Bolden v. United States (171 F. Supp. 3d 891, 2016)

CAPITAL CASE

MEMORANDUM

CAROL E. JACKSON, UNITED STATES DISTRICT JUDGE

This matter is before the court upon the revised amended motion of Robert Bolden, Sr., to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. The United States has filed its opposition to the motion, and the issues are fully briefed.

I. Background

In the afternoon of October 7, 2002, Bolden, Dominick Price and Corteze Edwards attempted to rob a Bank of America branch in St. Louis, Missouri. Bolden had concocted a plan for the robbery which he discussed with Price earlier that day. According to the plan, Bolden would use a handgun to disarm the bank’s security guard and then he and Price would hold the guard hostage, get the money, and drive away in Bolden’s car. At some point during the day Bolden recruited Edwards to assist in the robbery.

Bolden, Price, and Edwards drove to a parking lot near the bank and got out of the car. Although Bolden had purchased a nylon stocking cap to conceal his identity, he did not wear a mask. When the security guard, Nathan Ley, came outside, Bolden approached, with Price and Edwards following 15 to 20 feet behind him. Bolden stopped a few feet away from Mr. Ley and the two men exchanged words. Bolden then pointed his handgun at Mr. Ley. A brief struggle ensued after Mr. Ley reached for the gun, but Bolden was able to fire it, shooting Mr. Ley in the jaw. As Mr. Ley fell, Bolden stepped backward and fired another shot, this time into Mr. Ley’s head. Mr. Ley died from the second gunshot.

Bolden, Price, and Edwards fled from the scene. However, several bystanders witnessed the incident and were able to provide a description of Bolden and his vehicle to the police. Also, the police gathered DNA evidence from clothing found at and near the scene that they linked to Bolden and his accomplices. Bolden was arrested that evening.

In a superseding indictment, Bolden was charged with conspiring to commit the armed robbery of Bank of America by force and violence, in violation of 18 U.S.C. §§ 2113(a) and (f), and in so doing, killing Mr. Ley (Count I); attempting to rob Bank of America, and in doing so, killing Mr. Ley, in violation of 18 U.S.C. §§ 2113 (a) and (e) and 2 (Count II); using and carrying a firearm during and in relation to the attempted bank robbery charged in Count II, in violation of 18 U.S.C. §§ 924(e)(1), (j)(l) and 2, and in doing so committing murder as defined in 18 U.S.C. § 1111 (Count III); and being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count IV). On May 23, 2006, after a month-long trial, a jury found Bolden guilty of all four charges and sentenced him to death on Counts II and III. The judgment was affirmed on appeal. United States v. Bolden, 545 F.3d 609 (8th Cir.2008), cert. denied, 558 U.S. 1077, 130 S.Ct. 796, 175 L.Ed.2d 561 (2009).

II. Procedural Default

The government correctly points out that many of the claims Bolden asserts in the instant motion are procedurally defaulted, as they could have been raised on direct appeal but were not. Bolden counters that he is not barred from asserting these claims because the failure to present them on appeal was the result of ineffective assistance of counsel.

A motion to vacate is not a substitute for a direct appeal. See Boyer v. United States, 988 F.2d 56, 57 (8th Cir.1993); Reid v. United States, 976 F.2d 446, 447 (8th Cir.1992), cert. denied, 507 U.S. 945, 113 S.Ct. 1351, 122 L.Ed.2d 732 (1993) [citing United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)]. Absent a showing of cause and prejudice, a movant cannot assert a claim in a § 2255 proceeding that could have been asserted on appeal. Id. In order to show cause, the movant must establish that “some objective factor external to the defense” impeded his ability to present his claim on appeal. McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) [quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)]. Ineffective assistance of counsel or a showing of actual innocence may constitute cause sufficient to exempt a movant from the procedural bar. Id. at 494, 111 S.Ct. 1454.

III. Ineffective Assistance of Counsel

Bolden claims that he was denied effective assistance of counsel at trial and on appeal. He asserts ineffective assistance both as an independent claim and as cause for his procedural default. To prevail on an ineffective assistance claim, a movant must show that his attorney’s performance fell below an objective standard of reasonableness and that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). With respect to the first Strickland prong, there exists a strong presumption that counsel’s conduct falls within the wide range of professionally reasonable assistance. Id. at 689, 104 S.Ct. 2052. In Strickland, the Court described the standard for determining an ineffective assistance claim:

[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

To establish the “prejudice” prong, the movant must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. The failure to show prejudice is dispositive, and a court need not address the reasonableness of counsel’s performance in the absence of prejudice. United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir.1996).

IV. Grounds for Relief

Ground 1: Failure to Give Notice of Vienna Convention Rights and Provide Consular Notification

Bolden was born in Canada and lived there until he was one year old. He was then brought to the United States and lived here continuously thereafter. Correspondence and other documents from the U.S. Immigration and Naturalization Service establish that Bolden, his attorneys, and the government were aware of Bolden’s Canadian citizenship before trial. [Doc. # 113-4, pp. 15-100 and # 113-5, pp. 1-55]. However, the government did not give Bolden notice of any rights he had under the Vienna Convention, nor did it notify the Canadian Consulate of the criminal proceedings against Bolden. Bolden claims that these omissions resulted in the denial of his constitutional rights. Bolden could have presented this claim on direct appeal, but he failed to do so. Therefore, the claim is procedurally barred unless cause and prejudice are shown. For the reasons discussed below, even if Bolden could establish cause for the default, he cannot establish that he was prejudiced.

