### The Honorable Donald F. Stohr, United States District Judge 1 

### for the Eastern District of Missouri. ___________ No. 95-3652

___________ Elroy Preston, * * Appellant, * Appeal from the United States * District Court for the v. * Eastern District of Missouri. * Paul K. Delo, Warden, * * Appellee. *

___________ Submitted: September 10, 1996 Filed: November 14, 1996

___________ Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

___________ WOLLMAN, Circuit Judge.
Elroy Preston, a Missouri inmate sentenced to death, appeals fr om the district court's denial of his 28 U.S.C. § 2254 petition. We affirm. 1

I.

After a d ay of drinking and arguing at the home of Ervin Preston on Sept ember 20, 1980, Willie "Pee Wee" Richardson and Betty Klein wen t upst airs to bed, while Ervin, his brother Elroy Preston, and Elroy' s girlfriend, Sherry Brown, remained downstairs. In the early morning hours of September 21, Elroy Preston went upstairs and ordered Richardson an d Klein to go back downstairs. When they were downstairs, Preston announced that he would kill

### Preston fil ed a second Rule 91 habeas petition in 1995. The 2 

### Missouri Supreme Court denied this petition, stating that al l claims presented in it were pr ocedurally defaulted. State ex rel. Preston v. Delo , No. 77812 (Mo. 1995) (unpublished). The 199 5 petition a nd the court's order are part of the record in thi s appeal, but Preston makes no arguments regarding his 1995 pe tition. Hence, our opinion will refer only to his 1992 petition.
-2- Richa rdson and Klein after he removed his clothes. After Presto n undressed, he stabbed Richardson several times, killed Klein with a single stab woun d to the neck (severing her spinal cord), then returned to th e still-l iving Richardson and stabbed him several more times. When hi s victi ms were dead, Preston took some fried chicken, dipped it in thei r blood, an d ate it while taunting the victims. Preston then dragged th e bodies into an alley and attempted to clean up the house.

Prest on was convicted of the capital murder of Richardson and th e
sec ond-degree murder of Klein. His convictions were affirmed on direc t appeal, see State v. Preston , 673 S.W.2d 1 (Mo.), cert. denied , 469 U.S. 893 (1984), and the denial of his motion for post-conviction relief wa s also affirmed on appeal. See Preston v. State , 736 S.W.2d 53 (Mo. Ct. App

. 1987) , cert. denied , 484 U.S. 1020 (1988). The Missouri Supreme Cour t subsequently denied Preston's petition for a wri t of habeas corpus and his motion to recall the mandate. State ex rel. Preston v. Delo , No. 7551 9 (Mo. 1 993) (unpublished) (habeas petition); State v. Preston , No. 6418 6 (Mo. 1993) (unpublished) (motion to r ecall the mandate). Preston alleged 2 more than 250 grounds for relief in his section 2254 petition filed in the district court. The district court concluded that the vast majority o f Preston's claims were procedurally barred and rejected his remaining claim s on their merits.

II.
Preston's primary argument on appeal is that the district

### See Brady v. Maryland , 373 U.S. 83 (1963); United States v. 3 

### Bagley , 473 U.S. 667 (1985).

The S tate argues that this appeal is governed by th e 4 

### provisions of the Antiterroris m and Effective Death Penalty Act of 1996, Pu b. L. No. 104-132, § 104, 110 Stat. 1214, 1218-19 (Apri l 24, 1996), which amended section 2254. It urges us to follow the Seventh Circuit's decision in Lindh v. Murphy , 96 F.3d 856, 865-67 (7thCir. 1996) (en banc), petition for cert. filed , (Oct. 14 , 1996) (No. 96-6298) (Act's amendments codified at section 2254(d) applyto pending cases). We have not yet taken a position o n whether the amendments to section 2254 apply to cases that wer e pending on April 24, 1996. Se e Oliver v. Wood , 96 F.3d 1106, 1108 n.2 (8th Cir. 1996); Rehbein v. Clarke , 94 F.3d 478, 481 n.4 (8th Cir. 1996). Because most of Preston's claims are eithe r pro cedurallybarred or fail under the more lenient provisions o f the ol d law, we leave the decision of the issue presented by th e State to a more appropriate case.
-3- court erroneously ruled that his Brady claim was procedurally barred. 3 4 Presto n contends that the prosecutor prevented him from reviewing an d presenting Ervin Preston's medical records at trial. These records show that Ervin was treated in 1974 for severe alcoholism and suggest that he suffered from auditory hallucinations, blackouts, and memory problems. Th e records were in court on the day of trial, subpoenaed by Preston, but the trial court ruled they were inadmissible because of remoteness in time and denied Preston access to the records. Preston argues that these records could have impeached Ervin's ability to clearly discern and to recall , after a day of drinking, whether Preston was sober and knew what he wa s doing at the time of the murders, as Ervin so testified. Preston places great emphasis on Ervin's perceptive ability because Preston's lack o f mental capacity to commit capital murder was the defense at trial. During the direct appeal and state post-conviction proc eedings, none of Preston's attorneys ever obtain ed and reviewed these records. Preston's counsel in this habeas action was the first to do so.
Preston first presented his Brady claim to the Missouri Supreme Court in a Missouri Supreme Court Rule 91 habeas petition

