Lotter v. Houston (771 F. Supp. 2d 1074, 2011)

MEMORANDUM AND ORDER

RICHARD G. KOPF, District Judge.

John L. Lotter (“Lotter” or “Petitioner”) seeks a writ of habeas corpus. His petition will be denied, and this matter will be dismissed with prejudice.

I. BACKGROUND

Lotter was convicted on three counts of first degree murder, three counts of use of a weapon to commit a felony, and one count of burglary. He was sentenced to death for each murder conviction and to not less than 80 months nor more than 20 years of imprisonment for each use of a weapon conviction and the burglary conviction.

The Murders

Teena Brandon moved to Richardson County, Nebraska, in the fall of 1993. Brandon was a woman but had been presenting herself as a man by the name of “Charles Brayman.” Brandon became acquainted with Lotter and Thomas M. Nis-sen through a mutual friend and had attended parties with them. Lotter and Nissen later discovered that Brandon was a woman. Angry that they had been deceived, on December 25, 1993, they drove Brandon to a rural area and raped her in Lotter’s car.

Nissen testified on behalf of the State and gave the following account. On Christmas Day 1993, Lotter and Nissen learned that Brandon had reported the rape to the police and began discussing ways to silence Brandon. By December 26, they had decided to kill her.

Nissen and Lotter drove to Lincoln, where they had reason to believe they would find Brandon. They brought a hatchet and some nylon rope, and each brought a change of clothing. According to Nissen, they planned to use the hatchet to chop off Brandon’s head and hands so that her body would be difficult to identify. However, their plan went awry when they were unable to locate Brandon.

Having failed to locate Brandon on December 26, 1993, Nissen and Lotter continued to plan Brandon’s murder. On December 28, Nissen and Lotter were questioned by Officer Keith Hayes of the Falls City Police Department concerning the allegations stemming from Brandon’s rape.

On December 30, 1993, Nissen and Lot-ter went to the house of Lotter’s mother, where Lotter picked up two pairs of gloves. They next went to Bill Bennett’s house, where Lotter stole Bennett’s handgun. After retrieving the handgun, Nissen and Lotter drove to Linda Gutierres’ house to look for Brandon. Apparently thinking that Brandon was at the Gu-tierres residence, they put on the gloves and Lotter handed Nissen a knife. Lotter had the handgun in his hand as they walked to the door.

Although Brandon was not at the Gu-tierres residence, Gutierres did tell Nissen and Lotter that Brandon was staying at Lisa Lambert’s house near Humboldt, Nebraska. Nissen and Lotter then proceeded to Humboldt to kill Brandon.

At approximately 1 a.m. on December 31, 1993, Nissen and Lotter drove Lotter’s car to Lambert’s residence. Nissen drove while Lotter gave directions. Along the way, they drove by the deputy sheriffs home, apparently to ascertain whether the deputy would be on patrol that night.

When they reached Lambert’s residence, Nissen drove down a long gravel driveway and parked the car by the side of the house. Both were wearing gloves when they got out of the vehicle. Lotter was armed with Bennett’s handgun and a knife.

After pounding on the door and getting no response, Lotter kicked in the door and they entered Lambert’s home. They entered the bedroom, where they encountered Lambert, who was lying on a waterbed, and her baby, who was in a crib.

Nissen asked Lambert where Brandon was and then noticed there was a person under a blanket on the floor at the foot of the bed. Removing the blanket, Nissen discovered Brandon, who apparently had been trying to hide. Nissen grabbed Brandon by the arm and stood her up. Lotter then shot Brandon, who fell on the bed. Brandon continued to twitch after being shot, so Nissen proceeded to ensure that she was dead by retrieving the knife from Lotter and stabbing Brandon in the abdomen.

After he stabbed Brandon, Nissen picked up the baby and handed the baby to Lambert. As soon as Nissen handed Lambert the baby, Lotter raised the pistol and shot Lambert in the stomach area, but the shot did not kill her. Nissen grabbed the baby and put him back in the crib.

While Lambert was still alive, Nissen asked her if anyone else was in the house. Lambert indicated that Phillip DeVine was present, so Lotter left the room to find DeVine.

Lotter returned to the room with De-Vine and shot Lambert again, this time in the eye. DeVine, who had been pleading for his life, was led back to the living room at Nissen’s suggestion. Nissen told De-Vine to sit down, and DeVine complied by sitting on the couch. As soon as DeVine sat down, Lotter shot him twice.

Lotter then went back to Lambert’s bedroom. The record indicates Lotter fired two or three more shots to ensure that everyone was dead. Nissen then went back to the bedroom and suggested that he and Lotter leave. Nissen and Lotter then left the house.

Nissen drove himself and Lotter back to Falls City. During the return trip to Falls City, Lotter threw the knife and a box containing the handgun into the Nemaha River. When they arrived in Falls City, Nissen and Lotter went to Nissen’s house, where Nissen’s wife, Kandi Nissen, and Rhonda McKenzie, Lotter’s girlfriend, were staying. Nissen washed his hands with Clorox because he did not have his gloves on when he stabbed Brandon. Nis-sen and Lotter then informed Kandi Nis-sen and McKenzie that if anyone asked, they were home at 1 a.m. It was approximately 3 a.m. at that time.

Nissen’s Testimony Compared To The “Other” Evidence

Prior to Lotter’s trial, Nissen was convicted in a separate trial of first degree murder in the death of Brandon and second degree murder in the deaths of Lambert and DeVine. Nissen did not testify at his own trial, but, literally, on the eve of Lotter’s trial, he made a deal and testified against Lotter. While Nissen’s testimony was extremely important to the prosecutor’s case against Lotter, it is also true that the “other” evidence against Lotter was compelling.

A summary of some of that “other” evidence was provided by Lotter’s appellate counsel in the direct appeal brief. In part, that defense summary included the following descriptions of the evidence which I quote:

* “Michael Lang and his fiancé, Carrie Gross, lived with Lisa Lambert from August to December of 1993. At approximately 10:00 p.m. on December 30, 1993, Mr. Lang went to the Lambert residence to take a shower following a game of basketball. He left around 11:30 p.m. and observed no one else at the residence, except Teena Brandon, Phillip DeVine, Lisa Lambert and Ms. Lambert’s baby. The front door was not damaged at that time.” (Filing No. 49-17 at CM/ ECF p. 40.)

