United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 _____________

                                  No. 96-2581
                                 _____________

Glennon Paul Sweet,                     *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Paul Delo, Superintendent, Potosi       *
Correctional Center,                    *
                                        *
             Appellee.                  *
                                  _____________

                               Submitted: June 12, 1997
                                   Filed: September 10, 1997
                                _____________

Before BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                        _____________

BOWMAN, Circuit Judge.

       Glennon Sweet, a prisoner on Missouri's death row, appeals from the judgment
of the District Court1 denying his petition for habeas corpus. We affirm.




      1
      The Honorable Joseph E. Stevens, Jr., United States District Judge for the
Western District of Missouri.
                                            I.

       On February 8, 1987, Sweet sped past Trooper Russell Harper of the Missouri
State Highway Patrol on a highway outside of Springfield, Missouri. Harper turned on
his signal lights and gave chase, following Sweet as he turned onto a side road. After
Sweet stopped and opened the door of his truck, Harper slowly drove up behind him.
Sweet jumped out of the truck, aimed his semi-automatic assault rifle at the trooper's
car, and fired several bursts. Twenty-nine bullets hit Harper's vehicle; one struck
Harper in the head, killing him. Harper never even unbuttoned the holster flap covering
his service revolver.

        Sweet was arrested and charged with first-degree murder. After a change of
venue to Clay County, he was tried and found guilty. Finding as aggravating
circumstances that the murder was committed against a peace officer engaged in his
official duties and that it was committed for the purpose of avoiding a lawful arrest, the
jury on December 12, 1987 fixed the punishment at death. Following the denial of his
motion for a new trial, on January 20, 1988, Sweet was sentenced to death. Sweet took
a timely direct appeal to the Missouri Supreme Court and also, pursuant to Missouri
Supreme Court Rule 29.15,2 filed a pro se post-conviction motion in Clay County


      2
        Rule 29.15, which became effective shortly before Sweet was sentenced,
provides a post-conviction proceeding for, inter alia, claims "that the conviction or
sentence imposed violates the constitution and laws of [Missouri] or the constitution
of the United States." Mo. Sup. Ct. R. 29.15(a). At the time Sweet was sentenced,
Rule 29.15 required the defendant to file a motion in the sentencing court within thirty
days after the transcript was filed in the direct appeal. See Mo. Sup. Ct. R. 29.15(b).
The direct appeal was then suspended and later consolidated with the appeal from the
judgment on the 29.15 motion. See Mo. Sup. Ct. R. 29.15(l). Missouri has since
abandoned the consolidated appeal procedure. A Rule 29.15 motion is now filed after
the disposition of the direct appeal. See Mo. Sup. Ct. R. 29.15(b) (effective Jan. 1,
1996); Sloan v. Bowersox, 

, 235 (8th Cir.) (recognizing amended rule),
cert. denied, 

(1996). The prior version of the rule governs Sweet's post-

                                           -2-
Circuit Court, raising a number of constitutional claims. The motion court appointed
counsel for Sweet. More than four months after counsel was appointed, Sweet
amended his 29.15 motion to assert additional claims. This amended petition was not
timely, however, because Sweet was required to file any amendment no later than sixty
days after the appointment of counsel. See Mo. Sup. Ct. R. 29.15(f). The motion court
denied Sweet's 29.15 motion in September 1989.

       In the consolidated appeal, the Missouri Supreme Court held that the claims
raised for the first time in Sweet's amended 29.15 motion were not properly raised and
declined to consider them. See State v. Sweet, 

, 615 (Mo. 1990) (en
banc).3 The court affirmed Sweet's conviction and sentence in the direct appeal and
affirmed on the merits the denial of the timely 29.15 claims in the post-conviction
appeal. See 

The United States Supreme Court denied certiorari on
March 18, 1991. Sweet v. Missouri, 

(1991).




conviction remedies, however, see Mo. Sup. Ct. R. 29.15(m) (1996), and citations in
this opinion to Rule 29.15 refer to the version of the rule in effect at the time Sweet was
sentenced.
      3
        Several months after affirming Sweet's conviction, the Missouri Supreme Court
developed a doctrine of "abandonment" to mitigate the harsh consequences of
appointed counsel's failure to comply with the strict deadlines of Rule 29.15. See
Sanders v. State, 

, 494-95 (Mo. 1991) (en banc) (remanding to circuit
court for examination of abandonment claim in circumstances similar to those of
Sweet's case); see also Moore v. State, 

, 291-92 (Mo. 1996) (en banc)
(describing further developments in abandonment doctrine). Sweet does not claim the
benefit of the abandonment doctrine, and we know of no reason why Sweet's default
should be excused merely because it might not be considered a default if it occurred
today. See Mack v. Caspari, 

, 640 (8th Cir. 1996) (rejecting abandonment
argument where petitioner's appeal was decided before doctrine was propounded), cert.
denied, 

(1997).

                                           -3-
        Days later, Sweet filed this habeas corpus action in federal district court.
Counsel was appointed, and Sweet amended his petition several times. The State
moved to dismiss, and the District Court ultimately denied relief and dismissed the
action on November 22, 1995. Sweet then filed a motion to alter or amend the
judgment pursuant to Federal Rule of Civil Procedure 59(e). The court denied Sweet's
motion on May 9, 1996, and Sweet appealed to this Court.4 We granted Sweet a
certificate of appealability pursuant to § 102 of the then-newly-enacted Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.
1214 (codified at 28 U.S.C.A. § 2253 (West Supp. 1997)). Following a dispute about
the scope of the certificate of appealability, the appeal proceeded.5




