1 The Honorable Dean Whipple, Chief J udge, United States District Court for the Western District of Missouri. 

## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

________________ No. 03-3721

________________ Russell Bucklew, Appellant,

v. Al Luebbers, Appellee. *
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* Appeal from the United States District Court for the Western District of Missouri.
[PUBLISHED]

________________ Submitted: May 12, 2005 Filed: January 30, 2006

________________ Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges.

________________ HANSEN, Circuit Judge.

Russell Bucklew was convicted in Missouri state court of capital murder and sentenced to death. He appeals the district court's 1 denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We affirm.-2- I.

We recite the facts of the crime as found by the Supreme Court of Missouri. See State v. Bucklew , 973 S.W.2d 83, 86-87 (Mo. 1998) (en banc) (affirming Bucklew's convictions and sentences on direct appeal), cert. denied , 525 U.S. 1082 (1999); Bucklew v. State , 38 S.W.3d 395, 397 (Mo.) (en banc) (affirming the denial of postconviction relief), cert. denied , 534 U.S. 964 (2001). Bucklew began living with his girlfriend, Stephanie Ray, and her children in the spring of 1995. In early 1996, they moved into a trailer together . In February 1996, Ray ended their relationship, and Bucklew moved into his parents' home. On March 6, 1996, Bucklew returned to the trailer that he and Ray had shared, where Ray was still living, and found Michael Sanders there. Upon c oncluding that Ray and Sanders were romantically involved, Bucklew put a knife to Sanders' throat and threatened to kill him. Later that evening, Bucklew found Ray and threatened her with a knife, cut her jaw, and punched her in the face. Buckle w called Ray at work the next day and vowed he would kill her, Sa nders, and her children if hefound them together again. Ray felt it was unsafe to return to her hom e, so she and her children moved into Sanders' trailer.

During the night of March 20, 1996, Bu cklew stole his nephew's car and left with two pistols, two sets of handcuffs, and a roll of duct tape . The next day, he surreptitiously followed Ray as she left wo rk, ran errands, and returned to Sanders' trailer. Bucklew waited some time in the car before knocking on the door. Sanders saw Bucklew through a window. Sanders t ook the children to a back bedroom and retrieved a shotgun. Bucklew entered the tra iler with a pistol in each hand. When he saw Sanders emerge with a shotgun, Buck lew yelled, "Get dow n!" and shot Sanders twice. One bullet pierced Sanders' lung. Bucklew then fired at Sanders' six-year-old son, but missed. Ray stepped in front of Sanders, who had slumped against a wall and lay bleeding to death. Bucklew ordered Ray to drop to her knees, and when she hesitated, he struck her in the face with a pistol. He then handc uffed her, dragged her2 Medical records demonstrated that Bucklew suffers from the condition of cavernous hemangioma, which is inoperable and requires extensive pain medication. Bucklew's cavernous hemangioma "is a large distorted collection of blood vessels" which "occupies a better part of the right side of his face and portion of his head." (Trial Tr. at 1059-60.)

-3- to the car, and drove away with her. Bu cklew demanded sex from her in the car, and when she did not perform every act demanded, he raped her in the back seat. The highway patrol finally stopped the car and apprehended Bucklew, but a trooper and Bucklew were both wounded in the proce ss. Sanders died of his injuries.

The State charged Bucklew with first- degree murder, kidnapping, first-degree burglary, forcible rape, and armed criminal action, and sought the death penalty. At trial, Bucklew, represented by a team of two experienced defense attorneys, proceeded on a theory of lack of deliberation, i. e., that he was des pondent over his broken relationship with Ray and his medical condition, 2and that he acted out of a sudden passion when Sanders came out of the back room with a shotgun. The jury convicted Bucklew on all counts.

