Andre COLE, Appellant v. Donald P. ROPER; Jeremiah W. Nixon, Appellees, 623 F.3d 1183

BEAM, Circuit Judge. Andre Cole appeals the district court’s denial of his 28 U.S.C. § 2254 petition for habeas corpus. The district court certified nine claims for appeal, and upon review of these claims, we affirm the denial of relief. I. BACKGROUND The evidence at Cole’s trial in Missouri state court in 2001 reveals that Cole and his wife, Terri, divorced in 1995 after eleven years of marriage. Cole was ordered to pay child support for the care of the couple’s two children, but his periodic failure to make payments resulted in an arrearage of nearly $3,000.

The record indicates that Cole and Terri also had disputes involving visitation with the children, and in August 1998, Cole was upset about his alleged lack of visitation with his two sons. There is also evidence he was upset about his wages being garnished to cover the child support arrearage. On the evening of August 21, 1998, Cole forced his way into Terri’s house by throwing a tire iron through a glass door leading to the dining room from the patio. Anthony Curtis, who was visiting Terri, confronted Cole and asked him to leave.

Cole stabbed and slashed Curtis more than twenty times, the fatal blow being an eight-inch deep knife wound to Curtis’s back. Cole then assaulted Terri, stabbing her repeatedly in the stomach, breasts, back, arms, and her hands when she attempted to defend herself. Terri survived and testified at trial. After the attack, Cole fled the state but after a little over a month, returned to St. Louis and surrendered to the police.

DNA analysis confirmed the presence of both victims’ blood on the knife and the presence of Cole’s blood on the deck of Terri’s home, the backyard fence, and in the street where Cole’s car had been parked. At trial, Cole presented the theory that, although he did break into Terri’s home with the jack, he did not bring a weapon, and actually was attacked by a knife-wielding Curtis, who was much larger than Cole. Cole’s testimony at trial also insinuated that Terri delivered the fatal wounds to Curtis in an attempt to keep Curtis from attacking Cole. A jury in St.

Louis County, Missouri, convicted Cole of first-degree murder, first-degree assault, first-degree burglary, and two counts of armed criminal action. He was sentenced to death for Curtis’s murder and given three life terms of imprisonment for the assault and armed criminal action and thirty years for the burglary. The Missouri Supreme Court upheld Cole’s convictions and sentences on direct appeal. State v. Cole, 71 S.W.3d 163 (Mo.2002) (Cole I).

Cole’s Rule 29.15 motion for postconviction relief, in which he raised numerous claims of ineffective assistance of counsel, was also denied by the trial court, and the denial was affirmed on appeal. Cole v. State, 152 S.W.3d 267 (Mo. 2004) (Cole II). In his timely petition for habeas corpus relief, Cole raised numerous claims.

The district court denied the petition, without an evidentiary hearing, and the following claims are certified for appeal: (1) a Bat-son claim regarding black veniremember Vernard Chambers, who was struck by the prosecution (Claim 4); (2) claims for ineffective assistance of counsel based on counsel’s failure to investigate Cole’s social and medical history, specifically on the days leading up to the crime (Claims 10 and 11); (3) a claim for ineffective assistance of counsel based upon counsel’s failure to present evidence during the penalty phase about Cole’s exemplary prison conduct while awaiting trial (Claim 12); (4) due process claims based upon Cole’s allegedly visible leg restraint during the guilt and penalty phase trials (Claims 7 and 16); (5) claims for prosecutorial misconduct during closing argument in both the guilt and penalty phase (Claims 2 and 13); and (6) the cumulative effect of the foregoing errors (Claim 20).

II. DISCUSSION 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). Under the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we may not grant relief for claims adjudicated on the merits by the Missouri state courts unless the adjudication was contrary to, or involved an unreasonable application of, federal law as determined by the Supreme Court, or was 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 grant relief only if the state court decision is both incorrect and unreasonable. McGehee, 588 F.3d at 1193. Further, “a determination of a factual issue made by a State court shall be presumed to be correct” in a federal habeas proceeding. 28 U.S.C. § 2254(e)(1). A. Claim 4: Striking of Veniremember Chambers Cole argues that the prosecutor’s use of a peremptory challenge to strike veniremember Chambers from the jury'violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

During Cole’s trial, after defense counsel made the Bat-son challenge to the strike of veniremember Chambers, the prosecutor offered the following reasons for why the strike was race-neutral: [t]he State’s primary concern with Mr. Chambers is that he is divorced. And because of the facts and the dynamics of [sic] case — the record should reflect the State expects that the evidence that’s introduced will show that Mr. Cole was divorced from his wife Terri Cole. There was a great deal of animosity between the two of them. I’m concerned that someone who is similarly situated to Mr.

