Basile v. Bowersox (125 F. Supp. 2d 930, 1999)

MEMORANDUM AND ORDER

WEBBER, District Judge.

This matter is before the Court on Petitioner Daniel Basile’s Petition for Writ of Habeas Corpus by a Petitioner in State Custody Under a Sentence of Death [document # 6].

I. FACTS

Under the AEDPA, a presumption of correctness attaches to state court findings of fact. 28 U.S.C. § 2254(e)(1); Tokar v. Bowersox, 198 F.3d 1039, 1044 (8th Cir.1999). A petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Basile has set forth no clear and convincing evidence challenging the state courts’ findings of fact. Accordingly, the Court accepts the following facts as stated by the Missouri Supreme Court in State v. Basile, 942 S.W.2d 342, 347-49 (Mo. banc 1997). See Poree v. Cain, 1999 WL 518843, at *6 (E.D.La. July 20, 1999) (accepting facts as stated by Louisiana Supreme Court).

The events leading up to the murder began on January 10, 1992, when James Torregrossa went to get a tire for his ex-girlfriend at the Old Orchard service station in Webster Groves. Richard De-Caro worked at the station. Torregros-sa and DeCaro knew each other because they both belonged to Gold’s Gym. De-Caro told Torregrossa that he had heavy payments on his van and asked Torreg-rossa if he knew of anyone that could “take it off his hands.” In the same conversation, DeCaro asked if Torreg-rossa knew anyone who could “put a hit on somebody” for him. DeCaro also stated that his wife thought he was having an affair with his secretary and that he would not wish marriage on anyone. Ten days later, DeCaro purchased a $100,000 life insurance policy on behalf of his wife, Elizabeth, listing himself as the primary beneficiary. On January 26, 1992, Richard DeCaro struck Elizabeth with their van, knocking her through the garage wall into the kitchen. She sustained severe bruising. The insurance company paid Richard DeCaro over $30,000 as a result of this incident. In January of 1992, DeCaro asked Craig Wells, a manager at Old Orchard service station, if he knew anyone who could steal his van. Wells introduced DeCaro to Basile. The two met, and DeCaro offered Basile $15,000 to steal the van and kill Elizabeth. On February 8, 1992, Basile stole the van, drove it to Jackson, Missouri, and burned it. He received $200 for this job.

On February 28, 1992, Basile asked his friend, Jeffrey Niehaus, for a stolen gun that was not traceable. On March 4, Basile showed his half-brother, Doug Meyer, a .22 caliber semi-automatic pistol with pearl-like grips. He claimed that he bought the gun from his father for $100. On March 5, Basile asked another friend, Susan Jenkins, to get him some latex gloves from the doctors offices in which she worked. On March 6, Basile told Meyer that he could not work that day because he was working for Richard DeCaro.

On March 6, 1992, Richard DeCaro picked up two of his four children from school and then went home to pick up the other two. He drove all four of the children and the family dog to the Lake of the Ozarks, leaving St. Louis a little after noon. They checked into the Holiday Inn at the lake at 2:59 p.m. Two of the children testified that they saw their mother alive before they went to school that morning. They testified that the dog would always bark at strangers. Between 2:00 and 2:30 p.m., a witness noted that the DeCaro garage door was closed. Elizabeth DeCaro left work at 2:20 p.m. At 3:15 p.m., a neighbor stopped by and noticed the garage door was open and that the DeCaros’ Blazer with personalized license plates reading “RIK-LIZ” was in the garage, but no one answered the doorbell.

At 4:15 p.m., Basile was seen driving the DeCaro’s Blazer in St. Charles. That evening around 6:30 to 7:00 p.m., Basile called an ex-roommate for a ride, stating “Things went down. I did what I had to do.” At 7:00 p.m., Basile called Doug Meyer and asked if Meyer had garage space where Basile could work on his car. Basile drove the Blazer to Richard Borak’s home in Florissant and gave him a “boom box” stereo stolen from the DeCaro residence as a birthday gift. Basile told Borak that he “did this lady.” Just after 8:00 p.m., the Blazer was spotted heading south on Interstate 270. At 10:30 p.m., Basile went to Meyer’s house, where they ate pizza before going out for drinks.

Elizabeth DeCaro had planned to meet her sister, Melanie Enkleman, for dinner at 5:00 p.m. When the victim failed to show up for dinner or answer her telephone, Enkleman and a mutual friend went to the DeCaro home. They went in through an open side door in the garage and then through an open door leading into the house. They found Elizabeth DeCaro lying face-down on the kitchen floor. Enkleman called 911 at around 8:00 p.m.

Elizabeth DeCaro had two gunshot wounds in the back of her neck and bruises on her body. When she was shot, the gun was in contact with her body, and she was either kneeling or lying down. The bullets recovered from her body were .22 caliber. Police found no signs of forced entry. Audio-visual equipment had been removed from the home, but the cables and wires had been carefully unplugged or unscrewed from the walls.

On March 7, 1992, after reading about the DeCaro death in the paper, Basile called Craig Wells and stated, “It looks like I’ve gotten set up.” On March 9, Meyer found the DeCaro’s dismantled Blazer in the garage that he had provided for Basile. Meyer helped Basile take parts of the Blazer to the dump. Meyer realized that the Blazer belonged to De-Caro and confronted Basile. Basile admitted to Meyer that he stole the Blazer. At trial, Meyer testified that Basile told him “it was either him or her, and he wasn’t going back to jail.” Basile told Meyer that he was a thief, not a murderer. On March 11, Meyer contacted the police.

On March 12, 1992, Basile went to Kenneth Robinson’s trailer and told Robinson that he was in trouble because the police thought that he had “done the van and the lady.” Robinson contacted the police. The police arrested Basile a few hours later.

In the investigation, police found a license plate from the stolen and burned van in Cape Girardeau County. They also found the van itself. The dismantled remains of the DeCaro’s Blazer was found in an apartment garage near Fen-ton, Missouri. Also in the garage was a portable stereo unit. Police later recovered the DeCaro’s stolen “boom box” from Ricky Borak’s apartment.

Basile did not testify on his own behalf during trial. He presented the testimony of four witnesses. The jury found Basile guilty of first degree murder. Basile also did not testify in the penalty phase. According to a stipulation, he had prior convictions for burglary, stealing and assault. There was testimony that Basile had strangled his neighbor on one occasion and threatened to kill an ex-girlfriend’s husband. Elizabeth De-Caro’s mother and sister testified about the victim’s life and how her loss impacted the family.

