United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-3360
                                No. 17-1060
                        ___________________________

                             Charles Russell Rhines

                      lllllllllllllllllllllPetitioner - Appellant

                                          v.

                                   Darin Young

                      lllllllllllllllllllllRespondent - Appellee

                                  ____________

                   Appeals from United States District Court
                  for the District of South Dakota - Rapid City
                                  ____________

                           Submitted: January 11, 2018
                              Filed: August 3, 2018
                                 ____________

Before LOKEN, GRUENDER, and KELLY, Circuit Judges.
                          ____________


LOKEN, Circuit Judge.

      Charles Russell Rhines brutally murdered Donnivan Schaeffer while burgling
a donut shop in Rapid City, South Dakota, on March 8, 1992. A state court jury
convicted Rhines of murder and burglary and sentenced him to death. The Supreme
Court of South Dakota affirmed the conviction and sentence, State v. Rhines, 

, 424 (S.D.), cert. denied, 

(1996), and subsequently
affirmed the denial of state post-conviction relief. Rhines v. Weber, 

,
305 (S.D. 2000). The district court1 denied his federal petition for a writ of habeas
corpus but issued a certificate of appealability on multiple claims. See 28 U.S.C.
§ 2253(c). On appeal in Case No. 16-3360, Rhines argues six issues, one relating to
the guilt phase and five to the penalty phase of the trial. We affirm.

                              I. A Guilt Phase Issue.

      Rhines argues that the state courts violated his federal constitutional privilege
against self-incrimination by admitting at trial prejudicial inculpatory statements he
made after warnings that he claims did not comply with Miranda v. Arizona, 

(1966). Miranda held that, before a person in custody can be interrogated, he
must be warned:

      that he has the right to remain silent, that anything he says can be used
      against him in a court of law, that he has the right to the presence of an
      attorney, and that if he cannot afford an attorney one will be appointed
      for him prior to any questioning if he so desires. Opportunity to
      exercise these rights must be afforded to him throughout the
      interrogation.

The Supreme Court of South Dakota considered this issue at length on
direct appeal and denied relief, concluding that Rhines was given constitutionally
adequate warnings. 

.

      Under the Antiterrorism and Effective Death Penalty Act (AEDPA), when a
claim has been “adjudicated on the merits in State court proceedings,” a federal writ
of habeas corpus will not be granted:

      1
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.

                                         -2-
      unless the adjudication of the claim -- (1) resulted in a decision that was
      contrary to, or involved an unreasonable application of, clearly
      established Federal law, as determined by the Supreme Court of the
      United States; or (2) resulted in a decision that was based on an
      unreasonable determination of the facts in light of the evidence
      presented in the State court proceeding.

28 U.S.C. § 2254(d). Rhines argues, as he did to the district court, that the South
Dakota Supreme Court’s determination that the warnings were adequate was an
objectively unreasonable application of Miranda.

       We recite the relevant facts as detailed in the Supreme Court of South Dakota’s
opinion. In February 1992, Rhines was terminated as an employee at the Dig ‘Em
Donuts Shop in Rapid City. On March 8, the body of employee Schaeffer was found
in the Dig ‘Em Donut Shop storeroom with his hands bound and stab wounds.
Approximately $3,300 was missing from the store. On June 19, Rhines was arrested
in Seattle for a burglary in Washington State. After a local police officer read a
Miranda warning, Rhines asked, “Those two detectives from South Dakota are here,
aren’t they?” He was placed in a holding cell without questioning.

        That evening, Rapid City Police Detective Steve Allender and Pennington
County Deputy Sheriff Don Bahr arrived to question Rhines about the Dig ‘Em
Donuts burglary and the murder of Schaeffer. During a suppression hearing prior to
trial, Detective Allender recalled informing Rhines of his Miranda rights as follows:

      [Allender]: You have the continuing right to remain silent. Do you
      understand that?
      [Rhines]: Yes.
      [Allender]: Anything you say can be used as evidence against you. Do
      you understand that?
      [Rhines]: Yes.



                                         -3-
      [Allender]: You have the right to consult with and have the presence of
      an attorney, and if you cannot afford an attorney, an attorney can be
      appointed for you free of charge. Do you understand that?
      [Rhines]: Yes.
      [Allender]: Having these rights in mind, are you willing to answer
      questions?
      [Rhines]: Do I have a choice?
      [Allender]: Yes [you do] have a choice, in fact [you do] not have to talk
      with us at all.
      [Allender again asked Rhines if he wanted to talk with the detectives]
      [Rhines]: I suppose so, I’ll answer any questions I like.

After these warnings, Rhines gave the officers permission to tape record his statement
and made a chilling confession to committing the Dig ‘Em Donuts burglary and
killing Schaeffer. On June 21, after Allender and Bahr gave the same warnings,
Rhines again confessed to the burglary and killing.

      At trial, over Rhines’s objections, the prosecution introduced Detective
Allender’s testimony regarding Rhines’s statements during the untaped portion of the
June 19 interview, and recordings of the June 19 and June 21 interviews. From the
recordings, the jury heard that Rhines broke into Dig ‘Em Donuts to burglarize it.
During the burglary, Schaeffer entered the store to retrieve money and supplies for
another store. Rhines stabbed Schaeffer in the stomach. With Schaeffer “thrashing
around and screaming,” Rhines stabbed him in the upper back, then “help[ed] him up
and walk[ed] him into the back room and s[a]t him down on the pallet and walk[ed]
him forward, he goes rather willingly like he’s decide it’s time to go.” In the back
room, Rhines stabbed Schaeffer in the head, attempting to “stop bodily function.”
After that, with Schaeffer still breathing, Rhines “tied his hands behind him” and
went back to the office to finish collecting money. A medical examiner testified that
Schaeffer’s wounds were consistent with Rhines’s confession.




