United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-2907

___________

John Middleton, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri. 

Don Roper, * 

*

Appellee. * 

___________

Submitted: June 14, 2007

Filed: August 17, 2007

___________

Before LOKEN, Chief Judge, ARNOLD and COLLOTON, Circuit Judges.

___________

COLLOTON, Circuit Judge.

John Middleton was convicted of the first-degree murder of Alfred Pinegar and

sentenced to death by a Missouri trial court. The Supreme Court of Missouri affirmed

the conviction and sentence on direct appeal, State v. Middleton, 995 S.W.2d 443 (Mo.

1999) (“Middleton I”), and subsequently affirmed the denial of his motion for postconviction relief. Middleton v. State, 103 S.W.3d 726 (Mo. 2003) (Middleton II).

Middleton applied for a writ of habeas corpus in federal court under 28 U.S.C. § 2254.
1

 The Honorable Catherine D. Perry, United States District Judge for the Eastern

District of Missouri.

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The district court1

 denied relief on all thirty-two grounds claimed, but granted a

certification of appealability on four issues. We affirm. 

I.

We recite the facts as set forth by the Supreme Court of Missouri in its opinion

affirming the denial of post-conviction relief. See 28 U.S.C. § 2254(e). On June 10,

1995, police arrested several individuals in Harrison County, Missouri, on

methamphetamine-related charges. John Middleton, a local methamphetamine user

and dealer, was not arrested at that time. About ten days later, he told a friend that

“the snitches around here are going to start going down.” He said he had a “hit list,”

which included Alfred Pinegar, another methamphetamine dealer and an associate of

Middleton’s. Two days after making these comments, Middleton told the same friend

that he was “on his way to Ridgeway, Missouri, to take Alfred Pinegar fishing.” 

Pinegar lived with his fiancée, Priscilla Hobbs, in Davis City, Iowa, just north

of Harrison County. On June 23, 1995, Hobbs passed Middleton on the road on her

way to Davis City. Middleton and his girlfriend were in a white Chevrolet pickup

truck. When Hobbs arrived at home, Pinegar was gone, and the yard had been only

partly mowed. Also missing were about $200 and a twelve-gauge shotgun that

Pinegar habitually carried. 

Around noon of that day, Middleton entered a Wal-Mart in Bethany, Missouri,

with his girlfriend, Maggie Hodges, and a man believed to be Pinegar. They

approached the sporting goods department where Middleton purchased six boxes of

nine-millimeter ammunition and two boxes of twelve-gauge buckshot. 
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After leaving Wal-Mart, the three drove several miles to the vicinity of

Ridgeway, where they parked in a field. When Middleton brandished Pinegar’s

shotgun, Pinegar fled. Middleton shot him twice in the back and then killed him with

a shot to the face. Middleton dumped Pinegar’s body over a fence.

Middleton and Hodges then returned to the Bethany Wal-Mart, where

Middleton exchanged the nine-millimeter rounds for ammunition of another caliber.

Later in the afternoon, Gerald Parkhurst saw Middleton and Hodges standing beside

their pickup on a road near Bethany. Explaining that the truck had broken down,

Middleton and Hodges asked for a ride. Parkhurst agreed. The couple took five or

six guns, including the shotgun, out of the pickup truck and placed them in Parkhurst’s

car. Parkhurst drove them to Spickard, Missouri, where they took the guns and left.

On June 25, 1995, John Thomas visited Middleton to discuss possible drug

informants. Middleton said that “something had to be done about them.” He told

Thomas that he had Pinegar’s shotgun and that Pinegar “wouldn’t be needing it no

more.” The following day, Pinegar’s body was discovered. Police also found at the

crime scene a piece of leather fringe, an empty box of twelve-gauge shells, a pair of

sunglasses with a missing lens, and a small plastic clock. 

Several months later, while in jail, Middleton admitted to a fellow inmate that

he killed Pinegar out of fear that Pinegar would “snitch” on him. Middleton described

the murder to the other inmate, and said he was worried that he may have left some

fringe from his leather jacket at the scene. 

Middleton was tried and convicted of the first-degree murder of Pinegar. He

presented no evidence in his defense in the guilt phase of the trial. In the punishment

phase, the State presented evidence that he had subsequently murdered one Randy

Hamilton and his girlfriend, Stacey Hodge, as part of his effort to eliminate

informants. The jury recommended a death sentence, and the circuit court imposed
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it. Later, in a separate trial, Middleton was also sentenced to death for the other two

murders. See Middleton v. Roper, 455 F.3d 838 (8th Cir. 2006), cert. denied, 127 S.

