Walter J. Blair, convicted of capital murder and sentenced to death, appeals from the district court’s 1 denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 (1989). Blair was convicted of killing Kathy Jo Allen, who was scheduled to testify as the victim in the rape trial of Larry Jackson. Jackson had made offers to pay Blair to kill Allen. On this appeal from denial of the writ, Blair argues that the writ should be granted for the following reasons: (1) the State knowingly used perjured testimony at his trial; (2) the exclusion from pretrial interrogation of an attorney who had represented Blair on an unrelated charge rendered Blair’s waiver of his Miranda rights ineffective; (3) the prosecutor’s argument during Blair’s sentencing violated his eighth amendment rights; (4) the jury in his trial was not given a first-degree murder instruction; and (5) he had not received effective assistance of counsel during this habeas corpus case. On cross-appeal, the State argues that the district court should not have disqualified all attorneys affiliated with the Office of the Attorney General of the State of Missouri. We affirm the district court’s denial of Blair’s petition and reverse its disqualification order.
Evidence at Blair’s trial established the following facts in this case. While incarcerated with Blair in the Jackson County Jail, Larry Jackson, who had been charged with raping Kathy Jo Allen, offered Blair $2,000 to keep Allen from testifying against him. Later, after Blair had been released, Jackson contacted Blair, told him that he wanted Allen killed, and raised his *1314offer to $6,000, which Blair accepted. On August 17, 1979, three days before Allen was scheduled to testify against Jackson in the rape trial, Blair told a friend, Ernest Jones, that he was going to watch the “white girl [Allen]” that evening and that he might "take her out.” The following day, Blair told Jones that he had seen the girl and her boyfriend in her apartment the previous evening and that if he had had a gun he could have killed them both. Later that day, between 8:00 p.m. and 9:00 p.m., Blair showed Jones a .32 caliber handgun, which Blair said he had stolen earlier that day. In the early morning hours of August 19, at Ernest Jones’ residence, Blair met his girl friend, Sharon Jones, who is not related to Ernest Jones, and together they went to his mother’s residence. There, Blair told Sharon Jones that he was “going to kill the white bitch” and that he would return before sunrise.
Blair then left his mother’s home and walked to Allen’s apartment. He hid across the street from the apartment and watched for suspicious activity. Seeing none, Blair approached the apartment, removed a screen window, and entered Allen’s bedroom. At that time, Allen and her boyfriend, Robert Kienzle, were asleep on a mattress in the living room. Blair then covered the lower part of his face with a pillow case he found on Allen’s couch. Blair sat and watched the couple until Kienzle awoke at approximately 6:00 a.m. Blair pointed his gun at Kienzle and warned him not to move. Allen, hearing the men talking, then woke up. Blair told the couple that he was just there to rob them and that he would not harm them. Blair saw Kienzle’s diamond ring, which Kienzle had attempted to hide under a pillow, and took it along with Kienzle’s watch and cash from Kienzle’s wallet. Blair told Allen to get dressed so that she could drive him somewhere. Blair refused to take Kienzle’s car keys and also refused Kien-zle’s offer to act as his driver. When Blair was leaving with Allen, he told Kienzle that she would be back within seven to ten minutes. As soon as Blair was gone, Kien-zle called the police. Kienzle testified that Allen’s abductor wore clothing similar to Blair’s clothing as described by Sharon Jones.
At about 6:30 a.m., Velma Moore, who lived on E. 34th Street, heard screams, two gunshots, another scream, and a third shot. At around 7:00 a.m., the police found Allen’s body next to her abandoned Volkswagen in a vacant lot at 3406 Tracy Avenue, four blocks from the home of Blair’s mother. Allen was found nude from the waist up, had sustained head injuries caused by being struck with a blunt object, and had been shot in the head, chest, and wrist.
Blair arrived, out of breath, at his mother’s house at around 7:00 a.m. Sharon Jones was still at the house, and she saw Blair carrying a pillow case. From the pillow case, she saw Blair take a brown purse, a silver diamond ring, two watches, his gun, and his gloves. Later that day, Blair and Sharon Jones went to Ernest Jones’ residence. There, Blair passed around a diamond ring, a man’s watch, and Allen’s driver’s license. Blair told Ernest Jones that he had abducted Allen and that “he hit her with a brick and that she wouldn’t fall so he shot her.” (Tr. V 1484). Blair also said that Jackson’s family would pay him when they saw Allen’s driver’s license. That evening Blair burned the brown purse, the pillow case, and a spent shell casing.
