Full opinion text
MEMORANDUM OPINION W. ALLEN PEPPER, JR., District Judge. Petitioner William Lee Wiley filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to challenge his otherwise final death sentence for capital murder. Procedural and Factual History Shortly after closing his convenience store around midnight on August 22, 1981, J.B. Turner and his daughter, Patricia Harvey, were shot outside of Mr. Turner’s store with a sawed-off, .20-gauge shotgun. Mr. Turner suffered a gunshot wound to his back and a fatal wound to his chest, and he died at the scene. Mrs. Harvey survived but was blinded as a result of the shooting. A black receipt box, in which Mr. Turner had placed the night’s receipts and a leather money bag containing between $350 and $400, was taken. An investigation of the scene disclosed three spent .20-gauge shotgun shells and one live round. A green army fatigue cap and black box were found near the scene of the crime. Several days later, a .20-gauge sawed-off pump shotgun was found in the weeds behind Mr. Turner’s store, and a subsequent trace revealed that William Lee Wiley, Petitioner, was the owner of the gun. Approximately two and one-half weeks later, Petitioner was arrested in Memphis, Tennessee, and he subsequently confessed to the murder and robbery. Petitioner led police to where he discarded the empty money bag and to an automobile where he had kept the shotgun hidden prior to the commission of the crime. On February 18, 1982, a jury in the Circuit Court of DeSoto County, Mississippi, convicted Petitioner of capital murder and sentenced him to death. On appeal, the Mississippi Supreme Court affirmed the jury’s finding of guilt but remanded the case for resentencing due to the prosecutor’s improper references of appellate review of the death sentence. Wiley v. State, 449 So.2d 756 (Miss.1984). On June 20, 1984, following a new sentencing hearing, a jury sentenced Petitioner to death for a second time. The Mississippi Supreme Court affirmed the sentence and denied Petitioner rehearing on March 19, 1986. Wiley v. State, 484 So.2d 339 (Miss.1986), cert. denied, 479 U.S. 906, 107 S.Ct. 304, 93 L.Ed.2d 278 (1986). Petitioner’s application for post-conviction relief was denied by the Mississippi Supreme Court on November 25, 1987, and rehearing and certiorari were later denied. Wiley v. State, 517 So.2d 1373, cert. denied, 487 U.S. 1246, 109 S.Ct. 6, 101 L.Ed.2d 957 (1988). Petitioner then filed a petition in this Court seeking federal habeas relief, which was denied by unpublished opinion and order on May 4, 1990. Wiley v. Puckett, No. DC88-132-B-O. On appeal, the United States Court of Appeals for the Fifth Circuit vacated the portion of the judgment relating to the “especially heinous, atrocious, or cruel” aggravating circumstance and remanded the matter to this Court with instructions to issue the writ unless the State initiated proceedings within a reasonable time. Wiley v. Puckett, 969 F.2d 86, 105-06 (5th Cir.1992). Petitioner filed a “Motion and Application for a Life Sentence, or, in the Alternative, for a New Sentencing Hearing” on February 23, 1993, which the Mississippi Supreme Court denied as to the life sentence but granted as to the new sentencing. Wiley v. State, 635 So.2d 802 (Miss.1993). The court remanded the matter to the DeSoto County Circuit Court, and following a jury trial, Petitioner was sentenced to death for a third time on February 3, 1995. The Mississippi Supreme Court affirmed. Wiley v. State, 691 So.2d 959 (Miss.1997), reh’g denied, 693 So.2d 384 (Miss.1997), cert. denied, 522 U.S. 886, 118 S.Ct. 219, 139 L.Ed.2d 153 (1997) (“Wiley I”). On April 17, 1998, Petitioner filed an application for state post-conviction relief, which the court denied on June 3, 1999. Wiley v. State, 750 So.2d 1193 (Miss.1999), cert. denied, 530 U.S. 1275, 120 S.Ct. 2742, 147 L.Ed.2d 1007 (2000) (“Wiley II”). A second post-conviction application was filed on October 17, 2002, which the Mississippi Supreme Court denied on April 17, 2003. Wiley v. State, 842 So.2d 1280 (Miss.2003) (“Wiley III”). Petitioner filed a third post-conviction application on June 19, 2003, based on the United States Supreme Court decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The Mississippi Supreme Court denied relief on August 26, 2004, 890 So.2d 892 (Miss.2004), and rehearing was denied on October 28, 2004. Wiley v. State, 890 So.2d 892 (Miss.2004) (“Wiley IV”). No petition for a writ of certiorari to the United States Supreme Court was filed. Petitioner filed his initial petition for a writ of habeas corpus with this Court on June 29, 2000, 530 U.S. 1275, 120 S.Ct. 2742, 147 L.Ed.2d 1007 (2000), and his third and final amended petition was filed on December 14, 2004 (docket entry no. 23). On February 2, 2007, 2007 WL 405041, this Court denied Petitioner relief on all fourteen claims of error raised in his petition, but it later withdrew the opinion, order, and judgment when it partially granted Petitioner’s motion to alter the judgment based solely upon its resolution of Petitioner’s Atkins claim. {See docket entry no. 38). The Court held an evidentiary hearing on Petitioner’s Atkins claim on June 17, 2009. Petitioner and Respondents have had the opportunity to file post-hearing briefs on the issue of whether Petitioner suffers from mental retardation, and the Court is now ready to rule on all of Petitioner’s claims of error. Petitioner raises the following claims of error from his 1995 State court proceedings: I. WILEY WAS DENIED HIS FEDERAL CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL OF HIS SENTENCING TRIAL. II. WILEY WAS DENIED HIS SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT HIS SENTENCING TRIAL. III. WILEY WAS DENIED HIS EIGHTH AND FOURTEENTH AMENDMENT RIGHTS WHEN THE MISSISSIPPI COURTS ALLOWED EXTENSIVE DISCUSSION OF PAROLE DURING VOIR DIRE. IV. WILEY WAS DENIED HIS EIGHTH AND FOURTEENTH AMENDMENT RIGHTS WHEN THE MISSISSIPPI COURTS REFUSED WILEY’S PROPOSED JURY INSTRUCTION ON THE “DIMINISHED CAPACITY” STATUTORY MITIGATING FACTOR. V. WILEY WAS DENIED HIS EIGHTH AND FOURTEENTH AMENDMENT RIGHTS WHEN THE MISSISSIPPI SUPREME COURT FOUND THAT WILEY’S DEATH SENTENCE WAS PROPORTIONAL TO COMPARABLE CASES. VI. WILEY’S EIGHTH AND FOURTEENTH AMENDMENT RIGHTS WERE VIOLATED BY THE STATE’S REPEATED REFERENCES TO PAROLE. VII. WILEY’S EIGHTH AND FOURTEENTH AMENDMENT RIGHTS WERE VIOLATED BY THE TRIAL COURT’S DECISION TO STRIKE ALL REFERENCES TO MERCY AND SYMPATHY FROM THE JURY INSTRUCTION. VIII. WILEY’S EIGHTH AND FOURTEENTH AMENDMENT RIGHTS WERE VIOLATED BY THE STATE’S IMPROPER “SEND A MESSAGE” ARGUMENT. IX. WILEY’S EIGHTH AND FOURTEENTH AMENDMENT RIGHTS WERE VIOLATED BY THE IMPOSITION OF A DEATH SENTENCE IN RELIANCE ON THE AVOIDING ARREST AGGRAVATING FACTOR. X. THE TRIAL COURT’S FAILURE TO DEFINE THE ELEMENTS OF ROBBERY FOR THE JURY VIOLATED THE EIGHTH AND FOURTEENTH AMENDMENTS. XI. WILEY’S SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS WERE VIOLATED BY TRIAL COUNSEL’S FAILURE TO INVESTIGATE AND PRESENT MITIGATION EVIDENCE CRUCIAL TO THE SENTENCING DETERMINATION. XII. THE MISSISSIPPI SUPREME COURT’S DENIAL OF INVESTIGATIVE FUNDS TO WILEY VIOLATED HIS EIGHTH AND FOURTEENTH AMENDMENT RIGHTS. XIII. EXECUTION OF WILEY, WHO IS MENTALLY