Noel v. Norris (194 F. Supp. 2d 893, 2002)

MEMORANDUM OPINION AND ORDER

SUSAN WEBBER WRIGHT, Chief Judge.

Now before the Court is petitioner’s amended petition for writ of habeas corpus [docket no. 30] and respondent’s response [docket no. 39]. Also before the Court is the motion of respondent to preclude petitioner from calling witnesses prior to compliance with 28 U.S.C. § 2254 [docket no. 38], petitioner’s responses [docket nos. 46 & 49], and respondent’s reply [docket no. 52],

Respondent contends that petitioner is not entitled to an evidentiary hearing or to call witnesses in support of his habeas corpus petition because his claims are either procedurally defaulted and petitioner has not shown compliance with 28 U.S.C. § 2254(e), or were raised in state court and petitioner has not shown compliance with 28 U.S.C. § 2254(d). Petitioner responds that a hearing is necessary on the following grounds for relief, as set forth in his habeas petition: Ground 2 (Victim Impact Evidence), Ground 3 (Change of Venue), Ground 4 (Improper and Inflammatory Testimony), Ground 5 (False Evidence and/or Argument), Ground 8 (Newly Discovered Evidence), Ground 10 (Newly Discovered Evidence), Ground 14 (Cumulative Effect of Errors), and Ground 15 (Ineffective Assistance of Counsel). Petitioner states that Ground 1 (Mandatory Review of Entire Record by Arkansas Supreme Court), Ground 6 (Improper and Inflammatory Closing Arguments), Ground 7 (Statutory Scheme Unconstitutionally Vague), and Ground 9 (Improper Argument and Questioning) may be resolved on the record alone.

After careful consideration, and for the reasons stated below, the Court finds that petitioner’s amended petition for writ of habeas corpus must be denied in its entirety, and respondent’s motion to preclude petitioner from calling witnesses prior to compliance with 28 U.S.C. § 2254 must be granted.

I. Background

A brief summary of the facts of this case is as follows. On the evening of June 4, 1995, petitioner Riley Dobi Noel, Terry Carroll, Curtis Cochran, and Tracy Callo-way went to the home of Mary Hussian in Little Rock. Present in the home that night were Mary Hussian, three of her children: Malak Hussian, age 10; Mustafa Hussian, age 12; and Marcel Young, age 17; and Marcel Young’s boyfriend/fiance, Kyle Jones. Petitioner shot the three children in the- head as they lay on the floor in the front room of the house. Meanwhile, Terry Carroll attempted to shoot Mary Hussian with a shotgun. The shotgun jammed, however, and Mary Hussian was able to wrestle it away from Terry Carroll. Kyle Jones escaped unharmed through a bathroom window. Much of the incident was recorded when Mary Hussian called 911. It was the state’s theory of the case that petitioner committed the murders in retaliation for the death of his brother, Cornelius Gannaway, during the week pri- or. Petitioner apparently believed that Mary Hussian’s eldest daughter, Yashica Young, with whom his brother had a child, had “set up” his brother in a drive-by shooting.

In July, 1996, following an eleven-day trial in the Circuit Court of Pulaski County, Arkansas, petitioner was convicted of three counts of capital murder and one count of attempted capital murder. Petitioner was sentenced to death by lethal injection on the capital murder convictions and to sixty years on the attempted capital murder conviction. Petitioner appealed, and the Arkansas Supreme Court affirmed his convictions and sentence on January 15, 1998. Petitioner then pursued state post-conviction relief, which was denied. The Arkansas Supreme Court affirmed the denial of post-conviction relief on September 14, 2000. Petitioner then filed a timely petition for writ of habeas corpus with this Court.

II. Standard of Review

28 U.S.C. § 2254 permits a prisoner in state custody to petition a federal court 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). The extent to which a federal court may actually consider a petitioner’s federal claims, however, has been limited by the Antiter-rorism and Effective Death Penalty Act of 1996 (“AEDPA”), as outlined below.

A. Federal Habeas Review of Claims Adjudicated on the Merits in State Court

A petitioner may bring a federal habeas petition to challenge a state court’s application of federal law or to challenge a state court’s factual findings. Despite this broad statement, a federal court’s power to grant a state prisoner’s application for a writ of habeas corpus on claims adjudicated on the merits in state court is in fact quite constrained. Terry Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (concurring opinion of O’Connor, J., for the Court). Pursuant to the AEDPA, with respect to any claim adjudicated on the merits in state court, habeas relief shall, not be granted unless the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “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).

1. Challenging the State Court’s Application of Federal Law

28 U.S.C. § 2254(d)(1) permits a petitioner to seek relief on the ground that a state court’s decision was “contrary to” or an “unreasonable application of’ clearly established federal law as determined by the Supreme Court. A state court’s decision will be viewed as “ ‘contrary to’ clearly established federal law if the state court has applied a rule that directly contradicts Supreme Court precedent or has reached a result opposite to a result reached by the Supreme Court on ‘materially indistinguishable’ facts.” Kinder v. Bowersox, 272 F.3d 532, 538 (8th Cir.2001) (citing Terry Williams, 529 U.S. at 405, 120 S.Ct. 1495 (concurring opinion of O’Connor, J., for the Court)). A state court’s decision will be viewed as an “unreasonable application” of clearly established federal law “if the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the [petitioner’s] case.” Terry Williams, 529 U.S. at 413, 120 S.Ct. 1495 (concurring opinion of O’Connor, J., for the Court). “[A] federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Id. at 409, 120 S.Ct. 1495 (emphasis supplied). “[A]n unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 410, 120 S.Ct. 1495. Thus, a state court’s application of federal law might be erroneous, in this Court’s independent judgment, yet not objectively unreasonable. Kinder, 272 F.3d at 538.

