreme Court Rule 29.15. With assistance of counsel, petitioner filed an amended motion and request for an evidentiary hearing, and a hearing was held on December 12, 1994. Petitioner was not permitted to appear at this hearing, and refused to testify at his deposition prior to the hearing. On February 10, 1995, the court denied petitioner’s motions for post-conviction relief. Appeals from this judgment and from the denial of petitioner’s motion for a new trial were consolidated to the Missouri Supreme Court, which has exclusive appellate jurisdiction over cases in which a sentence of death is imposed. On March 26, 1996, that court entered its judgment affirming petitioner’s conviction, the sentence, and the denial of his post-conviction relief motion. State v. Tokar, 918 S.W.2d 753 (Mo. banc 1996). Subsequently, the court denied petitioner’s motions for rehearing and to recall the mandate. The United States Supreme Court denied certio-rari on October 15, 1996. — U.S. —, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996). Petitioner now seeks federal habeas corpus relief, raising the following grounds: (1) Petitioner was denied effective assistance of counsel at trial and sentencing as follows: (a)Counsel failed to object to evidence obtained when petitioner was arrested on the ground that there was no probable cause to arrest petitioner, no written probable cause statement supported the arrest warrant, the affidavit in support of the search warrant did not provide probable cause and contained material misstatements of fact, and no exigent circumstances justified the warrant-less arrest. (b) Counsel failed to object to the following improper statements or conduct by the prosecutor during the guilt and penalty phases: (i) The prosecutor stated that the jurors should pray that their children should not have to experience what the victim’s children went through. (ii) The prosecutor expressed his personal opinion that the death penalty was warranted. (iii) The prosecutor stated that petitioner, who did not testify, failed to show remorse. (iv) The prosecutor stated that petitioner’s accomplice, his girlfriend, was “not a murderer,” and would serve twenty years in prison. (v) The prosecutor personally vouched for the credibility of petitioner’s accomplice. (vi) The prosecutor stated that petitioner killed the victim as he was begging for his children’s lives in their presence, which misstated the evidence. (vii) The prosecutor stated that the jury was entitled to wreak upon petitioner the vengeance which the victim’s family desired. (c) Counsel failed to investigate and present evidence that the testimony of the state’s witnesses as to petitioner’s whereabouts was inconsistent with his presence at the murder scene at the time of the crime. (d) Counsel failed to object to evidence of identification from an impermissi-bly suggestive line-up. (e) Counsel failed to object to the following improper conduct of the prosecutor during his opening statement: (i) The prosecutor stated that the victim was shot in front of his children, when no evidence was presented to support this. (ii) The prosecutor repeated three times, “We’ve got the right guy.” (iii) The prosecutor stated that the state had evidence that a tennis shoe print taken at the scene matched petitioner’s shoes, although the state’s expert was unable to testify to that effect. (iv) The prosecutor stated that the state had evidence that petitioner had been seen “only a couple of miles” from the victim’s home, when the actual distance was twenty-two miles. (v) The prosecutor misquoted a statement made by petitioner’s accomplice concerning what petitioner had told her about the crime, and thus possibly caused the jury some misapprehension on the issue of deliberation. (f) Counsel failed to investigate and present mitigating evidence that petitioner was suffering from paranoid personality disorder at the time of the crime. (g) Counsel failed to investigate and present evidence that petitioner was suffering from paranoid personality disorder at the time of trial, which rendered him incompetent to proceed. (2) Petitioner’s arrest was invalid under the fourth amendment. (3) The following statements made by the prosecutor in his opening statement were improper and denied petitioner due process of law and the right to be free from cruel and unusual punishment in violation of the eighth and fourteenth amendments: (a) The prosecutor stated that the victim was shot in front of his children, although no evidence was presented that this was the case. (b) The prosecutor thrice said, “We’ve got the right guy.” (c) The prosecutor stated that the state had evidence that a tennis shoe print taken at the scene matched petitioner’s shoes, although the state’s expert was unable to testify to that effect. (d) The prosecutor stated that the state had evidence that petitioner had been seen “only a couple of miles” from the victim’s home, when the actual distance was twenty-two miles. (e) The prosecutor misquoted a statement made by petitioner’s accomplice concerning what petitioner had told her about the crime, and thus possibly caused the jury some misapprehension on the issue of deliberation. (4)The following statements made by the prosecutor in his final argument denied petitioner due process of law and the right to be free from cruel and unusual punishment in violation of the eighth and fourteenth amendments: (a) The prosecutor told the jurors that they should pray that their children should not have to experience what the victim’s children went through. (b) The prosecutor expressed his personal opinion that the death penalty was warranted. (e) The prosecutor stated that petitioner, who did not testify, failed to show remorse. (d) The prosecutor stated that petitioner’s accomplice, his girlfriend was “not a murderer,” and would serve twenty years in prison. (e) The prosecutor personally vouched for the credibility of the petitioner’s accomplice. (f) The prosecutor stated that petitioner killed the victim as he was begging for his children’s lives in their presence, which misstated the evidence that the victim was on his feet when the final shot was fired and the children were not present. (g) The prosecutor told the jury that it was entitled to wreak upon petitioner the vengeance which the family of the victim desired. (5) The prosecutor’s use of an analogy about a hallway with three doors during jury selection limited the jurors’ consideration of mitigating evidence at sentencing, and deprived the petitioner of due process of law and subjected him to cruel and unusual punishment in violation of the eighth and fourteenth amendments. (6) The admission of evidence that the petitioner has AIDS violated his rights to due process of law and to be free from cruel and unusual punishment in violation of the eighth and fourteenth amendments. (7) The trial court’s instruction to the jury that it must consider evidence in aggravation before considering evidence in mitigation violated petitioner’s rights to due process of law and to be