RETARDED, WOULD VIOLATE THE EIGHTH AND FOURTEENTH AMENDMENTS UNDER ATKINS V. VIRGINIA, 536 U.S. 304 (2002). XIV. THE ACCUMULATION OF ERROR IN THIS CASE VIOLATED WILEY’S SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS. Petitioner’s claims, while individually considered, have been renumbered and consolidated for the sake of convenience. Applicable Standard Petitioner filed his federal habeas corpus petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”); therefore, the AEDPA governs this Court’s review of his claims. See Penny v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Title 28 U.S.C. § 2254(a) allows a district court to consider a petitioner’s application for writ of habeas corpus based on a claim that the petitioner is, as a result of a state court judgment, “in custody in violation of the Constitution or laws or treaties of the United States.” The AEDPA prohibits a petitioner’s relitigation of issues that were adjudicated on the merits in state proceedings unless that adjudication either “(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.” See Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); 28 U.S.C. § 2254(d)(1) and (2). A state court’s factual findings carry a presumption of correctness on federal habeas review, and a petitioner wishing to challenge state court fact-finding must rebut the presumption by clear and convincing evidence. See Foster v. Johnson, 293 F.3d 766, 776 (5th Cir.2002); Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.2000), cert. denied, 531 U.S. 849, 121 S.Ct. 122, 148 L.Ed.2d 77 (2000). The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) have independent meanings. See Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Penny, 532 U.S. at 792, 121 S.Ct. 1910; Williams, 529 U.S. at 404-05, 120 S.Ct. 1495. A federal court may grant habeas relief under the “contrary to” clause if (1) the state court’s conclusion on a question of law is opposite that reached by the Supreme Court, or (2) the state court decides a case differently than the United States Supreme Court has on facts that are materially indistinguishable. See Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003); Bell, 535 U.S. at 694, 122 S.Ct. 1843; Penny, 532 U.S. at 792, 121 S.Ct. 1910; Williams, 529 U.S. at 404-06, 120 S.Ct. 1495. Under the “unreasonable application” clause, a federal court may grant habeas relief if the state court identifies the applicable legal principle from decisions of the Supreme Court but unreasonably applies the principle to the facts at issue. See Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002); Bell, 535 U.S. at 694, 122 S.Ct. 1843; Penny, 532 U.S. at 792, 121 S.Ct. 1910; Williams, 529 U.S. at 407-08, 120 S.Ct. 1495. The “unreasonable application” in quiry requires a federal court to question whether the state court’s application of Supreme Court precedent was “objectively unreasonable,” which requires more than a showing that the decision was merely incorrect. See Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003) (“[I]t is the habeas applicant’s burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner.”); Woodford, 537 U.S. at 25, 123 S.Ct. 357; Penny, 532 U.S. at 793, 121 S.Ct. 1910; Williams, 529 U.S. at 409-11, 120 S.Ct. 1495; Bell, 535 U.S. at 694, 122 S.Ct. 1843. Moreover, it is the ultimate decision or conclusion reached by the state court that is reviewed, and not the quality of the opinion. See Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.2003) (question before federal habeas court is whether ultimate conclusion of state court was objectively reasonable); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc) (holding § 2254(d) authorizes federal court to review state court’s decision only and not explanation of decision). The AEDPA imposes the burden of obtaining an evidentiary hearing in federal court on the petitioner, and it also limits the circumstances in which an evidentiary hearing may be granted for those petitioners who have failed to diligently seek to establish the factual bases for their claims in state court. See Williams, 529 U.S. at 433-34, 120 S.Ct. 1479 (prisoners at fault for deficiency in state court record must satisfy heightened standard to obtain evidentiary hearing); Clark v. Johnson, 202 F.3d 760, cert. denied, 531 U.S. 831, 121 S.Ct. 84, 148 L.Ed.2d 46 (2000); McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir.1998); 28 U.S.C. § 2254(e)(2). With the foregoing principles in mind, this Court turns to the merits of Petitioner’s claims for federal habeas corpus relief. I. Ineffective Assistance of Counsel A criminal defendant is entitled to the effective assistance of counsel. See Douglas v. California, 372 U.S. 353, 357-58, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). A claim of ineffective assistance of counsel may only be sustained upon proof that (1) trial counsel’s performance was deficient, and (2) trial counsel’s deficiency resulted in prejudice to the defendant. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both the “deficiency” and the “prejudice” prongs must each be satisfied, or it cannot be said that the adversarial process was so lacking that it rendered an unreliable result, thereby denying Petitioner a fair trial. See id. To show he was deprived of a fair trial, Petitioner must overcome the presumption that counsel rendered reasonable professional assistance by showing counsel’s errors prejudiced his defense to such a degree that there exists a reasonable probability that if those errors were not committed by counsel, the outcome of trial would have been different. See id. at 694, 104 S.Ct. 2052 (holding “reasonable probability is a probability sufficient to undermine confidence in the outcome”); Lockhart v. McCotter, 782 F.2d 1275, 1283 (5th Cir.1986) (deficiency of counsel that results in error that raises reasonable probability results of proceedings would have been different but for the error denies defendant effective assistance of counsel). Moreover, Petitioner must overcome the presumption of effective assistance by demonstrating counsel’s actions were not within the province of a reasonable trial strategy. See id. at 689, 104 S.Ct. 2052. Ordinarily, failure to raise a claim on appeal bars it from further review. See Miss.Code Ann. § 99-39-21(1). Normally, in order to overcome the imposition of a procedural bar considered independent of federal law and adequate to support the judgment, a petitioner must demonstrate cause for the default and resulting prejudice. See, e.g., Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The Court notes, however, that a meritorious ineffective assistance of counsel claim can establish cause to overcome the imposition of a procedural bar and allow a review of a defaulted claim. See Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). A. Appeal: “Avoiding Arrest” Aggravator Petitioner asserts he received ineffective assistance of counsel on direct appeal of his resentencing trial when counsel failed to appeal the jury’s finding of the “avoiding arrest” statutory aggravating factor. (Pet. Memo 8). Two statutory aggravating factors were found by the jury: (1) that the murder was committed during the course of a robbery, and (2) that the murder was committed for the