### -4-

in December 1992. On January 25, 1993, the court summarily denie d Preston's petition, stating only: "Now at this day, on consideration of a petition for writ of habeas corpus to the saidrespondent, it is ordered by the co urt [h]ere that the said petition be, and the same is hereb y deni ed." Based on this order, the district court ruled that Presto n procedurally defaulted his Bradyclaim in the state courts.
Preston argues that his claim is not procedurally barred because the Missouri Supreme Court reviewed the merits of his Bradyclaim. He cites two reasons: First, because roughly four weeks elapsed between the time he filed his Rule 91 petition and its denial, and second, because his clai m of newly discovered e vidence was a proper basis for a state habeas claim. See Stat e ex rel. Simmons v. White , 866 S.W.2d 443, 446 (Mo. 1993) (e n banc) (Rule 91 petition "may be used to challenge a final judgment after
an individual's failure to pursue appellate and post-conviction remedies only to raise jurisdictional issues or in circumstances so rare an d except ional that a manifest injustice results."); Wilson v. State , 81 3 S.W.2d 833, 834-35 (M o. 1991) (en banc) (newly discovered evidence can be basis for Rule 91 petition).

Prior to the decision in Simmons , we decided Byrd v. Delo , 942 F.2d 1226 (8th Cir. 1991), a case involving the Missouri Supreme Court's summar y denial of a Rule 91 habeas petition with the sam e language as used in this
case. We stated, "[a]fter Coleman [ v. Thompson , 501 U.S. 722 (1991)] , there is simply no reason to construe an unexplained Rule 91 denial a s ope ning up the merits of a previously defaulted federal issue," becaus e such a denial rests on the Missouri procedural r ule that Rule 91 cannot be used to raise claims that could have been raised on direct appeal or in a timelymotion for post-conviction relief. Byrd , 942 F.2d at 1232. Both before and after Simmons , we have consistently followed Byrd 's rul e regarding unexplained denials of Rule 91 petitio ns. See Reese v. Delo , 94 F.3d 1177, 1181 (8th Cir. 1996); Charron v. Gammon , 69

### -5-

F.3d 8 51, 857 (8th Cir. 1995), cert. denied , 116 S. Ct. 2533 (1996) ; Anderson v. White , 32 F.3d 320, 321 n.2 (8th Cir. 1994); Battle v. Delo , 19 F.3d 1547, 1561 (8 th Cir. 1994) (subsequent history omitted); Blair v. Armontrout , 976 F.2d 1130, 1136 (8th Cir. 1992), cert. denied , 508 U.S. 91 6 (1993).

Pr eston argues that these cases following Byrd are distinguishabl e because none of them involved a claim of newly discovered evidenc e suppressed by the prosecutor. We disagree. We see no reason to deviate fromthe rule enunciated in Byrd , and we decline to create a new body of
cas e law making distinctions between the Missouri Supreme Court' s unexplained summary denials of Rule 91 petitions in various cases.