At the penalty phase of trial, the State presented evidence of Bucklew's dangerousness–specifically, his extensive cr iminal history incl uding prior convictions for trespass, assault, burglary, steali ng, driving while intoxicated, possession of marijuana, grand theft, assaulting past gi rlfriends, and escape from jail prior to trial, during which he attacked Ray's mother and her mother's fiancé w ith a hammer. The State also presented evidence of the impactof the murder upon the victim's family, including his young sons, as described by Sande rs' mother. On cross-examination of the State's witnesses, defense counsel e licited from Ray that Bucklew had been good to her and her children in the past, and Bu cklew's ex-wife said that he was a great father to their son.-4- Bucklew's counsel presented the te stimony of Dr. Bruce Harry, M.D., a psychiatrist, who had examined Bucklew prior to trial. Dr. Harry described Bucklew's physical impairment and his mental state, which included a diagnosis of antisocial personality disorder. Dr. Harry noted th at the combined effects of Bucklew's extensive pain medication, the stressful s ituation of his break-up with Ray, and the resulting symptoms of depression all contribut ed to his lack of impulse control. He rendered the opinion that while Bucklew was aware of and responsible for his actions, he was under extreme mental or emotional di sturbance at the time of the crime, which affected his actions but did not rob him of his free will or his understanding of the nature and consequences of his actions.

Dr. Harry also summarized the pretrial findings made by Michael Gelbort, Ph.D., a neuropsychologist. Dr. Harry tes tified extensively from Dr. Gelbort's findings, noting specifically Dr. Gelbort's finding that Bucklew's impulsiveness and inability to make judgments or solve prob lems in emotionally charged situations resulted from "brain deficits." (Trial Tr. at 1078.) He also not ed that the objective testing administered by Dr. Gelbort pl aced Bucklew in the low normal range of intelligence.

Dr. Harry admitted on cross-examination that in spite of Bucklew's mental defect of depression, he had the ability to conform his conduct to the requirements of the law if he wanted to. He also stat ed on cross-examination that an antisocial personality disorder is a patte rn of behavior that has b een referred to as psychopathic or sociopathic. It includes characteristics of a pervasive pattern of violating the rights of others, and it is often accompanied by ly ing, manipulation, and malingering. Dr. Harry admitted that persons with this di sorder often show little remorse for the consequences of their aggressive acts and blame the victims for being foolish or helpless.-5- To rebut the State's evidence of his da ngerousness, defense counsel presented the testimony of the county jailer from the ja il where Bucklew was held prior to trial but after his escape. The jailer indicated that Bucklew had been a calm and respectful prisoner who was not aggressive toward othe r prisoners. He said that Bucklew had not started any fights with sta ff and had become better adjusted to prison life. Defense counsel also presented the testimony of Bu cklew's mother and father about their family life together and their love for Bu cklew. In closing argument of the penalty phase, Bucklew's attorney argued that Buck lew had not assaulted other prisoners, had not been a predator in prison, and empha sized the jailer's testimony as evidence that Bucklew had adjusted well to prison life. De fense counsel assured the jury that there would be no escape from a maximum security prison.

The jury recommended a death sent ence after finding two aggravating circumstances: (1) that Bucklew committed the crime of kidnapping during the murder, and (2) that he committed the crime of burglary during the murder. The trial court sentenced Bucklew to d eath for the murder; concurrent 30-year sentences for the kidnapping, burglary, and rapecounts; and a 5-year sentence for the count of armed criminal action. The Supreme Court of Missouri affirmed the convictions and sentences. Bucklew , 973 S.W.2d at 98.

