Cole v. Roper (579 F. Supp. 2d 1246, 2008)

MEMORANDUM AND ORDER

CATHERINE D. PERRY, District Judge.

Petitioner Andre Cole is currently on death row at the Potosí Correctional Center in Mineral Point, Missouri for the murder of Anthony Curtis. Petitioner was convicted by a jury and sentenced to death in St. Louis County, Missouri. Petitioner is also serving consecutive terms of life imprisonment for armed criminal action and assault, and thirty years for burglary. Because Petitioner is serving consecutive sentences, Missouri Attorney General Jeremiah W. Nixon is also a proper party respondent.

Before me is Petitioner’s request for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He raises numerous claims of constitutional violations. Several of these claims are procedurally barred. All other claims fail on the merits. Accordingly, I will deny Petitioner’s request for a writ of habeas corpus. I will, however, grant a certificate of appealability on several issues.

I. FACTUAL BACKGROUND

The following recitation of facts comes from the Missouri Supreme Court’s opinion affirming the conviction and sentence in this case:

Appellant and his wife, Terri Cole (Terri), divorced in 1995 after eleven years of marriage. Appellant was ordered to pay child support for the care of the couple’s two children but his periodic failure to make payments resulted in an arrearage totaling nearly $3000.00. Upon learning that a payroll withholding order was issued to his employer, Appellant commented to his coworkers, “Before I give her another dime I’ll kill the bitch.”

The first payroll deduction for child support appeared on Appellant’s August 21, 1998 paycheck, and several hours later Appellant forced his entry into Terri’s house by throwing an automobile jack through the glass door leading to the dining room. Anthony Curtis (Curtis), who was visiting Terri, confronted Appellant and asked him to leave. Appellant stabbed Curtis multiple times resulting in his death. Appellant then assaulted Terri, stabbing her repeatedly in the stomach, breasts, back, and arms, and her hands when she attempted to defend herself. Terri survived.

After the attack, Appellant fled the State, but he returned to St. Louis and surrendered to the police thirty-three days later. DNA analysis confirmed the presence of both victims’ blood on the knife and the presence of Appellant’s blood on the deck of Terri’s home, the backyard fence, and in the street where Appellant’s car had been parked.

State v. Cole, 71 S.W.3d 163, 168-69 (Mo.2002) (en banc), cert. denied, 537 U.S. 865, 123 S.Ct. 261, 154 L.Ed.2d 108 (2002).

II. PROCEDURAL BACKGROUND

On February 26, 2002, the Missouri Supreme Court rejected the ten claims brought by Petitioner in his direct appeal and affirmed his conviction and sentence. Cole, 71 S.W.3d 163. Petitioner then brought a motion in the Circuit Court of St. Louis County, Missouri for post-conviction relief (PCR) pursuant to Mo. Sup.Ct. R. 29.15. Following an evidentiary hearing lasting three days, the trial court denied the 29.15 motion. The Missouri Supreme Court affirmed the denial of post-conviction relief on November 23, 2004. Cole v. State, 152 S.W.3d 267 (Mo.2004) (en banc), cert. denied, 545 U.S. 1131, 125 S.Ct. 2940, 162 L.Ed.2d 872 (2005). On August 8, 2005, Petitioner moved to recall the mandate on his direct appeal, or alternatively, for a writ of habeas corpus pursuant to Mo. Sup.Ct. R. 91. This motion related to claims numbered herein as 7, 8 and 16. The Missouri Supreme Court denied the motion on August 30, 2005. On July 11, 2006, Petitioner filed a second motion to recall the mandate which related to claim number 4. This motion was denied by the Missouri Supreme Court on August 22, 2006.

Petitioner now seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254, asserting that his conviction and sentence violate his Fifth, Sixth, Eighth and Fourteenth Amendment rights. Counsel have extensively briefed all the issues.

III. GROUNDS RAISED

Petitioner seeks habeas relief on the following grounds:

1. Petitioner’s conviction of first-degree murder and sentence of death violate the Eighth and Fourteenth Amendments because there is insufficient evidence from which a rational jury could find, beyond a reasonable doubt, that the killing of Anthony Curtis was premeditated.

2. Petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendment rights were violated by the prosecutor’s repeated and blatant misconduct on closing argument during the guilt phase of Petitioner’s trial.

A.The prosecutor improperly injected his personal opinion regarding matters outside the record by stating that no other case “could be more important to the people of St. Louis County.”

B. The prosecutor violated the presumption of innocence and stated his own personal opinion that anyone sitting in the defense chair is “usually there for a reason.”

C. The prosecutor improperly argued facts not in evidence, unduly inflamed the jury, and falsely attacked Petitioner by calling him a “convicted killer.”

D. The prosecutor’s misconduct prejudiced Petitioner and made his trial fundamentally unfair.

3. Defense counsel was constitutionally ineffective for failing to object to the prosecution’s improper closing argument during the guilt phase of Petitioner’s trial.

4. Petitioner was denied due process of law, and black veniremember Vernard Chambers was denied equal protection of the law, when the prosecution was permitted to strike Mr. Chambers for pretextual reasons under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) — leaving no blacks on the jury after the State had stricken all three from the panel.

5. Trial counsel’s failure to inform Petitioner of a specific plea offer constituted ineffective assistance of counsel and violated Petitioner’s Sixth, Eighth and Fourteenth Amendment Rights.

6. Petitioner’s Sixth, Eighth and Fourteenth Amendment rights were violated when the jurors deliberated prematurely in both phases of the trial.

7. Petitioner’s convictions violate due process because he was visibly restrained throughout the guilt phase, but without any case-specific finding that such a step was necessary.

8. The trial court precluded Petitioner’s counsel from making a full and complete opening statement, thereby denying Mr. Cole due process of law as well as the Sixth Amendment right to counsel.

9. Because the prosecution’s “amended information” did not enumerate any statutory aggravating circumstances, it deprived Petitioner of his rights under the Sixth and Fourteenth Amendments by allowing him to be convicted of, and sentenced for, crimes other than those with which he was charged.