Cole in that he’s divorced may be sympathetic to Mr. Cole and may not be sympathetic to Terri Cole, the victim in this case.... In addition to that, Your Honor, with regard to the death penalty he stated that he was not opposed to the death penalty, but not sure if he could do it or not. Furthermore, he has a cousin doing life in prison for a murder in Michigan. Trial Transcript (Tr.) at 569-70. Defense counsel responded that there was a white male paying child support and a different white male who was never married, neither of whom was struck by the state.

She also generally objected to Chambers being struck on the basis of his divorced status. The trial court summarily found the state’s reasons race-neutral and denied the defense’s Batson challenge. The Missouri Supreme Court adjudicated this claim on the merits and found that the prosecutor’s reasons were race-neutral, not pretextual and noted that the “similarly situated” jurors proposed by the defense were not actually divorced, but one was simply subject to a child support order, though not married.

The court concluded that these comparison jurors were not similarly situated and that Chambers’ status as divorced, his somewhat equivocal answers about the death penalty, and having a cousin with a murder conviction were all reasons for the prosecution’s use of the strike that did not violate Batson. Cole I, 71 S.W.3d at 173. In Batson, the Court held that the Equal Protection Clause of the United States Constitution prohibits the use of peremptory challenges to exclude jurors on the basis of race. Batson, 476 U.S. at 89, 106 S.Ct. 1712.

The Court uses a three-step process for evaluating whether the use of a peremptory challenge was based on purposeful discrimination. First, the defendant must make a prima facie case of racial discrimination. Second, after such showing is made, the state must suggest a race-neutral explanation for the use of the strike. Third, after a race-neutral reason is offered, the trial court must decide whether the defendant has shown purposeful discrimination. Snyder v. Louisiana, 552 U.S. 472, 476-77, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008).

Within this framework, the defendant may rely on “all of the circumstances that bear upon the issue of racial animosity” to show purposeful discrimination. Id. at 478, 128 S.Ct. 1203. Whether a peremptory strike was motivated by race is ultimately a question of fact, Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), and a state court finding is accorded a presumption of correctness under AEDPA, 28 U.S.C. § 2254(e)(1).

Thus, a Missouri state court’s determination regarding the prosecution’s intent may be set aside only if Cole rebuts “the presumption of correctness by clear and convincing evidence.” Id. Cole complains that the trial court did not make proper findings or do an adequate Batson evaluation by simply saying the reasons were race-neutral without saying they were “true.” His argument, as we understand it, is essentially that the trial court did not complete step three of the Batson analysis. He also argues that the state court adjudications violate the recent Supreme Court pronouncements in Snyder.

While the trial court’s Batson analysis may have been lacking, in addition to considering (and giving deference to) the trial court’s Batson’s findings, we also must consider the Missouri Supreme Court’s analysis. Smulls v. Roper, 535 F.3d 853, 862 (8th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 1905, 173 L.Ed.2d 1061 (2009). We find that the Missouri Supreme Court’s analysis of Cole’s Batson claim was not contrary to, nor an unreasonable application of, Supreme Court precedent. Its factual findings regarding the three proffered similarly situated jurors are accorded a presumption of correctness.

As is the Missouri Supreme Court’s finding that, given the marital status issue, Chambers’ equivocation about the death penalty, and having a cousin serving time for a murder conviction, the prosecutor’s reasons for striking Chambers were not race-based. Cole’s arguments to the contrary, while well-presented, are not clear and convincing evidence that entitles him to overcome these presumptively correct findings.

Furthermore, Cole cannot argue that the trial court or the Missouri Supreme Court unreasonably applied either Miller-El or Snyder, because neither had been decided at the time the state courts adjudicated his Batson issue. See Thaler v. Haynes, — U.S. -, 130 S.Ct. 1171, 1174 n. 2, — L.Ed.2d - (2010) (per curiam). To the extent Cole simply argues that Snyder and Miller-El are factually and legally persuasive reasons why Batson was unreasonably applied in this case, we disagree. In Snyder, the petitioner challenged the strike of two black jurors during his state court prosecution for capital murder.