2. Challenging the State Court’s Factual Findings

28 U.S.C, § 2254(d)(2) permits a petitioner to seek relief on the ground that, in light of the evidence before the state court, the state court made an unreasonable determination of the facts. However, the state court’s findings are subject to a deferential standard of review. Kinder, 272 F.3d at 538. In particular, a state court’s factual determinations are presumed correct unless the petitioner can rebut those findings through “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); James v. Bowersox, 187 F.3d 866, 871 (8th Cir.1999).

B. Federal Habeas Review of Claims Not Adjudicated on the Merits in State Court

A federal court may be prevented from reviewing a petitioner’s habeas claims if the petitioner failed to exhaust or procedurally defaulted the claims before the state court. In other words, as a matter of comity and federalism, the state courts should have a proper opportunity to address a petitioner’s claims of constitutional error before those claims are presented to the federal court. See Coleman v. Thompson, 501 U.S. 722, 729-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (describing and discussing interplay of exhaustion and procedural default doctrines).

1. Exhaustion of Remedies

Federal habeas relief shall not be granted “unless it appears that the applicant has exhausted the remedies available” in state court. 28 U.S.C. § 2254(b)(1)(A); Krimmel v. Hopkins, 56 F.3d 873, 875-76 (8th Cir.1995). This exhaustion requirement may be excused only if it would be futile for the federal court to require exhaustion; i.e. where there are no available state procedures to be exhausted or where the state procedures are ineffective. 28 U.S.C. § 2254(b)(1)(B)(i)-(ii).

To satisfy the exhaustion requirement, a petitioner must “fairly present” his claims to the state courts. Krimmel, 56 F.3d at 875-76. A claim is “fairly presented” to the state courts, and thus preserved for federal habeas review, when the petitioner has properly raised both the factual and legal premises of the claim in state court proceedings. Krimmel, 56 F.3d at 876. The petitioner must afford the highest state court “a fair opportunity to rule on the factual and theoretical substance of his claim.” Id.

“In order to fairly present a federal claim to the state courts, the petitioner must have referred to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue in a claim before the state courts.” McCall v. Benson, 114 F.3d 754, 757 (8th Cir.1997) (internal quotation omitted). It is not necessary to cite “book and verse” on the federal constitution — it is sufficient that the constitutional substance of a claim is apparent. Wyldes v. Hundley, 69 F.3d 247, 251 (8th Cir.1995). The same factual arguments and legal theories, however, must be pres-ent in both the state and federal claims. Schneider v. Delo, 85 F.3d 335, 339 (8th Cir.1996); see, e.g., Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (“The claim that an indictment is invalid is not the substantial equivalent of a claim that it results in an unconstitutional discrimination.”). The federal court may review closely related claims containing an “arguable factual commonality.” Anderson v. Groose, 106 F.3d 242, 245 (8th Cir.1997).

2. Procedural Default

Although a petitioner may technically be able to meet the exhaustion requirement, the federal court may still be prevented from considering a petitioner’s federal habeas claim if the claim is procedurally defaulted. Coleman, 501 U.S. at 729-32, 111 S.Ct. 2546 (“[A] habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.”); Krimmel, 56 F.3d at 875. A claim may be lost due to procedural default at any level of state court review: at trial, on direct appeal, or in the course of state post-conviction proceedings. Kilmartin v. Kemna, 253 F.3d 1087, 1088 (8th Cir.2001).

The procedural default doctrine is in part premised on the principle that a federal court is precluded from considering the federal legal or federal constitutional dimensions of any claim that a state court previously resolved on an independent and adequate state ground. Murray v. Hvass, 269 F.3d 896, 898 (8th Cir.2001). An independent and adequate state ground may include an “independent and adequate state procedural ground,” for example, a state court determination that a claim has been lost due to default. Id. Thus, the federal court is barred from reviewing a petitioner’s habeas claim under the doctrine of procedural default if: (1) the petitioner has actually violated an applicable state procedural rule; (2) the procedural violation provides an “adequate” and “independent” state ground for denying for denying the petitioner’s federal constitutional claim; (3) the highest state court to rule on the claim clearly and unambiguously relied on the procedural violation as its reason for rejecting the claim; (4) the state has adequately and timely asserted the procedural default as a bar to federal habeas relief; (5) the petitioner cannot “excuse” the procedural default. James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure § 26.1 (3d ed.1998).

A petitioner’s claim may also be procedurally defaulted for failure to present the claim to the state courts entirely. “[W]here a federal habeas petitioner raises a claim which has never been presented in any state forum, a federal court may properly determine whether the claim has been procedurally defaulted under state law, such that a remedy in state court is unavailable .... ” Harris v. Reed, 489 U.S. 255, 268-270, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (O’Connor, J., concurring); 28 U.S.C. § 2254(c). In other words, if the petitioner “failed to exhaust state remedies and the [state] court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred[,]” for purposes of federal habeas review, the petitioner’s claim is considered procedurally defaulted. Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. 2546. Here, too, the federal court cannot consider the petitioner’s claim unless the petitioner can “excuse” the procedural default.

A petitioner can “excuse” the procedural default of his claims in state court, and obtain federal habeas review of those claims, only if the petitioner can demonstrate either: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that the failure to consider the claim will result in a fundamental miscarriage of justice, such as the conviction of one who is actually innocent. Murray, 269 F.3d at 898; Farm v. Bowersox, 247 F.3d 841, 843 (8th Cir.2001). “Cause” for the procedural default exists, for example, when counsel has been constitutionally ineffective or when an objective, external impediment prevented counsel from complying with the state’s procedural rule. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). To demonstrate prejudice, a petitioner must show “not merely that the errors at trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting the entire trial with error of constitutional dimensions ... [such that he] was denied fundamental fairness at trial.” Murray, 477 U.S. at 494, 106 S.Ct. 2639 (internal quotation and punctuation omitted).

