United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-2563EM

_____________ Bruce Kilgore, * * Appellant, * * On Appeal from the United v. * States District Court * for the Eastern District * of Missouri. Michael Bowersox and * Jeremiah W. Nixon, * * Appellees. *

__________ Submitted: June 9, 1997 Filed: September 8, 1997

___________ Befo re RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, an d WOLLMAN, Circuit Judge.

___________ RICHARD S. ARNOLD, Chief Judge.

Bruce Kilgore was convicted of first-degree murder and sentenced to death

. After the Missouri state courts aff irmed his conviction and denied him post-convictionTh e Hon. Edward L. Filippine, United States District Judge for the Easter n 1 District of Missouri. -2- relief, Kilgore filed a petition for a writ of habeas corpus u nder 28 U.S.C. § 2254 in the District Court. The District Court denied the petition, and we affirm.

1

I.

Bruce Kilgore was convicted of first-degree murder for the death of Marily n Wilkins. The facts surroundin g her kidnapping and murder are laid out in detail in the District Court's opinion, and we repeat only a few here, for the sake of clarity. Bruce Kilgore and Willie Luckett together kidnapped Marilyn Wilkin s as she left h e r job working at a restaurant where Luckett formerly worked. Luckett's belief that Wilki ns was responsible for his firing led to the plan to kidnap her. Because sh e re cognized Luckett, Luckett told her she would have to be killed. She was the n stabbed several times, and died after her throat was cut. Renee Dickerson, Luckett's girlfriend, knew of the kidnapping plan, a nd saw the two men after the murder. Lessie Vance, a cousin of Luckett's, accompanied the two men on the day following th e murder on trips to pawn shops, where they sold Wilkins's jewelry. Kilgore wa s eventual ly arrested, and made statements to the police about the murder and wher e evi dence could be found. After a jury trial, Kilgore was convicted of first-degre e murder, and sentenced by the jury to death and to two consecutive life sentences fo r first-degree robbery and kidnapping. The Missouri Supreme Court affirmed Kilgore's convict ion on direct appeal, and approved his sentence after a propor tionality review. State v. Kilgore , 771 S.W.2d 57 (Mo.) (en banc), cert. denied , 493 U.S. 874 (1989).-3-

Kilgore filed for post-conviction relief under Missouri Supreme Court Rul e 29.15, but was den ied relief because his motion was untimely and unverified. After a hearing , the Missouri Supreme Court affirmed the denial of post-conviction relief

. Kilgore v. State , 791 S.W.2d 393 (Mo. 1990) (en banc). Kilgore then sought a writ of habeas corpus under Missou ri Supreme Court Rule 91. Th e Supreme Court denied Kilgore's petition, because all the grounds for relie f stated therei n had been rejected either on direct appeal or as part of the Rule 29.1 5 proceedi ng, or were procedurally barred because Kilgore had provided no sufficien t reason to excuse his failure to present them in those earlier proceedings. No other state-court remedy then remained. Ki lgore filed a petition for a writ of habeas corpus in the District Court under 28 U.S.C. § 2254, which was denied

. Kilgore now appeals.

II. Kilgore offers several arguments for reversal, and we address them seriatim . The State p oints out throughout its brief that Kilgore should be procedurally barred fro m raising many o f his claims. Because we reject the claims on their merits, we do no t discuss the procedural-bar issues. See Lashley v. Armontrout , 957 F.2d 1495, 149 9 (8th Cir. 1992), vacated on other grounds , 993 F.2 d 642 (8th Cir. 1993), rev'd on other grounds , 507 U.S. 272 (1993).

A. Alleged Prosecutorial Misconduct Kilgore argues that prosecutorial misconduct prejudiced his case. Th e mi sconduct

he alleges centered primarily around one of the state's witnesses, Rene e Dickerson. Kilgore believes the prosecution withheld vital information abou t Dickerson and about another witness, Lessie Vance.-4- 1. Notification of Dickerson's Testimony Kilg ore's counsel asked to depose Dickerson months before trial. Th e prosecution responded that she would not be called as a witness, and that she in fact had been charged with hindering prosecution. Kilgore's attorney accordingly did not depose Dick erson. Later, once the trial was under way, the prosecution endorse d Dickerson as a witness, just before she was to testify in the penalty phase. Kilgor e argues that the prosecution suppressed valuable evidence and impermissibly surprised Kilgo re with Dickerson's testimony, in violation of Missouri court rules and th e Constitution.

