Roderick Leshun Rankin v. Dexter Payne, Director, Arkansas Department of Correction (originally named as Ray…

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-3526
___________________________
Roderick Leshun Rankin
Plaintiff - Appellant
v.
Dexter Payne, Director, Arkansas Department of Correction (originally named as
Ray Hobbs)
Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
____________
Submitted: April 16, 2025
Filed: June 20, 2025
____________
Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
____________
GRUENDER, Circuit Judge.
Roderick Rankin was sentenced to death in 1996 for the murders of Zena
Reynolds, Ernestine Halford, and Nathaniel Halford. In this federal habeas case,
Rankin contends that (1) he was intellectually disabled at the time of the murders,
(2) trial counsel was ineffective for failing to investigate and present evidence that

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his now-deceased brother Rodney Rankin1 committed the murders, (3) trial counsel
labored under multiple conflicts of interest, (4) the penalty-phase jury instructions
violated Mills v. Maryland, 486 U.S. 367 (1988) and McKoy v. North Carolina, 494
U.S. 433 (1990), and (5) trial counsel was ineffective for failing to object to the
penalty-phase jury instructions. The district court2 denied habeas relief without an
evidentiary hearing, and we affirm.
I.
In the early morning hours of December 27, 1994, Sonyae Reynolds was
asleep at an apartment she shared with her sister Zena Reynolds, her two nephews,
her mother Ernestine Halford, and her stepfather Nathaniel Halford. Zena was in
the living room with her two children, while Sonyae, Ernestine, and Nathaniel were
in their bedrooms. Shortly before 3:00 a.m., Sonyae awoke upon hearing the front
door of the apartment break open. She immediately hid in her bedroom closet, from
where she heard screaming and six gunshots. The shooter opened Sonyae’s bedroom
door, waited a little, and then ran away. After waiting about five minutes, Sonyae
left her bedroom closet and found the slain bodies of Zena, Ernestine, and
Nathaniel.3 Each died from a contact gunshot wound to the head. Nathaniel had
been shot twice in the head, and Ernestine had also been shot in the arm. Zena’s two
children were unharmed. Sonyae called 911 and told the 911 operator that she had
only seen the shooter’s back and could not identify him.
1 We refer to the petitioner Roderick Rankin as “Rankin” and his brother
Rodney Rankin as “Rodney.”
2 The Honorable James M. Moody Jr., United States District Judge for the
Eastern District of Arkansas.
3 The front door of the Halfords’ apartment opened into the living room.
Responding officers found Zena in the hallway at the back of the living room, with
her two small children next to her in a pool of blood. Ernestine and Nathaniel were
found in their shared bedroom.

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At approximately 4:00 a.m. on the day of the murders, Detective James
Cooper interviewed Sonyae and her neighbor Sharon Carter at the police station.
Carter told Detective Cooper that she saw a “tall” man run from the Halfords’
apartment after the shootings, and that the man was wearing a dark Starter jacket,
black Nike shoes, dark jeans, and a stocking cap. As for Sonyae, she told Detective
Cooper that she believed two men had committed the murders. She believed the
man that Carter saw was her ex-boyfriend Rankin because Rankin was around 6’3”
and had repeatedly threatened to kill her family. The second man was the man who
opened her bedroom door. She told Detective Cooper that she had not seen the
man’s face, but he was “shorter” than Rankin, had “short legs,” and was wearing
“some blue dickey like, dickey pants and a black jacket” with “writing or a picture”
on the back of the jacket. Detective Cooper asked Sonyae where he might find
Rankin, and she directed him to the home of Rankin’s mother, Elaine Trimble.
Officers arrived at Elaine’s home at around 8:00 a.m. Rankin answered the
door. He had been sleeping on the living room couch. Officers searched the home
and found a black and gray Starter jacket with a “Sox” emblem on the back and six
pairs of dark-colored jeans behind a chest of drawers in Rankin’s bedroom. They
also found a pair of size 12, navy Reebok tennis shoes underneath the living room
couch where Rankin had been sleeping. The officers arrested Rankin and
transported him to the police station.
At approximately 10:45 a.m., Detective Cooper began questioning Rankin
about the murders. For about two and a half hours, Rankin denied any involvement.
Detective Cooper then learned that officers had found what they believed to be the
murder weapon—a nine-millimeter Hi-Point pistol—in a drainage ditch behind the
Halfords’ apartment. Detective Cooper showed the pistol to Rankin. Once Rankin
saw the pistol, he told Detective Cooper, “You don’t have to show me that because
I’m going to talk to you.” Rankin then confessed. He told Detective Cooper that he
walked to the Halfords’ apartment. After he broke into the apartment, he saw
“Zena . . . and the kids” who were “on the couch.” He confessed that he shot Zena
first, Ernestine second, and Nathaniel third. He said that he “knew Sonyae was in