free from cruel and unusual punishment in violation of the eighth and fourteenth amendments. (8) The trial court’s refusal to instruct the jury as to specific nonstatutory mitigating circumstances while instructing the jury as to specific nonstatutory aggravating circumstances violated petitioner’s right to be free from cruel and unusual punishment in violation of the eighth and fourteenth amendments. (9) The instruction concerning the aggravating circumstance of “outrageously and wantonly vile, horrible, and inhuman” violated petitioner’s rights to be free from cruel and unusual punishment and to due process of law in violation of the eighth and fourteenth amendments. (10) The holding of the Missouri Supreme Court that if one valid statutory aggravating circumstance is found, the death sentence may stand violated petitioner’s rights to be free from cruel and unusual punishment and to due process of law in violation of the eighth and fourteenth amendments. (11) The application of the Missouri Supreme Court of the state statute mandating proportionality review of death sentences violated petitioner’s rights to be free from cruel and unusual punishment and to due process of law in violation of the eighth and fourteenth amendments. (12) The petitioner was denied effective assistance of appellate counsel in that: (a) Appellate counsel failed adequately to raise the issue of ineffective assistance of trial counsel for the latter’s failure to request a competency hearing. (b) Appellate counsel failed adequately to raise the issue of the invalidity of petitioner’s arrest under the fourth amendment. (c) Appellate counsel failed to request the Missouri Supreme Court to review the unobjected-to comments of the prosecutor in final argument for plain error. (d) Appellate counsel failed to make any argument on the statutory proportionality review required by Missouri law. (e) Appellate counsel failed to present adequately the issue that petitioner’s incompetence during the post-conviction proceeding rendered that proceeding invalid. (f) Appellate counsel failed to present adequately the issue that trial counsel was ineffective for failing to present evidence that exculpated petitioner. (13) Petitioner was incompetent to proceed at trial. (14) Petitioner was incompetent to assist his counsel during his post-conviction hearing, and therefore the determinations in that proceeding are not entitled to deference by this Court, and petitioner cannot be faulted for omitting issues in that proceeding. Respondent acknowledges that petitioner has exhausted all his state remedies either by properly presenting the issues to the courts of the State of Missouri and receiving adverse judgments for purposes of 28 U.S.C. § 2254(b) and (c) or by procedurally defaulting on the state remedies otherwise available to him. Ground 1: Ineffective Assistance of Trial Counsel The Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show his counsel’s performance fell below professional standards and that his defense suffered prejudice as a result. Boliek v. Bowersox, 96 F.3d 1070, 1073 (8th Cir.1996) (citing Strickland, 466 U.S. at 688, 694), cert. denied, - U.S. -, 117 S.Ct. 2439, 138 L.Ed.2d 199 (1997). In evaluating the performance prong of the Strickland test, the basic inquiry is “whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at 688. Rather than second-guessing counsel’s actions with the benefit of hindsight, the reviewing court must examine counsel’s conduct with a high degree of deference. Id. at 689. Counsel’s performance was prejudicial if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Sherron v. Norris, 69 F.3d 285, 290 (8th Cir.1995) (quoting Strickland, 466 U.S. at 694). The Court need not address the adequacy of counsel’s performance if petitioner cannot establish prejudice. Pryor v. Norris, 103 F.3d 710, 713 (8th Cir.1997). Petitioner raises seventeen claims of ineffective assistance of trial counsel in his first ground for relief. (a) Probable Cause to Arrest Petitioner’s first claim of ineffective assistance of trial counsel is that counsel tailed to object to evidence obtained when petitioner was arrested on the ground that there was no probable cause to arrest petitioner, no written probable cause statement supported the arrest warrant, the affidavit in support of the search warrant did not provide probable cause and contained material misstatements of fact, and no exigent circumstances justified petitioner’s warrantless arrest. Petitioner asserts that absent the warrant, the police would not .have discovered the identity or whereabouts of Sandra Stickley, who was with him at the time of his arrest at his grandmother’s house. Respondent claims that this claim is procedurally barred in that petitioner failed to raise it in his appeal from the motion court’s denial of his post-conviction relief motion. Respondent is incorrect. In fact, this claim was the first point in petitioner’s brief to the Missouri Supreme Court. Even if the claim were procedurally defaulted, the fact that the state supreme court reached the merits of the issue permits federal habeas review. See Bannister v. Armontrout, 4 F.3d 1434, 1441 (8th Cir.1993), cert. denied, 513 U.S. 960, 115 S.Ct. 418, 130 L.Ed.2d 333 (1994). The motion court dismissed the claim in one sentence, stating, “The movant offers no evidence, and the Court is aware of none, indicating improper procedures in issuance of the arrest warrant.” The Missouri Supreme Court found that because there was probable cause to arrest petitioner, petitioner’s trial counsel could not be ineffective for not objecting to the arrest warrant. The court adopted a “totality of the circumstances” approach, listing the following: (1) witnesses had identified a yellow station wagon as the vehicle driven by the murderer, and stated that the suspect had been with a white female at the time of the murder; (2) the sheriffs office knew that petitioner had been stuck in a ditch with a white female in a yellow station wagon near Centraba several days before the murder; (3) the victim was killed in the course of a burglary and petitioner had prior arrests for burglary and assault; (4) additional information existed that petitioner preferred to burglarize earth contact homes and to pack items into pillowcases — the same modus operandi used by the suspect. The court stated, “All of these circumstances demonstrate there was probable cause to arrest Tokar.” The fourth amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,” U.S. Const. amend. IV, and it applies to arrest as well as search warrants. Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). It is well-established that under the amendment, an arrest warrant can issue only upon a truthful factual showing sufficient to constitute probable cause. Burk v. Beene, 948 F.2d 489, 494 (8th Cir.1991). Although fourth amendment claims are not cognizable on habeas review, Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Supreme Court has held that a petitioner may premise an ineffective assistance of counsel claim on counsel’s failure to bring a fourth amendment claim. Kimmelman v. Morrison, 477 U.S. 365, 383, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). In other words, a meritorious fourth amendment claim cannot warrant the granting of habeas relief, but it may establish ineffective assistance of counsel. Id. at 382. In this case, the state admitted in its brief to the Missouri Supreme Court that the affidavit supporting the application for the arrest warrant was not in the legal file. In fact, it appears that there was no affidavit whatsoever. The criminal docket sheet contains the following entry: “This cause now comes on before Associate Circuit Judge Linda R. Hamlett and upon finding that sufficient facts have been stated in the Complaint to show probable cause that Jeffrey Lane Tokar committed a felony, a warrant for his arrest is ordered issued with NO BOND ENDORSED.” When one looks to the complaint, however, no factual showing can be found. The complaint contains nothing other than the bald assertion of the Audrain County Prosecuting Attorney that “according to information and belief,” petitioner “knowingly killed John Douglass by shooting him in the face with a shotgun.at close range.” The record is silent as to whether the prosecuting attorney also orally related facts to support the complaint. The Court will therefore assume that petitioner had a valid fourth amendment claim. See 28 U.S.C. § 2254(d)(1). The question then is, was petitioner’s trial counsel ineffective for not raising this claim? The exclusionary rule requires that evidence obtained directly or indirectly as a result of the government’s violation of the Fourth Amendment may not be introduced by the prosecution at trial, at least for purposes of providing direct proof of the defendant’s guilt. Mapp v. Ohio, 367 U.S. 643, 654, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). However, under the inevitable discovery exception to the rule, a court may admit illegally obtained evidence if that evidence inevitably would have been discovered through independent lawful means. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); United States v. Dickson, 64 F.3d 409, 411 (8th Cir.1995) (finding inevitable discovery exception applicable to illegal search of defendant’s apartment where officers would inevitably have obtained a search warrant for the apartment based on testimony of defendant’s co-conspirator), cert. denied, 516 U.S. 1064, 116 S.Ct. 747, 133 L.Ed.2d 695 (1996). Daniel Miller, a farmer in Audrain County, testified that on March 7, a few days before the murder, a young man and woman came to the door of his house and asked his help in pulling their car from a ditch. Miller pulled them out using his tractor. After the vehicle was back on the road, the young man asked Miller what he owed him. When Miller asked for five dollars, the young man was unable to produce a billfold. Miller then asked him whether he was driving without a license. The young man showed Miller a license renewal slip, which listed petitioner’s name, date of birth, and social security number. Miller, a former part-time police officer and father of the county sheriff, jotted down this information, as well as the vehicle’s make and license number. A few days later, when Miller learned that the police were looking for a yellow station wagon in connection with the Douglass murder, he notified the sheriff (his son) of the March 7, incident, including the fact that a woman was with petitioner. In her testimony, Stickley confirmed Miller’s account of the events that took place on March 7, and indicated that she was petitioner’s companion on that date. Other evidence also shows that the police would have quickly located Stickley with or without the allegedly defective arrest warrant. Jarad Douglass, the victim’s son, who was present when the murder occurred, testified that at the time of the murder, he saw a woman in the house. Police therefore knew that the murderer had a female accomplice. Stickley was living with petitioner at his grandmother’s house at the time of the murder. It is reasonable to assume that people saw the two together. For example, Stickley stated that when she applied for a job as a housekeeper at a Columbia, Missouri, motel, petitioner accompanied her and joined her in watching a training video. Larry McCray, a captain with the Boone City Sheriffs Department, testified that he interviewed Betty Caudle, apparently an employee of the same motel, who told him that a thin blonde man had watched the video with Stickley. The motel’s work records, which were admitted into evidence, showed that Stickley listed “Jeff’ as a reference. Stick-ley testified that on the day of the murder, petitioner picked her up at the motel. McCray testified that Caudle told him that the same blonde man who viewed the video with Stickley also came to pick Stickley up on the day of the murder. Caudle therefore clearly would have been able to link Stickley with petitioner. In short, even without the allegedly defective arrest warrant, police would have known that a woman was with petitioner at the scene of the crime, and would have been able to locate at least two witnesses who had seen petitioner with Stickley both the day of the murder as well as a few days before the murder. The Court concludes that the police would have found Stickley even if she had not been with petitioner at the time of his arrest on the invalid warrant. Thus, even assuming that petitioner’s fourth amendment claim had some validity, petitioner suffered no prejudice by counsel’s failure or decision not to raise this claim. Stickley would have been available to testify against him regardless. (b)(iv)-(vii), (c), and (e)(i)-(v) Procedurally Barred Claims Petitioner raises a number of other ineffective assistance of trial counsel claims which respondent contends are procedurally defaulted. Petitioner concedes that claims (l)(b)(iv)-(vii) were not presented to the motion court. Petitioner further concedes that claims (l)(e)(i)-(v) and (l)(c) were not “initially briefed” to the Missouri Supreme Court, but contends that they were raised in a timely motion for rehearing and in a motion to recall the mandate. A federal habeas petitioner must exhaust his state remedies and fairly present his federal claims to the state courts before he is entitled to federal habeas relief. Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir.)(en banc), cert. denied, 517 U.S. 1215, 116 S.Ct. 1838, 134 L.Ed.2d 941 (1996). To avoid procedural default, the petitioner must have presented his claims at each step of the judicial process in state court. Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir.) (citing Benson v. Missouri, 611 S.W.2d 538, 541 (Mo.Ct.App.1980)), cert. denied, 513 U.S. 983, 115 S.Ct. 462, 130 L.Ed.2d 370 (1994). In all cases in which a petitioner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the petitioner can demonstrate cause for and actual prejudice as a result of the alleged violation of federal law, Shigemura v. Groose, 45 F.3d 250, 252 (8th Cir.), cert. denied, 516 U.S. 855, 116 S.Ct. 157, 133 L.Ed.2d 101 (1995), or can demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Abdullah, 75 F.3d at 411. “In Missouri, ineffective assistance of trial counsel claims cannot be raised on direct appeal, even where the record is sufficient to permit review, and may only be raised in a Rule 29.15 proceeding.” Lowe-Bey v. Groose, 28 F.3d 816, 819 (8th Cir.), cert. denied, 513 U.S. 1061, 115 S.Ct. 674, 130 L.Ed.2d 606 (1994). The failure to raise an ineffective assistance of trial counsel claim in a motion for post-conviction relief raises a procedural bar to pursuing that claim in federal court. Foster v. Delo, 39 F.3d 873, 880 (8th Cir.1994) (en banc), cert. denied, 514 U.S. 1075, 115 S.Ct. 1719, 131 L.Ed.2d 578 (1995). Petitioner failed to raise claims (l)(b)(iv)-(vii) in his Rule 29.15 motion, and has therefore defaulted on these claims. With respect to claims (l)(e)(i)-(v) and (l)(c), petitioner argues that these claims are not defaulted because he raised them in a timely motion for rehearing and in a motion to recall the mandate. This is incorrect. Under Missouri law, it is well settled that an appellate court will not consider issues raised in a motion for rehearing but not in the original brief. Irwin v. Globe-Democrat Publishing Co., 368 S.W.2d 452, 458(Mo.), cert. denied, 375 U.S. 908, 84 S.Ct. 198, 11 L.Ed.2d 147 (1963); Graf v. Wire Rope Corp., 861 S.W.2d 588, 592 (Mo.Ct.App.1993). As for a motion to recall the mandate, the Eighth Circuit has made clear that this procedural device “is a proper means of preserving an issue for habeas review only in very limited circumstances.” Sweet v. Delo, 125 F.3d 1144, 1150 (8th Cir.1997); Nave v. Delo, 62 F.3d 1024, 1031 (8th Cir.1995), cert. denied, 517 U.S. 1214, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996). Those circumstances are limited to two: (1) claims of ineffective assistance of appellate counsel, and (2) claims that the decision of a lower appellate court “ ‘directly conflicts with a decision of the United States Supreme Court upholding the rights of the accused.’ ” Nave, 62 F.3d at 1031 (quoting Missouri v. Simpson, 836 S.W.2d 75 (Mo.Ct.App.1992)). The latter circumstance is further limited to situations in which “an appellate court’s decision is contradicted by subsequent developments in the law that would be applicable in the movant’s case.” Id. at 1032. The Court concludes that federal habeas review of petitioner’s claims (1)(e)(i)-(v) and (l)(e) is procedurally barred unless he falls within either the “cause and actual prejudice” or “miscarriage of justice” exceptions that permit such review. To demonstrate cause, petitioner must show that “some objective factor external to [his] defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Examples of such impediments include “a showing that the factual or legal basis for a claim was not reasonably available to counsel,” or that interference by government officials made compliance impossible. Id. The miscarriage of justice exception requires review of a procedurally barred claim only in the extraordinary case where a fundamental miscarriage of justice would otherwise result. Bowman v. Gammon, 85 F.3d 1339, 1346 (8th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 1273, 137 L.Ed.2d 350 (1997). To fit within this extremely narrow exception, a petitioner must make a showing of actual innocence. Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). This showing requires the petitioner to support his allegations of constitutional error with new reliable evidence that was not presented at trial, and to establish that given this new evidence, it is more likely than not that no reasonable juror would have convicted him. Weeks v. Bowersox, 119 F.3d 1342, 1351 (8th Cir.1997) (en banc). Petitioner fails to satisfy either exception to procedural bar. Petitioner argues cause only as to claims (l)(b)(iv)-(vii). He claims that he was suffering from a mental disease at the time of his post-conviction proceeding and thus was unable to fulfill the requirements of the rule. This cannot constitute cause, however, because claims (l)(b)(iv)-(vii) all concern statements made by the prosecutor to which petitioner believes his counsel should have objected. The basis for these claims was apparent on the face of the record, and they therefore cannot be said to involve some factor external to the defense. Petitioner cannot show cause, and makes no claim that he is “actually innocent” of the murder for which he was convicted. He thus fails to qualify for the miscarriage of justice exception. (b)(i)-(iii) Prosecutor’s Improper Arguments Petitioner also raises three ineffective assistance of trial counsel claims, (l)(b)(i)-(iii), concerning counsel’s failure to object to improper arguments made by the prosecutor that are not procedurally barred. The statements are as follows: (i) In his closing argument in the penalty phase, the prosecutor stated, “Ladies and gentleman, when you go home tonight the first thing you are going to do is you are going to snatch up your kids and you’re going to squeeze them as tight as you can and hold them dearly and say a pray[er] to God that them eyes never have to look upon the horror that these kids have because you now know how fleeting life can be and how quickly somebody can be taken away, somebody with the cruel, evil intent that this defendant had.” (ii) Also in his closing argument during the trial’s penalty phase, the prosecutor stated, “I would like to tell you why, in our opinion based on the evidence in this case, that this defendant deserves the death sentence.” (iii) In his closing argument during the trial’s guilt phase, the prosecutor made the following comment on Stickley’s testimony: “The woman broke down on the stand three separate times which simply indicates that she has a conscience, unlike her boyfriend, because when she was on the stand telling you about the nightmares and telling you about how she feared for [the victim’s children] that she didn’t even know, and everybody in this courtroom had tears rolling from their eyes, the only pam of dry eyes in this courtroom were this man’s right here [pointing to the defendant].” The motion court ruled that the failure of petitioner’s trial counsel to object to any of the statements was not ineffective assistance of counsel. The Missouri Supreme Court affirmed. Examining the first statement, the state supreme court held that petitioner had not overcome the presumption that counsel’s failure to object was a strategic choice. The court also found that petitioner had not established prejudice as a result of counsel’s failure. Although the court recognized that the prosecutor had improperly personalized the argument, it determined that the comment was only an “isolated reference.” As to the second statement, the state supreme court held that a prosecutor’s opinion that the accused is guilty is permissible if it is based on evidence. The court stated, “One could not reasonably expect a prosecutor to present