The Dist rict Court found that the prosecution's conduct was explained b y Dicke rson's decision, after trial had begun, that she was willing to testify. Defens e couns el did not have time to depose Dickerson, but did interview her before sh e testi fied, and, according to the Missouri Supreme Court, learned of the content o f Dickerson's upcoming testimony. See State v. Kilgore , 771 S.W.2 d at 65. Before trial, Dickerson had not been expected to testify. The prosecution assumed, reasonably, that she would invoke the privilege against self-incrimination if called as a witness. After the tr ial began, Dickerson pleaded guilty to a criminal charge in connection with th e murder, thus eliminating this obstacle to her testimony. Dickerson's testimony was the only evidence suggesting th at Kilgore, rather than Luckett , actually wielded the knife. Dickerson testified that Kilgore admitted to he r that he killed Wilkins. This was doubtless damaging testimony, and may very wel l have been a major factor in the jury's decision to sentence Kilgore to death. Th e question, however, is not whether the evidence was damaging to the defense, bu t whe ther the defendant was deprived of a fair trial. The defense's lack of depositio n testimony meant that

it had less information with which to impeach Dickerson. Prior to trial, Dickerson had spoken with authorities about the killing on three separat e occasions, without ever once mentioning that she heard Kilgore confess. One can-5-

presume she would have made the sa me omission, under oath, in a deposition, and the defense would have had o ne more prior inconsistent statement of Dickerson's to bring out at trial.
The standard for evaluating the failure to provide information to the defense is whether a reasonable probabi lity exists that, had the information been disclosed to the defense, the result of the proceeding would have been different. United States v

. Bagley , 473 U.S. 667, 682 (1985). The District Court held that, because defens e counsel had ample other information and prior inconsistent statements with which to impeac h Dickerson, and with which he did impeach Dickerson, there was n o reasonable probability the outcome would have been differen t, and the Bagley standard
w a s not met. The defense brought out that Dickerson had, on three occasions, failed to mention Kilgore's admission when speaking with authorities; that she claimed t o have heard Kilgore's admission right after being awakened; and that she was Luckett's girlfriend and might be bia sed on that account. We see no reason to disagree with the Distric t Court's decision that deposition testimony of Dickerson would not hav e provided the defense with significantly more impeachment mate rial than it had anyway, and that the additional information would not have changed the outcome of the trial. 2. Plea Bargain Kilgo re also argues that the prosecution failed to disclose that Dickerson' s test imony was part of a plea bargain between her and the prosecution. The Distric t Court found that Kilgore presented no evidence that such an agreement existed. The Missouri Supreme Court refers to "the plea-bargain disposition of Dickerson's ow n criminal case," 771 S.W.2d at 67, but the record nowhereshows what the bargain was. It is therefore impossibl e to say what the effect of cross-examination on the subject of the plea bargain would have been, so this argument cannot succeed.-6- 3. Change of Theory at Penalty Phase

The p rosecution's theory during the guilt phase was that Willie Luckett kille d Marilyn Wi lkins, and that Kilgore was guilty of aiding and abetting Luckett. Afte r Dicke rson testified that Kilgore admitted doing the killing himself, the prosecutio n changed its theory, and during the penalty phase argued that Kilgore was the killer. Kil gore argues that this change in theories violated his constitutional rights. Th e District Court rejected his argument. The Court attributed the surprising nature of the change t o the unusual "confluence of events" during Kilgore's trial, rather than t o prosecutoria lmisconduct. We see no error in the District Court's analysis. Th e prosecution, upon learning for the first time (from Dickers on) that Kilgore had been the killer (or had admitted the killing) could hardly be expected not to use the information. At this poi nt, Kilgore had already been convicted of capital murder. The change i n theory might, in fact, have helped Kilgore, by giving the jury some reason to suspect the soundness of the prosecution's evidence.