      4
       We reject the State's argument that Sweet appealed only the denial of his Rule
59(e) motion and not the District Court's earlier denial of habeas relief. The State's
contention is belied by the language of Sweet's notice of appeal ("Sweet appeals . . .
from the final judgment denying petitioner habeas relief pursuant to 28 U.S.C. 2254 and
denying petitioner's motion for relief pursuant to Rule 59(e) . . . .") and by common
sense. We cannot imagine that a prisoner under a death sentence would abandon his
substantive claims and appeal only a procedural motion, and we certainly do not
believe that Sweet has done so in this case.
      5
         The State objected to our granting the certificate without specifying the issue
or issues as to which Sweet had made a substantial showing of the denial of a
constitutional right. See 28 U.S.C.A. § 2253(c)(2)-(3) (West Supp. 1997). We denied
the State's objection. More recently, our Court has held that § 2253, as amended by
the AEDPA, applies to appeals filed after the enactment of the AEDPA and that
certificates of appealability must specify the potentially meritorious issues raised by the
petitioner. See Tiedeman v. Benson, No. 96-3977, slip op. at 4, 7 (8th Cir. Aug. 6,
1997). The Court in Tiedeman considered a certificate of appealability granted by a
district court, recognized that it failed to specify the appropriate issues for appeal,
treated the appeal as an application for a certificate of appealability instead, and denied
the application. See 

Because the certificate in the instant case was granted
by our own Court and the parties have fully briefed and argued the merits of the appeal,
we will proceed to consider the merits.

                                           -4-
        In this appeal, Sweet raises nineteen claims, which we summarize under twelve
headings as follows: (1) ineffective assistance of trial counsel during the guilt phase
of the trial in (a) failing to investigate certain witnesses and evidence, (b) failing to
request a curative instruction or a mistrial during the prosecution's closing argument,
(c) failing to investigate and present evidence in support of his motion to suppress
evidence, and (d) allegedly being addicted to cocaine during the trial; (2) ineffective
assistance of trial counsel during the penalty phase of the trial in (a) failing to object
appropriately to the prosecutor's cross-examination of one of Sweet's witnesses, (b)
failing to investigate and present certain mitigating evidence, and (c) failing to make an
offer of proof to preserve for appeal certain mitigating testimony; (3) misconduct of the
prosecutor in (a) introducing a prior bad act during the guilt phase, (b) failing to provide
proper notice of the witnesses and evidence to be introduced during the penalty phase,
and (c) using Sweet's arrest record to cross-examine one of Sweet's witnesses during
the penalty phase; (4) improper exclusion of a juror; (5) improper exclusion of
exculpatory evidence during Sweet's cross-examination of one of the prosecution's
witnesses; (6) unlawful search and seizure of Sweet's property; (7) improper jury
instruction defining reasonable doubt; (8) exclusion of certain mitigating evidence
during the penalty phase; (9) improper admission of evidence of a prior bad act during
the guilt phase; (10) improper jury instruction on mitigating circumstances during the
penalty phase; (11) failure of the Missouri Supreme Court to conduct a meaningful
proportionality review; and (12) ineffective assistance of appellate and post-conviction
counsel.

                                            II.

      We begin by discussing those of Sweet's claims that are not properly before us
for one reason or another.




                                            -5-
                                           A.

         As a rule, we do not consider claims that have not been presented to the District
Court. See Hornbuckle v. Groose, 

, 256 n.5 (8th Cir. 1997), petition for
cert. filed, No. 97-5054 (June 6, 1997). We decline to consider two of Sweet's claims
for this reason: his search-and-seizure claim (#6) and his claim that the trial court
improperly admitted evidence of a prior bad act against him in the guilt phase (#9). A
claim related to Sweet's ninth claim has been preserved for review; we consider this
claim, which turns on prosecutorial misconduct, later in this opinion.

       Sweet's sixth claim is also improper for another reason. A Fourth Amendment
claim of an unconstitutional search or seizure is not cognizable in a habeas corpus
action unless the state has not "provided an opportunity for full and fair litigation" of
the claim. Stone v. Powell, 

, 494 (1976). We are not empowered to
examine whether the Missouri courts made errors of law in deciding the Fourth
Amendment issues argued by Sweet. See Willett v. Lockhart, 

, 1270 (8th
Cir. 1994) (en banc), cert. denied, 

(1995). A search-and-seizure claim
is cognizable in a habeas action only if "the state provided no procedure by which the
prisoner could raise his Fourth Amendment claim, or the prisoner was foreclosed from
using that procedure because of an unconscionable breakdown in the system." 

Sweet has not even attempted to make such a showing, nor does the record
support it.

                                           B.

        Next we discuss those of Sweet's claims that are procedurally defaulted. Sweet
defaulted two of his claims by failing to present them to the Missouri courts at any
stage of his direct appeal or his post-conviction proceedings. See Nave v. Delo, 

, 1030 (8th Cir. 1995) (recognizing that failure to present issue to state courts
is a default), cert. denied, 

(1996). These claims are that trial counsel

                                           -6-
was ineffective in failing to make an offer of proof of certain mitigating evidence during
the penalty phase (#2c) and that the jury instruction on reasonable doubt violated Cage
v. Louisiana, 

(1990) (per curiam) (#7). Another claim was defaulted when
Sweet failed to raise it in his post-conviction appeal to the Missouri Supreme Court.
See Reese v. Delo, 

, 1181 (8th Cir. 1996) (holding that failure to raise
claim in post-conviction appeal is considered abandonment of claim), cert. denied, 

(1997). This barred claim is that Sweet's trial counsel was ineffective in
his handling of the motion to suppress evidence (#1c).6

       Still other claims are barred because they were first raised in state court in
Sweet's untimely amended 29.15 motion, as the Missouri Supreme Court held. See

. This default encompasses all of Sweet's claims of
ineffective assistance of trial counsel (#1 and #2).