10. Trial counsel rendered constitutionally ineffective assistance by failing to investigate and present evidence that Petitioner suffered from an extreme mental and emotional disturbance at the time of his crimes — specifically, a major depressive disorder stemming from the traumatic events in his life in the months preceding the homicide, his personal and family history of depression, and his ongoing abuse of alcohol and steroids. Pretrial findings that Petitioner was “sane” at the time of the crimes and was “competent” to stand trial do not excuse counsel’s failure to pursue the distinct issue of an extreme mental and emotional disturbance under Missouri’s statutory mitigating circumstances. Petitioner was prejudiced by counsel’s failure to discover and present this evidence.

11. Trial counsel was constitutionally ineffective for failing to discover and present non-expert evidence of Petitioner’s troubled state of mind, as observed by his relatives, friends, coworkers and family physician. Counsel’s strategy of “humanizing” Petitioner stemmed from an inadequate investigation of Petitioner’s background and was not “reasonable” under Strickland. Petitioner was prejudiced by counsel’s failures.

12. Trial counsel was constitutionally ineffective in failing to investigate and present evidence regarding Petitioner’s positive adjustment to prison life, in violation of Petitioner’s Sixth, Eighth and Fourteenth Amendment rights. Petitioner was prejudiced by counsel’s failure.

13. Petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendment rights were violated by the prosecutor’s misconduct on closing argument during the penalty phase of Petitioner’s trial. The State’s pervasive and blatant misconduct prejudiced Petitioner.

14. Trial counsel was constitutionally ineffective for failing to object to the prosecution’s improper closing argument during the penalty phase.

15. The trial court violated Petitioner’s Sixth, Eighth and Fourteenth Amendment rights by excluding relevant mitigating evidence that his family and friends would visit him in prison.

16. Because he was visibly restrained without any showing that such a measure was necessary, Petitioner was sentenced to death in violation of the Eighth and Fourteenth Amendments.

17. The “depravity of mind” aggravating circumstance upon which the State chiefly relied in seeking Petitioner’s death sentence is impermissi-bly vague and excessively broad under the Eighth and Fourteenth Amendments.

18. Petitioner’s Sixth, Eighth and Fourteenth Amendment rights were violated by Instruction No. 21, which instructed the jury to consider all the evidence in deciding whether to impose a death sentence, while failing to mention the same requirement for deciding whether to impose a life sentence.

19. Petitioner’s Sixth, Eighth and Fourteenth Amendment rights were violated by Instruction No. 22, which set forth the “mechanics” for the jury’s sentencing determination, while omitting the jury’s obligation to impose a life sentence if the mitigating circumstances outweighed the aggravating circumstances.

20. Petitioner’s Sixth, Eighth and Fourteenth Amendment rights were violated by the cumulative effect of the errors described in this petition, thereby invalidating his convictions and death sentence.

IV. DISCUSSION

Under 28 U.S.C. § 2254(d), when a claim has been adjudicated on the merits in state court, an application for a writ of habeas corpus shall not be granted unless the state court adjudication:

(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.

In Shafer v. Bowersox the Eighth Circuit articulated the standards for subsection (1) as follows:

The “contrary to” clause is satisfied if a state court has arrived “at a conclusion opposite to that reached by [the Supreme Court] on a question of law” or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent” but arrives at the opposite result.... A state court “unreasonably applies” clearly established federal law when it “identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” ... A case cannot be overturned merely because it incorrectly applies federal law, for the application must also be “unreasonable.”

329 F.3d 637, 646-47 (8th Cir.2003) (citations omitted) (quoting Williams v. Taylor, 529 U.S. 362, 405, 411, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

Under subsection (2), “a state court decision involves ‘an unreasonable determination of the facts in light of the evidence presented in state court proceedings,’ 28 U.S.C. § 2254(d)(2), only if it is shown by clear and convincing evidence that the state court’s presumptively correct factual findings do not enjoy support in the record.” Lomholt v. Iowa, 327 F.3d 748, 752 (8th Cir.2003) (citing 28 U.S.C. § 2254(e)(1)); Boyd v. Minnesota, 274 F.3d 497, 501 n. 4 (8th Cir.2001).

The statute’s deferential standard of review, however, applies to state court resolutions of law and fact only if the state court adjudicated the prisoner’s claims on the merits. Taylor v. Bowersox, 329 F.3d 963, 967-68 (8th Cir.2003) (citing 28 U.S.C. § 2254(d); Kenley v. Bowersox, 275 F.3d 709, 711 (8th Cir.2002)). The Eighth Circuit has acknowledged that there are “no bright line rules about how much a state court must say or the language it must use to compel a § 2254 court’s conclusion that the state court has adjudicated a claim on the merits.” Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir.2004). Rather, a court “must simply look at what a state court has said, case by case, and determine whether the federal constitutional claim was considered and rejected by that court.” Id.

Where a federal constitutional question is not adjudicated on its merits in state court proceedings, the pre-AEDPA standard of review should apply. Robinson v. Crist, 278 F.3d 862, 865 (8th Cir.2002).

Claim, 1: Insufficient Evidence for First Degree Premeditated Murder

In his first claim, Petitioner asserts that the evidence before the jury was insuffi-dent to support a conviction of first degree murder, thereby violating Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In Jackson, the Supreme Court held that on habeas corpus review of the sufficiency of the evidence, the critical inquiry is “whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319, 99 S.Ct. 2781.

Under Missouri law, a person commits first degree murder when that person “knowingly causes the death of another person after deliberation upon the matter.” Mo.Rev.Stat. § 565.020(1). The principal distinction between first and second degree murder is the element of deliberation. State v. Johnson, 505 S.W.2d 94 (Mo.1974). “Deliberation” is defined as “cool reflection for any length of time no matter how brief.” Mo.Rev.Stat. § 565.002(3). The element of deliberation distinguishes an act committed in the heat of passion from an act that involves “unimpassioned premeditation,” or “cool reflection.” State v. Rousan, 961 S.W.2d 831, 851-52 (Mo.1998). Deliberation may be inferred from the circumstances surrounding the murder. State v. Antwine, 743 S.W.2d 51, 72 (Mo.1987). Proof of deliberation does not require evidence that the defendant contemplated his actions over a long period of time, only that the killer had ample opportunity to terminate the attack once it began. State v. Johnston, 957 S.W.2d 734, 747 (Mo.1997) (internal citation omitted).