Ct. 980 (2007). 

II.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

28 U.S.C. § 2254(d), a federal court may grant a writ of habeas corpus only if the state

court’s determination:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.

“A decision is ‘contrary to’ federal law . . . if a state court has arrived ‘at a

conclusion opposite to that reached by [the Supreme Court] on a question of law’ or

if it ‘confront[ed] facts that are materially indistinguishable from a relevant Supreme

Court precedent’ but arrived at an opposite result.” Davis v. Norris, 423 F.3d 868,

874 (8th Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). “A state

court unreasonably applies clearly established federal law when it ‘identifies the

correct governing legal principle from [the Supreme] Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s case.’” Id. (quoting

Williams, 529 U.S. at 413). The factual findings of the state courts are presumed

correct, and the applicant has the burden to rebut this presumption by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1). 
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A.

Middleton first claims that he was denied his right to effective assistance of

counsel and to due process of law when the state trial court refused to grant his

requests for a continuance of the trial. Middleton complains that the State endorsed

twenty-three new witnesses only three weeks prior to trial, and that as a result, his

counsel were unable adequately to prepare his defense. He contends that counsel were

forced to conduct depositions in the evening during the trial instead of readying

themselves for the following day’s cross examinations, and that their effectiveness at

trial suffered as a consequence. 

By the time Middleton went to trial, about a year and four months had elapsed

since an information was filed against him. His first counsel entered her appearance

the day after the information was filed. In June 1996, eight months after the

information was filed, his counsel requested and received a continuance from October

7, 1996, to February 24, 1997. Two more attorneys joined Middleton’s team in the

summer or early fall of 1996. Middleton moved for a continuance several times

during the final three weeks before trial, but the trial court adhered to the scheduled

trial date in February 1997.

Middleton’s first request for a continuance, made three weeks before the

February trial date, argued that counsel were unable to complete their preparation due

to the unexpected length of depositions, the need to defend against accusations of two

additional murders in the penalty phase, the recent discovery of additional reports and

evidence, and the fact that some of the witnesses were difficult to locate. The trial

court denied the motion, saying that “this is the kind of case that never would be

ready for trial,” because “there are always other witnesses to find or discovery or some

new facet that comes up or something.” (T. Tr. 615). The court also reasoned that it

was required to recognize the speedy trial rights of the defendant, who had been in

confinement for an extended period of time. After the State endorsed its new
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witnesses, the trial court found that the defense would not be prejudiced by the

endorsement and denied a second motion to continue, but granted Middleton leave to

object to the presentation of the witnesses if unforeseen discovery problems arose. In

a third motion to continue that was filed five days before trial, Middleton’s lawyers

argued that they were still not prepared to go to trial, citing a potential conflict of

interest over the representation of a prosecution witness, the asserted unavailability

of their own recently-endorsed penalty phase expert witness, continuing efforts to

obtain discovery materials and other information from the State, and the need to have

certain fiber evidence analyzed. The court denied the motion saying that “even if we

continued it for six months, right before trial there are always those crises and

problems and things that arise, and no matter how you went, six months or a year, you

would have problems of that kind and that nature.” (T. Tr. 758). The court concluded

that “the case is in the stage that it can be tried with fairness to Mr. Middleton,” but

pledged to consider “additional protections” if Middleton raised “particular instances

where relief is required from the Court” to ensure a fair trial. (Id.).

At trial, the State eventually called eleven of the twenty-three late-endorsed

witnesses to testify. Middleton did not renew an objection to several of these

witnesses, and others testified only briefly regarding perfunctory matters, such as the

chain of custody of physical evidence. The court eventually granted Middleton’s

motion to exclude the testimony of the witness with the asserted conflict of interest.

The court denied objections to the testimony of the remaining late-endorsed witnesses.

On direct appeal, the Supreme Court of Missouri held that the trial court did not

abuse its discretion by denying the motions to continue. The court observed that

many of the twenty-three witnesses endorsed shortly before trial were “chain-ofcustody” witnesses who verified the proper handling of physical evidence, that others

already had been deposed by the defense or had testified in pre-trial proceedings, and

that still others had been endorsed previously by the prosecution or the defense, or at

least had been identified in police reports. The court distinguished its precedents in
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which the State failed to disclose key evidence until the morning of trial, and

determined that in this case, Middleton had not established that he was prejudiced by

the denial of his requests for a continuance.

