_____________ No. 94-3525EA

_____________ Kirt Douglas Wainwright, * * Appellant, * * v. * * A. L. Lockhart, Director, * Arkansas Department of * Correction, * * Appellee. *

_____________ Appeals from the United States District Court for the Eastern No. 94-3528EA District of Arkansas.

_____________ Kirt Douglas Wainwright, * * Appellee, * * v. * * A. L. Lockhart, Director, * Arkansas Department of * Correction, * * Appellant. *

_____________ Submitted: September 11, 1995 Filed: April 8, 1996

_____________ Before FAGG, Circuit Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.

_____________ FAGG, Circuit Judge.

Kirt Douglas Wainwright, an Arkansas death row inmate, appeals th e district court's partial denial of his habeas petition. We

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affirm. The State of Arkansas cross-appeals the partial grant of habeas relief. We reverse.
Wainwright was convicted of killing Barbara Smith, an attendant a t the Best Stop convenience store in Prescott, Ark ansas. Ms. Smith was shot during a ro bbery on July 29, 1988. Although no one saw the murder , witnesses saw Wainwright run out of the store after the robbery and jump into a pink Cadillac. A short time later, police saw the pink Cadillac an d pulled it over. Andrew Woods was driving the car and Dennis Leeper wa s riding in the front seat. Wainwright was in the back seat with a Best Sto p money bag containing cash and a gun. The State charged all three men with capital murder.

At Wainwr ight's trial, the State presented evidence that Wainwright went into the Best Stop alone and committed the robbery and murder while Lee per and Woods waited in the car. Wainwright argued Leeper was th e trigge rman. After hearing the evidence, an Arkansas jury convicte d Wainwri ght of capital felony murder. Ark. Code Ann. § 5-10-101(a)(1 ) (Michie 1 987). At the conclusion of the penalty phase, the trial cour t submitted special verdict forms to the jury. On these forms, the jur y unanimouslyfound three aggravating circumstances existed at the time of the murder: Wainwright had previously committed another felony involving a threat of violence to another person, the murder was committed to avoid
or prevent arrest, and the murder was committed for pecuniary gain. The jury also unanimously found two mitigating circumstances: Wainwright had no history of homicid e before the murder of Ms. Smith, and Wainwright did not r esist when arrested for murdering her. The jury then unanimousl y found the aggravating circumstances outweighed any mitigating circumstance s and justified a sentence of death.
The Arkansas Supreme Court affirmed on direct appeal. Wainwright v. State , 790 S.W.2d 420 (Ark. 1990) ( Wainwright I ),

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cert. denied , 499 U.S. 913 (1991). State postconviction relief was denied , Wainwright v. State , 823 S.W.2d 449 (Ark. 1992) (per curiam) ( Wainwright II ), and Wainwright f iled this habeas petition in federal district court. After conducting evidentiary hearings, the district court denied Wainwrigh t relief on all except one of his claims: that the State violate d Wainwright's First and Fourteenth Amendment rights by questioning him abou t a "Blood handbook" during the penalty phase. Wa inwright v. Norris , 872 F. Supp. 574 (E.D. Ark. 1994) ( Wainwright III ). The district court ordered the S tate to conduct a new sentencing trial or to convert Wainwright' s sentence to life imprisonment without parole. I d. at 620. Wainwright now appeals t he denial of his other claims for relief, and the State cross

appeals the partial grant.
Relying on Lewis v. Erickson , 946 F.2d 1361 (8th Cir. 1991) , Wainwright first contends witness Octavia Hardamon Gamble's partia l recantation of her trial testimony is newly disc overed evidence warranting hab eas relief because the testimony would probably change the result o n retrial. During Wainwright's trial, Gamble testified she was inside the Best Sto p near the time of the murder and saw Wainwright, whom she ha d known for several years, leave the store with a gun in his hand. On cross

examination, Wainwright's attorneys accused Gamble of having an affair wit h Wainwright and suggested she had reason to spite him because he had told Gamble 's husband about the affair, but Gamble denied any romanti c relationship with Wainwright or reason to fabricate her testimony

. Nevertheless, Sheila Butler, a friend of Gamble's, testified that Gamble had ro mantic encounters with Wainwright. At the habeas evidentiar y hearin g, Gamble admitted that she had been romantically involved wit h Wainwrigh t and had lied at trial because she was newly married , embarrassed, and ashamed. Gamble reaffirmed tha t she saw Wainwright leave the Best Stop with a gun in his hand, however. See Wainwright III , 872 F. Supp. at 598-601.