The Missouri Supreme Court rejected this claim on direct appeal:

Appellant stabbed Curtis a total of twenty-one times. Thirteen of the injuries were defense wounds to his hands, eight of the wounds were located on either his head or torso, and five of these eight wounds required considerable force, having penetrated four or more inches into the body striking bone. The evidence indicated that midway during the attack Curtis fell face down on the floor and was no longer offering any resistance. Appellant resumed the attack on his incapacitated victim and inflicted multiple stab wounds to Curtis’ back, including the fatal wound that severed Curtis’s aorta. Appellant’s choice to continue his assault on Curtis when he no longer resisted provides sufficient evidence from which a reasonable jury could find the element of deliberation beyond a reasonable doubt.

Cole, 71 S.W.3d at 169.

Petitioner admits that there was evidence showing that he was angry and upset with Terri Cole and that he went to her home armed. However, he argues that the evidence fails to show that he deliberated before killing Anthony Curtis: he points out that he did not even know Curtis, nor did he know that Curtis would be at Terri’s home on the night of the murder. Petitioner asserts that there is no support in the record for the State’s theory that he deliberated while inflicting the multiple stab wounds or that Curtis was already disabled when the fatal wound in his back was inflicted.

In viewing the evidence in the light most favorable to the verdict, as I must according to Jackson, 443 U.S. at 326, 99 S.Ct. 2781, I find that a rational juror could have found proof of deliberation beyond a reasonable doubt. The undisputed circumstances of Curtis’s death provide sufficient evidence of deliberation. The sheer number of wounds — twenty-one stab and slash wounds — creates an inference of deliberation. See State v. Sandles, 740 S.W.2d 169, 177-78 (Mo.1987) (twenty stab and slash wounds provided sufficient basis for inference of deliberation). In addition, from the position of Curtis’s body when the final stab wound was inflicted (on his stomach on the floor leaning against the couch), one could reasonably infer that the fatal stab wound — approximately 8 inches in depth into Curtis’s back — was inflicted while he was motionless on the floor and not resisting. Although Terri Cole’s testimony indicates that the stabbing stopped around the time that Curtis stopped struggling, Terri Cole describes an extensive struggle between Petitioner and Curtis where they fell twice and stumbled once. Petitioner had time to terminate the attack after it began. See Johnston, 957 S.W.2d at 748 (evidence of a prolonged struggle, multiple wounds, or repeated blows as support for an inference of deliberation). The circumstances of Curtis’s murder provide sufficient proof of deliberation as defined by Missouri law to support a first-degree murder conviction. Accordingly, the Missouri Supreme Court’s decision that sufficient evidence was produced at trial for a reasonable jury to find the element of deliberation beyond a reasonable doubt, is not contrary to, nor an unreasonable application of, clearly established federal law. Petitioner’s first claim is denied.

Claims 2 & 13: Prosecutor’s Misconduct on Closing Argument

Petitioner contends that statements made by the prosecutor in closing argument, during both the guilt phase (claim 2) and the penalty phase (claim 13), were prejudicial to him and made his trial fundamentally unfair. Habeas relief may be appropriate if a prosecutor’s improper closing argument “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The Eighth Circuit has applied this test for examining closing arguments in both the guilt phase and the penalty phase of the trial. See Kinder v. Bowersox, 272 F.3d 532 (8th Cir.2001); Copeland v. Washington, 232 F.3d 969, 974 n. 2 (8th Cir.2000).

Petitioner must first show that the prosecutor’s statements were improper. United States v. White, 241 F.3d 1015, 1023 (8th Cir.2001). Second, a court should: “(1) Measure the type of prejudice that arose from the argument, (2) examine what defense counsel did in his [or her] argument to minimize prejudice; (3) review jury instructions to see if the jury was properly instructed; and (4) determine if there is a reasonable probability that the outcome of the sentencing phase would have been different, taking into account all the aggravating and mitigating circumstances.” Weaver v. Bowersox, 438 F.3d 832, 840 (8th Cir.2006) (citations omitted), cert. dismissed as improvidently granted, — U.S. -, 127 S.Ct. 2022, 167 L.Ed.2d 966 (2007).

During closing argument, “an attorney’s role is to assist the jury in analyzing, evaluating and applying the evidence. Arguments that transcend such boundaries are improper.” United States v. Beckman, 222 F.3d 512, 527 (8th Cir.2000). “A prosecutor may not express a personal opinion about a defendant’s veracity.” White, 241 F.3d at 1023. Instead, a prosecutor must base his comments on “the evidence and the reasonable inferences that may be drawn from it.” Id. These limitations, however, do permit the prosecutor to state his or her argument regarding the conclusions that the jury should draw from the evidence. United States v. Segal, 649 F.2d 599, 604 (8th Cir.1981) (internal citations omitted).

Defense counsel did not object to any of the multiple statements made by the prosecutor that Petitioner now claims were improper and prejudicial. When reviewing allegedly improper statements made during closing that were not objected to by defense counsel, the Court will grant relief only in exceptional circumstances. United States v. Robinson, 110 F.3d 1320, 1326 (8th Cir.1997) (citations omitted). “Defense counsel heard the alleged misconduct and was in a far better position to judge its significance to the trial than an appellate court reading a cold transcript. The trial court also heard the alleged misconduct and likewise was in a better position to judge its significance.” James v. Bowersox, 187 F.3d 866, 869 (8th Cir.1999). Because of the strict due process standard of constitutional review, the deferential review mandated by the AEDPA, and this Court’s less reliable vantage point for gauging the impact of closing argument on the overall fairness of a trial, habeas review of a prosecutor’s closing argument should be exceptionally limited. Id.