* “At approximately 10:00 a.m. on December 31, 1993, Anna Mae Lambert, the mother of Lisa Lambert, went to her daughter’s residence. The inside door was open and she could hear a baby crying. A man was slumped by the couch. She saw her daughter on the bed and knew something was wrong. She got a bottle for the baby and called authorities.” (Id. at 41.)

* “Raymond Harrod, a Richardson County deputy sheriff, arrived at the Lambert residence at 10:13 a.m. There were signs that the front door had been forced open. The body of a black male was slumped on the couch with one of his legs propping up on an end table. There were two more bodies in the west bedroom.” (Id.)

* “Dr. Blaine Roffman performed all three autopsies. Phillip DeVine had two bullet wounds to the head and died of severe brain damage.... Teena Brandon had two gunshot wounds to the head, one to the eye and one to the jaw. There was a stab wound to the right chest level of the tenth rib that penetrated the liver. Death was caused by either of the head wounds as the result of subarachnoid hemorrhage, brain hemorrhage, and brain disruption .... Lisa Lambert had two gunshot wounds to the head and one superficial graze type entrance and exit wound over her right anterior chest. Except for the superficial chest wound, either of the head wounds would have been fatal.” (Id.)

* “Seven .380 cal. bullets and six shell casings were recovered from the residence, a mattress, a pillow, and the bodies of the victims.” (Id.)

* “Shortly after midnight on January 1, 1994, police officers recovered one pair of gloves, a box containing a handgun, and a buck knife with the name ‘LOTTER’ written on the sheath from the ice of the Nemaha River just south of Falls City.” (Id. at 42.)

* “William Bennett had purchased the .380 cal. handgun in late 1993 and kept it in a dresser in his bedroom.” (Id.)

* “Mark Bohaty, a firearms and tool mark expert, testified.... His opinion was that all of the recovered bullets came from that handgun.” (Id.)

* “Terry Lotter, Mr. Lotter’s father, identified the knife as his and explained that he had printed his name on it with a magic marker.... He testified that the gloves were similar to the type he kept at home.” (Id.)

* “The buck knife tested positive for human blood, type ‘A,’ the same type as both Mr. Lotter and Teena Brandon.” (Id.)

* “On December 28, 1993, Ofc. Keith Hayes interviewed both Mr. Lotter and Mr. Nissen at the Falls City Police Department. Mr. Lotter was told there were allegations made by Teena Brandon that she had been raped, kidnaped, and assaulted and that Mr. Lotter was a suspect. The interview ended about 10:30 a.m. and Mr. Lotter was released.” (Id. at pp. 42-43.)

* “Rhonda McKenzie has a daughter with Mr. Lotter and dated him until January 6, 1995. On December 24, 1993, she went to a party at Nissen’s home. Teena Brandon and Lana Tisdel were in the bathroom when joined by Nissen and Mr. Lotter.” (Id. at 43.)

* “Linda Gutierres lived at 724 West 21st Street in Falls City and was the mother of Lana Tisdel, Leslie Tisdel, and Terry Torrence. At 6:00 a.m. on December 25, 1993, Teena Brandon came to her home with no shoes or coat and her back was scratched and red.....” (Id.)

* “Steve Scholl worked at the Coastal Mart in Falls City as the night manager on December 30, 1993. Mr. Lotter and Nissen came to the station in a green LTD between 7 and 8 p.m. They came back about one hour later.” (Id.)

* “At about 10:30 p.m. on December 30, 1993, Jim Morehead was visiting with his fiancé, Carmen Miller, at Camp Rulo, a restaurant/bar in Rulo, Nebraska. About a half hour before midnight, Mr. Lotter said something about how they had been in prison, and that if he ever went back again, he would probably be an old man when he got out.” (Id.)

* “Marcel Varga lived at 1908 Wilson with Donna Lotter and Bill Lotter, Mr. Lotter’s brother. At approximately midnight, she saw John Lot-ter coming out of one of his mother’s back bedrooms.” (Id. at 43-44.)

* “Mr. Lotter went to William Bennett’s home on the evening of December 30 between midnight and 1 a.m.” (Id. at 44.)

* “Later, Mr. Bennett found that his back door had been ‘busted.’ The last time Mr. Bennett saw the gun was on the early morning of December 30 in his dresser drawer.” (Id.)

* “Rhonda McKenzie testified that on December 30, 1993, she went to Nis-sen’s home about 10 after midnight and fell asleep on the floor. She was awakened about 1 or 1:30 a.m. by Mr. Lotter who said they had to go over to Lana Tisdel’s. She went back to sleep and was awakened about 2:00 or 2:30 a.m. ... According to Ms. McKenzie, Mr. Lotter said, ‘If anybody- — if any of the cops come and ask you any questions, to tell them we got back between 12:30 and 1:00.’” (Id.)

* “Kandi Nissen testified that on December 30, 1993, Nissen and Mr. Lotter left her house about 9:30 or 10:00 p.m. She next saw them that evening about 12:30 to 1:00 a.m. Nis-sen and Mr. Lotter returned about five minutes after 3:00 in the morning and Kandi Nissen had to unlock the back door so that they could get in. She was told to say that Nissen and Mr. Lotter went to Lana Tisdel’s and had come back about 12:30 or 1 p.m. However, she said that it was not true that they had come back to stay at that time.” (Id.)

* “Ms. Gutierres testified that on the evening of December 30, Nissen and Mr. Lotter showed up about 1 a.m. Both Nissen and Mr. Lotter were wearing gloves when they arrived .... [T]hey talked about Phillip and Leslie having a fight and that Phillip went to Humboldt to stay with Lisa and Brandon.” (Id. at 44-45.)

* “Terry Torrence testified that on December 30, 1993, he was downstairs playing a game with his friend, Lenny Landrum, and his sisters, Lana and Leslie Tisdel---- Mr. Lotter came downstairs and, after about 10 minutes, said, T feel like killing somebody.’ ” (Id. at 45.)

* “Lana Tisdel reported to police that she had carried on a sexual relationship while Teena Brandon had posed as a male. She was upset and distraught when she learned that Teena was a female.” (Id.)