C. Availability of Evidentiary Hearing on Federal Habeas Review

The AEDPA has significantly restricted the availability of evidentiary hearings on federal habeas review. Prior to the AEDPA, new evidentiary hearings were required in several circumstances. See Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) (enumerating circumstances where evidentiary hearing required, including when the material facts were not adequately developed in state court); Keeney v. Tamayo-Reyes, 504 U.S. 1, 11, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (narrowing Townsend by requiring petitioner to show cause and prejudice); 28 U.S.C. § 2254(d) (1995) (pre-AEDPA). The AEDPA, by comparison, permits evidentiary hearings on federal habeas review, although under very limited circumstances. In particular, the opening clause of 28 U.S.C. § 2254(e)(2) provides: “If the applicant has failed to develop the factual basis of a claim in State court proceedings, the [federal district] court shall not hold an evidentiary hearing on the claim unless the applicant [satisfies certain criteria].” Thus, to determine whether an evidentiary hearing is appropriate, this Court must “ask first whether the factual basis [of petitioner’s claim] was indeed developed in state court, a question susceptible, in the normal course, of a simple yes or no answer.” Michael Wayne Williams v. Taylor, 529 U.S. 420, 434, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).

If the factual basis of a claim was not developed in state court, the district court must determine whether it was the petitioner who failed to develop the factual basis of his claim. “[A] failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the [petitioner] or the [petitioner’s] counsel.” Michael Wayne Williams, 529 U.S. at 432, 120 S.Ct. 1479. “[T]he question is not whether the facts could have been discovered but instead whether the petitioner was diligent in his efforts.” Id. at 435, 120 S.Ct. 1479. “Diligence for the purposes of the opening clause [of § 2254(e)(2)] depends upon whether the [petitioner] made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.” Id. Where there has been no lack of diligence on petitioner’s part a petitioner is not charged with failure to develop the factual basis of the claim as described in the opening clause of § 2254(e)(2), and is thus “excused from showing compliance with the balance of the subsection’s requirements.” Id. at 437, 120 S.Ct. 1479. In such a situation, a petitioner is not precluded from an evidentiary hearing under that subsection.

However, if the petitioner fails to exercise diligence, he has contributed to the absence of a full and fair adjudication in state court. Michael Wayne Williams, 529 U.S. at 437, 120 S.Ct. 1479. In fact, the plain language of the statute prohibits an evidentiary hearing to develop a claim in federal court unless the claim meets the stringent requirements set forth in § 2254(e)(2)(A) & (B). Briefly stated, where the petitioner has failed to develop the factual basis of a claim in state court, the petitioner cannot obtain an evidentiary hearing unless the petitioner demonstrates: (1) the claim relies on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, or (2) the claim relies on facts that could not have been previously discovered through the exercise of due diligence. 28 U.S.C. § 2254(e)(2)(A)(i)-(ii). If the petitioner can satisfy either of these two criteria, an evidentiary hearing is still prohibited unless the petitioner can show by clear and convincing evidence that no reasonable factfinder would have found him guilty but for the alleged constitutional error. 28 U.S.C. § 2254(e)(2)(B); Michael Wayne Williams, 529 U.S. at 440, 120 S.Ct. 1479; Hatcher v. Hopkins, 256 F.3d 761 (8th Cir.2001).

If the factual basis of a claim was developed in state court, a district court may, in its discretion, conduct an evidentiary hearing to assist in ascertaining whether federal habeas relief is appropriate. Valdez v. Cockrell, 274 F.3d 941, 952 (5th Cir.2001); Morris v. Dormire, 217 F.3d 556, 559 (8th Cir.2000) (district court’s decision on holding evidentiary hearing reviewed for abuse of discretion).

III. Discussion of Claims for Which Petitioner Requests Evidentiary Hearing

A. Ground 2: Victim Impact Evidence

In Ground 2, petitioner asserts that the introduction of victim impact testimony by Mary Hussian during the penalty phase of his trial violated his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Petitioner complains his constitutional rights were violated because: (1) Arkansas Code Annotated § 5^4-602(4) (“Victim Impact Statute”), which permits the presentation of victim impact evidence, creates a new aggravator outside the state statutory scheme of aggravators set forth in Arkansas Code Annotated § 5-4-604; (2) the presentation of victim impact evidence constitutes a departure from the normal statutory sentencing scheme in which aggravating and mitigating factors are weighed, and permits the jury to impose death for an impermissible reason such as sympathy or indignation; (3) petitioner’s crime was committed prior to the enactment of the Victim Impact Statute, and the retroactive application of that statute to petitioner violates the ex post facto constitutional prohibition; and (4) victim impact evidence is irrelevant to the aggravating or mitigating circumstances raised by the parties. The Court will address these alleged constitutional violations in turn.

1. Creation of New Aggravator by Victim Impact Statute

Petitioner argues that the Victim Impact Statute, Ark.Code Ann. § 5-4-602(4), which permits the presentation of victim impact evidence, creates a new aggravator outside the state statutory scheme of aggravators set forth in Arkansas Code Annotated § 5-4-604. Respondent states that this issue is procedurally barred from this Court’s consideration due to petitioner’s failure to fairly present it in state court. On petitioner’s direct appeal, the Arkansas Supreme Court stated: “Noel’s due process claim that victim-impact evidence under the statute created a new aggravating circumstance was not argued to the trial court and, thus, is not preserved for our ■ review.” Noel, 960 S.W.2d at 441.

Petitioner asserts that this argument was in fact presented to the trial court, and that the Arkansas Supreme Court overlooked petitioner’s victim impact pleadings filed in the trial court and abstracted on direct appeal. This Court has reviewed petitioner’s victim impact pleadings, and believes petitioner’s “Second Supplemental Motion to Prevent Introduction of Victim Impact Statements” could fairly be construed to raise the argument that the Victim Impact Statute creates a new aggravating factor outside the statutory scheme of aggravating factors and violates due process. The argument section of petitioner’s brief on direct appeal states: “In enacting Ark.Code Ann. § 5-4-602(4) (Repl.1994), pursuant to which victim impact evidence is introduced, the legislature improperly created a new aggravating circumstance, victim impact, to a procedural statute. Placing it inside this procedural statute violates the due process clause.”