In any ev ent, to the extent we can read meaning into the Missour i Supreme Court's order, we find that the summary denial rested on Missouri' s procedural rules. While a claim of newly discovered evidence is cognizabl e in a Rule 91 petition , the Missouri Supreme Court has also stated that to
avo id a procedural default a habeas petitioner "would have to establis h that the grounds relied on were not `known to him' while proceeding" on hi s normal post-conviction relief motion. White v. State , 779 S.W.2d 571, 572 (Mo. 1989) (en banc); see also State ex rel. Simmons , 866 S.W.2d at 446-47 ; Reese , 94 F.3d at 1181; Sloan v. Delo , 54 F.3d 1 371, 1382 (8th Cir. 1995), cert. denied , 116 S. Ct. 728 (1996). Preston argues that Ervin's medical records are newly discovered. He also argues that the prosecutor misled Presto n's counsel by misrepresenting the contents of the records a s relating only to Ervi n's diabetes. To the contrary, the trial transcript shows that Preston's attorney knew that the medical records related t o Ervin' s alcoholism and possible psychiatric problems. Simply put, th e basis of Preston's Brady claim was known to him from the day of his trial, and there is no evidence in the record that it c ould not have been further invest igated and raised in his direct appeal or post-conviction relie f motion.

### The State relied heavily on the facts of the crime: Afte r 5 

### arguing with his brother about a matter related to the two v ictims, Preston went upstairs, got the victims out of bed, brought the m downstairs, cut the wire to th e telephone, and briefly argued with them. He told them he would kill them as soon as he undress ed, and then undressed and killed them, twice stabbing Richard multipl e times. Preston then disposed of the bodies, cleaned up the blood in the house, and disposed of blood-soaked evidence. He drove his girlfriend home, then returned and tried to sleep until polic e office rs arrived and he let them into the house. The State als o relied on the lack of evidence that Preston suffered from a mental disease or defect; the existence of motive, based on Preston' s -6- Presto n can lift the procedural bar to his Bradyclaim if he show s
cause and actual prejudice. Coleman v. Thompson , 501 U.S. 722, 750 (1991) ; Reese , 94 F.3d at 1182. Preston alleges as grounds for cause stat e interference, the ineffective assistance of trial and appellate counsel, and mental illness during the pendency of his state court proceedings

. Even if we were to assume in this case that any of these grounds coul d
serve as cause, Preston has failed to demonstrate that he was actuall y prejudiced. "`To demonstrate prejudice, a petitioner must show that the

errors o f which he complains "worked to his actual and substantia l disadvantage, infecting his entire [trial] with error of constitutiona l dimensions."'" Charron , 69 F.3d at 858 (quoting Jennings v. Purkett , 7 F.3d 779, 782 (8th Cir. 1993) (quoting United States v. Frady , 456 U.S

. 152, 17 0 (1982))); see also Zinzer v. Iowa , 60 F.3d 1296, 1299 n.7 (8t h Cir. 1995).

We ha ve reviewed the medical records in question, and we conclud e that they would have had only marginal impeachment value. As the tria l court ruled, the reco rds are remote in time and there is no evidence that the problems for which Ervin was treated reoccurred between 1974 and the time of the killings in 1980. Furthermore, Preston's trial counse l att empted to impeach Ervin by questioning him about his alcoholism, hi s drinking on the day o f the murders, his vague and internally inconsistent testimony, and the serious conflicts between his testimony and that o f Sherry B rown. Moreover, the State did not rely solely on Ervin' s sta tements that Preston was sober and knew what he was doing to prov e Preston's mental capacity to commit capital murder. 5

### arguments with the victims earlier that day; and the testimony of

two police officers who observed Preston at the house after th e murders, one of whom spoke with Preston.
-7- Therefore, we conclude that Preston has not demonstrated he was actually preju diced by his inability to use Ervin's medical records at trial o r counsel's failure to raise the issue on appeal.
Finally, the district court did not abuse its discretion in dec lining to hold an evidentiary hearing on either the procedural bar issue or on th e merits of Preston's c laim. See Keeney v. Tamayo-Reyes , 504 U.S. 1, 11-12 (1992); Sidebottom v. Delo , 46 F.3d 744, 750 (8t h Cir.), cert. denied , 116 S. Ct. 144 (1995).

III.
Preston alleges five instances of pr osecutorial misconduct violating his rig ht to due process, which stemmed from the prosecutor's closin g arguments at the guil t and penalty phases of the trial. Four of the five claims were defaulted in state court because they were not presented o n direct appeal or developed in collateral proceedings. Nave v. Delo , 6 2 F.3d 1024, 1030 (8th Cir. 1995), cert. denied , 116 S. Ct. 1837 (1996)

. Preston argues that the Missouri Supreme Court reviewed the merits of thes e claims in considering his 1992 Rule 91 habeas petition. We reject hi s argu ment on this point for the same reasons we rejected his argumen t regarding his Brady c laim. See section II, supra . Preston has not shown
cause for his default, much less actual prejudice, and these four claims are procedurally barred.