* “Lana Tisdel claimed to have also heard the statement that Mr. Lotter said, T feel like killing somebody.’ ” (Id. at 46.)

There is no doubt that the prosecutor’s case was strengthened by Nissen’s belated agreement to cooperate and testify, but the State’s case did not turn solely on Nissen’s testimony. The “other” evidence — including evidence that Lotter likely stole the gun that killed the victims, that Lotter likely obtained the gloves used in the murders, that Lotter likely obtained the knife (with his last name written on it) which was probably used to stab one or more of the victims, that Lotter made a statement expressing a desire to kill someone on the night of the murders, and that Lotter made multiple statements regarding the creation of false stories about his whereabouts at the time of the murders— painted a damning picture. This additional evidence also corroborated much of Nis-sen’s testimony.

The Trial and the Direct Appeal

On Monday morning, May 15, 1995, after voir dire and prior to opening statements in Lotter’s trial, the following exchange occurred outside the presence of the jury:

THE COURT (Judge Finn): With regard to [Nissen’s] Motion to Quash, I had a conversation last night with [Nis-sen’s counsel] and defense counsel.... Or prosecution, yes. Excuse me. Now, I’m gonna let them explain to you what’s goin’ — what the nature of that was, because I think you’re entitled to know, in view of your Motion [in Limine]. Okay. [PROSECUTION]: Uh — we’re negotiating an agreement that would have him testify in this matter; it’s not been finalized.

THE COURT: It has not been finalized?

[PROSECUTION]: No. Oh, yeah, that’s right. The — and [Nissen’s counsel], I think, agreed to continue his Motion to Quash until such time as Nissen would be called, I think that’s the extent of it.

Quoted in State v. hotter, 255 Neb. 456, 586 N.W.2d 591, 604 (1998), modified on denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999), cert. denied, 526 U.S. 1162, 119 S.Ct. 2056, 144 L.Ed.2d 222 (1999).

Lotter’s counsel moved for a continuance to take Nissen’s deposition and to delay opening statements until it was known whether Nissen would testify. The trial court denied the continuance. Later, during post-conviction proceedings, Lot-ter’s counsel testified that this exchange was the first time he had any knowledge of an agreement that would secure Nissen’s testimony at Lotter’s trial.

On May 17, 1995, during his direct examination, Nissen testified to his understanding of his sentencing agreement. Nissen stated: “There won’t be a death sentence hearing.” When asked whether he was going to be put to death, Nissen said, “No.” Nissen also testified that he signed a document memorializing the agreement early Monday morning and that his attorney had a copy of the document. He did not mention that two felony charges against him were dropped.

Nissen’s deposition had been taken on May 16, 1995, but it had not been transcribed. Prior to Nissen’s direct examination, Lotter’s defense counsel again moved for a continuance until he received the deposition transcript. The court denied the continuance but did provide that defense counsel would not be forced to cross-examine Nissen without having a transcript of the deposition. The transcript was completed that afternoon, and cross-examination was conducted that same day.

On May 18, 1995, the day after Nissen’s testimony, defense counsel informed the trial court that he had requested a copy of the document evidencing Nissen’s sentencing agreement from the prosecution but was told that he had no right to that document. The judge indicated that he desired that a copy of the document be put in both the Nissen and the Lotter files. The prosecution responded by stating: “Well, Pm — I’m not gonna file it I guess is my position.” Shortly thereafter, the prosecution denied having a copy of the document evidencing the agreement.

After further discussion, the prosecution admitted that Nebraska State Patrol Investigator Roger Chrans did indeed have a copy of the document. For whatever reason, Chrans later testified that the copy he said he had on May 18 was the “wrong copy.” According to Chrans, the version of the document that was eventually filed came from the county attorney. Nonetheless, defense counsel did obtain a copy of the document from Nissen’s file sometime on May 18.

The document evidencing the agreement stated in pertinent part:

1. The State of Nebraska agrees not to pursue the death penalty at the sentencing of Marvin Thomas Nissen. The State will not present any evidence of any aggravating circumstances in connection with Mr. Nissen’s sentencing, and the State will not acquiesce to the convening of a three judge panel. Prior to the finalizing of any agreement, the State will be party to a meeting between attorneys and Judge Finn wherein the State will inform the judge of no need for the convening of a three judge panel or the preparation of a presentencing report that may contain evidence of aggravating circumstances. If the judge agrees to do so, the State does not object to the parties receiving an assurance that Judge Finn would not convene a three judge panel and would impose life sentences upon Mr. Nissen.

3. All other pending charges against Mr. Nissen will be dismissed without prejudice and will not be re-filed except in the event of non-compliance with this Agreement by Mr. Nissen and no new charges will be instituted concerning the events ... which occurred on December 24, 1993 through and including December 31,1993.

4. Mr. Nissen will agree to testify against John L. Lotter, or any other individual when requested to do so by the State in any criminal proceedings .... He will give complete and truthful testimony and answer all prosecution inquiries to the best of his ability and the State agrees that no testimony or other information or any information directly or indirectly derived from such testimony or other information may be used against Mr. Nissen in any criminal case except in prosecution for perjury or giving a false statement.

6. Once this agreement has been entered into, Mr. Nissen will give a full and complete recitation of the events leading to the executions of Teena Brandon, Lisa Lambert, and Phillip De-Vine .... The primary interviewer will be Investigator Roger L. Chrans of the Nebraska State Patrol. Investigator Chrans will be instructed to immediately terminate the interview if in his opinion Mr. Nissen is in any way evasive or untruthful in his responses to Investigator Chrans’ questions.... In the event that the interview is terminated for these reasons the aforementioned agreement is to be immediately declared null and void and the matter will proceed to sentencing....

7. For the safety of the Defendant and as soon as is practicable, the State of Nebraska will assist and make all reasonable efforts to have Mr. Nissen transferred while awaiting sentencing or upon the imposition of sentence imposed by the District Court to an institution in another State.

Quoted in Lotter, 586 N.W.2d at 605-606.

There was a typed dateline on the document evidencing the agreement, indicating that it had been signed on May 15, 1995. After the period following the typed “1995,” the time was handwritten as “9 24 PM,” and the document was initialed “JE.”

Nissen gave his first interview to Chrans from approximately 1:00 to 4:45 a.m. on Monday, May 15, 1995. Chrans conducted a second interview that same day beginning at about 6:30 p.m. and lasting until approximately 10:00 p.m.