II. PROCEDURAL HISTORY

Basile was tried in the Circuit Court of St. Charles County, Missouri, by a Montgomery County jury for the murder of Elizabeth Ann DeCaro. State of Missouri v. Daniel Anthony Basile, Cause No. CR129-65F. The trial began on April 25, 1994 and concluded on May 7, 1994, with the jury’s verdict convicting Basile of first degree murder. The jury found that Ba-sile murdered Elizabeth DeCaro for another for the purpose of receiving money or other things of value, and that Basile murdered DeCaro as an agent or employee of Richard DeCaro. See R.S. Mo. § 565.032(4) and (6) (1986). Based on these aggravating circumstances, the jury assessed and declared the penalty of death. Id. On July 1, 1994, Judge Lucy Rauch sentenced Basile to death.

On January 23, 1996, following an evi-dentiary hearing, Judge Rauch denied Ba-sile’s timely filed Rule 29.15 motion. The Missouri Supreme Court affirmed both the denial of post-conviction relief and Basile’s conviction and sentence, State of Missouri v. Daniel Basile, 942 S.W.2d 342 (Mo.1997), and subsequently denied Basile’s motion for rehearing. The United States Supreme Court denied certiorari on July 8, 1997. Basile v. Missouri, 522 U.S. 883, 118 S.Ct. 213, 139 L.Ed.2d 148 (1997).

On October 7, 1997, Basile filed a pro se motion to appoint counsel in this Court, and the Court appointed counsel to represent Basile on the same day. On July 1, 1998, Basile filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, raising thirteen grounds for relief. Respondent concedes that Basile has exhausted his available state remedies. (Resp. at 7-8.) Basile’s Petition was fully briefed on November 19, 1998. The Court denied Basile’s motion for evidentiary hearing on January 13,1999.

III. STANDARDS OF REVIEW

A state prisoner may petition for a writ of habeas corpus “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A state prisoner is entitled “to relief on federal habeas corpus only upon proving that [his] detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution.” Wessling v. Bennett, 410 F.2d 205, 209 (8th Cir.1969) (quoting Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)).

A. COGNIZABILITY

“ ‘[I]t is not the province of a federal habeas court to re-examine state-court determinations of state-law questions.’ ” Gee v. Groose, 110 F.3d 1346, 1349 (8th Cir.1997) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). Rather, a federal court is limited “ ‘to deciding whether a conviction violated the Constitution, laws or treaties of the United States.’” Id. Thus, claims that do not reach constitutional magnitude cannot be addressed in a petition for habeas corpus. Carter v. Armontrout, 929 F.2d 1294, 1296 (8th Cir.1991).

B. PROCEDURAL DEFAULT

“Federal habeas review is barred when a federal claim has not been ‘fairly presented’ to the state court for a determination on the merits.” Hall v. Delo, 41 F.3d 1248, 1249 (8th Cir.1994). In Missouri, a claim must be presented at each step of the judicial process in state courts to avoid procedural default. Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir.1994). Even if a federal claim has been “fairly presented” to the state court, a federal court generally will decline to consider a claim if the state court denied it on “independent and adequate state procedural grounds.” Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

A Missouri court may “lift” the bar on an otherwise proeedurally defaulted claim by reviewing it on the merits. Jolly, 28 F.3d at 53-54. Absent a decision by a state court to lift the procedural bar on an otherwise proeedurally defaulted claim, a federal court will not consider the claim unless petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546.

To show cause excusing his procedural default, a petitioner must show that some external factor beyond his or his attorney’s control caused the procedural default. Turner v. Delo, 69 F.3d 895, 896-897 (8th Cir.1995). A petitioner asserting prejudice must show “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Freddy, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

C. AEDPA STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), P.L. 104-132, 110 Stat. 1214, made numerous changes to Title 28, Chapter 153 of the United States Code, 28 U.S.C. §§ 2241-2255, the chapter governing federal habeas petitions. Specifically, in Section 104 of the AEDPA, Congress added new subsection (d) to 28 U.S.C. § 2254. That subsection provides as follows:

(d) An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State Court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or

(2) resulted in a decision that 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 a recent decision, the Eighth Circuit set forth the procedure for a court’s analysis of a habeas petition. “Because § 2254(d)(1) directs this court to grant [petitioner’s] petition only if the trial court’s decision was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, we must first identify the controlling case law.” Long v. Humphrey, 184 F.3d 758, 759 (8th Cir.1999). If clearly established Supreme Court precedent exists governing petitioner’s claim, the court “must next decide whether the trial court’s decision was ‘contrary to’ or an ‘unreasonable application’ of that precedent.” Id. at 760. A trial court’s decision may be found “contrary to” established Supreme Court precedent only if (1) the trial court “made an error of pure law,” id. (citing Drinkard v. Johnson, 97 F.3d 751, 768 (5th Cir.1996)), or (2) “if controlling case law requires different outcome either because of factual similarity to a state case or because general federal rules require a particular result in a particular case.” Id. (citing O’Brien v. Dubois, 145 F.3d 16, 25 (1st Cir.1998)). If the trial court’s decision was not contrary to established Supreme Court precedent, the habeas court next considers the unreasonable application prong of § 2254(d)(1). After considering various circuits’ approaches to defining an unreasonable application of Court precedent, Long found persuasive the Third Circuit’s approach in Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 889 (3d Cir.1999) (en banc), in which the court held, “The federal habeas court should not grant the petition unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent.” The Eighth Circuit further advised that “mere disagreement with the trial court’s conclusions is not enough to warrant habeas relief.” Id. at 760-61.

Long also noted that, “To the extent that inferior federal courts have decided factually similar cases, reference'to those decisions is appropriate in assessing the reasonableness ... of the state court’s treatment of the contested issue.” Id. (quoting Matteo, 171 F.3d at 890). This statement is an important indicator of the Eighth Circuit’s interpretation of “clearly established Federal law as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), which could be understood to mean that a habeas court should look only to Supreme Court cases in evaluating a habeas petition. As Matteo explained:

Furthermore, although AEDPA refers to “clearly established Federal law, ‘as determined by the Supreme Court of the United States,’ ” we do not believe federal habeas courts are precluded from considering the decisions of the inferior federal courts when evaluating whether the state court’s application of the law was reasonable.... Instead, the primary significance of the phrase “as determined by the Supreme Court of the United States” is that federal courts may not grant habeas corpus relief based on the state court’s failure to adhere to the precedent of a lower federal court on an issue that the Supreme Court has not addressed. Thus, in certain cases it may be appropriate to consider the decisions of inferior federal courts as helpful amplifications of Supreme Court precedent.