Thus, this Court believes it is appropriate to reach the merits of petitioner’s claim, as the state’s highest court had a fair opportunity to consider the claim and apparently failed to do so. In Arkansas, the legislature has provided an exclusive list of aggravating circumstances upon which the state may rely in seeking the death penalty. See Ark.Code Ann. § 5-4-604. Petitioner complains that the legislature improperly created a new aggravating circumstance in enacting the Victim Impact Statute. Of course, the legislature may act to establish a new aggravating factor. However, this Court does not believe that the Arkansas legislature intended to create a new aggravating circumstance by enacting the Victim Impact Statute. A court must assume that the legislature was aware of the earlier act when it passed the later one. Johnson v. State, 331 Ark. 421, 961 S.W.2d 764, 766 (1998). Presumably, then, the legislature was aware of the exclusive list, as well as the requirement that the death penalty be narrowly circumscribed, and did not intend to make victim impact a factor in that list. Further, according to the Arkansas Supreme Court, “[B]y expanding the scope of permissible [victim impact] evidence during the penalty phase, the General Assembly has not ... added a new aggravating circumstance.” Nooner v. State, 322 Ark. 87, 907 S.W.2d 677, 689 (1995). That the Arkansas legislature has provided for the presentation of victim impact evidence simply gives effect to what is constitutionally permissible under Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). The mere fact that the legislature has provided for the presentation of victim impact evidence does not mean that the victim impact evidence will be so unduly prejudicial as to render the trial fundamentally unfair and violate due process. See id at 825, 111 S.Ct. 2597. Therefore, petitioner is not entitled to relief on this legal aspect of his victim impact claim. This Court further determines that, because this claim pertains to a matter of law, it is not necessary to conduct an evidentiary hearing on this issue.

2. Departure from Weighing of Aggravating and Mitigating Factors

Petitioner next argues that the presentation of victim impact evidence constitutes a departure from the normal statutory sentencing scheme in which aggravating and mitigating factors are weighed, and permits the jury to impose death for an impermissible reason such as sympathy or indignation. According to petitioner, the introduction of matters other than the enumerated aggravating factors specified in Arkansas Code Annotated § 5-4-604 violates due process. Petitioner further argues that the scheme, as written and applied, violates the Eighth Amendment because it broadens, rather than channels, the jury’s discretion in making its determination whether to impose the death penalty-

Because this claim was adjudicated on the merits in state court, this Court must determine whether the Arkansas Supreme Court’s decision on this point is contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1). The Arkansas Supreme Court held that under Payne v. Tennessee, and as expressed by the legislature’s enactment of the Victim Impact Statute, victim impact evidence is relevant evidence which informs the jury the toll the murder has taken on the victim’s family. Noel, 960 S.W.2d at 446. The Arkansas Supreme Court further found that the victim impact testimony presented at petitioner’s trial did just this, and was not so unduly prejudicial as to render the trial fundamentally unfair in violation of the Due Process Clause. Id. at 447. Finally, petitioner’s Eighth Amendment argument cannot survive the United States Supreme Court’s statement that “the Eighth Amendment erects no per se bar” to the admission of victim impact evidence. Payne, 501 U.S. at 827, 111 S.Ct. 2597. Aggravating circumstances give effect to Eighth Amendment protections by narrowing the class of death eligible murders, and the introduction of victim impact evidence does not eliminate that effect. Tuilaepa v. California, 512 U.S. 967, 979-80, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). “[T]he sentencer may be given unbridled discretion in determining whether the death penalty should be imposed after it is found that the defendant is a member of the class eligible for that penalty.” Id. (internal quotations omitted). “A capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision.” Id. at 979, 114 S.Ct. 2630.

The Arkansas Supreme Court did not apply a rule in direct contradiction to United States Supreme Court precedent — in fact, the Arkansas Supreme Court correctly identified and reasonably applied the United States Supreme Court’s governing legal standards concerning victim impact evidence. Petitioner is not entitled to federal habeas relief on this claim. This Court further determines that, because this claim can be resolved on the record alone, it is not necessary to conduct an evidentiary hearing on this issue.

3.Ex Post Facto Constitutional Prohibition

Petitioner asserts that the Victim Impact Statute is unconstitutional as applied to petitioner under the ex post facto clause of the United States Constitution because it permits the introduction of “victim impact” evidence retroactively in death cases where the crime was committed prior to the enactment of the statute. Respondent asserts that this claim is procedurally barred due to petitioner’s failure to present it in state court. Petitioner responds that his procedural default may be excused either due to the failure of the Arkansas Supreme Court to conduct mandatory review of the record on direct appeal or due to ineffective assistance of counsel. For the reasons stated in this Court’s discussion of Ground 1, infra, the Court finds that the Arkansas Supreme Court’s failure to conduct mandatory review on direct appeal does not establish cause to excuse petitioner’s procedural default. Likewise, as explained in this Court’s discussion of Ground 15, infra, petitioner’s ineffective assistance of counsel claim does not establish cause for his procedural default. Even if this Court were to consider petitioner’s claim on its merits, petitioner would not be able to obtain relief. Procedural changes that “work to the disadvantage of the accused do[ ] not violate the ex post facto clause.” Collins v. Youngblood, 497 U.S. 37, 45, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). In Payne, the United States Supreme Court intimated that a state’s decision to permit victim impact evidence at sentencing was a procedural matter. Payne, 501 U.S. at 824-25, 111 S.Ct. 2597. However the claim is considered, this Court finds that, because this claim pertains to a matter of law, it is not necessary to conduct an evidentiary hearing on this issue.

