## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ Nos. 97-1936 /1978

___________ Robert A. Walls, * * Appellee/Cross-Appellant, * * v. * Appeal from the United States District * Court for the Eastern District of Missouri

. Michael Bowersox, * * Appellant/Cross-Appellee. * *

___________ Submitted: May 13, 1998 Filed: August 6, 1998

___________ Before BEAM, LOKEN, and MURPHY, Circuit Judges.

___________ BEAM, Circuit Judge.
Michael Bowersox appeals the district court's grant of a writ of habeas corpus to R obert Walls. The district court found that trial counsel was constitutionall y ineffective during the sentencing phase of Walls's capital murder trial and vacated his death sentence. Walls cross-appeals the district court's adverse holdings on a multitude of other issues. We hold that Walls's counsel was not constitutionally deficient, find the cross-appeal to be without merit, and reverse.-2-

I. BACKGROUND

Fred C . Harmon, an eighty-eight-year-old widower lived alone in Maplewood, Missouri. On December 18, 1985, friends became concerned when they had not seen Harmon for several days, and summoned police to conduct a welfare check a t Harmon's home. When the police entered the house, they discovered pools of blood on th e ki tchen floor, the bedroom floor, and the bed, and blood splattered on the bedroo m wall. Fo ur stove burners were on, with the pilot lights extinguished. The polic e noticed that a deep freeze, which opened from the top, had an arm cha ir, television, and
a lar ge typewriter stacked on it and that food was piled behind it. They opened th e freezer and found Harmon's body.

An autopsy revealed that Harmon had been viciously beaten: he had sustained
numer ous blunt trauma injuries to his head and limbs, an injury which separated hi s scalp from the skull in the middle of his head, broken ribs on hi s left side, and a bruised
s p leen. Harmon had also suffered facial injuries consistent with being kicked. Death
was attributed to a combination of blunt injuries, hypothermia, and suffocation

. Medical evidence showed that Harmon could have remained alive in the freezer fo r over an hour before succumbing to either suffocation or hypothermia.

Two days after Harmon's body was discovered, police found Harmon's car i n S a nta Monica, California. Walls, who was twenty years old at the time, was already in custody for burglary. Under questioning by the police, Walls confessed that he and two others had committed the murder.
On the Friday before the mur der, Walls had been transferred from the Jefferson City, Missouri, penitentiary to a halfway house in St. Louis pending release on parole. Two days late r, Walls and two other prisoners escaped from the facility and went out drinking. One of the fugitives stated that he k new an old man from whom he could get a car and some money with which the three could flee the St. Louis area.-3-

The trio went to Harmon's home where Walls kept a look-out while the other two b r oke into the house. When Walls later entered, blood was everywhere and Harmon was crying on the bedroom floor. The three tried to b ind Harmon with neckties, but he resisted and was beaten again. Walls first stepped on Harmon's face and then held his feet while the others tied him up. All three dragged Harmon, who was still conscious and fightin g, into the kitchen. The trio decided to put Harmon in the freezer and then to blow up the house. Walls helped to clean out the freezer to make room for Harmon, then helped

the others lift the still-struggling Harmon and stuff him inside the freezer, head first. When Walls later opened the freezer, Harmon begged, "I'm already dead, let me die, . . . let me die." After sharing soda out of the ref rigerator with his partners, Walls went bac k in the bedroom for the keys to the car. When he returned to th e kitchen, the television and a typewriter had been placed on top of the freezer. Walls lif ted the typewriter, and called out, "Are you in there?" When he heard Harmo n
moaning, Walls replaced the typewriter. A chair was added to the top of the freezer. The three then turned on the gas and left in Harmon's car.

Walls was charged with capital murder and counsel was appointed for him

. Original ly counsel planned on having another lawyer handle the penalty phase, if one occurred, but the penalty-phase lawyer ultimately withdrew from the case. I n preparation for the penalty phase of the trial, counsel retained a social worker t o inv estigate Walls's family background and another lawyer to serve as second chair at trial and assist with witness preparation.