       One of these ineffective-assistance claims requires further discussion. Although
it was not raised in a timely 29.15 motion, the Missouri Supreme Court considered one
issue on the merits: whether trial counsel was ineffective in failing to investigate or call
Freddie Hensley as a witness (part of Sweet's claim #1a). See 

When a state
court decides an issue on the merits despite a possible procedural default, no
independent and adequate state ground bars consideration of that claim by a habeas
court. See Harris v. Reed, 

, 262-63 (1989); County Court of Ulster
County v. Allen, 

, 152-54 (1979). Accordingly, we will consider the
Freddie Hensley issue below in our discussion of Sweet's preserved claims. We note
that the same reasoning does not apply to Sweet's claim of ineffective assistance of
counsel in failing to object adequately to the use of Sweet's arrest record in the cross-
examination of one of Sweet's witnesses during the penalty phase (#2a). The Missouri

       6
        Although we have held that Sweet's substantive Fourth Amendment claim is
barred by the doctrine of Stone v. Powell, his claim of ineffective assistance of counsel
with regard to the search-and-seizure issue is cognizable in a habeas action. See
Kimmelman v. Morrison, 

, 382-83 (1986).

                                            -7-
Supreme Court considered a related issue--whether the use of the arrests was proper
as a matter of state evidence law--but it did not consider these events in the guise of a
claim of ineffective assistance of counsel, most likely because Sweet did not present
the claim as such on appeal. See 

. This claim is therefore
barred.
       Sweet argues that many of these claims are properly before us because he raised
them in state court in both a motion to recall the mandate and a state petition for habeas
corpus. We disagree. A motion to recall the mandate is a proper means of preserving
an issue for habeas review only in very limited circumstances, as we explained in 

. In particular, we noted that a motion to recall the mandate is not
a proper method of raising claims of trial error or ineffective assistance of trial counsel.
See 

Because all of Sweet's defaulted claims fall within these categories,
his motion to recall the mandate was not a proper method of raising them, and the
motion could do nothing to vitiate his earlier defaults. Sweet's argument that his state
habeas petition under Missouri Supreme Court Rule 91 preserved his claims is similarly
flawed. As we have recognized, a state habeas proceeding may not be used to raise a
claim that was known to the petitioner at the time he filed his Rule 29.15 motion. See

(citing State ex rel. Simmons v. White, 

, 446-
47 (Mo. 1993) (en banc)). Sweet inveighs mightily against this conclusion, arguing that
the restricted scope of review available under Rule 29.15, as compared to the earlier
Rule 27.26, makes a state habeas petition a viable means of raising certain claims for
the first time. This argument is incorrect for three reasons. First, we have already
decided this point against Sweet in Reese, a case we decided several months before
Sweet filed his opening brief. Second, Simmons, on which we relied in Reese, was
decided in the Rule 29.15 era, although it relied on the companion rule applicable to
post-conviction challenges to guilty pleas. Third, the Missouri Supreme Court denied
Sweet's own habeas petition on procedural grounds. See State ex rel. Sweet v. Delo,
No. 75071, slip op. at 1 (Mo. Sept. 22, 1992). It is not the office of a federal habeas
court to determine that a state court made a mistake of state law. See Estelle v.


                                            -8-
McGuire, 

, 67-68 (1991). If the highest court of Missouri concludes that
Sweet's claims have not been raised properly in a state habeas proceeding, that is the
end of the matter.

     Much of Sweet's argument is aimed at the wrong target. Sweet relies, for
example, on Simpson v. Camper, 

(8th Cir. 1991), in which we held a
habeas appeal in abeyance while the petitioner brought a motion to recall the mandate
in state court. The issue in Simpson, however, was not procedural default, but
exhaustion of state remedies. See 

see also 28 U.S.C. § 2254(b)-(c) (1994)
(requiring exhaustion of remedies before federal court may grant habeas relief).7 The
State does not argue that Sweet has failed to exhaust his available remedies in state
court, but exhaustion alone is not sufficient to entitle Sweet to consideration of his
claims in federal court. If the petitioner has "failed to follow applicable state
procedural rules in raising the claims," Sawyer v. Whitley, 

, 338 (1992),
he is procedurally barred from raising them in a federal habeas action, regardless of
whether he has exhausted his state-court remedies. See Coleman v. Thompson, 

, 731-32 (1991).

                                           C.

       Finding these claims defaulted, we turn to Sweet's argument that he has
established cause and prejudice for the defaults.

      In all cases in which a state prisoner has defaulted his federal claims in
      state court pursuant to an independent and adequate state procedural rule,
      federal habeas review of the claims is barred unless the prisoner can
      demonstrate cause for the default and actual prejudice as a result of the

      7
        We also note that the relevant claim in Simpson was a claim of ineffective
assistance of appellate counsel, a type of claim that may be raised for the first time in
a motion to recall the mandate. See 

.

                                          -9-
      alleged violation of federal law, or demonstrate that failure to consider the
      claims will result in a fundamental miscarriage of justice.

. Because we conclude that Sweet has not established cause
for any of his defaults, we need not consider the question of prejudice.

       As cause for failing to raise his claims properly in state court, Sweet argues that
he received ineffective assistance of post-conviction counsel.8 A defendant, however,
has no constitutional right to effective assistance of post-conviction counsel. See

. Absent a constitutional right, Sweet cannot claim
ineffective assistance of post-conviction counsel as cause for his procedural defaults.
See 

We have recognized that this principle applies to claims of
ineffective assistance of Rule 29.15 counsel in Missouri. See 

;
Oxford v. Delo, 

, 748 (8th Cir. 1995), cert. denied, 

(1996).
Accordingly, Sweet's effort to show cause for his defaults fails as a matter of law.

      Sweet also claims that a fundamental miscarriage of justice will result if we do
not review his defaulted claims on the merits. He does not claim that he is actually
innocent of the murder for which he was convicted; he merely repeats the claimed

      8
        At times, Sweet seems to ignore the issue of cause and argues that the prejudice
he suffered from the ineffective assistance of his trial counsel is, by itself, enough to
excuse his default. Another way of reading Sweet's argument is that the ineffective
assistance of his trial counsel is cause for his failure to raise his claims of ineffective
assistance of trial counsel. We cannot endorse Sweet's attempt to bootstrap himself
into habeas relief, which would have the effect of reducing the "cause" requirement to
a nullity. In any event, the argument makes no sense, because it was not trial counsel's
duty to raise the issue of his own ineffectiveness; that was the duty of Sweet and his
post-conviction counsel. See Oxford v. Delo, 

, 747 (8th Cir. 1995) ("[W]e
fail to see any causal connection between trial counsel's performance and Oxford's
failure to verify his amended Rule 29.15 motion. . . . Oxford cannot resurrect this
procedurally defaulted claim [of ineffective assistance of trial counsel] by cloaking it
in the garb of a cause argument."), cert. denied, 

(1996).