4. Tape Recordings of Lessie Vance Kilgore asserts that the prosecution committed another Bagley violat ion in failing to disclose certain tape-recorded statements of L essie Vance, which the defense would have been able to use in impeaching Vance's credibility. Vance testified at trial that he, Kilgore, and Luckett pawned Wilkins's jewelrythe day after she was killed. The taperecordings apparently were of an early conversation between Vance and the police, in which Vance provided an alternative explanation of why he had Wilkins's jewelry.
The District Court held that there was no Ba gley prejudice in the non-disclosure of the tapes, because Vance testified repeatedly at trial that he had lied during that first meeting with the police. The defense knew about the statements themselves, an d would have been in no better position to impeach Vance if it had had the tapes. W e concur in the District Court's conclusion.-7- B. Jury Instruction Kilgore also challenges one of the jury instructions given in his case as failing to require the jury to find that he had deliber ated in order to convict him of first-degree
mur der. It is unclear whether Kilgore intends us to read this argument as if th e inst ruction itself worked a constitutional violation, or as an example of ineffectiv e assistance of counsel. It wa s argued to the District Court as an ineffective-assistanceof-appellate-counsel claim, and we too will treat it as such.
This cla im was presented to the District Court for the first time in a Rule 59(e) moti on. Because Kilgore showed no good reason to excuse his failure to raise th e claim in his original habeas petition, the Distr ict Court correctly dismissed the claim as untimely. It went on, however, to reject the argument on its merits as well.

The re are several problems with Kilgore's assertion that his appellate counse l
was ineffective for failing to argue this purported instructional error. First, the cases upon which Kilgore principally relies to reveal the err or, and which he argues show the ineffectiveness o f his appellate lawyer, were decided after Kilgore's direct appeal had already been affirmed by the Missouri Supreme Court. See State v. Ervi n , 835 S.W.2d 905 (Mo. 1992) (en banc), cert. denied , 507 U.S. 954 (1993); State v. O'Brien , 85 7 S.W.2d 212 (Mo. 1993) (en banc); State v. Fergu son , 887 S.W.2d 585 (Mo. 1994) (en ban c). Second, while the Missouri state courts have refined their jury instructions so th atthey define more carefully Missouri's definition of its own "deliberation "
re quirement, there is no due-process violation in the instruction as it was given t o Kilgore's jury. The instruction required the jury to find that Kilgore acted with coo l reflection, which is the precise definition of deliberation under st ate law. We affirm the District Court on this point as well.-8- C. Aggravating-Circumstance Instruction The jury found four s tatutory aggravating circumstances, plus two others based
on prior convictions, when it sentenced Kilgore. Kilgore now argues that the fou r st atutory aggravating-circumstance instructions were constitutionally flawed. We do not agree.
Kil gore argues that two of the aggravating circumstances, as submitted to th e jury, are unconstitutionally vague and overbroad. One of the aggravating c ircumstances the jury found was that the killing "involved torture or dep ravity of mind and as a result thereof was outrageously or wantonly vile, horrible, or inhuman ." Kilgore v. State , 771 S.W.2d at 68. We have rejected the argument that this instruction is vague. In Smith
v. Ar montrout , 888 F.2d 530, 538 (8th Cir. 1989), we held that a finding of tortur e could sh ow a properly limited construction of the "vile, horrible, or inhuman " description, such that jurors could reasonably designate some murders as worse than others for purposes of

imposing the death penalty. (The Missouri Supreme Court had adopted this limiting construction before the trial in this case.) The instruction wa s supported by substantial evidence, since there is e vidence that Wilkins was kidnapped, dr iven around face-down in a car, told she was going to be killed, and had wound s consistent with attempting to fight off her attacker. These facts support a finding o f both physical and psychological tort ure, and the instruction as applied in this case was neither vague nor overbroad. The second aggravating circumstanc e Kilgore challenges for overbreadth is that the killing was committed "for the purpose of avoiding, interfering with, or preventing a lawful arrest." Kilgo re v. State , 771 S.W.2d at 68. The District Court held that this ag gravating circumstance provided the jury with a means rationally to distinguis h murderers wh o should receive the death penalty from those who should not. Accord ,-9-