On the day after the murder, Blair and Ernest Jones attempted unsuccessfully to pawn Kienzle’s diamond ring. They then gave the ring to Ernest’s older brother, Frederick Jones, and he pawned it for $50. Frederick gave the money to Ernest, who in turn gave the money to Blair.
On August 21, Blair contacted the Jackson family and showed them Allen’s driver’s license. That same day Blair also talked to Larry Jackson by telephone. Jackson told Blair that he loved him like a brother for what he had done, and that Blair would get the $6,000 he had been promised. Later that day, the police found Frederick Jones’ name on the pawn ticket for Kienzle's ring and they arrested him. Soon thereafter Ernest Jones was also arrested.
*1315When Blair learned of the arrests, he instructed Ernest Jones’ girl friend, Tina Jackson, to have Ernest call a phone number and ask for “Cody.” When Tina Jackson was questioned by the police later that day, she gave them the number supplied by Blair. The police determined that the phone number was for an apartment rented by Larry Jackson’s sister, Linda Robertson. The Police then went to that apartment, but Linda Robertson told them that Blair was not there, and they then drove to the home of Blair’s mother. The police were admitted by Mrs. Blair and during their search they found a hooded sweatshirt similar to the one described by Kienzle as being worn by Allen’s abductor. Subsequent analysis of the sweatshirt yielded paint chips consistent with the paint on the outside of Allen’s apartment and cat hair consistent with Allen’s cat.
On August 22, Ernest Jones, at the behest of the police, called the number Blair had given to Tina Jackson. After a man answered the phone to the code name “Cody,” the police entered Linda Robertson’s apartment and found Blair with several members of the Jackson family. The police searched the apartment and found a watch similar to Kienzle’s near Blair and a .32 caliber pistol in a closet. Later analysis showed that the two expended bullets found in and near Allen’s body, as well as the shell casing Blair had attempted to burn, had all been fired by this weapon.
Blair was arrested and was read his Miranda rights at least two times. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Soon thereafter, Blair confessed to abducting and killing Kathy Jo Allen. Blair first confessed orally, then signed a written confession, and finally gave a third confession on videotape. Blair contended in each of these confessions that although he had killed Allen, he had intended only to kidnap her to keep her from testifying against Jackson and that he had accidently shot her when she tried to escape.
Blair was convicted of Allen’s murder and sentenced to death. The conviction and death sentence were affirmed on direct appeal. State v. Blair, 638 S.W.2d 739 (Mo.1982) (en banc), cert. denied, 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1030, reh’g denied, 459 U.S. 1229, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983). After certiorari was denied, Blair commenced a post-conviction proceeding in state court under Missouri’s Rule 27.26.2 Relief was subsequently denied and that denial was affirmed by the Missouri Court of Appeals for the Western District. Blair v. State, 683 S.W.2d 269 (Mo.Ct.App.1984) (per curiam).3
Blair then brought this habeas corpus proceeding under 28 U.S.C. § 2254. He argued that the prosecution: (1) called Ernest Jones as a witness without disclosing that the State had made explicit or implied promises to Jones with respect to charges pending against him in exchange for his testimony; and (2) failed to correct Jones’ false testimony concerning the existence of any “deals”. Relying on United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), Blair contended that these two factors prejudiced the jury against him and gave Jones an incentive to alter his testimony, thereby rendering Blair’s trial fundamentally unfair in violation of the due process clause of the fourteenth amendment.
The district court found that a prosecutor, James Bell, had discussed with Jones and his attorney, Peter Sterling, the possibility of a lenient disposition of Jones’ case. Further, the court noted that Sterling told Jones that he would not go to the penitentiary if he testified in Blair’s case. Moreover, the court noted that both Bell and Sterling testified that Jones had been informed of a possible plea bargain with the *1316State in exchange for his testimony. The court, however, concluded that Jones had already been thoroughly impeached with evidence which indicated that in exchange for his testimony, he had not been charged with the capital murder of Allen, his pending probation had not been revoked, and he had received part of a $2500 award. Accordingly, the court concluded that any non-disclosure constituted harmless error, because it was not reasonably probable that, had this purported leniency agreement been disclosed, the outcome of Blair’s trial would have been different. Blair v. Armontrout, 643 F.Supp. 785, 788 (W.D.Mo.1986).