Nissen testified that he stabbed Brandon but that Lotter fired the shots that killed all three victims. Lotter testified in his own defense at trial. He denied any participation in either the planning or perpetration of the murders and stated that he was not present when they were committed. He testified that Nissen had not been truthful in his testimony regarding Lotter’s involvement in the crimes and that other witnesses who gave incriminating testimony against him were either lying or mistaken.

The jury found Lotter guilty. In February 1996, a three-judge panel (that included Judge Finn, the trial judge) sentenced Lotter to death. The sentencing panel’s opinion was 48 pages long, and it was very thoughtful. (Filing no. 49-36 at CM/ECF pp. 230-277.)

On direct appeal, the Nebraska Supreme Court affirmed the murder convictions and capital sentences, as well as the convictions and sentences on the related weapons charges. In general, Lotter argued that he was denied a fair trial because the trial court engaged in an ex parte communication, the prosecutor committed misconduct, the jury was improperly selected and not sequestered, the jury was improperly instructed, trial counsel was ineffective, and the death penalty was improperly imposed. The Nebraska Supreme Court concluded that Lotter’s burglary sentence must be vacated but it also decided that Lotter’s other assignments of error were without merit.

In the modified opinion, the Nebraska Supreme Court decided that Lotter had not waived his claim that the ex parte meeting between Judge Finn and the prosecutor and Nissen’s counsel violated due process standards. Despite the lack of a waiver,

After evaluating Lotter’s due process claim, we find it to be without merit. While the threat to the impartiality of the trial judge in this case, as noted above, would be sufficient under Nebraska law to require the judge’s recusal upon request, it is not sufficient, under the Due Process Clause, to suggest that the trial judge “had such a strong personal or financial interest in the outcome of the trial that he was unable to hold the proper balance between the state and the accused.” [citation omitted.]

Moreover, our comprehensive review of the record in this case reveals no evidence of actual bias on the part of the trial court. Absent an instance of actual bias on the part of the trial court, we determine that Lotter’s due process right to a fair and impartial judge was not violated. See Dyas III. Lotter’s assignment of error is meritless.

Lotter, 587 N.W.2d at 675.

The reference to Dyas III related to Dyas v. Lockhart, 878 F.2d 1105 (8th Cir. 1989). After several appeals, the Eighth Circuit Court of Appeals ultimately affirmed a federal district court’s determination that there was no evidence of actual bias on the part of a trial judge in a murder case. The fact that there was a family relationship between the prosecutors of the murder case and the trial judge (the trial judge was the uncle of the prosecutor and the brother and father of deputy prosecutors who participated in the case) was insufficient to establish actual bias. Id. See also Dyas v. Lockhart, 771 F.2d 1144 (8th Cir.1985); Dyas v. Lockhart, 705 F.2d 993 (8th Cir.1983).

1999 Postconviction Action(s)

On August 3, 1999, Lotter filed pro se verified motions for postconviction relief in each of the murder cases. In those motions, he alleged as grounds for relief (1) that the trial judge engaged in improper ex parte communication, (2) that this court on direct appeal had created a new duty on the part of trial counsel to move for the trial judge’s recusal, (3) that his trial counsel was ineffective for failing to move for recusal of the trial judge, and (4) that trial counsel was ineffective for failing to make various evidentiary objections. Lotter requested the appointment of counsel on the same date.

On November 16, 1999, the district court (Judge Bryan) conducted a “preliminary review” of the motions and concluded that Lotter was entitled to an evidentiary hearing on the third and fourth grounds, relating to ineffective assistance of counsel, but was not entitled to an evidentiary hearing on the other grounds. The court also appointed counsel to represent Lotter in the postconviction proceeding.

On December 9, 1999, Lotter, through his appointed counsel, moved to consolidate the three cases and filed an amended motion for postconviction relief in the consolidated proceeding, asserting three additional grounds. Two of the additional grounds were based upon an affidavit of Jeff Haley, who had at one time shared a cell with Nissen. Haley’s affidavit was attached to the amended postconviction motion. Haley averred that while they were incarcerated together, Nissen told Haley that he, not Lotter, had fired the shots that killed all three victims. Lotter alleged that this evidence established that his convictions and sentences were obtained through the knowing use of false testimony and were therefore invalid. As an additional ground, Lotter alleged that death by electrocution is unconstitutional. At the same time that he filed his amended motion for postconviction relief, Lotter filed a motion for writ of error coram nobis in the consolidated proceeding, asserting that the statements made by Nissen to Haley were exculpatory both as to Lotter’s guilt or innocence and as to his sentences. He also filed a motion for new trial in the consolidated proceedings, based upon the statements allegedly made by Nissen to Haley.

On December 16, 1999, the district court conducted a “preliminary review” of the amended postconviction motion. Among other things, the court held that Lotter was also entitled to an evidentiary hearing on the claim related to Haley’s affidavit, but not upon the ground alleging that the death penalty was unconstitutional.

The evidentiary hearing commenced on October 26, 2000, and was completed on November 22. Lotter’s motions for a writ of error coram nobis and for a new trial were joined for consideration at the hearing. Lotter’s trial counsel was questioned and testified about the fact that he did not object to various evidentiary matters. Trial counsel also testified that at the time of trial, he had no knowledge of an ex parte communication between the prosecution and the trial judge. Counsel testified that he interpreted the reference on the record to a communication with the judge regarding Nissen’s testimony as merely a procedural matter. He further testified that he interpreted the provision in the State’s agreement with Nissen which referenced a meeting with the judge as referring to a meeting that would take place in the future, prior to Nissen’s sentencing. Counsel testified that although the trial judge was generally ruling in Lotter’s favor on many issues, he would have moved to re-cuse if he had known all of the facts regarding arrangements to secure Nissen’s testimony against Lotter.

Haley’s deposition, taken on October 18, 2000, was offered into evidence for substantive purposes under the penal interest exception to hearsay, Neb.Rev.Stat. § 27-804(2)(c) (Reissue 1995). The State objected to the admission of the evidence based upon relevancy, foundation, and hearsay. The objections were taken under advisement.