At defense counsel's request, a psychiatrist examined Walls prior to trial. The psychiatri stconcluded that Walls did not suffer from any mental disease or defec t
s u fficient to constitute a defense, and that no further testing was warranted. Defense
couns el obtained a second exam that, likewise, revealed no mental disease or defec t and recommended no additional testing. Both reports noted that Walls was alcohol

dependant, b ut concluded that he was able to conform his actions to the requirements of the law.As aggravating circumstances, the jury found that (1) the murder w as committed 1 for the purp ose of receiving money or any other thing of monetary value from th e victim, see Mo. Rev. Stat. § 565.032.2(4); (2) t he murder involved torture or depravity of mind, see Mo. R ev. Stat. § 565.032.2(7); (3) Walls committed the murder after he escaped from th e lawful custody of a place of lawful confinement, see Mo. Rev. Stat. § 5 65.032.2(9); (4) the murder was committed while Walls was engaged in th e perpe tration of burglary in the first degree and/or robbery in the first degree, see Mo. Rev. Stat. § 565.032.2(11); and (5) Walls had three prior convictions for burglary in the second degree. See Mo. Rev. Stat. § 565.032.1(3) (Supp. 1984). -4- The j ury found Walls guilty of murder in the first degree, robbery in the firs t degree, and burglary in the first degree. The y imposed the death penalty. The verdict 1 and sentence were affirmed on di rect appeal. See Missouri v. Walls , 744 S.W.2d 791 (Mo.), cert. denied , 488 U.S. 871 (1988).
Walls moved to vacate the judgment and se ntence pursuant to Rule 29.15 of the Missouri Supreme Court Rules of Criminal Procedure. A mong other things, he alleged that tr ial counsel had been ineffective in failing to present the testimony of certai n family m embers during the penalty phase, in neglecting to seek additional psychiatric testing, and in electing not to present the testimony of the doctor who had conducted the second evaluation. The state court conducted a two-day hearing at which Walls's mother, father, sister, brother, and step-brother testified. They reported that whe n Walls was a

round seven years old, his parents divorced and each married one spouse of another marrie d couple: in other words, they swapped partners. They testified that this unusual a

rrangement was upsetting and stressful for the children of both families. Walls' s siblings also described the physical and emotional abuse they endured a s children. Both Walls's mother and father testified that they had been contacted by the def ense team but had refused either to attend trial or to testify on Walls's behalf. A psychologist

also testified at the Rule 29.15 hearing. He opined that Walls's alcohol ab use and a previous attempt at suicide by hanging could have caused brain damag e and that it was "conceivable" that neuropsychological testing would have reveale d some organic brain dysfunction. The doctor who had conducte d the second psychiatricAlthough the district court denied Walls's motion for an evidentiary hearing, it 2 reliedupon six affidavits submitted by Walls that were not presented at the 29.1 5 hearing. A habeas peti tioner is entitled to expand the state court record only if he can show cause for his failure to develop the facts in state court and prejudice from tha t fa ilure. See Keeney v. Tamayo-Reyes , 504 U.S. 1, 11-12 (1992). Walls has offered no explanation for his failure to pres ent this evidence at his 29.15 hearing. Four of the six affidavits are from witnesses who testified at the hearing, and merely ad d information to that testimony which c ould easily have been elicited during the hearing. Even if Walls had shown cause for his failure to present this ev idence in state court, we have carefully reviewed the affidavits and find that Walls has not shown prejudice. -5- exam of Walls also testified. He reported that he was aware of Walls's alcohol abuse at the time o f the exam, but had not recommended additional testing. Finally, th e lawyers who had conducted Walls's defense testified. E ach reviewed and explained the de velopments of the investigation and trial strategy. The state court concluded tha t counsel was not ineffecti ve and denied relief. See Walls v. Missouri , 779 S.W.2d 560 (Mo. 1989), cert. denied , 494 U.S. 1060 (1990).
Walls next filed a petitio n for a state writ of habeas corpus pursuant to Missouri Supreme Court Rule of Criminal Procedure 91, which the state circuit court immediately transferred to the Missouri Supre me Court. The state supreme court summarily denied the petition and Walls's subsequent motions to recall the mandate and for a rehearing.