4. Relevance of Victim Impact Evidence to Aggravating or Mitigating Circumstances

For his final victim impact claim, petitioner asserts that the victim impact evidence was not relevant to the aggravating or mitigating circumstances raised by the parties. Respondent asserts that this argument is procedurally defaulted, while petitioner asserts that it is apparent from the Arkansas Supreme Court’s opinion that the Arkansas Supreme Court considered his relevancy argument on appeal. See Noel, 960 S.W.2d at 446-47. Even if petitioner’s argument is not procedurally defaulted, petitioner cannot obtain relief. As a matter of law, the United States Supreme Court has explicitly held that victim impact evidence is, as a general matter, relevant. Payne, 501 U.S. at 827, 111 S.Ct. 2597. In petitioner’s case, the Arkansas Supreme Court found that the victim impact testimony was relevant: “[T]he State sought to show the human cost of the murders on Mary Hussian, much the same as the defense sought to show, in mitigation, the human toll on Noel’s mother in the event of a State execution.” Noel, 960 S.W.2d at 447. If indeed the Arkansas Supreme Court found the victim impact testimony relevant, that determination was not contrary to, nor did it involve an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. See Payne, 501 U.S. at 827, 111 5.Ct. 2597. Nor, in the context of the testimony at petitioner’s sentencing phase and the mitigating factors submitted to the jury, was it an unreasonable determination of the facts. Finally, to the extent petitioner claims he can excuse any procedural default due to the failure of the Arkansas Supreme Court to conduct mandatory review of the record on direct appeal or due to ineffective assistance of counsel, this Court finds those claims unavailing as explained in this Court’s discussion of Ground 1 and Ground 15, infra. However this claim is considered, this Court finds that it is either unnecessary to conduct an evidentiary hearing because this claim can be resolved on the record alone, or alternately that petitioner has not satisfied the requirements of 28 U.S.C. § 2254(e)(2).

B. Ground 3: Change of Venue

In Ground 3, petitioner asserts that the trial court’s denial of his motion for a change of venue denied him a fair and impartial jury and a fair trial in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Specifically, petitioner asserts that a change of venue was warranted due to “excessive prejudicial pretrial publicity.” In support of this assertion, petitioner refers to a “high percentage of prospective jurors” who acknowledged that their perceptions of petitioner were “tainted” by pretrial publicity.

Respondent agrees that petitioner raised the issue of venue in his direct appeal. Noel, 960 S.W.2d at 441. However, respondent argues that petitioner’s change of venue claim is procedurally barred because the federal constitutional dimensions of petitioner’s habeas venue claim were not raised before the state court. This Court disagrees. Petitioner cited at least two eases to support his venue claim before the Arkansas Supreme Court which make the constitutional substance of his claim apparent. See Arkansas Gazette Co. v. Goodwin, 304 Ark. 204, 801 S.W.2d 284, 285 (1990) (“The Due Process Clause of the fourteenth amendment guarantees the right of a fair trial by a panel of impartial jurors to the criminally accused in state criminal prosecutions.... If, due to pretrial publicity, an impartial jury cannot be seated to try a defendant, his right to a fair trial is violated.”); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). As previously stated, a federal claim is fairly presented to the state courts if the petitioner has referred to a federal constitutional case or a state case raising a pertinent federal constitutional issue. McCall, 114 F.3d at 757.

Petitioner’s claim is procedurally barred, however, due to petitioner’s failure to present the particular “high percentage of prospective jurors” theory to the state trial court. As stated by the Arkansas Supreme Court, “Noel claims that a high percentage of prospective jurors were successfully challenged for cause due to the publicity surrounding the murders and that this fact evidenced the insidious persuasiveness of the adverse publicity. Noel, however, failed to raise this argument to the trial court, and we will not address it for the first time on appeal.” Noel v. State, 960 S.W.2d at 442; see also Robinson v. State, 317 Ark. 407, 878 S.W.2d 405, 407 (1994) (“We have repeatedly stated we will not address issues raise for the first time on appeal.”). Because petitioner did not fairly present this factual argument to the state courts, this Court cannot now consider it on federal habeas review, absent a demonstration of cause and prejudice or actual innocence. Petitioner generally asserts ineffective assistance of counsel as cause for this procedural default; however, for the reasons explained in this Court’s discussion of Ground 15, infra, petitioner’s allegations of ineffective assistance of counsel do not constitute cause to excuse his procedural default.

To the extent petitioner wishes this Court to review the non-defaulted remainder of his claim that the trial court should have granted his motion for change of venue due to “excessive prejudicial pretrial publicity,” the Court must do so in accordance with the standards set forth in 28 U.S.C. § 2254(d)(1) — (2) & (e)(1). Petitioner does not specify the particular manner in which he challenges the state courts’ legal determination on the change of venue issue. Because petitioner cites several United States Supreme Court cases outlining when a change of venue is constitutionally required, and asserts such a change was warranted in his case, this Court assumes petitioner complains that the state court applied the correct law to his situation in an unreasonable fashion or with an unreasonable result, or that the state court decided his case differently from a Supreme Court case with materially indistinguishable facts.

In evaluating whether a change of venue is warranted, the United States Supreme Court has stated that “[t]he constitutional standard of fairness requires that a defendant have ‘a panel of impartial, “indifferent” jurors’.... Qualified jurors need not, however, be totally ignorant of the facts and issues involved.” Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). In support of his motion for change of venue, petitioner submitted the affidavits of two Pulaski County registered voters who asserted in concluso-ry fashion that it would not be possible for petitioner to receive a fair trial in Pulaski County due to the extensive pretrial publicity they had witnessed on television and in the newspaper. Petitioner’s counsel also made general reference to the publicity in argument before the trial court, but did not cite specific instances. The state court found these affidavits, and counsel’s argument, inadequate to demonstrate sufficient prejudicial publicity to support a change of venue, and concluded the trial court had not abused its discretion in denying the change of venue motion. Noel, 960 S.W.2d at 441-42.