Haley testified in his deposition that he was Nissen’s cellmate at the Lincoln Correctional Center in 1997. Nissen was reading a book at that time about the Brandon murder and was upset because he felt it contained lies. According to Haley, Nissen showed him the autopsy photographs of the victims and explained and demonstrated in detail how he had shot and killed all three victims. Nissen told Haley that while Nissen was shooting the victims, Lotter was “freaking out and running around,” saying, “What are you doing? What are you doing?” According to Haley, Nissen stated that he should have shot Lotter as well, and then there would have been no witnesses.

Lotter attempted to depose Nissen and offer his testimony at the postconviction hearing. On October 23, 2000, Nissen refused to answer deposition questions without an attorney regarding his statements to Haley and his involvement in the murders. After Lotter filed a motion to compel, the district court held that Nissen had no right to an appointed attorney but could retain one at his own expense. The court further ruled that Nissen was bound to answer all questions unless he properly claimed a recognized privilege.

On October 31, Lotter again attempted to depose Nissen. Nissen again refused to answer questions, stating that he was in the process of hiring an attorney. On November 14, Lotter attempted to depose Nissen for the third time. At that time, Nissen asserted his Fifth Amendment privilege against self-incrimination and refused to answer questions relating to his statements to Haley or his involvement in Lotter’s trial and the murders. At the conclusion of the postconviction evidentia-ry hearing, Lotter made an oral motion requesting the court to determine that Nissen had no basis for asserting the privilege and to compel Nissen to answer all questions.

On December 19, 2000, the district court entered its order. With respect to the postconviction claims, the court denied Lotter’s ineffective assistance claim based upon trial counsel’s failure to move for the recusal of the trial judge, reasoning that trial counsel’s failure was based upon strategy and resulted in no prejudice. The court also denied Lotter’s ineffective assistance of counsel claims based on the failure to make proper evidentiary objections, finding that Lotter was not prejudiced by any deficient performance of his trial counsel.

The court also determined that the statements made by Nissen to Haley did not fall within the Nebraska penal interest exception because there were no corroborating circumstances that clearly indicated the trustworthiness of the statements. Because it held that Haley’s testimony was thus inadmissible, the court held that Lot-ter’s claim alleging the improper use of Nissen’s testimony lacked merit. The court also held that because Nissen could be exposed to a first degree murder charge if Lotter were to be executed on the basis of Nissen’s alleged perjured testimony at Lotter’s trial, there was a sufficient basis to honor Nissen’s claim of Fifth Amendment privilege and he could not be compelled to answer the deposition questions. With respect to the motion for writ of error coram nobis, the court denied relief, concluding that Lotter had not shown that an alleged error of fact with respect to the identity of the actual shooter would have prevented Lotter’s conviction. The district court also denied Lot-ter’s motion for new trial.

Lotter then perfected timely appeals. The Nebraska Supreme Court issued its opinion on July 11, 2003. State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2904, 159 L.Ed.2d 815 (2004). The Supreme Court held that: (1) the Ring decision — holding that an aggravating factor necessary for imposition of death sentence must be found by a jury — did not apply retroactively; (2) deposition testimony of a cellmate as to Nissen’s purported statements about the murders were inadmissible under the hearsay exception for statements against penal interest; (3) the risk to Nissen of being exposed to a separate first degree murder charge was sufficient to honor his assertion of Fifth Amendment privilege; (4) even if Nissen testified falsely at Lot-ter’s murder trial, this fact would not entitle Lotter to a writ of error coram nobis; (5) the district court could deny postcon-viction relief without an evidentiary hearing as to issue of improper ex parte communications between the trial judge and the prosecution; and (6) Lotter failed to establish that trial counsel’s performance was ineffective.

2001 Postconviction Action

On December 20, 2001, Lotter filed a pro se motion for DNA testing pursuant to Nebraska’s DNA Testing Act. At the direction of the district court (Judge Bryan), the State filed an inventory listing several items containing biological evidence. In response to a motion for summary dismissal filed by the State, counsel for Lotter filed an amended motion for DNA testing. The State’s motion for summary dismissal was overruled, and Lotter was granted a hearing on his amended motion.

In Lotter’s amended motion for DNA testing, he alleged that he intended to utilize the “PowerPlex 16” amplification and multiplex identification system with the “ABI Prism 310 Genetic Analyzer” to test items containing biological evidence, including a pair of yellow work gloves; cuttings taken from the gloves; Nissen’s shoes and clothing; and known comparison blood samples from the murder victims, Teena Brandon, Lisa Lambert, and Phillip DeVine. Lotter alleged that evidence of high-velocity blood spatter from Brandon or the presence of DNA from Lambert and/or DeVine on Nissen’s gloves, shoes, or clothing would establish that Nissen was not in the locations that he described in his trial testimony. Lotter further alleged that DNA tests would establish that Nissen lied during his testimony and that Nissen, not Lotter, was holding the gun at the time all three victims were murdered.

Evidence at Lotter’s trial indicated that the yellow work gloves worn by Nissen at the time of the crime contained two areas that tested positive for blood. The serologist did not conduct additional tests because further testing would have consumed the sample and the serologist had been instructed by defense counsel to preserve the evidence for independent analysis.

Prior to the hearing on Lotter’s amended motion for DNA testing, he filed an application for writ of habeas corpus ad prosequendum, requesting that he be allowed to attend the hearing. The district court denied the application, and the hearing proceeded in Lotter’s absence.

At the hearing on his amended motion for DNA testing, Lotter submitted the affidavit of Ronald Rubocki, Ph.D., and portions of the trial record relevant to his motion. The State submitted the affidavit of Charlotte Word, Ph.D., and the bill of exceptions from Lotter’s trial and postcon-viction proceedings. Judge Bryan denied Lotter’s amended motion for DNA testing, concluding that such testing would not result in noncumulative, exculpatory evidence relevant to any claim that Lotter was wrongfully convicted or sentenced.

On September 26, 2003, the Nebraska Supreme Court affirmed. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003). Among other things, the Nebraska Supreme Court decided the evidence did not support a finding that Lotter’s request for postconviction DNA testing would have produced noncumulative, exculpatory evidence relevant to a claim that Lotter was wrongfully convicted so as to entitle him to such testing. This was true even though Lotter claimed that blood spatter evidence from the victims on Nissen’s gloves or clothing would have established that Nis-sen was close to the victims and was the shooter. While DNA testing might have shown that DNA from any or all of the three victims was present on Nissen’s gloves or clothing, testing could not establish exculpatory evidence because it could not establish how the blood was deposited on Nissen’s gloves or clothing.