After five years of litigation in state court, Walls filed a petition for a writ o f habe as corpus in federal district court, alleging eighty-eight grounds for relief. Th e district court denied Walls's reque st for an evidentiary hearing, but granted the writ on 2 the basis of ineffective assistance of counsel. The court found that trial counsel wa s constitutionally defective in fai ling to present the testimony of Walls's family, in failing to request further psychiatric testing, and in failing to call the second psychiatrist as a mitigation witness. Counsel was additionally ineffective, the court held, in failing t o request a continuance in order to conduct further investigation. The district courtCertain provisions of the Antiterrorism and Effective Death Penalty Act of 1996, 3 Pub. L. No. 104-132, 110 Stat. 1214 (1996), amended the federal statutory law o f hab eas petitions. Since Walls's petition for habeas relief was pending in the distric t court prior to April 24, 1996, however, these n ew provisions do not apply to his claim. See Lindh v. Murphy , 117 S. Ct. 2059, 2063 (1997).
-6- denied r elief on all other grounds. Bowersox appeals the district court's finding o f ineffective assistance of counsel. Walls cross-appeals on multiple other claims.

II. DISCUSSION

We review the district court's findings of fact for clear error and its conclusions of law de novo. See McD onald v. Bowersox , 101 F.3d 588, 592 (8th Cir. 1996), cert. denied , 117 S. Ct. 2527 (1997). "In conducting habeas review, a fede ral court is limited to de ciding whether a conviction violated the Constitution, laws, or treaties of th e United States." Estelle v. McGuire , 502 U.S. 62, 68 (1991). Pursuant to 28 U.S.C. § 2254 (1994), we presume state court findings of fact to be correct in habe as proceedings "unless condi tions exist which cast those findings into doubt." Guinan v. Armontrout , 909 F.2d 1224, 1228 (8th Cir. 1990). 3

A. Ineffective Assistance of Counsel

Clai ms of ineffective assistance of counsel are governed by the two-part test of Strickland v. Washington , 466 U.S. 668 (1984). We have previously labeled these two prongs the "performance test" and the "prejudice test." Kenle y v. Armontrout , 937 F.2d 1298, 1303 (8th Cir. 1991). In order to pass the pe rformance test, Walls must establish that his lawyer "made errors so serious that c ounsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland , 466 U.S. at 687. Our
sc rutiny of counsel's performance is deferential, and we presume counsel's conduct to be "within th e range of competence demanded of attorneys under like circumstances." Starr v. Lockhart , 23 F.3d 1280, 1284 (8th Cir. 1994). Under the-7-

prejudic e test, Walls must prove "that there is a reasonable probability that, but fo r counsel's unprofessional errors, the result of the proceeding would have been different. A reaso nable probability is a probability sufficient to undermine confidence in th e out come." Strickland , 466 U.S. at 694. When a petitioner is challenging a deat h senten ce, "the question is whether there is a reasonable probability that, absent th e errors, th e sentencer . . . would have concluded that the balance of aggravating an d mitigating ci rcumstances did not warrant death." Id. at 695. Our focus must be o n whether "counsel's deficient performan ce renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell , 506 U.S. 364, 372 (1993)

. With these considerations in mind, we turn to Walls's allegations.

The district court concluded that counsel's failure to secure testimony from th e Walls famil y was the result of incompetence. Walls was prejudiced by that failure , according to the district court, because the jury did not learn of his difficult family life
or hear a plea on his behalf. The district court discounted the Missouri state courts ' prior findings of eff

ective representation by reasoning that they had not considered the inadequacy of counsel's pre-trial investigation.