Bucklew sought postconviction relief (P CR) under Missouri Rule of Criminal Procedure 29.15, raising severa l claims of ineffective assistance of counsel. In particular, Bucklew asserted that his trial c ounsel had been ineffective in failing to call Dr. Gelbort to testify, failing to call a prison security expert to rebut the State's evidence of his dangerousness, and faili ng to call five character witnesses. Additionally, among other things, Bucklew argued that his counsel had opened the door to evidence of bad acts and failed to object to improper closing argument. The motion court denied relief, concluding that Bucklew's attorneys had not provided ineffective assistance. The Supreme Court of Missouri affirmed. Bucklew , 38 S.W.3d at 401.-6- Bucklew then filed a petition for a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254, which the districtcourt denied. We granted a certificate of appealability on two questions: (1) Wh ether Bucklew's trial counsel rendered ineffective assistance during the guilt phase of the trial by failing to investigate and present evidence relevant to his mental st ate at the time of th e crime and by opening the door to evidence of prior bad acts; and (2) Whether Bucklew's trial counsel rendered ineffective assistance during the pe nalty phase by failing to investigate and present substantial mitigating evidence, failing to investigate and present evidence to rebut the State's aggravating factors, and failing to object to improper argument by the prosecutor.

II.

When considering the district court' s ruling on a petition for a writ of habeas corpus, "we review the district court's findings of fact for clear error and its conclusions of law de novo." Lyons v. Luebbers , 403 F.3d 585, 592 (8th Cir. 2005) (internal marks omitted). Wh en a claim has been adjudicat ed on the merits in state court, habeas relief is warranted only if the state court proceeding resulted in (1) "a decision that was contrary to, or involve d an unreasonable application of, clearly established Federal law, as de termined by the Supreme Court," or (2) "a decision that was based on an unreasonable determination of the facts in li ght of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2); Rompilla v. Beard , 125 S. Ct. 2456, 2462 (2005).

The Supreme Court has explained the i ndependent meanings of the "contrary to" and "unreasonable appli cation" clauses. See id. ; Wiggins v. Smith , 539 U.S. 510, 520 (2003); Williams v. Taylor , 529 U.S. 362, 411-13 (2000). A state court decision is "contrary to" the Supreme Court's clearly established precedent if the state court either "arrives at a conclusion opposite th at reached by [the Supreme] Court on a question of law" or "decides a case differen tly than th[e] [Supreme] Court has on a set-7- of materially indistinguishable facts." Williams , 529 U.S. at 412-13. A state court decision is an "unreasonable application" of Supreme Court precedent if it "identifies the correct governing legal principle from th[e] [Supreme] Court's decisions but unreasonably applies that principle to th e facts of the prisoner's case." Id. at 413; see Rompilla , 125 S. Ct. at 2462; Liggins v. Burger , 422 F.3d 642, 646-47 (8th Cir. 2005). "A federal court may not issue the writ simp ly because it 'concludes in its independent judgment that the relevant state-court deci sion applied clearly es tablished federal law erroneously or incorrectly. Rather, thatapplication must also be unreasonable.'" Lyons , 403 F.3d at 592 (quoting Williams , 529 U.S. at 411).

This appeal involves claims of ineffec tive assistance of counsel. To prevail on an ineffective assistance claim, Suprem e Court precedent requires a petitioner to demonstrate that counsel's performance wa s deficient and that the petitioner was prejudiced by the deficient performance to such an extent that there is a reasonable probability that the outcome of the trial w ould have been different absent counsel's error. See Strickland v. Washington , 466 U.S. 668, 687, 694 (1984). Judicial scrutiny of counsel's performance is highly deferential, indulging a strong presumption that counsel's conduct falls within the wide range of reasonable professional judgment. Id. at 689. Prejudice is shown by demonstrating that counsel 's errors were so serious that they rendered the proceedings funda mentally unfair or the result unreliable. Lockhart v. Fretwell , 506 U.S. 364, 372 (1993). Under Strickland , counsel's performance is "measured against an objec tive standard of reasonableness," and "hindsight is discounted by pegging adequacy to counsel's pers pective at the time investigative decisions ar e made, and by giving a heavy measure of deference to counsel's judgments." Rompilla , 125 S. Ct. at 2462 (interna l quotations and citations omitted). Because the Supreme Court of Missouri correctly identified Stricklandas the controlling authority for ineffective a ssistance of counsel claims, we address3 We find unpersuasive Bucklew's argument th at the district court did not apply the controlling authorities of Wiggins and Williams . Like the state court, the district court correctly identified Stricklandas the controlling Supreme Court precedent. In ruling on Bucklew's Federal Rule of Civil Procedure 59(e) motion to alter or amend its judgment, the district court squarely addressed the Wiggins and Williams cases. The district court concluded that these cases do not amount to supervening precedent but demonstrate specific applications of Stricklandto particular fact situations which are distinguishable from this case. The distri ct court did not err inconcluding that the present case does not involve similar facts of a failure to inve stigate or discover important mitigating evidence as in Wiggins , 539 U.S. at 527-29 (finding counsel failed to uncover the existence of extens ive sexual and psychological abuse as a child), and Williams , 529 U.S. at 395-98 (finding counsel failed to conduct an investigation that would have revealed a nightmarish childhood filled with abuse and a condition of borderline mental retardation) . Thus, the district court applied the correct legal authorities.