The Vienna Convention is an international treaty of which the United States and Canada are among the member countries. The Convention stipulates consular protocol between member nations. Article 36 of the Vienna Convention on Consular Relations and Optional Protocol on Disputes applies to communication between the consular officers of a country (the “sending State”) and its nationals in a country (the “receiving State”) where a consular post of the sending State has been established. The Article provides, in relevant part:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving state shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded b the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and ■ to arrange for his legal representation.

While the Supreme Court has not directly addressed whether the Convention confers individually enforceable rights, the Court has held that a treaty is not binding domestic law unless Congress has enacted statutes implementing it, or the treaty itself conveys an intention that it be self-executing. Medellin v. Texas, 552 U.S. 491, 505, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) (citing Igartuctr-De La Rosa v. United States, 417 F.3d 145, 152 (1st Cir.2005)). In the absence of a statute establishing the Convention is binding, the circuit courts of appeals have split on whether it is self-executing.

The Eighth Circuit has not had occasion to decide whether the Convention conveys individually enforceable rights. The Seventh Circuit has held that the Convention grants private rights to individuals. Jogi v. Voges, 480 F.3d 822, 835 (7th Cir.2007). However, the Seventh Circuit’s decision in Jogi is in tension with other circuits that have established a precedent that the Convention does not confer a a private right of action in the criminal context. The Fifth and Sixth Circuits have held that the Convention does not create rights that are privately enforceable. See United States v. Emuegbunam, 268 F.3d 377, 390 (6th Cir.2001) (noting that “[a]bsent express language in a treaty providing for particular judicial remedies, the federal courts will not vindicate private rights.... ”); See also United States v. Jimenez-Nava, 243 F.3d 192, 196 (5th Cir.2001) (highlighting the presumption that treaties do not confer a private right of action in federal courts).

The State Department’s position is that the Convention does not create individually enforceable rights. Courts give great weight to an agency’s interpretation of a treaty that agency is charged with implementing. Emuegbunam, 268 F.3d at 392. According to the State Department’s interpretation, interpretation, the Convention is not to be drawn on as a source of actionable rights by individuals, but rather to serve as a source of guidance for diplomats in their dealings with one another. Brief for United States as Amicus Curiae, p. 824, in Jogi, 480 F.3d at 826. To support its position in Jogi, the United States relied on the Convention’s plain text intention to “ensure efficient performance of functions by consular posts on behalf of their respective States” — but “not to benefit individuals.” Id. (citing Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 100-101, T.I.A.S. No. 6820). Absent controlling authority on the question from the Eighth Circuit, the court finds the reasoning in Emuegbunam, Jimenez-Nava, and by the State Department persuasive, and agrees that the Convention does not confer individually enforceable rights.

Article 36 imposes a duty on the government to notify a foreign national’s consulate of his detention only when the national “so requests.” Here, it is undisputed that Bolden made no such request. In bilateral conventions between the United States and certain countries, the consular notification duty arises upon the foreign national’s arrest and must be made within a certain time period or, in some cases, immediately upon a foreign national’s arrest. See, e.ff., Article 35, Convention, With Exchange of Notes, 33 U.S.T. 2973, 1982 WL 590897 (bilateral convention with China requiring consular notification “immediately, but no later than within four days” of arrest or detention). In these bilateral conventions with “mandatory notification” countries the obligation to notify the consulate of a foreign national’s detention arises regardless of whether he made a request. Canada, however, is not a mandatory notification country. Thus, the prosecution was not required to notify the Canadian consulate of Bolden’s detention.

Bolden contends, however, that the prosecution was obligated to advise him of his right to consular assistance and, as a result of its failure to do so, he was unable to make the request. Because this claim is procedurally defaulted, Bolden must demonstrate cause and actual prejudice. Matthews. v. United States, 114 F.3d 112, 113 (8th Cir.1997). In this context, Bolden must demonstrate that he did not know of his right to contact consul under the Convention, he would have availed himself of that right had he known it, and that consular contact likely would have assisted him. United States v. Rivas-Cristales, No. 98-3835, 2000 WL 640942, at *1 (8th Cir.2000) (citing United States v. Esparza-Ponce, 193 F.3d 1133, 1138-39 (9th Cir.1999)). Although Bolden states that the Canadian consulate found that he met its criteria for assistance, he falls short of showing that he would have sought out such assistance.

“Even were [a movant’s] Vienna Convention claim properly raised and proved, it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial.” Breard v. Greene, 523 U.S. 371, 377, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). Here, Bolden fails to show that the alleged Convention violations affected his conviction and sentence. Throughout the pendency of the case, Bolden was represented by experienced defense attorneys who were able to gather evidence and secure witnesses to present in mitigation. Even if the consulate had been informed of Bolden’s arrest, his conviction does not merit reversal if Canadian officials would not have been able to obtain any information that his defense counsel did not have. Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.1996) (death sentence imposed on Canadian citizen did not merit reversal because his defense counsel had all the same information that the Canadian consulate would have been able to obtain).

Nothing in the record demonstrates that the Canadian consulate would have gathered or been able to gather any relevant information beyond that acquired by defense counsel. Bolden alleges that there was “a wealth of multi-generational family, medical, and social mitigation history available in Canada” that defense counsel could have obtained from the consulate. However, as more fully discussed below, the court finds that the omission of this information was not prejudicial. See Ground 9.

In addressing a defendant’s objections to the death penalty in a case where a Convention violation was acknowledged to have occurred, the Eighth Circuit wrote that the violation was “a disembodied fact.” United States v. Ortiz, 315 F.3d 873, 887 (8th Cir.2002). “There is no causal or logical connection at all between the penalty imposed on defendants and violation of the Vienna Convention. The death penalty is provided by statute. It comes into the case, of course, only after defendants are convicted .... The Convention itself says nothing about the appropriateness of penalties, and certainly does not provide that the death penalty is excluded if the Convention is violated.” Id. As more fully discussed below, the prosecution met its burden of proving Bolden’s guilt and presenting evidence sufficient to support imposition of the death penalty. There is no reason to believe that consular notification would have changed the outcome of the case.