purpose of avoiding arrest. Trial counsel objected to the submission of the factor to the jury on the basis that it was unsupported by the evidence, but appellate counsel failed to raise a challenge to the jury’s finding of the aggravating factor. (Trial Tr. vol. 7, 630, January 26, 1995)(No. 95-DP-149). Petitioner asserts appellate counsel’s failure to raise this argument constituted ineffective assistance of counsel for three reasons. First, he argues that no evidence existed the robbery and murder were carried out to avoid arrest. Second, he maintains that if the evidence is sufficient to allow the offense to fall within the factor, it is invalid as constitutionally overbroad. Third, he contends that it is impermissibly duplicative of the “during the commission of a robbery” aggravating factor. (Pet. Memo 9). Petitioner argues that if these issues had been raised, the factor would have been reversed by the Mississippi Supreme Court, leaving one aggravating factor and no record of the mitigating factors found by the jury, thus raising a “strong likelihood” that the death sentence would have been vacated. (Pet. Memo 9-10). In the instant petition, Petitioner argues as a substantive claim that the “avoiding arrest” aggravator is invalid as an attempt to demonstrate his counsel’s ineffectiveness. Petitioner appears to rely upon what he deems the obvious merit of his argument in order to establish cause for the defaulted substantive claim, which is also raised as a separate claim of error. As his ineffective assistance claim argues the merits of the substantive claim, the substantive claim will be here analyzed to avoid later repetition of Petitioner’s arguments on the substantive merits. 1. Insufficient Evidence to Support the Avoiding Arrest Aggravating Factor The aggravating factor of “avoiding a lawful arrest” requires proof beyond a reasonable doubt that evidence exists allowing a reasonable inference “that a substantial reason for the killing was to conceal the identity of the killer or killers or to ‘cover their tracks’ so as to avoid apprehension and eventual arrest by authorities.” Leatherwood v. State, 435 So.2d 645, 651 (Miss.1983); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (“[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”); United States v. Bernard, 299 F.3d 467, 481 (5th Cir.2002) (aggravating factors must be proven beyond reasonable doubt). A conviction which rests upon the adduction of insufficient evidence at trial is a violation of due process rights. See Jackson, 448 U.S. at 324, 99 S.Ct. 2781. The determination of whether the aggravating factor was appropriately submitted requires a fact-specific analysis to determine whether credible evidence exists to support the jury’s finding that the murder was committed for the purpose of avoiding or preventing arrest. See, e.g., Woodward v. State, 726 So.2d 524, 541 (Miss.1997). Petitioner first argues that there is no case law precedent in Mississippi sustaining this aggravating factor where a potential witness other than an accomplice was left alive. (Pet. Memo 11). Petitioner argues Mrs. Harvey, a woman who had done business with Petitioner and could positively identify him, was knowingly left alive; therefore, avoiding arrest could not have been a “substantial reason” for Mr. Turner’s murder. (Pet. Memo 11). Petitioner asserts that the remaining evidence is insufficient to support the finding of the aggravator, as he left evidence at the scene, confessed when questioned by authorities, and led police to evidence left near the crime scene. (Pet. Memo 12-13). Petitioner contends that the facts establish he shot into the air and pellets scattered, thereby injuring the victims, and that Mr. Turner was shot only after he drew his own weapon. (Pet. Memo 13-14). Petitioner asserts these facts suggest the murder was the result of a botched robbery and not a killing to avoid arrest for the crime, and that the application of this particular aggravating factor is only proper where the evidence establishes the murder was an attempt to avoid “detection and arrest” for the robbery. (Pet. Memo 11-12, referencing, e.g., Evans v. State, 725 So.2d 613, 690 (Miss.1997)). Respondents counter that the facts support the application of the factor, as Petitioner (1) planned the robbery; (2) hid the gun prior to the robbery; (3) laid in wait for the store to close; (4) shot both Mr. Turner and his daughter; and (5) fled to Memphis, Tennessee. (R. Memo 122). In Evans v. State, which involved the rape and murder of a child by a defendant who befriended the family and deceived the mother in order to effectuate the child’s abduction, the defendant argued that the aggravator was not appropriately applied, as “attempts to avoid detection after the killing, as occurred here, are arguably relevant only if there is some evidence that the defendant committed the offense in order to avoid detection.” Evans, 725 So.2d at 689. He also asserted, in addition to insufficient evidence, that the aggravator was vague and overbroad, but the court found no limiting instruction was needed if evidence supported the instruction. Id. The court noted the defendant took the victim to a secluded area, taped her mouth, kept everything he used during the commission of the crime in his jeep to avoid leaving evidence at the scene, dumped the body in a secluded area, and disposed of the victim’s clothing by the side of the highway. Id. at 690. The aggravator was supported, as “[t]he jury had before it evidence which indicated from the time Evans abducted Beatrice from her mother, he used special precaution to avoid detection or apprehension.” Id. In the case at bar, the court noted that the victims knew Petitioner, that Petitioner fired three shots, killing one witness and seriously injuring the other, that he left the murder weapon and box that had contained the money bag in a densely thicketed area, and that he threw the empty money bag in some weeds near a dirt road. Wiley II, 750 So.2d at 1206. The court found “there is evidence from which the jury could have reasonably inferred that a substantial reason for the murder was to conceal Wiley’s identity, or cover his tracks, so as to avoid apprehension and eventual arrest. Therefore, the granting of the instruction on this aggravator was proper.” Id. The court also individually considered the substantive claim of insufficient evidence on post-conviction review, and the Mississippi Supreme Court found there to be sufficient evidence to warrant a finding of this aggravator. Id. at 1210. The “avoiding arrest” aggravator is properly considered if the motive for the murder is to avoid arrest for the commission of the underlying felony. Gray v. Lucas, 677 F.2d 1086, 1110 (5th Cir.1982). In Petitioner’s case, the jury heard testimony that Petitioner laid in wait for his victims, familiar to Petitioner, prior to emptying his weapon at them. Petitioner shot Mr. Turner twice — a scatter-shot to the back and a close-range, fatal shot to the chest. (Trial Tr. vol. 6, 455-56, January 24, 1995). Petitioner fled the scene, disposing of the murder weapon and money box in an almost unpenetrable thicket. (Trial Tr. vol. 6, 473). This Court cannot say the jury lacked credible evidence to support their finding that the “avoiding arrest” aggravating factor was warranted. Petitioner has failed to prove the Mississippi Supreme Court was objectively unreasonable in determining the evidence in this case was sufficient for a rational trier of fact to find the aggravator warranted. There exists no reasonable probability that proceedings against Petitioner would have resulted differently had this issue been raised on direct appeal; therefore, there can be no resulting prejudice from counsel’s failure to raise the issue. 