The prosecutor’s reasons for striking the first juror were that he looked “nervous” during voir dire and that his school and work obligations were arduous because he was a student teacher. The trial court allowed the strike without discussion. In reversing the denial of habeas corpus relief, the Court refused to presume that the trial court credited the prosecutor’s representation that he struck the challenged juror based on the juror’s demeanor because the trial court had made no factual findings concerning the demean- or. 552 U.S. at 479, 128 S.Ct. 1203.

In Miller-El, prosecutors “shuffled” the jury at least twice and offered no explanation to rebut the defendant’s evidence that this was done to limit the number of black persons on the jury. 545 U.S. at 265, 125 S.Ct. 2317. Ten of the eleven qualified black persons were peremptorily struck; two of those who were allegedly struck for being hesitant about applying the death penalty actually gave answers that an unbiased prosecutor seeking the death penalty would have readily accepted. Id. Most of the blacks were subject to questions and scripts designed to elicit answers that non-blacks generally were not.

Id. at 265-66, 125 S.Ct. 2317. The egregious facts present in Miller-El were not present during Cole’s trial. We have no evidence that there was jury shuffling, and a review of the record indicates that no different forms of questioning were posed to the black and non-black members of the jury pool. Snyder involved a demeanor-based challenge, which was not at issue in this case. There was no unreasonable application of Batson by the Missouri state courts, and neither Miller-El nor Snyder changes that result. The district court properly denied relief based upon this claim. B.

Claims 10 and 11: Ineffective Assistance of Counsel: Failure to Investigate Cole’s Mental and Emotional Disturbance In Claim 10, Cole argues that trial counsel failed to investigate and present evidence that he suffered from an extreme mental and emotional disturbance at the time of the crime. In Claim 11, Cole relatedly argues that counsel erred by failing to investigate and present evidence from lay witnesses on his troubled state of mind around the time of the offense. A claim of ineffective assistance of counsel is governed by the performance and prejudice standard set forth in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the performance prong, the court must apply an objective standard and “determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance,” id. at 690, 104 S.Ct. 2052, while at the same time refraining from engaging in hindsight or second-guessing of trial counsel’s strategic decisions. Id. at 689, 104 S.Ct. 2052.

If performance was deficient, the prejudice prong requires proof “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Although Cole had undergone two pretrial psychiatric evaluations by mental health experts, he argues that counsel should have had him evaluated by a third expert to develop mitigation evidence for the penalty phase. At Cole’s state post-conviction hearing a forensic psychiatrist opined that Cole was suffering from an “extreme emotional distress” at the time of the offense.

The Missouri Supreme Court adjudicated this claim on the merits and found that counsel was not deficient because both pretrial experts who examined Cole concluded that he was not suffering from any mental disease or defect at the time of the crime. There was no evidence that Cole was suffering from depression, paranoia or delusional beliefs. His thought processes were found to be logical and sequential, and he was determined to be capable of knowing and appreciating the nature, quality and wrongfulness of his conduct.

Accordingly, the court found that counsel was not deficient for failing to shop for a more favorable expert. Cole II, 152 S.W.3d at 270. Further, the court found that lay witness testimony may have been more harmful than helpful. Id. This adjudication was not an unreasonable application of, nor was it contrary to, Strickland. Cole’s trial counsel testified at the postconviction hearing about the avenues she investigated concerning Cole’s background.

She met with Cole’s mother and sister routinely and questioned them about medical conditions, a family history of mental illness or alcohol abuse, and Cole’s use of alcohol and drugs. Cole informed her that he had not been treated for mental disease or defect and denied that he was depressed. He admitted to drinking two beers on the night of the crime but he denied being drunk or on any drugs at the time of the offense, and he denied having an alcohol problem. This was enough of an investigation to clear Strickland’s performance prong. See, e.g., Forsyth v.

Ault, 537 F.3d 887, 892 (8th Cir.2008) (holding that the Sixth Amendment does not require favorable expert “shopping” for adequate performance), cert. denied, Forsyth v. Burt, — U.S. -, 129 S.Ct. 1044, 173 L.Ed.2d 475 (2009). And with the strong expert testimony already in the hands of the state at the time of trial, it is unlikely that Cole suffered any prejudice from the failure to call more favorable expert or lay witnesses, even if performance was lacking.