2008 Postconviction Action

Although there is no published opinion regarding it, Lotter brought a third post-conviction action on October 15, 2003, but his request for relief was denied without an evidentiary hearing. (Filing no. 79 at CM/ECF pp. 16-17 citing to filing nos. 52-2 through 52-5.) The issues raised by Lotter (recounted in a brief filed by the Nebraska Attorney General) were described this way:

In his Motion for PosWConviction Relief, Lotter alleged that he was denied the effective assistance of counsel, both on direct appeal and during his original postconviction proceedings. Specifically, in paragraph 6 of his postconviction petition, Lotter asserted that his counsel:

A.) failed to present evidence obtained as the result of postconviction discovery pertaining to Lotter’s co-participant in the murders, Marvin Thomas Nissen, and his purported history of fabrication and making threatening statements;

B.) failed to allege prosecutorial misconduct based on an alleged failure to disclose documents to Lotter’s trial attorneys pertaining to Nissen’s purported history of fabrication, making threatening statements, and mental health history;

C.) failed to depose Nissen’s stepmother or call her as a witness regarding Nissen’s purported history of fabrication and blaming others for his own actions;

D.) failed to depose police officers with knowledge regarding Nissen’s purported history of fabrication and making threatening statements;

E.) failed to raise any claim based on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 [153 L.Ed.2d 556] (2002), in any filings with the Nebraska courts; and

F.) failed to assert any “actual innocence” claim.

Lotter did not specify which ineffectiveness claims related to his direct appeal versus the postconviction proceedings. However, subparagraphs A, B, C, D and F all appear to relate to the decisions made by postconviction counsel. Subparagraph E could be related to Lotter’s direct appeal as well as his original postconviction petition.

(Filing no. 52-3 at CM/ECF p. 6.)

The district court (Judge Bryan) ruled that Lotter had no constitutional right to counsel in the postconviction proceedings and that, even assuming the truth of Lot-ter’s allegations, counsel on the direct appeal (who was different than trial counsel) was not ineffective. (Filing no. 52-5 at CM/ECF pp. 24-27.) On April 21, 2004, the Nebraska Supreme Court summarily affirmed the denial of postconviction relief. (Filing no. 52-1.)

2008 Postconviction Action

On March 27, 2008, Lotter filed yet another state postconviction action. (E.g., filing no. 79 at CM/ECF p. 17 citing to filing nos. 53-3 through 53-8). Lotter asserted three claims which are summarized and condensed as follows: (1) Lotter was convicted largely on the strength of Nis-sen’s testimony, Nissen had recently recanted much of that testimony and therefore Lotter’s federal constitutional rights were violated; (2) the prosecutor knew or should have known that Nissen was a liar and therefore Lotter’s federal constitutional rights were violated by the prosecutor’s use of Nissen; and (3) since Nissen was facing death by electrocution and that punishment is cruel and unusual, Nissen’s false testimony was coerced by the State of Nebraska and therefore Lotter’s federal constitutional rights were violated. (Filing no. 53-8 at CM/ECF pp. 15-21.)

Among other documents that were attached to Lotter’s postconviction pleading was Nissen’s affidavit dated July 23, 2007. This affidavit came more than 12 years after Nissen had testified in Lotter’s trial. There was no explanation as to why Nis-sen had taken so long to provide the affidavit.

In pertinent part, the affidavit stated:

1. I was a witness for the prosecution in the case of State of Nebraska vs. John L. Lotter, Richardson County District Court case number 2682, 2683 and 2684;

2. During my trial testimony, I swore under oath that I saw John Lotter fire the gun that inflicted gunshot wounds to Teena Brandon, Philip Devine and Lisa Lambert;

3. The testimony I gave regarding the person who fired the gun was false;

4. I am the person who shot and stabbed Teena Brandon;

5. I am the person who shot Philip Devine;

6. I am the person who shot Lisa Lambert;

7. I was in possession of the gun and fired all of the bullets that inflicted all of the gunshot wounds to those individuals;

8. On July 11, 2007, I wrote a letter to attorney Sean J. Brennan, who I was aware had been appointed by the federal district court for the District of Nebraska to represent John Lotter in a case pending in the federal district court for the District of Nebraska. In that letter, I told Mr. Brennan that I would like to speak with him regarding Mr. Lotter’s case;

9. On July 17, 2007, I met with Mr. Brennan at the Lincoln Correctional Center in Lincoln, Nebraska. I told Mr. Brennan that my trial testimony regarding the identity of the person who inflicted the gunshot wounds was false;

10. That I was the person in possession of the gun at the time the gun was fired and that I am the person who fired all of the bullets that inflicted all of the gunshot wounds to Teena Brandon, Philip Devine and Lisa Lambert;

(Filing no. 53-8 at CM/ECF pp. 22-23.)

Without holding an evidentiary hearing, Judge Bryan denied Lotter relief. (Filing no. 53-8 at CM/ECF p. 2-9.) Lotter appealed and the Nebraska Supreme Court affirmed. State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009), cert. denied, — U.S.-, 130 S.Ct. 1900, 176 L.Ed.2d 378 (2010).

The Court first held that any claim that Nebraska knowingly used perjured testimony was procedurally barred because it could have been raised on direct appeal or in earlier postconviction actions. Still further, even if Nissen did perjure himself, Lotter was not entitled to postconviction relief because the “Due Process Clause guarantees a procedurally fair trial, but does not guarantee that the verdict will be factually correct.” Id. at 562-63. Moreover, even if one assumed that Nissen’s recantation was truthful, the evidence would still be sufficient to establish that Lotter was guilty and not actually innocent:

Nothing in the allegations presented by the postconviction motion, even if true, refutes the evidence at trial that Nissen and Lotter, wearing gloves, traveled to Lambert’s house in order to kill Brandon and anyone else they found there. The recantation does not refute the evidence that Lotter stole the gun used to murder the victims and that Lotter obtained the knife and the gloves worn during the crimes. It does not refute the testimony of a witness that on the evening of the murders, Lotter told the witness he desired to kill someone and that after the murders, Lotter sought to obtain an alibi. As we indicated in Lotter’s appeal from the denial of his motion for DNA testing, because of the joint participation in the felony and the reckless indifference to human life, it is irrelevant to the degree of culpability by whose hand the victims actually died. And certainly, determination of this question does not make a showing of actual innocence of the crimes for which Lotter was convicted and sentenced. As such, postconviction relief based upon Nissen’s recent recantation was properly denied without an evidentiary hearing.