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there,” but left without shooting her because he “got scared.” He concluded: “[T]his
is not what I meant to happen and I’m sorry, but I know that won’t bring them back.”
Forensic examiners subsequently detected human blood on the Reebok shoes
as well as on one pair of jeans seized from Rankin’s bedroom. Examiners also
determined that the Reebok shoes found underneath the living room couch matched
the general size and pattern of the shoe that kicked in the front door of the Halfords’
apartment. Examiners were unable to definitively determine that the two shoes were
the same due to the quality of the shoeprint from the crime scene. In addition, the
pistol found in the drainage ditch was forensically linked to shell casings found at
the scene of the crime. The pistol also was traced to a recent burglary of a local
fireman’s home. Other items stolen during that burglary—a VCR and CDs—were
found in Elaine’s home. The VCR was discovered in a laundry basket underneath
some clothes.
Various witnesses testified at trial, including Sonyae and Rankin. Sonyae
testified that she met Rankin through her sister Zena. Zena previously lived with
Rankin’s brother, Rodney, with whom she had two children.4 Sonyae described her
relationship with Rankin as violent and tumultuous. Rankin had hit her on several
occasions and repeatedly threatened to kill her family. Sonyae further testified that
she had broken up with Rankin shortly before the murders. But, while Sonyae told
Detective Cooper that the man she saw from her bedroom closet was too short to be
Rankin, she testified at trial that she was sure the man she saw was Rankin because
she recognized his clothes. Sonyae testified that the shooter had been wearing a
black and gray Starter jacket, blue jeans, and navy and white tennis shoes.
According to Sonyae, these items belonged to Rankin.
As for Rankin, he testified that officers fed him information about the murders
prior to his taped confession and that he only confessed because the officers
4 These were the two children present in the Halfords’ apartment when the
murders occurred.

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threatened to arrest his mother and brother. Rankin said he was concerned for his
mother because she “had already been through a lot,” and that he was concerned for
his brother because his brother had been angry with Zena, “smoking crack,” and
“acting funny.” Rankin clarified that he was not “suggesting” that his brother had
anything to do with the murders. In addition, Rankin admitted that the Starter jacket
and the six pairs of jeans found in his bedroom belonged to him, and that he owned
a pair of Reebok shoes. However, he stated that he had not been wearing these
clothes or shoes on the day of the murders. And, while he admitted that he had
placed the VCR in the laundry basket, he testified that he had only placed the VCR
there because he did not want his mother to find it. He claimed that he had obtained
the VCR and CDs from a friend and that he was not aware the items had been stolen.
Rankin was found guilty of three counts of capital murder and sentenced to
death for each count. Rankin’s conviction and sentence were affirmed on direct
appeal, and his attempts at post-conviction relief in state court were similarly
unsuccessful. See Rankin v. State, 948 S.W.2d 397 (Ark. 1997); Rankin v. State, 1
S.W.3d 14 (Ark. 1999); Rankin v. State, 227 S.W.3d 924 (Ark. 2006). Thereafter,
Rankin filed a habeas petition in federal district court. The district court determined
that Rankin had not exhausted all of his state court claims and stayed the habeas
proceeding to allow Rankin to pursue relief on unexhausted claims in state court.
In 2009, Rankin’s habeas investigator approached Pastor Augustine Bailey, a
seriously ill ordained minister who previously counseled Elaine and Rodney. Bailey
told the habeas investigator that Rodney twice confessed to her that he had
committed the murders. Bailey stated that she had not told anyone about Rodney’s
confessions because she believed that, while Rodney and Elaine were alive, she was
bound to confidentiality by her role as a minister and counselor. According to
Bailey, she was no longer bound to confidentiality because Rodney died in 2006 and
Elaine died in 2009. To preserve Bailey’s testimony, the district court temporarily
reopened the habeas proceeding. Bailey was deposed by video in 2010. She died in
2011.

