1 The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri. 

## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________
No. 08-2936

___________ Walter T. Storey, *

* Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Don Roper, *

* Appellee. *

___________ Submitted: November 18, 2009 Filed: April 28, 2010

___________ Before MELLOY, BEAM, and GRUENDER, Circuit Judges.

___________ BEAM, Circuit Judge.

Walter Timothy Storey appeals the district court's 1 denial of his 28 U.S.C. § 2254 petition for habeas corpus in this death penalty case. Five issues have been certified for appeal–two claims regarding victim impact testimony; one claim about the pecuniary gain statutory aggravator; and two claims of ineffective assistance of counsel. We affirm the denial of habeas corpus relief.-2- I. BACKGROUND

Jill Frey, a special education teacher in St. Charles, Missouri, was murdered in her apartment in St. Charles in February 1990. Storey, who lived with his mother, was her across-the-hall neighbor. On the day of the murder, a Friday, he had received by mail a divorce petition from his estranged wife. Presumably in response, Storey drank alcohol heavily, and when he ran out of alcohol, he decided to rob Frey in order to purchase more alcohol. Late Friday night or early Saturday morning, he took a knife from his apartment, climbed Frey's balcony, and entered an unlocked sliding glass door. After brutally murdering Frey by beating and inflicting multiple slash and stab wounds, Storey stole Frey's car keys, pur se and car. On Sunday, Storey returned to the scene to cover up the murder, wiping down the apartment, scrubbing Frey's fingernails, throwing away clothing and di sposing of other incriminating evidence. Co-workers discovered Frey' s body on Monday, when she did not show up at school for work. After giving severa l different stories to the police, Storey admitted most of the above details, but contended that he only remembered struggling with Frey, not killing her. He proceeded to trial, advancing the theory th at a large man forced Storey into Frey's apartment and killed Frey because the allege d assailant thought Frey was Storey's mother, all at the behest of Storey's estranged wife's father.

The jury rejected Storey's theory a nd convicted him of first-degree murder, armed criminal action, second-degree burglary, and tampering with evidence. Following a penalty-phase trial, the jury recommended the death penalty, which the trial court imposed. In 1995, the Missouri Supreme Court affirmed the convictions,
but reversed and remanded the death sentence after finding that Storey was denied his constitutional right to effective assistance of counsel for failing to object to improper prosecutorial arguments during the penalty phase. State v. Storey , 901 S.W.2d 886, 902-03 (Mo. 1995) (Storey I ). In 1997, a second jury recommended a sentence of death, which the trial court adopted. The Missouri Supreme Court again reversed and
remanded the sentence of death because the trial court failed to properly instruct the2 Missouri Supreme Court Rule 91 is the vehicle for prisoners to file petitions for habeas corpus in Missouri state court in extremely limited ci rcumstances, but these motions are distinct from Rule 29.15 motions for post-conviction relief, wherein traditional claims of trial error and ineff ective assistance of counsel should be brought. State ex rel. Nixon v. Jaynes , 63 S.W.3d 210, 214-17 (Mo. 2001).

-3- jury concerning Storey's constitutional ri ght not to testify. State v. Storey , 986 S.W.2d 462, 464-66 (Mo. 1999) (Storey II ). After a third penalty-phase trial in September 1999, the trial court again adopt ed the jury's recommendation that Storey be put to death, and the Missouri Suprem e Court affirmed on March 6, 2001. State v. Storey , 40 S.W.3d 898 (Mo. 2001) (Storey III ). Storey filed a petition for certiorari on July 20, 2001, which was denied on October 1, 2001. 534 U.S. 921 (2001).

On July 19, 2001, Storey filed a Rule 29.15 motion for post-conviction relief in Missouri state court, which was deniedon March 18, 2004. Storey appealed, and the Missouri Supreme Court affirmed on October 18, 2005. Storey v. State , 175 S.W.3d 116 (Mo. 2005) (Storey IV ). The court also denied his motion for a rehearing on November 22, 2005. Storey filed a Rule 91 2 petition for habeas corpus with the Missouri Supreme Court on November 15, 2006, which was denied on December 19, 2006. Storey filed a second Rule 91 pe tition with the Missouri Supreme Court on December 21, 2006, which was denied on January 30, 2007. On January 18, 2007, he filed a motion to recall the mandate, wh ich the Missouri Supreme Court denied on February 27, 2007. On March 5, 2007, St orey filed the current petition for habeas corpus pursuant to 28 U.S.C. § 2254.

The district court rejected the government's position that the petition should be dismissed as untimely, but denied relie f on all grounds and granted a certificate of appealability on four of the claims enumerat ed above. Prior to the case being set for argument, we expanded the certificate to include another claim concerning victim impact evidence presented at th e third penalty-phase hearing.3 The applicable statute of limitations is as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a pers on in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of–

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

. . . (2) The time during which a properly filed application for State post-conviction or other collatera l review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(1)-(2).

-4- II. DISCUSSION

A. Timeliness

The government initially contends that Storey's petition is untimely, arguing that Storey's most recent actions for st ate post-conviction relie f–the Rule 91 petitions
and motion to recall the mandate–did not toll the statute of limitations. 3 As we read the briefs, the state does not contest that if Storey is given the benefit of tolling for these filings, the petition was timely. The state argues that the Rule 91 petitions and the motion to recall the mandate are not app lications for state post-conviction or other collateral relief because Storey was simply trying to manipulate the system. Until recently we had not decided whether Rule 91 petitions serve to toll the habeas corpus statute of limitations found in 28 U.S.C. § 2244. However, in Polson v. Bowersox
,-5- 595 F.3d 873 (8th Cir. 2010), we held th at Rule 91 petitions qualify as "other collateral review" for purposes of the hab eas corpus statute of limitations. Id. at 875. We have also previously held that a Mi ssouri motion to recall the mandate is "other
collateral review" within the mean ing of § 2244. Bishop v. Dormire , 526 F.3d 382, 384 (8th Cir. 2008). Under Polsonand Bishop , Storey's Rule 91 motions and his motion to recall the mandate met the qualifi cations set forth in§ 2244 and tolled the statute while pending. As we did in Polson , 595 F.3d at 875, we also decline the state's entreaty to "narrow Bishop and hold that a defendant cannot evade the statute of limitations by filing repetitive (and meritless) petitions in the state courts." (Appellee's Opening Brief at 11). Accordingly, we affirm the district court's ruling that the petition was timely.

B. Merits

In this habeas corpus action, we review the district court's conclusions of law de novo and its factual findings for clear error. McGehee v. Norris , 588 F.3d 1185, 1193 (8th Cir. 2009). We may not grant relie f for claims adjudicated on the merits by the Missouri state courts unless the adj udication was contrary to, or involved an unreasonable application of federal law as determined by the Supreme Court, or an
unreasonable determination of the facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d). A state court decision may be incorrect, yet still not unreasonable, and we will gran t relief only if the state c ourt decision is both incorrect
and unreasonable. McGehee , 588 F.3d at 1193.

1. Victim Impact Evidence

In Claims 9 and 10 of the habeas corpus petition, Storey argues he was unfairly prejudiced by the government's introduction of victim impact evidence, much of which was not disclosed until the first day of the penalty-phase trial. There are two components to Storey's argument–that Stor ey was prejudiced by the late hour of the-6- disclosure of some of the victim impact witnesses and exhibits, and that the victim impact evidence from five particular witn esses and certain exhibits violated due process as set forth by the Supr eme Court in Payne v. Tennessee , 501 U.S. 808 (1991).