a case that he or she did not believe.” The court also found proper the third statement, concerning petitioner’s apparent lack of remorse. The court reasoned that the statement represented a reasonable inference from the record. In reviewing claims of impropriety in a prosecutor’s comments, a court must undertake a three-part analysis. The court first analyzes the comments themselves. If the court finds the comments to have been improper, the court then examines whether the prosecutor, by making the comments, the trial court, by failing to give a curative instruction, or defense counsel, by failing either to make a timely objection or to rebut the improper statements in his own penalty phase argument, diminished the jury’s sense of responsibility in imposing the death penalty. Finally, if the impropriety was not cured by the prosecutor, the trial court, or the defense attorney, the court must examine the totality of the circumstances to determine whether there is a reasonable probability that the improper comments complained of affected the trial’s outcome. Newlon v. Armontrout, 885 F.2d 1328, 1335-38 (8th Cir.1989); cert. denied, 497 U.S. 1038, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990). The court must at all times keep in mind that the fundamental showing required of a habeas petitioner is that the alleged improprieties were “so egregious that they fatally infected the proceedings and rendered his entire trial fundamentally unfair.” Moore v. Wyrick, 760 F.2d 884, 886 (8th Cir.1985); see Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Even assuming that the prosecutor’s two statements during the penalty phase were improper, the Court finds that the prosecutor’s remarks were not egregious or pervasive enough to render unreliable the jury’s decision to impose the death penalty. Parkus v. Delo, 33 F.3d 933, 941 (8th Cir.1994). In this case, the state produced compelling evidence of the defendant’s guilt. Petitioner’s accomplice testified against him at trial, and the jury reached a verdict of guilty in just over three hours. In the penalty phase, the jury had to find the existence of at least one of the two aggravating circumstances listed in the instructions. The jury unanimously found both beyond a reasonable doubt. The jury then went on to find the existence of all eight of the aggravating circumstances (concerning previous offenses committed by petitioner) listed in Instruction 20. The jury returned its verdict assessing petitioner’s punishment at death in a little over two hours. See United States v. Weise, 89 F.3d 502, 505 (8th Cir.1996) (assuming that prosecutor’s statement during closing argument that stabbing deprived victim’s son of his father and victim’s sibling of his brother was improper, the remark was not constitutionally prejudicial where the government had produced strong evidence of defendant’s guilt). Petitioner claims that by making the third statement listed above during closing argument of the guilt phase, the prosecutor improperly commented on petitioner’s failure to testify. The Eighth Circuit has explained that an indirect reference to an accused’s decision not to testify is impermissible if it either (1) manifests the prosecutor’s intention to call attention to the defendant’s failure to testify, or (2) is such that the jury would naturally and necessarily take it as a comment on the defendant’s failure to testify. Parkus, 33 F.3d at 940-41. In Six v. Delo, 94 F.3d 469 (8th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 2418, 138 L.Ed.2d 182 (1997), the court of appeals considered whether a habeas petitioner’s appellate counsel had been ineffective for failing to raise for plain error review trial counsel’s failure to object to repeated statements made by the prosecutor during his closing argument at the penalty phase as to petitioner’s demonstrated lack of remorse. The court concluded that “[b]ecause the comments about remorse were prefaced with a reference to the jury’s observance of Six during the trial, we cannot say the prosecutor’s comments about remorse were intended as anything more than remarks on Six’s general demeanor in the courtroom, or that the jury would view the comments as anything more .” Id. at 477. In this case as well, the prosecutor was referring specifically to petitioner’s demeanor during the testimony of a single witness during the trial. Viewing the statement in context, the Court does not believe that the prosecutor made it with the intention of calling the jury’s attention to petitioner’s failure to testify or that the jury would necessarily interpret it as a comment on this failure. After a thorough review of the entire record, the Court does not believe that the allegedly improper comments of the prosecutor which have been identified by petitioner could reasonably have affected either the jury’s determination that the defendant was guilty or its decision to impose the death penalty. Furthermore, since petitioner’s attacks on the prosecutor’s statements are presented as ineffective assistance of trial counsel claims, the Court must consider whether trial counsel’s failure to object to these statements may have constituted reasonable trial strategy. Counsel may have decided that objecting to these remarks would be counterproductive. Raising an objection might have simply annoyed the jury or called more attention to the statements themselves. See Mack v. Cuspari, 92 F.3d 637, 643 (8th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 1117, 137 L.Ed.2d 317 (1997). Finally, as explained above, even if counsel’s failure to object was unprofessional, petitioner cannot show that the outcome of his trial would have been any different. (d) Suggestive Line-Up Petitioner also contends that his trial counsel was ineffective for failing to object to Jarad Douglass’s identification evidence because Jarad had picked defendant from an impermissibly suggestive line-up. The motion court found that the identification procedures used were not “unduly suggestive.” The Missouri Supreme Court agreed, noting that “[a]ll of the individuals in the line-up were white males, who appeared approximately the same height, who wore the same jail uniform, and who all had mustaches.” After reviewing the transcript, the Court concludes that petitioner’s claim is without merit. Counsel filed pretrial objections to the line-up and objected at trial when Jarad testified. Additionally, petitioner’s counsel cross-examined police officer Steven Loch-head, who assisted in conducting the line-up, concerning a photograph of that line-up: Counsel: Isn’t it true that Jeffrey Tokar is the only person there that has hair short above the collar in that line-up? Lochhead: Yes, ma’am. Counsel: Isn’t it true that, with the exception of one person who may have somewhat of a five o’clock shadow, No. 4, that Jeffrey is the only one with a beard? Lochhead: At least three of the individuals, from my recollection, had some kind of stubble that was visible through the window from where I was at that might not necessarily show on the