171 F.3d at 889. Accordingly, decisions from the Eighth Circuit continue to be binding upon this Court. Alley v. Ault, 21 F.Supp.2d 949, 955 (S.D.Iowa 1998) (citing Evan Tsen Lee, Section 2254(d) of the New Habeas Statute: An (Opinionated) User’s Manual, 51 Vand.L.Rev. 103, 131— 36 (1998)). Although this Court must review state court decisions with reference to “[fjederal law as determined by the Supreme Court,” “the doctrine of stare decisis requires district judges to assume that courts of appeals have properly interpreted Supreme Court edicts.” Lee, 51 Vand.L.Rev. at 131. Accordingly, the Court will follow Eighth Circuit case law to the extent it applies to Petitioner’s claims.

IV. DISCUSSION

Basile raises the following grounds in support of his Petition for Writ of Habeas Corpus:

(1) The prosecutor violated Basile’s rights under the Sixth, Eighth, and Fourteenth Amendments to the Constitution by making improper arguments

(a) during the guilt phase closing argument, by arguing facts not in the record, improperly injecting his personal beliefs, making improper adverse inferences, and attacking defense counsel; and

(b) during the penalty phase closing argument, by making improper, inflammatory arguments, improperly injecting his personal beliefs, and improperly suggesting to the jury that there was a correlation between capital punishment and reduction in crime.

Where defense counsel failed to properly object to these arguments, Basile was denied effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments;

(2) The prosecutor violated Basile’s rights under the Sixth and Fourteenth Amendments by making inflammatory statements to prospective venireper-sons, personally attacking defense counsel, and injecting his personal opinion. Defense counsel’s failure to request a mistrial on the basis of these improper statements violated Basile’s right to effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments;

(3) The trial court violated Basile’s rights under the Sixth, Eighth, and Fourteenth Amendments by allowing the introduction of evidence of Basile’s other crimes, bad acts, and bad character even though Basile had not placed them at issue. Defense counsel’s failure to object to the introduction of this evidence violated Basile’s right to effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments;

(4) Basile’s rights under the Sixth, Eighth, and Fourteenth Amendments were violated when the prosecutor knowingly introduced improper evidence and conducted himself in a manner intended to inflame the passions of the jury. Defense counsel’s failure to object to this prosecutorial misconduct violated Basile’s right to effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments;

(5) Basile’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments were violated when the prosecutor repeatedly elicited improper hearsay testimony during trial. Defense counsel’s failure to object to the hearsay testimony violated Ba-sile’s right to effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments;

(6) The trial court violated Basile’s rights under the Eighth and Fourteenth Amendments by permitting the introduction of victim impact evidence during the penalty phase of his trial. The Rule 29.15 motion court’s failure to grant relief to Basile on this issue denied his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments. Defense counsel’s failure to request a penalty phase instruction as to the limited use of victim impact testimony violated Basile’s Sixth Amendment right to effective assistance of counsel;

(7) The trial court violated Basile’s rights under the Fifth, Eighth, and Fourteenth Amendments

(a) by submitting to the jury unconstitutionally duplicative statutory ag-gravators; and

(b) by submitting to the jury Instruction No. 14, which erroneously did not state that (a) the State had to prove the non-statutory aggravators beyond a reasonable doubt; (b) all twelve jurors had to agree on each non-statutory aggravator; and (c) if the jury did not unanimously find beyond a reasonable doubt as to each aggravator, they could not consider that circumstance in returning their verdict of death. Defense counsel was ineffective for failing to object to Instruction No. 14;

(8) The Missouri Supreme Court’s proportionality review was inadequate, violating Basile’s rights to due process under the Fifth and Fourteenth Amendments;

(9) The Rule 29.15 court’s adoption of the State’s proposed findings of fact and conclusions of law, rather than conducting an independent review of Basile’s claims, violated his rights to due process under the Fifth and Fourteenth Amendments;

(10) The trial court violated Basile’s rights under the Fifth, Eighth, and Fourteenth Amendments by denying defense counsel’s motion for individual voir dire;

(11) The trial court violated Basile’s rights under the Fifth, Eighth, and Fourteenth Amendments by denying defense counsel’s motion to empanel a separate penalty phase jury;

(12) The trial court violated Petitioner’s rights to due process and to be free from cruel and unusual punishment under the Fifth, Eighth, and Fourteenth Amendments, by submitting Missouri’s instruction for proof beyond a reasonable doubt; and

(13) The Rule 29.15 court’s refusal to permit Basile to be present at his Rule 29.15 motion hearing violated his rights under the Fifth, Sixth, and Fourteenth Amendments.

A. GROUND ONE: IMPROPER ARGUMENT

In his first ground for relief, Basile claims that the prosecutor violated his rights under the Sixth, Eighth, and Fourteenth Amendments to the Constitution by making improper arguments during guilt phase closing argument, arguing facts not in the record, improperly injecting his personal beliefs, making improper adverse inferences, and attacking defense counsel. Basile also claims that the prosecutor violated Basile’s rights under the Sixth, Eighth, and Fourteenth Amendments during the penalty phase closing argument, by making improper, inflammatory arguments, improperly injecting his personal beliefs, and improperly suggesting to the jury that there was a correlation between capital punishment and reduction in crime. Basile further claims that where defense counsel failed to properly object to these arguments, Basile was denied effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments.