-8- whether the state court unreasonably applie d that precedent and whether the state court unreasonably determined the facts in light of the evidence presented. 3

A. Ineffective Assistance Claims in the Guilt Phase 1. Mental State–Dr. Gelbort Bucklew first argues that his trial atto rneys rendered ineffective assistance of counsel during the guilt phase of the trial by failing to call Dr. Gelbort to testify concerning Bucklew's state of mind at th e time of the crime and how his brain dysfunction affected his ability to deliberate. Bucklew's defense at trial was that he did not deliberate prior to killing Sanders butacted out of a sudden passion. At the PCR motion hearing, Dr. Gelbort testified th at his evaluation and testing of Bucklew prior to trial had revealed the presence of "organic brai n dysfunction," which he stated could also be described as "an organic pe rsonality disorder." (PCR Tr. at 68.) Dr. Gelbort testified that "Mr. Bucklew shows up with a pattern of results on testing that demonstrate that when pushed to extrem es when he's dealing with complex information, emotionally laden or charge d information, when he has to process information quickly, then his thinking skills deteriorate rapidly and he shows very-9- clearly his impairments." (Id. at 71.) More specifically, Dr. Gelbort testified that in the emotionally charged situation that unfol ded in Sanders' trailer before the murder, he could "not see where [Bucklew] would have been able to coo lly deliberate at that point in time." (Id. at 80.)

The PCR motion court concluded th at Dr. Gelbort's testimony was not persuasive on the issue of Bu cklew's lack of ability to de liberate because of the "truly overwhelming" evidence of deliberation in th is case–that is, Buck lew's prior threat to kill Sanders; arming himself with two guns, two knives, extra ammunition, and two sets of handcuffs; traveling to lie in wait for Ray; and following her to the victim's home, where he then killed Sanders and kidnapped and raped Ray. (Legal File at 96; Bucklew v. Missouri , No. 98CC79828, at 5 (Circuit Court of Boone County, Mo., Dec. 29, 1999).) The PCR motion court found that "[a]n opin ion by a psychologist flying in the face of such evid ence pales by comparison." (Id. ) Because Dr. Gelbort's testimony would not have madea difference to the jury , the PCR motion court found no prejudice under Strickland

. On appeal, the Supreme Court of Misso uri affirmed, finding that, while Dr. Gelbort would have testified that Buckle w was not able to form the intent to deliberate, he "would also have confirmed that Bucklew has characteristics associated with antisocial personality disorder." Bucklew , 38 S.W.3d at 398. Additionally, Bucklew's "[t]rial counsel was concerned about introducing this point during the guilt phase." Id.