### We conclude that this claim was preserved, despite th e 6 

### district court's unexplained ruling that the claim was proce durally barred

. The State's brief argues the merits of this claim. Se e Sidebo ttom , 46 F.3d at 756-57 (rejecting claim on its merit s despite district court's erron eous finding that claim procedurally defaulted).
-8- The only claim preserved for our review stems from the prosecutor's 6 penalty-phase closing argument, in which he stated:

You know, recently, in New York, Norman [Mailer's] protege , aft er being paroled for murder . . . murdering anothe r individua l . . . and the -- the photograph of the victim i n that particular case, though not particularly eloquent, after the defendant was again sentenced, said, you know, this was in New York, he said, people of New York, people of Ne w York, what do you do at the end of the day with the garbage that you have accu mulated? . . . You throw it out. You don't take it hom e and put it in your refrigerator.

Preston argues that t he reference to a paroled murderer who killed again, combin ed with the statements in his procedurally defaulted claims, "s o fright ened and inflamed the jury that a reasoned and responsibl e determination of the sentence to be imposed was impossible."

We will consider only the specific statement quoted above, and no t the defaulted stateme nts, because the prosecutor's statement stood on its
own. Thi s distinguishes this case from Miller v. Lockhart , 65 F.3d 67 6 (8thCir. 1995), in which we considered the prosecutor's entire penaltyph ase closing argument because that prosecutor's argument created a n "interwoven theme" culminating with the comment leading to the defendant's objection raising the entire, "interconnected," line of argument. Id. at 683. Here, Preston objected to the prosecutor's statement in isolation an d not in relation to any related line of argument.

### -9- Whether an improper closing argument at the penalty phase of a trial rises to the level of a due process violation is determined by

(1) measur[ing] the type of prejudice that arose from th e ar gument; (2) examin[ing] what defense counsel did i n [counsel's] argument to minimize the prejudice; (3) review[ing] juryinstructions to see if the jury was properly instructed; and (4) determin[ing] if there is a reasonable prob ability that the outcome of the sente ncing phase would have been different, taking into account all of the aggravating and mitigatin g circumstances.

Antwine v. Delo , 54 F .3d 1357, 1363 (8th Cir. 1995), cert. denied , 116 S. Ct. 7 53 (1996); Miller , 65 F.3d at 683. We examine the totality of th e circumstances in determining whether there is a reasonable probability tha t the err or complained of affected the outcome of the sentencing phase

. Newlon v. Armontrout , 885 F.2d 1328, 1338 (8th Cir. 1989), cert. denied , 497 U.S. 1038 (1990).

We conclude that this case does not present a close question, an d thus we will not go through each element of the Antwine test. Rather , turning to the ultima te question, we conclude that there is no reasonable probabilitythat this statement more than minimally affected the outcome of the sentencing phase and that the comment did not "`so infect[] th e [sentencing phase] with unfairness as to make the resulting [sentence] a denial of due process.'" Darden v. Wainwright , 477 U.S. 168, 181 (1986) (alterations added) ( quoting Donnelly v. DeChristoforo , 416 U.S. 637, 643 (1974)); Six v. Delo , 94 F.3d 469, 477 (8th Cir. 1996). Preston objected only to the reference to Norman Mailer's protege . That reference does not equate with the comparison between the defendant and notorious mas s murderers that was a part of the improper argument in Newlon , 885 F.2d at 1342, but rather was merely a lead-in for the prosecutor's argumen t regarding the quote about throwing away garbage. The prosecutor's garbage comment was mean-spirited and unnecessary; he sh ould have confined himself to arguing the facts of the case and

### -10-

the aggravating circumstances justifying the death penalty, rather tha n employing a dehumanizing comparison of Preston to a useless, discardable object. Although we strongly disapprove of the prosecutor's comments, we conclude that the cha llenged reference to Norman Mailer's protege did not make Preston's sentencing phase fundamentally unfair or its resul t unreliable.

IV.

Presto n contends that trial counsel was ineffective in severa l respects, each of which was rejected by the district court. An ineffectiv e assistance claim pres ents a mixed question of law and fact; we review the distri ct court's factual findings for clear error, and its lega l conclusions de novo. Sidebottom , 46 F.3d at 752. To prevail, Preston mus t establ ishthat counsel's performance was deficient and that he wa s prejudiced by that deficient performance. Strickland v. Washington , 466 U.S. 668, 687 (1984). We conclude that Preston's attorneys did not perfor m deficientlyregarding any of Preston's claims, and accordingly we do not reach the prejudice issue.