The duty to investigate derives from an attorney's basic function, which is "t o make the adversarial testing proce ss work in the particular case." Strickland , 466 U.S. at 690. "Because that testing process generally will not function properlyunless defense counsel has done some investigation into the prosecution's case and into various defense str ategies, . . . counsel has a duty to make reasonable investigations or to make a
rea sonable decision that makes particular investigations unnecessary." Kimmelman v. Morrison , 477 U.S. 365, 384 (1986) (quotation omitted).
Here, the defense team made an extensive effort to investigate Walls's famil y background and to secure the family's testimony at trial. Walls identified sixtee n potential witnesses for the penalty ph ase. The social worker who had been retained byWalls dismisses both the social worker's and second-chair's investigations b y 4 focusi ng exclusively on the personal efforts of lead counsel. However, it is neithe r unprofessional nor unreasonable for a lawyer to use surrogates to investigate an d interview potential witnesses rather than doing so personally. See Harris v. Dugger , 874 F.2d 756, 762 & n. 8 (11th Cir. 1989). In fa ct, we have criticized counsel in other cases for failing to utilize subordinates to conduct pre-trial investigation. Se e Henderson v. Sargent , 926 F.2d 706, 714 (8th Cir. 1991). -8- def ense counsel attempted to contact each witness. At the 29.15 hearing, Walls' s 4 mother testified that the social worker telephoned her repeatedly and engaged her i n "lengthy" conversations. Additionally, the social worker had several discussions with Walls' s father, stepmother, and numerous other relatives. The second-chair attorne y also talked to Walls's mother, father, and stepmother several times. Finally, lea d
co unsel himself spoke with Walls's mother, father, stepmother, and sister prior to th e penalty phase of the trial. This is not a case in which counsel failed to conduct a reasonable inquiry into potential mitigation witnesses. See, e.g. , Kenley , 937 F.2d at 1306-07 (counsel ineffective when he failed to investigate defendant's troubled family life and mental instability, and rejected offers by family and social worker to assist in inv estigation); Thomas v. Lockhart , 738 F.2d 304, 308 (8th Cir. 1984) (counsel' s in vestigation deficient where he did nothing beyond reading police file); Pickens v

. Lockhart , 714 F.2d 1455, 1467 (8th Cir. 1983) (counsel ineffective where he failed to make any investigation whatsoever and "abdicated all responsibility for defending his client in the sentencing phase").

In all of their contacts with the d efense team, the family steadfastly refused even to attend the trial, much less to testify. Walls's mother declined to come because she "didn't want to get involved." Walls's sister testified that she was "scared . . . because it was so highly publicized." Walls's father explained that "I didn't want to get my name

. . . drug into this." Walls argues that counsel was ineffective in failing to change his relatives' minds. Although counsel was unable to procure the testimony of the family members, we cannot say it was from lack of effort.-9-

Walls next asserts that counsel should have subpoenaed the family to testify i f they would not attend voluntaril y. The decision to call family members as witnesses is a "str ategic decision." Malone v. Vasquez , 138 F.3d 711, 721 (8th Cir. 1998). Thus, Wall s must "overcome a strong presumption that his counsel's actions constitute d
rea sonable trial strategy." Snell v. Lockhart , 14 F.3d 1289, 1301 (8th Cir. 1994 ) (quotati on omitted). "Decisions relating to witness selection are normally left t o counsel 's judgment, and this judgment will not be second-guessed by hindsight. " Williams v. Armontrout , 912 F.2d 924, 934 (8th Cir. 1990) (en banc) (quotatio n omitted).

We find t hat counsel's decision not to compel Walls's family to testify wa s ent irely reasonable. It makes little sense to force unwilling family to testify i n mitigation

. If counsel had done so, "cross-examination would not even have bee n
nec essary in order to hurt [Walls's] case. The simplest questions asked on direc t examin ation would have revealed the relatives' total lack of support." Laws v

. Ar montrout , 863 F.2d 1377, 1391 (8th Cir. 1988) (en banc). Hostile and grudgin g testimony by Walls's family could well have been more damning evidence than anything presented by the prosecution.