                                           -10-
constitutional errors in his trial and pleads for justice.9 Sweet's argument falls far short
of the showing of actual innocence that is required to meet the miscarriage-of-justice
exception. See Schlup v. Delo, 

, 316 (1995) ("Without any new evidence
of innocence, even the existence of a concededly meritorious constitutional violation
is not in itself sufficient to establish a miscarriage of justice that would allow a habeas
court to reach the merits of a barred claim."). Nor can Sweet meet the more demanding
test required to show "actual innocence" of the death penalty. See 

(holding that petitioner "must show by clear and convincing evidence that, but
for a constitutional error, no reasonable juror would have found the petitioner eligible
for the death penalty under the applicable state law").

       We therefore conclude that Sweet has shown no reason why we may consider
his defaulted claims, and we do not discuss them further.

                                            III.

       We now turn to two claims that the Missouri Supreme Court reviewed for plain
error even though Sweet did not preserve them properly for appeal. We have remarked
recently that our decisions on plain error review and procedural bar are in apparent
disagreement. See 

. Some of our cases hold that a plain
error review by a state court does not cure a procedural default, while others hold that
when a state court conducts a plain error review, we also review for plain error in a


       9
       In a pro se filing in this Court, Sweet states that he is claiming actual innocence
and requests time and funds to develop his claim. We have held recently that a "bare,
conclusory assertion" that a petitioner is actually innocent is insufficient to excuse a
procedural default, and we also have rejected the argument that a prisoner is entitled
to a hearing to assist him in developing evidence of actual innocence. Weeks v.
Bowersox, No. 95-4123, slip op. at 24-29 (8th Cir. July 24, 1997) (en banc). Sweet
has had many years to develop evidence of actual innocence, and he has submitted
none.

                                           -11-
habeas action. See 

Toney v. Gammon, 

, 699 (8th
Cir. 1996), and Mack v. Caspari, 

, 641 & n.6 (8th Cir. 1996)). We are
powerless to resolve this disagreement, but we may choose which line of cases to
follow. See 

reasons, we elect to review one of Sweet's claims for
plain error and conclude that the other claim is defaulted.

         Sweet's tenth claim is that the jury instruction on mitigating circumstances
violated Mills v. Maryland, 

(1988), by requiring the jurors to agree
unanimously that a mitigating circumstance existed before they could sentence him to
life imprisonment. See 

Although Sweet failed to object to the instruction
at trial, perhaps because Mills had not yet been decided, he raised the claim of error in
his direct appeal, and the Missouri Supreme Court reviewed it for plain error, rejecting
the argument as foreclosed by Missouri precedent. See 

.
Because Sweet presented this claim clearly to the state court in constitutional terms, we
will exercise our discretion and review it for plain error. See 

. We conclude that no plain error is present. In McDonald v. Bowersox, 

(8th Cir. 1996), cert. denied, 

(1997), we considered a jury
instruction identical in all material respects to the instruction in Sweet's case, and we
concluded that it did not violate Mills. See 

We reach the same
conclusion in the instant case.10

       In his direct appeal to the Missouri Supreme Court, Sweet complained that the
prosecutor failed to comply with a Missouri statute governing disclosure of witnesses
to be called at the penalty phase of the trial. See Mo. Rev. Stat. § 565.005 (1986). The
court reviewed that claim for plain error and found it wanting. See 

n.4. Sweet now raises the issue on habeas (claim #3b), but in the form of a

      10
        Sweet's related contention that the instruction informed the jurors that they
"may" consider any mitigating factors rather than telling them that they "must" consider
such factors was not presented to the District Court. In any event, we have rejected the
same argument in other cases. See 

.

                                          -12-
claim of prosecutorial misconduct.11 We conclude that Sweet did not "'fairly present'"
his claim of misconduct to the state courts, even as a form of plain error. Abdullah v.
Groose, 

, 411 (8th Cir.) (en banc) (citation omitted), cert. denied, 

(1996). In order to fairly present his constitutional claim to the state courts,
Sweet was required to refer to the Constitution, a specific constitutional right, or a state
or federal case raising a constitutional issue. See 

Raising a state-law
claim in state court that is merely similar to the constitutional claim later pressed in a
habeas action is insufficient to preserve the latter for federal review. See id.; cf. Gray
v. Netherland, 

, 2081 (1996) (holding that general appeal to broad
concept such as due process is insufficient presentation of issue to state court).12
Although it is not clear from the Missouri Supreme Court's opinion, an examination of
Sweet's appellate briefs discloses that his argument in that court was couched
exclusively in state-law terms and that federal issues were never addressed. In fact,
one of the cases cited by Sweet in his state-court brief disclaims the idea that discovery
has constitutional implications. See State v. Sykes, 

, 656 (Mo. 1982).
We therefore conclude that the Missouri Supreme Court's plain error review




       11
        Sweet also alleges that the prosecutor improperly refused to disclose the
evidence that the State planned to introduce at the penalty phase. This argument was
not presented on appeal to the Missouri Supreme Court at all, even as plain error, and
we decline to consider it further.
       12
         This reasoning applies equally to several of Sweet's defaulted claims. For
example, Sweet argues that he presented the "substance" of some of his claims of
ineffective assistance of trial counsel in his timely 29.15 motion and therefore did not
default them. In reality, Sweet raised claims based on the same facts as his ineffective-
assistance claims, but he raised them under different legal theories. (He also raised
some claims based on the same theories he now argues but different facts.) This is an
insufficient method of presenting claims to the state courts under Abdullah, and so we
reaffirm our conclusion that these claims were defaulted.

                                           -13-
encompassed only state-law issues and did nothing to cure Sweet's failure to assert his
claim of prosecutorial misconduct in state court.13

                                         IV.