Math enia v. Delo , 975 F.2d 444, 449-50 (8th Cir. 1992), cert. denied , 507 U.S. 99 5 (1993). We agree. Kilg ore also argues that two of the aggravating circumstances submitted to the jury were duplicative. The jury found both that Kilgore committed the killing for the pur pose of receiving money or some other thing of monetary value, and that Kilgor e committed

the crime during the perpetration of a robbery and kidnapping. As th e Mi ssouri Supreme Court has noted, the two circumstances are related, but distinct , because they concern di fferent facets of criminal activity. State v. Jones , 749 S.W.2d 356, 36 5 (Mo.) (en banc), cert. denied , 488 U.S. 871 (1988). Even if that distinction were insufficient, and only one of the aggravating circumstances were allowed to stand, the erro r would still be harmless. Four aggravating circumstances would remain. By th e same logic, even if Kilgore were to prevail in all his arguments, he would onl y eliminate three, or possibly four, of the six aggravat ing circumstances cited by the jury. In Missouri, only one aggravating circumstance is required to support a death sentence. Schlup v. State , 758 S.W.2d 715, 716 (Mo. 1988) (en banc). Missouri is a "non

weighing " state. The District Court correctly rejected Kilgore's aggravating

circumstance claims. D. Mitigating-Circumstance Instruction Kilgore argues that the mitigating-circumstance instruction given his jury wa s phra sed so as to limit impermissibly the jury's discretion to find that there wer e mitigating circumstances which outweighed the aggravating circumstance s of the crime. The instruc tion, he argues, violates Mills v. Maryland , 486 U.S. 367 (1988), an d McKoy v. No rth Carolina , 494 U.S. 433 (1990). Kilgore's argument is foreclosed by
our decision in Reese v. Delo , 94 F.3d 1177, 1186 (8th Cir. 1996), cert. denied , 117 S. Ct. 242 1 (1997). In that case, the petitioner made a virtually identical argument to the one Kilgore now advances, about the same wording in Missouri's mitigating

circumstance instruction. We reject Kilgore's argument for the same reasons.-10- E. Voir Dire Kilgore alleges that the voir dire procedures employed in the s election of his jury
we re unconstitutional. Kilgore, who is African-American, was convicted by an all

white jury, and asserts that potential African-American jurors were struck from th e venire in viol ation of Batson v. Kentucky , 476 U.S. 79 (1986). The prosecution used five of its nine peremptory strikes on African-Americans. The Missouri Suprem e Court, and the District Court in turn, held that the prosecution struck those African

American veniremembers for race-neutral reasons. We agree.

Four of the

five African-American prospective jurors who were struck had had significa nt

contact with the criminal-justice system. Kilgore argues that there wer e white jurors who had had similar contact, but were not struck. The two groups are not identica l, however; the four African-American potential jurors also gave what th e pr osecution considered "weak" or equivocal answers when asked about thei r wil lingness to impose the death penalty. The white potential jurors who had ha d contact with the criminal justice system were not similarly "death-scrupled." The fifth African-American juror who was struck said she had seen the vi ctim's son on television and in public. The son was scheduled to testify for the state. The prosecution struck her out of

concern that her prior experience of one of the state's witnesses migh t unfavorably affect her perception of that witness's testimony. The District Court held that since the prosecution offered accepta ble race-neutral
reasons for exercising its peremptory strikes of the five African-American potentia l jurors, there is no Batson violation. Again, we agree with that Court.
F. Trial Court Errors Kilgore claims the trial court committed several errors which violated hi s constitutional rights.-11- 1. Coerced Confession Kilgore a sserts that the trial court erred in admitting into evidence severa l statemen ts he made to the police. He alleges he was beaten and threatened by police offi cers, and that the statements he made were therefore physically and mentall y coerced