In considering Blair’s claim that he was prevented from seeing his attorney, the district court found that while Blair was in custody he had seen Kevin Locke, an assistant public defender, who had been assigned to defend Blair in an unrelated charge, in the hallway of the courthouse. When Blair saw Locke he said to one of the men holding him, “That’s my attorney,” and one of the prosecutors then took Locke into another office and told him that he could not speak with Blair. Nevertheless, the court held that Blair knowingly waived his Miranda rights because he knew at all times that he could refuse to speak with the authorities, that he could request an attorney, and that the State intended to use the videotaped confession to secure his conviction. Id. at 789.
The court rejected Blair’s claim that the trial court erred by failing to instruct the jury on first-degree murder as a lesser-in-cludéd offense of capital murder. It held that “the evidence presented at the trial would have been insufficient to support a conviction of first degree murder.” Id. at 790. The court rejected Blair’s argument that the conflict between these decisions violated his rights under the equal protection clause of the fourteenth amendment. Id.
Looking to Blair’s ex post facto argument, the court held that his ease involved a procedural as distinguished from a substantive change and hence the change did not violate the ex post facto clause. The court found that Blair had clear notice of the possible degrees of the offense under which he could be found guilty or not guilty. Id. at 791. Further, the court stated that a defendant could be convicted of capital murder both before and after the amendment to the statute of September 28, 1979. Id.
The court next considered Blair’s claim that the prosecutor’s closing argument in the sentencing phase of Blair’s trial, in which the prosecutor argued that it would be more financially efficient to sentence Blair to death, violated his constitutional rights. The court rejected this argument without detailed discussion. Id. at 793-94.
On cross-appeal, the State argues that the district court erred when it disqualified all attorneys affiliated with the Attorney General’s office because an attorney, prior to joining that office, had represented Blair in state post-conviction proceedings. Blair v. Armontrout, 626 F.Supp. 512, 517 (W.D.Mo.1985). The court concluded that “the scope of the disqualification properly extends to the Attorney General’s office as a whole,” id. at 516, and that the disqualification was also required to avoid the appearance of impropriety, id. at 516-17.
I.
Blair first argues that the district court erred in employing the reasonable probability standard in determining that the State’s knowing use of Ernest Jones’ perjured testimony was harmless. In order to be entitled to habeas corpus relief on a claim that a conviction was premised on perjured testimony, a defendant must show that the prosecution knowingly used perjured testimony and that “the false testimony could have affected the judgment of the jury,” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976). See also Johnson v. Trickey, 882 F.2d 316, 318 (8th Cir.1989). We conclude that Blair fails to establish either of these requisite elements.
Jones testified on direct examination by the prosecutor that the prosecutor’s office had told him that they would not press charges for accessory to murder if he told the truth about the case. His probation *1317officer told him his probation would not be revoked if he testified. He had received a $500 reward and expected to receive an additional $2,000 reward for his testimony. (Tr. V at 1495, 1497-98). Then, the testimony turned to pending cases (assault and drug possession) and Jones stated that the prosecutor had not made any deals with him on those cases.4 Blair bases his claim that this testimony was perjured on later testimony given by the prosecutor, James Bell, in Jones’ sentencing on the two charges pending at the time of his participation in Blair’s trial,5 and on statements made by Jones’ attorney, Peter Sterling, during Blair’s post-conviction hearing under Rule 27.26.6
When this argument was made in Blair’s 27.26 hearing, the state circuit court noted that Blair’s own evidence “revealed that no deal was made regarding Ernest Jones’ pending cases.” Blair v. State, No. CV83-6637, slip op. at 9 (Jackson Co.Cir.Ct. Div. 8 July 7, 1983) (unpublished). Accordingly, the state circuit court concluded that Blair had “failed to establish the existence of any such deal, especially in light of the fact that the person who was supposed to gain the benefit of the deal, Jones, never knew of any such deal.” Id. at 11. The Missouri Court of Appeals for the Western District agreed with this conclusion, stating that the “[mjovant’s contention that there existed an ‘implied contract’ as between the prosecution and the witness has no eviden-tiary basis.” Blair v. State, No. WD 35053, memorandum at 3.