Bucklew asserts that the state supreme court unreasonably determined the facts in light of the record because his trial counsel did not articulate a strategic reason for not calling Dr. Gelbort at the guilt phase a nd never even asked Dr . Gelbort to render an opinion as to whether Bucklew was able to deliberate at the time of the shooting. Bucklew's attorney testified that he could not recall whether he had asked Dr. Gelbort to render a theory about Bucklew's ability to deliberate, and that, while he had-10- engaged in "a thought process" about whether Dr. Gelbort should testify, he could not recall his exact thought process. (PCR Tr. at 173-75.) The record, however, includes testimony from Dr. Gelbort that counsel had i ndicated to him a concern that he should not testify at trial because not all of his fi ndings were beneficial to the defense. Dr. Gelbort admitted at the PCR hearing that his discussion of Bucklew's behavior as consistent with and characteristic of an antisocial personality di sorder would not have been helpful to the defense. The record also shows thatcounsel had considered both doctor's reports prior to trial, and that, despite Dr. Gelbort' s assertion that Bucklew has brain deficiencies and functi ons in certain circumstances at a level of one who has suffered brain injuries, Dr. Harry had concluded that Bucklew was capable of knowing and appreciating the nature, quality, and wrongfulne ss of his conduct at the time of the crimes. Our review of the recordleads us to conclude that the state court did not unreasonably determine the facts in light of the record.

Even assuming counsel performed deficiently by not calling Dr. Gelbort to testify at the guilt phase of the trial, we agree with the distri ct court that the state court did not unreasonably apply Strickland . The state supreme court determined that there was no prejudice because Dr. Gelbort's tes timony would not have produced a different outcome at trial. While Dr. Gelbort could have testified to his opinion that Bucklew was not capable of cool deliberation at the moment he pulled the trigger, Dr. Gelbort's testimony necessarily would have included a great deal of negative information about Bucklew's mental state. More importantly, a deteriorating or impaired thought process immediately preceding the shooting, as Dr. Gelbort would have testified to, could not negate the extensive, indeed overwhelmi ng, objective evidence of pre-crime planning and deliberate planned conduct in which Bucklew engaged. See Lyons , 403 F.3d at 596 ("Substantial evidence existed to undermine the likelihood of success in using a diminished capacity defense, and trial counsel did not act in an objectively unreasonable manner in deciding not to use that defense.")-11- 2. Opening the Door to Prior Bad Acts Evidence Bucklew asserts that his counsel was ineffective for opening the door to evidence of prior bad acts, namely his assault against Ray on March 6, 1996. The trial court initially had granted a motion in limine to prevent the prosecutor from referencing this assault. Bucklew's counsel then refere nced the incident in opening statements to demonstrate that Bucklew wa s distraught after discovering that Ray was romantically involved with Sanders. This reference opened the door for the prosecutor to admit all of the attendant circumstances, including that Bucklew had threatened and assaulted Ray that day.

The Supreme Court of Missouri concluded that counsel's performance was not deficient because, regardless of the trial court's ruling in limin e, the evidence was admissible under state law as evidence of motive, absence of mistake or accident, and common scheme or plan. Bucklew , 38 F.3d at 401. In the habeas context, "[r]ules of evidence and trial procedure ar e usually matters of state law. A federal issue is raised only where trial errors infringe on a specific constitutional protection or are so prejudicial as to amount to a denial of due process." Adail v. Wyrick , 711 F.2d 99, 102 (8th Cir. 1983). Bucklew does not argue that the evidence was in fact inadmissible on a specific constitutional ground, and when viewed in light of all the evidence of this crime, the evidence of the March 6 assault was not so prejudicial as to amount to a denial of due process. Th e state court determination– that counsel's act of opening the door to evidence otherwis e admissible on state law grounds is not ineffective assistance under Strickland–is not an unreasonable application of federal law.