Counsel's decisions thus fall within the range of reasonable representation, and Walls has therefore not established the first prong of the S tricklandstandard. However, even if counsel's performance had been deficient, Walls could not show prejudice. We find no "reasonable probabilitythat, but for counsel's [allegedly] unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 695. "The value of this unoffered tes timony must be substantial to prove prejudice." Stokes v. Armontrout , 851 F.2d 1085, 1095 (8th Cir. 1988). The family's testimony does not meet this threshold.

The unoffered testimony alleging physical and emotional abuse is not o f substantial value. At the 29.15 hearing, both Walls's mother and father denied that-10-

Wall s was abused. Walls's brothers testified that they had never seen Walls eithe r physica lly or emotionally abused. The siblings did report that they themselves wer e "backhanded," "knocked around," and "smack[ed]." Walls's sister desc ribed an incident when Wa lls was "beat[en]" for knocking over a plant. She also testified that Walls' s mother sometimes struck the children with a belt and told them she did not love them and wished that they had never been born. While this testimony paints an unpleasant picture of Walls's c hildhood, it pales in comparison to evidence of abuse that has been held to be significantly mitigating. See Parkus v. Delo , 33 F.3d 933 (8th Cir. 1994 ) (d efendant

suffered brutal physical and sexual abuse). Furthermore, the value of thi s unoffered evidence must be balanced against the gruesomenes s of Walls's crime and the fi ve aggravating factors found by the jury. The absence of this testimony does no t undermine our confidence in the outcome of Walls's trial.
Likewise, we find that the unoffered plea for mercy by Walls's family is not o f substantial value. "It is not enough merely to speculate that a tearful parent on the stand might have e voked pity." Stokes , 851 F.2d at 1095. In Walls's case, the closest thing to a plea for mercy came when his mother was asked if she loved her son. Her telling response was, " Do I love my son? I love the son that I gave birth to that I knew. I do not know this p erson sitting there any more. But I loved him." The absence of thi s ambivalent plea for mercy from the penalty phase does not undermine our confidence in the outcome of Walls's trial.

The already limited value of Walls's family's testimony is further reduced when
one considers the negative information that would also have been elicited from them. See Whitmore v Lockhart , 8 F.3d 614, 623 (8th Cir. 1993). The family's testimony at the 29.15 hearing included descriptions of Walls as a belligerent teenager with a violent temper and revealed that Walls had stolen from and fought with family members. "[I]t
was su rely not unreasonable for [counsel] to have concluded that cross-examinatio n might w ell have revealed matters of historical fact that would have harmed his client's chances for a life sentence." Burger v. Kemp , 483 U.S. 776, 792 (1987).-11-

Counsel's failure to request neuropsychological or other testing was similarl y within the range of competent representation and did not render Walls's trial unreliable or unfair. It was entirely reasonable for counsel to rely on the conclusion of two trained psychiatrists that no additional testing was warranted. See Six v. Delo , 94 F.3d 469 , 474 (8th Cir. 1996), cert. denied , 117 S. Ct. 2418 (1997). Counsel is not required to "continue looking for experts just because the one he has co nsulted gave an unfavorable opinion." Sid ebottom v. Delo , 46 F.3d 744, 753 (8th Cir. 1995). Likewise, th e Constitution does not require counsel to shop around f or more elaborate tests that could be requested on the off chance that they will rev eal some exotic disorder. Accordingly,
we h old that counsel's failure to request neuropsychological evaluation or othe r additional testing does not constitute ineffective assistance of counsel.