The Missouri Supreme Court adjudicated the late-disclosure facet of Storey's claim and denied the point. Storey III , 40 S.W.3d at 908. The government argues that this portion of the claim is not cognizable because Storey did not present the federal grounds for the argument to the Missouri stat e court, and his attempts to do so now are procedurally barred. In his reply brief, Storey refutes this and cites to portions of his state appellate brief wherein he cites to the Federal Constitution, and also to the Missouri Supreme Court opinion stating that Storey argued his "rights to due process
and a fair trial" were violat ed by late disclosure. Id. at 906. Additionally, the district
court ruled on the merits. We have examin ed the record and agree with Storey that the federal claim was presented to, and ad judicated by, the Missouri state courts. Accordingly, we review the merits of the claim.

On September 15, 1999, the first day (a fter two days of voir dire, which occurred September 13-14, 1999) of the third penalty-phase trial, defense counsel and the prosecutor met with the trial court outsi de the jury's presence. Defense counsel informed the trial court that the prosecuti on had just given her new discovery, and she objected to its use in the prosecution' s opening statement. The new discovery consisted of previously undisclosed witne sses and exhibits. Th e court told counsel
that it would not rule until de fense counsel had a chance to examine the evidence, and warned the government not to refer to this evidence in its opening statement. The next day, defense counsel again raised the issu e of the undisclosed w itnesses and exhibits. The state responded that the three witnesses were victim character witnesses who had no knowledge of the circ umstances of the murder. The trial court allowed the state
to call these witnesses and allowed the e xhibits into evidence. Defense counsel further protested that she had no informati on regarding the witnesses, and the court-7- responded that the three witnesses would be available for questioning before they testified later that day. The record doe s not disclose whethe r counsel interviewed these witnesses before they te stified. We note that in th e transcript, there was a break in the proceedings shortly before the thr ee witnesses testified, though it is not clear how long the break continued. Storey argues he was unfairly surprised by these witnesses and exhibits and also prejudicedin his ability to conduct voir dire because
of the late notice of these victim witne sses, in violation of the Fifth and Sixth
Amendments.

The Missouri Supreme Court held that wh ile it was unfortunate that disclosure occurred so late, Storey was not unduly pr ejudiced nor were his constitutional rights violated. Storey III , 40 S.W.3d at 908. Counsel did have timely notice of four other victim impact witnesses, so counsel was able to prepare voir dire victim impact questions. Id. at 907. The court also noted that defense counsel chose not to crossexamine any of the character witnesses in this case, and there is no indication that an earlier disclosure would have prompted a cha nge in this defense strategy. The court specifically noted that where a party is surprised by evidence, but deals with the
evidence in the same manner that it would ha ve if it had been prepared, there is no reason to exclude the evidence based on a discovery violation. Id.

Although the Missouri court did not men tion federal law or Supreme Court precedent (nor was it required to, seeMitchell v. Esparza , 540 U.S. 12, 16 (2003) (per curiam)), its decision is not contrary to , or an unreasonable application of, clearly established Supreme Court precedent. Storey argues that the state courts violated his Fifth Amendment right to notice, citing Gardner v. Florida

, 430 U.S. 349, 358 (1977), wherein the Supreme Court held that th e sentencing process must satisfy the requirements of due process. In Gardner the Court held the de fendant was denied due process when the death sentence was impos ed on the basis of information in a presentence investigation report which was not disclosed to the defense. Id. at 362. Storey also cites Lankford v. Idaho , 500 U.S. 110, 122, 127 (1991), where the Court4 Ring , which extended this rule to the de termination of aggravating factors in a death penalty case and held that Arizona 's system of judge-found aggravators was unconstitutional, 536 U.S. at 609, was decided after Storey III , and therefore cannot be the basis of clearly establis hed Supreme Court precedent. SeeLockyer v. Andrade
, 538 U.S. 63, 71-72 (2003) (noting that the statutory phrase "clearly established

-8- held that a defendant who had no notice that the judge might impose the death penalty had been denied due process.

Neither of these cases establishes that the Missouri Supreme Court's decision to deny relief on the basis of untimely disclosure was contrary to, or an unreasonable application of, Supreme Court precedent. A state court's d ecision is contrary to clearly established Supreme Court law if it "applies a rule that contradicts the governing law
set forth in our cases" or if it "confr onts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams v. Taylor

, 529 U.S. 362, 405-06 (2000). A decision is an unreasonable application of Supreme Court precedent if it correctly identifies the governing legal rule but unreasonably applies it to the facts of the prisoner's case. Id. at 407-08. Storey knew th ere would be victim impact testimony and knew Frey was a special e ducation teacher. Although probably quite limited, Storey had an opportunityto interview the witne sses before their testimony, and he had the opportunity (though he did not take it), to cross-examine the witnesses.
In Gardner , the death penalty was imposed befo re the defendant knew why it was imposed. In Lankford , the defendant was unaware th at the judge was considering imposing the death penalty. Neither of th ese cases are factually "indistinguishable," nor does the Missouri court opinion contradi ct the Supreme Court's governing law or unreasonably apply this law to the facts of Storey's case. Stor ey's Fifth Amendment
claim is without merit.

Storey also argues that the state court violated his Sixth Amendment rights as set forth in Ring v. Arizona , 536 U.S. 584 (2002); 4Apprendi v. New Jersey , 530 U.S.Federal law" refers to "thegoverning legal principle or principles set forth by the Supreme Court at the time the state court renders its decision " (emphasis added)).

-9- 466 (2000); and Jones v. United States , 526 U.S. 227 (1999). This line of cases holds that a defendant is entitled to have a jury d ecide that he "is guilty of every element of the crime with which he is charge d, beyond a reasonable doubt." Apprendi , 530 U.S. at 477 (quotation omitted). Storey argues that the Jones line of cases impacts the late disclosure of victim impact evidence becau se discovery rules tr aditionally applied to guilt-phase evidence apply with equal force to penalty-phase evidence. He essentially asserts that he had a Sixth Amendment right to notice of this evidence. Although that is true, this theory does not afford Storey habeas corpus relie f under our standard of review. As the Missouri Supreme Court not ed, Storey did have notice of, and did expect other victim impact ev idence to be presented at the penalty-phase trial, and this adjudication was not contrary to, or an unr easonable application of, clearly established Supreme Court precedent. The district c ourt correctly denied relief on the notice aspect of this claim.