photograph. Counsel: But when you look at the photograph the stubble or the beard is not there; is that correct? Lochhead: That’s right. Counsel: Is it also true that out of these five persons, Jeff is the only person with light hair? Lochhead: It is possibly lighter than some of the others also. Counsel also called as a witness Mary Anderson, an attorney with the Boone County Public Defender’s office. Ms. Anderson was present during the line-up and testified as to her observations of the suggestiveness of the line-up. The transcript thus adequately demonstrates • that petitioner’s counsel vigorously challenged the line-up. There is no evidence that the line-up was impermissibly suggestive or created a very substantial likelihood of irreparable misidentification. See Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Through cross-examination and presentation of evidence, defense counsel questioned the reliability of the line-up and the jury was therefore able to evaluate this evidence critically. There is nothing from which to draw any inference that counsel was ineffective in this regard. (f) Petitioner’s Mental Capacity at the Time of the Crime Petitioner’s next ineffective assistance of trial counsel claim is that counsel failed to investigate and present mitigating evidence during the penalty phase that petitioner was suffering from paranoid personality disorder at the time of the crime. The state supreme court flatly rejected this claim, declaring, “Under Strickland, Tokar has failed to present any evidence that proves his trial attorneys were deficient in this regard.” The Court agrees with this assessment. During the penalty phase, the defense called one of petitioner’s first cousins, who testified that petitioner became more aggressive after he had been drinking, that petitioner had once been attacked by his stepfather, and that petitioner had told her he had been sexually molested by a neighbor. Petitioner’s aunt testified that she had witnessed petitioner threaten to commit suicide one night when he was drunk. Petitioner’s mother testified that one of her ex-husbands had once choked petitioner until she thought he was going to die. In addition, she testified that petitioner became frightened after he had been drinking. She related an incident in which she discovered petitioner sleeping on the floor surrounded by kitchen knives, following a night of drinking. She also confirmed that petitioner had been raped as a child. Petitioner’s counsel also called on two experts to testify. William Watson, a clinical toxicologist and professor at the University of Missouri, testified about the effect of alcohol and AIDS medications on the body, and stated that petitioner showed signs of being a chronic alcoholic. A.E. Daniel, a board-certified psychiatrist, then testified regarding his interviews of petitioner, which lasted a combined total of over seven hours. Daniel testified that petitioner had “an underlying paranoid personality disorder and under the influence of alcohol, he could become a full-blown paranoid.” In sum, contrary to petitioner’s claim, his counsel presented ample evidence of his alleged mental .disorder, as well as of a troubled upbringing that might have contributed to such a disorder. Counsel’s performance was in no way deficient. (g) Petitioner’s Competence to Stand Trial Petitioner’s last ineffective assistance of trial counsel claim alleges that counsel failed to investigate and present evidence that petitioner was suffering from paranoid personality disorder at the time of the trial which rendered him incompetent to proceed. The Missouri Supreme Court refused to consider the merits of this claim, finding that the claim was not adequately raised in petitioner’s pro se post-conviction relief motion, his amended post-conviction relief motion, or his appellate brief. Petitioner argues that the issue “was briefed to some degree” and was raised in petitioner’s motions for rehearing and to recall the mandate. For the reasons discussed above, neither motion may be used to preserve an ineffective assistance of trial counsel claim not raised in the post-conviction relief motion. Accordingly, consideration of the claim is barred unless petitioner can demonstrate either cause and prejudice or a fundamental miscarriage of justice. Petitioner asserts as cause his mental illness at the time of the post-conviction proceeding. In his traverse, petitioner states that the nature of this illness “made it impossible for his post-conviction counsel to develop this issue,” and that this constitutes cause. As mentioned above, however, cause exists when “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray, 477 U.S. at 488. In this case, a review of the record should have alerted petitioner’s post-conviction counsel to this claim. In its opinion, the state supreme court quoted extensively from a hearing that took place a week prior to the originally scheduled start of the trial. At the hearing, petitioner’s counsel stated: Judge, there is a belief by Dr. Cowan that there is some psychological disorder with Mr. Tokar. He has suggested, based on his test results, that Mr. Tokar go under psychiatric consultation. Mr. Tokar is HIV Positive, and depending on who you talk to, he either has active AIDS or he’s on the verge of having AIDS. Accompanying that medical condition is some form of dementia. By the psychological testing that we have had conducted, we have reason to believe that perhaps his irrational behavior could be attributed to the HIV virus. We have some concern as to whether or not, given some of his recent statements to us, he is going to be cooperative with defense counsel; and even if he is or makes an effort to be cooperative, whether or not he will be able to effectively assist counsel during trial. Petitioner’s counsel also raised this issue in their second application for continuance of trial settings, dated February 22, 1993. In the application, counsel state, “Dr. Cowan has informed counsel that the MMPI-2 test results suggest diagnoses of paranoid disorder and schizophrenia and that the DSM-III-R test results suggest diagnoses of delusional disorder, paranoid traits/personality and schizophreniform disorder.” Based on the foregoing, the Court finds that both the legal and factual bases of a claim that petitioner’s trial counsel was ineffective for failing to investigate and present evidence that petitioner was suffering from a mental disease at the time of trial were readily available to petitioner’s post-conviction counsel. Because petitioner cannot show cause for his procedural default as to this claim, the Court is barred from considering its merits. Ground 2: Alleged Invalidity of Petitioner’s Arrest In his second ground for relief, petitioner argues that his arrest was invalid because no written probable cause statement supported the issuance of the warrant for his arrest. As petitioner acknowledges, this claim is barred by the rule of Stone v. Powell, in which the Supreme Court held that a state prisoner is not entitled to habeas relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at his trial, so long as the state provided an opportunity for full and fair litigation of that claim. 