      We now consider on the merits the claims Sweet has preserved for our review.

                                          A.

       We begin with the claim that Sweet's trial counsel was ineffective in failing to
call Freddie Hensley as a witness (#1a). As we have noted above, this claim was
apparently defaulted, but the Missouri Supreme Court reviewed it on the merits,
clearing the way for habeas review. To establish a claim of ineffective assistance of
counsel, a petitioner "must establish that counsel's performance was deficient and that
he was prejudiced by that deficient performance." Preston v. Delo, 

, 603
(8th Cir. 1996) (citing Strickland v. Washington, 

, 687 (1984)), petition
for cert. filed, No. 97-5133 (June 30, 1997). We review the District Court's factual
findings for clear error and its conclusions of law de novo. See 

state court findings of fact to be correct in habeas proceedings unless the petitioner
establishes, the respondent admits, or the record shows otherwise or the petitioner
produces evidence that convincingly establishes that the state court's findings were
erroneous." 

(citing 28 U.S.C. § 2254(d)).14


      13
         We note that even if Sweet had surpassed the procedural bar, his claim would
founder on retroactivity grounds. The Supreme Court held recently that a similar claim
of inadequate notice of penalty-phase evidence could succeed only if the Court
established a new constitutional rule. See 

(citing Teague
v. Lane, 

(1989)).
      14
       The amendments to § 2254(d) enacted by the AEDPA do not apply in this case.
See Lindh v. Murphy, 

, 2062 (1997).

                                         -14-
       The proceedings in state court indicate that Hensley contacted Sweet's counsel
with information that she had seen a man who resembled Sweet driving a truck similar
to Sweet's in the Springfield area shortly after the shooting. Counsel drove by the
address Hensley gave him, noticed that the truck's door was a different color from the
doors of Sweet's truck, and decided not to put Hensley on the witness stand. See

. "We will not fault a reasonable strategy not to investigate
further if it is based on sound assumptions." Kenley v. Armontrout, 

,
1308 (8th Cir.), cert. denied, 

(1991). The assumption here--that the
mystery truck was not likely to be confused with Sweet's truck--was certainly a sound
one, and we cannot conclude on this record that counsel's representation "fell below an
objective standard of reasonableness." 

. Nor can Sweet
establish prejudice. The post-conviction court found that Hensley's testimony did not
match the specificity of Sweet's claim and suggested that she was not a credible
witness, and the Missouri Supreme Court held that the evidence of the other truck
would not have been admissible. See 

. Sweet's claim of
ineffective assistance of counsel fails.

                                           B.

        Next we address Sweet's claim of prosecutorial misconduct based on the
prosecutor's introduction of evidence of a prior bad act (#3a). During the guilt phase
of the trial, the prosecutor elicited from witness Donald Bills evidence that at the time
of the murder, Sweet was under an outstanding Texas warrant arising out of an incident
involving cocaine and a gun. The purpose of this evidence, according to the
prosecutor, was to show that Sweet's motive for killing Harper was to avoid being
arrested and returned to Texas. The Missouri Supreme Court held that the evidence
was admissible on the issue of motive. See 

. As we have
remarked already, Sweet did not renew before the District Court his argument that the
trial court denied him due process of law by admitting this evidence, and that claim is


                                          -15-
not now before us.15 Sweet's theory of prosecutorial misconduct is that the prosecutor
"knew it was improper to pursue purely irrelevant and inflammatory testimony" but
introduced it nevertheless. Sweet Br. at 25.

       The problem with Sweet's claim is that he cannot show that the prosecutor knew
that this evidence was irrelevant and inflammatory. In fact, the Missouri Supreme
Court concluded just the opposite: the evidence was relevant and admissible. See

. Aside from occasional references to broad principles of
due process, Sweet's entire argument is directed at rearguing the admissibility issue.
But this issue has been decided against him already, and we are powerless to determine
that evidence is inadmissible as a matter of Missouri law. See 

. Anticipating such a holding, Sweet insists that "this issue requires a federal
court ruling on the prosecutor's misconduct, not on a state evidentiary issue. The
evidentiary issue simply forms part of the basis for the prosecutorial misconduct claim."
Sweet Br. at 25. As Sweet has formulated his misconduct claim, however, it cannot
succeed unless we also decide that the evidence was inadmissible. This we cannot do,
and so we agree with the District Court that relief is unavailable to Sweet.

                                            C.

     Sweet next argues that the prosecutor was guilty of misconduct in cross-
examining a witness during the penalty phase (claim #3c). Sweet presented Judy
Meyer during the penalty phase to testify about Sweet's good character. On cross-


       15
         In cases where the petitioner alleges that both the court's action in admitting the
evidence and the prosecutor's action in presenting the evidence violate due process, we
have conflated the two issues and applied the same test, looking to see whether the
admission of the evidence was so egregiously improper as to deny the petitioner a fair
trial. See Anderson v. Goeke, 

, 678-79 & n.2 (8th Cir. 1995). In this case,
where the trial court's action is no longer an issue, we take Sweet's claim of misconduct
as he presents it to us.

                                           -16-
examination, the prosecutor sought to test Meyer's knowledge of Sweet's reputation by
asking her whether she was aware that Sweet had been arrested on a number of charges
on different occasions. See generally Michelson v. United States, 

, 482-
83 (1948) (approving this type of cross-examination in federal courts). The prosecutor
did not mention that some of the arrests had led to acquittals or to convictions on lesser
charges, nor that Sweet had never been prosecuted following other of the arrests.
Although the Missouri Supreme Court concluded that the prosecutor's questions were
proper under Missouri law, see 

, Sweet argues that his Eighth
Amendment and due process rights were violated because the questions were
misleading and rendered the penalty phase unreliable and fundamentally unfair.16 As
we have noted above, Sweet defaulted the related claim that his counsel was ineffective
in failing to object to the questions and failing to explain adequately the outcomes of
the arrests.