See id. (noting that, given the weight of psychiatric opinion on petitioner’s competence, the proffered postconviction expert’s opinion was unlikely to have had an effect on the outcome of the proceeding). The district court did not err in rejecting these two points. C. Claim 12: Ineffective Assistance of Counsel: Failing to Investigate and Present Evidence Regarding Cole’s Exemplary Prison Conduct Cole argues that his trial counsel performed deficiently during the penalty phase by failing to investigate and present evidence of Cole’s good prison conduct.

The Missouri Supreme Court rejected this claim, citing trial counsel’s testimony at the Rule 29.15 motion hearing that “her experience with presenting evidence on a defendant’s good behavior in jail was generally ineffective,” and by stating that the testimony of jail witnesses would have overlapped other good character evidence that was presented at the sentencing. Cole II, 152 S.W.3d at 269-70. The three witnesses Cole argues should have been investigated and presented by his counsel were two jail employees, and a nun who ran the jail religious services, Sister Judith Klump.

One prison employee allegedly would have testified that Cole was an ideal inmate who followed rules, was mild mannered, and an excellent worker. The other apparently would have testified that Cole was an exceptional worker with no discipline problems. Sister Klump met Cole through the religious classes that she taught at the jail. She now claims she would have testified that she often asked Cole to start her class with a prayer because he spoke from the heart, and that Cole was a polite class leader who was respected among the inmates.

The Missouri Supreme Court’s opinion rejecting this claim was not contrary to, nor an unreasonable application of, Strickland. We may not second-guess counsel’s reasonable strategic decisions. Strickland, 466 U.S. at 690, 104 S.Ct. 2052 (describing informed strategic choices as “virtually unchallengeable”). And counsel did, in fact, put on good character evidence during the penalty phase of Cole’s trial, including Cole’s family members, friends, and his church pastor.

At the postconviction hearing, counsel testified that she interviewed correctional officers at the jail but learned of no potentially relevant testimony. Counsel admitted that she did not investigate any potential witnesses regarding Cole’s attendance at religious services and Bible study groups while he was incarcerated and that she was unaware he attended such services in jail. Counsel’s primary concern was that Cole had a prior conviction for failure to return to confinement, and that might be a negative issue if she put jail employees on the stand.

She felt that a reminder of the prior conviction would outweigh any good character evidence a jail employee could provide. Cole argues the Missouri court’s adjudication of this issue was contrary to or an unreasonable application of Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). In Skipper, the Court held that evidence of a “defendant’s disposition to make a well-behaved and peaceful adjustment to life in prison” is relevant mitigating evidence. Id. at 7, 106 S.Ct. 1669.

However, while Skipper held that such evidence is relevant and admissible, the failure to put on this evidence does not make counsel’s performance deficient. And under our doubly deferential standard of review, it does not mean that the Missouri Supreme Court unreasonably applied Strickland. The district court did not err in denying this point. D. Claims 7 and 16: Visible Restraint Cole asserts that the leg brace restraint he was required to wear during his trial was .visible to the jurors and that this violated his due process rights, as stated in Deck v.

Missouri, 544 U.S. 622, 630-32, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (holding that visibly shackling a defendant during the penalty phase of a capital trial without a justifiable state interest violates due process). Claim 7 pertains to the effect of the restraint on the guilt phase of the trial and Claim 16 pertains to its effect on the sentencing phase.

The state argues that Cole has defaulted these claims because they were not raised in either his direct appeal or his postconviction motion, but that even if not defaulted, Cole’s claims would fail because the leg restraint was not visible and thereby did not violate Deck. Cole argues that these claims are not procedurally defaulted because he raised them in a motion to recall the mandate, shortly after Deck was decided, and that the claim was raised as soon as possible under Deck.

The district court agreed that the Deck claim was not procedurally defaulted because it was raised in the motion to recall the mandate. Cole’s 29.15 motion was denied in November 2004, and Deck was decided by the Supreme Court in May 2005. Cole filed his motion to recall the mandate based upon Deck in August 2005, and the Missouri Supreme Court summarily denied this motion later in August 2005. As noted, Claim 16 involves the restraint during penalty phase issue, and the basis for this claim would not have been available before Deck was decided.

But Claim 7 is based upon unjustified restraint during the guilt phase, which has been unconstitutional since 1986 when the Supreme Court decided Holbrook v. Flynn, 475 U.S. 560, 567-68, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). Cole failed to preserve this claim for review by the state courts, and advances no arguments with regard to cause for or prejudice from the procedural default of this claim. Accordingly, Claim 7 is defaulted. Claim 16 is not defaulted, however, because Cole raised the issue to the state courts as soon as the claim became legally viable (following Deck) in a motion to recall the mandate.