In our view, evidence of Gamble's untruthfulness about the

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affair would not likely produce an acquittal on retrial, Lewis , 946 F.2d at 1362, or a life se ntence at the penalty phase. At the habeas hearing, Gamb le reaffirmed the material part of her trial testimony: she sa w Wainwright run out of the Best Stop with a gun. Butler's trial testimony already contradicted Gamble's trial testimony about her relationship with Wainwright. Most importantly, even without Gamble's testimony that she sa w Wainwr ight inside the Best Stop with a gun, substantial circumstantia l evidence shows Wainwright committed the robbery and murder himself. See Wainwright I , 790 S.W.2d at 422; Wainwright III , 872 F. Supp. at 580-81. Several witnesses who arrived just after the murder took place testified they saw one black ma n run out of the Best Stop. A witness testified the
manwas wearing red and white flowered shorts, and another testified h e jumped into a pink Cadillac that sped away. A young man who kne w Wainwright through family connections testified he was walking by the Best Stop at the time of the murder and saw Wainwright run out of the store

. The young man was sur e the fleeing man was Kirt Wainwright because he saw Wainwright's face. Moments later, the young mansaw a pink Cadillac speed by him. The young man testified he saw Wainwright in the back seat and tw o other people in the car. When police stopped th e pink Cadillac soon after the murder, Leeper an d Woods were in the front, and Wainwright was in the back seat w ith the Best Stop money bag and a gun. Ballistics test s reveal ed the gun could have been the one used to kill Ms. Smith

. Wainwright was wearin g red and white flowered shorts when apprehended and the shorts were later identified as the ones the witness had seen on the
man ru nning from inside the Best Stop. Neither Leeper nor Woods wa s wearing red shorts. Given this substantial circumstantial evidence agains t Wainwright, we cannot say the jury would probabl y have reached a different
conc lusionin either the guilt or penalty phase had Gamble testifie d truthfully about her relationship with Wainwright. Thus, Wainwright is no t entitled to habeas relief on this ground.

### -5- Wainwright next asserts his trial co unsel was ineffective in failing to offer the testimony of Dr. Irwin Stone, a bal listics expert. According to Wai nwright, Stone's testimony would have shown Leeper, rather tha n Wainwri ght, was the triggerman. Evidence at trial showed Ms. Smith' s killer had the gun inhis left hand when he fired the lethal shot. About thr ee hours after the murder, gunpowder residue tests were performed o n Wainwright, Leeper, and Woods. No gunpowder res idue was found on Woods or Wainwr ight, who is left-handed. Leeper, who is right-handed, teste d positive for gunpowder residue on his left hand, however, and there wa s more residue on the back of his hand than on the front.
To explain these results, the State argued Wainwright had rubbed the gunpowder residue off his hands sometime after he shot Ms. Smith, an d Leeper had handled the gun sometime after the mu rder. See Wainwright III , 872 F . Supp. at 585-86. The State's ballistics expert, Gary Lawrence , testified at trial that a person could get gunpo wder residue on his or her hands by firing a wea pon, handling a weapon that has been fired, or being
near a weapon when it is fired. Lawrence also testified that vigorou s act ivityor washing with water can remove the residue. At the habea s heari ng, Dr. Stone testified that the most likely way to get gunpowde r residue on the back of the hand is by firing a weapon and it is unlikely that handling a gun w ould put residue there. Thus, Dr. Stone's testimony cast some doubt on th e State's theory. Nevertheless, Dr. Stone confirmed that gunsh ot residue can be easily removed by washing or rubbing, an d stated that even normal activity may remove it within three hours.
To establish ineffective assistance of trial counsel, Wainwrigh t must show the decision not to call Dr. Stone was professionally deficient, and
a rea sonable probability that the result of the guilt phase or penalt y phase would have been different had Dr. Stone testified. Strickland v

. Was hington , 466 U.S. 668, 687, 694 (1984). At the habeas hearing , Wainwright's

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trial attorney testified he had interviewed Dr. Stone before the trial but decided Stone's testimony was unnecessary because it was consistent with Lawrence's testimony. The district court concluded the attorney's decisio n not to call Dr. Stone was professionally deficient. Wainwright III , 872 F. Supp. at 586. Nevertheless, the district court was not convinced a different result in t he guilt or penalty phase was reasonably probable if Dr. Stone had testifi ed at trial. Id. at 586-87. We agree. In light of the circumstantial ev idence indicating Wainwright was the lone robber and murderer, supraat 4, we do not believe the jury would have found otherwis e had Dr. S tone testified that firing a gun was the most likely way fo r Lee per to get gunpowder residue on the back of his hand. In sum, ou r confiden ce in the outcomes of the guilt and penalty phases is no t undermined by any error in failing to call Dr. Stone.