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Back in state court, Rankin filed a motion in the Arkansas Supreme Court to
recall the mandate and reinvest jurisdiction in the state trial court to consider a
petition for a writ of error coram nobis. Rankin claimed that he was actually
innocent of the murders and that his now-deceased brother Rodney committed them.
Rankin attached an appendix to his motion, which contained many documents that
were not a part of the original state court record. The Arkansas Supreme Court
summarily denied the motion.
Having exhausted his state remedies, Rankin returned to federal court and
filed an amended habeas petition. As relevant here, Rankin claimed that (1) he was
intellectually disabled at the time of the murders, (2) trial counsel was ineffective
for failing to investigate and present evidence that his brother Rodney committed the
murders, (3) trial counsel labored under multiple conflicts of interest, (4) the penalty-
phase jury instructions violated Mills and McKoy, and (5) trial counsel was
ineffective for failing to object to the penalty-phase jury instructions. Rankin
acknowledged that the last four claims were procedurally defaulted because he had
not raised them in state court. Nevertheless, he argued that procedural default was
excused and that the claims should be considered on the merits.
The district court denied habeas relief. As to the intellectual disability claim,
the district court noted that it was required to accord deference under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) to the state
court’s determination that Rankin was not intellectually disabled. According to the
district court, Rankin had not pointed “to clear and convincing evidence
contradicting the state-court determination that he [was] not intellectually disabled.”
As to the remaining four claims, the district court declined to determine whether
procedural default was excused. Instead, it concluded that habeas relief was not
warranted as all four claims failed on the merits.

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II.
We review the district court’s factual findings for clear error and its legal
conclusions de novo. Frey v. Schuetzle, 151 F.3d 893, 897 (8th Cir. 1998). We
review the district court’s denial of a habeas petitioner’s request for an evidentiary
hearing for an abuse of discretion. Johnston v. Luebbers, 288 F.3d 1048, 1059 (8th
Cir. 2002).
A.
We first address the only claim that was not procedurally defaulted—whether
Rankin was intellectually disabled when he committed the murders. See Atkins v.
Virginia, 536 U.S. 304 (2002) (holding that the execution of the intellectually
disabled violates the Eighth Amendment’s prohibition against “cruel and unusual
punishments”). For the reasons set forth below, we conclude that habeas relief is
not warranted on this claim.
1.
Prior to Rankin’s trial, the state court ordered that the Southeast Arkansas
Mental Health Center evaluate Rankin. On February 15, 1995—less than two
months after the murders—Rankin was evaluated by David Nanak, a psychological
examiner, and Dr. William James, a psychiatrist. Nanak reported that Rankin had a
full-scale IQ of 66, which placed him in the “[m]ild range of [m]ental [r]etardation.”
Although Rankin stated that he had completed the eighth grade, Nanak reported that
Rankin’s academic achievement was at or below the fifth grade level. He also noted
that Rankin appeared to be suffering from “[e]levated levels of anxiety and tension,”
but that he “appeared to put forth good effort in the testing.” As for James, he
reported that Rankin had “[m]ental [r]etardation, mild.” He noted that Rankin gave
inconsistent answers throughout the interview, “relate[d] in a very passive-resistive

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manner with limited anxiety,” and “appear[ed] to weigh his remarks prior to
responding.”
Rankin filed a motion for a second evaluation, claiming that he was entitled
to retain Dr. Phillip Murphy, a private clinical psychologist, at the State’s expense.
The trial court granted the motion, and Murphy examined Rankin on August 24,
1995. Murphy reported that Rankin had a full-scale IQ of 72, which placed him in
the “mildly to borderline mentally retarded” category. He also reported that Rankin
had “a history of special education in school.”
The trial court subsequently ordered that a third evaluation be conducted—
this time by the Arkansas State Hospital. On November 2, 1995, Dr. John Anderson,
a psychologist, evaluated Rankin. Anderson did not conduct a formal psychological
assessment as Rankin declined to participate in one. After conducting an interview
with Rankin, Anderson reported that Rankin “was evasive and minimally
cooperative.” He concluded: “In the examiner’s opinion, Mr. Rankin is intentionally
reporting symptoms of a mental illness for secondary gain. He has been inconsistent
in what he reports from prior evaluations, and has been evasive in providing factual
information.”
After the evaluations were completed, the trial court held a hearing to
determine whether Rankin was intellectually disabled under Arkansas law.5 Three
witnesses testified: Nanak, Anderson, and Barbara Hubanks. Hubanks was one of
Rankin’s junior high school teachers. Nanak noted that he had diagnosed Rankin
with an IQ score of 66 and “mild mental retardation.”6 He stated that he believed
5 Because “[t]he Arkansas Supreme Court has consistently construed its state’s
statutory right to be concurrent with the federal constitutional right established in
Atkins,” it is immaterial that the state court determined that Rankin was not
intellectually disabled under Arkansas law as opposed to under Atkins. Roberts v.
Payne, 113 F.4th 801, 808 (8th Cir. 2024).
6 Nanak clarified that he used the term “mental retardation” in a psychological
sense, not in a legal sense.