                                         -4-
       On direct appeal, Rhines argued the Miranda warnings were constitutionally
deficient in three ways: (i) he was informed of his “continuing right to remain silent,”
but not his right to cut off questioning whenever he wished; (ii) he was informed of
“the right to consult with and have the presence of an attorney,” but not his right to
an attorney before and during questioning; and (iii) he was informed that “an attorney
can be appointed for you free of charge,” but not that an attorney would or must be
appointed. The Supreme Court of South Dakota concluded the warnings were
sufficient, applying the standard in Duckworth v. Eagan, 

, 203 (1989)
(“[t]he inquiry is simply whether the warnings reasonably convey to a suspect his
rights as required by Miranda”). The Court reasoned that the interview transcript
demonstrated that Rhines understood his right to cut off questioning at any time;
indeed, he turned off the recorder when asked about a topic he did not wish to

. Rhines was told of his right to an attorney at the
beginning of each interview, a warning that “plainly communicated the right to have
an attorney present at that time.” 

totality of the warning given
“reasonably conveyed the right to appointed counsel.” 

The Court noted
that “[t]he words of Miranda do not constitute a ritualistic formula which must be
repeated without variation in order to be effective.” 

quoting Evans v.
Swenson, 

, 295 (8th Cir.), cert. denied, 

(1972).

       The district court, reviewing the decision under AEDPA, concluded that “the
South Dakota Supreme Court did not unreasonably apply clearly established federal
law when it determined that Rhines received effective Miranda warnings prior to his
June 19 and 21, 1992 interviews.” Relying on Duckworth, the district court
concluded that “the initial warnings given to Rhines touched all the bases required
by Miranda.” In reviewing a district court’s denial of a § 2254 petition, we review
the district court’s findings of fact for clear error and its conclusions of law de novo.
Middleton v. Roper, 

, 845 (8th Cir. 2006) (standard of review).




                                          -5-
       Rhines cites no clearly established federal law that the warnings given to him
were inadequate under Miranda. He simply disagrees with the South Dakota
Supreme Court’s application of Miranda and clearly established federal cases
interpreting Miranda. That Court carefully considered each alleged deficiency in
light of the warnings given and the circumstances surrounding the warnings, applying
the proper Supreme Court standard and considering relevant precedent from this
court. Rhines makes the conclusory assertion that the warnings did not reasonably
convey his rights. But he does not explain why the warnings given were objectively
unreasonable in these circumstances. Reviewing de novo, the district court did not
err in concluding that Rhines is not entitled to relief on this claim under AEDPA.

                              II. Penalty Phase Issues.

       Two of the five penalty phase issues raised on appeal concern claims of
ineffective assistance of trial counsel (IAC) at the penalty phase. These federal
claims have a long and complicated procedural history.

       The trial court appointed three attorneys to represent Rhines at trial -- Joseph
Butler and Wayne Gilbert, both in private practice, and Michael Stonefield, a local
public defender. After the jury found Rhines guilty of first-degree murder and third-
degree burglary, the case proceeded to the sentencing phase. The prosecution
incorporated evidence from the guilt phase and rested. The defense presented
testimony of Rhines’s two sisters. They described his academic, behavioral, and
social struggles as a child and teenager. They testified that he dropped out of school
in early high school, was not helped by enlisting in the military at age seventeen, and
struggled with his sexuality as a gay man who grew up in a conservative, Midwestern
family. Consistent with South Dakota law, the jury found that one or more statutory
aggravating circumstances existed and sentenced Rhines to death.




                                         -6-
       After his conviction and sentence were affirmed on direct appeal, Rhines
applied to the state trial court for a writ for habeas corpus. Represented by new,
independent appointed counsel, the Second Amended Application raised forty-six
issues, including ten claims of IAC by trial and appellate counsel. The ninth claim
was that trial counsel “failed to investigate his background for mitigation evidence.”
After an evidentiary hearing at which the three trial attorneys testified and the
subsequent submission of deposition testimony by a defense attorney expert, the trial
court denied the application in a lengthy letter ruling discussing many allegations of
trial counsel IAC. With respect to the penalty phase claim, Judge Tice wrote:

             (24) Failure to investigate defendant’s background to provide
      effective mitigation.
             As discussed earlier, there were substantial efforts made to
      develop mitigation evidence. Trial counsel used reasonable efforts to do
      so. There is no evidence to support a belief that any further efforts
      would have been fruitful.

Rhines appealed this ruling to the Supreme Court of South Dakota. Regarding the
penalty phase IAC claim, Rhines argued that his trial attorneys’ billing records
“showed that only a cursory amount of work was devoted to mitigation witnesses.
The problem is we do not know if there is mitigation evidence favorable . . . because
the work was not done.” The Supreme Court of South Dakota affirmed in February
2000. After lengthy review of three guilt phase IAC issues, the Court stated:

             Rhines raises several other issues relating to ineffective assistance
      of counsel in his brief. However, these remaining instances are either
      conclusions, which are wholly unsupported by the record, or sound trial
      strategy when judged by the circumstances facing trial counsel at the
      time of their decisions. . . . Rhines has not proven either prong of the
      [IAC] test in regard to these claims.

.