. The District Court was unconvinced by this allegation, however, becaus e Kilgore never produced statements from any of the witnesses he clai ms can corroborate his assertions, including his mother and aunt, b oth of whom testified for him during the penalty phase of his trial without mentioning beatin gs or the noticeable injuries Kilgore asserts he received during the beatin gs. Additionally, four police officers testified that Kilgore was no t beaten or threatened, but was in fact notified of his Miranda rights at the time of his arrest and at several times afterward. We see no error in the Distric t Court's conclusion.
2. Lack of Jurisdiction Kilgore argues that the information in lieu of indictment did not allege fact s sufficient to base jurisdiction in th e City of St. Louis. The information alleged that the killing took p lace in St. Louis County, outside the jurisdiction of the City. Before the District Court, Kilgo re alleged that no element of the crime charged took place within the City's jurisdiction. Kilgore was charged with multiple crimes, however: first

degree murder, first-degree robbery, and kidnapping. The information a sserted the City had jurisdiction because Wilkins was abducted in the City. Federal-court review of the suffic iency of an information is limited to whether it was constitutionally deficient ; wheth er it comported with requirements of state law is a question for state courts

. Johnson v. Trickey , 882 F.2d 316, 320 (8th Cir. 1989). The inquiry for our Court , theref ore, is not whether the information communicated the basis of jurisdiction i n compli ance with state law, but rather whether it gave Kilgore adequate notice of th e potential ch arges against him so that he could prepare to contest those charges. Blair-12-

v. Armontrout , 916 F.2d 1310, 1329 (8th Cir. 1990), cert. denied , 502 U .S. 825 (1991). The Distr ict Court held that since the information provided Kilgore with sufficien t notice, it met the requirements of due process. We agree with that determination. 3. Trial Judge's Report The trial judge, in accordance with Mo. Rev. Stat. § 565.035, submitted a report about Kilgore's trial to the Missouri Supreme Court for consideration in it s proportionality review of Kilgore's sentence. Kilgore argues that the statute requiring submission of the report is unconstitutional because it denies convi cted defendants their right to confrontation. This claim has no merit. The trial judge was not a witnes s against Kilgore. In addition, subsection 4 of that statute gives defendan ts, and the state, the right to submit briefs and to present oral argument about the proportionality of the sentence to the Supreme Court. Mo. Rev. Stat. § 565.035.4. It is clear from tha t court's opinion that it considered several arguments advanced by Kilgore in arriving at its decision that the death sentence was proportionate in hi s case. Kilgore v. State , 771 S.W.2d at 68-70. Kilgore's right to confrontation was not violated.
4. Victim's Good Character
The District Cou rt dismissed this claim because petitioner did not specify what evidence of

the victim's good character was introduced. Kilgore includes no mor e information in his brief to this Court. We likewise reject the claim. G. 29.15 Proceedings Kilgore alleges that the Missouri state courts deprived him of his constitutional rights in arbitrari ly applying a procedural-bar rule in Kilgore's 29.15 proceedings. He argues fi rst that the 30-day filing deadline contained in Rule 29.15 is unconstitutional because it is too short. This cannot be the case; states are not required by the-13-

Constitution to provide post-conviction procedures like that of Rul e 29.15, and the time limit is not, at least

in the abstract (which is all petitioner argues), unreasonably short. Kilgore also alleges that

the state courts deprived him of his constitutional right to equal protection by refusing to consider his 2 9.15 motion. The trial judge dismissed Kilgore's 29.15 motion because it was untimely and unverified. Kilgore v. State , 791 S.W.2d at 393-94. Kilgore appealed the dismissal, and the Missouri Supreme Court affirmed. Id. He now argues that other movants under the Rule have been treate d more favorably, and that the strict applic ation of the Rule's requirements to him denied him equal protection. He cites three cases to support tha t contention, but none of those cases concerns a movant similarly situate d to Kilgore. See State v. Ervin , 835 S.W.2d at 927-28; State v. Hamilton , 791 S.W.2d 789, 797-98 (Mo. 1990), cert. denied , 513 U.S. 1085 (1995); Reuscher v. Sta te , 887 S.W.2d 588, 590-91 (Mo. 1994) (en banc), cert. denied , 514 U.S. 1119 (1995). We see no evidence t hat Kilgore received unequal or arbitrary treatment in his 29.15 proceedings.