Middleton argues that the trial court’s decisions resulted in a violation of his

rights under the Sixth and Fourteenth Amendments, and that the state supreme court

unreasonably applied clearly established law in denying relief. Two Supreme Court

precedents principally govern an accused’s constitutional right to a continuance. In

Ungar v. Sarafite, 376 U.S. 575 (1964), a case involving a criminal contempt

proceeding against a witness in a criminal trial, the Court opined that “[t]here are no

mechanical tests for deciding when a denial of a continuance is so arbitrary as to

violate due process,” indicating that “[t]he answer must be found in the circumstances

present in every case, particularly in the reasons presented to the trial judge at the time

the request is denied.” Id. at 589. The Court explained that not every denial of a

request for more time violates due process, even if the consequence of the ruling is

that a party fails to offer evidence or is compelled to defend without counsel. On the

other hand, the Court allowed that “a myopic insistence upon expeditiousness in the

face of a justifiable request for delay can render the right to defend with counsel an

empty formality.” Id. In Ungar, the Court held that the trial court’s denial of a

motion for continuance on the day of the scheduled contempt hearing did not deprive

the defendant of due process, even though counsel said that he was contacted only

three days earlier and was unfamiliar with the case. Id. at 590. 

Subsequently, in Morris v. Slappy, 461 U.S. 1 (1983), the Court again

emphasized that “[t]rial judges necessarily require a great deal of latitude in

scheduling trials,” and explained that “[n]ot every restriction on counsel’s time or

opportunity to investigate or to consult with his client or otherwise to prepare for trial

violates a defendant’s Sixth Amendment right to counsel.” Id. at 11. The governing

standard for the Sixth Amendment, the Court declared, is that “only an unreasoning

and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for
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delay’ violates the right to the assistance of counsel.” Id. at 11-12 (quoting Ungar,

376 U.S. at 589). 

These decisions of the Supreme Court state the governing constitutional rule at

a high level of generality. In applying the deferential standard of AEDPA, “[t]he

more general the rule, the more leeway courts have in reaching outcomes in case-bycase determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004); see also

Carey v. Musladin, 127 S. Ct. 649, 654 (2006). Granting that leeway to the state

supreme court, we agree with the district court that the resolution of Middleton’s

claim was not an unreasonable application of Supreme Court precedent. 

The Supreme Court of Missouri reasonably could conclude that the decisions

of the state trial court recounted above were not an “unreasoning and arbitrary”

insistence on proceeding to trial in the face of a justifiable request for delay. See

Slappy, 461 U.S. at 11. The trial court determined that Middleton could receive a fair

trial without a continuance, and the state supreme court provided an expanded

rationale for this conclusion, based on the nature of the witnesses who were endorsed

by the prosecution three weeks before trial. As to six late-endorsed witnesses about

whom the defense raised objections during trial, the prosecution argued either that the

witnesses were perfunctory or that defense counsel already had information about the

witnesses through previous hearings and police reports, and the trial court overruled

the objections. The state supreme court accepted the State’s contention, finding that

the disputed witnesses were simply “chain of custody” witnesses, had already been

deposed, had testified in pretrial proceedings, or had been identified in police reports.

Middleton II, 995 S.W.2d at 465. Middleton has not rebutted that factual

determination. See 28 U.S.C. § 2254(e)(1). Middleton now advances general

arguments that his counsel were hampered in their ability to prepare by the late

disclosure of witnesses for the prosecution, but he has identified no specific instance

in which additional time for preparation would have improved the performance of

counsel or the fairness of the trial. See Wise v. Bowersox, 136 F.3d 1197, 1207 (8th
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Cir. 1998) (holding that “inadequate preparation in itself does not prejudice a

defendant,” and that a habeas applicant must show that counsel’s poor preparation

resulted in substandard and prejudicial performance). We agree with the district court

that “counsel vigorously and competently” represented Middleton throughout the trial,

and that the Supreme Court of Missouri reasonably concluded that the trial court’s

denial of a continuance did not deprive Middleton of a fair trial or effective assistance

of counsel.

B.