                                          -7-
       Rhines immediately filed a federal habeas petition; a First Amended Petition
filed in November 2000 alleged thirteen grounds for relief. The district court
concluded that numerous grounds were unexhausted and stayed the petition pending
exhaustion of Rhines’s state court remedies. The State appealed, we reversed; the
Supreme Court, resolving a conflict in the circuits, held that, “in limited
circumstances,” the district court “has discretion to stay the mixed petition to allow
the petitioner to present his unexhausted claims to the state court . . . and then to
return to federal court for review of his perfected petition.” Rhines v. Weber, 

, 271-72, 277 (2005), rev’g 

(8th Cir. 2003). We then remanded
to the district court for further consideration under the Supreme Court’s new
standards. Rhines v. Weber, 

, 983 (8th Cir. 2005). In December 2005,
the district court granted a stay. The court concluded that two penalty phase IAC
issues were claims that may not have been exhausted in Rhines’s state habeas
proceeding -- that trial counsel’s presentation of mitigation evidence was “tepid,” and
that counsel failed to hire a mitigation expert.

       Rhines then returned to the South Dakota state courts and exhausted his
unexhausted claims, including these two penalty phase IAC claims, in a successive
state habeas proceeding. Based on the evidentiary record from the initial state habeas
proceeding, and extensive affidavits and exhibits submitted by the State, the trial
court granted the State’s motion for summary judgment on the merits of the penalty
phase IAC claims. Rhines v. Weber, No. Civ. 02-924, Memorandum Decision (S.D.
7th Jud. Cir. Sept. 17, 2012). Judge Trimble also ruled that one claim, that counsel
presented only “tepid” mitigation evidence at the penalty phase, was raised in the first
habeas proceeding, was decided by Judge Tice, and was therefore precluded by res
judicata. The Supreme Court of South Dakota denied probable cause to appeal, and
the Supreme Court of the United States denied Rhines’s petition for certiorari review.
Rhines v. Weber, 

(2014). With all claims in Rhines’s federal petition
now exhausted, the district court lifted the stay. On February 16, 2016, in a 132-page



                                          -8-
Order, the district court granted the State’s motion for summary judgment and denied
Rhines’s First Amended Petition for federal habeas corpus relief.

                               A. Penalty Phase IAC.

        Rhines argues the district court erred in rejecting his claim that trial counsel
were ineffective in investigating and presenting mitigating evidence during the
penalty phase of trial, and that the state courts’ contrary determination, made without
an evidentiary hearing, was an unreasonable application of Supreme Court precedent
based on unreasonable findings of fact. We review the district court’s legal
conclusions de novo and its factual findings for clear error. Taylor v. Bowersox, 

, 968 (8th Cir. 2003). In rejecting this claim, both the state courts and the
district court applied the familiar IAC standard of Strickland v. Washington, 

(1984). To establish a claim for ineffective assistance of counsel, “the defendant
must show that counsel’s performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” 

The defendant must
also “show that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.” 

federal habeas relief, Rhines must establish that the state courts’
decisions during the state habeas proceedings “resulted in a decision that was
contrary to, or involved an unreasonable application of” the Strickland standard; or
“resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). These are deferential standards. In reviewing a state court’s application
of Strickland under § 2254, “[t]he question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington v.
Richter, 

, 105 (2011). Our review is “limited to the record that was before

                                          -9-
the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 

, 180 (2011). “To determine whether the decision involved an unreasonable
application of clearly established federal law, we review the decision reached in state
court proceedings, but not the quality of the reasoning process.” Dansby v. Hobbs,

, 830 (8th Cir. 2014), cert. denied, 

(2015).

       When a habeas claim has been adjudicated on the merits by the state courts, we
review “the last reasoned decision of the state courts.” Worthington v. Roper, 

, 497 (8th Cir.) (quotation omitted), cert. denied, 

(2011).
Here, the district court considered three distinct penalty phase IAC claims -- failure
to perform an adequate mitigation investigation, presentation of a “tepid” mitigation
case at trial, and failure to hire a mitigation expert. The first claim was raised in
Rhines’s first state habeas petition and exhausted when the Supreme Court of South
Dakota summarily affirmed Judge Tice’s denial. 

. The
second two claims were not exhausted until the Supreme Court of South Dakota
denied leave to appeal Judge Trimble’s Memorandum Decision granting summary
judgment dismissing these claims.

      In his September 2012 Decision, Judge Trimble expressly declined to
reconsider the earlier rejection of the failure-to-investigate claim on the merits:

             As to the issues already addressed by the Supreme Court and the
      habeas court, the doctrine of res judicata disallows reconsidering an
      issue that was actually litigated or that could have been raised and
      decided in a prior action. Ramos v. Weber, 

, 

; SDDS, Inc. v. State, 

, ¶ 16, 

, 295
      [citation omitted].

Thus, Judge Trimble considered new evidence submitted by Rhines in the successive
state habeas proceeding -- principally, a June 2012 Affidavit of Dr. Dewey Ertz, a
psychologist whose testing showed results consistent with Attention Deficit

                                         -10-
Hyperactivity Disorder (ADHD) and learning disorders -- only in connection with the
unexhausted claims. This ruling significantly affects our consideration of these
issues. First, it establishes that “the last reasoned decision of the state courts” on the
failure to investigate claim was the Supreme Court of South Dakota’s summary
affirmance of Judge Tice’s decision in October 1998 rejecting this claim on the merits
after a full evidentiary hearing at which all trial attorneys and a defense attorney
expert testified live or by deposition. Second, the Affidavit of Dr. Ertz submitted by
Rhines in the successive state habeas proceeding, on which Rhines heavily relies on
this appeal, may be considered in deciding the two then-unexhausted claims, but is
not part of the record on the previously exhausted failure to investigate claim. See
28 U.S.C. § 2254(e)(2); Holland v. Jackson, 

, 650-53 (2004). Third,
Judge Trimble’s additional ruling that the tepid-presentation unexhausted claim was
barred by res judicata as a matter of South Dakota law is an independent and adequate
state ground that bars federal habeas relief on this claim. Coleman v. Thompson, 

, 729-30 (1991); Hanna v. Ishee, 

, 613-14 (6th Cir. 2012), cert.
denied, 

(2013); Franklin v. Luebbers, 

, 750 (8th Cir.
2007), cert. denied, 

(2008); cf., Foster v. Chatman, 

,
1746-47 (2016).