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Murphy’s score of 72 to be “probably more valid, more accurate” because (1) the
score of 66 was obtained shortly after Rankin’s incarceration—meaning that Rankin
would have been operating at a higher anxiety level, which would produce lower
intellectual functioning; (2) the score of 72 was more in line with Rankin’s
standardized test scores from school; and (3) Rankin had “probably fooled” him in
that Rankin had intentionally tried to obtain a lower IQ score. Defense counsel
questioned whether Rankin’s improved IQ score was due to the “test-retest effect,”
where increased familiarity with a test produces better results. Nanak responded
that, in his “years of experience with mental retardation,” he had not seen the
presence of a test-retest effect. And, in any event, one would not expect to see a six
point increase due to it. Nanak also testified that Rankin’s level of adaptive
functioning was “acceptable.”
Anderson testified that the results obtained by Nanak and Murphy were both
“probably reasonable assessments of Mr. Rankin’s functioning at the time he was
evaluated.” Nevertheless, he stated that he believed Rankin was “over reporting
symptoms,” and that the test-retest effect was inapplicable because the areas in
which improvement occurred were not areas that would have been affected by a test-
retest effect. As for Hubanks, she testified that she had taught Rankin “mathematics
lab” for two years. She stated that Rankin had been in her class because he was
“below grade level,” but clarified that her class was “[i]n no way” a special education
class. She also testified that, based on her observations, Rankin appeared to have
acceptable levels of adaptive functioning. After hearing this testimony, the trial
court found that Rankin had not demonstrated intellectual disability under Arkansas
law.
2.
To establish intellectual disability, Rankin must show that, at the time of the
murders, (1) he had significant below-average general intellectual functioning, (2)
he had significant deficit or impairment in adaptive functioning, (3) both of the
above manifested before age eighteen, and (4) he had a deficit in adaptive behavior.

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Roberts, 113 F.4th at 808 (citing Ark. Code Ann. § 5-4-618(a)(1)). As to the first
prong, an IQ of 70 or below is generally deemed to fall within the range of
significantly below-average general intellectual functioning. Id. at 810. However,
an IQ test score alone is not dispositive, and a court must consider “all evidence of
[a defendant’s] intellectual functioning rather than relying solely on his IQ test
scores.” Sasser v. Hobbs, 735 F.3d 833, 847 (8th Cir. 2013). The second prong,
which considers whether Rankin had significant deficit or impairment in adaptive
functioning, “is met if an individual ha[d] significant limitations in at least two of
the following skill areas: communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety.” Id. at 845 (internal quotation
marks omitted). The fourth prong “duplicates the second prong, but places no age
requirement on the evidence used to establish limitations in adaptive behavior.” Id.
(internal quotation marks omitted).
Since “[t]he review on whether a defendant is intellectually disabled—and
thus, spared from execution—belongs in the first instance to the states,” we apply
the AEDPA deference to the state court’s conclusion that Rankin was not
intellectually disabled. Roberts, 113 F.4th at 808. Accordingly, habeas relief can
only be granted if the state court’s adjudication of Rankin’s intellectual disability
claim “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)(2).7
The Arkansas Supreme Court’s rejection of Rankin’s intellectual disability
claim was not based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. As to the first prong (significantly
below-average general intellectual functioning), Rankin’s IQ score of 72 was above
7 Habeas relief is also warranted if the state court’s adjudication of the claim
“resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). Rankin does not
dispute that this standard is not met, so we do not address it.

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the threshold score of 70. Although Rankin initially obtained an IQ score of 66,
Nanak testified that the score of 72 was “probably more valid, more accurate” than
the score of 66 because (i) the score of 66 was obtained shortly after Rankin’s
incarceration—meaning that Rankin would have been operating at a higher anxiety
level, which would produce lower intellectual functioning; (ii) the score of 72 was
more in line with Rankin’s standardized test scores from school; and (iii) Nanak
believed that Rankin had intentionally tried to obtain a lower IQ score. In addition,
both Nanak and Anderson testified that they did not believe that Rankin’s IQ score
had increased from 66 to 72 due to a test-retest effect. And, as to the second and
fourth prongs (adaptive functioning), both Nanak and Hubanks testified that they
believed Rankin had acceptable levels of adaptive functioning. In light of this
evidence, it was not unreasonable for the state court to conclude that Rankin was not
intellectually disabled.
Rankin raises several arguments against this conclusion, all of which we find
unpersuasive. First, he claims that the Arkansas Supreme Court’s decision was
based on an unreasonable determination of the facts because the Arkansas Supreme
Court focused solely on the score of 72 and essentially ignored the score of 66. There
is no indication, however, that the Arkansas Supreme Court ignored the score of 66.
Indeed, the Arkansas Supreme Court noted several times in its opinion that Rankin
had scored 66 the first time he was evaluated by Nanak. See Rankin v. State, 948
S.W.2d 397, 403-04 (Ark. 1997). Ultimately, the Arkansas Supreme Court
determined that “substantial evidence” supported a finding that the score of 72 was
more credible. Id. at 404. In light of the evidence in the state court record, the
finding was not an unreasonable determination for the Arkansas Supreme Court to
make.
Second, Rankin contends that the Arkansas Supreme Court improperly
credited Nanak with having conducted a formal adaptive functioning assessment.
According to Rankin, Nanak could not opine on Rankin’s level of adaptive
functioning because he did not first conduct a formal assessment. There is no
indication, however, that the Arkansas Supreme Court credited Nanak with having