       The District Court concluded that Sweet's claim was without merit. We might
well agree if we were to reach the merits, but we conclude that Sweet is not entitled to
relief under the doctrine of Teague v. Lane, 

, 316 (1989) (plurality
opinion). See also Penry v. Lynaugh, 

, 313-14 (1989) (holding that
Teague doctrine applies in capital cases). As it is relevant here, Teague stands for the
proposition that "habeas corpus cannot be used as a vehicle to create new constitutional
rules of criminal procedure unless those rules would be applied retroactively to all
defendants on collateral review." 

. This means that "unless
reasonable jurists hearing petitioner's claim at the time his conviction became final
'would have felt compelled by existing precedent' to rule in his favor, we are barred

      16
        At times in his argument, Sweet also claims that the prosecutor's questions
were false, inaccurate, or distorted. Sweet presents nothing to indicate that the facts
subsumed in the prosecutor's questions--namely, that Sweet was arrested on particular
charges on particular dates--are in any way inaccurate. Before the District Court,
Sweet argued only that the questions were misleading because they failed to include the
eventual outcomes of the arrests. We therefore limit our inquiry to this issue.

                                          -17-
from doing so now." Graham v. Collins, 

, 467 (1993) (quoting Saffle v.
Parks, 

, 488 (1990)). We must apply Teague before considering Sweet's
claim on its merits. See Caspari v. Bohlen, 

, 389 (1994).
        Our Teague inquiry has three steps. See O'Dell v. Netherland, 

,
1973 (1997). We first determine when Sweet's conviction became final. The Supreme
Court's denial of Sweet's petition for certiorari on March 18, 1991 fixes the point of
finality. (We note that there have not been any developments since that date that would
affect our analysis anyway.) Next we determine "whether a state court considering
[Sweet's] claim at the time his conviction became final would have felt compelled by
existing precedent to conclude that the rule [Sweet] seeks was required by the
Constitution." 

. No case cited by Sweet or discovered by us
even approaches, much less compels, his proposed rule that a prosecutor may not
cross-examine a character witness about the defendant's prior arrests without disclosing
the results of those arrests. See Johnson v. Mississippi, 

, 590 (1988)
(holding that use as aggravating factor of prior conviction that was later reversed
violated Eighth Amendment); Gardner v. Florida, 

, 362 (1977) (plurality
opinion) (holding that death sentence based in part on presentence report that defendant
"had no opportunity to deny or explain" violated due process); Woodson v. North
Carolina, 

, 305 (1976) (plurality opinion) (holding that mandatory death
penalty for first-degree murder violated Eighth Amendment); Donnelly v.
DeChristoforo, 

, 646-47 (1974) (holding that ambiguous remark in
prosecutor's closing argument did not violate due process); Miller v. Pate, 

,
7 (1967) (holding that prosecutor's "knowing use of false evidence" violated due
process); Newlon v. Armontrout, 

, 1335 (8th Cir. 1989) (holding that
closing argument in which prosecutor "(1) expressed his personal belief in the propriety
of the death sentence and implied that he had special knowledge outside the record; (2)
emphasized his position of authority as prosecuting attorney of St. Louis County; (3)
attempted to link petitioner with several well-known mass murderers; (4) appealed to
the jurors' personal fears and emotions; and (5) asked the jurors to 'kill him now. Kill


                                         -18-
him now.'" violated due process), cert. denied, 

(1990). Although we
have been unable to locate any cases discussing the precise issue argued by Sweet, we
have suggested that cross-examination of the sort that took place in the instant case is
permissible. See Byrd v. Armontrout, 

, 11 (8th Cir. 1989), cert. denied, 

(1990); cf. Marshall v. Lonberger, 

, 439 n.6 (1983) (suggesting
that due process does not require more than Michelson requires).

       Only a new rule, therefore, would help Sweet. The third step of our inquiry is
whether this new rule "nonetheless falls within one of the two narrow exceptions to the
Teague doctrine." 

. Little discussion is required here. Sweet
does not proffer a rule "forbidding criminal punishment of certain primary conduct [or]
prohibiting a certain category of punishment for a class of defendants because of their
status or offense." 

. Nor is his proposed rule within the even
narrower exception for rules requiring procedures that "'are implicit in the concept of
ordered liberty.'" 

(quoting 

).
Because the proposed new rule does not fit either Teague exception, it may not be
established in federal habeas review of a state conviction, and thus relief on this claim
is not available to Sweet.

                                            D.
       Sweet's fourth claim is that venireperson Charlene Gill was struck improperly for
cause. Because Gill had expressed doubts about the death penalty but had indicated
that her feelings about the death penalty would not prevent or substantially impair her
from performing the duties of a juror, Sweet claims, her exclusion violated his Sixth
Amendment rights under Witherspoon v. Illinois, 

(1968), and its progeny.
As Witherspoon has been interpreted, the proper test for exclusion of a juror for cause
is "whether the juror's views would 'prevent or substantially impair the performance of
his duties as a juror in accordance with his instructions and his oath.'" Wainwright v.
Witt, 

, 424 (1985) (quoting Adams v. Texas, 

, 45 (1980)).


                                          -19-
        The transcript of voir dire reveals that Gill was unsure how she felt about capital
punishment, but she eventually stated that she could vote for the death penalty. Later,
the court inquired about events in Gill's personal life, and Gill indicated that her son
was about to have a birthday and that her husband, who was in night school, would be
unable to be with her son. She said that she would be worried about her son, but she
later stated that she would be able to decide the case fairly and impartially nevertheless.
The prosecutor moved to strike Gill for cause, and the court denied that motion. The
trial judge later moved Gill to the back of the panel on his own motion, however, citing
his regular policy of handling venirepersons with problems in their personal lives in
cases in which there are sufficient venirepersons without such problems to fill a jury
panel.

       The Missouri Supreme Court rejected Sweet's constitutional argument because
"Gill was not actually removed from the venire panel." 