B. Ineffective Assistance Cl aims in the Penalty Phase 1. Mitigating Evidence–Dr. Gelbort Bucklew argues that his trial attorney s rendered ineffective assistance during the penalty phase by failing to call Dr. Gelbort to testif y concerning his diagnosis of organic brain dysfunction and its effect on hi s behavior. The state courts concluded-12- that Dr. Gelbort's testimony would have beencumulative in the penalty phase and that Bucklew did not prove a reasonable probability that this testimony would have produced a sentence other than death. The Supreme Court of Missouri noted that "Dr. Gelbort's findings were summarized–alm ost verbatim–by Dr. Bruce Harry, M.D.," who testified during the pena lty phase concerning Bucklew' s mental condition as well as his physical condition and the effects of his medication. Bucklew , 38 S.W.3d at 398.

Bucklew argues that his attorneys were de ficient because his lead counsel at the penalty phase never spoke withDr. Gelbort. It is not deficient performance for a team of attorneys to divide among them the work load of a case in a rational and efficient manner. We emphasize that this case does notinvolve an incomplete investigation by Bucklew's team of two attorneys. Cf. Wiggins , 539 U.S. at 524 (holding counsel improperly abandoned their i nvestigation into the defendant's background after acquiring "only rudimentary knowledge of hi s history from a narrow set of sources"). Prior to trial, his attorneys thoroughly investigated his background by talking with Bucklew and his family and consulting me dical and legal records. They also thoroughly investigated his state of mind atthe time of the offense, obtaining the opinions of both Dr. Gelbort, a neuropsychologist, and Dr. Harry, a psychiatrist. Although one of Bucklew's attorneys did not speak with Dr. Gelbort, the other member of the defense team spoke with him and forwarded his evaluation to Dr. Harry, whom the defense team eventually decided to call as a witness at the penalty phase. Counsel indicated at the PCR heari ng that they chose Dr. Harry to testify because, as both a medical doctor and a psychi atrist, he could give the most complete picture of Bucklew's mental and physical condition. It was reasonable to choose an expert whom the attorneys de termined could give the most comprehensive picture of Bucklew's condition and to avoid calling a second expert who would have the potential of overemphasizing the undesirable behavioral characteristics of Bucklew's personality that Dr. Gelbort would have b een asked to confirm on cross-examination.-13- Bucklew asserts that Dr. Gelbort's te stimony would not have been cumulative because he could have given a more complete picture of Bucklew's condition, but the state court's contrary decision is suppor ted by the record. Dr. Harry's testimony summarized Dr. Gelbort's evaluation, in part, as follows:

He [Dr. Gelbort] talked about Mr . Bucklew being alert, oriented to person, place, time and situation. Had a normal range of mood and was mildly sad under the circumstances. He had some problems with mental control. He specifically mentione d that while [Mr. Bucklew] was able to do more straight-forward tasks, his mental control, that is the ability to control his mental activity broke down as the complexity of the tasks increased. In addition, he noted that his information processing speed, that is the ability in the speed with which he can take in new information coming at him from a variety of sources and put it together and make some sense out of it also declined significantly with more complex tasks. He showed . . . a tendency to act before thinking, act suddenly and without thought or warning. A nd trouble managing multiple cognitive tasks at one time. . . . Also, he had an IQ Test . . . that is in the low normal range. . . . To the extent we know, it's brain deficits, it's not lack of desire or not wanting to. It's a person can't do it. . . . And [Dr. Gelbort] noted that when confronted with rapidly evolving complex types of activities, cognitive activity he's expected to respond at essentially chance levels.
(Trial Tr. at 1076-79.)

Dr. Harry's testimony substantively encompassed the totality of Dr. Gelbort's findings–mainly, that Bucklew's neurological brain deficits affected his behavior, severely impairing his reasoning and pr oblem-solving abilities in rapidly evolving situations. The fact that Dr. Harry used th e term "brain deficits" rather than "brain dysfunction" does not render counsel's performance defici ent. We cannot conclude that counsel's performance was outside "the wide range of reasonable professional assistance" guaranteed by the Si xth Amendment. Strickland , 466 U.S. at 689; see also id. at 690 (noting that "strategic choices ma de after thorough investigation of law and-14- facts relevant to plausible options are virtually unchallengeable"). Nor can we say that the state court unreasonably determined thatDr. Gelbort's testimony would have been cumulative at the penalty phase.