       1. The Failure To Investigate Claim. Rhines argues that trial counsel were
ineffective because they failed to conduct an adequate mental health investigation,
failed to provide adequate background information to a retained psychiatrist, failed
to follow up on the results of psychological testing, and inadequately investigated
Rhines’s family background and school and military records. Prior to trial, Rhines
was evaluated by Dr. D.J. Kennelly, a psychiatrist, for competency, mental illness,
and sanity, and Dr. Bill H. Arbes, a psychologist. Dr. Kennelly found no signs of
mental illness, but saw signs of personality deficits. Dr. Arbes’s report found that
Rhines suffered from general anxiety disorder and schizotypal personality disorder
with paranoid, schizoid, or avoidant traits.



                                          -11-
       In denying this claim after a full evidentiary hearing, Judge Tice noted: “there
were substantial initial efforts made to develop mitigation evidence. Trial counsel
used reasonable efforts to do so. There is no evidence to support a belief that any
further efforts would have been fruitful.” The Supreme Court of South Dakota
cryptically affirmed this ruling. But Judge Trimble, laying foundation for considering
the unexhausted tepid-presentation claim on an expanded summary judgment record,
described trial counsel’s investigative efforts in greater detail:

             A review of the record reveals that Rhines’ counsel did
      investigate possible mitigation evidence. They investigated by talking
      to Rhines, his family and friends, reviewing his military service records,
      his schooling, employment history, psychiatric and psychological
      examinations and found that there was very little mitigating evidence to
      be found or presented. Counsel also looked to Rhines for information.
      Gilbert asked him to write an autobiography from which he hoped to
      obtain mitigating information. The information revealed in this
      autobiography was at best disturbing. Rhines autobiography described
      his poor performance in school The attached affidavits from his
      teachers reveal that he was disruptive, defiant and rebellious. The
      affidavit from Rhines’ childhood friend, Kerry Larson, indicates that
      Larson’s testimony would not be favorable to Rhines. He describes
      Rhines as “intimidating and scary” and knew of Rhines’ attempt to blow
      up the grain elevator. He also said Rhines had a reputation for being a
      fire starter, and for abusing small animals. He also stated that he
      witnessed Rhines pouring gasoline on an anthill and setting it on fire in
      the 6th grade. Furthermore, the other friends that Rhines named in his
      answers to interrogatories as being helpful in the mitigation case, were
      interviewed and they did not provide any favorable testimony to support
      Rhines’ allegations.

             His military records show that he was jailed and disciplined and
      Article 15’d on numerous occasions for insubordination, drug use, theft
      of plastic explosives, and assault with a deadly weapon on a fellow
      service member. In 1976, Rhines was discharged on less than honorable
      conditions 4 months before the completion of his enlistment.


                                         -12-
            After leaving the military, Rhines briefly attended college until he
      burgled a dorm room in 1977. He then obtained employment with an
      excavating contractor where he was taught to use dynamite. His
      employment ended when he stole his employer’s dynamite and wired a
      grain elevator to explode. One of his employers became aware of his
      plan and rushed to the elevator and unwired the dynamite before Rhines
      could explode it.

             Between his release from the penitentiary in 1987 and the 1992
      murder, Rhines worked various jobs. He worked at a doughnut shop in
      Seattle, Washington, until he embezzled approximately $40,000 from
      the company by forging payroll checks made payable to himself.

                                *    *   *      *   *

             [Trial counsel] Gilbert further explained in his affidavit that
      Rhines’ sisters were emphatic that their elderly mother could not take
      the stand or assist in his defense. Gilbert stated that the defense team
      met with Dr. D.J. Kennelly, a psychiatrist and that he did not recognize
      anything in his report as being useful as mitigation evidence. Dr.
      Kennelly consulted with Dr. Bill H. Arbes, a psychologist, and no useful
      evidence was gleaned from his report, either. Gilbert stated that he
      discussed having Rhines giv[e] his own allocution but it was determined
      that Rhines’ allocution would not be convincing. He further stated that
      Rhines agreed that his allocution would not be effective.

       Based largely on Dr. Ertz’s report, which we may not consider on this issue,
Rhines argues that trial counsel “bungled” the mental health investigation and “never
conducted a thorough investigation of Mr. Rhines’s background and history.” But
“strategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation.” 

. Here, as in Burger v. Kemp, 

(1987), we agree with the state courts and the district court “that there was a
reasonable basis for [counsel’s] strategic decision that an explanation of petitioner’s

                                         -13-
history would not have minimized the risk of the death penalty. Having made this
judgment, he reasonably determined that he need not undertake further investigation
[of Rhines’s past].” 

As Judge Tice noted in denying this claim, “There is
no evidence [in the initial state habeas record] to support a belief that any further
efforts would have been fruitful.” “[R]easonably diligent counsel may draw a line
when they have good reason to think further investigation would be a waste.”
Rompilla v. Beard, 

, 383 (2005).