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conducted a formal adaptive functioning assessment. Furthermore, Rankin admits
in his brief that medical professionals can opine on an individual’s level of adaptive
functioning based solely on their “professional judgment.” Thus, by Rankin’s own
admission, Nanak was not required to conduct a formal adaptive functioning
assessment.
Finally, perhaps recognizing that the state court record does not support his
intellectual disability claim, Rankin argues that he is entitled to an evidentiary
hearing in order to expand the state court record. In an evidentiary hearing, Rankin
seeks to introduce testimony and reports from two medical professionals who
examined Rankin over a decade after the murders and concluded that Rankin was
intellectually disabled. An evidentiary hearing, however, is barred under the
AEDPA. See 28 U.S.C. § 2254(e)(2) (barring an evidentiary hearing “[i]f the
applicant has failed to develop the factual basis of a claim in State court
proceedings”).8 Accordingly, we conclude that the district court properly denied
habeas relief without an evidentiary hearing.
B.
We next address the four claims that were procedurally defaulted, namely that:
(1) trial counsel was ineffective for failing to investigate and present evidence that
Rodney committed the murders, (2) trial counsel labored under multiple conflicts of
interest, (3) the penalty-phase instructions violated Mills and McKoy, and (4) trial
counsel was ineffective for failing to object to the penalty-phase instructions. After
careful review, we conclude that habeas relief is not warranted.
8 Rankin argues that an evidentiary hearing is required under Simpson v.
Norris, 490 F.3d 1029 (8th Cir. 2007). However, we rejected a virtually identical
argument in Roberts. See 113 F.4th at 809 (declining to extend Simpson).

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1.
Federal courts are generally precluded from reviewing the merits of
procedurally defaulted claims. Schlup v. Delo, 513 U.S. 298, 314-315 (1995). An
exception exists where failure to consider the claims on their merits could amount
to a fundamental miscarriage of justice. Id. A petitioner demonstrates a fundamental
miscarriage of justice if he shows that he is actually innocent of the crime. Id. at
321. This is known as the “gateway innocence claim” because it is the gateway
through which a petitioner must pass in order to have procedurally defaulted claims
considered on the merits. See id. at 315 n.30.
Rankin requests an evidentiary hearing on whether he is actually innocent so
that he may pass through the actual innocence gateway and have his procedurally
defaulted claims heard on the merits. For Rankin to obtain an evidentiary hearing,
he must make a threshold showing of actual innocence. See id. at 301, 317. This
means he must establish that, “in light of the new evidence,” “it is more likely than
not that no reasonable juror would have found [him] guilty beyond a reasonable
doubt.” Id. at 327. Evidence is “new” if it was unavailable at trial and “could not
have been discovered earlier through the exercise of due diligence.” Amrine v.
Bowersox, 128 F.3d 1222, 1230 (8th Cir. 1997).9
Rankin asserts that he has made a threshold showing of actual innocence
because new evidence shows that his brother Rodney committed the murders. In
support of this contention, Rankin points to various documents in his error coram
nobis appendix, which he claims link Rodney to the murders. We describe here the
9 Rankin asserts that Amrine’s “due diligence” requirement was abrogated by
McQuiggin v. Perkins, 569 U.S. 383 (2013). But McQuiggin dealt with a different
issue—whether unjustifiable delay in bringing a habeas petition served as a complete
bar to relief. See id. at 399-400. This circuit has repeatedly held post-McQuiggin
that evidence is not new if it could have been discovered earlier through the exercise
of due diligence. See Barton v. Strange, 959 F.3d 867, 872 (8th Cir. 2020); Nash v.
Russell, 807 F.3d 892, 899 (8th Cir. 2015).