This Court cannot say that the state court’s determination was an unreasonable application of clearly established law. The level of prejudicial publicity warranting a change of venue in the cases cited by petitioner is far greater than that petitioner presented before the state courts. Compare, e.g., Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (actual prejudice rendered fair trial impossible where barrage of inflammatory publicity immediately before trial included information on defendant’s prior convictions, his confession to burglaries and murders including the one for which he was tried, and unaccepted offer to plead guilty, and eight of twelve jurors had formed opinion defendant was guilty before trial began); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (prejudice presumed where defendant confessed under police interrogation to the murder and twenty minute film of confession was aired three times); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Discussing these same cases, the United States Supreme Court stated: “The proceedings in these cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob. They cannot be made to stand for the proposition that juror exposure to information about a state defendant’s prior convictions or news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.” Murphy, 421 U.S. at 799, 95 S.Ct. 2031.

Although a juror’s mere assurance of impartiality may not be dispositive, petitioner also fails to show that he was in fact prejudiced due to pretrial publicity in the selection of the specific jurors in his case. In considering petitioner’s change of venue claim, the Arkansas Supreme Court stated: “[T]his court has held that a denial of a change of venue motion will not be reversed if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court. All of the jurors in the instant case pledged that they could decide the case based solely on the evidence.” Noel, 960 S.W.2d at 442 (internal punctuation and citations omitted). This finding of the Arkansas Supreme Court is supported by the record, and having reviewed the transcript of voir dire in contrast to petitioner’s abstract arguments, the Court believes the state court decision is not the result of an unreasonable determination of the facts. Kinder, 272 F.3d at 541-42. The Court further believes the applicable due process standards, as expressed by the United States Supreme Court, were satisfied in this case. Thus, petitioner cannot obtain relief on this claim. Additionally, this Court finds that it is unnecessary to conduct an evidentiary hearing on petitioner’s change of venue claim because the claim can be resolved on the record alone, or alternately, that petitioner has not satisfied the requirements of 28 U.S.C. § 2254(e)(2).

C. Ground 4: Improper and Inflammatory Testimony

In Ground 4, petitioner argues that Mary Hussian’s “improper and inflammatory testimony” during the guilt phase of his trial, and the trial court’s denial of petitioner’s motions for mistrial in response to Mary Hussian’s testimony, violated his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Petitioner specifically refers to two areas of Mary Hussian’s testimony: (1) her statement on direct examination: “He [Noel] looked like an animal that night;” and (2) her statement on cross examination, in response to questions about her presenting a forged prescription for painkillers, that she did so: “After I was notified Riley Noel was out.” Petitioner claims that the latter statement was a comment on petitioner’s escape from custody after his arrest for the murders, an event the trial court had ruled was inadmissible.

Respondent asserts that petitioner raised both of the foregoing comments in connection with his direct appeal, but not on the federal constitutional basis advanced in his current habeas petition. Rather, on direct appeal, petitioner asserted that the cumulative effect of character evidence introduced by the prosecution vi-dated Rule 404(a) of the Arkansas Rules of Evidence and tainted his trial. Petitioner cited five instances to support this argument, including the two instances of Mary Hussian’s alleged “improper and inflammatory” testimony at issue here. The Arkansas Supreme Court, in considering petitioner’s claim, stated:

[W]e have stated that a reversal of a conviction based on cumulative error is only appropriate in ‘rare and egregious’ cases. An analysis of the five instances complained of in the instant case illustrates that neither individually nor collectively do they rise to the level of reversible error. First, Mary Hussian’s testimony that Noel looked like ‘an animal’ on the night of the murders is not a representation of his character and was not objected to on that basis. The trial court properly denied the motion for mistrial, and defense counsel did not request an admonishment. Second, Hussian’s statement that she forged a prescription because she had heard that Noel ‘was out’ was made during defense counsel’s cross-examination and was not objected to on the grounds of improper character evidence. The trial court correctly denied the mistrial motion because the jury could just as easily have concluded that Noel was ‘out’ on bail, and again, defense counsel did not ask for an admonishment.

Noel, 960 S.W.2d at 443 (internal citations omitted).

This Court agrees with respondent that petitioner has procedurally defaulted his current improper and inflammatory testimony claim. Petitioner did not raise his current argument before the state court, and, as this Court explained earlier, the same factual arguments and legal theories must be present in both the state and federal claims. Petitioner’s argument before the state court fails to refer to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising the pertinent federal constitutional issue in a claim before the state courts. Petitioner implicitly recognizes that this claim is procedurally defaulted, but states that this default may be excused, and his claim of improper and inflammatory testimony reached, in several ways.

Petitioner first states this claim may be reached through his cumulative error claim in Ground 14. Because the Court must deny relief on the cumulative error claim of Ground 14, see infra, the Court finds this argument unavailing. Alternately, petitioner states he can demonstrate cause for his procedural default, either due to the failure of the Arkansas Supreme Court to conduct mandatory appellate review, or due to ineffective assistance of counsel. For the reasons stated in this Court’s discussion of Ground 1, infra, the Court finds that the Arkansas Supreme Court’s failure to conduct mandatory appellate review does not establish cause to excuse petitioner’s procedural default. Petitioner generally asserts ineffective assistance of counsel as cause for this procedural default; however, for the reasons explained in this Court’s discussion of Ground 15, infra, petitioner’s allegations of ineffective assistance of counsel do not constitute cause to excuse his procedural default. Further, because petitioner cannot satisfy the requirements of 28 U.S.C. § 2254(e)(2), an evidentiary hearing on petitioner’s claim of improper and inflammatory testimony is prohibited.

D. Ground 5: False Evidence and/or Argument

In Ground 5, petitioner asserts that he was denied due process and a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution by the prosecution’s presentation of “false evidence and/or argument” to the jury. Specifically, petitioner faults the prosecution for characterizing petitioner as a “psychopath” in penalty phase closing argument and for using the term during cross-examination of Dr. Brad Williams, a psychologist called by the defense in the penalty phase. Respondent replies that petitioner’s “false evidence or argument” theory is procedurally defaulted because, although petitioner appealed the use of the term “psychopath,” petitioner did not fairly present the theory now raised in his federal habeas petition to the state court.