2. If the “avoiding arrest” aggravating factor is broad enough to include the evidence in this case, then that factor is unconstitutionally overbroad. Petitioner next argues that if the evidence in this case establishes that- he murdered to “avoid arrest,” then the aggravating factor is impermissibly overbroad, as it fails to genuinely narrow the facts of this capital murder from any other capital murder. (Pet. Memo 15-16). Specifically, Petitioner argues that the only basis for the conclusion that he murdered to avoid arrest is that he killed a person who otherwise could have identified him, which is a fact established any time a defendant kills a witness. (Pet. Memo 15). Petitioner asserts that the failure of counsel to raise this argument was deficient and prejudiced Petitioner, as had it been raised, the death sentence would have been invalidated. The injection of an unconstitutionally overbroad factor into the weighing scheme of capital sentencing requires invalidation of the sentence. See Stringer v. Black, 503 U.S. 222, 237, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). An aggravating factor must provide a “meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” Godfrey v. Georgia, 446 U.S. 420, 427, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (quoting Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)); see also Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). Therefore, an aggravating factor “must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). The application of a vague aggravator is a violation of the Eighth Amendment because it “creates the risk that the jury will treat the defendant as more deserving than he otherwise might be by relying on the existence of an illusory circumstance.” Stringer, 503 U.S. at 235,112 S.Ct. 1130. The Mississippi Supreme Court rejected the argument that a limiting instruction must be given to narrow the “avoiding arrest” aggravator. Wiley II, 750 So.2d at 1207. The Fifth Circuit has specifically determined that Mississippi’s construction serves to appropriately narrow the application of this factor to those defendants who purposefully killed their victim to avoid or prevent arrest for the commission of the underlying felony. See Gray, 677 F.2d at 1110. Petitioner attempts to distinguish his case from Gray v. Lucas, by arguing that all of the witnesses in that case were killed by the defendant after he completed the crime in order to avoid detection. This distinction is without merit given the steps taken by Petitioner to avoid being caught with the implements of his crime. Petitioner points the Court to no applicable precedent which would require a limiting factor for this aggravator, and the Fifth Circuit has determined Mississippi’s sentencing scheme adequately narrows the application of this factor. Petitioner is entitled to no relief on this issue. 3. The “avoiding arrest” factor is impermissibly duplicative of the “robbery” aggravating factor. Petitioner next argues that if the “avoiding arrest” factor is interpreted to include the facts of this case, then it is so broadly interpreted that it includes all murders committed during the course of a robbery. (Pet. Memo 17-18). See Miss.Code Ann. § 99-19-101(5)(d) (murder committed during commission of robbery). Petitioner cites Booker v. State, 699 So.2d 132, 136 (Miss.1997), in support of his argument that the silencing of a potential witness who might have facilitated the defendant’s arrest is true of every robbeiy murder, so that circumstance is already accounted for and weighed against the defendant by the application of the “robbery” aggravating factor. (Pet. Memo 18). Petitioner argues that counsel’s failure to raise this claim was deficient and prejudiced him, as his sentence would have been reversed had the issue been raised. (Pet. Memo 18-19). Respondents argue that Mississippi has a long-standing precedent that the “avoiding arrest” aggravator is not imposed without proof the defendant killed to “cover his tracks,” and a capital defendant is not entitled to a limiting instruction on the “avoiding arrest” aggravator. See, e.g., Manning, 735 So.2d at 350; Bell v. State, 725 So.2d 836, 858 (Miss.1998), cert denied, 526 U.S. 1122, 119 S.Ct. 1777, 143 L.Ed.2d 805, reh’g denied, 527 U.S. 1054, 120 S.Ct. 16, 144 L.Ed.2d 820 (1999); Evans, 725 So.2d at 689-90; Holland v. State, 705 So.2d 307, 355-56 (Miss.1997), cert. denied, 525 U.S. 829, 119 S.Ct. 80, 142 L.Ed.2d 63, reh’g denied, 525 U.S. 1013, 119 S.Ct. 533, 142 L.Ed.2d 443 (1998). In light of that precedent, Respondents argue, Petitioner was unlikely to be afforded relief even if this issue had been raised with the court on direct appeal, thereby precluding a showing of prejudice. Respondents assert that there is no proper analogy between this case and Booker, as the latter involved the application of robbery and pecuniary gain aggravating circumstances. Respondents also argue that even if an analogy could be made between the avoiding arrest/robbery to robbery/pecuniary gain, the Fifth Circuit has ruled it would have to create a new rule in violation of Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to find constitutional error. See Wiley v. Puckett, 969 F.2d at 95-98 (5th Cir.1992). In the context of ineffective assistance of counsel and on application for post-conviction relief, the Mississippi Supreme court held that “avoiding arrest” and “robbery” aggravators are not the same, as more evidentiary support is required to support an instruction on the “avoiding arrest” factor. Wiley II, 750 So.2d at 1208. Therefore, there was no ineffective assistance of counsel as counsel’s performance, even assuming deficiency, did not support a finding of prejudice. Id. Under federal law, each aggravating circumstance must distinguish the class of defendants who are eligible for the death penalty. See Zant, 462 U.S. at 877, 103 S.Ct. 2733. As long as narrowing is performed at either the guilt or sentencing phases, the aggravating factor’s duplication of an element of the crime does not offend the Constitution. See, e.g., Williams, 529 U.S. at 392, 120 S.Ct. 1495; Lowenfield v. Phelps, 484 U.S. 231, 246, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). Petitioner’s reliance on Booker is misplaced, as that case involved the application of robbery and pecuniary gain aggravating circumstances to an underlying felony of robbery. Petitioner has pointed to no case which holds it impermissible to use both the robbery and avoiding arrest aggravators in the same case, and Mississippi’s scheme serves to narrow the class of persons eligible for the death penalty. Petitioner’s claim that the aggravators are impermissibly duplicative is without merit. Having addressed the substantive merits of this claim