We review state court factual determinations in federal habeas corpus actions under 28 U.S.C. § 2254(d).7 Federal courts must presume that state court factual determinations are correct unless the applicant can either establish the existence of one of seven conditions, § 2254(d)(l)-(7), or show that state court determinations are “not fairly supported by the record,” § 2254(d)(8). See Woods v. Armontrout, 787 F.2d 310, 313 (8th Cir.1986), cert. de*1318nied, 479 U.S. 1036, 107 S.Ct. 890, 93 L.Ed.2d 842 (1987). If the applicant is unable to establish either alternative, "the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.” 28 U.S.C. § 2254(d); see Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981) (Sumner I). This “standard of review clearly places a heavy burden on the appellant.” Robinson v. Wyrick, 735 F.2d 1091, 1093 (8th Cir.), cert. denied, 469 U.S. 983, 105 S.Ct. 390, 83 L.Ed.2d 324 (1984).
This standard applies in every habeas case “in which a state court of competent jurisdiction has made ‘a determination after a hearing on the merits of a factual issue.’ ” Sumner I, 449 U.S. at 546, 101 S.Ct. at 768 (quoting 28 U.S.C. § 2254(d)). The only other requirements are “that the habeas applicant and the State or its agent be parties to the State proceeding,” id., and that the state court ruling is “evidenced by ‘a written finding, written opinion, or other reliable and adequate written indicia,’ ” id. at 546-47, 101 S.Ct. at 769 (quoting 28 U.S.C. § 2254(d)). Congress enacted subsection (d) in 1966 to alleviate friction between the state and federal court systems. Id. at 550, 101 S.Ct. at 770. “This interest in federalism ... requires deference by federal courts to factual determinations of all state courts. This is true particularly ... where a federal court makes its determination based on the identical record that was considered by the state appellate court....” Id. at 547, 101 S.Ct. at 769. See Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963). We now consider Blair’s arguments on this issue.
Blair first contends that section 2254(d) is inapplicable in this case because the question presented, whether the state knowingly used perjured testimony, is a mixed question of law and fact.
It is well-established that section 2254(d) applies only to factual determinations and not to legal rulings or mixed questions of law and fact. See Sumner v. Mata, 455 U.S. 591, 597-98, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982) (per curiam) (Sumner II). Mixed questions involve “the application of legal principles to the historical facts of [a] case,” Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980), while factual determinations, “termed basic, primary, or historical,” Townsend, 372 U.S. at 309 n. 6, 83 S.Ct. at 755 n. 6, are more similar to “a recital of external events and the credibility of their narrators,” id. (quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 437, 445, 97 L.Ed. 469 (1953) (Frankfurter, J.)).
The state courts considering Blair’s argument on this point determined a deal did not exist, which we believe is a factual determination. See Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985);8 cf. Nix v. Whiteside, 475 U.S. 157, 182, 106 S.Ct. 988, 1002, 89 L.Ed.2d 123 (1986) (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., concurring) (“factual finding by the state court [that the defendant’s testimony would have been perjurious] is entitled to a presumption of correctness under 28 U.S.C. § 2254(d)”).
This question was squarely before the state circuit court in Blair’s 27.26 proceeding. There, Blair’s attorney argued vigorously that a deal had indeed existed. The court reviewed Jones’ testimony, considered the prosecutor’s statement at Jones’ sentencing, and heard testimony from Jones’ attorney. At the close of the arguments, the judge reviewed the record before him and wrote that:
[Blair’s] own evidence at the hearing held on June 20, 1983 revealed that no *1319deal was made regarding Ernest Jones’ pending cases.
... The evidence of movant’s trial and at movant’s evidentiary hering [sic] is that Jones and Mr. Bell [the prosecutor] had not reached an agreement on Jones’ pending cases.