Wainwr ight next argues the State's reliance on the aggravatin g circumstance that he committed the murder to avo id or prevent arrest, Ark. Code Ann. § 5-4-604(5 ), violates the Eighth and Fourteenth Amendments for several reasons. Wai nwright contends the circumstance does not genuinely narrow the class of p ersons eligible for the death penalty as required by Lowenfield v. Phelps , 484 U.S. 231, 244 (1988). We have already rejected this challenge to Arkansas's death penalty scheme. Ruiz v. Norris , 71 F.3 d 1404, 140 8 (8th Cir. 1995); Perry v. Lockhart , 871 F.2d 1384, 1393 (8t h Cir.), cert. denied , 493 U.S. 959 (1989). Arkansas's capital felony-murde r statute sufficiently narrows the class of murder ers eligible for the death penaltyby specifying only a subgroup of murders as capital ones. Ruiz , 71 F.3d at 1408; see Ark. Code Ann. § 5-10-101.

Wai nwright also contends the circumstance that he committed th e murder to avoid or prevent arrest is vague and overbroad, both facially an d as applied in his case. We disagree. The statu tory language defining the circumstance is speci fic enough to guide the jury and avoid arbitrary and capricious imposition of the death

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penalty. Whitmore v. Lockhart , 8 F.3d 614, 624 (8th Cir. 1993); see Walto n v. Arizona , 497 U.S. 639, 652-53 (1990); William s v. Clarke , 40 F.3d 1529, 1537-38 (8th Cir. 1994), cert. denied , 115 S. Ct . 1397 (1995). Wainwright next argues the circumstance impermissibly elevates the required menta l state at the penalty phase and thus produced an inconsistent jury verdict. According to Wainwright, the jury's guilt-phase finding that in the course of committing robbery , Wainwright "cause[d] the death of any person under circumstances manifesting extreme indifference t o the value of human life" conflicts with its penalty-phase finding of the aggravating circumstance that the murder was committed purposely to avoid arrest. These findings are not inconsistent. Any higher intent requirement at the penalty phase simply supports the aggravating circumstance andfurther narrows the class of murderers eligible for the death penalty.
Wainwrigh t also argues that even if the aggravating circumstance is consti tutional, the evidence is insufficient to support it. Th e aggravating circumsta nce of committing the murder to avoid arrest applies when a robber "makes the cold-blooded calculatio n that by annihilating his victimhe thereby eradicates an eyewitness to his crime." Pickens v

. State , 551 S.W.2d 212, 215 (Ark. 1977) (en banc), cert. denied , 435 U.S. 909 (1978 ). On direct appeal, the Arkansas Supreme Court found th e evidence sufficient t o support this aggravating circumstance. Wainwright I , 790 S.W.2d at 427. Ms. Smith was shot once in the top of the head at point-blank range. Further, the Best Stop's manager testified Ms. Smith knewWainwright's name and could probably identify him because she ha d rejected a check he had tried to cash on two occasions. We conclude the evidence was sufficient to convince a reasonable juror beyond a reasonable doubt tha t Wainwright murdered Ms. Smith to avoid arrest. See Smith v

. Armontrout , 888 F.2d 530, 538 (8th Cir. 1989).
Wainwright next contends his death sentence violates the

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Ei ghthand Fourteenth Amendments because of the jury's "inconsisten t fin dings" about the mitigating circumstance that he did not resist whe n arrested for the murd er. On one special verdict form, the jury indicated it had unanimously found the lack-of-resistance circumstance and one other mitigating circumstance existed. On another form, the jury indicated it had unanimously found the lack-of-resistance circumstance did not exist. Accord ing to Wainwright, these contrary statements show the jury wa s confus ed about the lack-of-resistance circumstance. Whether or not th e juryfound Wainwright did not resist arrest, the jury clearly considered the circumstance one way or the other. Cf. Woodard v. Sargent , 806 F.2d 153, 1 57-58 (8th Cir. 1986) (failure to submit applicable mitigatin g circum stance to jury for consideration prejudiced defendant). The jur y then specifically fou nd the three "aggravating circumstances outweigh[ed] beyond a reasonable d oubt all mitigating circumstances," whether the jury found one or two miti gating circumstances. Because this is not arbitrary
or capricious, there is no Constitutional violation. See Williams , 40 F.3 d at 1537-38.