Bolden is not entitled to relief on Ground 1.

Ground 2: Improper Influence on Prosecutorial Decisions

A. Conflict of interest

•Bolden first claims that the Assistant United States Attorney who made the decision to prosecute him in a federal court and to seek the death penalty was laboring under a conflict of interest. According to Bolden, the AUSA knew the victim’s father, who worked for the St. Louis Police Department, and had attended high school and grown up in the same neighborhood with him. Bolden argues that these factors mandated recusal by the AUSA. He also argues that recusal was warranted by the AUSA’s membership on the Department of Justice’s Capital Case Review Committee which was responsible for making decisions about whether or not to seek the death penalty in federal criminal cases. It is undisputed that the AUSA did not participate in the Committee’s decision in Bol-den’s case. Nevertheless, Bolden contends that the AUSA’s membership created an appearance of impropriety.

Bolden does not contend that there was a familial relationship between the AUSA and the victim’s father or that the AUSA had any personal or financial interest in the prosecution. Further, there is no reasonable basis for belief that the AUSA’s independent decisionmaking process was impeded or affected in any way by any acquaintance he may have had with the Ley family or his service on the Committee. Bolden has not shown that the AUSA’s participation in the case resulted in a violation of “fundamental fairness, shocking to the universal sense of justice.” Kinsella v. United States ex. rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960); see United States v. Lilly, 983 F.2d 300, 310 (1st Cir.1992) (“Prosecutors need not be empty vessels, completely devoid of any non-case-related contact with, or information about, criminal defendants.”).

Additionally, Bolden does not show any likelihood that the court would have disqualified the AUSA from the case if his attorneys had presented this information at trial.

B. Failure to follow death penalty protocol

Bolden contends that he was denied due process, because the government failed to conform to its own guidelines for seeking a death penalty prosecution at the federal level as set forth in Section 9-10.010 of the 2001 United States Attorneys’ Manual. Bolden asserts that the government disregarded the authorization process in three ways: (1) the DOJ committee ignored the requirement that the interest in prosecuting the crime federally outweigh the state interest; (2) the committee improperly considered the status of the victim’s family as law enforcement; and (3) the committee disregarded evidence of discriminatory application of the death penalty in the Eastern District of Missouri and throughout the country.

Bolden, has no judicially enforceable rights in the internal Department of Justice procedures described in the United States Attorneys’ Manual. “Courts have generally refrained from judicial review of asserted violations of DOJ policies or regulations because of the unique nature of prosecution and the ‘broad discretion’ granted the Attorney General and federal prosecutors in their enforcement of the laws of the United States.” In re United States, 197 F.3d 310, 315 (8th Cir.1999) (citing Armstrong, 517 U.S. at 464, 116 S.Ct. 1480). “While some administrative regulations do create rights in third parties, see United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267, 74 S.Ct. 499, 98 L.Ed. 681 (1954), those governing prosecutors enjoy greater flexibility because the exercise of prosecutorial discretion is a ‘core executive constitutional function.’ ” United States v. Lopez-Matias, 522 F.3d 150, 156 (1st Cir.2008) (quoting Armstrong, 517 U.S. at 465, 116 S.Ct. 1480).

The death penalty protocol contained in the United States Attorneys’ Manual is an internal DOJ policy directing the exercise of prosecutorial discretion. The manual expressly states that “[i]t is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.” United States v. Lee, 274 F.3d 485, 493 (8th Cir.2001) (quoting United States Attorneys’ Manual at § 1-1.100). Federal courts, including the Eighth Circuit, have held this disclaimer to be effective. See id. (“We agree with those courts which have concluded that the death penalty protocol is unenforceable by individuals.”); Nichols v. Reno, 124 F.3d 1376, 1376 (10th Cir.1997) (rejecting the plaintiffs premise that the United Stateg Attorneys’ Manual provided him a protect-able interest); United States v. Myers, 123 F.3d 360, 355-66 (6th Cir.1997) (finding that a violation by the government of the DOJ manual, manual, by itself, did not create a basis for suppressing grand jury testimony); United States v. Busher, 817 F.2d 1409, 1411-12 (9th Cir.1987) (citing the manual’s waiver and concluding that the plaintiff “therefore is not entitled to rely on it”); cfi United States v. Craveiro, 907 F.2d 260, 264 (1st Cir.1990) (holding that similar DOJ guidelines, “not mandated by statute or the constitution, do not confer substantive rights on any party”).

In light of the uniform federal circuit court case law, including controlling Eighth Circuit precedent, Bolden cannot demonstrate any likelihood that the outcome of the case would have been different if defense counsel had presented this argument at trial or on appeal. Therefore, he has not shown prejudice to overcome the procedural default.

C. Racial bias

Bolden also claims that the decision to prosecute him in a federal court was motivated by racial bias. Bolden, who is African-American, asserts that the choice of a federal forum was made to ensure that he would face a majority-white jury that, that, statistically, would be more likely to impose the death penalty. This claim is procedurally-barred because it could have been raised on direct appeal but was not. Thus, the court need not consider the merits of the claim absent a showing of cause and prejudice. Bolden’s reliance on ineffective assistance of counsel as cause for cause for the procedural default fails, because defense counsel would not have been successful in asserting a race discrimination claim.