Respondent asserts that where the Missouri Supreme Court reviewed Basile’s claims for plain error, because defense counsel did not object to the arguments or request a mistrial, this Court should treat the state court’s plain error review as enforcing a default and creating a bar to any federal habeas corpus review of these claims. Respondent correctly points out that there is a split of authority within the Eighth Circuit on this issue. In Horn-buckle v. Groose, the Court of Appeals remarked, “There appears to be a deci-sional split within our Circuit on whether plain-error review by a state appellate court waives procedural default by a habe-as petitioner, allowing collateral review by this court.” 106 F.3d 253, 257 (8th Cir.1997). Acknowledging their inability to resolve this intracircuit split, the Hom-buckle panel chose to follow the line of cases holding that when a state court reviews for plain error, a federal habeas court may also review for plain error. Id. (citing Mack v. Caspari, 92 F.3d 637, 641 n. 6 (8th Cir.1996)). In the most recent Eighth Circuit case to consider this question, the panel also declined to find procedurally barred a claim which the Missouri Court of Appeals had reviewed for plain error because of defense counsel’s failure to object to the challenged statements. James v. Bowersox, 187 F.3d 866, 869 (8th Cir.1999). However, while the James court found the claim in question not procedurally barred, the court rejected petitioner’s argument that it should conduct “plain error review de novo” in conducting federal habeas review. Id. The court reasoned as follows:

In the first place, our review of state convictions is limited to federal constitutional errors, in this case, an alleged due process violation.... In the second place, the AEDPA mandates a deferential review of state court decisions. We may not grant habeas relief on a claim that was adjudicated on the merits in state court unless it “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).... The summary nature of the Missouri Court of Appeals opinion does not affect this standard of review.

Id. (citations omitted). This Court understands James to mean that even if the state court has reviewed petitioner’s claim under a plain error standard, a federal habeas court should conduct its review under the standards set forth in the AEDPA, 28 U.S.C. § 2254(d)(1). Accordingly, where defense counsel did not object to an argument, resulting in the state court’s plain error review when that argument was challenged in Basile’s direct appeal, this Court shall not find that claim procedurally barred, but shall review the claim under the AEDPA standard.

1. GUILT PHASE CLOSING ARGUMENT

The Missouri Supreme Court divided its analysis of Basile’s guilt phase closing argument claim into four parts, which this Court will consider in turn. The Missouri Supreme Court analyzed the first part of this claim as follows:

Basile first argues that a series of statements made by the prosecuting attorney was improper. While no objection was made to some of the statements, he argues that the statements warranted sua sponte relief by the trial court under the plain error doctrine or, in the alternative, that counsel was ineffective in failing to object.

Prosecuting attorney Braun stated the following during closing argument of the guilt phase:

Mr. Basile is in the basement, most likely in this room, locked in.

About 11:40, you heard from Melanie, Jenny McKay comes by and drops off Courtney [one of the DeCaro children], Courtney gets in the car with the dog and Mr. DeCaro drives off to pick Ricky up from school. In the meantime, the other two children come home and are in the house. In the house with their mother’s killer....

It was either her or me and I wasn’t going back to prison. How does that relate? Well, DeCaro had him on the hook after he did the first one. He knew if DeCaro got divorced there was a chance, and I’m willing to bet that DeCaro told him, my wife’s going to tell on us. You got to go through with this because you’re going to go down if I get divorced. My wife knows about this and I told her you were in on it and you are going to go down if I get divorced. My wife knows about this and I told her you were in on it, and you are going to go down. And that’s why the sentence makes sense....

He killed the mother of four children after he had been in the house with those children....

Why would he be driving around keeping the property for a while? He didn’t know Melanie was coming there at eight o’clock that night. And after nine o’clock any phone calls to Richard DeCaro are coming from the family-

Basile alleges that the above arguments were impermissible because they were not supported by the record. The first three arguments were not objected to, and no claim is made that any of those arguments were preserved for appeal. Objection to the last comment was overruled as a reasonable inference from the evidence.

Basile’s conviction will be reversed on plain error for improper argument only if he establishes that the comments had a decisive effect on the jury’s determination. State v. Parker, 856 S.W.2d 331, 333 (Mo. banc 1993). The evidence shows or permits an inference that Ba-sile was sought out by Richard DeCaro to both steal vehicles and kill Elizabeth DeCaro, that Richard DeCaro picked Basile up the morning of the murder, that the dog was removed from the De-Caro home at about 11:40 a.m., that Basile did not have his own transportation to the DeCaros’, that Basile left the DeCaro home in the DeCaros’ Blazer, that there were no signs of forced entry, and that Basile felt the need to kill Elizabeth to avoid her potential disclosure of the insurance fraud scheme and his being sent back to prison.

The prosecuting attorney’s comments reflect a reasonable inference from the evidence, which showed that Basile was probably in the house hiding until Elizabeth DeCaro got home. In that space of time, at least two of the DeCaro children came home from their half-day at school to prepare for their trip to the lake. The trial court did not err by failing to sua sponte declare a mistrial after these remarks were made. Contrary to Ba-sile’s assertions here, these comments were not “egregious errors, each compounding the other” comparable to the situation in State v. Storey, 901 S.W.2d 886, 902 (Mo. banc 1995).

Basile makes a related claim that the motion court clearly erred by concluding that trial counsel was not ineffective for failing to properly object to prosecutorial statements and preserve those objections for appeal. Counsel cannot be deemed ineffective for failing to make nonmeritorious objections. Six, 805 S.W.2d at 167.

Basile, 942 S.W.2d at 348-50. Pursuant to the AEDPA, the Court must first identify the Supreme Court precedent applicable to Basile’s claim of improper argument by the prosecutor. 28 U.S.C. § 2254(d)(1); Long, 184 F.3d 758, 759 (8th Cir.1999). In Darden v. Wainwright, the Supreme Court found that a prosecutor’s statements during closing argument were improper. 477 U.S. 168, 180, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). The Court cautioned, however, that “it is not enough the prosecutors’ remarks were undesirable or even universally condemned.” Id. at 181, 106 S.Ct. 2464 (internal quotations and citations omitted). Instead, “[t]he relevant question is whether the prosecutors’ comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. (internal quotations and citations omitted). The Eighth Circuit has construed the rule set forth in Darden as a two-part test for prosecutorial misconduct: “First, the remarks must have been improper, and second, the remarks must have been so prejudicial as to deprive the defendant of a fair trial.” Young v. Bowersox, 161 F.3d 1159, 1162 (8th Cir.1998). Thus, if the reviewing court does not find the remarks to have been improper, the court does not reach the second step of determining whether they deprived the defendant of his constitutional right to due process. U.S. v. Cannon, 88 F.3d 1495, 1502 (8th Cir.1996). If the reviewing court does reach the second step, the court must examine “the totality of the circumstances” in order to determine the effect of the prosecutor’s remarks. Walls v. Bowersox, 151 F.3d 827, 836 (8th Cir.1998). The challenged statements, when read in the entire context of the proceedings, must “fundamentally taint the proceedings” to warrant federal habeas relief. Id. at 837 (citing Darden, 477 U.S. at 181, 106 S.Ct. 2464).