Claim 2: Prosecutor’s Guilt Phase Closing Argument

Petitioner alleges that during the guilt phase of closing argument the prosecutor improperly expressed personal opinion, inflamed the emotions of the jury, personally attacked him, violated the presumption of innocence, misstated the evidence, and made emotional appeals for the jury to protect society. After noting that none of these claims were preserved for direct appeal by a timely objection at trial, the Missouri Supreme Court found no error of law and summarily rejected the majority of Petitioner’s claims. Cole, 71 S.W.3d at 170. The state court discussed the merits of only one statement made by the prosecutor (calling the Petitioner a “convicted killer”), but still found no error of law. While I agree with Petitioner that the statements were improper, I agree with the state court that there was no due process violation.

The first comment came during the State’s initial remarks on closing:

May it please the Court, Ms. Hirzy, ladies and gentlemen of the jury, I want to thank you for your time because this is one January 15th of 2001 and you’re spending it here with us and just like you spent the last week you are giving us your most valuable asset, however, I can’t think of a case that could be more important to the people of St Louis County and to the family of Anthony Curtis and to the family of Terri Cole and Terri Cole herself and the case that you’ve heard here over the last week. As you reflect back on the evidence and you think about the evidence that you heard in this case, I can’t emphasize enough to you the seriousness of this case nor can I emphasize enough to you the strength of the State’s case.

Don’t think that there aren’t people in the world who wouldn’t sneak around at night, put a jack in their car in the morning, probably along with some other weapons, don’t think there aren’t people sneaking around at night, come around the back of the house, enter the house with a jack, an explosion, and that explosion was to terrorize, walk into the house and when given the chance to leave, attack and when given another chance to leave when a man’s down, attack again to kill and then when you are finished with that, turn on a disarmed woman.

He sneaks around at night.

He creepy crawls at night, creepy crawls around the house.

They’re so absorbed and an attacker, a convicted felon with priors, is sneaking around at night, smashing windows with a jack.

Tr. Transcript at 1415-21. The other two statements about which Petitioner complains were made by the prosecutor in the rebuttal portion of his closing:

What we do know is his actions are deliberate. When she says it’s ludicrous, maybe it is to you and me. To him it’s deliberate. He’s not an imbecile but he’s not a rocket scientist. People sitting in that chair (indicating), ladies and gentlemen, are usually there for a reason. They may not be a rocket scientist, they are deliberate and calculating and do the best they can with the mayhem they create....

When you can think about the sheer violence of this crime, we know he’s a convicted felon, we know he’s destroyed evidence and runs, you think he’s not going to lie to you. The Defendant is presumed to be innocent. That does not mean he’s presumed to be truthful....

Do not forget that he lied when you look at this case. Don’t think somebody who killed wouldn’t come in and lie. I’m going to ask you to think about two worlds have collided. Anthony Curtis, a tour guide from the museum. You can take that picture of Terri Cole. It shows her after the attack. She’s Marcus’ mom. She’s Anthony’s mom. She’s a mom who worked for a health company doing clerical work and he’s a convicted killer. He wants to make her into an attacker and they were sitting in the house with an alarm....

There are so many atrocities in this world we can’t change. This is your day to do something about crime, this is your day to do something about what he did and it’s your day for everybody like this, it’s also a message to send to the victims of crime, families in St. Louis County, that you can come to the court house and get justice. Juries are not going to believe people with absurd and stupid evidence after they’ve committed horrible, violent crimes. I’ll ask you this: If not him, who? If not now, when. Don’t tell Terri Cole, a dying woman, by your verdict that she is a liar. You give the Curtis family and Anthony Curtis the justice they deserve.

Tr. Transcript at 1474-80.

(A) ‘More important to the people of St. Louis County’ statement

When this statement is read in context, it is not prejudicial and as a result, it did not cause unfairness to infect the trial. Although it is generally improper for a prosecutor to state his personal opinion to the jury, this statement was made in the opening part of the prosecutor’s argument and immediately followed his expression of appreciation to the jury for their time spent hearing the case. The prosecutor expressed his opinion on the importance of the case to the victim’s family as well, not just to the people of St. Louis County. Reading the closing argument as a whole, it is not probable that the jury would have considered this as referring to evidence not in the record. Nor did the prosecutor’s statement rise to the level of urging the jurors to protect society and community values. Reasonable jurors would interpret this statement to mean that their time spent hearing the case was well-spent because the outcome of the ease matters and the issues they must decide are serious.

Additionally, multiple cases have found no due process violations where a prosecutor had expressed an opinion stating or implying that the defendant was guilty. See Donnelly, 416 U.S. 637, 640, 94 S.Ct. 1868 (1974); United States v. Splain, 545 F.2d 1131, 1134 (8th Cir.1976). Although the statement in this case includes the prosecutor’s personal opinion on the importance of the case, that opinion is less likely to be prejudicial than a statement of personal opinion regarding the culpability of the defendant.

(B) ‘There for a reason’ statement

The prosecutor’s argument that “People sitting in that chair ... are usually there for a reason” was improper. The statement questions the presumption of innocence that is essential to the foundation of our legal system.

This statement is similar to one made by the prosecutor in Splain: “We are trying to convict Bobby Splain because he committed a crime and we are convinced of that or we wouldn’t be trying him.” 545 F.2d at 1134. In Splain the Eighth Circuit found that the defendant’s rights were not adversely affected by the prosecutor’s comments. Id. at 1136. The statement made in Splain was more prejudicial than the one made in this case. In Splain, the prosecutor not only suggested that the defendant was guilty simply because he was being tried, as is the case here, but he also stated the opinion of U.S. Attorneys Office in that they were “convinced” of defendant’s guilt.

In this case, despite the implications of the prosecutor’s statement, he did remind the jury of the presumption of innocence standard regarding the Petitioner. See Tr. Transcript at 1477 (“The Defendant is presumed to be innocent.”). He also repeatedly told the jury that the burden of proof is with the State. See id. at 1419 (“They set forth the elements that the State must prove beyond a reasonable doubt for each offense”); id. at 1437 (“I have the burden of proof ...”); id. at 1466 (“We have got the burden of proof ... ”).

It is a fundamental principle of our justice system that a defendant is presumed innocent until proven guilty. While the prosecutor’s misconduct cannot be disputed, I do not find that the prosecutor’s statement infected the Petitioner’s trial with unfairness, when the argument is considered as a whole.