Wai nwright also asserts the State's reliance on the aggravatin g circumstance of murder committed for pecuniary g ain, Ark. Code Ann. § 5-4- 604(6), violated the Eighth and Fourteenth Amendments. Wainwright argues the circumstance repeats an element of the underlying robbery and thu s fails to narrow the class of murderers eligible for the death penalty. We rejected this challenge to Arkansas's death penalty scheme in Perry , 871 F.2d at 1392-93. Wainwright asserts our decision in Perryis wrong. We recent lyreaffirmed that duplication of an element of capital robbery

murder by one or more aggravating circumstances does not render Arkansas's deathpenalty scheme unconstitutional. Ruiz , 71 F.3d at 1407-08. As we exp lained in Ruiz , no panel of this court can reconsider the Perr y decision. Id.
Wainwright next asserts the seating of the victim's family

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near the jury during the trial violated his due process rights. Before th e jury e ntered the courtroom, a crime victims' assistant with th e prosecutor's office asked some people seated in the front row to move so the victim's family could sit there. The defense objected and the trial court sta ted the prosecutor should not tell people where to sit and th e victim's family could sit wherever they could find seats. Although th e victim's family sat in the front row near the jury during the entire trial , the victim's family did not cry, shout, cause a disturbance, or identify themselves to the jur y. The state court found there was no evidence that the jury knew the people in the front row were the victim's family members

. Wainwr ight I , 790 S.W.2d at 425. In this habeas proceeding, we mus t presume the state finding is correct. 28 U.S.C. § 2254(d) (1988). I n light of the finding, Wainwright cannot show the seating arrangemen t prejudiced him. Because any error was harmless, Wainwright is not entitle d to habea s relief on this ground. See Brecht v. Abrahamson , 113 S. Ct

. 1710, 1722 (1993).
Wainwright also asserts the presence and actions of security of ficers denie d his right to a fair trial. During the guilt phase, two or thre e polic e officers sat in chairs directly behind the defense table. Whe n Wai nwright testified during the penalty phase, the sheriff and a polic e officer accompanied Wainwright to the witness stand, stood next to hi m while he testified, then escorted him back to his chair. The Arkansa s Supreme Court found t hese security measures did not prejudice Wainwright. Wainwright I , 790 S.W.2d at 427. The district court agreed. Wainwright III , 872 F. Supp. at 607-08.
State judges have broad discretion to take security measures instate courthouses. Hellum v. Warden , 28 F.3d 903, 907-09 (8th Cir. 1994). To succeed on a claim th at state-court security measures denied the right to
a fair tri al, a federal habeas petitioner must show the measures wer e eit her actually or inherently prejudicial. Holbrook v. Flynn , 475 U.S

. 560, 572

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(1986). Wainwright has not shown actual prejudi ce. To decide whether the security measures were inherently prejudicial, we consider whether the y presented "`an unacceptable risk . . . of impermissible factors coming int o play.'" Id. at 570 (quoting Estelle v. Williams , 425 U.S. 501, 50 5 (1976)).
Here, the officers' act of escortingWainwright to the witness stand during the penalty ph ase may have suggested he was likely to flee or harm
som eone, but Wainwright was a convicted capital murderer at that point

. The officers did not obstruct the jury's view of Wainwright, and were no closer to Wainwright during his testimony than during the rest of th e trial. We think the jury would view the officer s' presence and actions as ordinaryand normal concern for the safety and order of the proceedings. See id. at 571. In sum, we cannot say the scene presented to the jury was "so in herently prejudicial as to pose an unacceptable threat t o [Wainwright's] right to a fair trial." Id. at 572 (no prejudice where fou r uni formed, armed state troopers sat in first row of spectators' sectio n behind six defendants); see United States v. Dar den , 70 F.3d 1507, 1533-34 (8th Cir. 1995) (no prejudice to defendants being tried for extraordinaril y violent criminal enterprise by use of unarmed of ficers in courtroom, metal det ectors outside courtroom, jury sequestration and transportation b y marshals, armed guard s along street, helicopter surveillance, and snipers
on courthouse roof); Hopkinson v. Shillinger , 866 F.2d 1185, 1218 (10t h Cir. 1989) (no prejud ice where guards used magnetometer to check everyone ente ring courtroom, prosecutor's bodyguards wore bulletproof vests an d visibly carried guns, and guards audibly cocked guns when lights went out in courtroom during trial), cert. denied , 497 U.S. 1010 (1990).