In assessing the prejudicial effect of improper remarks by a prosecutor during closing arguments of the guilt phase of a trial, a court considers three factors: (1) the cumulative effect of any misconduct; (2) the strength of the properly admitted evidence; and (3) any curative actions taken by the trial court. U.S. v. Tulk, 171 F.3d 596, 599 (8th Cir.1999). In considering the second factor, the Eighth Circuit “has indicated that an improper argument is less likely to have affected the verdict in a case when the evidence is overwhelming than in a case where the evidence is weak.” Cannon, 88 F.3d at 1503. Noting that federal habeas courts have a “less reliable vantage point for gauging the impact of closing argument on the overall fairness of a trial” than did the state trial court, the Eighth Circuit has recently declared that, “Federal habeas relief should only be granted 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, 187 F.3d at 869.

Neither party asserts that the trial court’s decisions challenged in ground one were “contrary to” clearly established Supreme Court precedent. Accordingly, the Court must determine whether the trial court’s decisions were an “unreasonable application” of clearly established Supreme Court precedent. See 2254(d)(1). Basile asserts that the prosecutor improperly argued facts not supported by the record and argued his personal beliefs. In the first and second challenged statements, the prosecutor stated, “Mr. Basile is in the basement, most likely in this room, locked in” (Tr. 2392), and “about 11:40, you heard from Melanie, Jenny McKay comes by and drops off Courtney (DeCaro’s daughter). Courtney gets in the car with the dog and Mr. DeCaro drives off to pick Ricky up from school. In the meantime, the other two children come home and are in the house. In the house with their mother’s killer.” (Tr. 2392.) In the next challenged statement, the prosecutor argued, “He killed the mother of four children after he had been in the house with those children ....” (Tr. 2451.) Defense counsel did not object to any of these statements.

The challenged statements were supported by reasonable inferences derived from the evidence. The family dog was taken out of the home when DeCaro collected Courtney at about 11:40 a.m. People who came by the house observed that the garage door was closed, then up with the Blazer parked inside. Basile was identified as the driver of the same Blazer later that evening. There was evidence that Basile had a key to the van which he intentionally burned for receipt of money from DeCaro. Additionally, Basile delivered objects taken from the DeCaro house to his friends. The Blazer was placed in a garage used only by Basile, where it was disassembled. Basile told others that the police were looking for him, that he had been set up, that he was in “deep shit,” and that he had “done the lady.” Because the evidence supported the prosecutor’s argument, the argument was not improper. See United States v. Robinson, 110 F.3d 1320, 1327 (8th Cir.1997) (as long as prosecutors do not stray from evidence and reasonable inferences from it, they may use colorful and forceful language in arguments to jury)

In the next portion of the challenged argument the prosecutor stated, “It was either her or me and I wasn’t going back to prison .... How does that relate? Well, DeCaro had him on the hook after he did the first one. He knew if DeCaro got divorced there was a chance, and I’m willing to bet that DeCaro told him, my wife’s going to tell on us. You got to go through with this because you’re going to go down if I get divorced. My wife knows about this and I told her you were in on it and you are going to go down. And that’s why that sentence makes sense.” (Tr. 2400). This statement was also supported by reasonable inferences from the evidence.

Evidence presented at trial indicated that DeCaro hired Basile to take the family van so that DeCaro could make an insurance claim. Basile took the van in the company of another to Cape Girardeau County where he burned it. Elizabeth DeCaro had reported to her sister that DeCaro knew people who would or could blow up a van. (Tr. 1673.) Furthermore, she told Mary Pohlman Marchetto that the reason DeCaro needed to leave the Mar-chetto party early was probably that he had hired someone to steal the van they were driving that night and that when they arrived home DeCaro had taken items from the van and had parked it in the street, rather than the garage. (Tr. 1727-28) On March 9, 1992, three days after the murder, Basile told his brother, Doug Meyer, that it was him or her and he was not going to jail. (Tr. 2230.)

Again, the prosecuting attorney is permitted to argue to the jury that they are entitled to conclude from the evidence, or reasonable inferences from the evidence, that certain facts have been proved. Rob inson, 110 F.3d at 1327. Here, the evidence supported inferences that Basile had stolen and burned the van, that Elizabeth knew that DeCaro had had the van stolen, and that Basile had said that it was him or her and he was not going to jail. Accordingly, the Court finds that the challenged argument was not improper.

Finally, Basile challenges the following statement by the prosecutor, “Why would he be driving around keeping the property for a while. He didn’t know Melanie was coming there at eight o’clock that night. And after nine o’clock any phone calls to Richard DeCaro are coming from the family.” (Tr. 2435.) The trial court properly overruled defense counsel’s timely objection to this statement, which was supported by evidence set forth at trial. Elizabeth Burrows, whose exhusband’s name is Rick, testified that on March 6, 1992, while in St. Charles County at about 4:30 p.m., she passed a Blazer with a combination of the names Rick and Liz on its license plate and identified Basile as the driver. (Tr.2081-84.) Also, Kathy and Thomas Ortinau saw a vehicle with RIK-LIZ on its license plate on Interstate 270 about 8:00 p.m. on March 6, 1992. (Tr. 2148-49, 2152.) The DeCaro’s blazer which was stolen on the day of Elizabeth’s murder had RIK-LIZ on its license plates.

Melanie EnMemann, Elizabeth’s sister, testified that she and Elizabeth had lunch together on March 6, 1992, at the TWA Training Center where they worked. At lunch, they made plans to meet that evening at the Casa Gallardo restaurant in Bridgeton, Missouri, at 5:00 — 5:15 p.m. (Tr. 1641.) When Elizabeth failed to appear at the assigned time, Enklemann and a friend began a search for Elizabeth De-Caro which ended inside the DeCaro house where they found her lying stomach down on the floor in front of the sink. (Tr. 1641-46.)

The trial court properly ruled that there was evidentiary support for the reasonable inferences argued by the prosecutor. It was reasonable to conclude that Elizabeth DeCaro’s body might not have been discovered until Sunday. Furthermore, it was reasonable to assume that when the body was discovered Richard DeCaro would have been notified and therefore that attempted contact with him would have been foreseeable. The statement in its entirety was reasonable argument and, accordingly, was not improper.