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relevant documents. First, the appendix includes Bailey’s testimony. According to
Bailey, a few weeks prior to the murders, Rodney told Bailey that he “could kill”
Zena. Then, a few days after the murders, Bailey and Rodney were at church for a
clothing drive when Rodney pulled her aside. Rodney told her: “What if these are
the feet, the shoes that kicked the door in over there, and this is the blood that’s on
my shoe from it?” Bailey looked down and saw blood on Rodney’s shoes, which
she described as dark-colored Converse-type shoes with white soles. Rodney then
raised his arms and said: “What if this is the jacket that they saw the person that had
did the killings running away in?” He told Bailey that he was “going to talk to his
brother and have him take the fall.” Then, about a week later, Bailey visited Elaine
and Rodney for a counseling session. The three of them were in Elaine’s home when
Rodney “just blurted out his mouth,” “I did it.”
Second, the appendix contains affidavits from various friends and family
members of Rodney and Rankin. The affidavits were all obtained over a decade
after the murders. Essentially, the affiants state that they do not believe that Rankin
could have committed the murders, but that Rodney could have. They describe
Rodney as violent and his relationship with Zena as tumultuous. The family
members protest that the Reebok shoes could not have belonged to Rankin because
he wore size 14 shoes, whereas Rodney had smaller feet, possibly size 12. They also
state that Rodney was heavier-set and shorter than Rankin.
Third, the appendix includes a petition to set child support. According to the
petition, on October 12, 1994, Zena requested that the Jefferson County Child
Support Enforcement Unit order Rodney to pay a reasonable sum in child support.
Fourth, the appendix includes prison records, which state that Rankin was issued
size 14 shoes. Fifth, the appendix includes photocopied pages from the defense
counsel’s brief in the post-conviction proceeding, which indicate that the blood-
stained pants from Rankin’s bedroom was several inches shorter and wider at the

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waist than the other pants found in the same location.10 And, sixth, the appendix
includes an affidavit from Rankin’s trial counsel, Gene McKissic. In the affidavit,
McKissic states that, prior to trial, Rankin told him that Rodney confessed to Rankin
that he had committed the murders. McKissic also states that he learned from an
unnamed detective that Rodney was the “prime suspect” in the murder of Paula
Rankin, who was Rodney and Rankin’s sister.
We conclude that Rankin has not made a threshold showing of actual
innocence because the evidence he points to is not “new.” The primary basis of
Rankin’s actual innocence claim—that Rodney committed the murders—was
actually known and available to Rankin before trial. Prior to trial, Rankin told his
defense counsel that Rodney confessed to him that he had committed the murders.
Despite this, no evidence was put forth at trial to corroborate Rodney’s supposed
guilt. Even Rankin himself testified at trial that he was not “suggesting” that Rodney
had anything to do with the murders. Although Rankin claims that Bailey’s
deposition is “new” in that she did not testify until 2010, evidence is not “new” if
the factual basis for it “could have been discovered earlier in the exercise of due
diligence.” Meadows v. Delo, 99 F.3d 280, 282 (8th Cir. 1996). It is true that
Bailey’s deposition was not available until well after Rankin’s trial. Nevertheless,
the factual basis for it—that Rodney committed the murders—existed prior to trial.
See id. (“Although the affidavit itself was not available until after Meadows’s trial,
the factual basis for it existed long before this appeal.”); United States v. Bell, 761
F.3d 900, 911 (8th Cir. 2014) (“We have recognized that a witness’s failure to appear
before trial to exculpate a defendant . . . does not constitute newly discovered
evidence.”); United States v. Rogers, 982 F.2d 1241, 1245 (8th Cir. 1993) (stating
that a letter from a codefendant which exculpated the defendant was not newly
discovered evidence because the codefendant “maintained his silence during the trial
and submitted [the] letter only as a post-trial statement”). Rankin thus points to no
new evidence to rebut the significant evidence presented at trial showing his guilt.
10 Even though reports and testimony pertaining to the blood stains were
ultimately excluded from trial, we refer to the blood-stained pants here as Rankin
asserts on appeal that those pants in particular did not belong to him.

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Because Rankin has not made a threshold showing of actual innocence, he is not
entitled to an evidentiary hearing, and his claims are procedurally defaulted.11
2.
Because Rankin has not overcome procedural default, we need not consider
the merits of his claims. However, this being a capital punishment matter, “it would
not be inappropriate to discuss the merits of [his] claim[s].” Joubert v. Hopkins, 75
F.3d 1232, 1244 (8th Cir. 1996); see, e.g., Winfield v. Roper, 460 F.3d 1026, 1040
(8th Cir. 2006); Williams v. Kelley, 854 F.3d 1002, 1008 (8th Cir. 2017); Williams
v. Norris, 612 F.3d 941, 959 n.9 (8th Cir. 2010). We address each claim in turn.
First, Rankin claims that trial counsel, Gene McKissic, was ineffective for
failing to investigate and present evidence that Rodney committed the murders.
Rankin contends that, had counsel properly investigated, he could have introduced
evidence that: (1) the size 12 Reebok shoes belonged to Rodney, (2) the blood-
stained jeans belonged to Rodney, (3) Rodney had significant motive to commit the
murders, and (4) Rodney had a violent character.
To demonstrate ineffective assistance of counsel, Rankin must show that his
attorney’s performance was deficient and outside the range of reasonable
professional assistance and that he was prejudiced by his counsel’s deficient
performance to the extent that there is a reasonable probability that, but for counsel’s
error, the result of the proceeding would have been different. See Strickland v.
Washington, 466 U.S. 668, 687, 689, 694 (1984). “[A] particular decision not to
investigate must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.” Id. at 691.
11 We decline to address whether an evidentiary hearing is further barred under
Shinn v. Ramirez, 596 U.S. 366 (2022) and 28 U.S.C. § 2254(e)(2).