Substantively, the two victim impact claims deal with the testimony of, in Claim 9, Robert Reidelberge r (a handicapped former stude nt of the victim), Trinje Reidelberger (Robert's mothe r), and Jody Harrison (a long time friend), as well as the exhibits introduced during the testimony of various witnesses. Claim 10 involves the testimony of Lavon Marshall (a neighbor of the victim who heard part of the attack), and Karen Stepson (a friend and co-worker of the victim). The Reidelbergers both testified about the impact Frey had on th em as a teacher, and how Robert, who was set to graduate soon from high school at that point, would never have received a mainstream education without Frey's efforts. Trinje also read a poem that she had composed to commemorate Frey's life. Th e record indicates that Trinje sobbed throughout much of her testimony.-10- Harrison testified that sh e had known Frey for twenty years and was one of her closest friends. Following Frey's death, Harrison began carrying a weapon and checked her apartment and car before enteri ng either. She gave the eulogy at Frey's funeral, though she usually avoided speaking in front of large groups. Over defense counsel's objection, Harrison then read the eu logy at the penalty-pha se trial. Marshall
testified that she heard the assault take place because sh e shared a common apartment wall with Frey. She harbor ed guilt for not calling authorities after hearing the strange noises, had to receive counseling, and she eventually gave up her job. Stepson was
the victim's friend and one of the co-w orkers who initially found Frey's corpse. Stepson had to explain Frey's death to both her children and Frey's students. She was fearful and confused, cried frequently, a nd though she r eceived counseling, she has
been unable to assu age these symptoms.

Defense counsel also objected to the ad mission of the following exhibits during the victim impact testimony: Exhibit 87, a picture of Frey with her co-workers on the school playground; Exhibit 88, a photo of a memorial garden built in her memory; Exhibit 89, a photo of a sign saying that the garden was dedicated to Frey; Exhibit 90, a photo of children and staff releasing balloons to say goodbye to Frey; Exhibit 91, a picture of Frey with her first class of students; Exhibit 92, a drawing done by one of Frey's friends that now hangs at the sc hool; Exhibit 93, a memorial newsletter sent out by the school; Exhibit 95, a photo of Fre y on Santa Claus's lap when she was a young child; Exhib its 105 and 106, photographs of Frey's tombstone including the inscription upon which was a copy of Trinje 's poem; Exhibit 107, a copy of Trinje's poem; and Exhibit 108, a copy of the eulogy.

Storey asserts that the foregoing testim ony and exhibits violated the principles set forth in Payne , 501 U.S. 808. In Payne , the Supreme Court considered the admissibility of penalty-phase testimony by the mother of a deceased victim. The woman testified about the effect of the crime on her surviving young grandson, who
had witnessed the murder of his mother and baby sister and had himself nearly been5 The "fundamentally unfair" due process standard typically means that the petitioner must show that there is a r easonable probability that the alleged error affected the outcome of the trial and thatabsent the impropriety, the verdict likely would have been different . Skillicorn v. Luebbers , 475 F.3d 965, 972 (8th Cir. 2007).

-11- killed by the same attack. The Court heldthat the Eighth Amendment does not erect a per se bar to relevant victim impact evidence or prosecutorial argument on the subject. Id. at 827. The Court held that the victim's mother's testimony was admissible, noting that similar to the defendant's right to present evidence in mitigation during the penalty phase, the "[s] tate has a legitimate interest in . . . reminding the sentencer that just as th e murderer should be considered as an individual, so too the victim is an indi vidual whose death represents a unique loss to society and in particularto [her] family." Id. at 825 (quotation omitted). The state
does not have unfettere d discretion to offer such evid ence, however. If a witness or remark in a particular case so infects th e sentencing proceeding so as to render it fundamentally unfair, 5 the defendant may seek relie f under the Due Process Clause of
the Fourteenth Amendment. Id. In a concurring opinion, Justice O'Connor found the allegedly offending evidence survived the due process analysis because the evidence
was brief and redundant of evidence alr eady admitted during the guilt phase. Id. at 831-33 (O'Connor, J., concurring).

With regard to Claim 9, the Missouri Supreme Court first set forth the governing law that victim impact eviden ce is admissible under the Missouri and
federal constitutions and that the state is allowed to present evidence showing each victim's uniqueness as an indivi dual human being. Storey III , 40 S.W.3d at 909. The court quoted Payneand found that victim impact evidence violates the Constitution only if it is so "unduly prejudicial that it re nders the trial fundamentally unfair." Id. (quotation omitted). With regard to the e xhibits, the court found that all but one–the photograph of the tombstone–were properly admitted because they showed Frey's uniqueness as a human being. The photograph of the tombstone was improper, it said, but was not so unduly prejudicial as to render the trial fundamentally unfair. Id.6 In Storey III , the Missouri Supreme Court noted that "[t]he three trials of this case unfortunately exhibit a consistent attempt by the prosecutor to push the envelope of proper advocacy." 40 S.W.3d at 916.

-12- Payneoffers very little specific guidance about the permissible extent and content of victim impact evidence. The evidence should show the victim's uniqueness as an individual and the resulting loss to so ciety, the evidence mu st be relevant, and not so unfairly prejudicial as to infect the sentencing proceeding and render it fundamentally unfair. Payne , 501 U.S. at 825, 827. Decided in 1991, Payne is the Supreme Court's last word on victim impactevidence. Without more guidance, it is exceedingly difficult to find that a particular state court's decision is contrary to, or an unreasonable application of, the Court' s clearly established victim impact jurisprudence. As the Supreme Court lengthens its silence on the issue, it seems that prosecutors, likely of both the state and fe deral variety, will continue to push the envelope with this type of evidence. 6 At oral argument, counsel for the state audaciously stated that the "state knows what the line is" and presumably does not cross it with excessive displays of victim impact evidence. W ith all due respect, we could not disagree more. As evidenced by th e three penalty-phase trials in this case alone (two of which were re versed and remanded for a new trial based in whole or in part upon improper prosecutorial argument), "the line" is barely decipherable and rarely sacrosanct in these highly char ged, emotional death penalty trials.

Nonetheless, under our extrem ely deferential standard of review as set forth in § 2254(d), the Missouri Supreme Court's conclu sion that all of the exhibits, save the picture of the tombstone, likely fell with in the vague ambit of permissible Payne evidence, was not contrary to, nor an unreasonable application of, Payne . And while the picture of the tombstone was improper, the Missouri court reasonably concluded that in light of all of the other relevant and admissible evidence pr esented at the third penalty-phase trial, the photo of the tombst one did not render the penalty-phase trial fundamentally unfair–that without the pictur e of the tombstone, the jury would likely
not have rendered a d eath penalty verdict.-13- With regard to the testimony of Trin je and Robert Rei delberger and Jody Harrison, though not pressed by e ither party or the district court, it appears to us that the Missouri Supreme Court failed to adj udicate the substantive facets of their testimony and instead only ruled upon th e late notice aspect. Storey III , 40 S.W.3d at 906-09. Accordingly, we review the substance of the Payneclaim with regard to these three witnesses de novo, rather than under the deferential § 2254 standard, because it was not adjudicated on the merits. SeeMiddleton v. Roper , 455 F.3d 838, 856 (8th Cir. 2006) (holding that where an issue was raised to the state courts, but ignored, we review the district court's factfindings for clear error and conclusions of law de novo).

The district court found that this testimony by Frey's friends, including reading poems and/or eulogies, was the type of ev idence that has previously been considered permissible under our precedent construing Payne . The testimony about Frey's impact
on the lives of children was allowable becau se this demonstrated her activities and involvement in the community, and the loss due to her death. The district court also held that the evidence was not unduly prej udicial because it added little to the uncontested testimony of Frey's mother.