428 U.S. at 481-82. Petitioner suggests that Stone be overruled. This Court has no authority to do so even if it were so inclined. Petitioner also argues that because he was incompetent at the time of trial he was not, in fact, provided with an opportunity for a full and fair hearing. The Court is inclined to agree with respondent that even if petitioner were correct in this argument, relief would be barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). It is not necessary to reach that issue, however, for as set out in more detail in the discussion of ground 1(a) above, petitioner was in no way prejudiced by any potential fourth amendment violation in the warrant process. That is, although the warrant may have been defective, the evidence at trial shows that there was ample probable cause to arrest petitioner, even without a warrant. No evidence was discovered or introduced because of the invalid arrest warrant that would not have been otherwise discovered during further investigation. Petitioner was simply not prejudiced by any alleged violation, so the Court need not decide whether incompetency provides an exception to Stone v. Powell, or whether such a ruling would be Teague-barred. Grounds 3 and 4: Prosecutorial Misconduct In his third and fourth grounds for relief, petitioner points to numerous statements made by the prosecutor in his opening statement and closing argument. Neither of these grounds was raised by petitioner in his direct appeal. Petitioner acknowledges that ground three is defaulted, but argues ineffective assistance of appellate counsel as cause to overcome this default. Petitioner claims that he preserved ground four by raising it in motions for rehearing and to recall the mandate. As explained earlier, neither motion can serve this purpose. Alternatively, petitioner ai’gues ineffective assistance of appellate counsel as cause. Ineffective assistance of appellate counsel can constitute cause to overcome a procedural default. Murray, 477 U.S. at 492. To prevail on an ineffective assistance claim, petitioner must show that counsel’s performance was professionally unreasonable and that, but for this deficient performance, the outcome of the proceeding would have likely been different. Griffin v. Delo, 33 F.3d 895, 900 (8th Cir.1994) (citing Strickland, 466 U.S. at 694), cert. denied, 514 U.S. 1119, 115 S.Ct. 1981, 131 L.Ed.2d 869 (1995). Appellate counsel’s conduct is to be evaluated in light of the circumstances of the case. Pollard v. Delo, 28 F.3d 887, 888-90 (8th Cir.), cert. denied, 513 U.S. 1003, 115 S.Ct. 518, 130 L.Ed.2d 423 (1994). Reasonable appellate strategy permits counsel to limit the appeal to those issues which counsel determines are most likely to be successful. Parker v. Bowersox, 94 F.3d 458, 462 (8th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 1439, 137 L.Ed.2d 545 (1997). Here, petitioner did not raise the prosecutor’s statements in his motion for a new trial. The appellate court’s review of these statements would therefore have been limited to plain error. Missouri v. Smart, 907 S.W.2d 275, 278 (Mo.Ct.App.1995). Under Missouri law, an appellate court has discretion to review plain errors affecting substantial rights, and will exercise this discretion only when it has “substantial grounds for believing that ‘manifest injustice or miscarriage of justice has resulted’ ” therefrom. Missouri v. Brown, 902 S.W.2d 278, 284 (Mo. banc) (quoting Mo. R.Crim. P. 30.20), cert. denied, 516 U.S. 1031, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995). In light of the extremely limited and discretionary nature of plain error review, petitioner has not demonstrated either that his appellate counsel’s decision not to raise these grounds was objectively unreasonable, or that it affected the outcome of his appeal. See Reese v. Delo, 94 F.3d 1177, 1185 (8th Cir.1996) (noting that appellate counsel’s conduct was not unreasonable when counsel failed to raise issue that would have been reviewed at the court’s discretion and for plain error), cert. denied, — U.S. —, 117 S.Ct. 2421, 138 L.Ed.2d 185 (1997). In other words, petitioner can demonstrate neither cause nor prejudice. Because he needs to show both to prevail, he obviously cannot succeed here. Accordingly, the Court will deny grounds three and four of the petition as proeedurally barred. Ground 5: Prosecutor’s Use of an Improper Analogy During Voir Dire Petitioner argues that the prosecutor’s use of an improper analogy during jury selection limited the jurors’ consideration of mitigating evidence at sentencing, thereby depriving petitioner of due process of law and subjecting him to cruel and unusual punishment in violation of the eighth and fourteenth amendments. In examining the first panel of venireper-sons, the prosecutor made the following statement: If I could, ladies and gentlemen, if you would permit me, as an analogy and an analogy only, if you could envision in your mind a hallway that has three doors to it. This first door that you as a jury must confront is that guilt or innocence door. As I mentioned to you, the burden of proof in this case sits on our shoulders throughout this whole case. If we don’t make our case according to the evidence and the Instructions of the law, if we don’t prove that someone is guilty beyond a reasonable doubt of first degree murder, then you leave that door shut, and we don’t have to worry about the death penalty. But if we prove our case, if we prove those elements that someone knowingly caused another person’s death with deliberation, with cool reflection, if we prove our case, then you open that first door and walk on down the hallway and then there’s a second door. This is a door I like to give the name of special circumstances. Because you see, ladies and gentlemen, not every murder ease is one in which the death penalty is a possible punishment. There has to be something special about a murder case. There has to be some circumstances that we call aggravating circumstances, a list of them, and there has to be at least one of those. We have to prove to your satisfaction that at least one of these special circumstances exists. If we don’t prove it, then that door stays shut; and you don’t have to confront the decision about the death penalty. But if we heap our burden on that special circumstance and you open that door and then you walk down the hallway, then the third and final door is the door of the death penalty. I want to tell you, a lot of times people have a question about that. The law never says, “Ladies and gentlemen of the jury, you have to open that third door.” The law never requires a jury to do it. You are always given the option as a jury to vote for life without parole. You never have to open that third door. Petitioner contends that this explanation of the trial process was improper in that it omitted any reference to mitigating