The Missouri Supreme Court analyzed the second part of this claim as follows:

Basile cites three instances where the prosecuting attorney stated personal opinions, which Basile claims constituted plain error or, in the alternative, that counsel was ineffective for failure to object.

The instance in which an objection was made included the following statement by the prosecuting attorney:

Now, what about the dog. The dog is more important than any of us think. The dog barked at strangers, jumped on strangers, was protective of those children. The dog was home in the morning when the kids left and dad wasn’t there. Dad shows up to pick Ricky up, and we debated whether to put the children on, but that was the only way we could prove this. [Tr. 2407.]

At that point, an objection was interposed that the prosecuting attorney was relying on “personal hardship.” No motion for mistrial was made. The prosecuting attorney immediately withdrew the comment. The retraction was sufficient to correct any impropriety and overcome a claim that a motion for mistrial should have been made and sustained. State v. Turnbull, 403 S.W.2d 570, 573 (Mo.1966). This comment, alone or in conjunction with others, did not have the pervasive prejudicial effect necessary to require the grant of a mistrial sua sponte. State v. Weaver, 912 S.W.2d 499, 512 (Mo. banc 1995), cert. denied, 519 U.S. 856, 117 S.Ct. 153, 136 L.Ed.2d 98 (1996). Counsel will not be deemed ineffective for failing to make a motion which would properly be denied. The second and third instances of alleged “injection of personal opinion” by the prosecuting attorney were the following:

Now, on Saturday sometime he tells Doug that he took his gun back to his father. I think that’s a lie. He threw the gun out. He was looking for a throw away. Here’s a man who wears gloves so there is [sic] no fingerprints. He’s not going to keep the murder weapon around.... [Tr. 2398.]

I think you have, if you think of all that evidence, if you weigh all the circumstantial evidence, if you look at the direct evidence, the eyewitness testimony, the testimony and Borak and Meyer and Wells and Sue Jenkins, they are not lying, they are telling you the truth. [Tr. 2409.]

No objection was made. Most of the arguments were at least supported by inferences from evidence in the record. These arguments were certainly not so egregious as to be outcome determinative and, as such, do not constitute plain error. Storey, 901 S.W.2d at 902. The comment regarding the gun being thrown away, even if objectionable, was not reasonably likely to infect the proceeding in such a manner as to undermine confidence in the outcome. Thus, there was no prejudice from counsel’s failure to object.

Basile, 942 S.W.2d at 350. Basile contends that in these statements the prosecutor improperly injected his personal beliefs into his argument. As to the first statement, in which the prosecutor commented upon his ambivalence about requiring Ricky DeCaro to testify, the Court finds that even if this statement was improper, the prosecuting attorney’s immediate withdrawal of the comment was sufficiently curative to eliminate any possibility of prejudice to Basile. The prosecutor’s statements that he thought Basile had lied about taking his gun back to his father and that witnesses Borak, Meyer, Wells, and Jenkins were telling the truth constituted improper vouching. Improper vouching includes statements in which the government “(1) refers to facts outside the record or implies that the veracity of a witness is supported by outside facts that are unavailable to the jury; (2) implies a guarantee of truthfulness; or (3) expresses a personal opinion about the credibility of a witness.” U.S. v. Benitez-Meraz, 161 F.3d 1163, 1167 (8th Cir.1998). Here, the prosecutor directly expressed his personal opinion about the credibility of both Basile and four witnesses. See id. (prosecutor’s statements not improper because he did not imply that witness was telling the truth). However, while the Eighth Circuit has expressed its lack of tolerance for comments on witnesses’ credibility, such comments do not require reversal unless “the jury verdict reasonably could have been affected by the improper comment.” U.S. v. McMurray, 20 F.3d 831, 834, n. 3 (8th Cir.1994). In light of the extensive evidence of Basile’s guilt, which the Court sets forth below, the Court does not believe that these comments reasonably could have affected the jury’s verdict.

Evidence submitted at trial showed that approximately five weeks before Elizabeth’s death, DeCaro had struck her with the front of the family van in the residential garage, with such force that it forced her body through the garage wall into the interior of the living quarters. On direct examination by the prosecutor, Melanie Enklemann, Elizabeth’s sister, testified:

Q. Now, when she got that bruise, do you know if Rick tried to help her? A. What he did is he — after he ran it through the wall, he ran out of the car and he ran to the front door, which I pointed out, and he went outside. And Ricky was up, and he yelled at Ricky, you go back to bed, you stay in your room. And then he ran into the kitchen and he dialed — started to dial 911. At this time Elizabeth says, you know, I’m trying to get out of this, you know, I finally dig my way out of this, and she walks in the kitchen and says, “What are you trying to do, kill me?” (Tr. 1653-55.)

Witness testimony also connected Basile with DeCaro, indicating that DeCaro first hired Basile to steal and destroy his van, and then to kill his wife. James Torreg-rossa was acquainted with Richard DeCaro through the Gold’s Gym where both were members. (Tr. 1694.) When Torregrossa took a car to the service station where DeCaro worked, DeCaro asked him if he knew anyone who could take the van off his hands and then if he knew anyone who could take care of someone for him or “put a hit on somebody.” (Tr. 1697-69.)

Craig Wells was employed at the Old Orchard Standard Station by Dan and Rick DeCaro for about seven years. (Tr. 1732.) He met Basile through Doug Meyer, Basile’s half-brother. (Tr. 1735.) In January, 1992, Rick DeCaro asked Wells if he knew anyone who could take a vehicle off his hands. Wells introduced DeCaro to Basile. (Tr. 1739.) Wells provided transportation for Basile and arranged a “first meeting” between DeCaro and Basile in which Basile got out of Wells’s car into the DeCaros’ van. (Tr. 1740, 1743.) Wells testified that after the meeting, Basile reported to Wells that DeCaro had not only asked him to steal the van, but also to “do a hit” on DeCaro’s wife. When Wells told Basile that he could not kill Elizabeth because she was a friend of his, Basile stated that he would not do it but also that the money — around fifteen thousand dollars— was almost too good to pass up. (Tr. 1744.) On February 8, 1992, Basile told Wells that he had stolen the van, taken it to Cape Girardeau, and burned it. (Tr. 1749.) Basile then called Wells on Saturday morning, March 7, 1992, after Elizabeth’s death the day before, and told him, “It looks like I’ve gotten set up.” (Tr. 1760-61.) Wells talked to DeCaro after the murder, advising him that Basile had been arrested, that Elizabeth’s Chevrolet Blazer was located in Doug Meyer’s garage, and that Wells knew about the “first meeting” between Basile and DeCaro when DeCaro asked Basile to do a hit on his wife. DeCaro’s response was, “I never met Dan Basile.” (Tr. 1764.)