A.

Preston argues that his attorneys were ineffective for failing t o pre sent to examining psychiatrists and the jury information that he ma y have been under the i nfluence of phencyclidine hydrochloride (PCP) on the day of the murders. The Missouri courts rejecte d this claim, finding that the evidence supported the conclusion that Prest on did not tell counsel of his drug use, that counsel could not have independently discovered suc h drug use, and that Preston denied drug use to th e psychiatrists. Preston , 736 S.W.2d at 55.

Like t he district court, we defer to the state court's factua l findings, as they find support in the record made at the post-conviction relief hearing. See 28 U.S.C. § 2254(d) (1994). The

### -11-

record reveals that Sherry Brown did not disclose possible marijuana and PCP use to Preston's counsel until the week before the post-convictio n relief hearing. Preston himself was unsure of whether he had actually use d PCP t he day of the murders, and he twice testified that he had not tol d either the psychiatrists or his own lawyers that he had used PCP the day of the murders. Both psychiatrists retained by Preston denied knowledge of his drug use, and they stated that Preston affirmatively denied using drugs. In light of the finding that counsel did not possess information regarding Preston's drug use and could not have learned of thi s information, counsel did not perform deficiently regarding the PCP issue.

B.

Presto n argues that counsel failed to inform him of his right t o testify and that counsel prevented him from test ifying at the second phase of hi s trial. Based on the testimony developed at the post-convictio n reli ef hearing, the Missouri Court of Appeals and the district cour t rejected these claims. We do likewise. The hea ring transcript shows that both of Preston's attorneys discussed his right to testify with him

. Preston admitted that he knew he had a right to testify at the penalt y phase of the trial an d could have told the judge that he wanted to do so. Preston clearly knew of his right to testify, and there is nothing in the record to indicate that counsel prevented him from doing so.

C.
Finally, Preston argues that counsel was ineffective for failing to present a ny evidence at the penalty phase of the trial. Preston argue s that counsel should h ave presented his testimony, the testimony of family members, and that of mental health experts. Although the decision not to present any evidence at the sentencing phase of a capital trial is one not lightly to be made, there is no

### -12-

per se rule that a failure to present such evidence constitutes ineffectiv e assistance. Laws v. Armontrout , 863 F.2d 1377, 1382, 1386 (8th Cir. 1988) (en banc), cert. denied , 490 U.S. 1040 (1989). Counsel's decision in this
case was the product of reasonable investigation and trial strategy and di d not constitute deficient performance. See id. a t 1382-82 ("[T]he decision not to present evidence at the penalty phase is well within the range of practical choices that are not to be second-guessed, as long as they are based on informed and reasoned judgment.").

Peter Stragand was the attorney resp onsible for presenting Preston's penalty-phase defense. He testified that he did not put Preston on as a wit ness because he thought Preston was "too quiet" and would be a ba d witness. Stragand testified that he did not think that the jury did not lik e Preston or had a "bad feeling towards [Preston] as a person. " Stragand testified that he did not call Sherry Brown to testify because sh e had already testified twice in the guilt phase o f the trial and he did not thin k she would be helpful at the penalty phase. Viewing Stragand' s decisions as of the t ime they were made, see Strickland , 466 U.S. at 689- 90, his decisions regarding whether to call Preston or Brown were strategi c choices based on a re asonable evaluation that Preston and Brown would not have been effective witnesses. Cf. Burger v. Kemp , 483 U.S. 776, 791-92 (1987) (counsel reasonably concluded that it was unwise to put defendant on stand because defe ndant never expressed remorse and might have bragged about crime, causing jury to view him as indifferent or worse).