. We
do not believe that the issue may be resolved so simply, because Gill was removed
from the panel in effect. It appears from the record that the trial judge would not have
moved Gill to the back of the panel unless there were enough other venirepersons to
ensure that she would not be selected.
        Nevertheless, the trial judge stated that he was moving Gill not because of her
scruples about the death penalty, but because of issues in her personal life. Sweet has
given us no reason to disregard the court's stated reason for its action and to conclude
instead that the court was motivated by Gill's position on capital punishment. Neither
the invocation of the Sixth Amendment by Sweet's counsel nor the court's inquiry of the
prosecutor whether, in light of the constitutional objection, he still wanted Gill excluded
suffices to alter the nature of the court's action; in fact, immediately after this exchange,
the judge reaffirmed that he was adhering to his policy. We are unable to conclude that
the trial court's action had anything to do with issues of capital punishment; instead, we
believe that the court's policy was a neutral, humanitarian method of enabling
venirepersons to escape jury duty when events in their personal lives directed their


                                            -20-
attention elsewhere. Whether the trial court's policy comported with state law on
strikes for cause is not an issue for our consideration. See 

.

        To the extent that Sweet is suggesting that some sort of pretext analysis should
apply to facially constitutional juror strikes or that Witherspoon's limitation on strikes
"for cause" applies to strikes for any sort of cause, rather than merely to strikes based
on the venireperson's feelings about capital punishment, any such argument is
foreclosed by the Teague principles we have discussed above.17 We conclude only that
the trial court's movement of Gill to the back of the venire panel for personal reasons
did not violate Sweet's Sixth Amendment rights.

                                            E.




      17
         Sweet argues that Parker v. Dugger, 

(1991), requires us to "look
at the underlying reasons" for the trial court's action. Sweet Br. at 34. We do not think
that this is what Parker means at all. In that case, a Florida trial judge sentenced Parker
to death, and the state appellate court found that two of the aggravating factors relied
on by the judge were invalid but affirmed the sentence anyway. The Supreme Court
held that the appellate court was required to review the record to determine if any
mitigating factors were present, since the trial court had not made a finding to the
contrary. See 

. We are already looking at the record, of
course, and Sweet does not suggest any deeper level of review to which we could
descend. More importantly, however, we are not a state appellate court considering
this case on direct review, and Sweet neglects to acknowledge the deference we owe
to the state courts. For example, if the trial court had excluded Gill for Witherspoon
reasons, the court's action would be entitled to the presumption of correctness of 28
U.S.C. § 2254(d). See 

. Similarly, if the motivation for the
trial judge's action had been ambiguous and the Missouri Supreme Court had resolved
the ambiguity, we would defer to that resolution under § 2254(d). See Wainwright v.
Goode, 

, 84-86 (1983) (per curiam). In light of the deference we owe to
the state courts, we do not see how we may determine that the reason for the trial
court's action was something other than what the court said it was.

                                           -21-
       Sweet next complains that he was not permitted to introduce exculpatory
evidence during his cross-examination of Donald Bills during the guilt phase (claim #5).
Bills testified on direct examination that on the day of the murder, Sweet began to
repaint his truck, changed its tires, listened to a police scanner continuously, and
shaved off his moustache. On cross-examination, Sweet sought to ask Bills whether
Sweet had ever denied involvement in the crime. The court sustained the prosecutor's
hearsay objection over Sweet's argument that the statement was admissible on the issue
of state of mind. The Missouri Supreme Court affirmed. See 

.

        We again reject Sweet's attempt to reargue an issue of state law, namely
admissibility. See 

. But Sweet also argues that the
exclusion of this evidence violated his due process rights, regardless of the propriety
of the court's action under state law. The exclusion of evidence violates due process
if "the asserted error was 'so conspicuously prejudicial or of such magnitude that it
fatally infected the trial and deprived [the defendant] of fundamental fairness.'" Logan
v. Lockhart, 

, 1330 (8th Cir. 1993) (citation omitted) (alteration in
Logan), cert. denied, 

(1994). "'Where the state interest [in excluding
evidence] is strong, only the exclusion of critical, reliable and highly probative evidence
will violate due process.'" Stallings v. Benson, 

, 819 (8th Cir. 1994)
(citation omitted) (emphasis in Stallings; our alteration). The state's interest in
excluding hearsay testimony is undeniably strong. See Chambers v. Mississippi, 

, 298 (1973) (noting that hearsay rule is "grounded in the notion that
untrustworthy evidence should not be presented to the triers of fact"). We are unable
to conclude that Sweet's proffered evidence is at all reliable; a denial of guilt made by
a criminal defendant to a friend contains no indicia whatsoever of reliability. Cf. 

(holding that exclusion of evidence that another person confessed to three other
individuals that he committed murder violated due process). Nor, we add, was this
evidence critical to Sweet's defense. Sweet took the stand in his own defense and
denied killing Harper. If the jury did not credit Sweet's denial of guilt at trial, there is

                                           -22-
no reason to believe that a secondhand report that he had previously denied guilt would
have carried any weight with the jury.

                                           F.

       We now turn to Sweet's argument that the trial court's exclusion of evidence
during the penalty phase violated his Eighth Amendment rights under Lockett v. Ohio,

(1978), and its progeny (claim #8). During the penalty phase, one of
Sweet's witnesses testified about various social activities she and her husband had
enjoyed with Sweet, and she remarked that Sweet was a good photographer who liked
to take pictures. After the witness stepped down, Sweet offered into evidence albums
of photographs taken by him. The trial court refused the evidence as irrelevant.

      Lockett stands for the proposition that "the State cannot bar relevant mitigating
evidence from being presented and considered during the penalty phase of a capital
trial." 

. This principle has been held to require that the
sentencing judge or jury be permitted to consider various types of mitigating evidence.
See 

(mental retardation and background of abuse); Hitchcock
v. Dugger, 

, 398-99 (1987) (family background and potential for
rehabilitation); Skipper v. South Carolina, 

, 5 (1986) (evidence that
defendant would not pose a danger if sentenced to life in prison); Eddings v. Oklahoma,

, 113-15 (1982) (youth and difficult family background).