(C) ‘Convicted killer’ statement

The State admits that this statement was factually wrong. Petitioner was not a “convicted killer” before the jury decided this case. The State argues, however, that the statement did not prejudice Petitioner. The Missouri Supreme Court concluded that the remark was not prejudicial:

Appellant argues that during the guilt-phase closing argument, the prosecutor committed prejudicial misconduct by making an erroneous propensity argument. While the prosecutor was challenging the credibility of the Appellant and his version of the events taking place on the night of the murder, he made several references to the Appellant being a convicted felon. Refuting Appellant’s claims that it was Terri who was the attacker and not the Appellant, the prosecutor also stated, “She’s a mom who worked for a health care company doing clerical work and he’s a convicted killer.”

Appellant had testified at trial and, consequently, his prior offenses, including two felony convictions for unlawful use of a weapon and a violation of an adult abuse order, were properly admitted into evidence. Appellant contends, however, that the prosecutor’s earlier reference to the actual prior offenses, and the later erroneous statement about being a convicted killer, were used improperly to show propensity, i.e., prior guilt being used to establish guilt of the current offense charged.

Allegedly improper comments made by the prosecutor that are not preserved for review by a timely objection will be reviewed only for manifest injustice under the plain error rule, rule 30.20. “To prevail on plain error review, [Appellant] must show that the trial court’s error so substantially violated his rights that manifest injustice or a miscarriage of justice results if the error is not corrected.” While it is improper to use prior convictions as substantive evidence of guilt or a defendant’s propensity to commit crimes, it is permissible to use them to attack the defendant’s truthfulness and credibility in his testimony.

The prosecutor’s statements referencing Appellant’s prior convictions were properly admitted to attack the Appellant’s credibility. The misstatement by the prosecutor referring to the Appellant as a “convicted killer” was a single inadvertent remark not prejudicing Appellant because the jury had already been presented with the precise nature of his actual prior convictions, none of which involved a homicide. Statements made in closing argument will rarely amount to plain error, and any assertion that the trial court erred for failure to intervene sua sponte overlooks the fact that the absence of an objection by trial counsel may have been strategic in nature.

Cole, 71 S.W.3d at 170 (footnotes omitted).

I conclude that this is not an unreasonable determination. Based on the prosecutor’s earlier use of “convicted felon” to describe Petitioner, it is reasonable to believe that he simply misspoke. Furthermore, although the conduct of the prosecutor in making this statement is improper, it was not sufficiently grave to affect the fairness of the trial.

The Eighth Circuit has stated its strong disapproval of the use of epithets by attorneys in closing argument. James, 187 F.3d at 870. But the question to consider when such remarks are used is “whether the jury has the common sense ability to put aside a particular type of overzealous advocacy with the help of the court’s standard instruction that arguments of counsel are not evidence.” Id. The jury was instructed at the outset of the trial that the attorneys’ statements, remarks, and arguments must not be considered as evidence. Such an instruction “alleviate[s] the risk of any prejudicial impact.” Robinson, 110 F.3d at 1326.

Petitioner argues that it is even more likely that prejudice resulted from the prosecutor’s misstatement because the prosecutor’s closing contained numerous references to other bad acts Petitioner committed. Petitioner cites multiple passages from the prosecutor’s closing where he negatively describes actions of the Petitioner. See Tr. Transcript at 1415-16, 1421, 1427-28. For example, the prosecutor describes Petitioner as a “convicted felon with priors, [who] is sneaking around at night.” Tr. Transcript at 1421. But, during Petitioner’s testimony at trial, he admitted to having prior felony convictions and to sneaking around at night. Tr. Transcript at 1290, 1328. The prosecutor also describes Petitioner’s actions of putting the jack in his car on the morning of the incident, coming around to the back of Terri Cole’s house, and using the jack to shatter the patio door. Tr. Transcript at 1415-16. Again, Petitioner admitted to these actions during his testimony. Tr. Transcript at 1297,1302. True statements are proper argument and they do not increase the likelihood of prejudice occurring from a totally separate, erroneous misstatement by the prosecutor. As for Petitioner’s complaints about the prosecutor’s use of the words “mean” and “liar” to describe him, the instructions to the jury prevented any prejudice from those epithets, even if they were improper.

Petitioner argues that the most egregious of the prosecutor’s acts was when he took advantage of Terri Cole’s terminal ALS and inflamed and emotionally appealed to the jury by calling Terri a “dying woman,” along with other references to her impending death. I agree with Petitioner that mention of Terri Cole’s death was not relevant to the decision before the jurors. However, the fact that Terri Cole had ALS was evidence already before the jury. Tr. Transcript at 910, 953. It is not unreasonable to believe that the jurors knew the seriousness of the disease, especially once defense counsel suggested a terminal prognosis. Tr. Transcript at 953. Although it was improper for the prosecutor to make emotional appeals to the jury, Petitioner’s trial was not unfair as a result.

Both this statement and the “there for a reason” statement were made in the rebuttal portion of the prosecutor’s closing argument. Petitioner argues that this fact makes the statements more damaging because the defense had no opportunity to respond. Generally this is true. See United States v. Cannon, 88 F.3d 1495, 1503 (8th Cir.1996) (“Because the remark came during rebuttal arguments, defense counsel was unable to respond except by objection.” (emphasis added)). But this distinction alone is not sufficient to cause unfairness rising to the level of a due process violation.

Certainly, no court can condone the prosecutor’s arguing his personal opinion, making suggestions of guilt based on indictment alone, or misstating the evidence. However, these statements were isolated remarks in the midst of over thirty-five pages of closing argument from the prosecutor. They do not constitute pronounced and persistent misconduct of the type that fatally infects a trial with unfairness. In light of the lack of objections to any of the statements by defense counsel, the instructions given by the trial judge, and the strong evidence of guilt against the Petitioner, I conclude that the prosecutor’s remarks did not make Petitioner’s trial unfair. Accordingly, the Missouri Supreme Court’s denial of this claim was not contrary to, or an unreasonable application of, federal law.