We agree with the district court's analysis that the testimony of both Reidelbergers and Harrison fall within the range of testimony allowable by Payne

. Trinje, Robert and Harrison we re all close friends of Fre y and their testimony revealed Frey's uniqueness as an individual. Whilesome of Harrison's testimony did wander
into the arena of what effect the death had on Harrison's life–that she carried a weapon and checked her car and apartment before entering–as opposed to simply describing Frey as an individual, it was not enough to render the trial fundamentally unfair. Harrison's testimony on these points was relatively brief, especially in the context of the entire penalty-phase proceed ing. And while we are troubled by the record which indicates that Trinje was crying throughout much of her testimony, which included reading her poem, our limited guidance from Payne does not allow us-14- to conclude that the emotional presentati on of this particular evidence–which clearly
was the type of evidence contemplated by Payne–constituted a violation of due process. In other words, the fact thatTrinje was extremely emotional during her testimony did not so infect the proceedings so as to render th e trial fundamentally unfair. Consequently, the district court did not err in denying relief based upon the victim impact evidence in Claim 9.

In Claim 10, Storey challenges the testimony of Stepson (the co-worker who found Frey's body) and Marshall (the neighbor who heard the attack). The Missouri Supreme Court adjudicated this claim on the merits. The court quoted Payne and
noted that the state trial court has disc retion to admit "whatever evidence it deems helpful to the jury in assessing punishment." Storey III , 40 S.W.3d at 908 (quotation omitted). The court further reiterated the Payneprinciples that vi ctim impact evidence is simply a "'method of informing the sentencing authority about the specific harm caused by the crime in question,'" and th at trial judges have great discretion in allowing this testimony. Id. (quoting Payne , 501 U.S. at 825). The Missouri Supreme Court ultimately denied the claim, holding th at because Marshall and Stepson testified about the specific harm caused by Storey, th e trial court did not abuse its discretion in admitting this testimony. Storey III , 40 S.W.3d at 908.

Storey argues this formulation was contrary to Paynebecause the "whatever evidence it deems helpful" stat ement is an incorrect statem ent of the law as set forth in Payne . As noted above, Payne held that relevant vic tim impact evidence should be treated as any "other relevant evidence is treated." Payne501 U.S. at 827. Relevant evidence, of course, is evid ence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evid ence." Fed. Rule of Evid. 401. While relevant evidence is not exp licitly defined as "helpful" ev idence, the words "relevant" and "helpful" are not uncommonly used t ogether in describi ng admissible evidence. See, e.g. , United States v. Santana , 150 F.3d 860, 863 (8th Ci r. 1998) (concluding that expert testimony was admissible because it wa s relevant and helpful). Furthermore,7 Storey further cites Penry v. Lynaugh , 492 U.S. 302 (1989), rev'd on other grounds by Atkins v. Virginia , 536 U.S. 304 (2002), for the proposition that the jury's verdict should be a reasoned moral response to the evidence, Penry , 492 U.S. at 319, and argues that the principles of Penry were violated by the Missouri Supreme Court's decision. Penry involved the Supreme Court's determ ination that the jury should have been allowed to consider evidence of th e petitioner's mental retardation and childhood abuse in the mitigation portion of his penalty-phase trial. Id. at 322. We understand the broad legal principle that Storey is attempting to advance, but upon the record before us, we cannot conclude that th e Missouri Supreme Court's decision was contrary to, or an unreasonable application of, clearly established Supreme Court law as set forth in Penry and we focus our analysis upon Payne

.

-15- as we have previously noted, a state court decision may be incorrect; yet we will grant relief only if the state court decision is also objectively unreasonable. McGehee , 588 F.3d at 1193. Accordingly, we turn to th e question of whether the Missouri Supreme Court's adjudication of Claim 10 was c ontrary to, or involved an unreasonable application of, Payne

. 7

Most of the testimony of Stepson, like th e testimony at issue in Claim 9, clearly falls into Payne 's permissible category. Stepson described Frey's teaching abilities and her value as a friend. But, like Harris on's testimony, some of Stepson's testimony included the effect Frey's murder had on Stepson's life as opposed to simply describing Frey as an indi vidual. Marshall's testimony, however, is even more problematic. Marshall was not a friend of Fre y's and had only met her in passing. Her testimony was focused on the things she h eard the night of the murder, and the devastating impact of Frey's murder on her life, but not at all on the unique characteristics of Frey as an individual.

Under our extremely deferential standard of review, and returning to the definition of what is "contrary to" or an "unreasonable application" of Supreme Court precedent, we cannot grant relief on this cl aim under § 2254(d). As previously noted, a state court's decision is contrary to Supreme Court precedent if it applies a rule8 Though not necessarily probative on the i ssue of whether the Missouri court's decision was an unreasonable application of Supreme Court precedent, in United States v. Bolden , 545 F.3d 609, 627 (8th Cir. 2008), cert. denied , 130 S. Ct. 796 (2009), a direct appeal of a federal death penalty case, we heldthat testimony by a witness who assisted the victim was admissible under Payne , and part of that testimony included the impact the traumatic experience had on the witness's life. -16- contradicting the Court's governing law or if, upon the same or similar facts as a decision of the Court, it arrives at a di fferent result than the Court. Taylor , 529 U.S. at 405-06. And the decision is an unreasonable application of clearly established Supreme Court law if it unreasonably applies the correct governing rule to the facts of the prisoner's case. Id. at 407-08. Storey cannot prev ail under either of these tests. Factually speaking, Payneinvolved a rather generic (at this point in time) version of victim impact evidence–the victim's mother testifying about the impact of the murder on the victim's son. It certainly did not involve the testimony of a neighbor who barely knew the victim and whose testim ony focused upon the dramatic impact that the murder had upon her life. However, the governing legal principles of Paynedid

not prohibit 8 such testimony either, and Marshall's testimony arguably informed "the sentencing authority about the specific harm caused by the crime in question." Payne
, 501 U.S. at 825. Because Marshall's testimony arguablyfalls within the ambit of Payne , we simply cannot conclude that the stat e court's adjudication of this matter was an unreasonable application of Supreme Court precedent, seeTaylor , 529 U.S. at 411- 12 (discussing the distinction between a state court's erroneous app lication of federal
law and an unreasonable application), or contrary to clearly established Supreme Court precedent, seeThaler v. Haynes , 130 S. Ct. 1171, 1174 n.2 (2010) (per curiam) ("A legal principle is 'clearly establishe d' within the meaning of [§ 2254] only when it is embodied in a holding of [the Supreme] Court.").

Finally, even if the testimony of Marshall and Stepson was improper, we conclude that Storey was not prejudiced by its admission. Payne501 U.S. at 825. In light of all of the other evidence, includi ng the other properly admitted victim impact testimony and the grisly nature of Storey's crime, it is unlikely that the allegedly9 The "pecuniary gain aggravator" is one of the aggravating circumstances the trial court submitted to the jury during each of the three penalty-phase trials. This aggravating circumstance instruction aske d the jury to consider whether Storey murdered Frey for the purpose of receiving money or any other thing of monetary value from Frey. Storey III , 40 S.W.3d at 914. -17- improper admission of this testimony rendere d the penalty-phase trial fundamentally unfair. The district court did not err in denying relief on Claim 10.