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Trial counsel’s decision not to investigate for evidence of Rodney’s supposed
guilt was reasonable given the lack of evidence pointing to Rodney. With respect to
the Reebok shoes, it is true that prison records corroborate that Rankin wore size 14
shoes. However, the only evidence purporting to show that Rodney wore size 12
shoes are recollections from family members over a decade after the murders.
Moreover, significant evidence at trial pointed to the Reebok shoes belonging to
Rankin, not Rodney. The Reebok shoes were discovered underneath the couch
where Rankin had been sleeping, Sonyae testified that they belonged to Rankin, and
Rankin even admitted at trial that he owned a pair of Reebok shoes. As to the seized
pants, McKissic admits in an affidavit that he “overlooked using the size difference
in the pants seized from the Rankin house.” While McKissic’s performance may
not have been perfect, we cannot say that he was unconstitutionally ineffective for
failing to investigate the size of the seized pants. The pants were discovered in
Rankin’s bedroom, Rankin admitted at trial that he put those pants there, and Rankin
points to no evidence which shows that those pants belonged to Rodney. Finally,
testimony about Rodney’s motive and character would have been excluded under
Arkansas law. See Zinger v. State, 852 S.W.2d 320, 323 (Ark. 1993) (stating that,
under Arkansas law, “mere motive or opportunity to commit the crime in another
person, without more, will not suffice to raise a reasonable doubt about a defendant’s
guilt”). Given the lack of evidence pointing to Rodney, McKissic’s decision not to
investigate and present evidence of Rodney’s purported guilt was reasonable. Even
Rankin himself testified at trial that he was not “suggesting” that Rodney had
anything to do with the murders. Accordingly, we conclude that Rankin’s first claim
fails.
Second, Rankin claims his trial attorney, McKissic, was ineffective because
he labored under multiple conflicts of interest in that he previously represented (i)
Rankin’s brother, Rodney, in a child custody dispute between Rodney and Bessie
Henderson—the mother of three of Rodney’s children—and (ii) Rodney and
Rankin’s stepfather, Earl Trimble, on charges that Earl sexually abused Rankin’s
sister, Paula. According to Rankin, these conflicts prevented McKissic from putting

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on evidence that Rodney committed the murders and that Earl sexually abused him
as a child.
In ineffective assistance of counsel cases, we ordinarily ask whether the
petitioner has shown deficient performance and prejudice under Strickland.
However, in Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980), the Supreme Court
held that a defendant who “shows that a conflict of interest actually affected the
adequacy of his representation need not demonstrate prejudice in order to obtain
relief” based on ineffective assistance of counsel. “Effect on representation means
that the conflict caused the attorney’s choice [to engage or not to engage in particular
conduct], not that the choice was prejudicial in any other way.” Covey v. United
States, 377 F.3d 903, 908 (8th Cir. 2004) (internal quotation marks and alteration
omitted). The defendant must “identify a plausible alternative defense strategy or
tactic that defense counsel might have pursued, show that the alternative strategy
was objectively reasonable under the facts of the case, and establish that the defense
counsel’s failure to pursue that strategy or tactic was linked to the actual conflict.”
Winfield v. Roper, 460 F.3d 1026, 1039 (8th Cir. 2006) (internal quotation marks
omitted). In this circuit, it is unclear whether Strickland or Cuyler applies to the
types of conflicts of interest that are alleged in this case.
We begin and end with Cuyler’s analysis as a defendant who does not show
that a conflict of interest actually affected the adequacy of his representation under
Cuyler necessarily fails to meet Strickland’s “more stringent standard.” Sharp v.
United States, 132 F.4th 1094, 1099 (8th Cir. 2025). Here, Rankin identifies two
alternative defense strategies that McKissic might have pursued absent the alleged
conflicts. First, Rankin argues that McKissic could have presented evidence casting
suspicion on Rodney as the murderer. Second, Rankin argues that McKissic could
have presented mitigating evidence at the sentencing phase that Earl abused him as
a child.