Wainw right also asserts that even if we reject each claimed erro r individually, their cumulative effect deprived him of a fair trial. I n suppor t of the cumulative error doctrine, Wainwright cites Harris v

. Housewright , 697 F.2d 202 (8th Cir. 1982)

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(cumul ative effect of eleven mistakes by trial counsel amounted t o def icient performance). Harris is no longer good law in light of th e Supreme Court's decision in Strickland v. Washin gton , however. Girtman v. Lockhart , 942 F.2d 468, 475 (8th Cir. 1991); see United States v. Stewart , 20 F.3d 911, 917-18 (8th Cir. 1994). Errors tha t are not unconstitutional individually cannot be added together to create a constitutional violation

. Stewart , 20 F.3d at 917-18. Neither cumulative effect of trial errors nor cumulative effect of attorney errors are grounds for habeas relief. Id. ; Wharton-El v. Nix , 38 F.3d 372, 375 (8th Cir. 1994), cert. denied , 115 S. Ct. 1126 (1995); Griffin v. Delo , 33 F.3d 895, 903-04 (8th Cir. 1994) , cert. denied , 115 S. Ct. 1981 (1995).

Inits cross appeal, the State contends the district cour t incorrectly concludedthe State's cross-examination of Wainwright about a "Blood handbook" and "the Bloods" violated his rights under the First and Fourteenth Amendments. See Wainwright III , 872 F. Supp. at 610-19. Durin g the penalt y phase, Wainwright testified that he is a Baptist, but ha d studied other religio ns. During cross-examination, the prosecutor showed Wainw right a booklet and asked him whether he had ever seen it. Id. a t 612. Wainwright iden tified the booklet as Islamic material that belonged to him. The prosecut or then asked, "[I]s this what you refer to [as] the Blood hand book?" Id. at 613. Wainwright responded, "No, that's som e [Moorish] Science Tem ple of America [material] . . . [from] a book called 101." Th e State next asked, "What is the Bloods?" and Wainwright said , "That means black. Blood means black." See Dictionary of Contemporar y Slang 46 (1990) (defining "blood" as "a term of endearment or address used by black males to fellow males, a shortening of `blood brother'"). Th e State then moved for admission of the booklet, a nd the defense objected on the ground of relevance. After a discussion, apparently off the record, the trial court decided the booklet was not relevant since it did no t reflect Wainwright's religious beliefs. Wainwright III , 872 F. Supp. at 613-14.

### -12- Evidence at the habeas hearing showed the booklet the State sough t to ad mit is a handwritten copy of an Islamic religious booklet, "Kora n Questions for Moorish Children." The text consists of 101 questions and
answers about the Islamic faith. Because of the way the questions an d
answers are phrased ("Who made you? Allah.") and because Wainwright had copied the booklet in his own handwriting, the prosecutor believed th e bookle t contained Wainwright's own answers to the questions and thu s reflected Wainwright's personal beliefs. The cover of Wainwright's copy of the bo oklet had a hand-drawn picture of a dagger dripping a dar k substance into a puddle. "Blood" was written inlarge letters next to the dagger. See id. at 621 (reproduction of cover). The prosecutor mistakenl y believed the booklet tied Wainwright to the Bloods street gang, based on the prosecutor's very strained interpretation of the booklet's text, see id. at 610, as well as his personal belief that the Bloods gang is part of the Islamic church, see id. at 616. At the habeas hearing, the district court asked the prosecutor whether the booklet's cover and the State' s questioning about the "Blood handbook" and "the Bloods" led the jury t o believe Wainwright was a member of the Bloods st reet gang. The prosecutor responded, "At the ti me I questioned Mr. Wainwright about this booklet, I felt in my heart that he was a member of the Bloods and that's what I was trying to get out to challenge his testimony and other evidence that he wa s a Christian." Id. at 618.