H. Ineffective Assistance of Counsel Kilgore alleges that his counsel rendered constitutionally ineffective assistance in s everal respects. On none of those occasions did Kilgore's counsel fall below th e standard enunciated in Strickland v. Washington , 466 U.S. 66 8, 694 (1984). We reject this claim as well. 1. Hearsay Kilgore charges that his counsel was ineffective for failin g to object when Renee Dickerson testified that Willie Luckett was remorseful abou t the killing. Kilgore argues that Dickerson's statements were inadmissible hearsay. His counsel did , however, make
a hearsay objection when Dickerson was asked whether Luckett had said anything to express remorse, and the trial court sustained defense counsel's objection.-14-

The prosecution then rephrased the question to ask what Dickerson herself observed. No t only did defense counsel object to questions calling for hearsay, those objections were sustained. We see no error ind icating deficient performance by Kilgore's counsel in this regard. 2. Failure to Request Continuance

The second error Kilgore argues his counsel made was failing to request a continuance when Renee Dickerson w as endorsed as a witness. Kilgore's trial counsel objected to Dickerson's testimony on the basis of surprise and su bjected her to thorough cross-examination. Again, we see no indication that the outcome of the tr ial would have been different had counsel made such a request. Kilgore does not indicate wha t favorable evidence could have been developed if a continuance had been granted.
3. Coerced Statements Kilgore argues that his counsel failed to investigate adequately the "coerce d statem ent," and presumably the coercion itself. The District Court found that counsel did file a mo tion to suppress the statement, which was denied by the trial judge

. Kilgore has not come forward with any evidence of what his lawyer would hav e discovered in a more extensive investigation. As is noted above, Kilgore has offered
no statements by witnesses (other than himself) to the alleged police coercion or t o Kilgore's resulting injuries. Two of those witnesses are his mother and aunt, wh o testified d uring the penalty phase of the trial, but did not mention any coercion o r resulting phy sical injury. We again have no evidence of how the outcome of th e proceed ings might have been different had counsel made different choices

. Accordingly, we agree with the District Court's conclusion that there was no Strickland prejudice.-15- 4. Individual Voir Dire Kilgore argues his counsel should have requested individual voir dire. Th e District Court rejected this claim because there is no indication in the record that group questio ning of potential jurors was insufficient, or that the composition of the jur y would have b een different had jurors been questioned individually. Again, there is no showing of Strickland prejudice, and we affirm.

5. Lesser-Included-Offense Instruction

The trial court instructed Kilgore's jury on two offenses: first-degree (capital ) murder and second-degree murder. Kilgore argues that the failure to instruct the jury
on the ad ditional offense of second-degree felony murder violated his constitutiona l rights under Beck v. Alab ama , 447 U.S. 625 (1980). As an initial matter, it is difficult to disce rn from Kilgore's brief whether the claim he asserts is a free-standing Bec k claim , or a claim that his lawyer's failure to attempt to cure the alleged Beck violation at tri al constitutes ineffective assistance of counsel. Kilgore includes this claim in the section of his brief conc erning ineffective assistance, but does not address his lawyer's performance as such. In stead, he argues that the failure to instruct the jury on seconddegree felony murder v iolated his rights to due process, equal protection, and freedom from cruel and unusual punishment. Since the issue was presented to the District Court as an ineffective-assistance claim, and the Distr ict Court decided it as such, we too will treat it as an ineffective-assistance claim. Kilgore argues that his trial counsel should have requested a second-degre e felony-m urder instruction. The District Court held that Kilgore could not sho w prejudi ce sufficient to satisfy Strickland . The District Court reasoned, on the basis of Missouri st ate courts' treatment of the issue, that since the jury had the option o f
con victing Kilgore of first-degree murder, second-degree murder, or nothing, an d convic ted him of first-degree murder, there was no harm in failing to give the second--16-