Susan Marie Jenkins, who had known Basile since junior high school, also testified that Basile had stolen and burned DeCaro’s van. She testified that on Friday, February 7, 1992, she drove Basile to four different locations in North St. Louis County, because Basile was looking for a garage for a van. Jenkins recounted that Basile offered a man at one of the houses one hundred fifty dollars for the use of a garage for a van, but the man said no. (Tr. 1806, 1809-10.) Jenkins further testified that when they returned to the home of Basile’s friend JoAnn, Basile stated “that he had a job to do for a friend, that it was an insurance scam. He had to take a van and steal it, get rid of it. He had keys to the van. He had handwritten instructions or directions from the owner of the van to the home. He had already been paid to take this van. He had been paid two hundred dollars.” (Tr. 1811.) Jenkins took Basile to the van at the DeCaro home where he took possession of it and drove it to Jackson, Missouri, where his sister lived. Jenkins followed him in her vehicle. He burned the van and they returned to St. Louis County. After hearing that Elizabeth DeCaro had been murdered, she cooperated with the police. (Tr. 1809-1836.)

There were many other people who also could connect Basile with Rick DeCaro. Roberta Paulus testified that in the last week of February or first week of March, 1992, she stabled her six horses in South County Stables where Basile was employed. During that time period, she identified DeCaro as having come to the stable to meet with Basile. She identified DeCaro from a photograph as the person who approached her looking for Basile. (Tr. 1864-68.) Edward Giegerich was an instructor at Vatterott College where Basile was a student in an electricity class. Because they both lived in Fenton, Giegerich provided Basile with transportation to and from class. Giegerich testified as follows:

Q. So he made a comment to you that he was going to do an insurance job for someone?

A. He didn’t say that he was necessarily going to do it. He said that he had an insurance job and that someone wanted him to take care of his wife.

Jeffrey Niehaus testified he had known Basile since junior high school. Basile called him and mentioned a pre-setup insurance scam in which he would have a key to the van. (Tr.1913-14.) Basile stated that if he could not find a garage he would take the van to southeast Missouri. (Tr.1914.) Niehaus received another call from Basile who was looking for a “throwaway” handgun about one week before March 6. He said he was to steal a GMC Jimmy in the same setup as the van. (Tr. 1915.) Niehaus received another call around 6:30 or 7:00 p.m. on March 6 from which he concluded that Basile “sounded pretty shook up,” saying things went wrong and were not “supposed to happen this way.” (Tr.1916.) He said he was to get a lot of money out of it, “in the double digits.” (Tr.1917.)

Kenneth Robinson saw Basile two times in January and March, 1992. (Tr.1936.) The first occasion was at the archery range when Basile told him that his brother knew someone who ran an Amoco who wanted his van to disappear for an insurance claim and wanted his wife to go with it. (Tr.1937.) Robinson replied that if Basile needed money he should pick up aluminum cans on the side of the highway. (Tr.1938.) Robinson further testified as follows:

Q. After March 6, 1992, when Elizabeth DeCaro was murdered, did you have occasion to meet Dan Basile in person again?

A. Oh, yeah, it was kind of scary.

Q. When was that?

A. It was 2:15 in the morning. As I was trying to say before, he showed up at my door. I was sleeping.

Q. And what, if anything did he say?

A. I opened the door. I was standing there in my underwear, kind of bleary. He says, “Can I come in? Can I come in?” I said, “Yeah. What’s wrong?” I recognized him and said “Yeah, what’s wrong?” He came in the door, sat on the floor. I said, “What’s the matter?” He said, his exact words were “I’m in deep shit.” I said, “What are you talking about?”

A. He said they think — “They’re after me.” I said, “Who’s after you?” He said “The cops.” I said, “Oh, man. What did you do?” He had said, “They think I did the van and the lady.” I said, “Oh, you have got to get out of my house. I can’t have no trouble. I got a kid sleeping here....” (Tr.1942, 1944.)

Lt. Patrick D. McCarrick testified that the disassembled DeCaro Blazer was located in a garage at 122 Samarra Estates Drive, Fenton, Missouri. (Tr.2059.) He described a photo showing the frame and axles and wheels, pieces of the fiberglass body and the engine and transmission located near one end of the garage. (Tr. 2060.) At the same location, he discovered a portable stereo unit described as missing from the DeCaro residence. (Tr.2064-65.)

As described supra, both Elizabeth Burrows and Kathy and Thomas Ortinau saw a blazer with RIK-LIZ license plates while driving in St. Charles County and on Interstate 270, respectively. (Tr.2081-84, 2148-49, 2152.) Burrows identified Basile as the driver of the vehicle.

Richard Borak testified that Basile gave him a stereo identified as missing from the DeCaro home. (Tr.2092, 2094-95.) He testified that Basile told him, “I did this lady.” (Tr.2096.)

Douglas Meyer, Basile’s half brother testified that he first saw the Blazer during the week of March 2-6, 1992, when it pulled up at the South County Stables where he and Basile were doing electrical work. (Tr. 2164-65.) Basile talked to the man who got out of the vehicle. Meyer identified this man as Richard DeCaro. (Tr. 2166-67). After DeCaro departed, Basile had money which he did not have before, and he told Meyer he got it from the visitor. On the day of the murder, March 6, 1992, at 7:00 or 7:30 p.m., Meyer had a call from Basile who wanted to borrow a garage to work on his vehicle. Meyer did not know that Basile was going to park the Blazer involved in the murder in the garage. (Tr. 2175.) At about 10:30 p.m., Basile went by Meyer’s house and the two of them went to an establishment called “Family Affair” for a few drinks. (Tr. 2176.) On Monday, March 9, Meyer went to the garage and found a dismantled Blazer inside. Basile had been the only one working inside the garage. (Tr. 2225-26). Basile told him it was the insurance job he was doing. (Tr. 2226, 27.) Basile also told Meyer it was him or her and he was not going back to jail. Basile told Meyer that the Blazer belonged to the DeCaros and that Richard DeCaro had given him the keys to it. (Tr. 2230, 2235.) Meyer told Basile that he was going to turn him in and contacted the police. (Tr. 2233.)