Id. at 564 (footnote omitted).

The Court went on to hold there was no unconstitutional coercion of Nissen to testify by threat of electrocution because at the time of his testimony death by electrocution was constitutional. Id. at 564-65. Moreover,

the State’s promise not to pursue that punishment was thus a legitimate promise of leniency. And, at trial, Lotter was permitted to thoroughly cross-examine Nissen regarding his motivation to testify against him, including his fear of death by electrocution. We find no merit to Lotter’s argument that Nissen’s testimony was unconstitutionally coerced.

Id.

The Federal Habeas Action

This case was filed on May 11, 2004. (Filing no. 1.) The matter was stayed on April 29, 2005, pending resolution of state postconviction proceedings. (Filing no. 34.) On May 6, 2010, the stay was terminated. (Filing no. 44.) Previously, Andre R. Barry and Sean J. Brennan were appointed to represent Lotter in this federal case and they continue to do so now.

I compliment and thank Mr. Barry and Mr. Brennan for their exemplary service to Lotter, the Court and the interests of justice. Accepting an appointment in a death penalty case takes real courage and it is consistent with the highest and best traditions of the bar. These fellows are great lawyers and extraordinary people.

On May 6, 2010, a progression order was entered after consultation with counsel. (Id.) A Corrected Second Amended Petition for Writ of Habeas Corpus (filing no. 47) was filed, and that petition is the operative pleading in this case. The petition raised 19 claims or grounds for relief. I determined that all 19 claims were potentially cognizable and, after consultation with counsel, an order was entered directing Respondent to file an answer and the state court records. (Filing no. 65.) A briefing schedule was also set. (Id.) An answer was filed (filing no. 68) and the voluminous state court record was provided. (Filing nos. 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 62, and 78.) The parties submitted their briefs. (Filing nos. 69, 71, 73, and 76.)

Because the state court record is massive, I directed the parties to prepare a Joint Index. They complied. (Filing no. 79.) This index provides a detailed finding aid for the documents comprising the record. It includes a specific description of documents comprising the record, a hyperlink to specific documents, and description of the pages comprising each document. This aid has been very helpful.

I also directed Lotter’s counsel to file a Statement of Petitioner Regarding Location in the Record of Presentment and Resolution of Federal Claims in State Court. Counsel complied helpfully providing a description of each claim, where that claim was allegedly presented, where that claim was resolved and hyperlinks to make access to the specific documents much easier. (Filing no. 80.) Like the Joint Index, this additional finding aid has been of great assistance.

In addition, the parties submitted a joint stipulation regarding a portion of a transcript of the sentencing hearing regarding Nissen. (Filing no. 78.) Although there is no dispute about the transcript itself, there is a dispute about whether it actually became a part of the record before the Nebraska Supreme Court in Lotter’s direct appeal. Petitioner asked the Nebraska Supreme Court to judicially notice the transcript, but that court did not explicitly rule upon the request. Relying upon a portion of the Nebraska Supreme Court’s opinion on direct appeal, see Lotter, 586 N.W.2d at 611 (“In the instant case, the trial court did indeed participate in the negotiations at issue.”), Lotter asserts that the court must have relied upon this transcript. I assume, without deciding, that the Nebraska Supreme Court considered the Nissen transcript.

II. ANALYSIS

There are three provisions of federal law that are especially important to this case. I discuss those next. After that, I will address each of the claims.

Procedural Default

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1).

The United States Supreme Court has explained the habeas exhaustion requirement as follows:

Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts ... state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.

O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). A state prisoner must therefore “fairly present” the substance of each federal constitutional claim to the state courts before seeking federal habeas relief. See id. at 844, 119 S.Ct. 1728.

As the United States Court of Appeals for the Eighth Circuit has recently emphasized, the “fair presentment” requirement is strictly enforced:

Before seeking habeas corpus relief under § 2254, a prisoner ordinarily must “fairly present” his federal claims to the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). This requirement serves the salutary purpose of giving states the “opportunity to pass upon and correct alleged violations of [their] prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (internal quotation marks omitted) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). The onus rests on the prisoner to present the substance of his federal claims “in each appropriate state court (including a state supreme court with powers of discretionary review).” Baldwin, 541 U.S. at 29, 124 S.Ct. 1347; see also Henry, 513 U.S. at 365-66, 115 S.Ct. 887 (“If state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.”). It is not enough to recite “only ... the facts necessary to state a claim for relief,” Gray v. Netherland, 518 U.S. 152, 163, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (citing Picard, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438), or to “make a general appeal to a constitutional guarantee as broad as due process,” id. (citing Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam)). Likewise, “[m]ere similarity between ... state law claims and ... federal habeas claims is insufficient” to satisfy the fair presentation requirement. Carney v. Fabian, 487 F.3d 1094, 1097 (8th Cir. 2007) (alteration in original) (quoting McCall v. Benson, 114 F.3d 754, 757 (8th Cir.1997)). Thus, we have held that “[i]n order to fairly present a federal claim to the state courts, the petitioner must have referred to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue in a claim before the state courts.” Id. at 1096 (internal quotation marks omitted) (quoting McCall, 114 F.3d at 757). If a prisoner fails to present his federal claims to the state courts, those claims are generally considered procedurally defaulted. See, e.g., Barrett v. Acevedo, 169 F.3d 1155, 1161 (8th Cir.1999) (en banc) (citing Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir.1996) (en banc)).

Turnage v. Fabian, 606 F.3d 933, 936 (8th Cir.2010) (in a murder case, holding that federal claim that defendant’s brother recanted testimony against defendant and that federal due process standards required the state court to hold an eviden-tiary hearing on the veracity of the recantation was procedurally defaulted where defendant raised only state law grounds in state court for contesting the refusal to hold an evidentiary hearing).