On direct appeal, petitioner did not assert his current “false evidence and/or argument” theory; rather, petitioner argued that the prosecutor’s reference to “psychopath” shifted the burden of proof from the state to petitioner. On this issue, the Arkansas Supreme Court stated:

[D]uring the prosecutor’s closing argument at the end of the penalty phase, he [sic] referred to Noel as a ‘psychopath.’ Defense counsel objected, but .not on grounds that this comment shifted the burden of proof. Nor did defense move for a mistrial or object to the trial court’s subsequent admonishment of the jury, which he requested. This point is also not preserved for appeal. Moreover, Noel cannot now complain when he obtained the relief requested. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997).

Noel, 960 S.W.2d at 445. Petitioner implicitly recognizes that his current complaint of “false evidence and/or argument” is procedurally defaulted, but states that he can demonstrate cause for the procedural default: the State’s own failure to fulfill its obligation to correct the false evidence or argument.

The cases cited by petitioner, as relevant to this claim, address the due process violation that results when a prosecutor presents false evidence, fails to correct the presentation of false evidence, and makes argument based on false evidence. Petitioner correctly identifies the general governing legal principles: that the use of false evidence, including false testimony, to secure a conviction violates a defendant’s right to due process, and that the prosecution’s duty to correct false evidence arises when the false evidence appears. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). However, the legal principles and cases cited by petitioner are inapposite to the current situation. Here, for example, there is no allegation that the state presented false evidence that petitioner was a psychopath and then argued that false evidence before the jury. The “false characterization” complained of by petitioner does not amount to “false evidence” as that term is used in Napue. However captioned, petitioner’s true argument is that the prosecution’s closing argument, and specifically the reference to “psychopath,” was improper and inflammatory. In fact, petitioner raises this precise issue in Ground 6 of his habeas petition, and this Court will address it there.

Returning, however, to petitioner’s argument that the state’s failure to correct the false evidence and argument constitutes “cause” for his procedural default, this Court finds that petitioner’s argument must fail: since there was no false evidence and argument as contemplated by Napue, there was thus no duty of the prosecution to correct that false evidence and argument. Alternately, petitioner generally asserts ineffective assistance of counsel as cause for this procedural default; however, for the reasons explained in this Court’s discussion of Ground 15, infra, petitioner’s allegations of ineffective assistance of counsel do not constitute cause to excuse his procedural default. However this claim is considered, this Court finds that it is unnecessary to conduct an evidentiary hearing because this claim can be resolved on the record alone, or alternately that petitioner has not satisfied the requirements of 28 U.S.C. § 2254(e)(2).

E. Ground 8: Newly Discovered Evidence

In Ground 8, petitioner argues that he is entitled to penalty phase habeas relief under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution due to Mary Hussian’s recantation of her “victim impact” testimony presented in petitioner’s penalty phase proceedings. In the alternative, petitioner describes Mary Hussian’s opposition to the death penalty as “newly discovered evidence.” This recantation, or newly discovered evidence, takes the form of a letter addressed to this Court and attached to petitioner’s amended petition for writ of habeas corpus. However this issue is characterized, the Court questions whether petitioner in fact states a constitutional violation in this claim, but will address petitioner’s claim out of an abundance of caution.

At the outset, this Court questions whether Mary Hussian has in fact “recanted” any testimony. Black’s Law Dictionary defines “recant” as “[t]o withdraw or renounce (prior statements or testimony) formally and publicly.” Black’s Law Dictionary 1274 (7th ed.1999). Here, Mary Hussian has nothing to withdraw or renounce. Mary Hussian never stated, or even intimated, her preference of a sentence to be imposed on petitioner. Petitioner in fact filed a pre-trial motion to preclude the introduction of victim impact evidence pertaining to the victims’ family members’ characterizations and opinions about the appropriate sentence, which the trial court granted. Mary Hussian’s testimony addressed the impact that the death of her children had on her life and on her family’s life. Her only reference to petitioner was to say that he had “destroyed” her family.

Even assuming Mary Hussian’s “change of heart” about the death penalty constitutes a recantation of her prior testimony, the Court cannot say that the so-called “recantation,” or newly discovered evidence, would probably change the result of the penalty phase. Wainwright v. Lockhart, 80 F.3d 1226, 1229 (8th Cir.1996). Mary Hussian’s letter does not suggest that she would alter her testimony concerning the devastating effect of the loss of her children on her family — in fact, she states: “It is my opinion that life without parole will be death in itself for Mr. Noel as he too will have to deal with that night.” Additionally, during petitioner’s penalty phase the state presented testimony from the victims of petitioner’s previous violent felony convictions (arising out of two separate incidents in 1989): Herman James, whom petitioner shot and injured, and Michael Ragsdale, whom petitioner shot at and robbed. This testimony was the basis for the first aggravating circumstance found by the jury: “Riley Noel previously committed another felony an element of which was the use or threat of serious physical injury to another person or creating a substantial risk of death or serious physical injury to another person.” Finally, this Court recognizes that the Arkansas Supreme Court recently held that the opinion of a victim’s family member as to the appropriate punishment is not relevant as mitigating evidence and does not constitute victim-impact evidence. See Greene v. State, 343 Ark. 526, 37 S.W.3d 579, 583-86 (2001).

The Court appreciates Mary Hussian’s sentiments, but cannot find that they constitute a recantation of her penalty phase testimony. Alternately, penalty phase ha-beas relief is not appropriate because Mary Hussian’s “recantation” does not alter the remainder of Mary Hussian’s testimony, change the testimony of Herman James and Michael Ragsdale, or bear on the jury’s finding of aggravating circumstances. Petitioner has not demonstrated that Mary Hussian’s “recantation” would probably change the result of the penalty phase. For these reasons, this Court must deny petitioner’s newly discovered evidence claim. Further, because petitioner cannot satisfy the requirements of 28 U.S.C. § 2254(e)(2), an evidentiary hearing on petitioner’s claim of improper and inflammatory testimony is prohibited.