and finding no constitutional error, this Court finds that Petitioner’s ineffective assistance of counsel claim must fail, as a finding of constitutional infirmity with regard to the underlying claim is necessarily required to meet the prejudice prong of Strickland. While this alone would preclude federal habeas relief on this issue, the Court will fully address the ineffective assistance of counsel claim on this issue without regard to the merit of the underlying claim. The United States Supreme Court has held that the failure to raise a claim on appeal objected to at trial could not be an “error of such magnitude that it rendered counsel’s performance constitutionally deficient under the test of Strickland.” Smith v. Murray, 477 U.S. 527, 535, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). In Smith, petitioner’s counsel objected to testimony at trial and did not raise the related claim on appeal. Id. at 534, 123 S.Ct. 2527. The Court, recognizing that the acceptance of an argument when the opportunity to raise the issue in state court was deliberately foregone would violate comity principles, failed to accept petitioner’s argument that counsel’s decision was made in ignorance of the claim’s merit. Id. at 535, 123 S.Ct. 2527. The Court found that argument “squarely foreclosed,” as “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Id. at 535, 123 S.Ct. 2527 (citing Carrier, 477 U.S. at 486-87, 106 S.Ct. 2678). In addition, appellate counsel does not have to raise every nonfrivolous issue in order to meet the standard of effectiveness. See Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir.1998); West v. John son, 92 F.3d 1385, 1396 (5th Cir.1996). It is often a strategic move to eliminate what counsel perceives, based on his experience, weaker arguments to avoid diluting the strength of his case. See Jones v. Barnes, 463 U.S. 745, 752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Moreover, with regard to Petitioner’s third sub-issue under this claim, the United States Supreme Court has found counsel not ineffective for failing to object to an aggravating circumstance that duplicated the underlying felony. See Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). Having considered Petitioner’s arguments under this claim of error, this Court finds that the decision of the Mississippi Supreme Court in regard to these claims does not represent a decision contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Petitioner is entitled to no relief on this claim of error. B. Sentencing & Appeal: Comments Regarding Parole Petitioner asserts he received ineffective assistance of counsel at his resentencing trial with regard to two issues involving references to parole: (1) that trial counsel failed to object to veiled references to the possibility of Petitioner’s parole if he was not sentenced to death; and (2) appellate counsel failed to point out these references, contained in the record, to the Mississippi Supreme Court on direct appeal of the claim. While each of these claims has been given individual consideration, they are combined for purposes of the Court’s analysis. Petitioner cites to three portions of the record in support of his ineffective assistance of counsel claim: (1) voir dire; (2) the cross-examination of three defense witnesses; and (3) the State’s closing argument. During voir dire, several venire members questioned the trial court extensively about whether Petitioner would be given parole if he were sentenced to life in prison. (Trial Tr. vol. 4, 152-154, 159-162, January 23, 1995). The following excerpts from the trial transcript illustrate the venire’s inquiries on the subject. Q. [DISTRICT ATTORNEY WILLIAMS:] But the point is under state law sentencing is individualized. Okay? You’ve got to hear the evidence, good and bad, about this man and what he did to Mr. Turner in August of 1981 before you can weigh it. There’s no automatic death. There may be cases where the death penalty is not the proper punishment. There may be cases where it is. But in order to comply with state law, those elements have to be weighed by a jury. Okay? Yes, Sir? A. [Prospective Juror No. 32:] No. 32, Paul Cetto. Could you be a little more specific as to what process you’re going to go through to have us arrive at this decision? (Trial Tr. vol. 4,150). $ ‡ ‡ ‡ ‡ $ Q. [DISTRICT ATTORNEY WILLIAMS:] We’re going to have to show you the proof. Otherwise, I don’t know how you could make a decision. Does that answer you? A. Thank you. Q. Yes, ma'am? A. (Unidentified Prospective Juror) I have a question. Is this life with no parole or do they — will there be an opportunity for this jury to distinguish no parole as opposed to the death penalty? THE COURT: The law says life in prison. The courts or the juries have absolutely nothing to do with parole laws. If the jury finds this person guilty, which has been done, if the jury sentences him to life, we don’t know whether it’s life with or without because that’s up to the executive department. When a jury speaks and when the Court sentences, we’re through with that part of it. Q. [DISTRICT ATTORNEY WILLIAMS]: Ma’am, does that— A. I didn’t know if there was an alternative of no parole. A. (Unidentified Prospective Juror) So he could get out after 20 years? THE COURT: I think the jury must — I can’t answer those type questions. I think the jury is just going to have to approach it as the prosecutor has been saying' — take this, take this and weigh it and make your decision based upon the way you see the evidence, not upon some uncertainty unknown down the road which you have no control over and I have no control over and just call it the way you see it at the conclusion of the trial. That’s the only thing we can do. All those contingencies, I don’t know what the answers are, nor does anyone else. I would go back just a minute. I think [the District Attorney] is about to wind down here. If you went back 20 or 30 years ago, the Legislature in Jackson determined what cases carried the death penalty. That didn’t make any allowance for local feelings or decisions. Now, if a certain offense falls within this category, then it’s up to the people in DeSoto County up here to determine whether that’s a vote death penalty case or a life in prison case. It individualizes rather than a big body like the Legislature trying to speak for the state as a whole. It gives the local people an opportunity to take into consideration the crimes and also take into consideration the defendant himself and everything that can be legally admissible about him where you can make the decision based upon all the evidence that can be made available to you rather than just having a category. I don’t know whether that helped you or not, but it will never be taken away from you. You will be the ultimate decision makers. (Trial Tr. vol. 4,152-53). [DISTRICT ATTORNEY]: Anybody else having problems with the death penalty? Yes, Ma’am? A. (Ms. Deborah Buckley). No. 183. Q. Ms. Buckley? A. I just have a question. If the jury decides — does not unanimously decide for the death penalty and life imprisonment is the decision, who — when is— when is it justified — when would it ever be decided that it would definitely be life without parole? I was under the