Moreover, where “no state court remedy is available for the unexhausted claim — that is, if resort to the state courts would be futile — then the exhaustion requirement in § 2254(b) is satisfied, but the failure to exhaust ‘provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default’ (or actual innocence ...).” Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir.2005) (quoting Gray v. Netherland, 518 U.S. 152, 162, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996)). Stated another way, if a claim has not been presented to the Nebraska appellate courts and is now barred from presentation, the claim is procedurally defaulted, not unexhausted. See Akins v. Kenney, 410 F.3d 451, 455-456 n. 1 (8th Cir 2005).

The Nebraska Supreme Court has stated that the need for finality in the criminal process requires that a defendant bring all claims for relief on direct appeal if those claims are then known, and the failure to do so will result in forfeiture of such claims. See, e.g., State v. Hall, 264 Neb. 151, 646 N.W.2d 572, 579 (2002). In the same vein, “[a]n appellate court will not entertain a successive motion for post-conviction relief unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the movant filed the prior motion.” State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788, 792 (2003). Additionally, “[a] motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal.” Hall, 646 N.W.2d at 579.

In such circumstances, where a Nebraska court rejects a claim on state procedural grounds, and “issues a ‘plain statement’ that it is rejecting petitioner’s federal claim on state procedural grounds,” a federal habeas court is precluded from “reaching the merits of the claim.” Shaddy v. Clarke, 890 F.2d 1016, 1018 (8th Cir.1989); see also Greer v. Minnesota, 493 F.3d 952, 957 (8th Cir. 2007) (reiterating that “when a state court declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement,” federal habeas is barred because “[i]n such instances, the state prisoner forfeits his right to present his federal claim through a federal habeas corpus petition”) (quotations omitted). However, the state court procedural decision must “rest[ ] on independent and adequate state procedural grounds.” Barnett v. Roper, 541 F.3d 804, 808 (8th Cir.2008) (quotation omitted). “A state procedural rule is adequate only if it is a firmly established and regularly followed state practice.” Id. (quotation omitted).

Even where a claim has been procedurally defaulted, a petitioner is entitled to an opportunity to excuse the default. See Akins, 410 F.3d at 455^456 n. 1. To excuse a procedural default, a petitioner must demonstrate either cause for the default and actual prejudice as a result of the alleged violation of federal law, or, in rare cases, that the failure to consider the claim will result in a fundamental miscarriage of justice (such as where the petitioner is “actually innocent”). Coleman v. Thompson, 501 U.S. 722, 749-750, 111 S.Ct. 2546,115 L.Ed.2d 640 (1991).

Although there is no precise definition of what constitutes cause and prejudice, “the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Strickler v. Greene, 527 U.S. 263, 283 n. 24, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (quotation omitted). Additionally, the Eighth Circuit has held that ineffective assistance of counsel at the state postconviction stage is not sufficient to constitute “cause” to excuse the procedural default of a habeas claim. See Armstrong, 418 F.3d at 927.

AJEDPA Deference

The Antiterrorism and Effective Death Penalty Act of 1996, Pub L. No. 104-132, 110 Stat. 1214, (known as “AEDPA”), is an Act of Congress signed into law on April 24, 1996. According to that law, when a state court has adjudicated a habeas petitioner’s claim on the merits, there is a very limited and extremely deferential standard of review both as to the facts and the law. See 28 U.S.C. § 2254(d).

With regard to the deference owed to factual findings of a state court’s decision, a federal court is bound by those findings unless the state court made a “decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Additionally, a federal court must presume that a factual determination made by the state court is correct, unless the petitioner “rebut[s] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Further, section 2254(d)(1) states that a federal court may not grant a writ of habeas corpus unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), a state court acts contrary to clearly established federal law if it applies a legal rule that contradicts the Supreme Court’s prior holdings or if it reaches a different result from one of that Court’s cases despite confronting indistinguishable facts. See id. at 405-06, 120 S.Ct. 1495.

Further, “it is not enough for [the federal court] to conclude that, in [its] independent judgment, [it] would have applied federal law differently from the state court; the state court’s application must have been objectively unreasonable.” Rousan v. Roper, 436 F.3d 951, 956 (8th Cir.2006). “An incorrect decision is not necessarily unreasonable, and we may not grant a writ of habeas corpus unless the state court decision is both wrong and unreasonable.” Palmer v. Clarke, 408 F.3d 423, 429 (8th Cir.2005).

As the Supreme Court noted, “[i]f this standard is difficult to meet, that is because it was meant to be.” Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011). The deference due to state court decisions “preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [Supreme Court] precedents.” Id. In short, “[i]t bears repeating that even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id.

This high degree of deference only applies where a claim has been adjudicated on the merits by the state court. See Brown v. Luebbers, 371 F.3d 458, 460-61 (8th Cir.2004) (“[A]s the language of the statute makes clear, there is a condition precedent that must be satisfied before we can apply the deferential AEDPA standard to [the petitioner’s] claim. The claim must have been ‘adjudicated on the merits’ in state court.”).

The Eighth Circuit clarified what it means for a claim to be adjudicated on the merits, finding that:

AEDPA’s requirement that a petitioner’s claim be adjudicated on the merits by a state court is not an entitlement to a well-articulated or even a correct decision by a state court. Accordingly, the postconvietion trial court’s discussion of counsel’s performance — combined with its express determination that the ineffective — assistance claim as a whole lacked merit — plainly suffices as an adjudication on the merits under AEDPA.

Worthington v. Roper, 631 F.3d 487, 496-97 (8th Cir.2011) (quotations and citations omitted).

The court also determined that a federal district court reviewing a habeas claim under AEDPA must “look through” the state court opinions and “apply AED-PA review to the ‘last reasoned decision’ of the state courts.” Id. at 497. A district court should do “so regardless of whether the affirmance was reasoned as to some issues or was a summary denial of all claims.” Id. The Supreme Court agrees, recently stating:

There is no text in the statute requiring a statement of reasons. The statute refers only to a “decision,” which resulted from an “adjudication.” As every Court of Appeals to consider the issue has recognized, determining whether a state court’s decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court’s reasoning.

Harrington, 131 S.Ct. at 784.

Strickland Standard

Claims of ineffective assistance of counsel are reviewed under the two-pronged standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that the petitioner demonstrate both that hi