Our resolution

of the performance test on this issue makes it unnecessary for us to reach Strickland 's prejudice inquiry. However, we note that Walls has no t demonstrated any prejudice stemming from th e lack of additional testing. He has made no showing that these tests would have revealed exculpatory or mitigating information. The str ongest statement Walls can muster in support of prejudice is the psychologist's testimony that it is "conceivable" that Walls suffers from some organic brai n dysfunction. This speculation does nothing to undermine our co nfidence in the outcome of Walls's trial.

The district court

next found that counsel was incompetent for failing to present the testi mony of the psychiatrist who conducted the second evaluation of Walls. I n particular, the district court held that counsel should have told the doctor about Walls's unusual fa mily background, his alcohol abuse, and his attempted suicide by hanging , because t he doctor could have used this information to craft mitigating testimony o n Walls's behalf. However, the doctor knew of this information and specifically referred to it in his report. Thus, there is simply no merit to this claim. Moreover, at the 29.15 hearing, counsel testified that "when it became obvious that no ne of the family members were going to show up, I was reluctant just to put on a psychiatrist to say that-12-

[Walls] had an anti-social personality disorder or that he was just mean, withou t
an ything to show the background as to how he got to be that way." This strikes us as precise ly the sort of reasoned strategic decision of counsel that is "virtuall y unchallengeable." Strickland , 466 U.S. at 690.

Th e district court also held that counsel was ineffective in failing to seek a continuance immediately prior to the commencement of the trial. It based thi s conclusion on its determination t hat counsel had failed to properly investigate potential mitigation eviden ce. Our holding that trial counsel's investigation was constitutionally adequate d isposes of this claim as well. Walls has not identified any additiona l information that counsel could have discovered had a continuance been granted, and we fi ndno evidence that the outcome of the trial would have been different had counse l made such a request. See Kilgore v. Bowersox , 124 F.3d 985, 994 (8th Cir . 1997), cert. denied , 118 S. Ct. 2353 (1998). A reviewing cou rt must not succumb to the temptation to view co unsel's defense through the distorting prism of hindsight. See Fretwell v

. Norris , 133 F.3d 621, 623-24 (8th Cir. 1998), petition for cert. filed , No. 97-9345 (May 29 , 1998). It is easy to conclude that a trial strategy was unreasonable after it ha s proved unsucce ssful; however, trial tactics and strategies must be examined in light of counsel's perspective at the time they were devised. See id.

The dis trict court found "[t]he most telling" evidence of ineffectiveness to b e counsel's own affidavit which states that he believes he provided Walls with ineffective assistance of counsel. However, admissions of inadequate per formance by trial lawyers
are no t decisive in ineffective assistance claims. See Harris v. Dugger , 874 F.2d 756, 761 n. 4 (11th Cir. 1989). Ineffectiveness is a question for the courts, not counsel, to de cide. See id. Moreover, we view counsel's pronouncements regarding hi s performance with extreme skepticism, given his frank admission at the 29.15 hearingWe add that any type of "sandbagging" is "not only unethical, but usually bad 5 strategy as well." United States v. Day , 969 F.2d 39, 46 n. 9 (3d Cir. 1992). -13- that his tri al strategy was driven, in part, with an eye to providing Walls a colorabl e claim of ineffective assistance of counsel on habeas review. 5

In sum, we find that defense counsel's performance was "within the range o f competence demanded of a ttorneys under like circumstances." Starr , 23 F.3d at 1284. Given the strength of the state's case, the limited value of the unoffered testimony, and the fiv e separate aggravating circumstances found by the jury, we are convinced tha t
even if counsel had performed exactly as Walls now claims he should have, the jur y would not have imposed a lesser sentence. See Strickland , 466 U.S. at 694. There is
no ind ication in the record that the state proceedings were fundamentally unfair o r unreliable, and Walls is therefore not entitled to relief on his ineffective assistance o f counsel claim. See Fretwell , 506 U.S. at 369.