       2. The Tepid Presentation Claim. At sentencing, defense counsel called only
two mitigation witnesses, Rhines’s sisters, who testified that Rhines suffered from
social, emotional, and learning difficulties as a child and teen. Rhines argues counsel
provided ineffective assistance by failing to present testimony by Dr. Arbes to show
Rhines suffered from a serious psychological disorder. As discussed, this issue is
procedurally barred by the state court’s res judicata decision. We also agree with the
district court that the claim fails on the merits. To illustrate, we quote only a small
portion of Judge Trimble’s thorough discussion of this issue:

             Rhines’ trial counsels’ mitigation strategy was predicated on two
      monumental defense victories: 1) a pretrial order in limine excluding
      Rhines’ two prior felony convictions for burglary and armed robbery
      with a sawed off shotgun; and 2) a pretrial order in limine prohibiting
      the state from presenting evidence concerning non-statutory aggravating
      factors.

                                 *    *    *     *   *

               [Quoting from trial counsel’s testimony at the initial habeas
      hearing] So . . . who we ended up presenting as mitigation witnesses
      were his two sisters who were both adults, and they talked about him,
      what they remembered from his childhood and the contacts . . . they had
      with him more recently. . . . I saw us as being really boxed in . . . to how
      much about his life we could present without opening up the fact that
      . . . he had spent a good part of . . . his adult life in prison.

                                          -14-
                                 *    *    *     *   *

             [D]ue to strategic reasons such as the fear of opening the door to
      allow evidence of Rhines past criminal history and other aggravating
      evidence which counsel has successfully moved in limine to exclude, a
      delicate line had to be walked in the presentation of any evidence at this
      phase of the trial.

                                 *    *    *     *   *

             The record is replete with evidence supporting the theory that the
      presentation of the evidence at the penalty phase was due to strategic
      planning and an effort to minimize the potential “bad” evidence that the
      State could have introduced to rebut Rhines’ efforts to put in mitigating
      evidence.

       Numerous cases confirm that the state court’s analysis was not an unreasonable
application of Strickland under the governing deferential standard -- “whether there
is any reasonable argument that counsel satisfied Strickland’s deferential standard.”

; see Darden v. Wainwright, 

, 185-87 (1986);

; Fretwell v. Norris, 

, 627-28 (8th Cir.), cert.
denied, 

(1998); Sidebottom v. Delo, 

, 754 (8th Cir.), cert.
denied, 

(1995). Rhines cites no contrary, factually indistinguishable
Supreme Court or Eighth Circuit precedent.

       3. Failure To Hire a Mitigation Expert. Judge Trimble rejected this initially
unexhausted claim because the investigative function of a mitigation expert was
performed by Rhines’s trial counsel, and a retained expert “would have interviewed
the same friends, family, teachers, employers and reviewed the same records
including the autobiography of Rhines, as his attorneys did.” The district court
concluded that a reasonable argument supports this analysis “given the extensive
investigation that had already taken place.” We agree.



                                          -15-
       As we agree with the district court that the state courts did not unreasonably
apply Strickland in concluding that trial counsels’ penalty phase efforts were not
constitutionally deficient, we need not address whether the state courts unreasonably
concluded there was no Strickland prejudice.

                    B. Denial of Rhines’s Motion to Amend.

       Fifteen months after the district court lifted its stay in February 2014, Rhines
filed a motion for an additional “minimum” 180-day stay to investigate new,
unexhausted claims of penalty phase IAC and for permission to file a second
amended federal habeas petition. The district court denied Rhines this untimely
“opportunity for his current counsel to comb through the record and look for
additional ineffective assistance of trial counsel claims overlooked not only by [his
state post-conviction attorney] but also by each of [his prior] federal habeas
attorneys.” Rhines v. Young, Order Denying Motion for Abeyance at 14 (Aug. 5,
2015). Rhines moved to reconsider and for leave to amend his First Amended
Petition, submitting findings and conclusions by three new experts. Specifically, he
sought to amend his petition to include claims that his “trial counsel were ineffective
for failing to investigate, develop, and present: (1) evidence of his childhood
exposure to environmental toxins; (2) evidence of his brain damage; and (3) evidence
of his military service and resulting trauma.” On appeal, he argues this evidence
“fundamentally alters” his penalty phase IAC claims and renders them unexhausted.

      The district court denied this motion because the contention was contrary to the
holding in Pinholster that federal habeas review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim on the 

. On appeal, Rhines argues the district court erred in denying his
motion to amend and preventing him from investigating and presenting new and
unexhausted claims of penalty phase trial counsel IAC. We review the denial of a



                                         -16-
motion to amend for abuse of discretion. Moore-El v. Luebbers, 

, 901
(8th Cir. 2006) (standard of review).

      Rhines argues these new, unexhausted claims of trial counsel IAC are not
procedurally barred because his first state habeas counsel was ineffective in failing
to conduct an independent review of trial counsel’s performance under Martinez v.
Ryan, 

, 13-14 (2012). But this case is governed by the “mixed petition”
stay-and-abeyance principles established by the Supreme Court in Rhines:

      A mixed petition should not be stayed indefinitely. . . . [N]ot all
      petitioners have an incentive to obtain federal relief as quickly as
      possible. In particular, capital petitioners might deliberately engage in
      dilatory tactics to prolong their incarceration and avoid execution of the
      sentence of death. . . . Thus, district courts should place reasonable time
      limits on a petitioner’s trip to state court and back. . . . And if a
      petitioner engages in abusive litigation tactics or intentional delay, the
      district court should not grant him a stay at 

. In response to this mandate, the district court identified
unexhausted claims that were “potentially meritorious” and granted a stay “pending
exhaustion of [those claims].” Rhines then returned to state court and submitted new
evidence supporting the unexhausted claims -- principally the report of Dr. Ertz.