2. Pecuniary Gain Aggravator

At Storey's first two penalty-phase proceedings, the jury failed to find the "pecuniary gain" aggravating circumstance, 9 but instead found the existence of other statutory aggravators en route to recommending sentences of death. In Claim 14 of his petition for habeas corpus, Storey conte nds that the submission of the pecuniary gain aggravating circumstance to the third jury violated the constitutional prohibition against double jeopardy. The Missouri Supr eme Court adjudicated this claim on the
merits and denied it. The court noted that "aggravating circumstances" submitted to the jury were not separate o ffenses or penalties, but inst ead were "'standards to guide the making of [the] choice'" between the alternative verdicts of death and life imprisonment. Storey III , 40 S.W.3d at 914 (alteration inoriginal) (quoting Poland
v. Arizona , 476 U.S. 147, 155-56 (1986) (quotation omitted)). The Missouri Supreme
Court held that under Poland , the failure to find a partic ular aggravating circumstance forms the basis for judgment of acquittal on the imposition of the death sentence only when there is a complete failure to find that any aggravating circumstance exists to support the death sentence. Storey III , 40 S.W.3d at 915. Accordingly, the court denied Storey's double jeopardy arguments. Id.10 Poland's Arizona trials occurred in th e late 1970s or early 1980s, long before the Supreme Court's 2002 holding in Ring that death penalty aggravators must be found by a jury to be in accord with the Sixth Amendment. Ring , 536 U.S. at 609. -18- In Poland , an Arizona court 10sentenced the petitioner to death based on one aggravating circumstance–that the crime was unusually heinous, cruel or depraved.
The trial court did not find the existence of the "pecuniary gain" aggravator. On direct appeal, the Arizona Court of Appeals f ound that there was insufficient evidence to support the "heinous, cruel or depraved" ag gravator and remanded the case for this and other reasons. Importantly, the Arizona C ourt of Appeals also noted that the trial judge improperly rejected the "pecuniary gain" aggravator ba sed upon an erroneous legal conclusion, a nd noted that if Poland were convicted at the next trial, the court "may find the existence of [the pecuniary gain] aggravating circumstance." State v.
Poland , 645 P.2d 784, 801 (Ariz. 1982). Upon remand, Poland was again convicted and the trial court once more imposed the death penalty, this time based upon both the "heinous, cruel, or depraved" aggravator , the "pecuniary gain" aggravator, and a newly injected aggravator based upon a prior violent conviction. Both the conviction and sentence were affirmed on direct appeal . In the petition for habeas corpus, Poland argued that the state court of appeal's decisi on in his first direct appeal was effectively an "acquittal" of the death penalty, and that the Doubl e Jeopardy Clause barred the state from pursuing and imposing the death penalty in the second trial.

The Supreme Court held that, indeed, the Double Jeopardy Clause does prohibit a second death sentence when an earlier pr oceeding resulted in an acquittal of the
death sentence. Poland , 476 U.S. at 152. However, unde r the facts of Poland's case, he was not entitled to relief, because he wa s never "acquitted" of the death penalty.
Id. at 155. Instead, at each stage of the protracted proceedings, there was never a finding that the prosecutor had failed to pr ove its case that the death penalty was appropriate. Id. Importantly, the Court noted that"[a]ggravating circumstances are not separate penalties or offenses, but ar e 'standards to guide the making of [the]
choice' between the alternative verdicts of death and life imprisonment." Id. at 15611 Both parties discuss Ring v. Arizona , 536 U.S. 584 and Sattazahn v. Pennsylvania , 537 U.S. 101 (2003). Again, both of these cases were decided after Storey III and cannot be the basis for clearly established Supreme Court precedent. -19- (second alteration in original) (quoting Bullington v. Missouri , 451 U.S. 430, 438 (1981)). The Court remarked that if duri ng any of the sentencing proceedings the fact finder had determined that no aggravati ng circumstances were supported by the evidence, Poland's argument would have been successful. Poland , 476 U.S. at 156-57.

In adjudicating Storey's pecuniary gain claim, the Missouri Supreme Court found that the principles set forth in Polandwere not violated because Storey was sentenced to death by each of th e penalty-phase juries. Furthe r, neither of the first two
cases was reversed on the basis that there was insufficient eviden ce of the aggravators in order to impose the death penalty. Storey III , 40 S.W.3d at 914-15. The Missouri Supreme Court also rejected the notion th at the Supreme Court's Sixth Amendment decisions, Jones and Apprendi , had changed this analysis in any way. Id. at 915.

The Missouri court's adjudication of this claim was not contrary to, and did not unreasonably apply, Supreme Court precedent. The court very appropriately analyzed and applied Poland , and determined that relief was not warranted. Storey's argument is strikingly similar to the argument made by the Polandpetitioner. Based upon the Supreme Court's definition of "acquittal" in the context of a death sentence as explicated in Poland , Storey has never been acquitted of the death penalty. The state court correctly dispatched its duties under § 2254(d). 11 This point is without merit.

3. Ineffective Assistance of Counsel

A claim of ineffective assistance of c ounsel is governed by the performance and prejudice standard set forth in Strickland v. Washington , 466 U.S. 668 (1984). Under the performance prong, the court must appl y an objective standard and "determine whether, in light of all the circumstances, the identified acts or omissions were outside-20- the wide range of professiona lly competent assistance," id. at 690, while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Id. at 689. Assuming the performance was deficient, the prejudice prong requires proof "that there is a reas onable probability that, but for counsel's unprofessional errors, the result of the pro ceeding would have been different." Id. at 694.

Storey alleges that he received ineff ective assistance of counsel during the 1991 guilt-phase trial when trial c ounsel failed to investigate the defense that Storey was unable to deliberate on the day of the murder. Storey alleges that three doctors would have testified that Storey was unable to deliberate due to his state of extreme intoxication. Storey raised this clai m in his 1992 post-conviction case, and the argument was rejected by the state post- conviction court. The court found the evidence lacked credibility and conflicted w ith Storey's testimony. However, Storey did not appeal this finding in his state post-conviction appeal, and it is therefore procedurally defaulted. The district c ourt found that Storey had not shown cause or prejudice for the default, orthat there was a fundamental miscarriage of justice,
because the deliberation evid ence was not "new" evidence.

Storey contends that this argument is not procedurally defaulted because even though he did not advance it on post-conviction appeal, he did raise it in one of the Rule 91 petitions for habeas corpus. However, our opinion in Sweet v. Delo , 125 F.3d 1144, 1150-51 (8th Cir. 1997) foreclos es this argument. In Sweet , we held that a Rule 91 habeas corpus petition cannot be used to raise a claim that was procedurally defaulted during the post-conviction process. Id. Storey cites a Missouri Supreme Court case holding that Rule 91 relief would be available to a petitioner who can show cause and prejudice or manifest injustice for hi s failure to raise his claims earlier. See State ex rel. Nixon v. Jaynes , 63 S.W.3d 210, 215 (Mo. 2001). Jaynes is distinguishable. The Jaynes court noted that in extrem ely rare circumstances–when a defendant is impeded from complying with the post-conviction rules through no fault of his own, or when the basis for the claim was not earlier available–a state-21- prisoner can use the Rule 91 petition to raise cl aims that could have been raised in the Rule 29.15 post-conviction motion. Id. Neither of those rare circumstances is present here. Storey certainly knew of the basis for the ineffective a ssistance claim because he actually brought the claim in the Rule 29. 15 motion. He simply chose not to appeal
that decision. Absent those rare circumst ances, Rule 91 is not the vehicle for curing a procedural default. Id. The principles announced in Jaynes do not allow Storey's Rule 91 petition to cure the default in this case.