F. Ground 10: Newly Discovered Evidence

On January 28, 2002, this Court entered an Order [docket no. 64] denying relief as to petitioner’s Ground 10 in the course of ruling on petitioner’s motion for additional medical testing. Petitioner subsequently filed a motion for reconsideration [docket no. 65] of the Court’s January 28, 2002 Order, respondent filed a response to that motion [docket no. 67], and petitioner filed a reply [docket no. 69]. Having considered petitioner’s motion for reconsideration, which must be denied, this Court now substitutes this Order in place of the January 28, 2002 Order [docket no. 64], with the same result: petitioner’s motion for additional medical testing [docket no. 61] is denied; Ground 10 of petitioner’s amended petition for writ of habeas corpus [docket no. 30] is denied; and respondent’s motion to preclude petitioner from calling witnesses prior to compliance with 28 U.S.C. § 2254 [docket no. 38] as to Ground 10 is granted.

In Ground 10, petitioner argues that he is entitled to penalty phase habeas relief under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution based on newly discovered mitigating evidence that he suffers from brain abnormalities (including learning disorders, probable organic brain damage, and convulsions contributing to his aggressive behavior) which explain behavioral abnormalities. In essence, petitioner argues that recent advances in psychiatry and medical technology now permit the medical community to diagnose brain abnormalities in a way that was not possible, or through tests that were not available in Arkansas and not recognized as reliable, at the time of his trial. Couching his claim as one of newly discovered evidence, petitioner argues “his sentencing jury should have been made aware of this brain abnormality as a possible mitigating circumstance and/or as a possible contributing factor in the crimes of which his [sic] was found guilty.”

Both petitioner and respondent acknowledge that petitioner’s claim of newly discovered mitigating evidence concerning his alleged brain abnormalities is “procedurally defaulted” in that it was never presented to the state court, and, were it to be so presented, would be found by the state court to be defaulted. See Robinson v. Crist, 278 F.3d 862 (8th Cir.2002) (state may waive exhaustion defense without waiving procedural default defense). Therefore, as explained previously, this Court cannot consider petitioner’s habeas claim unless he can demonstrate cause and prejudice for the procedural default, or actual innocence.

At the outset, this Court notes that 28 U.S.C. § 2254 permits a prisoner in state custody to petition a federal court 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) (emphasis added). The heading of petitioner’s newly discovered mitigating evidence claim refers to the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution; however, earlier pleadings did not explain how, specifically, those constitutional protections were implicated in petitioner’s situation. In his motion for reconsideration, petitioner clarifies that he seeks to invoke his Eighth Amendment right as a defendant in a capital case to present any and all mitigating evidence to the sentences

Petitioner seeks to excuse his procedural default by attempting to satisfy the “cause and prejudice” standard. Petitioner states that his “cause” for not having previously raised this newly discovered mitigating evidence concerning his alleged brain abnormalities is, in fact, just that— this evidence is new. According to petitioner, recent advances in psychiatry and medical technology now permit the medical community to diagnose brain abnormalities in a way that was not possible or not considered reliable, or through tests that were not available in Arkansas, at the time of his trial. Thus, petitioner could not have presented this information at the time of trial, because it was not yet available. With regard to prejudice, petitioner states that trial counsel surely would have had these additional tests performed on him and presented the resulting information to the jury had the tests been available locally or considered reliable. In turn, petitioner was prejudiced because the jury could not consider this newly discovered evidence of mitigation.

Despite petitioner’s efforts to couch his argument as one of cause and prejudice, the Court finds petitioner’s assertion of newly discovered evidence of mitigation should properly be analyzed under the “miscarriage of justice” exception to the procedural default doctrine. Permitting petitioner to proceed under the cause and prejudice standard, rather than the miscarriage of justice exception, would circumvent and be inconsistent with Supreme Court precedent concerning the treatment of newly discovered mitigating evidence on habeas review. Further, as demonstrated by the analysis that follows, proceeding under the cause and prejudice analysis is inapposite. “Cause” for a procedural default exists, in this sense, when an objective, external impediment prevents petitioner from raising his claim before the state courts. Murray, 477 U.S. at 488, 106 S.Ct. 2639. “Cause” contemplates something that was “not reasonably available” to the petitioner. See id. For example, had the prosecution wrongfully concealed evidence, the prosecution’s action (or inaction) might constitute cause. In the factual context, the concept of something being “not reasonably available” necessarily implies that it is somewhere available, and that the petitioner is unaware that it exists. Petitioner argues in his motion for reconsideration that the medical tests were indeed somewhere available, but were not reasonably available because the testing procedures were not sufficiently refined or respected at that time and thus lacked probative value. This argument stretches the concept of “reasonable availability.” The tests, in their current form or with their current stature, did not exist at the time of petitioner’s trial. To the extent the tests did exist and trial counsel did not pursue the testing then available because it was not sufficiently refined, such a decision could constitute a decision of trial strategy (and would negate petitioner’s characterization of this evidence as “new”). This Court has difficulty understanding how petitioner’s rights to due process and to present mitigating evidence at sentencing were violated by the failure of this evidence to exist in its current or refined form at the time of his sentencing.

Even assuming “cause” includes evidence that did not previously exist in its current or refined form, petitioner still cannot demonstrate cause to excuse his procedural default because the fact that a petitioner “did not possess, or could not reasonably have obtained, certain evidence fails to establish cause if other known or discoverable evidence could have supported the claim in any event.” McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); see also Amadeo v. Zant, 486 U.S. 214, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988). This caveat is consistent with the principle that evidence is not “newly discovered” if the petitioner knew of the factual basis for the evidence at trial. Meadows v. Delo, 99 F.3d 280, 282 (8th Cir.1996). Although McCleskey is a successive petition, abuse-of-the-writ case, the Court finds the McCleskey reasoning instructive. In McCleskey, the petitioner had raised a Massiah claim in his first state habeas petition, but did not raise the claim in his first federal habeas petition. See McCleskey, 499 U.S. at 472-73, 111 S.Ct. 1454; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2