2. Mitigating Evidence–A dditional Character Evidence Bucklew asserts that his trial attorney s were ineffective in not calling five friends and family members to testify as ch aracter witnesses on hi s behalf. Bucklew's brother and sister-in law a nd a friend, Mike Walton, would have testified about Bucklew's prior good treatment of Ray and he r children, his deteriorating health, and their opinion that he was not violent. J ohn Rhode would have te stified that Bucklew was a good friend and kind person, and another friend, Kimberly Nichols, also would have testified that Bucklew had been kind to her. The Supreme Court of Missouri concluded that Bucklew was not prejudiced by counsel's failure to call these witnesses because their testimony would have beencumulative and would have had little beneficial impact after the witnesses had been confrontedin cross-examination with Bucklew's numerous undisputed violent and dishonest prior acts. See Bucklew , 38 S.W.3d at 400-01.

Trial counsel did not fail to investigate or present mitigating character evidence; they elicited testimony from Bucklew's ex-w ife that he was a good father, and his parents testified of their love for him. Ray herself testified that Bucklew had been good to her and her children in the past. Dr. Harry testified about Bucklew's deteriorating health. The prosecutor undisputably had a wealth of information available for cross-examination to demonstrate Bucklew' s violent and deceptive past in contradiction to the testimony of the fi ve character witness Bucklew now identifies. Thus, the state court's conclusion thatthese witnesses would have provided cumulative evidence that may even have b een harmful and would not have affected the outcome was not an unreasonable application of federal law.-15- 3. Rebutting Future Dangerousness Bucklew argues that his attorneys were in effective in failing to investigate and present expert testimony to rebut the Stat e's evidence of future dangerousness and to testify about prison security issues. Atthe PCR hearing, Bucklew presented the testimony of a private prison security expert , James Aiken, who c ould have testified at the penalty phase that Bu cklew would not pose a serious risk of escape from prison and that he could be safely and effectively housed in a maximum security setting. Bucklew's attorneys testified that they did not consider consulting such an expert but believed that a jury would have a comm on sense understanding of the difference in security levels between a county jail setting from which Bucklew escaped prior to trial and a maximum security prison. They also articulated concern about information that would be admitted during the cross-examina tion of such an expert. The Supreme Court of Missouri concluded that Bucklew did not clearly show that the failure to call a prison security expert was not a reasonable trial strategy, and that in any event, such testimony would have been cumulative. See Bucklew , 38 S.W.2d at 398.

The failure to investigate or retain a private security expert in this case is supported by reasonable professional judgment. See Strickland , 466 U.S. at 690-91 (stating that "strategic choices made af ter less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation"). By pres enting the testimony of the county jailer, Bucklew's counsel was able to limit the te stimony to Bucklew's conduct while in that jailer's presence and thereby avoid an ex amination of his complete record of incarceration. Bucklew's counsel expresse d concern that a prison security expert would have been susceptible to cross- examination concerning the frequency of assaults and killings in pris on in general, as well as th e prior disciplinary infractions and negative comments in Bucklew's record of past incarcerations. Additionally, the State did not present a prison security expertat the penalty phase, and thus this case is unlike Williams , where trial counsel failed to disc over that the state's own experts-16- would have testified that W illiams would not pose a future danger to society if kept in a structured environment. 529 U.S. at 370-71.

Even if counsel's performance was defi cient for not investigating such an expert, no prejudice resulted. There is no reasonable probability that the outcome would have been different had such an e xpert testified because any possible benefit from such expert testimony would pale in comparison to Bucklew's actual behavior both prior to and after his arrest. The mixed impact it could have ha d in this particular case as articulated by Bucklew's counsel s upports the conclusion that counsel was not ineffective. The state court reasonably applied federal law in denying this claim.