impression that decision could be made in lieu of the death penalty. And what I’m understanding you to say is that the death penalty is not the choice — there is a possibility that he would be given life imprisonment with parole as a possibility. Is that what you’re saying? THE COURT: That’s a possibility, yes. PROSPECTIVE JUROR DEBORAH BUCKLEY: But no jury has the right to say that it’s life without parole? THE COURT: The current status of the law is I’ll instruct you as to exactly what the law says now, and that is if you prescribe death, that’s your decision; if you prescribe life in prison, that’s your decision. Those are the two options that I’ll be— PROSPECTIVE JUROR DEBORAH BUCKLEY: So that is an option? THE COURT: Yes. It will be in clear black and white print just like I said it just then. A. (Ms. Margaret Yates) Is that like a hole in the law? To me — I don’t know the circumstances of the case or what happened, and if I look at this case and see that I think this man would be a menace to society for the rest of his life and I don’t vote for the death penalty but life imprisonment, I would be inclined more to vote for the death penalty because I don’t know if he’s going to get out. Is this a— THE COURT: What is your number ma’am? PROSPECTIVE JUROR MARGARET YATES: Oh, I’m sorry, 182. THE COURT: Ms. Yates, let me try to help you if I can. I don’t know whether I can or not. PROSPECTIVE JUROR MARGARET YATES: That kind of bothers me. THE COURT: I understand that, but you’re just exactly like I am and just like the lawyers on both sides. We have to take the law as we find it today, and we have to work with it as we find the law today. PROSPECTIVE JUROR MARGARET YATES: So even if we vote for life imprisonment, we’re not guaranteed life in prison. THE COURT: No, ma’am. You’ll be doing exactly what the law says. That’s what the law says. If there’s parole down the road somewhere, I don’t have any control of it. I can’t guess. I can’t second guess it nor can you. PROSPECTIVE JUROR MARGARET YATES: Okay. That’s somebody else’s job. THE COURT: The Legislature prescribes the punishment, and once we do that, our job ends, and I’m not a soothsayer; I don’t know what’s down the road nor do you. We’ll just follow the law as the Legislature and the Supreme Court tells us it is today and do the best we can. Q. [THE DISTRICT ATTORNEY WILLIAMS]:Anybody else? Yes, sir? PROSPECTIVE JUROR DAN BRIGHT: No. 52, Dan Bright. In other words, what you’re saying, Your Honor, is that if given the choice of life imprisonment or the death penalty, if the jury went with life in prison, the defendant could get out tomorrow, he could be paroled tomorrow technically? THE COURT: Well, not tomorrow. PROSPECTIVE JUROR DAN BRIGHT: Well, as soon as the trial is over, as soon as he goes back to jail? THE COURT: Well, at some point in time, possibly yes, I don’t know. The sentencing statute says life in prison. (Trial Tr. vol. 4,159-162). Petitioner argues that the discussion on voir dire set the stage for the prosecutor to impermissibly argue the parole issue through veiled references throughout witness testimony and in closing argument. Petitioner contends that his counsel failed to file a reply brief on direct appeal to the State’s assertion that there was no prejudicial discussion of parole during the course of the trial, thereby rendering constitutionally deficient performance by failing to cite what he asserts as the numerous references to parole during witness testimony and in closing argument. (Pet. Memo 23). Petitioner cites the cross-examination of three defense witnesses in support of his argument. First, Dr. Bill Fox, a psychologist, testified on Petitioner’s behalf, and Petitioner asserts the prosecutor’s questions implied Petitioner would MU again if released. (Pet. Memo 23). On direct examination, Dr. Fox was questioned as to Petitioner’s prognosis, and Dr. Fox stated he was of the opinion that Petitioner’s prognosis was “good” provided the appropriate structured treatment could be put into place. (Trial Tr. vol. 6, 552, January 25, 1995). On cross-examination, the prosecutor questioned Dr. Fox regarding his belief that Petitioner suffered from “weak internal controls,” such as below-average IQ, a learning disability, and drug/aleohol dependence, in order to attempt to demonstrate those were not mitigating factors in this case. (Trial Tr. vol. 6, 553-68). In response to Dr. Fox’s statement that weak internal controls combined with substance abuse likely led to Petitioner’s uncharacteristic behavior, Petitioner cites the following exchange as an uninvited, impermissible reference to Petitioner’s future dangerousness. Q. That’s the point. It could have then, and it could now? A. Yeah, I— Q. There’s no way that your science can predict human behavior, is there? A. No. I would — if I’m agreeing with you, I would agree with you that Mr. Wiley needs to stay away from any kind of substance abuse, any kind of alcohol, or this type of behavior can occur again. Q. And there’s absolutely no way that you can ensure that he won’t be an abuser, is there? (Trial Tr. vol. 6, 567). Next, Petitioner cites the cross-examination of Dr. Robert Ritter, a neuropsychiatrist who testified on Petitioner’s behalf. On direct examination, Dr. Ritter testified Petitioner was not a sociopath given to an antisocial pattern of behavior. (Trial Tr. vol. 6, 574-75, January 25, 1995). Dr. Ritter testified that Petitioner’s substance abuse created an upset in the interaction between the “animal brain” and “thinking brain” that could have caused aberrant behavior. (Trial Tr. vol. 6, 575-76). On cross-examination, Dr. Ritter testified Petitioner suffered from no brain damage or disease, but that he had consistently ingested intoxicating substances for such a lengthy period of time that he suffered from an addiction and compulsion to obtain the addictive substances. (Trial Tr. vol. 7, 579-80, 582). Upon further questioning, Dr. Ritter stated it was likely Petitioner was controlled by the animal portion of his brain during the two weeks Petitioner was in hiding from the police. (Trial Tr. vol. 7, 590). The exchange regarding the “animal brain” led to the series of questions Petitioner now cites as calculated questions to ensure the jury knew Petitioner could be paroled if not sentenced to death. (Pet. Memo 25). The complained of exchange is as follows: Q. Yes. So we could, in fact, say Wiley acted out his old brain predatory instincts on August 22, 1981, when he robbed and murdered Mr. Turner and blinded his daughter? A. That would be true because at that time he had a diminished cerebral activity, cerebral ability. Q. Yes, sir. And, of course, since that time, Mr. Wiley has been in custody? A. Yes, sir. Q. And, hopefully, he has not had access to any of these substances which he enjoys since he’s been arrested. A. I would assume that to be true, and I think it is true, sir. (Trial Tr. vol. 7, 590-91). * * * * * * Q. [I]f he had access to alcohol or narcotics or any of these other substances, because of his lack of inner control he would return right to those abuses, wouldn’t he? A. He does have that tendency, as I see it. Q. Which means? A. A person who has been addicted to a substance in the past is more likely to return to that