The Court believes that the properly admitted evidence at trial amply supported the jury’s guilty verdict. Considering the totality of the circumstances of the proceedings, the Court finds that the strength of the evidence against Basile negates any possibility that the jury’s verdict reasonably was affected by the prosecutor’s improper statements.

The Missouri Supreme Court analyzed the third part of this claim as follows:

Basile argues that the prosecuting attorney was permitted to make improper adverse inference arguments from defendant’s failure to call his father, Jack Basile, to testify. The specific arguments were as follows:

Now, we didn’t have Jack Basile here to testify, his dad. They could call him if they want, it’s his family. Neither one of us called him. The state has an ethical obligation if we call a witness — .... [Tr. 2405.]

If they wanted you to hear from Jack Basile they could have got him here. They didn’t bring him here.... [Tr. 2407.]

Now, we already talked about some of the witnesses not here, Gayle Dor-man, Desi, his sister, they are available as much to the defense as they are — [Tr. 2442.]

Basile’s lawyer interrupted to object to the above statements and to move for a mistrial. The motions and objections were overruled. Adverse inferences for failure to call witnesses are permissible if the witness is peculiarly available to the defendant, and a witness is said to be peculiarly available if he or she is one who would be logically expected to testify in a defendant’s favor, such as a friend or relative. State v. Neil, 869 S.W.2d 734, 739 (Mo. banc 1994). In this case, the State was entitled to argue the adverse inference as to defendant’s father and sister.

As to Gayle Dorman, a girlfriend of defendant’s foster brother, an adverse inference argument would have been impermissible. However, the State did not make an adverse inference argument as to her. The prosecuting attorney, prior to being interrupted, only indicated that Basile’s sister and Ms. Dorman were equally available to both parties. The State never completed the statement regarding what adverse inferences might be drawn from Gail Dorman’s failure to testify and, therefore, no prejudice resulted.

Defendant also alleges that the prosecutor improperly argued in response to a defense counsel statement that she was not Perry Mason, as follows: “As I recall, all of Perry Mason’s clients were not guilty, and you didn’t hear her say that Dan didn’t do it.” [Tr. 2432.] Ba-sile’s objection to this statement was sustained. He now claims that this statement warranted a mistrial because it shifted the burden of proof and compromised the attorney/client privilege. The fact that the objection was sustained was sufficient to correct any error in the comment. State v. Shum, 866 S.W.2d 447, 461 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). Defendant fails to establish that he was entitled to a mistrial, therefore counsel was not ineffective in failing to make such a motion.

Basile, 942 S.W.2d at 350-51. Basile contends that in the first three statements the prosecutor was allowed to make improper adverse inferences. In U.S. v. Cook, 771 F.2d 378 (8th Cir.1985), petitioner asserted that he had been prejudiced by the prosecutor’s urging the jury to draw an adverse inference from the fact that his fiancee did not testify on his behalf. The Eighth Circuit stated:

As a general matter, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would have been unfavorable. But such a presumption is to be cautiously applied, and where the witness was apparently equally available to both sides, we seriously doubt whether any presumption should flow from the failure of either party to call such witness. In the present case, there was no showing whatsoever on the part of the government that it was peculiarly within [petitioner’s] power to produce [his fiancee] as a witness; it therefore was clearly improper for the prosecutor to argue to the jury that it may draw any adverse inference.

Id. 382-83 (internal quotations and citations omitted). The court went on to find that the compelling evidence of petitioner’s guilt precluded the court’s finding that these comments cast doubt upon the jury’s verdict. Id. at 383. In this case, the Government made no showing that either Desi, Basile’s sister, or Jack, his father, were peculiarly available to Basile, other than by pointing out that they were members of his family. See U.S. v. Hoenscheidt, 7 F.3d 1528, 1531 (10th Cir.1993) (“A witness may be peculiarly available to the other side if the other side alone has physical control over the witness or if the witness would be hostile to or biased against the calling party.”) Furthermore, Basile argues that his father had told the police that he had not given his son a gun, as Basile claimed, and that the two men did not have a good relationship. The Court believes that while the prosecutor’s references to Desi were not improper, his suggestion that the jury draw an adverse inference from Basile’s not calling his father to testify on his behalf may have been improper because it appears that Jack Ba-sile was not peculiarly available to Basile. Even if these statements regarding Jack Basile were improper, however, the Court finds that these remarks “urging the jury to draw an additional inculpatory inference from the absence of a single witness” do not cast doubt upon the jury’s verdict. Cook, 771 F.2d at 383.

Basile further asserts that the prosecutor’s “Perry Mason” remark impermissibly violated his right against self-incrimination and attacked defense counsel. The Court finds that this statement was improper because the prosecutor attempted to shift the burden of proof from the Government to Basile. See Clark v. Wood, 823 F.2d 1241, 1250 (8th Cir.1987) (finding improper prosecutor’s attempt to shift the burden of proof to defendant by suggesting that he should have rebutted the state’s medical evidence). The Court disagrees with Basile’s assertion that this remark violated his right against self-incrimination, however. While the prosecutor improperly indicated that Basile’s lawyer should have told the jury that Basile was innocent, he did not suggest in any way that Basile should have testified in his own defense. Moreover, the Court believes that the prosecutor’s statement, while improper, did not reasonably affect the outcome of the trial, in light of the overwhelming evidence of Basile’s guilt.

The Missouri Supreme Court analyzed the fourth part of this claim as follows:

Basile claims plain error occurred because the prosecuting attorney was allowed to personally attack and denigrate defense counsel. The relevant excerpts from the transcript read as follows:

[PROSECUTOR]: Self-defense, protection, bull. And think of the physical evidence you heard from Mr. Buel. He says the bullet is a little defective, like something is wrong with the gun. Like the kind of gun—

[DEFENSE COUNSEL]: Objection, he indicated that the mutilation was caused by hitting bone. That was his testimony. This is a misstatement of facts.

[PROSECUTOR]: Now it’s open field on my argumen