To overcome the procedural default, Stor ey must show cause for not presenting the claim on post-conviction appeal, and pr ejudice from the failure, or a fundamental miscarriage of justice–meaning that he is actually innocent. Coleman v. Thompson
, 501 U.S. 722, 748, 750 (1991); Schlup v. Delo , 513 U.S. 298, 324-27 (1995). Storey cannot make the threshold showing of cause . He certainly knew of the claim because it was brought in the Rule 29.15 petition. And Thompsonmakes clear that state postconviction counsel's errors cannot form the basis for the cause to excuse a procedural
default. 501 U.S. at 755-57.

Nor can Storey establish a fundamental mis carriage of justice: that he is actually innocent. In order to establish this, a petitioner must present new reliable evidence
that he was innocent of the crime of which he was convicted. House v. Bell , 547 U.S. 518, 537 (2006). Storey's ev idence is not "new," that is, evidence "that was not
available at trial." Nance v. Norris , 392 F.3d 284, 291 (8th Cir. 2004). But even assuming that the evidence was newly discovere d, he is not entitle d to relief. The state post-conviction court's finding that th e evidence lacked credibility and conflicted with Storey's testimony is a factual findi ng which we presume to be correct. 28 U.S.C. § 2254(e). And, the district court's assessment of Storey's "new" evidence was not clearly erroneous. Wooten v. Norris , 578 F.3d 767, 782 (8th Cir. 2009) (standard of review). The district court found thatStorey's evidence of actual innocence would likely not have resulted in the jury findi ng him innocent of the murder because the evidence was "not particularly convinci ng and easily marginalized by the State." Storey v. Roper , No. 4:05-CV-2073, 2008 WL 25185 51, at *12 (E.D. Mo. June 16,12 However, even in Rousan , the court held that while prosecutors "should avoid . . . any suggestion that the jury is weak if it fails to return a certain verdict," the court did not reverse Rousan's convi ction, and instead held thatwhile improper, this remark was an isolated part of the larger and otherwise appropriate closing argument. Rousan , 961 S.W.2d at 851. We also note thatduring the pretrial motion in limine hearing, defense counsel did, in fact, reference Rousan

. -22- 2008). While the proffered experts' opinions suggested that Storey could not formulate the mens rea for murder, the district court was entitled to, and did, consider these proffered opinions in the context of a ll of the other evidence the jury would have considered, including the state' s contrary evidence. SeeWooten , 578 F.3d at 782. Accordingly, the district court did not cl early err in evaluating this evidence, and properly found that this claim was procedurally defaulted.

In Claim 39, Storey alleges that he received ineffective assistance of counsel when his counsel failed to object to two as pects of the prosecutor's closing argument. In the first, Storey complains about th e portion of closing argument wherein the prosecutor equated the jury's possible "mercy " with "weakness." Storey's trial counsel filed a motion in limine to exclude this argum ent, which the trial court denied, but the trial court warned the prosecutor to refrainfrom suggesting that a life sentence equates to the jury showing "weakness." Noneth eless, the prosecutor made a statement equating "mercy" with "weakness" during th e closing argument of the third penaltyphase trial. Counsel objected to the stat ement as being an "improper personalization" and the objection was sustained, but Storey contends that counsel should have also referenced, as part of the objection, a th en-recent Missouri Supreme Court case, State
v. Rousan , 961 S.W.2d 831 (Mo. 1998). Stor ey alleges that in Rousan , the Missouri Supreme Court held that a similar argument was improper. 12

The Missouri Supreme Court rejected St orey's argument, essentially holding that because the underlying claim based upon Rousanwas not a congnizable error, the
ineffective assistance claim also failed. Storey IV , 175 S.W.3d at 154. We agree that Storey did not receive ineffective assistan ce of counsel based on counsel's failure to-23- reference Rousan , because in Rousan , the prosecutor used nearly the exact same phrase as in Storey's case, and while th e Missouri Supreme Court did not approve of the language, it did not reverse. Rousan , 961 S.W.2d at 851. There is no reason to believe the Missouri Supreme Court would ha ve reversed in Storey's case even if
Rousan had been referenced, especi ally because the trial court sustained counsel's objection to the statement. This ineffectiv e assistance claim is without merit, and the Missouri Supreme Court's failure to grant re lief on this basis was not contrary to, or an unreasonable application of, Strickland

.

Also in this claim, Storey argues th at counsel was ine ffective for failing to object to the following portion of closing argument by the prosecutor:

I don't want to get into the business of measuring the value of one life against another, but I don't think ther e is any debate that Jill Lynn Frey was a fine woman. You know most of us in this life go through our lives and don't do a great deal of harm and we don't do a great deal of good either, but this woman was doing a lot of good. And another part of the tragedy is that that's been seized from us and taken from us.

Storey IV , 175 S.W.3d at 154.

A version of this claim was part of th e basis for post-conviction relief after Storey's first trial. Storey I , 901 S.W.2d at 902. In closing argument at the first penalty-phase trial, the pr osecutor had stated: "Whose life is more important to you?
Whose life has more value? The Defe ndant's or Jill Lynn Frey's?" Id. In Storey I , the Missouri Supreme Court reversed for a new penalty-phase trial because trial counsel failed to object to this and other impr oper arguments by the prosecutor. Id. at 902-03. In Storey IV , the Missouri Supreme Court adjudicat ed Storey's current claim on the merits and found that the prosecutor's stat ement did not mischaracterize the law and that any objection to it would not have beensustained. Accordingly, counsel could not have been ineffective for failing to make a non-meritorious objection. Storey IV
, 175 S.W.3d at 154-55.-24- Storey argues that the Missouri court unreasonably applied Stricklandbecause there is no meaningful distinction between the reversible-error argument in Storey I
, and the allowed argument in Storey IV . We disagree, and fi nd that the Missouri Supreme Court did not unreasonably apply Strickland . Unlike the 1991 closing argument, the 1999 closing argument simply highlighted the victim impact evidence that Frey's death was costly to her family, friends, and the community and did not make a point of comparing lives. We agr ee that any objection to the argument would have been overruled. Accordingly, the Mi ssouri Supreme Court's conclusion that no
Stricklandviolation occurred was not contrary to Stricklandor unreasonable. The district court properly denied this ineffective assistance of counsel claim.

III. CONCLUSION

Storey was sentenced to death by three different Missouri juries, over the course of eight years. His case was carefully revi ewed by the Missouri courts, and in fact the Missouri Supreme Court twice reversed his death sentence. While we are concerned about the seemingly expandi ng and overarching role of victim impact evidence in capital cases, under the current state of S upreme Court precedent we cannot reverse the denial of habeas corpus relief on th is basis. Accordingly, we affirm.

GRUENDER, Circuit Judge, concurring in part and concurring in the judgment.