Middleton’s second claim is that the trial court, by reciting the Missouri

Approved Jury Instructions at the penalty phase rather than a set of instructions

requested by Middleton, precluded the jury from giving consideration to mitigating

evidence, as required by the Eighth Amendment. The instructions employed by the

trial court first asked the jury to determine whether any statutory aggravating factors

had been proven beyond a reasonable doubt. (App. at 903). If so, then the jury was

instructed to determine “whether there are facts and circumstances in aggravation of

punishment which, taken as a whole, warrant the imposition of a sentence of death

upon the defendant.” (Id. at 904). Next, the jury was advised that if it found that the

aggravating circumstances “warrant the imposition of a sentence of death,” then it

“must determine whether there are facts or circumstances in mitigation of punishment

which are sufficient to outweigh the facts and circumstances in aggravation of

punishment.” (Id. at 905). This instruction required the jury to consider two statutory

mitigating factors, as well as “any other facts or circumstances which you find from

the evidence in mitigation of punishment.” (Id.).

Middleton contends that the jury was likely to misunderstand these instructions,

and that his “simple, clear, and understandable” alternatives should have been given

instead. He argues that the court’s instructions were structured in a way that

precluded the jury from giving effect to mitigating evidence. In addition to a general
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argument of confusion, he asserts that the instruction on aggravating circumstances

called upon the jury to make the “death decision in isolation, solely on the basis of

aggravating circumstances,” and that the jury was not told until the next instruction,

“after they have already decided that death is the appropriate punishment,” that they

should consider mitigating circumstances.

On direct appeal, the Supreme Court of Missouri held that the trial court did not

err by using the Missouri Approved Instructions rather than Middleton’s proposed

alternatives. The court concluded that the catch-all paragraph on mitigating

circumstances was sufficient to permit the jury to give effect to any mitigating

evidence. Middleton I, 995 S.W.2d at 464. 

We have held previously, even without the deferential lens of AEDPA, that the

Missouri Approved Instructions are consistent with the Eighth Amendment. In

Ramsey v. Bowersox, 149 F.3d 749, 757 (8th Cir. 1998), we held that the approved

instructions did not improperly limit the jury’s consideration of mitigating evidence,

and observed that the Supreme Court had approved a similar set of instructions in

Buchanan v. Angelone, 522 U.S. 269, 276-77 (1998). In Bolder v. Armontrout, 921

F.2d 1359, 1367 (8th Cir. 1990), we rejected an argument that the order and phrasing

of the instructions on aggravating and mitigating circumstances improperly shifted the

burden of proof to the defendant to present mitigating evidence to avoid the death

penalty. 

Middleton’s argument is phrased a bit differently, but we again perceive no

constitutional flaw in the instructions, and thus no unreasonable application of

established law. Viewing the instructions as a whole rather than in artificial isolation,

see Boyde v. California, 494 U.S. 370, 378 (1990), we see no reasonable likelihood

that the jury was precluded from considering mitigating evidence. Although the jury

was asked first to determine whether aggravating circumstances existed and whether

they were sufficient to warrant the death penalty, that was a permissible step to narrow
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the class of defendants eligible for the death penalty. See Lowenfield v. Phelps, 484

U.S. 231, 244-46 (1988). The instructions were clear that the decision on aggravating

circumstances did not constitute the ultimate selection of the appropriate punishment

for this defendant. See Tuilaepa v. California, 512 U.S. 967, 972 (1994). Rather, the

jury was then required to consider mitigating evidence, and to impose a term of life

imprisonment if the mitigating circumstances were sufficient to outweigh the

aggravating circumstances. This is a permissible means of allowing the jury to give

effect to mitigating evidence. See Kansas v. Marsh, 126 S. Ct. 2516, 2522-24 (2006).

Another instruction, moreover, specifically explained that the jury was not compelled

to fix death as the punishment, even if the mitigating circumstances did not outweigh

the aggravating circumstances. (App. at 907). We conclude that the state supreme

court did not unreasonably apply Supreme Court precedent in rejecting Middleton’s

Eighth Amendment claim.

In a related argument, Middleton contends that his trial counsel were ineffective

because they failed to object to the pattern instructions and to present evidence of

scientific studies by Dr. Richard Wiener, a psychologist. According to Dr. Wiener,

his studies show that jurors do not understand the standard Missouri instructions, that

it is possible to improve juror comprehension by rewriting the instructions, and that

jurors who do not comprehend the instructions may be more likely to impose the death

penalty.