       Now, years later, based on alleged ineffectiveness of prior federal habeas
counsel, new attorneys request a new, unlimited stay to pursue new, unexhausted
claims of trial counsel penalty phase IAC supported by new experts. This request is
squarely at odds with the Supreme Court’s definition in Rhines of the “limited
circumstances” in which stay and abeyance of a mixed petition promotes exhaustion
of state remedies without frustrating AEDPA’s goal of finality. A habeas petitioner
granted a limited stay to exhaust state post-conviction remedies who returns to federal
court and requests another stay to exhaust additional claims is deliberately engaging
in dilatory tactics and intentional delay that are completely at odds with AEDPA’s

                                         -17-
purpose to “reduce delays in the execution of state and federal criminal sentences,
particularly in capital cases.” 

. Moreover, in this case, Judge
Trimble’s opinion confirms that the new claims would be procedurally barred under
South Dakota law; therefore, further exhaustion would be futile. See Ashker v.
Leapley, 

, 1180 (8th Cir. 1993).

       We also conclude that the district court properly determined that the “new”
claims Rhines seeks to raise in a second amended petition would be precluded by
Pinholster. Rhines raised now-exhausted penalty phase IAC claims that were rejected
by the South Dakota courts on the merits. The “new” claims Rhines identifies are no
more than variations on the penalty phase IAC claims already presented in state court.
They “merely provide[] additional evidentiary support for his claim that was already
presented and adjudicated in the state court proceedings. Thus, Martinez is
inapplicable.” Escamilla v. Stephens, 

, 395 (5th Cir. 2014).

     For these reasons, the district court did not abuse its discretion in denying
Rhines’s motion to stay the habeas proceedings and file a second amended petition.

                           C. Victim Impact Testimony.

       In 1991, the Supreme Court overruled contrary prior decisions and held that the
Eighth Amendment does not bar a State from concluding that “evidence about the
victim and about the impact of the murder on the victim’s family is relevant to the
jury’s decision as to whether or not the death penalty should be imposed.” Payne v.
Tennessee, 

, 827 (1991). Rhines murdered Schaeffer in March 1992.
Effective July 1, 1992, the South Dakota Death Penalty statute was amended to
include as an aggravating or mitigating circumstance, “Testimony regarding the
impact of the crime on the victim’s family.” S.D.C.L. § 23A-27A-1 (1992).




                                        -18-
       Relying on Payne, the trial court overruled Rhines’s objection and permitted
the victim’s mother to read a statement concerning the loss of her son during the
penalty phase. On direct appeal, Rhines challenged this ruling on many grounds,
including a claim that admission of this victim impact evidence violated the Ex Post
Facto Clause of the federal Constitution. The Supreme Court of South Dakota
rejected this contention because Payne was decided before Rhines’s crime, Payne
observed that “there is no reason to treat victim impact evidence differently than other
relevant evidence is 

, and under South Dakota law evidence
is admissible if it is relevant and not unfairly prejudicial. 

.
The district court concluded that this was not an unreasonable application of clearly
established federal law. Rhines argues the district court erred. We disagree.

       A criminal or penal law has a prohibited ex post facto effect if it is
“retrospective, that is, it must apply to events occurring before its enactment, and it
must disadvantage the offender affected by it.” Weaver v. Graham, 

, 29
(1981). Acknowledging that Payne was decided before he murdered Schaeffer,
Rhines argues that S.D.C.L. § 23A-27A-1, enacted after his crime, violated the ex
post facto prohibition because it made “victim impact . . . a new aggravating factor
on which the jury could rely as the basis for a death sentence.”

      This contention is not supported by the record. After admitting the mother’s
victim impact statement, the trial court instructed the jury:

             You received information on the effect of Donnivan Schaeffer’s
      loss to his family. This is sometimes called victim impact evidence.
      This information was admitted for your consideration for a limited
      purpose: so that you may fully appreciate and comprehend the extent of
      the loss his death caused to his family and loved ones. You may
      consider it for this purpose only.




                                         -19-
            You may not consider this victim impact evidence as an
      aggravating circumstance. Nor may you consider it as detracting in any
      way from mitigation evidence offered by the Defendant.

(Emphasis added.) This instruction makes clear that the victim impact evidence was
admitted, as the Supreme Court of South Dakota explained, under longstanding,
general principles of South Dakota law, not as evidence authorized by a newly-
enacted statute and admitted as an aggravating basis for a death sentence. The
Court’s ruling plainly was not an unreasonable application of clearly established
federal law applying the Ex Post Facto Clause.2

       Rhines further argues the admission of victim impact testimony violated his
right to due process. This claim was waived in the district court:

            Mr. Rhines does not argue that the admission of victim impact
      testimony during the penalty phase violated his rights under the Eighth
      Amendment. That was no longer the law on the day the murder was
      committed. Payne. Nor does he argue here that its admission violated
      South Dakota law. . . .

             What Mr. Rhines asserts here is that the admission of aggravation
      evidence during the penalty phase which would have been inadmissible
      on the day the murder was committed violates the Ex Post Facto Clause
      of the Constitution . . . .