The district court concluded the prosecutor fed on "gang hysteria " in the community at the time and bought into it himself. Id. at 619. The district court held the State's cross-examinatio n did not serve any proper rebuttal purpose and tended strongly to link Wainwright to a street gang and generate a fear of gangs in the jury. Id. The district court wa s convin ced the prosecutor's questions and display of the booklet's cove r made Wainwright appear more dangerous and led the jury to believ e Wa inwright was part of a criminal enterprise larger than a loca l convenience store mur der. Id. The district court decided the jury would have imposed a

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sentence of life without parole absent these prejudicial circumstances

. Id. The district court concluded the cross-examination was improper and violated Wainwright's First and Fourteenth Amendment rights. Id.
Althoughthe prosecutor did not ask Wainwright directly about gan g member ship, the prosecutor's word choice in asking about the bookle t sug gests the prosecutor was setting the stage to elicit testimony abou t gangs rather than religion. The prosecutor admi tted as much at the habeas hearin g. A defendant's membership in a gang cannot be raised as ba d character evidence in the penalty phase of a capital proceeding when the evidence is not relevant to the rebuttal of any specific mitigatin g evidence. Dawson v. Delaware , 112 S. Ct. 1093, 1098-99 (1992); O'Neal v. Delo , 4 4 F.3d 655, 661 (8th Cir.), cert. denied , 116 S. Ct. 129 (1995)

. Here, gang membership was not relevant to rebut any of Wainwright' s mitigating evidence or for any other purpose. There was no credible , admissible evidence that Wainwright's crime was gang related, tha t Wainwright belonged to any gang, or that any gan g membership would impeach Wainwr ight's testimony about his religious beliefs. Like the distric t
cou rt, we conclude the prosecutor's questions "did not serve any prope r rebuttal purpose." Wainwright III , 872 F. Supp. at 619.

Neverthel ess, we disagree with the district court's conclusion that the questioning led the jury to believe it was d ealing with a street gang. This conclusion is ba sed on nothing more than unfounded speculation. The prosecutor's bigoted views and improper motive in questioning Wainwright about the booklet were not communicated to the jury. Although some jury member s had read pretrial newspaper articles about Wainwright and som e art icles had erroneously reported Wainwright was a member of the Blood s street gang, "gangs" were not mentioned during voir dire or the trial. Th e jury heard the prosecutor use the term "blood," the proper name for a gang , in two questions, but Wainwright gave reasonable

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responses unrelated to gangs and explained another meaning for the term. Further, the booklet was never admitted, and the trial court instructed th e jury i t should disregard "[a]ny argument, statements, or remarks o f attorneys having no basis in the evidence." The jury saw the booklet' s cover with the word " blood," but in light of Wainwright's testimony about the booklet and the m eaning of the term, we cannot say the jury would the connect the booklet to a notorious street gang. In addition, neither side referred to the bookl et in its closing argument, and Wainwright testified he did not subscribe to the beliefs in the bookl et. In the context of the entire proceeding, we cannot say the two imprope r questions and display of the booklet's cover fatally infected the penalty phase and rendered i t fundamentally unfair. Anderson v. Goeke , 44 F.3d 675, 679 (8th Cir. 1995)

.

We thus reverse the district court's grant of Wainwright's habea s petition on the "Bloo ds" issue, and affirm the district court's denial of the rest of Wainwright's petition.
HENLEY, Senior Circuit Judge, concurring dubitante

I concu r in the well-written opinion of the panel, although I hav e reservations about one aspect of our decision.

I agree fully with the panel's handling of the issues raised b y appellant Wainwright in his appeal. Judge Eisel e gave all of Wainwright's claim s a very thorough airing and I am satisfied that he did not err i n rejecting them.
I am troubled, however, by our decis ion to reverse on the one issue

-- the prosecutor's attempts to link Wainwright to gang membership no t supported by any evid ence -- as to which he granted habeas relief. Judge Eisele , a very well-qualified and experienced trial judge, conducted a searching inquiry as to all of Wainwright's claims of error. He hear d testimony and had an

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opportunity to evaluate the credibility of the witnesses first hand. Judg e Eisele then wrote a 96-page opinion explaining i n detail his reasoning for denying most of the claims but granting Wainwright a new sentencing hearin g becaus e of the prosecutor's improper references to gangs. Hi s determination that the prosecutor's questions ta inted the jury is one that I believe we ordinarily should respect. Moreover, the record is clear tha t the prosecutor was in tentionally trying to inject the gang issue into the
case and as both Judge Eisele and this court have found, this was improper

. Such prosecutorial misbehavior I am reluctant to accept.

I have nonetheless decided to concur , with reservations, because the evidence against Wainwright was great and I cannot say, on balance, that the sentencing proceeding was fundamentally unfair.

A true copy.

Attest:

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