I write separately to express my partial disagreement with the analysis of Storey’s claims concerning “v ictim impact evidence” in s ection II.B.1 of the majority opinion. In particular, I do not join inthe opinion’s thinly-veiled criticism of Payne
v. Tennessee , 501 U.S. 808 (1991), the governing S upreme Court precedent regarding the admissibility of victim impact evidence in capital sentencing trials. Nor do I join in the opinion’s grudging application of the standard set out in Payne to the disputed evidence in this case. Because I agree withthe majority’s conclusion that Storey is not entitled to relief on the relevant claims, I concur in the judgment as to those claims. I concur in the rest of the majority opinion without reservation.-25- Perhaps the most troubling aspect of the majority opinion is its seeming unwillingness to accept Payne ’s central premise—that vi ctim impact evidence should not be treated differently than other relevant evidence. Before Payne , victim impact evidence was verboten, for the Supreme Court had held in Booth v. Maryland , 482 U.S. 496 (1987), and South Carolina v. Gathers , 490 U.S. 805 (1989), “that the Eighth Amendment prohibits a capital sentencing jury from considering ‘victim impact’ evidence relating to the personal characteristic s of the victim and the emotional impact of the crimes on the victim’s family.” Payne , 501 U.S. at 817. The Court granted
certiorari in Payne to reconsider the holdings in Booth and Gathers , which it said had “unfairly weighted the scales in a capital trial” by placing “virtually no limits . . . on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances” while barring “the State . . . from either offering ‘a quick glimpse of
the life’ which a defendant ‘chose to exti nguish,’ or demonstrating the loss to the victim’s family and to society which ha s resulted from the defendant’s homicide.” Id. at 822 (internal citation omitted) (quoting Mills v. Maryland , 486 U.S. 367, 397 (1988) (Rehnquist, C.J., dissenting)). The Court announced that it was “now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworth iness, it should have before it at the sentencing phase evidence of the speci fic harm caused by the defendant.” Id. at 825. Accordingly, the Court held that “if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth
Amendment erects no per se bar.” Id. at 827.

After Payne , victim impact evidence is no l onger to be treated as a separate category, subject to special constitutional restrictions. As the Court explained,

[a] State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evid ence differently than other relevant evidence is treated.13 According to the majority, “the Miss ouri Supreme Court failed to adjudicate the substantive facets of [Trinje Reidelb erger’s, Robert Reidelberger’s, and Jody Harrison’s] testimony.” Ante , at 13. I disagree. The relevant part of Trinje Reidelberger’s testimony consisted of read ing the poem she wrote about the victim, Jill Frey, and the relevant part of Jody Harrison’s testimony consisted of reading the eulogy she gave at Frey’s funeral. I am convinced that the Missouri Supreme Court rejected Storey’s challenges to this te stimony on the merits, stating that “[t]hough reading a poem or eulogy may not be appropriate in every case, the writings in this case were read into evidence by their respective authors.” Storey III, 40 S.W.3d at 909. The court went on to say that “[c]lear ly, either author could have testified about the victim without the aid of a writing,” a nd concluded that “[t]he prosecutor’s choice to use the recorded recollection simply does not result in unfair prejudice under these -26- Id. Of course, this does not mean that vi ctim impact evidence is completely immune from constitutional scrutiny. On the c ontrary, “[i]n the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair,
the Due Process Clause of the Fourteen th Amendment provides a mechanism for
relief.” Id. at 825 (citing Darden v. Wainwright , 477 U.S. 168, 179-83 (1986)).

Here, Storey asserts that some of the victim impact evidence introduced in his third penalty-phase trial exceed ed the limits established in Payne . More specifically, Storey challenges the admissibility of certain exhibits, see ante , at 10, as well as the testimony of Trinje Reidelberger, Robe rt Reidelberger, Jody Harrison, Lavon Marshall, and Karen Stepson, see ante , at 9-10. The Missouri Supreme Court rejected Storey’s claims concerning th is evidence on the merits. State v. Storey ( Storey III ), 40 S.W.3d 898, 908-09 (Mo. 2001). The ques tion, then, is whether the Missouri Supreme Court’s adjudication of these claims “resulted in a decision that was contrary to, or involved an unreasonable applicati on of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

Curiously, the majority decides not to apply the deferential standard set out in § 2254(d)(1) to Storey’s claims concerning the testimony of Trinje Reidelberger, Robert Reidelberger, and Jody Harrison. 13 See ante , at 13. Nevertheless, the courtfacts.” Id. The Missouri Supreme Court did not mention Robert Reidelberger’s testimony in this section of its opinion. But in the section dealing with Storey’s claim concerning the late disclosure of certain victim impact evidence, see ante , at 5-6, the court noted that “[t]he mere fact that oneof the witnesses [Robe rt Reidelberger] was confined to a wheel chair” did not affect its analysis, see Storey III, 40 S.W.3d at 907. In any event, Storey does not meaningf ully argue that Robert Reidelberger’s testimony made his trial fundamentally unf air—and I can see no remotely plausible basis for such an argument—so I would hold that Storey has abandoned the portion of his claim relating to Robert. See Friends of Lake View Sch. Dist. Incorporation No. 25 v. Beebe , 578 F.3d 753, 763 n.13 (8th Cir. 2009). -27- finds on de novo review that Storey is not entitled to relief on the relevant claims. See

ante , at 13-14. Applying § 2254(d)(1) to the rest of the disputed evidence, the majority concludes that Storey has not shown that the Missouri Supreme Court’s adjudication of his claims resulted in a decision that was either contrary to, or involved an unreasonable application of, Payne v. Tennessee , the governing Supreme Court precedent. See ante , at 14-17. The outcome the majority reaches is undoubtedly correct, so I concur in the judgment as to these claims.

Although I agree with much of the analys is in section II.B.1, there are three points of disagreement that prevent me from joining that portion of the majority opinion in full. First, it seems to me thatthe narrow scope of judicial review under § 2254 ordinarily does not leave room for th is court to criticize the existing state of Supreme Court precedent, to i nvite the Supreme Court to expand on or refine existing precedent, or to chide prosecutors who havenot transgressed existing precedent. Yet the majority opinion does all of those thi ngs. I do not agree with the majority’s suggestion that the standard set out in Payne is “vague,” “barely decipherable,” or
otherwise unworkable. See ante , at 12. The Court in Payne held that victim impact evidence is not subject to special constitutional restrictions, so the Court should not be faulted for announcing a ge neral standard rather than a list of specific rules.
Because Payne sets out a general sta ndard, I would find thatPayne calls for case-bycase adjudication of claims concerning vi ctim impact evidence based on generally14 It is entirely possible that Storey will seek review in the Supreme Court and that the Court may decide to use this case as a vehicle for reconsidering Payne . So far, however, the Court has consistently dec lined to revisit its stance on victim impact evidence, which has remained undisturbed for nearly two decades. See, e.g.
, Kelly v. California , 555 U.S. ---, 129 S. Ct. 564 (2008) (denying the petitions for writs of certiorari in two capital cases where juries were shown video memorials dedicated to the victims); see also Kelly v. California , 555 U.S. ---, 129 S. Ct. 567, 568 (2008) (Breyer, J., dissenting from denial of certiorari) (des cribing one of the video memorials as “poignant, tasteful, artistic, and, above all, moving”). But see Kelly , 129 S. Ct. at 567 (Stevens, J., statement respec ting denial of certiorari) (“Having decided [in Payne ] to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor’s side of the scal e in death cases, the Court has a duty to consider what reasonable limits should be placed on its use.”); Kelly , 129 S. Ct. at 568 (Breyer, J., dissenting from denial of certiorari) (“[E]x amples can help elucidate constitutional guidelines. And in my view, the Court shoul d grant certiorari and consider these cases in an attempt to do so.”). -28- applicable principles of due process. In turn, I would hold that federal courts reviewing adjudications of such claims under § 2254(d)(1) must accord state courts even greater latitude reasonably to decidewhether a convicted defendant has shown
fundamental unfairness. See Yarborough v. Alvarado , 541 U.S. 652, 664 (2004) (“[E]valuating whether a rule applicati on was unreasonable requires considering the rule’s specificity. The more general the rule , the more leeway courts have in reaching outcomes in case-by-case determinations.”). In this instance, Storey plainly has not
shown that he is entitled to relief under § 2254(d)(1). Indeed, even if we reviewed all of the disputed victim impact evidence de novo, Storey would not come close to showing that the evidence was so unduly pr ejudicial that it rendered his trial fundamentally unfair.