The government’s decision to prosecute “may not be based on ‘an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962)). To establish a selective prosecution claim, a claimant “must demonstrate that the federal prosecutorial policy ‘had a discriminatory effect and that it was motivated by a discriminatory purpose.’ ” Id. (quoting Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)); see Martin v. City of Brentwood, Mo., 200 F.3d 1205, 1206 (8th Cir.2000) (“Unequal treatment is not enough absent proof ‘of an unlawful intent to discriminate against the plaintiff for an invalid reason.’ ”) (quoting Batra v. Board of Regents of the Univ. of Neb., 79 F.3d 717, 721 (8th Cir.1996)). In order to have prevailed on a selective prosecution claim, Bolden would have had to show that “(1) he was singled out for prosecution while others similarly situated were not prosecuted for similar conduct, and (2) the decision to prosecute him was based on an impermissible motive such as race, religion, religion, or an attempt by the defendant to secure other constitutional rights.” United States v. Scott, 610 F.3d 1009, 1017 (8th Cir.2010) (internal quotations omitted).

Furthermore, Bolden would have had the burden of proving “that the decisionmakers in his case acted with discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) (emphasis in original). Proving discriminatory purpose for an equal protection claim “is no simple task.” Villanueva v. City of Scottsbluff, 779 F.3d 507, 511 (8th Cir.2015). It requires a showing that the conduct or practice in question was “implemented at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.” Id. (quoting Ricketts v. City of Columbia, Mo., 36 F.3d 775, 781 (8th Cir.1994)); see also Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (“Discriminatory purpose ... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.”) (internal quotations and citations omitted).

A finding of intentional discrimination must be based on a totality of the circumstances, including direct and circumstantial evidence of intent as may be available. Rogers v. Lodge, 458 U.S. 613, 618, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982). An inference of discriminatory intent in a specific decision in a capital trial and sentencing, however, cannot be drawn simply from general statistics. McCleskey, 481 U.S. at 294-96, 107 S.Ct. 1756; see also United States v. Bass, 536 U.S. 862, 863-64, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002) (stating that “a nationwide showing” of “raw statistics regarding overall charges [of death-eligible offenses] say nothing about charges brought against similarly situated defendants”) (emphasis in original); United States v. Rodriguez, 581 F.3d 775, 815 (8th Cir.2009) (finding that alleged discrimination in the nationwide administration of the death penalty insufficient under McCleskey to demonstrate that the decisionmakers in the petitioner’s case acted with discriminatory purpose). “This is not to say that evidence of disproportionate impact, or statistical evidence in particular, is unimportant.” Inmates of Neb. Penal & Corr. Complex v. Greenholtz, 567 F.2d 1368, 1375 (8th Cir.1977). To raise an inference of discriminatory purpose through the use of statistical deviations, however, a plaintiff must provide “exceptionally clear proof’ of discrimination. Fuller v. Georgia State Bd. of Pardons & Paroles, 851 F.2d 1307, 1310 (11th Cir.1988); see McCleskey, 481 U.S. at 297, 107 S.Ct. 1756 (“Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused.”); see also Greenholtz, 567 F.2d at 1375 (“[T]he statistical disparity shown may occasionally be so gross or stark or dramatic that it alone will constitute prima facie proof of purposeful discrimination. We are only cautioned that such extreme disparities are rare, that statistical evidence, like any other kind of evidence, may be rebutted, and that the probative worth of statistical evidence depends on all of the surrounding facts and circumstances.”) (internal quotations and citations omitted).

In his motion, Bolden supports his claim of racially discriminatory prosecution by reference to statistical and anecdotal information. Citing a law review article, Bolden states that eight of the 94 federal districts in the United States, including the Eastern District of Missouri, encompass a majority-black urban area and a majority-white population. These districts have produced approximately 50% of the current death sentences. Also, Bolden cites to statistics suggesting that white juries are more prone to levy death sentences than juries with minority participation, as demonstrated by the 19 defendants currently on Missouri’s death row sentenced by juries in St. Louis County in contrast to the four defendants sentenced by juries in the City of St. Louis. As such, Bolden contends, the decision to charge a black defendant from the City of St. Louis at the federal, rather than the state, level greatly reduces the presence of black venirepersons on the jury panel and greatly increases the chance of receiving a death sentence.

As in McCleskey, the information and sources relied upon by Bolden do not contain any specific information or allegations regarding the charging determinations in determinations in Bolden’s case. 481 U.S. at 292-93, 107 S.Ct. 1756 (“He offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence.”). In response, the government asserts that many other factors called for the exercise of federal prosecution of Bolden’s crimes, such as the fact that Bolden murdered a security guard in the course of the robbery of a federally-insured institution. Id. at 297, 107 S.Ct. 1756 “([A] legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty.”). The general statistical evidence related to federal jury composition would have been insufficient to support an inference that the decisionmakers in Bolden’s case acted with discriminatory purpose, and defense counsel would not have succeeded on a discrimination claim based on this evidence.

Nationwide statistical evidence of federal prosecutors’ decisions to seek the death penalty in 2003 likewise would have been insufficient to demonstrate discriminatory purpose in the authorization in Bolden’s case. See Bass, 536 U.S. at 863-64, 122 S.Ct. 2389 (“Even assuming that the Armstrong requirement [of discriminatory purpose for a selective prosecution claim] can be satisfied by a nationwide showing (as opposed to a showing regarding the record of the decisionmakers in [the defendant’s] case, raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants.) (emphasis in original); Rodriguez, 581 F.3d at 815.