substance than you or I. Q. Which means that Wiley is capable of repeating this whole process? A. Yes, sir. (Trial Tr. vol. 7, 591-92). Finally, the cross examination of Rev. Ronald Padgett, Director of Religious Programs at Mississippi State Penitentiary, is cited as an allusion to a parole reference. (Pet. Memo 25-26). Rev. Padgett testified to his good experience with Petitioner and his belief that Petitioner was repentant of his crimes. (Trial Tr. vol. 7, 599). On cross-examination, the following testimony was elicited: Q. Of course, [prison is] a fairly structured environment, is it not? A. Sure. Yes, it is. Q. There’s no — of course, inmates don’t have access to drugs or alcohol or shouldn’t have? A. Okay, shouldn’t have. Q. It’s a whole lot different than an outside environment? A. Yes, it is. (Trial Tr. vol. 7, 601). With regard to the portion of his claim concerning the prosecutor’s closing argument, Petitioner cites the following passages as error: Well, I’ve seen a lot of psychiatrists and a lot of psychologists take this witness chair and others throughout this state and elsewhere, and I guarantee you one thing: They can’t tell you what is a killer by instinct and what isn’t. As the good doctor said, the science of the human mind is not an exact science. You can’t look at a guy and say he’s going to kill or not. And with all due respect for Mr. Jones’ statement that this was a one-time thing, this was a one-time thing, there is no proof to support it. You don’t know, I don’t know, Judge Baker don’t know, the Turners don’t know, Mr. Kelly don’t know, Mr. Wiley’s lawyers don’t know, his family don’t know whether it’s a onetime thing or not and perhaps he don’t know. (Trial Tr. vol. 7, 698). jjt i¡: ❖ ‡ ^ And we all know, as the good doctor said, what the success rate of treatment is, about 75 percent failure, so to sit up here and tell you that this was a onetime thing, there’s no proof to support it. They want to talk about me getting into speculation, to get up here and tell you that there’s proof to support the theory that it’s a one-time thing is more speculation than I’ve engaged in. There is no way anybody can tell you what’s in a human mind and what it’s going to do. (Trial Tr. vol. 7, 699). Petitioner asserts that the combination of witness testimony and closing argument regarding what Petitioner might do if he came into contact with drugs or alcohol were references to the possibility of parole, seized upon by the prosecution from the comments made during voir dire. (Pet. Memo 27). Petitioner contends trial counsel’s failure to object to these references and appellate counsel’s failure to demonstrate to the Mississippi Supreme Court that the references were veiled parole remarks resulted in the jury’s consideration of arbitrary factors that prejudiced him. (Pet. Memo 35-36). Petitioner argues that Mississippi case law explicitly prohibits the mention of the possibility of parole at the sentencing phase of a capital murder ease, with the exception of habitual offender cases. See Banks v. State, 725 So.2d 711, 718 (Miss.1998) (prosecutors cannot argue defendant’s “future dangerousness”); Balfour v. State, 598 So.2d 731, 748 (Miss.1992) (propensity for future dangerousness not legitimate consideration in capital case); Williams v. State, 445 So.2d 798, 813 (Miss.1984) (references to possibility of parole inject arbitrary factors into sentencing proceedings of capital murder trial). Petitioner asserts such arguments “impermissibly penalize defendants for offenses they have not committed” and “promote speculation and arbitrary sentencing by the jury.” (Pet. Memo 34-35). Petitioner argues that counsel was ineffective, and Mississippi’s failure to apply its own law in finding counsel’s performance constitutionally adequate is an unreasonable application of clearly established law, as Petitioner was denied his due process rights based on statements deemed improper by the highest court of this State. Petitioner maintains that the conclusion that parole was never commented on during the trial was an error in factual determination. (Pet. Memo 28). Petitioner asserts that the court relied upon this unreasonable factual determination on post-conviction review and determined there was no merit to the substantive claim, thus, no ineffective assistance of counsel. (Pet. Memo 28). The Mississippi Supreme Court, on direct appeal, found that comments made to the jury by the trial judge during voir constituted an exception to the State rule that parole should not be mentioned in a capital sentencing proceeding. Wiley I, 691 So.2d at 961-65. The court considered Petitioner’s argument that the jury was improperly informed Petitioner might be paroled if given a life sentence, an issue the jury was prohibited from considering at that time under statute and case law. Id. at 963. The court distinguished Petitioner’s case from other cases holding it error for a jury to consider the issue of parole, as the trial judge in Petitioner’s case repeatedly informed the jury of the language of the statute, gave accurate information to the jurors who had questions, and properly instructed the jury prior to sentencing. Id. at 964. Moreover, the three prospective jurors who questioned the applicability of parole did not sit on the jury. Id. The court reasoned: The trial judge followed this Court’s instructions to not speculate on parole. He emphasized that the trial court and the jury had no control over parole. When further pressured by the veniremen for a more exact answer, the trial judge gave a truthful response. Moreover, at the close of the presentation of evidence, the trial judge properly instructed the jury regarding the options of life and death. The trial judge’s actions in this case did not constitute reversible error; therefore, Wiley’s claim on this point is without merit. Id. The court also considered Petitioner’s argument that the prosecutor was arguing Petitioner had a prior criminal record, an unsupported implication, when he commented that this crime was not a “one-time thing.” Id. at 964-65. The court noted defense counsel argued in closing argument that Petitioner was not a killer and stated “[t]his was a one-time thing, as bad as it is, and I know it’s bad, but it’s not characteristic of this person.” Id. at 965. The court found that the prosecutor’s argument was supported by the record evidence of medical expert testimony that Petitioner could perpetrate another crime if under the influence of alcohol, and that the statement was made to rebut defense counsel’s own statement. Id. Viewing the comment in context of the entire argument, the court held Petitioner’s argument without merit. Id. On post-conviction review, Petitioner’s claim was first considered in the context of trial counsel’s failure to object to the State’s references during voir dire, witness examination, and in closing argument. The court recapped its decision on direct appeal regarding the voir dire issue and determined the issue res judicata, as Petitioner was seeking to argue the same merits by couching the claim as ineffective assistance of counsel. Wiley II, 750 So.2d at 1200. The court noted that the argument had been rejected on its merits on direct appeal, thereby precluding a finding of deficiency