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SMULLS v. ROPER

No. 05-2456.

535 F.3d 853 (2008)

Herbert SMULLS, Appellant, v. Don ROPER, Superintendent, Potosi Correctional Center, Appellee.

United States Court of Appeals, Eighth Circuit.

Filed: July 29, 2008.

Attorney(s) appearing for the Case

Cheryl A. Pilate, Morgan Pilate, LLC, Olathe, KS, argued (Charles M. Rogers, Jeremy S. Weis, Wyrsch Hobbs & Mirakian, P.C., Kansas City, MO, on the brief), for appellant.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, Atty. Gen., on the brief), for appellee.

Before LOKEN, Chief Judge, WOLLMAN, HANSEN, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges, En Banc.

HANSEN, Circuit Judge.

A Missouri jury found Herbert Smulls guilty of first degree murder, as well as other crimes, and he was sentenced to death. The Supreme Court of Missouri ultimately affirmed Smulls' convictions on direct appeal and denied his motions for postconviction relief. The district court1 denied Smulls' 28 U.S.C. § 2254 petition, and this court granted a certificate of appealability...

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