       We have little guidance on what constitutes relevance for Lockett purposes, but
we know that "the mere declaration that evidence is 'legally irrelevant' to mitigation
cannot bar the consideration of that evidence if the sentencer could reasonably find that
it warrants a sentence less than death." McKoy v. North Carolina, 

, 441
(1990). We agree with the Missouri Supreme Court that the jury could not reasonably
have found that Sweet's photographs warranted or helped to warrant a sentence less
than death. See 

("[I]t is difficult to see how the photographs

                                          -23-
are even tangentially relevant to defendant's character."); see also Schneider v. Delo,

, 342 (8th Cir.) (holding that evidence that accomplice had agreed to plea
bargain was not relevant mitigating evidence), cert. denied, 

(1996).

      Assuming arguendo that the Eighth Amendment required the trial judge to admit
the photographs, their exclusion was harmless error. See 

(implying that harmless-error analysis applies to Lockett errors); 

(same). In light of the record as a whole, including the nature of the crime, Sweet's
decision not to testify in his own behalf during the penalty phase, and the testimony of
more than one witness that Sweet is a good photographer, we are satisfied that any
error in excluding the photographs themselves was "harmless beyond a reasonable
doubt." Chapman v. California, 

8, 24 (1967).18

                                           G.

        Sweet's eleventh claim is that the Missouri Supreme Court did not conduct a
meaningful and proper proportionality review of his death sentence. By "proper,"
Sweet apparently means to argue that the state court did not comply with the state
statute requiring proportionality review of capital cases. See Mo. Rev. Stat. § 565.035
(1986). We have rejected many arguments by Missouri petitioners that they are
entitled to habeas relief because of the Missouri courts' perceived failure to comply
with § 565.035. See 

; Six v. Delo, 

, 478 (8th
Cir. 1996) ("The Constitution does not require us to look behind [the court's
proportionality] conclusion to consider the manner in which the court conducted its
review or whether the court misinterpreted the Missouri statute."), cert. denied, 117


      18
        We apply the Chapman standard rather than the more deferential standard of
Brecht v. Abrahamson, 

, 638 (1993), because the Missouri Supreme Court
did not conduct harmless-error review on direct appeal. See Joubert v. Hopkins, 

, 1245 (8th Cir.), cert. denied, 

(1996).

                                          -24-
S. Ct. 2418 (1997). See generally Walton v. Arizona, 

, 656 (1990)
("[T]he Arizona Supreme Court plainly undertook its proportionality review in good
faith and found that Walton's sentence was proportional to the sentences imposed in
cases similar to his. The Constitution does not require us to look behind that
conclusion."). We add that the habeas statute does not permit us to consider whether
the court misinterpreted the state statute, as we have now repeated several times in this
opinion. See 

.

      The Eighth Amendment does not require a state appellate court to undertake a
proportionality review. See Pulley v. Harris, 

, 50-51 (1984). Sweet casts
his argument instead in terms of due process and equal protection, but he does not
articulate any coherent theory under either doctrine, except to rely on state law and
Eighth Amendment cases decided before Pulley. Even if we assume that Sweet's
arguments would survive analysis under Teague, we see no merit in them. We have
rejected previous due process challenges to Missouri's proportionality procedures, see
Foster v. Delo, 

, 882 (8th Cir. 1994) (en banc), cert. denied, 

(1995); Murray v. Delo, 

, 1377 (8th Cir. 1994), cert. denied, 

(1995), and we see no basis for a conclusion that these procedures violated
Sweet's right to equal protection of the laws.




                                          -25-
                                            H.

        Sweet's final claim (#12) is that he received ineffective assistance of appellate
and post-conviction counsel. We have held already that Sweet has no constitutional
right to effective assistance of post-conviction counsel. The totality of Sweet's
argument regarding his appellate counsel is that "counsel for the consolidated appeal
failed to present properly all issues on appeal." Sweet Br. at 47. Sweet has waived this
claim by failing to argue it with any specificity whatsoever. See Sidebottom v. Delo,

, 750 (8th Cir.) (citing Fed. R. App. P. 28(a)(5)), cert. denied, 

(1995).

       In any event, we have had occasion to review appellate counsel's work in our
examination of the procedural-default issues, and we are satisfied that counsel's
representation was able and thorough. Counsel raised eighteen points of error in more
than 150 pages of briefing in the Missouri Supreme Court, and she pursued two of
these points in a certiorari petition. Sweet was not entitled to have counsel raise "every
argument, regardless of merit," Evitts v. Lucey, 

, 394 (1985), and Sweet
has not even attempted to demonstrate how anything counsel might have done
differently would have affected the outcome of his case. Sweet's argument is without
merit.

                                              V.
        Finally, we address Sweet's argument that the District Court abused its discretion
in denying him an evidentiary hearing. Sweet sought a hearing on his claims of
ineffective assistance of trial counsel and his claim regarding the prosecutor's use of his
arrest record to impeach his character witness. Because the bulk of Sweet's claims of
ineffective assistance of trial counsel are procedurally barred, a hearing on those claims
would get him nowhere. The same reasoning applies to the issue of Sweet's arrest
record, which is barred by Teague. Only the issue of Freddie Hensley and the mystery


                                           -26-
truck possibly could be affected by further development of the facts. Sweet received
a five-day hearing on his 29.15 motion and developed the factual basis of this claim at
that time. He is entitled to an evidentiary hearing in federal court only if he can show
cause and prejudice for his failure to develop the facts fully in state court. See Keeney
v. Tamayo-Reyes, 

, 11 (1992). Sweet has not done so, nor has he shown
that a fundamental miscarriage of justice will result if he is denied an evidentiary
hearing. See 

Accordingly, the District Court did not abuse its discretion in
denying Sweet a hearing.

                                          VI.

        We have considered the additional arguments that may be drawn from Sweet's
briefs, and we have concluded that they are without merit. The judgment of the District
Court is affirmed. We thank appointed counsel for their diligent service.

      A true copy.

             Attest:

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




                                          -27-