      2
       In Nooner v. Norris, 

, 807 (8th Cir. 2005), we held that an
Arkansas victim impact evidence statute did not violate the Ex Post Facto Clause
because “victim impact evidence ‘does not violate the ex post facto prohibition . . .
because it neither changes the quantum of proof nor otherwise subverts the
presumption of innocence,’” citing Neill v. Gibson, 

, 1053 (10th Cir.
2001). Rhines argues Nooner is distinguishable because it did not involve an
aggravating factor statute. As the victim impact evidence in this case was not
admitted under S.D.C.L. § 23A-27A-1, we need not consider this issue.

                                        -20-
Petitioner’s Response to State’s Motion for Summary Judgment at 30, Rhines v.
Young, No. Civ-5020-KES (D.S.D. 2014). Moreover, this claim was never raised to
the state courts and is therefore procedurally barred. See, e.g., Hall v. Luebbers, 

, 719-720 (8th Cir. 2003).

                    D. Life Without Parole Jury Instruction.

      During deliberations, the jury sent the trial judge a note:

             In order to award the proper punishment we need a clear
      p[er]spective of what “Life In Prison Without Parole” really means. We
      know what the Death Penalty means, but we have no clue as to the
      reality of Life without Parole.
             The questions we have are as follows:
             (1) Will Mr. Rhines ever be placed in a minimum security prison
      or given work release.
             (2) Will Mr. Rhines be allowed to mix with the general inmate
      population.
             (3) Allowed to create a group of followers or admirers.
             (4) Will Mr. Rhines be allowed to discuss, describe or brag about
      his crime to other inmates, especially new and or young men jailed for
      lesser crimes (ex: drugs, DWI, assault, etc.).
             (5) Will Mr. Rhines be allowed to marry or have conjugal visits.
             (6) Will he be allowed to attend college.
             (7) Will Mr. Rhines be allowed to have or attain any of the
      common joys of life (ex: TV, radio, music, telephone, or hobbies and
      other activities allowing him distraction from his punishment).
             (8) Will Mr. Rhines be jailed alone or will he have a cellmate.
             (9) What sort of free time will Mr. Rhines have (what would his
      daily routine be)
             We are sorry, You Honor, if any of these questions are
      inappropriate but there seems to be a huge gulf between our two
      alternatives. On one hand there is death and on the other hand what is
      Life in prison w/out parole.
      [Signed by each juror].

                                         -21-
The court proposed a response: “Dear Jurors: I acknowledge your note asking
questions about life imprisonment. All the information I can give you is set forth in
the jury instructions.” Rhines proposed that, in addition to the court’s proposal, the
response also state: “You are further instructed, however, that you may not base your
decision on speculation or guesswork.” The court rejected Rhines’s proposal and
submitted the response it initially proposed. On direct appeal, the Supreme Court of
South Dakota rejected Rhines’s contention that the trial court abused its discretion in
refusing to give the proposed additional instruction. 

.

        In the state habeas proceeding, Rhines argued that failure “to raise in the direct
appeal, the failure of the trial court to specifically answer the jury’s question on
prison life” was ineffective assistance of appellate counsel, basing this contention on
Simmons v. South Carolina, 

(1994). In rejecting this contention, the
Supreme Court of South Dakota explained that appellate counsel was not ineffective
in failing to make a due process argument because Simmons is distinguishable. In
Simmons, after the prosecution put the defendant’s future dangerousness in issue, the
Supreme Court held that “due process requires that the sentencing jury be informed
that the defendant is parole ineligible.” 

, quoting

. By contrast, at Rhines’s trial, future dangerousness was
not expressly put in issue, and “the jury . . . was repeatedly told that life imprisonment
meant life without parole, which is exactly what is required by Simmons.” 

Moreover, because day-to-day correctional decisions are within the discretion of the
South Dakota Department of Corrections, if the trial judge had attempted to answer
the jury’s questions, “he could have said little more than, ‘It depends.’” 

court considered this issue at length and concluded that “the South Dakota
Supreme Court’s decision that Simmons did not apply was not contrary to or an
unreasonable application of clearly established federal law.”

      On appeal, Rhines argues that the Supreme Court of South Dakota’s decision
was an unreasonable application of clearly established federal law because it ignored

                                          -22-
“the key holding” of Simmons -- that it violates due process to impose the death
penalty “on the basis of information which [defendant] had no opportunity to deny
or explain.” 

, quoting Gardner v. Florida, 

,
362 (1977). Though it addresses the Supreme Court of South Dakota’s decision to
distinguish Simmons, this argument was not made in the state habeas proceedings and
may well be procedurally barred. But in any event, it is without merit. The jury’s
question did not implicate the Simmons/Gardner principle because the jury was told
that life imprisonment meant life without parole; thus, the jury did not receive
information favorable to the prosecution that Rhines could not deny or explain.

      We agree with the district court that the South Dakota Supreme Court’s
decision rejecting the claim of appellate counsel IAC because Simmons did not apply
was not contrary to or an unreasonable application of clearly established federal law.3

                 E. Constitutionally Vague Aggravating Factor.

        At the conclusion of the penalty phase, the jury was instructed that it must
unanimously find at least one of the statutory aggravating circumstances in S.D.C.L.
§ 23A-27A-1 beyond a reasonable doubt; otherwise, “the only possible sentence for
the Defendant is life imprisonment without parole.” The jury found four aggravating
circumstances -- the offense was committed for the purpose of avoiding, interfering
with, or preventing a lawful arrest; the offense was committed for the purpose of
receiving money; the offense was outrageously or wantonly vile, horrible or inhuman
in that it involved torture; and the offense was outrageously or wantonly vile, horrible
or inhuman in that it involved depravity of mind. § 23A-27A-1(3), (6), (9) (1992).