As to local statistics, Bolden contends that the venue and capital charging decisions made by the United States Attorney’s Office in this district demonstrate a pattern of selectively prosecuting black defendants who commit crimes against white victims in the City of St. Louis. Bolden points to six defendants, including himself, for whom federal prosecutors in the Eastern District of Missouri have sought the death penalty upon authorization from the United States Attorney General. Two of these defendants committed crimes against a minority victim outside the City. United States v. Tyrese D. Hyles & Amesheo D. Cannon, l:01-CR-73 (HEA) (E.D. Mo. filed Oct. 18, 2001). The other four defendants, including Bolden, were black and committed crimes against white victims within the City. United States v. Norris G. Holder & Billie Jerome Allen, No. 4:97-CR-141 (ERW) (E.D.Mo. filed Mar. 17, 1997); United States v. Andre Bonds, No. 4:95-CR-332 (CAS) (E.D.Mo. filed Oct. 19, 1995). This anecdotal sample of defendants is too statistically insignificant to support an inference of discriminatory purpose in the decision to federally and capitally prosecute Bolden for his crimes, particularly where one-third of the cases involved crimes against minority victims outside the City, one defendant never faced a capital trial, and one-half of the cases did not result in the imposition of the death penalty. See McCleskey, 481 U.S. at 292, 297, 107 S.Ct. 1756. Had defense counsel relied on this information, either at trial or on appeal, the claim of discriminatory prosecution would not have succeeded.

Next, in an attempt to demonstrate that he was unfairly singled out for capital prosecution, Bolden submits an exhibit listing seven defendants prosecuted in a Missouri state court for homicide offenses. [Doc. #71-1] He asserts that these defendants could have been prosecuted federally but were not. This assertion, however, is based on the assumption that federal jurisdiction existed because the crimes involved the use of firearms. Of course, not every crime of violence committed with a firearm that results in a homicide can be charged federally. Section 924(j) of Chapter 18 of the United States Code allows capital prosecution for “[a] person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm ... if the killing is a murder.” In turn, subsection (c) permits federal imprisonment of “any person who, during and in relation to any crime of violence ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c) (emphasis added). Bolden has not shown that the seven defendants used firearms during the commission of a “crime of violence” subjecting them to prosecution under federal law. Thus, they are not similarly situated.

Bolden’s list also identifies two white defendants who committed homicide and were federally prosecuted but did not face capital trials. See United States v. Henry George Rehmert, Sr., No. 4:03-CR-311 (CDP) (E.D.Mo. filed May 16, 2003); United States v. David Ray Martin, No. 4:98-CR-352 (SNL) (E.D.Mo. filed Aug. 3, 1998). In one case, federal prosecutors sought and were granted authorization to pursue the death penalty. See Martin, No. 4:98-CR-352 [Doc. #182] (amended notice of intent to seek the death penalty filed on Oct. 21, 1999). That defendant ultimately pled guilty prior to trial, and the Attorney General in office at the time exercised her discretionary authority to accept the defendant’s request to plead guilty. These two cases do not independently provide “exceptionally clear proof’ of discrimination, and would not have successfully supported a claim of racially-biased prosecution. See McCleskey, 481 U.S. at 297, 107 S.Ct. 1756.

The decision to prosecute capitally is a complex decision involving many factors, including the relationship between the defendant and the victim, the manner and circumstances of the death, the strength of victim impact evidence, and the nature of aggravating and mitigating evidence. Cf, id. at 294, 107 S.Ct. 1756 (“[T]he Constitution requires that [a jury’s] decision [to impose the death penalty] rest on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense.”). The government has cited to at least two factors present in Bolden’s case that played a role in the decision to capitally prosecute — Bol-den robbed a federally-insured bank and murdered a stranger during the attempted robbery. See id. at 296-97, 107 S.Ct. 1756 (“[A]bsent far stronger proof, it is unnecessary to seek [] a rebuttal [from the prosecutors to explain the statistical disparity], because a legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty.”). The fact that the white defendants noted above did not face capital trials in the Eastern District of Missouri is insufficient to raise an inference that the prosecutors’ charging decisions in Bolden’s case were made with discriminatory purpose.

For all the reasons discussed above, Bol-den is not entitled to relief on Ground 2.

Ground 3: Discriminatory Use of Peremptory Challenges

Bolden’s third claim is that the prosecution exercised its peremptory challenges in a racially discriminatory manner prohibited by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, Bolden alleges that five of the seven African-American members of the venire — Juror 40, Juror 44, Juror 60, Juror 126, and Juror 136 — were struck by the prosecution because of their race. On direct appeal, Bolden argued that the government struck Juror 44 because of her race. The court of appeals rejected the argument and, as such, Bolden cannot re-litigate the issue in this § 2255 proceeding. Bear Stops v. United States, 339 F.3d 777, 780 (8th Cir.2003); United States v. Holtzen, 718 F.2d 876, 878 (8th Cir.1983). Bol-den did not challenge the government’s exercise of peremptory strikes to remove the other four African-American jurors. Consequently, his Batson claim is procedurally defaulted. To excuse his default, Bolden claims that counsel was ineffective for failing to address all five peremptory challenges in the argument on appeal.

In Batson, the Supreme Court held that a prosecutor’s use of peremptory challenges to strike prospective jurors solely on the basis of race constitutes a violation' of the Equal Protection Clause. Id. at 89, 106 S.Ct. 1712. To establish a Batson claim, the defendant must first make a prima facie case of purposeful discrimination. Id. at 96, 106 S.Ct. 1712. It then becomes the prosecution’s burden to articulate a race-neutral reason for exercising the peremptory strike to remove a black juror. If the reason given is determined by the court to be pretextual, then the strike must be voided. Id. at 97-98, 106 S.Ct. 1712. However, “[a]s in any equal protection case, the ‘burden is, of course,’ on the defendant who alleges discriminatory selection of the venire ‘to prove the existence of purposeful discrimination.’ ” Id. at 93, 106 S.Ct. 1712 [quoting Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967)].