The district court treated Claim 16 as though it had been adjudicated on the merits by the Missouri Supreme Court’s

summary denial of the motion to recall the mandate, accorded the decision AEDPA deference, and found that there was no unreasonable application of Deck because the restraint here — a knee immobilizer worn under Cole’s pants — was far less visible and obtrusive than those employed in Deck. Cole alleges that the restraint (even though worn under his pants) was visible from the bottom of his pants.

He also submitted statements from a juror who “remembered” that Cole was shackled, and another from a juror who thought Cole was handcuffed during trial (which he clearly was not), as well as from family members who opined that the restraint was visible during trial. The district court refused to grant an evidentiary hearing on the issue, dismissed the credibility of the juror statements as the product of faulty memory, and denied the claim. Cole asserts that at the very least, he was entitled to an evidentiary hearing on this claim.

We review the district court’s decision denying an evidentiary hearing for an abuse of discretion. Osborne v. Purkett, 411 F.3d 911, 915 (8th Cir.2005). The AEDPA dictates that an evidentiary hearing may only be held in extremely limited circumstances when the factual basis for a claim was not developed in state court. 28 U.S.C. § 2254(e)(2). However, an evidentiary hearing may also be held when the claim is based upon a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court. Id. § 2254(e)(2)(A).

While Cole arguably relies upon a “new rule of constitutional law” as set forth in Deck, the Supreme Court has not made Deck retroactive to cases on collateral review. Deck itself was a direct appeal from a Missouri conviction. We can find no Supreme Court case making Deck retrospective. Cf. In re Rutherford, 437 F.3d 1125, 1128 (11th Cir.2006) (holding that Deck is not retroactive for purposes of § 2244’s general prohibition on successive habeas corpus petitions).

Accordingly, because Cole’s claim is not based upon a new retroactive constitutional rule, the district court did not abuse its discretion in refusing to hold an evidentiary hearing on this claim. Nor did the district court err in refusing to grant relief on the merits of this claim. Deck cannot be the basis for a Missouri court violation of clearly established Supreme Court precedent because it was not decided until after Cole’s conviction became final. See Williams v.

Norris, 612 F.3d 941, 958 (8th Cir.2010) (“Williams cannot claim any relief from Deck, because Deck post-dated his trial and the principles articulated therein were not clearly established at that time.”). And even considering the merits, our review of the record indicates that Cole was not unconstitutionally shackled within the meaning of Deck. The record indicates that Cole’s counsel was not even aware that Cole was restrained, as she thought he was wearing a knee brace because his knee was bothering him.

In that regard, the following discussion took place on the record, out of the presence of the jury: [Cole’s Counsel]: This morning, Your Honor, January 15th, I had asked the Court to consider having Mr. Cole’s brace taken off of his — either I think it’s [sic] left leg. I’m not sure. He had it on last week. And I misunderstood what he was saying.

I thought he was [sic] said he was wearing it because his knee was bothering him so I didn’t bring this to the Court’s attention before I asked the Court this morning and you asked the Department of Justice Services the reason for that. [Court]: They basically said it was their administrative policy on death penalty cases to implement the leg brace or install the leg brace on the Defendant in these kind of cases where he’s in custody. So, if I believe that it may affect his ability in this case to effectively assist his attorney in this case, then I will reconsider that. [Counsel]: I don’t think it will.

I think it’s uncomfortable. My thought was at first it was because he had to have it on. Tr. at 1188. Defense counsel and the trial judge spoke further about the fact that Cole was not too uncomfortable to assist in his own defense, and counsel also requested, and was promised, a recess before Cole testified so that the jury would not see him uncomfortably walking to the witness stand. The record reflects that when the jury was brought in for Cole’s testimony, he was already seated at the witness stand.

Considering that his own attorney was unaware that Cole was restrained, it is extremely unlikely that the jury was aware of it. Deck proscribes the routine use of “visible shackles” during the penalty phase of a capital trial. 544 U.S. at 632, 125 S.Ct. 2007. Because Cole was not subject to “visible shackles,” the district court properly denied relief on Claim 16. E.