In light of the foregoing considerations, there is simply no need for handwringing about where “the line” is located; Payne teaches that the line is in the same place for victim impact ev idence as it is for othe r types of evidence. Cf. ante , at 12. Likewise, I see no pressing need to entr eat the Supreme Court for “more guidance” about the permissible scope of victim impact evidence. Cf. ante , at 12. 14While I do15 The majority opinion insinuates that the reason the Missouri Supreme Court twice reversed Storey’s death sentence had something to do with the misuse of victim impact evidence in Storey’s first two penalty-phase trials. See ante , at 12. But the error in Storey’s second penalty-phase trial—the trial court’s refusal to instruct the jury that no adverse inference could be drawn from Storey’s decision not to testify—certainly had no connection to the disputed victim impact evidence in this

case. See State v. Storey ( Storey II ), 986 S.W.2d 462, 463-65 (Mo. 1999). And, as far as I can tell, the four errors in the pros ecutor’s closing argument in Storey’s first penalty-phase trial also had nothing to do with the disputed victim impact evidence in this case. See State v. Storey ( Storey I ), 901 S.W.2d 886, 900-02 (Mo. 1995) (finding that the prosecutor argued facts outsi de the record, personalized his argument to the jury, improperly argued that the vic tim’s brother would have been justified in killing Storey if he had discovered Storey attacking the victim, and improperly argued that the jury must weigh the value of Stor ey’s life against the value of the victim’s life). -29- not necessarily endorse all of the choices made by the prosecutors who tried this case, I see no plausible basis for finding that thei r conduct in the third penalty-phase trial infringed Storey’s constitutional rights. 15 Thus, I would refrain from directing gratuitous reproofs to trial counsel (or counsel on appeal), and I would not accuse other state and federal prosecutors of “pus h[ing] the envelope with this type of evidence,” ante , at 12.

The second point of disagreement relate s to the majority opinion’s expressions of concern regarding the testimony of Jody Harrison, Karen Stepson, and Lavon Marshall. The majority opinion suggests in several places that Harrison’s, Stepson’s, and Marshall’s testimony is problematic inso far as each witness discussed the impact of the murder on her own life, as oppos ed to merely describing “the unique characteristics of [the vic tim] as an individual.” See, e.g.
, ante , at 15. The majority identifies Marshall’s testimony as the most problematic because her testimony focused exclusively “on the things she heard the night of the murder,” ante , at 15 (recall that Marshall heard the murder through the apartment wall she shared with Frey, her neighbor and acquaintance, ante , at 9-10), along with “the devastating impact of16 Describing Marshall’s testimony as especially “problematic,” ante , at 15, also seems inconsistent with this court’s holding in United States v. Bolden , 545 F.3d 609 (8th Cir. 2008), cert. denied , 558 U.S. ---, 130 S. Ct. 796 (2009), which the majority opinion cites in footnote 8. Wh ile the majority suggests that Bolden is “not necessarily probative” given the di fferent posture of this case, ante , at 16 n.8, I have no doubt that Bolden is relevant. If nothing else, Bolden decisively refutes Storey’s assumption that testimony about trauma suffered by a surviving witness is per se irrelevant and unduly prejudicial. See Bolden , 545 F.3d at 627 (holding that testimony by a co-worker who assisted the victim after the victim was shot was “clearly admissible,” even though the testimony include d a description of “the impact that experience had on the witness’s life”). -30- Frey’s murder on her life,” ante , at 15. This comports with the district court’s finding that Marshall’s testimony “was at the boundary of acceptable victim impact evidence.” Storey v. Roper , No. 4:05-cv-2073, 2008 WL 2518551, at *40 (E.D. Mo. June 16, 2008).

Here again, the majority seems unwilli ng to embrace the proposition that, after Payne , victim impact evidence is no longer to be treated as a separate category, subject to special constitutional restrictions. Yet the majority opinion does not explain why evidence about the adverse effects of a murder on surviving witnesses should be considered particularly dubious—much less categorically inadmissible—under Payne

. I am convinced that the di sputed testimony about the impact of Storey’s heinous crime, including Marshall’s testimony about the torment she has suffered, qualifies as “evidence of the specific harm caused by the defendant” and thus does not pose a constitutional problem. See Payne , 501 U.S. at 825. In the end, the majority acknowledges that Payne does not expressly prohibit such testimony, ante , at 16, so its earlier expressions of concern ring hollow. 16 See also ante , at 16 (conceding that “Marshall’s testimony arguably falls within the ambit of Payne ”).

The third and final point of disagreem ent concerns the majority’s apparent distress over the fact that Trinje Rei delberger cried durin g her testimony. See ante
, at 14 (“[W]e are troubled by the record which indicates thatTrinje was crying-31- throughout much of her testimony . . . .”). It strains the judicial imagination to
envision a scenario in which a witness’ s “emotional presentation” of otherwise admissible evidence, see ante , at 14, could singlehandedly result in fundamental unfairness. Why the majority gives any cr edence to Storey’s empty rhetoric on this issue is puzzling.

I am not aware of any authority, from th is circuit or elsewhere, that would justify granting relief to Storey on the ground that Trinje Reidelberger wept while testifying. There is, however, authority th at virtually compels us to reach the opposite
conclusion. See, e.g.
, United States v. Johnson , 495 F.3d 951, 977 (8th Cir. 2007) (rejecting the defendant’s argument that a “tearful and emotional reading of [a] poem” rendered her trial fundamentally unfair); United States v. Nelson , 347 F.3d 701, 712- 14 (8th Cir. 2003) (rejecting the defendant ’s argument that the “emotional and, on occasion, tearful testimony” of six victim impact witnesses, including one witness who “was unable to compose herself,” rende red his trial fundamentally unfair). I therefore agree with the majority’s finding th at Storey’s trial was not “so infect[ed]” by Trinje Reidelberger’s display of emotion “as to render the trial fundamentally
unfair.” Ante , at 14. But I see no good reason for this court to suggest that Trinje Reidelberger fell short of an immutable st andard about how w itnesses must conduct themselves. The Constitution does not demand witnesses to act like automatons, devoid of human feeling. It should come as no surprise that some witnesses will be
overcome with emotion when called on to testify about a friend or family member
who has been murdered. I am confident th at state and federal trial courts are fully capable of responding appropriately in those circumstances both to protect the defendant’s right to a fair trial and to ensure that th e witness is treated with respect.

For the foregoing reasons, I concur in the judgment as to Storey’s claims concerning victim impact evidence, and I c oncur in the rest of the majority opinion.

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