Claim IS: Prosecutor’s Penalty Phase Closing Argument

Petitioner argues that many passages from the prosecutor’s penalty phase closing argument improperly appealed to the jurors’ patriotic duty and asked them to send a message, used inflammatory rhetoric and compared the relative worth of Petitioner’s life to the lives of the victims, and improperly used invectives aimed at the Petitioner. The State argues that claims related to most of the passages are procedurally barred because Petitioner did not fully exhaust his state court appeals. In reply, Petitioner does not discuss his failure to exhaust on most of the passages, but he does argue that his exhaustion of the “patriotic duty” statements should qualify as exhaustion as to the “send a message” statements because of the similarity of these statements’ intent and effect.

The portions of the prosecutor’s closing argument that Petitioner argues are prejudicial for containing “patriotic duty” and “send a message” statements, are as follows:

When we talk about deterrents your verdicts do send a message. And, unfortunately, in the world we live in today with the crime that we’ve seen even over the last couple of years, the violent crime, it’s unfortunate but the cold, hard reality is that the death penalty is a weapon we need to have in our arsenal.

I tell you what. If it makes one person think twice, if it makes one person think twice before they point a gun at somebody, if it makes one person think twice before they stab someone repeatedly, it has deterrent value. If there’s one person out though [sic] who’s gettin’ ready to pull his gun out when he’s on the street one night and he considers the consequences, it has deterrent value. And jury verdicts do send messages. The reality of the world we live in the death penalty is a weapon we need to have in our arsenal to fight crime. And sometimes you as a St. Louis County jury are the last line of defense.

I’ll ask you to consider this: I’m not saying what you need to do. And you all told me you could consider it and give it realistic consideration after you’ve heard all the evidence, and that’s what I’m asking to you do now. I’m not trying to tell you this is easy. I’m not telling you it’s gonna be nice. But I’ll tell you there have always been times in our society when citizens, patriots, from time to time have stepped up and done the things that need to be done to protect society. It’s unfortunate but sometimes it happens.

That’s what needs to be done in this case.

Tr. Transcript at 1653-54 (Petitioner’s emphasis).

The test is whether the prosecutor’s comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181, 106 S.Ct. 2464. Despite the same test applying to guilt-phase arguments, a more searching review should be done of the penalty-phase arguments. See Kinder, 272 F.3d 532; Copeland, 232 F.3d at 974 n. 2 (“if there is any distinction between guilt and penalty phase arguments, it would seem that there should be a more searching review of the penalty phase”).

Petitioner has not met his initial burden of proving that either the “send a message” or the “patriotic duty” statement is improper. Although the statements may fall into categories similar to those found to be improper in Weaver v. Bowersox, the statements here were not similarly egregious or prejudicial. In Weaver, the prosecutor used a graphic story from a movie to analogize the jurors to soldiers with a duty to kill. 438 F.3d at 836. The Eighth Circuit emphasized that because the prosecutor used an analogy to soldiers, who “have no choice but to kill” and are “follow[ing] orders when they kill,” the prosecutor improperly “eviscerate[d] the concept of discretion afforded to a jury as required by the Eighth Amendment.” Id. at 840 (citation omitted). The court found the prosecutor’s statements improper because they were “diametrically opposed to the requirement that capital sentencing be at the jury’s discretion” and because they “diminished the jury’s sense of responsibility for imposing the death sentence.” Id. (quoting Antwine v. Delo, 54 F.3d 1357, 1361 (8th Cir.1995)). The same cannot be said about the statements made by the prosecutor in this case. The prosecutor may have called the jurors “patriots,” but such a term does not carry the same connotations as “soldiers.” Patriots may have a duty of loyalty to their country and a duty to uphold the law, but not to kill. Nothing in the prosecutor’s statements insinuated that the jurors lacked the discretion to decide whether to impose a sentence of death.

Petitioner also relies on the Weaver court’s disapproval of the prosecutor’s argument that a death verdict was necessary to “sustain a societal effort as part of the ‘war on drugs.’ ” 438 F.3d at 840. The Eighth Circuit held that those arguments violated the Eighth Amendment’s requirement that capital sentencing be an individualized decision-making process. Arguing that one case verdict will signal or affect other cases can prevent an individual determination of the appropriate punishment. Id. at 841. In this case, however, the prosecutor suggested that the death penalty is a weapon that can be used to send a message concerning increasing violent crime. A plain reading of the prosecutor’s statements, within the context of his entire closing, suggests that he was trying to emphasize the reasons why our society has the death penalty as punishment and why that punishment was appropriate for this case. His statements did not violate the Eighth Amendment’s individual determination requirement.

In addition, these statements by the prosecutor do not improperly express his personal opinion, nor was he telling the jurors to base their verdict on something other than the evidence before them. Unlike other cases where the prosecutor’s statements are potentially improper and the case for the death penalty is weak, the jury found two aggravating and no mitigating factors here. The case for death was not weak. When considered in context of the prosecutor’s lengthy closing argument, the impact from these statements is not likely to have been significant or persistent. See Copeland, 232 F.3d at 972, 975 (improper remarks in a “brief’ prosecution closing were the core of the closing and formed the crux of the argument for imposing death); Newlon v. Armontrout, 885 F.2d 1328, 1338 (8th Cir.1989) (finding the prosecutor’s improper remarks neither isolated nor ambiguous). There is no reasonable probability that the prosecutor’s statements fatally infected the trial with unfairness or affected the outcome of the penalty phase. Accordingly, the Missouri Supreme Court’s denial of this claim was not contrary to, or an unreasonable application of, Supreme Court precedent.

Claims 3 & 14: Ineffective Assistance of Counsel for Failing to Object to Prosecutor’s Closing Argument

In his third and fourteenth claims, Petitioner alleges that his trial counsel provided ineffective assistance by failing to object to the closing argument statements discussed above. To establish such a claim, the Petitioner must show that his trial counsel did not perform to the degree of skill of a reasonably competent attorney, and as a result, the Petitioner was prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, the Petitioner must first identify specific acts or omissions made by counsel that “were outside the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052. Second, the Petitioner must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Failure to satisfy either of these prongs is fatal to the claim. See Pryor v. Norris, 103 F.3d 710, 713 (8th Cir.1997). For alleged errors during the penalty phase, Petitioner must demonstrate that there is a reasonable probability that absent counsel’s inadequate representation, the jury would not have sentenced him to death. Kenley v. Armontrout, 937 F.2d 1298, 1303-04 (8th Cir.1991).