The state post-conviction trial court found that Dr. Wiener’s findings and

conclusions were “not persuasive” and did not establish that the Missouri pattern

instructions were confusing or misleading to the jury. Accordingly, the court ruled

that trial counsel were not ineffective for declining to object to the pattern instructions

or in failing to present Dr. Wiener’s studies. The Supreme Court of Missouri

summarily affirmed the trial court’s ruling, citing several decisions in which it had

rejected similar arguments based on Dr. Wiener’s studies. Middleton II, 103 S.W.3d

at 743 (citing Lyons v. State, 39 S.W.3d 32, 43-44 (Mo. 2001); State v. Deck, 994
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S.W.2d 527, 542-43 (Mo. 1999); State v. Jones, 979 S.W.2d 171, 181 (Mo. 1998)).

In Deck, for example, the state supreme court rejected Dr. Wiener’s conclusion that

jurors were unlikely to understand the concept of mitigation, reasoning that “the term

‘mitigating’ is always contrasted with the term ‘aggravating’ so that no reasonable

person could fail to understand that ‘mitigating’ is the opposite of ‘aggravating.’” 994

S.W.2d at 542-43. In Lyons, the court concluded that the language of the pattern

instructions is “plainly understandable.” 39 S.W.3d at 43.

We conclude that the Supreme Court of Missouri did not unreasonably apply

Strickland v. Washington, 466 U.S. 668 (1984), in holding that trial counsel were not

ineffective for failing to rely on the Wiener studies. We already have explained that

the Missouri pattern instructions give the jury an adequate opportunity to give effect

to mitigating evidence, and we agree with the state supreme court that when the

instructions are viewed as a whole, they are understandable. Because reliance on the

Wiener studies would have been unavailing, it was reasonable for the state court to

hold that counsel reasonably declined to present the studies and that Middleton

suffered no prejudice. 

C.

Middleton’s third contention is that the trial court’s admission of a videotape

and photograph showing the bodies of Middleton’s murder victims in an uncharged

case was so unfairly prejudicial that it violated his rights under the Due Process

Clause. The disputed videotape shows the scene where the bodies of Stacey Hodge

and Randy Hamilton were discovered in the trunk of a car. The district court found

that the videotape was “admittedly gruesome, showing the two victims’ skeletized

remains found a month after they had been killed.” Middleton v. Roper, No.

4:03CV543, 2005 WL 2298203, at * 35 (E.D. Mo. 2005).
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On direct appeal, the Supreme Court of Missouri held the trial court did not

abuse its discretion in admitting this evidence. Middleton I, 995 S.W.2d at 463. The

court ruled that the character and history of the defendant, including prior crimes

committed by the defendant, is admissible as relevant evidence in the penalty phase

of a capital trial. The court reasoned that the sole account of how Hodge and

Hamilton were murdered came from Stallsworth, the jailhouse informant, and that the

videotape and photograph corroborated his testimony and helped the jury to

understand Middleton’s prior acts for the purpose of determining his punishment for

Pinegar’s murder. Id.

The only Supreme Court precedent on which Middleton relies is Donnelly v.

DeChristoforo, 416 U.S. 637 (1974). In that case, the Court rejected a habeas

petitioner’s claim for relief based on allegedly improper remark by a prosecuting

attorney, but established some general principles for application of the Due Process

Clause. The Court explained that the “process of constitutional line drawing in this

regard is necessarily imprecise,” id. at 645, but emphasized that courts should observe

the distinction between “ordinary trial error of a prosecutor” and “egregious

misconduct” that amounts to a denial of constitutional due process. Id. at 647-48. The

ultimate standard, as later applied to determine whether the admission of disputed

evidence at a sentencing hearing violates the Due Process Clause, is whether the

evidence “so infected the sentencing proceeding with unfairness as to render the jury’s

imposition of the death penalty a denial of due process.” Romano v. Oklahoma, 512

U.S. 1, 12 (1994). Under AEDPA’s habeas review, we consider whether the state

supreme court’s rejection of Middleton’s claim was an objectively unreasonable

application of Supreme Court precedent concerning the Due Process Clause. Whether

the evidence was properly admissible under Missouri law is “no part” of our review,

because habeas review does not lie to correct alleged errors of state law. Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991).
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The disputed videotape and photograph in this case were relevant to prove

Middleton’s other criminal acts. These acts, in turn, were relevant to the sentencing

decision. See Zant v. Stephens, 462 U.S. 862, 888 (1983); Wise v. Bowersox, 136 F.3d

at 1205-06. The photograph of Hodge’s body was used by an expert witness in

describing her fatal injuries and corroborated Stallsworth’s testimony. The videotape

of the bodies in the trunk corroborated Stallsworth’s account of Middleton’s

admissions.