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We conclude that Rankin’s arguments are meritless. With respect to Rodney,
it was not objectively reasonable for McKissic to present evidence casting suspicion
on Rodney as the murderer. As we have detailed above, little evidence linked
Rodney to the crime. Even Rankin himself testified that he was not “suggesting”
that Rodney had anything to do with the murders. And, as to Earl, Murphy testified
at trial that an “adult male”—this adult male being Earl—“sexually abused [Rankin]
probably five or six times” when Rankin “was approximately 10 or 11 years of age.”
Although Rankin contends that Murphy’s testimony should have been substantiated
through documents or witnesses, Rankin offers no evidence that McKissic’s decision
to present that evidence through Murphy, as opposed to some other means, was due
to the actual conflict. Accordingly, we conclude that Rankin’s second claim fails.
Third, Rankin claims that the jury instructions related to mitigating evidence
violated Mills and McKoy. Mills and McKoy stand for the proposition that the
Constitution requires “that each juror be permitted to consider and give effect to
mitigating evidence when deciding the ultimate question whether to vote for a
sentence of death.” McKoy, 494 U.S. at 442-43 (discussing Mills). The Constitution
is violated when “there is a substantial probability that reasonable jurors, upon
receiving the judge’s instructions . . . and in attempting to complete the verdict form
as instructed, well may have thought they were precluded from considering any
mitigating evidence unless all 12 jurors agreed on the existence of a particular such
circumstance.” Mills, 486 U.S. at 384.
Before closing arguments, the state trial court read from Arkansas’s model
jury instructions. The model jury instructions consisted of four forms: Form 1:
Aggravating Circumstances, Form 2: Mitigating Circumstances, Form 3:
Conclusions, and Form 4: Verdict. Tracking the model jury instructions, the trial
court instructed the jury that, if it unanimously found beyond a reasonable doubt the
existence of an aggravating circumstance listed on Form 1, then it must complete
Form 2. The trial court then read Form 2, Part A, which instructed the jury to
checkmark that part if the jury “unanimously [found] that the following mitigating
circumstance(s) probably existed.” The trial court did not read or refer to Parts B,

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C, or D of Form 2. Part B of Form 2 directed the jury to checkmark that part if
“[o]ne or more members of the jury believed that the following mitigating
circumstance(s) probably existed, but the jury did not unanimously agree that such
mitigating circumstance(s) probably existed.” The trial court next read Form 3. As
relevant here, Part B of Form 3 instructed the jury to weigh the aggravating and
mitigating circumstances. The trial court told the jury to checkmark Part B of Form
3 if it found that “[t]he aggravating circumstances outweigh beyond a reasonable
doubt any mitigating circumstance found by any juror to exist.”
Rankin claims that the jury instructions violated Mills and McKoy because
reasonable jurors would have believed that, in reviewing Form 3, they were required
to weigh the aggravating factor against only those mitigating factors that were
unanimously found, as opposed to those found by any juror to exist. It is true that,
when informing the jury about Form 2, the trial court read only Part A, which
instructed the jury to checkmark that part if the jury “unanimously [found] that the
following mitigating circumstance(s) probably existed.” The trial court did not read
or refer to Part B of Form 2. But, “[i]n determining the effect of [a challenged]
instruction on the validity of [a] conviction, [courts] must accept at the outset the
well-established proposition that a single jury instruction to a jury may not be judged
in artificial isolation, but must be viewed in the context of the overall charge.” Boyde
v. California, 494 U.S. 370, 378 (1990). Any potential error the trial court made in
reading only Part A of Form 2 was rectified when the trial court directed the jury on
Form 3 to consider “any mitigating circumstance found by any juror to exist.”
Accordingly, we conclude that Rankin’s third claim fails.
Fourth, Rankin claims that trial counsel was ineffective for failing to object
to the penalty-phase instructions. As discussed previously, the jury instructions were
not unconstitutional, so Rankin cannot show deficient performance or prejudice
under Strickland. Accordingly, we conclude that Rankin’s fourth claim fails.

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Finally, we address Rankin’s request for an evidentiary hearing on his claims
of ineffective assistance of counsel. “Generally, a habeas petitioner is entitled to an
evidentiary hearing in federal court if the petition alleges sufficient grounds for
release, relevant facts are in dispute, and the state courts did not hold a full and fair
evidentiary hearing.” Toney v. Gammon, 79 F.3d 693, 697 (8th Cir. 1996) (internal
quotation marks omitted). An evidentiary hearing is unnecessary “if the record
clearly indicates that the petitioner’s claims are either barred from review or without
merit.” Id. As we have discussed previously, Rankin’s claims are without merit.
Thus, the district court did not abuse its discretion in denying an evidentiary hearing
on Rankin’s claims of ineffective assistance of counsel.
III.
For the foregoing reasons, we affirm the judgment of the district court.
______________________________

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