The Court in Strickland cautioned that “judicial scrutiny of counsel’s performance must be highly deferential.” Further, when measuring the reasonableness of an attorney’s acts or omissions at trial, “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052.

The Missouri Supreme Court applied Strickland to reject these claims. Cole, 152 S.W.3d at 268-69. On direct appeal the court noted that it found no error of law regarding the prosecutor’s statements during the guilt phase, and therefore found counsel was not ineffective for failing to object to them. Id. at 269. Similarly, the Missouri Court rejected Petitioner’s claim concerning the “patriotic duty” argument:

Appellant also contends that the prosecutor made an improper emotional appeal to the jurors during the penalty phase closing argument when stating, “There have always been times in our society when citizens, patriots, from time to time have stepped up and done the things that need to be done to protect society.” Appellant claims that this statement improperly implied that the jurors would be shirking their duty as patriots if they did not deliver the death penalty. Trial counsel did not object, and allegedly improper comments made by the prosecutor not preserved for review by a timely objection are reviewed only for manifest injustice under the plain error rule.

The jury was statutorily required to objectively find the presence of at least one statutory aggravator beyond a reasonable doubt to impose the death sentence. Appellant provides no evidence that the jury was subjectively prejudiced by the prosecutor’s statement. The jury found the presence of two statutory ag-gravators beyond a reasonable doubt, and when this Court independently conducted its proportionality review during Appellant’s direct appeal, the Court concluded there was “no evidence to suggest that the punishment imposed was a product of passion, prejudice, or any other arbitrary factor.”

Id. (footnotes omitted).

Petitioner has failed to show that the result of either phase at his trial would have been different had counsel objected. Moreover, defense counsel is not ineffective for failing to make a meritless objection. See Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Trial counsel’s lack of a strategic reason for failing to object is irrelevant. The Missouri Supreme Court’s holding was not an unreasonable application of Strickland or any other clearly established federal law. Petitioner’s third and fourteenth claims are denied.

Claim 4: Striking of Veniremember Chambers

Petitioner argues that the prosecutor’s use of a peremptory challenge to strike veniremember Vernard Chambers from the jury violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson held that the Equal Protection Clause of the United States Constitution prohibits using peremptory challenges to exclude jurors on the basis of race. Id. at 89, 106 S.Ct. 1712. The court uses a three-step process for evaluating whether the use of a peremptory challenge was based on purposeful discrimination. First, the defendant must make a prima facie case of racial discrimination. Second, after such a showing is made, the State must suggest a race-neutral explanation for the use of the strike. Third, after a race-neutral reason is offered, the trial court must decide whether the defendant has shown purposeful discrimination. Snyder v. Louisiana, — U.S. -, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008); Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); United States v. Jones, 245 F.3d 990, 992 (8th Cir.2001).

During Petitioner’s trial, after defense counsel made the Batson challenge to the strike of veniremember Chambers, the prosecutor offered the following reasons for why the strike was race-neutral:

In general terms Mr. Chambers — the State’s primary concern with Mr. Chambers is that he is divorced. And because of the facts and the dynamics of case— the record should reflect the State expects that the evidence that’s introduced will show that Mr. Cole was divorced from his wife Terri Cole. There was a great deal of animosity between the two of them. I’m concerned that someone who is similarly situated to Mr. Cole in that he’s divorced may be sympathetic to Mr. Cole and may not be sympathetic to Terri Cole, the victim in this case.

My primary concern is I think sometimes when people are divorced there is a great deal of animosity that flows back and forth between the two parties. And I’m afraid Mr. Chambers would sympathize with the Defendant here and maybe give Terri Cole a degree of scrutiny that I’m not sure I want to be given to her in this case.

In addition to that, Your Honor, with regard to the death penalty he stated that he was not opposed to the death penalty, but not sure if he could do it or not.

Furthermore, he has a cousin doing life in prison for a murder in Michigan.

I will say this: I would like the record to reflect that Mr. Chambers — I like Mr. Chambers. He was a juror in a case that I tried in Division 11, State versus Leo McLaughlin. He was a juror where a young man was charged with tampering with a victim in a felony murder prosecution or tampering with a witness, I should say, a Class C felony. And he was part of a jury that returned a verdict sentencing that Defendant, a young man, to 4 years — or they recommended a sentence of 4 years in the Missouri Department of Corrections and a fine.

I found that to be a good State’s oriented jury. But I’m very concerned about the fact that Mr. Chambers is divorced. And that’s why I’m striking him.

Tr. Transcript at 569-71. Defense counsel responded that there was a white male paying child support and a different white male who was never married, neither one of which was struck by the State. She also generally objected to Chambers being struck on the basis of his divorced status. Tr. Transcript at 571. The trial court denied the defense’s Batson challenge and stated: “I find that the State’s reasons for striking Mr. Chambers ... are race neutral reasons. Not done for the purpose of biasness on the part of his race.” Id. at 571.

The Supreme Court of Missouri found the prosecutor’s reasons to be race neutral and not pretextual:

Contrary to Appellant’s assertions, the two venire persons cited as being similarly situated with regard to marital status were not divorced, but had not married. The prosecutor was justified in being concerned over the animosity that may develop between divorced spouses and the sympathy Chambers may have shown Appellant.

With regard to Chamber’s ability to impose the death sentence, in addition to the statement previously cited [assuming the Appellant was unanimously found guilty he could sign a death verdict “Because that says I’ve also agreed that that’s the right thing to do”], he made the several other conflicting statements. When initially asked if he could consider a death sentence he stated, “I honestly don’t know,” and “I don’t know whether I could or not.” Only under repeated questioning, when presented with the assumption of the defendant being found unanimously guilty, did Chambers indicate that he could sign a verdict form awarding the death penalty-

A white venireperson having a nephew in prison for manslaughter and Chambers having a cousin serving life for murder are not comparative equivalents. While both venirepersons indicated they could try this case without being influenced by these experiences, only Chambers indicated that he had formed an opinion about the prior case. Chambers indicated that from speaking with family members that his cousin “got what he deserved.”