At trial, the court denied Bolden’s Bat-son challenges after finding that the prosecutor’s race-neutral reasons for striking Jurors 40, 60, 126, and 136 were not pre-textual. The challenges he made at trial with respect to Jurors 40, 60, and 136 are identical to those he asserts in his § 2255 motion. These challenges do not establish purposeful discrimination any more now than they did at trial. Further, it is important to note that the court denied the government’s cause challenge to Juror 126 that was based on concerns about the juror’s competency. It was only then that the government exercised a peremptory strike to remove Juror 126 for the same reasons it articulated in support of the cause challenge. Bolden has not shown that any other juror presented with similar characteristics (ie., use of psychiatric medications and inconsistencies between questionnaire and voir dire answers) such that it could be inferred that the government’s stated concern about her mental competence was pretextual.

Finally, Bolden has not shown that he was denied effective assistance of counsel by his attorney’s decision not to raise the Batson issue on appeal with respect to all five African American jurors who were struck. Bolden has not shown that counsel’s strategic decision to pursue only one Batson claim on appeal was unreasonable, particularly in light of the weakness of the other four claims. Further, he makes no showing that, but for the omission of the other claims, the result of the appeal would have been different.

Bolden is not entitled to relief on the claim asserted in Ground 3.

Ground 4: Denial of Jury Pool Composed of a Fair Cross-Section of the Community

Bolden claims that the decision to prosecute him federally resulted in a deprivation of his right to a jury pool drawn from a fair cross-section of the community. Specifically, he alleges that there was an underrepresentation of African-Americans in the jury venire as a direct result of the jurors being drawn from the entire Eastern Division of the Eastern District of Missouri instead of from only one segment of the Division (the City of St. Louis) which has a larger African-American population. Further, he contends that the decision to prosecute him federally was made with the intention of diluting African-American representation in the venire. Bolden could have raised this claim on direct appeal, but he failed to do so. Thus, the claim is procedurally defaulted.

In relevant part, the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const, amend. VI. The Supreme Court has held that the requirement of a jury in a criminal trial being chosen from a fair cross section of the community is “fundamental to the jury trial guaranteed by the Sixth Amendment.” Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Therefore, “jury wheels, pools of names, panels, or venires from' which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Id. at 538, 95 S.Ct. 692.

Congress has adopted the judicial “district or division” as the relevant geographical boundary for application of the “fair cross section” requirement in federal courts. See 28 U.S.C. § 1861 (“It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.”). This policy is implemented by the additional requirement that “[n]o citizen shall be excluded from service as a grand or petit juror in the district courts of the United States ... on account of race, color, religion, sex, national origin, or economic status.” 28 U.S.C. § 1862.

To establish a prima facie violation of the fair cross-section requirement, “the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

Other courts that have considered claims analogous to Bolden’s have rejected them. E.g., United States v. Brady, 579 F.2d 1121, 1133 (9th Cir.1978) (“[A] fair cross section of the community, must be achieved within the division as a whole rather than any of the division’s component counties.”); Savage v. United States, 547 F.2d 212, 216 n. 8 (3d Cir.1976) (“Insofar as petitioner contends that the petit jury list should contain a larger percentage of prospective jurors from Philadelphia and its black population, so as to give him a more representative background of his peers to judge him ..., we reject such contention.”); United States v. Green, 389 F.Supp.2d 29, 41-42 (D.Mass.2005), rev’d on other grounds sub nom. In re United States, 426 F.3d 1 (1st Cir.2005) (“By choosing federal court and thereby expanding the jury district to include the more racially homogenous suburbs, the government invariably dilutes minority — and even urban — representation in the pool from which defendants’ juries will be selected. While the Sixth Amendment demands representativeness, it does not require courts to second-guess the boundaries of the judicial district. Thus, when the government federalizes local crime in the more diverse cities ... it homogenizes the decisionmaker. And the law allows it to do so.”) (footnote omitted); cf. United States v. Davis, 27 Fed.Appx. 592, 592, 597 (6th Cir.2001) (holding that “there is no constitutional or statutory requirement that a defendant’s trial take place in a specific courtroom or division within a federal district” and that the jury pool need not include anyone from the division in which the crime occurred); Zicarelli v. Dietz, 633 F.2d 312, 318 (3d Cir.1980) (“[T]here is no constitutional right to a jury chosen from the division where the offense was committed or from the entire district which includes that division.”); United States v. Young, 618 F.2d 1281, 1288 (8th Cir.1980) (holding that the exclusion of prospective jurors from either the area where the crime was committed or where the defendant resided does not violate the Sixth Amendment).

With respect to division-based jury selection, courts have consistently held that, as long as a division is not “gerrymandered,” demographic difference in terms of racial or socioeconomic composition in the district’s divisions will withstand constitutional scrutiny. United States v. Cannady, 54 F.3d 544, 547 (9th Cir.1995) (“Only in those cases where the use of a division instead of the entire district constitutes gerrymandering, resulting in the systematic exclusion of a ‘distinctive group’ from participation in any jury selection system, is there a potential violation.”); United States v. Test, 550 F.2d 577, 594 (10th Cir.1976) (“[T]he partitioning of a district into jury divisions is sanctioned by the statute (28 U.S.C. §§ 1863(a)( and 1869(c)), and is clearly not unconstitutional, absent evidence that some cognizable group has been systematically excluded by ‘gerrymandering’ the division lines.”); United States v. Gottfried, 165 F.2d 360, 364 (2d Cir.1948) (“There are probably no districts in the Union, which can be divided without disclosing in the sections different racial, religious, political, social or economic percentages. To demand that they shall not, would be a fantastic pedantry which would serve no purpose.... ”).