or prejudice. Id. Regarding the discussion during voir dire, the court noted that “trial counsel moved for a mistrial, and to quash the jury panel. When these efforts failed, it is difficult to see what more trial counsel could have done.” Id. Next, the court considered trial counsel’s failure to object to alleged parole references during witness examination. The court found there to be no reference to parole in the examination of Dr. Fox. Id. at 1200-01. The court similarly found there to be no mention of parole in the exchange with Dr. Ritter, and further noted the cross-examination questions explored the substance abuse problems Dr. Ritter testified to on direct examination. Id. at 1201. The court found no reference to parole in the testimony of Rev. Padgett and noted the prosecutor appeared to be impeaching the witnesses’ testimony about Petitioner’s model behavior in prison through questions to explore how well Rev. Padgett knew Petitioner. Id. at 1202. The court determined these exchanges were not parole references but were rebuttal evidence and argument to the testimony elicited on direct examination from these witnesses. Id. Further, the court found there to be no prejudice proved, even if deficiency could be assumed. Id. The court next considered Petitioner’s claim of ineffective assistance of counsel in the context of the prosecutor’s closing argument. Petitioner asserted that trial counsel was ineffective for failing to object on the proper grounds to the prosecutor’s argument regarding the crime not being a “one-time thing,” as the argument was not a comment on prior offenses but on future dangerousness. Id. at 1202. The court noted that the claim of improper references to prior criminal behavior was rejected on direct appeal as inaccurate and unsupported. Id. at 1208. The court found that the matter had already been ruled on, though it acknowledged the ruling was in a different context. Id. The court also found a contemporaneous objection had been made, and that the comments were not references to parole but proper rebuttal comments. Id. The court held there to be no demonstration of deficiency and prejudice that would entitle Petitioner to relief on his ineffective assistance of counsel claim. Id. The court also considered whether appellate counsel was ineffective for failing to point out to the court that the record contained comments Petitioner argued could only be properly construed as parole references. The court found that the argument the comments were parole references was without factual support and determined no prejudice was proved. Id. at 1208. The Mississippi Supreme Court has fully considered the claim of ineffective assistance of trial and appellate counsel as it relates to parole comments on voir dire and alleged possibility of parole comments during witness testimony and in closing argument. With regard to the voir dire comments, trial counsel raised the claim both at trial and on direct appeal, where it was rejected. No basis for a claim of ineffective assistance of counsel claim exists on this issue. Additionally, the failure of trial counsel to object, or appellate counsel to raise on appeal, the issues regarding witness testimony and closing argument has likewise been considered and rejected both substantively and as ineffective assistance of counsel. The court did not find the exchanges to be comments on the possibility of parole. This factual determination has not been sufficiently rebutted by Petitioner, as both the cross-examination questions and closing argument were found to be proper rebuttal. These references were not the explicit parole references condemned by prior Mississippi case law precedent. Moreover, even if deficiency were assumed, Petitioner has demonstrated no prejudice stemming from trial counsel’s failure to object or appellate counsel’s failure to raise this claim on appeal. Petitioner has failed to demonstrate an unreasonable determination of facts or an unreasonable application of Strickland precedent on this issue. He is entitled to no relief on this claim. C. Sentencing: “Send a Message” During closing argument, the prosecutor urged the jury: Now, I think it’s high time that we have a citizen reaction. It should be made clear to William and to everyone else for that matter that the laws of this county are going to be severely enforced with the most severe penalty when our innocent victims, our blameless victims are slaughtered, are blinded, whose lives are wrecked without any fault of their own. We out to make it crystal clear. (Tr. Tr. vol. 7, 701, January 26,1995) [Fjolks who do these things ... should be held responsible for their actions. My God, we’re not barbarians ... Folks need to understand that when you com- mit crime like this, you’re going to be held accountable. It’s just that simple. (Trial Tr. vol. 7, 697). The Mississippi Supreme Court considered this claim on post-conviction review in the context of ineffective assistance of counsel and noted that prosecutors are cautioned from making such arguments, but it acknowledged that recent ease law held the caution inapplicable to the sentencing phase of a capital murder case. The court stated: We choose not to fault the prosecution for arguing that the “message” conveyed by a death penalty verdict would be different than that urged by the defense. To do so would be disingenuous given the inescapable reality that deterrence is, in fact, an established goal of imposing the death penalty, which necessarily entails, to some extent, sending a message. Wiley II, 750 So.2d at 1205 (citing Wells v. State, 698 So.2d 497, 513-514 (Miss.1997)). The court determined, therefore, that even if there was deficient performance by counsel, there was no resulting prejudice. Id. Petitioner asserts that this argument served to inflame the jury and to urge consideration of arbitrary factors, and that trial counsel’s failure to lodge an objection or to request a mistrial fell below reasonable representation. (Pet. Memo 31-32). Petitioner argues that the decision of the Mississippi Supreme Court was unreasonable, inasmuch as Wells was a fact-specific finding that defense counsel “opened the door” to the prosecution’s argument by requesting that the jury consider what type of message would be sent if a mentally retarded individual were sentenced to death. (Pet. Memo 33). Moreover, Petitioner argues, even if Wells were broad enough to encompass this case, it is still contrary to the requirement that individualized determinations regarding death sentences be made free from emotion. (Pet. Memo 34). See also Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (Court holding that sentence of death to be “based on reason rather than caprice or emotion”); Zant, 462 U.S. at 879, 103 S.Ct. 2733 (“an individualized determination” of circumstances surrounding crime and particular characteristics of defendant required). Respondents counter that Wells and post-Wells decisions reinforce the State law standard that prosecutors are allowed to argue that the imposition of death penalty will send a deterrent message. (R. Memo 47, citing, e.g., King v. State, 784 So.2d 884, 889-90 (Miss.2001) (expressly overruling prior precedent stating such argument in sentencing phase of trial would