4. Closing Argument Bucklew asserts that his attorneys were ineffective in failing to object to the prosecutor's victim impact ar gument at the penalty phase. To establish ineffective assistance for failing to object to a pr osecutor's closing argument, Bucklew must demonstrate, as in every ineffective assistance claim, not only that counsel's performance was deficient, but also that th ere is a reasonable probability that, but for counsel's failure to object, the result of the proceeding would have been different. See Hall v. Luebbers , 341 F.3d 706, 719 (8th Cir. 2003) (citing Strickland , 466 U.S. at 687-88), cert. denied , 541 U.S. 996 (2004).

The prosecutor argued that when the Sanders children are adults, they will look back at this jury's decision "in the case where the cold-blooded sociopath gunned down [their] daddy" and will ask whether jus tice was achieved. (Trial Tr. at 1170.) The prosecutor also argued that the Sande rs children will someday question whether the ultimate punishment was given for the ultimate crime, and stated, "I am asking you to make the punishment fit the crime and to give him the death penalty." (Id. ) The prosecutor intimated that the Sanders children would want the death penalty imposed, but the children did not actually testify during the penalty pha se. Sanders' mother testified but did not offer an opinion c oncerning the appropriate sentence. See Payne-17- v. Tennessee , 501 U.S. 808, 827 & 830 n.2 (1991) (holding a state may permit evidence of the impact of a crime on the victims and their families when the jury is considering whether to impose the death pe nalty, and noting that this holding leaves undisturbed the Court's prior holding that family members of victims may not give their opinions concerning what sentence would be appropriate).

The Supreme Court of Missouri found th at the prosecutor's victim impact argument in this case was only an indirect reference to the victims' wishes and that Bucklew had not shown a reasonable probab ility of a different outcome at trial. Bucklew , 38 S.W.3d at 399. The federal district court concluded that the state court's finding was an unreasonable dete rmination of the facts on th e record because the state trial court would have sustained an objecti on to the prosecutor's inference that any verdict other than death would be a failu re in the eyes of the Sanders children. Nevertheless, the district court agreed w ith the state supreme court's conclusion that Bucklew suffered no prejudice from the pros ecutor's allusion to the wishes of the Sanders children. We agree with the district court's and the state court's ultimate conclusion that the prosecutor's isolated refe rences to what the Sanders children would think, when taken in context and comparedto the whole record of evidence in this case, would not have affected the outcome of the penalty phase.

Bucklew also asserts that his attorneys were ineffective for not objecting to the prosecutor's remarks allegedly injecti ng his personal opinion into the argument. Bucklew complains of a statem ent by the prosecutor to the effect that no one deserves the death penalty more than Bucklew. (See Trial Tr. at 1138 ("Ladies and gentlemen, if this crime does not deserve the death pena lty, then what would? Who deserves the death penalty if not this sociopathic kille r?").) The Supreme Court of Missouri found that this argument did not assert any pe rsonal knowledge of fact s in issue but was instead rhetorical. Bucklew , 38 S.W.3d at 400. The distri ct court was careful to point out that an impermissible argument is not rendered permissible merely by phrasing it-18- in a rhetorical fashion, nevertheless, the court concluded that the state court decision was not unreasonable.

The Supreme Court instructs that "[t]he relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction [or sentence] a denial of due process." Darden v. Wainwright , 477 U.S. 168, 181 (1986) (internal marks omitted). We consider the weight of the evidence and whether the improper argument misstated evid ence or implicated other specific rights of the defendant. See id. at 182. While it is improper to mislead a jury with comments indicating a personal belief that th is defendant deserved the death penalty more than any other, see Newlon v. Armontrout , 885 F.2d 1328, 1336 (8th Cir. 1989),
cert. denied , 497 U.S. 1038 (1990), we agree with both the state supreme court and the district court's determinations that the comments in this case did not imply personal knowledge of facts outside the record and did not render the result of the proceedings unfair.

III.

Accordingly, we affirm the judgment of the district court.

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