Bolden has made no allegation of “gerrymandering” of district or division lines to dilute black representation on federal jury panels. Also, the authority cited by Bolden does not support the argument that a prosecution in the Eastern Division of the Eastern District of Missouri results in the systematic exclusion of distinctive minorities from participation as jurors. In Hardin v. City of Gadsden, 837 F.Supp. 1113 (N.D.Ala.1993), the district court found that the use of a district-wide jury wheel resulted in black citizens disproportionately being denied the opportunity to participate in the jury selection system at all. “Potential jurors[, however,] have no right ... to participate in a jury selection plan in the division or district of their choice.” Cannady, 54 F.3d at 548. “Their constitutional right is simply to be included in the jury selection plan of a district or division.” Id. Bolden has not alleged that African-American citizens in the Eastern Division are systematically excluded from participation in the jury selection process. If Bolden prevailed on his argument, it would follow that the federal government could not prosecute black defendants for crimes committed in the City of St. Louis or a procedure would have to be devised to allow for the selection of potential jurors from particular counties or municipalities within the division to mirror the demographic composition of the City of St. Louis. Neither result is required by the Constitution.

Reiterating his earlier allegations, Bol-den asserts that the prosecution’s charging decisions were motivated by discriminatory intent. For the reasons discussed above, the court finds that Bolden has failed to demonstrate that the decisions to federally and capitally prosecute him raise an inference of discriminatory purpose as required for an equal protection challenge. See McCleskey, 481 U.S. at 294-96, 107 S.Ct. 1756.

Bolden is not entitled to relief on Ground 4.

Ground 5: Failure to Challenge Capital Authorization

Bolden claims that he was denied effective assistance of counsel by his attorneys’ failure to present certain evidence to the Capital Case Review Committee. Bolden acknowledges that his attorneys did present evidence of racial bias in the capital punishment scheme, but he contends that this was not enough.

As the government correctly points out, there is no Sixth Amendment right to counsel in connection with the Department of Justice’s capital authorization procedure. See United States v. Lee, 274 F.3d 485, 493 (8th Cir.2001) (DOJ’s death penalty protocol does not create individual rights that may be enforced). The fact that the procedure allows defense counsel to present mitigating information to the Committee does not convert it into a critical stage of the criminal case at which the Sixth Amendment right to counsel attaches. United States v. Boyd, 931 F.Supp. 968, 973 (D.R.I.1996). Bolden cannot assert that he was denied effective assistance of counsel at a time when he did not have a Sixth Amendment right to counsel. Moreover, Bolden makes no showing that but for the omission of the additional information, the decision of the Committee would have been different. Thus, he has not demonstrated prejudice.

Bolden is not entitled to relief on this claim.

Ground 6: Denial of Rights During Jury Selection

Bolden claims that his right to an impartial jury was denied as a result of statements made by the prosecutor, restrictions imposed by the court, and ineffective assistance of defense counsel during the voir dire examination of prospective jurors. On direct appeal, he did not challenge the prosecutor’s statements or the court’s rulings with respect to jury selection although he could have done so. However, regardless of the procedural default, his claims áre without merit.

In Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), the Supreme Court wrote:

A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any such prospective juror who maintains such views. If even one such juror is empaneled and the death sentence is imposed, the State is disen-titled to execute the sentence.

Id. at 729, 112 S.Ct. 2222.

The Supreme Court in Morgan recognized that “part of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors.” Id. Thus, it is the obligation of the trial court to “ensure that prospective jurors are asked sufficient questions to allow the court and parties to determine whether, should the defendant be convicted, the jurors have already decided to apply the death penalty, or whether they would truly weigh any mitigating and aggravating factors found at the penalty phase of the trial.” United States v. McVeigh, 153 F.3d 1166, 1206 (10th Cir.1998).

Morgan, however, does not require a court to allow counsel to ask potential jurors about evidence expected to be presented during the guilt phase of the trial. McVeigh, 153 F.3d at 1207. Further, a court is not required to allow counsel to ask “how a juror would vote during the penalty phase if presented with specific mitigating factors.” Id. at 1208. Thus, at Bolden’s trial it was appropriate to preclude defense counsel from asking the jurors whether they would consider specific evidence (e.g., Bolden’s health, upbringing, and criminal record) as mitigating or aggravating factors. Additionally, “[w]hen a defendant seeks to ask a juror to speculate or preeommit on how that juror might vote based on any particular facts, the question strays beyond the purpose and protection of Morgan.” Id. at 1207. Thus, when defense counsel sought to ask potential jurors whether they would “consider” certain evidence that was equivalent to seeking their commitment to take the evidence into account in determining guilt or punishment. Such questioning was impermissible, because it negated the province of jurors to determine the weight, if any, to be given to evidence that is presented to them. Restricting counsel to asking the jurors whether they would “listen to” (as opposed to “consider”) certain evidence avoided the risk of the jurors mistakenly believing they had to commit to giving weight to the evidence.

Bolden’s challenges to the court’s rulings with respect to individual jurors are also unavailing. Defense counsel’s question to Juror 118 [“If you found Mr. Bolden guilty of planning a bank robbery. Going to the bank lot and trying to rob the bank and shooting Mr. Ley twice in the attempted bank robbery, in your mind ... does that fall under your category of ‘premeditated murder?’ ” (Tr. 760) ] was an attempt to obtain the juror’s commitment to make a penalty decision before any evidence was presented. As such, it strayed beyond the purpose and protection of Morgan.