      3
       Rhines further argues that the refusal to provide a curative instruction to
prevent “rank speculation regarding life imprisonment without parole” violated the
Eighth Amendment as construed in Boyde v. California, 

, 380 (1990).
This claim was never raised to the state courts and is therefore procedurally barred.

                                         -23-
       On direct appeal, the Supreme Court of South Dakota agreed with Rhines that
the depravity-of-mind statutory language is constitutionally overbroad and that the
trial court’s instructions did not “provide adequate guidance to the sentencer.”

. However, applying the Supreme Court’s analysis in Zant
v. Stephens, 

(1983), the Court concluded that South Dakota’s capital
sentencing scheme includes all the procedural safeguards emphasized in Zant and
therefore, as in Zant, the unconstitutionality of one statutory aggravating factor did
not invalidate Rhines’s death sentence. 

denying federal habeas relief,
the district court held that the South Dakota Supreme Court’s conclusion was not an
unreasonable application of clearly established federal law.

      On appeal, Rhines argues that the Supreme Court of South Dakota
unreasonably applied federal law, because this case is analogous to Stringer v. Black,

(1992), in which the Supreme Court held that a death sentence under
Mississippi law was invalid when the jury had been instructed on an
unconstitutionally vague aggravating circumstance. 

In distinguishing
Zant, which reviewed a Georgia death sentence, the Court in Stringer explained:

             With respect to the function of a state reviewing court in
      determining whether the sentence can be upheld despite the use of an
      improper aggravating factor, the difference between a weighing State
      and a nonweighing State is . . . one . . . of critical importance. In a
      nonweighing State [like Georgia], so long as the sentencing body finds
      at least one valid aggravating factor, the fact that it also finds an invalid
      aggravating factor does not infect the formal process of deciding
      whether death is an appropriate penalty.

By contrast, under the law of Mississippi, a weighing State, “after a
jury has found a defendant guilty of capital murder and found the existence of at least
one statutory aggravating factor, it must weigh the aggravating factor or factors
against the mitigating evidence.” 

                                          -24-
      Though the Supreme Court of South Dakota did not cite Stringer, it expressly
considered the weighing-nonweighing distinction in concluding that Zant was the
controlling federal precedent: “our statutes do not require the jury to weigh
aggravating circumstances against mitigating factors, and the jury was not instructed
to consider the specific number of aggravating factors in deciding whether to render
a death 

. The trial court’s jury instructions were
consistent with this interpretation of the South Dakota statute:

      In your deliberations on whether an aggravating circumstance has been
      proven beyond a reasonable doubt, do not consider which penalty
      should be imposed. . . . In the event you find beyond a reasonable doubt
      one or more aggravating circumstances to exist, then you must
      determine which of two penalties shall be imposed on the Defendant:
      Life imprisonment without parole or death.

       Citing Brown v. Sanders, 

(2006), Rhines argues that the South
Dakota statute makes South Dakota a weighing State “because it limited the universe
of potential aggravating factors to those that made the defendant eligible for the death
penalty.” The Court in Brown modified its prior “weighing/nonweighing scheme.”

The test in Stringer was the controlling federal law when the Supreme
Court of South Dakota ruled on this issue in 1996; therefore, Stringer and Zant
control review of the state Court’s application of clearly established federal law.

. We agree with the district court that the state Court did not
unreasonably apply this federal law when it decided that Zant was the controlling
precedent for resolving this issue. Moreover, we conclude this is even more clear if
the state Court’s ultimate decision -- that the unconstitutionality of the depravity-of-
mind aggravating circumstance did not invalidate Rhines’s death sentence -- is
measured against the revised rule adopted in Brown: “An invalidated sentencing
factor . . . will render the sentence unconstitutional . . . unless one of the other
sentencing factors enables the sentencer to give aggravating weight to the same facts
and 

. Here, the jury found three valid aggravating

                                         -25-
circumstances that clearly encompassed the facts and circumstances supporting its
additional depravity-of-mind finding.

                               III. Case No. 17-1060.

       In Case No. 17-1060, Rhines applies for authorization to file a second or
successive habeas petition arguing that “South Dakota’s sentencing statute is likely
unconstitutional” because, contrary to the U.S. Supreme Court’s decision in Hurst v.
Florida, 

(2016), the statute “does not require that the jury find each
fact necessary to impose a death sentence unanimously and beyond a reasonable
doubt.” See 28 U.S.C. § 2244(b)(3). We deny the Application. Leave to file a
second or successive habeas petition may be granted if “the applicant shows that the
claim relies on a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C.
§ 2244(b)(2)(A). “[A] new rule is not ‘made retroactive’ unless the Supreme Court
holds it to be retroactive.” Goodwin v. Steele, 

, 904 (8th Cir. 2014),
citing Tyler v. Cain, 

, 663 (2001). The opinion in Hurst made no
mention of retroactivity, and no subsequent Supreme Court decision has made Hurst
retroactive. Moreover, even if Hurst is retroactive, it does not apply. Hurst held that
“a jury, not a judge, [must] find each fact necessary to impose a sentence of 

. Here, the jury instructions and verdict form demonstrate that the
jury unanimously found beyond a reasonable doubt three aggravating circumstances,
the facts necessary to render Rhines eligible to be sentenced to death, and sentenced
Rhines to death. The trial judge was required to impose the sentence recommended
by the jury. S.D.C.L. § 23A-27A-4 (1979).

      In Case No. 16-3360, the judgment of the district court is affirmed. In Case
No. 17-1060, we deny the Application To File Second or Successive Petition.
                     ______________________________



                                         -26-