degree felony murder instruction. The jury had the option of convicting Kilgore of a less er offense, and did not. They must have found, the reasoning continues, evidence of the deliberation which separates first-degree from seco nd-degree murder. Therefore, the jury never would have convicted him of any lesser offense, and the absence of the instru ction was harmless. See State v. Petary , 781 S.W.2d 534, 544 (Mo. 1989) (e n banc), vacated on other grounds , 494 U.S. 1075, af firmed on remand , 790 S.W.2d 243, cert. denied , 498 U.S. 973 (1990). This analysis might not hold true if the lesser-included- offense instruction did not make sense; a crime which carried a drastically lesser sentence would leave the jur y with something dangerously close to the all-or-nothing choice prohibited by Beck . In this case, however, the jur

y was given a reasonable second option, and one which was supported b y the facts. Kilgore argues that when a defendant is tried for an offens e which carries the death penalty, the trial court must submit to the jury all lesser included offenses supported

by the record. This is not the law. In Schad v. Arizona , 501 U.S. 624, 645-48 (1991), the Supreme Court held that Beck did not require a trial court to instruct on all possible lesser-included offens es. See also Reeves v. Hopkins , 102 F.3d 977 (8th Cir. 1996); Six v. Delo , 94 F.3d 469, 478 (8th Cir. 1996), cert. denied , 117 S. Ct. 2418 (1997). In Schad , the trial court instructed the jury on capital murder and on second-degree murder. Schad argued that Beck requi red that a robbery instruction also be given. The Supreme Court rejected the argument, holding that "[t]his central concern of Beck simply is not implicated

. . . for petitioner's jury was not presented with an allor-nothing choice." Id. at 647. We are satisfied, in this case, that the jury had a real choice, and that Kilgore can not show Strickland prejudice. We agree with the District Court's analysis. 6. Other Arguments Kilgore 's brief lists several other reasons he believes his counsel rendere d constitutionally deficient performance. Appellant's Br. 35. He has presented-17-

arguments, beyond the mere listing of the all eged error, to this Court about only a few, which are addressed above. The District Court addressed and reject ed each of his other arguments, an d Kilgore has offered us no reason why the District Court erred in it s decisio n. In each instance, the District Court held that at least one of the components of the Strickland

standard w as not met. We see nothing in the record before us to cast doubt upon the D istrict Court's conclusions, and for the sake of brevity will not repeat that conclusion over and over again here. I. Proportionality Review Kilgore asserts that the Missouri Supreme Court's review of the proportionality of his sentence violated his right to due process. The Missouri legislature mandate s such a review of all cases where the death sentence is imp osed in Missouri courts. Mo. Rev. Stat . § 565.035. While the review is not mandated by the federal Constitution , once in place it m

ust be conducted consistently with the Due Process Clause. Kilgore
ar gues that the Missouri Supreme Court conducts arbitrary review of prior cases an d
se ntences, intent on "automatically affirm[ing] death sentences" rather than o n meaning ful comparison, and thereby fails to meet the requirements of the Missour i statute. Appellant's Br. 48. He also argues that the state courts do not maintain a n adequat e database of cases since May 1977 where death sentences or life sentence s without parole were imposed, and that the inadequacy of the database furthe r undermines meaningful proportionality review. We have considered and rejected this argument before. The State Suprem e Court in t his case did conduct a comparison of Kilgore's case with similar cases, an d concluded that, against the backdrop of other Missour i cases, the death penalty was not disproport ionate to the crime of which Kilgore was convicted. State v. Kilgore , 77 1 S.W.2d at 69-70; id. at 70 (Blackmar, J., concurring). W e will not, in such a case, look behind the Missouri Supreme Court's conclusion or consider whether that cour t misinterpreted the Missouri statute requiring propor tionality review. Bannister v. Delo ,-18-

100 F.3 d 610, 627 (8th Cir. 1996), cert. denied , 117 S. Ct. 2526 (1997). We see n o constitutional error.

Affirmed. A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.