B. Prosecutor's Remarks
In his cross-appeal, Walls as serts that certain comments made by the prosecutor at trial violated the Fifth, Sixth, Eighth, and Fourteenth Amendments of the U.S

. Constitution. The appropriate standard of review for this claim is "the narrow one of due process, and not

the broad exercise of supervisory power that [we] would possess in regard to [a federal] trial court." Donnelly v. DeChristoforo , 416 U.S. 637, 64 2 (1974) (quotation omitted). In order to determine the effect of a prosecutor's remarks, we examine the totality of the circumstances. See Antwine v. Delo , 54 F.3d 1357, 1363 (8th Cir.1995) (listing factors), cert. denied , 516 U.S. 1067 (1996).

After careful review of the entire transcript, including the closing arguments of both p hases of the trial, we are not convinced that the challenged statements wer e improper. The comments about which Walls complains, when read in context, do not-14-

carry the meaning he ascribes to them. Even if any of the challenged comments were impr oper, however, they did not fundamentally taint the proceedings. Inappropriat e
rema rks do not warrant federal habeas relief unless they infect the trial with enoug h unfairnes s to render a defendant's conviction a denial of due process. See Darden v

. Wainwright , 477 U.S. 169, 181 (1986). "Improper prosecutorial remarks violate due process when there is a reasonable probability the remarks affected the trial's outcome." Roberts v. Bowersox , 137 F.3d 1062, 1066 (8th Cir. 1998). We are not convinced that, but for the challenged comments, the jury would have acquitted Walls or imposed a lesser sentence. We therefore affir m the district court's denial of habeas relief on these claims.

C. Exclusion of Venirepersons

Wa lls also claims that the district court erred in failing to grant relief on hi s claims regarding three venirepersons who were excluded from the panel after voir dire. The s tate argues that these claims are defaulted and that we therefore cannot consider them. We need n ot address whether Walls is procedurally barred from pursuing these claims because we find them to plai nly be without constitutional merit. See Thompson v. Jones , 870 F.2d 432, 434 (8th Cir. 1988).
Venirepersons may be excluded from a jury based on their views about capital puni shment

when those views would prevent or substantially impair the performanc e of their duti es as a juror. Adams v. Texas , 448 U.S. 38, 45 (1980). During voir dire, three venirepersons expressed deep misgivings about their ability to impose the death penalty. Venireperson Houser, when asked by the prosecutor, "[C]ould you consider the death penalty?" answered, "At this juncture, no." Likewise, venireperson Ferrick stated, "I bel ieve that no man has the right to take another man's life." The prosecutor followed up by asking "Are you saying [that] you coul d not vote for the death penalty?" Ferrick answered, "Yes, sir." Finally, venireperson Meyer stated, "I sincerely doub t . . . that I would be able to impose the death penalty if it was needed. I don't think I-15-

could do it." Defense counsel was offered an opportunity to question each potentia l juror to show that they could follow the law, but these three did not alter their positions. The trial court then excused them for cause.

A tria l court may excuse potential jurors for cause if it finds that their "view s
wo uld prevent or substantially impair the performance of [their] duties as [jurors] i n accord ance with [their] instructions and [their] oath." Wainwright v. Witt , 469 U.S

. 412, 424 (1985). In reviewing th is determination, we are mindful that "deference must be paid to the trial judge who sees and hears the juror." Id. at 426. When a state trial
or appellate court has made a factual finding of a claim a petitioner raises on habea s corpus , we defer to that finding if it is fairly supported by the record. See Murray v

. Delo , 34 F.3d 1367, 1377 (8th Cir. 1994). Here, the record amply supports the tria l court's deci sion to remove these venirepersons, and the district court did not err i n denying Walls federal habeas relief on this claim.
We have carefully considered each of Walls's remaining argum ents and find them to be without merit. The district court therefore did not err in denying relief on those claims.

III. CONCLUSION

The judgment of the district court is affirmed in part and reversed in part. The grant of the w rit of habeas corpus is reversed and Walls's death sentence is reinstated.
A true copy.

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