Claims 2 and 13: Prosecutorial Misconduct Cole contends that statements made by the prosecutor in closing argument, during both the guilt phase (Claim 2) and the penalty phase (Claim 13), were prejudicial to him and made his trial fundamentally unfair.

In the guilt phase arguments, Cole objects to the prosecutor: personalizing the evidence by saying, “I can’t emphasize enough to you the seriousness of this case nor can I emphasize enough to you the strength of the State’s case;” accusing Cole of sneaking and creeping around at night and terrorizing Terri; eviscerating Cole’s presumption of innocence by stating that defendants are usually “sitting in that chair ... for a reason;” calling Cole a “convicted killer;” telling the jury that they can send a message “to the victims of crime, families in St.

Louis County, that you can come to the court house and get justice;” and unfairly appealing to the jury’s sympathies by reminding them that Terri was a “dying woman.” Tr. at 1415-21, 1474-80. In the penalty phase, Cole objects to the prosecutor analogizing the jury to “patriots” who needed to step up to protect society; again reminding jurors that “verdicts do send messages;” and opining that the “death penalty is a weapon we need to have in our arsenal to fight crime.” Tr. at 1653-54. None of these statements were objected to by trial counsel.

After noting that none of these claims were preserved for direct appeal by a timely objection at trial, the Missouri Supreme Court reviewed for plain error and summarily rejected the majority of Cole’s claims. Cole I, 71 S.W.3d at 170. The state court discussed the merits of only one prosecutorial argument (the “convicted killer” comment), but still found no error of law.

In adjudicating the claim, the court found that the prosecutor had repeatedly referred to Cole as a “convicted felon” during argument, and found the “convicted killer” remark to be a single inadvertent remark which did not prejudice Cole because the jury had already been presented with the precise nature of his actual prior convictions, none of which involved a homicide. Id. The court also found that “[statements made in closing argument will rarely amount to plain error.” Id. at 171.

Although we agree that the “convicted killer” comment was clearly improper and several of the other statements were unnecessarily close to the line, the Missouri Supreme Court’s adjudication of this claim was not an unreasonable application of, or contrary to, clearly established Supreme Court precedent. The watershed Supreme Court precedent on prosecutorial misconduct is Darden v.

Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), and under Darden, habeas relief is only appropriate if a prosecutor’s improper closing argument “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. at 181, 106 S.Ct. 2464 (quotation omitted).

In Darden, the prosecutor insinuated that if not given the death penalty, the defendant might be allowed out on work release to kill again, referred to the defendant as an animal who should be on a leash, and asserted that he wished the defendant’s face had been “blown off.” Id. at 180 n. 9-12, 106 S.Ct. 2464. The Court found that while improper, the comments did not infect the trial with unfairness sufficient to deny petitioner due process. Id. at 181-83, 106 S.Ct. 2464.

The Missouri Supreme Court’s conclusion that the prosecutor simply misspoke in calling Cole a convicted “killer” is a factual finding that we presume to be correct. 28 U.S.C. § 2254(e). Cole cannot rebut this presumption. We agree that because of the prosecutor’s repeated earlier descriptions of Cole as a “convicted felon,” the record supports the conclusion that the use of the word “killer” instead of “felon” in this instance was inadvertent and not unduly prejudicial.

Arguments about Cole sneaking around and terrorizing were not improper, unless throwing a tire jack through a glass patio door, conduct admitted by Cole, can somehow not be considered terrorizing. And while we have previously frowned upon “send a message,” see Sublett v. Dormire, 217 F.3d 598, 601 (8th Cir.2000), and personalizing arguments, see Kellogg v. Skon, 176 F.3d 447, 451-52 (8th Cir.1999), we have also recognized that it will be exceptionally rare that we grant habeas corpus relief on these bases. Sublett, 217 F.3d at 601. The “there for a reason” comment was also ill-advised.

However, shortly thereafter, the prosecutor reminded the jury that Cole was entitled to a presumption of innocence. Furthermore, the prosecutor’s comment about Terri being a dying woman was simply an unfortunate fact, and one which defense counsel acknowledged in front of the jury before cross-examining her. Cole argues that the “patriot” statement compares favorably with prosecutorial argument in Weaver v. Bowersox, 438 F.3d 832, 842 (8th Cir.2006), wherein we affirmed the grant of habeas corpus relief on the basis of improper prosecutorial closing argument.