Marital status, hesitancy regarding imposing the death penalty, and having a family member in prison have all been determined to be race-neutral reasons for making peremptory strikes. Considering the totality of the circumstances as required, including Chambers’s status as a divorcee, his inconsistent statements about his ability to impose the death penalty, and his opinion concerning the murder case involving his cousin, Appellant did not demonstrate that the prosecutor’s explanation was pretextual in nature. The trial court did not erroneously validate the peremptory challenge to exclude Chambers from the jury panel.

Cole, 71 S.W.3d at 173 (footnotes omitted). Four years following this ruling on direct appeal, Petitioner filed a motion to recall the mandate in the Missouri Supreme Court. The motion requested that the court reconsider its ruling on this claim in light of intervening authority from both the United States and Missouri Supreme Courts. The motion was summarily denied.

In Snyder v. Louisiana, — U.S. -, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), the Supreme Court refused to provide any deference to the trial court’s determination of a Batson challenge because the judge gave no explanation for why he overruled the objection. 128 S.Ct. at 1208-09. The Eighth Circuit has interpreted Snyder narrowly, and has pointed out that a habe-as court must give deference not only to the trial court’s findings, but also to the determinations of the appellate court. See Smulls v. Roper, 535 F.3d 853, 860 (8th Cir.2008) (en banc). Applying the required standards, I conclude that this claim for habeas relief must be denied. Even if I examine the decision of the Missouri Supreme Court for correctness, as well as for reasonableness, I conclude that there is no basis for relief.

I will assume, without deciding, that Petitioner has established a prima facie showing of purposeful discrimination sufficient to shift the burden to the State to provide a racially-neutral explanation for its peremptory strikes. The prosecutor offered three reasons for striking Chambers: (1) Chambers’ divorced status, (2) Chambers’ hesitation about being able to impose the death penalty, and (3) Chambers’ cousin was serving a life sentence for murder in Michigan.

The State’s “primary concern” with Chambers was his divorced status. The prosecutor explained that animosity often develops between divorced parties and given that the Petitioner and victim Terri Cole were divorced, he thought it was important to strike Chambers from the jury. Petitioner argues that this reason is pre-textual because the prosecutor failed to ask any follow-up questions of Chambers concerning the circumstances of his divorce, whether animosity existed between the parties, and if such animosity would affect the trial. According to an affidavit from veniremember Chambers, if follow-up questions had been asked of him he would have told the prosecutor that there was no animosity between himself and his ex-wife. Petitioner also argues that the prosecutor failed to question a white juror who paid child support, demonstrating a contradiction between the State’s theory of the case and its use of peremptory strikes.

In voir dire, the prosecutor asked the whole panel for a show of hands as to who was not currently married and had been divorced at one time. Veniremember Chambers was the only person on the panel to raise his hand. Before this question, the prosecutor asked who was married and after this question he asked about who was paying child support. Tr. Transcript at 446-47. Although the prosecutor did not follow up his query on who was currently divorced with further questioning, it is a legitimate assumption that animosity could have arisen from a divorce and that such emotional feelings could affect a juror’s decision.

One of the basic facts of this case was that Petitioner and victim Terri Cole were divorced. The obvious hostility that existed between Petitioner and Terri Cole leading up to the crime at issue was fundamental to the State’s case. Although the State did not strike a veniremember who admitted to currently paying child support, the parties were not similarly situated in terms of marital status. Tr. Transcript at 446-47. Chambers, as a person who was divorced and not remarried, was more like Petitioner than was a juror who had been divorced but had remarried. Counsel certainly could have asked further questions, but I cannot say that the lack of follow-up questions means the strike was improper. Other courts have found marital status to be a non-racial reason for striking a juror even when the case did not involve a contentious and bitter divorce. See United States v. Martinez, 168 F.3d 1043, 1047 (8th Cir.1999); United States v. Davis, 871 F.2d 71, 72-73 (8th Cir.1989) (court affirmed strike of veniremember where prosecutor argued that an unwed person over the age of thirty was more likely to have problems with commitment and therefore have trouble reaching a verdict).

Petitioner also argues that the prosecutor’s other two reasons for striking Chambers — his incarcerated cousin and his qualms about the death penalty — were pretextual. Petitioner suggests that a white veniremember was similarly situated to Chambers in that she had a nephew serving time for manslaughter, and that a different white veniremember was similarly situated in that he had expressed the same initial hesitation as Chambers about the death penalty.

According to the Supreme Court, “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination.” Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). Deciding whether an explanation is neutral is a question of comparability. “It is well-established that peremptory challenges cannot be lawfully exercised against potential jurors of one race unless potential jurors of another race with comparable characteristics are also challenged.” Devose v. Norris, 53 F.3d 201, 204 (8th Cir.1995) (quoting Doss v. Frontenac, 14 F.3d 1313, 1316-17 (8th Cir.1994)). Neither veniremember was “otherwise-similar” to Chambers or possessed “comparable characteristics” because neither was divorced. Because Chambers’ divorced status was a nonracial reason for striking him, and no similarly situated white veniremember was allowed to serve on the jury, the prosecutor did not exhibit purposeful discrimination in striking Chambers, and the Batson challenge was properly rejected by the Missouri courts.

Petitioner argues in several supplemental filings and a motion for limited discovery that recent developments in cases arising from St. Louis County demonstrate that the prosecutor’s peremptory strikes at Petitioner’s 2001 murder trial were race based and not isolated incidents. Petitioner points to comments made by Missouri Supreme Court justices during oral argument on a case involving a Batson claim, State v. McFadden, 216 S.W.3d 673 (Mo.2007). The justices expressed concern over the volume of Batson challenges originating from St. Louis County and the number of recent rulings reversing cases on the basis of actions by that prosecutor’s office in violation of Batson. The recent rulings and remarks by some of the Missouri Supreme Court justices do not change my analysis in this case, nor do they lead me to believe that the Missouri court would decide this case differently if it were reviewing it today. The Missouri court had