circumstances. Petitioner acknowledges that the prosecutor did eventually mention the concept of mitigating circumstances, but observes that this did not occur until the veni-repersons’ understanding of the three doors was well under way. Assuming that the prosecutor’s description of the three doors was improper, petitioner bears the heavy burden of showing that this impropriety was so egregious that it fatally infected the proceedings and rendered his sentence fundamentally unfair. Darden, 477 U.S. at 181. Petitioner must demonstrate a reasonable probability that but for the error complained of, the jury would probably have chosen to sentence him to life in prison. See Jones v. Jones, 938 F.2d 838, 844-45 (8th Cir.1991). It is clear from the record that petitioner can make no such demonstration. As petitioner admits, the prosecutor did mention mitigating circumstances in his questioning of the venirepersons. In explaining the concept, he stated, “What it means is evidence in someone’s favor. In other words, there’s evidence of aggravation but then on the flip side of that coin is evidence that may.be presented in someone’s behalf to show you good things about him.” Later on in his examination, the prosecutor stated that the process was not something where you add up a list and say, “Well, the State’s got five of these things and the defense doesn’t have any. So, we’ve got to go for the one that has the most numbers.” It could be ... that you may find that there are no mitigating circumstances in a person’s behalf that you could still consider life without parole. Still later in his examination, the prosecutor told the venirepersons, There’s one other point I want to make sure that everybody understands. If we prove our case and if we prove these special circumstances, and as I told you the law never says you have to open that third door. You never have to vote for it. The law never tells you that. You always have the option to turn away from that third door. Because the prosecutor’s description of the three doors was limited, involved only one of the two venire panels, and occurred two days before opening statements and five days before the trial’s penalty phase, the Court believes that its effect was insignificant. See United States v. Armstrong, 112 F.3d 342, 344 (8th Cir.1997). Furthermore, the record indicates that the prosecutor himself cured the impropriety, if any, with his later remarks addressing mitigation. Ground 6: Admission of Evidence that Petitioner has AIDS In his sixth ground for relief, petitioner argues that the admission of evidence that he has AIDS violated his right to due process of law and to be free from cruel and unusual punishment in violation of the eighth and fourteenth amendments. The prosecution called as its first witness in the penalty phase Benjamin Richardson, who had been in prison with petitioner prior to the murder at issue in this case. Richardson testified that he had a conversation with petitioner shortly before petitioner’s release in March 1992. According to Richardson, petitioner believed that he was being released early either because of an error or for medical reasons. Richardson stated that petitioner told him that “he [petitioner] tested positive for HTV and he had nothing to lose; all he had to live was two years anyway, so there was not a damned thing you all could do to him.” Petitioner contends that this statement was irrelevant and prejudicial. The record indicates that the defense objected to Richardson’s testimony prior to his taking the stand. The trial court overruled the objection after the prosecution argued that it was relevant to show petitioner’s state of mind, i.e., that petitioner would have no qualms about killing someone during a burglary because he would have nothing to lose. The state supreme court held that the trial court did not err. Citing Missouri v. Six, 805 S.W.2d 159, 166 (Mo. banc), cert. denied, 502 U.S. 871, 112 S.Ct. 206, 116 L.Ed.2d 165 (1991), the court noted that Missouri law permits the use of character evidence in a trial’s penalty phase. The court held that the evidence was relevant to counter the defense’s theory that alcohol was the main catalyst in Tokar’s crimes. The court also found that the statement “demonstrated] Tokar’s lack of respect for the justice system and his victims, and the words reveal[ed] a purposeful intent to commit future crimes.” “Federal courts are not forums in which to relitigate state trials.” Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Questions of admissibility of evidence in state trials are matters of state law and generally do not constitute grounds for federal habeas relief. Manning-El v. Wyrick, 738 F.2d 321, 322 (8th Cir.), cert. denied, 469 U.S. 919, 105 S.Ct. 298, 83 L.Ed.2d 233 (1984). Thus, on habeas review of a state conviction, a federal court does not examine whether evidence was properly admitted under state law. Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Rather, review is “limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Id. A federal court will reverse a state court evidentiary ruling “only if it ‘infringes upon a specific constitutional right or is so grossly or conspicuously prejudicial that it fatally infected the tidal and denied the defendant the fundamental fairness that is the essence of due process.’ ” Maynard v. Lockhart, 981 F.2d 981, 986 (8th Cir.1992) (quoting Berrisford v. Wood, 826 F.2d 747, 749 (8th Cir.1987), cert. denied 484 U.S. 1016, 108 S.Ct. 722, 98 L.Ed.2d 671 (1988)). There is no specific constitutional right prohibiting disclosure of a person’s HIV status at trial. The Court must therefore consider whether the state court’s ruling allowing Richardson’s testimony was so egregiously erroneous that it denied petitioner a fundamentally fair trial. The Court finds that even if the trial court’s ruling was error, it did not violate petitioner’s right to due process. First, Richardson was no model citizen. He admitted that he had been in jail for shooting a man and acknowledged that he was a professional burglar himself. Second, under cross-examination by petitioner’s trial counsel, Richardson also stated that he had “no respect for our judicial system.” Given Richardson’s status as a convicted felon and Richardson’s expressed contempt for the courts, the Court believes that his testimony was not so prejudicial that it fatally infected petitioner’s trial. The jury may have disbelieved him entirely. The jury found numerous aggravating factors to support the imposition of the death penalty, and thus would have reached its decision even absent Richardson’s statement. Grounds 7-10: Penalty Phase Jury Instruction Grounds 7 through 10 are somewhat related claims in which petitioner claims that the jury instructions given during the penalty phase of the trial violated his right to due process of law and to be free from cruel and unusual punishment in violation of the eighth and fourteenth amendments. To assist in analyzing these claims, the Court will here set out in full instructions 19 through 23. Inst