Middleton contends that the videotape, in particular, was cumulative of

testimony from law enforcement officers, but the Supreme Court has never held that

the admission of indisputably relevant evidence amounts to a denial of due process.

Our own precedents, which have upheld the admission of similar evidence against due

process challenges prior to AEDPA, provide support for the view that the state court’s

application of Supreme Court precedent was at least objectively reasonable. See Clark

v. Wood, 823 F.2d 1241, 1246-47 (8th Cir. 1987) (holding no due process violation

where trial court admitted “graphic and detailed pictures” of a victim in an uncharged

murder, in addition to testimony of witnesses who described the scene “in detail,”

because photographs were relevant to show circumstances or background of the

charged murder); Kuntzelman v. Black, 774 F.2d 291, 292 (8th Cir. 1985) (per curiam)

(affirming denial of habeas relief where trial court admitted “particularly gruesome”

photographs of a murder victim’s body and body parts from an autopsy, because they

were “arguably relevant and probative” in showing the identity and condition of the

deceased, the location of the wound, and the defendant’s intent); Walle v. Sigler, 456

F.2d 1153, 1155 (8th Cir. 1972) (holding no due process violation in trial court’s

admission of “gruesome” photographs of uncleansed corpse, saying “it must be noted

that this condition is an inherent and inseparable part of the crime with which this

defendant was charged”). The Supreme Court’s guidance in this area is quite general,

and we do not think the state supreme court unreasonably applied those precedents in

holding that the trial court’s evidentiary decisions did not amount to a denial of due

process.
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D.

Middleton’s final claims concern the proportionality of his punishment. He

contends that his sentence of death is not proportionate to the punishment imposed

in similar Missouri cases, and that Missouri’s system of proportionality review fails

to provide an appropriate comparison among cases. The Supreme Court of Missouri

rejected Middleton’s challenges to proportionality review, citing this court’s decision

that “Missouri’s proportionality review does not violate the Eighth Amendment, due

process, or equal protection of the laws.” Middleton I, 995 S.W.2d at 468 (quoting

Ramsey, 149 F.3d at 754). 

The Eighth Amendment does not require proportionality analysis, Pulley v.

Harris, 465 U.S. 37, 50-51 (1984), but we have said that once a State creates a right

to proportionality review, as Missouri has done, see Mo. Rev. Stat. § 565.035, then

the State may not arbitrarily deny that right to a particular defendant. Foster v. Delo,

39 F.3d 873, 882 (8th Cir. 1994). In this case, the Supreme Court of Missouri

performed the prescribed review, see Middleton I, 995 S.W.2d 467-68, and the

Constitution does not call for us to look behind that review. Walton v. Arizona, 497

U.S. 639, 656 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584,

589 (2002); Kilgore v. Bowersox, 124 F.3d 985, 996 (8th Cir. 1997). Middleton

contends that the state supreme court should be required to compare similar cases in

which the death penalty was rejected or was not sought, and that it should engage in

a statistical or scientific comparison of cases. But we may not consider whether the

state court misinterpreted the relevant state statute, McGuire, 502 U.S. at 67-68;

Kilgore, 124 F.3d at 996, and “a defendant cannot ‘prove a constitutional violation

by demonstrating that other defendants who may be similarly situated did not receive

the death penalty.’” United States v. Johnson, No. 06-1001, 2007 WL 2163002, at *4

(8th Cir. July 30, 2007) (quoting McClesky v. Kemp, 481 U.S. 279, 306-07 (1987));

see also Getsy v. Mitchell, No. 03-3200, 2007 WL 2118956, at *7 (6th Cir. July 25,

2007) (en banc). Accordingly, we hold that the state supreme court’s decision on
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proportionality review did not unreasonably apply clearly established federal law as

determined by the Supreme Court.

* * *

The judgment of the district court is affirmed.

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