The Weaver prosecutor used a graphic story from a war movie to analogize the jurors to soldiers with a duty to kill, and also implored jurors to kill the defendant as part of the war on drugs. Id. at 836-37. We held that because the prosecutor used an analogy to soldiers, who “have no choice but to kill” and who “follow orders when they kill,” the prosecutor improperly “eviscerate[d] the concept of discretion afforded to a jury as required by the Eighth Amendment.” Id. at 840. We found the prosecutor’s statements improper because they diminished the jury’s sense of responsibility for imposing the death sentence.

Id. The same cannot be said about the statements made by the prosecutor in this case. While the prosecutor did call the jurors “patriots,” this is not the same as calling them “soldiers.” “Patriot” is a rather generic term defined as “a person who loves, supports, and defends his or her country and its interests with devotion.” Webster’s Unabridged Dictionary 1422 (2d ed.1997). It does not commonly include a duty to kill. Nothing in the prosecutor’s statements insinuated that the jurors lacked the discretion to decide whether to impose the death penalty.

Analogies to war and to soldiers are not comparable to the prosecutor’s brief reference to the jurors here as “patriots.” Accordingly, the challenged statements were either not improper, or even if they were, they were not so inflammatory and prejudicial as to render the trial fundamentally unfair and constitute a denial of Cole’s due process. The evidence at trial showed, and Cole admits, that he went to Terri’s home with a tire iron and broke a glass patio door to gain entrance to the house.

Cole then asked the jury to believe that Terri delivered the fatal blows to Curtis, her guest, in an effort to keep Curtis (who was, admittedly, quite large), from hurting Cole. During his testimony, Cole also insinuated that Curtis administered the knife wounds to Terri. The essence of Cole’s guilt phase trial boiled down to whether jurors believed Terri or Cole.

At the penalty phase, the prosecution presented three aggravating circumstances— that the murder was committed during the attempted homicide of Terri Cole; that it involved depravity of the mind because it was wantonly vile, horrible and inhumane (based upon the excessive number of knife wounds sustained by Curtis); and that it was committed during the perpetration of burglary. The jury found the latter two aggravators beyond a reasonable doubt.

When considered in context of the prosecutor’s lengthy closing arguments and the evidence presented at both phases of trial, there is no reasonable probability that the prosecutor’s statements during closing arguments fatally infected either trial with unfairness or affected the outcome. Accordingly, the Missouri Supreme Court’s denial of this claim was not contrary to, or an unreasonable application of, Supreme Court precedent. F. Claim 20: Cumulative Effect of Errors In Cole’s final claim, he alleges that his constitutional rights were violated by the cumulative effect of the errors asserted in his petition.

Our precedent forecloses this argument, Hall v. Luebbers, 296 F.3d 685, 692-93 (8th Cir.2002), as Cole concedes. III. CONCLUSION We affirm the judgment of the district court denying habeas corpus relief. . The Honorable Catherine D. Perry, Chief Judge, United States District Court for the Eastern District of Missouri. . This object was variously referred to as either a "jack” or a “tire iron” or a "wrench” during trial. At one point a police detective described it as a "scissor jack.” .

Though not pressed by Cole's counsel during voir dire, on direct appeal he alleged that a white venireperson not struck by the prosecution, Shirley Parsons, was similarly situated to Chambers because she had a nephew serving time in prison for manslaughter. The Missouri Supreme Court found that Parsons and Chambers were not similarly situated. Cole I, 71 S.W.3d at 173. . The State of Missouri has previously allowed a defendant to bring a motion to recall the mandate to raise a new constitutional claim. In State v.

Whitfield, 107 S.W.3d 253, 265, 268 (Mo.2003), the Missouri Supreme Court allowed a defendant to bring a new claim in a motion to recall the mandate when his capital sentencing violated the Sixth Amendment principles announced in Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The Whitfield defendant's 29.15 motion had been finally decided prior to Ring, and following Whitfield's motion, the court recalled its mandate and imposed a life sentence. 107 S.W.3d at 270-72. Further, in Nave v.

Delo, 62 F.3d 1024, 1032 (8th Cir.1995), we recognized that in Missouri, a motion to recall the mandate may be employed when a decision of a lower court "is contradicted by subsequent developments in the law.” . At the time of trial, Terri had been diagnosed with amyotrophic lateral sclerosis (also known as “Lou Gehrig's Disease"), completely unrelated to the incident that resulted in Curtis's death. The record reflects that the effects of the disease had begun to physically affect Terri, and the jury was aware of the diagnosis.