Pre ston's family members were contacted before trial. Althoug h Stragand did not explain at the post-conviction hearing why he did not cal l themt o testify, counsel was aware that Preston had had a history o f violence towards his family members. Preston ha d been abusive towards his wife, had damaged his mother's home, and had kic ked the windows out of his father's car. His mother had kicked him out of her house shortly before the murders out of fear

### -13-

that Preston would ha rm family members. Stragand's investigation was not inadequate, and he could reasonably have concluded that Preston's family members would not hav e been effective witnesses and might have introduced harmful facts. See Burger , 483 U.S. at 792 (counsel reasonably decided no t to call defendant's mother to testify because pr oposed testimony would not have helped and would have introduced damaging historical facts); Schneide r v. Delo , 85 F.3d 335, 341 (8th Cir. 1996), petit ion for cert. filed , (Oct. 18, 1996) (No. 96-6372) (counsel's decision not to call family members was reasonable because they were "weak and offered l ittle" and because counsel de termined they were too upset by guilty verdict to be effectiv e witnesses); Laws , 863 F.2d at 1390-91 (family members refused to testify
on Laws's behalf, and testimony would have revealed the relatives' total lack of support for Laws). Furthermore, the record does not reveal what Preston's family members would have testified to , so we have no basis upon whichto find that Stragand's judgment on this point was erroneous. Cf. Burge r , 483 U.S. at 792-93 (where nothing was in record regardin g potentiallymitigating nature of proposed witness's testimony, the state of the re cord "d[id] not permit" the court to reach the conclusion tha t counsel's judgment was erroneous).

Both of P reston's attorneys testified that they had planned to call two mental health experts who had examined Preston to testify during the penalty phase of the trial. One of Preston's do ctors diagnosed Preston as sufferi ng from alcohol amnestic disorder, which, while not preventin g Preston from knowing right from wrong, would impair his ability t o willfu llyand deliberately take some actions. Preston's doctors agree d there was also some evidence that Preston had some mental abnormality or impairment related to his alcohol use.

Regardless of whether the doctors' testimony was of some potentia l val ue, Stragand made an informed decision, after deliberation an d consultation with co-counsel, not to present their

### -14-

testimony. The State also had two doctors who had examined Preston, both of whom c oncluded that Preston had no mental disease or defect, nor an y ment al impairment at the time of the crime. Stragand testified tha t essent iallyit would have been Preston's doctors versus the State' s doctors. Furthermore, Stragand knew that if he called Preston's doctors to testify, they would be subject to cross-exami nation regarding the bases of their opinions. This cross-examination would have revealed Preston's pri or history of violence toward his family and Sherry Brown; Preston' s claims that he could not remember the crime, that he was not there, that he did not know the victims, and that his brother Ervin was framing him; Pre ston's prior violent criminal history (although some of this came i n through the State's evidence); Preston's past vi olence towards persons and property; and Preston's history of alcohol-relat ed blackouts and outbursts of temper.

Counsel can reasonably decide not to present potentially helpfu l mit igating evidence—including the testimony of mental experts—if suc h evid ence would result in the introduction of damaging evidence. Se e Burger , 483 U.S. at 792; Darden v. Wainwright , 477 U.S. 168, 186 (1986); Strickland , 466 U.S. at 699; Six , 94 F.3d at 474; Whitmore v. Lockhart , 8 F.3 d 614, 617 (8th Cir. 1993); Laws , 863 F.2d at 1389-90. Stragand' s decisio n not to present Preston's doctors' testimony in this case wa s reasonable because of the damaging evidence th at would have been brought out on cross-examination.
Many of Stragand's strategic decisio ns regarding his handling of the penalty phase were in fluenced by his theory about the jury's mindset. He and his co-counsel both testified they thought that the jury had decided not to sentence Preston to death. In addition to Stragand's belief that the jury did not have a "bad feeling" towards Preston, Stragand testified that he believed the verdicts indicated that the jury, which knew from voi r dir e that this was a death penalty case, had reached a compromise

. Stragand's theory

### -15-

was that because the murders were committed cont emporaneously they were of equal culp ability. Thus, when the jury returned a verdict of capita l murder on only one co unt and of second-degree murder on the other, it had reached a compromise and would not vote to sentence Preston to death

. While Stragand's "feel" for the jury may have been wrong, it was th e contemporaneous product of having investigated, prepared, and tried th e case. It is wrong only in hindsight and is not the basis for a finding of deficient performance. See Laws , 863 U.S. at 1393 ("In examining counsel' s performance, we do not use 20-20 hindsight."); c f. Strickland , 466 U.S. at 673, 699 (counsel's unsuccessful strategy for sentencing-phase argumen t relied in part on judge's reputation for placingimportance on a defendant owning up to crime).

Conclusion

The judgment is affirmed. We thank counsel for her zealous efforts on Preston's behalf.

A true copy.

Attest:

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