Also, Bolden mischaracterizes the exchange between the court, counsel, and Juror 178. There was no effort by the government and the court to mislead the juror about the charges against Bolden or as to the circumstances of the shooting. The court specifically informed the juror that Bolden was charged with attempted bank robbery and that in the course of the robbery Mr. Ley was killed. In response to Juror 178’s concern about whether Bolden was charged with shooting Mr. Ley twice, the court informed her that “the jury will have to determine whether Mr. Bolden fired either shot. And that, I can’t say one way or the other.” (Tr. 1788) Any response that would have confirmed or denied that Bolden fired the shots would have been inappropriate. The court continued to probe the juror’s concern by asking whether it would be “upsetting to [her] if there was evidence that Mr. Bolden fired both shots?” (Tr. 1790) Further, the court allowed defense counsel to ask Juror 178 if she would make .up her mind about punishment based solely on a a finding that Bolden shot Mr. Ley twice. The juror’s response was “no.” Thereafter, counsel for the government asked Juror 178 whether she would “start the [penalty] stage with an open mind about what the punishment should be and wait until you’ve heard everything and consider all of the evidence which may include the circumstances of how the first or second shot was fired and who fired them.” (Tr. 1794) The juror’s response was “yes.” There is nothing in the record of the exchange with Juror 178 that indicates that she was confused or predisposed to voting for the death penalty.

Bolden next complains of objections the government made to questions his attorney asked of Juror 78. None of the objections was sustained, and the court did not impose any restrictions on the questions. Bolden’s allegation that his examination of Juror 78 was improperly limited is belied by the record. Tr. 587-592). Further, the juror’s statement that his decision about punishment “would depend on all the facts that were presented” clearly evinced that he was not predisposed to the death penalty. (Tr. 589)

Likewise, the record does not support Bolden’s allegations with respect to Juror 58 and Juror 118. Both jurors stated that they would remain open-minded. Juror 58 expressed that he was “generally opposed” to the death penalty, but that he was willing to consider the circumstances in which the penalty was appropriate. Juror 118 stated that if the penalty stage were reached he would consider the death penalty and life imprisonment, and that he “wouldn’t be predetermined after a verdict of guilty to go one way or another.” (Tr. 768) Nothing in either jurors’ statements indicate that they were not open to considering mitigation evidence or that they would automatically vote for the death penalty upon a finding of Bolden’s guilt.

Bolden next contends that Juror 31 was unqualified to sit on the jury because she wrote in her questionnaire that she favored the death penalty in cases where there was “overwhelming evidence of guilt.” (Tr. 177) He also complains that his attorneys did not question her about this in voir dire. What Bolden neglects to mention is that Juror 31 was questioned at length by counsel for the government and, if anything, her responses suggested an inclination toward the defense (e.g., “I would — would weigh the mitigators — I would tend to favor the mitigators, to be honest.” (Tr. 177); “I would say that my predisposition would be against the death penalty.” (Tr. 180)). Certainly, Bolden was not prejudiced by his attorneys’ failure to ask questions of Juror 31.

Bolden makes a similar claim with respect to Juror 41, who wrote in his questionnaire that imposing the penalty of life without parole would “depend[] on the crime and if found guilty.” When questioned about this at trial, Juror 41 stated that he believed the death penalty was “probably” appropriate in cases where “people butcher people ... [something that’s, you know, way beyond the normal thing.” (Tr. 328) In response to defense counsel’s question, Juror 41 expressed the view that the death penalty was appropriate 'for crimes that are “particularly heinous and vicious.” Id. Nothing in Juror 41’s responses supports the claim that he was predisposed to the death penalty or that he would not consider mitigation evidence in Bolden’s case.

Finally, Bolden alleges that Juror 186 was an “automatic death juror” based on statements she made in voir dire; Juror 186 was an alternate juror who did not participate in the deliberations during either the guilt or penalty phase of the trial. Apart from that, however, she stated that she would not make a decision about the death penalty before hearing and weighing all the evidence. (Tr. 1372)

For the foregoing reasons, Bolden is not entitled to relief on Ground 6.

Ground 7: Evidence During Guilt Phase

A. Eyewitness and co-defendant testimony

Bolden contends that his attorneys insufficiently attacked the credibility of the testimony of the three eyewitnesses and co-defendant Price during the guilt phase of the trial. He also accuses the government of withholding information about the witnesses that should have been disclosed under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and asserts that the government elicited improper testimony from the witnesses. His allegations of prosecutorial misconduct were not raised on direct appeal and are procedurally defaulted.

During the guilt phase, the jury heard testimony from three witnesses — Erica Ruffin, Henry Wines, and Jeanne Coser— each of whom identified Bolden as the person who shot Mr. Ley. Initially, Bolden asserts that the testimony of the eyewitnesses contained a number of inconsistencies so as to render it unreliable. The inconsistencies he points out, however, were evident in the witnesses’ testimony and could have been considered by the jury. He does not explain what his attorneys could have done to make the inconsistencies more apparent than they already were.

(1) Erica Ruffin

In assessing the value of identification testimony given by an eyewitness, it is appropriate for the jury to consider the circumstances attendant to the witness’s observations. See United States v. Grey Bear, 883 F.2d 1382, 1388 (8th Cir.1989) (jury was properly instructed that in evaluating identification testimony, it should consider whether the witness had both an adequate ability and opportunity to observe the person in question). In the instant case, Erica Ruffin testified that she was walking toward her car across the street from the bank when she heard the sound of a gunshot coming from the direction of the bank. When she looked over, she saw the security guard “bent over with his hand in front of him like with his palm out, and [she] saw the — the guy who had the gun.” (Tr. 2540) Ruffin identified Bolden as the man with the gun and further testified that she