Blair v. State, No. CV83-6637, slip op. at 9. Moreover, the Missouri Court of Appeals for the Western District specifically found that “[t]here exists no factual or evidentiary basis to reveal any agreement or ‘deal’.” Blair v. State, No. WD 35053, memorandum at 5. Accordingly, under 28 U.S.C. § 2254(d), we must presume that these determinations are correct.
Blair also argues, however, that these determinations are not “fairly supported by the record,” citing 28 U.S.C. § 2254(d)(8), and hence should not be presumed correct.
The record before the state circuit court shows that the prosecutor, Bell, stated that he had several conversations with Jones and Sterling during which he had encouraged Jones to cooperate with the prosecution in its case against Blair. Bell told Sterling that in exchange for Jones’ cooperation he would recommend a lenient disposition of the charges pending against Jones, and that “for tactical reasons it would be better not to discuss the specifies in this case.” (Jones’ Sentencing Tr. 4-5).
Sterling testified that he felt he had an agreement that Jones would not be sent to the penitentiary and that he had conveyed this feeling to Jones. When asked whether an agreement existed between his client and the prosecutor’s office, however, Sterling described his relationship with prosecutor Bell as a working relationship, and stated that any agreement in existence at that time was unspoken. (Rule 27.26 Hearing Tr. 68-69). Sterling testified that he told Jones that he trusted Bell and that he believed that Bell would treat Jones favorably at the conclusion of the Blair case. (Rule 27.26 Hearing Tr. 68). Sterling also stated that he told Jones that because Jones “was testifying against a man who had to be presumed to be dangerous, that it was standard practice that he would not go to the penitentiary under those kinds of circumstances, assuming he testified and cooperated with Mr. Bell.” (Rule 27.26 Hearing Tr. 68). Sterling further testified, however, that a specific plea agreement did not exist with Bell until after Blair’s trial. He stated that Bell did not tell him that Jones would not go to some penitentiary other than the Missouri penitentiary. Finally, Sterling testified that it was not until just before Jones’ sentencing that the specifics of a deal were outlined and that discussions on the plea continued in the courtroom. Sterling admitted that any understanding or agreement that he thought existed prior to this time was based on his individual opinion or feeling for the case and not on any specific promise made by Bell. (Rule 27.26 Hearing Tr. 81-84).
Based on the testimony of Bell and Sterling, the state circuit court found that no agreement existed.9 In addition to the gen*1320eral statement containing its conclusions, the state circuit court made the following detailed findings of fact:
14. That the prosecutor, James Bell, stated prior to trial on September 29, 1980 that no agreement had been “expressly or impliedly” made with Jones regarding those pending charges and his testimony.
15. Mr. Peter Sterling, attorney for Ernest Jones, testified on June 20, 1983 that in conversations with Mr. James Bell about Mr. Jones’ testimony prior to movant’s trial, Mr. Bell told Mr. Sterling that he did not want to enter into any specifics concerning a deal with Mr. Jones on his then pending charges.
16. Mr. Peter Sterling testified on June 20,1983 that prior to movant’s trial, Mr. Bell never told him that Jones would not go to the penitentiary, but that Mr. Bell did say that there would be no problems in working out Jone’s [sic] pending charges and that they would be taken care of.
17. Mr. Peter Sterling further testified that he did not believe until one or two days before the date of Mr. Jones' guilty plea on November 4, 1980, that he had a plea agreement as to the specific number of years of imprisonment to be imposed upon and of probation to be served by his client Ernest Jones.
State v. Blair, No. CV83-6637, slip op. at 2-3 (citation omitted).
In its review of Blair’s 27.26 hearing, the Missouri Court of Appeals for the Western District also concluded that no specific agreement existed.10
When the record before the state courts is considered in detail, it is apparent that there was no specific agreement concerning Jones’ plea when Jones testified at Blair’s trial.
Since Blair has failed to refute by convincing evidence the state courts’ determinations that no deal existed between Jones and the prosecutor's office during Blair’s trial, and because these determinations are fairly supported by the record, we presume under section 2254(d) that the state courts’ findings that no deal existed are correct. Therefore, Jones did not perjure himself at Blair’s trial when he testified that he had made no deals with the prosecutor’s office. Accordingly, Blair has failed to establish that a knowing use of perjured testimony affected the judgment of the jury in his case.
Alternatively, Blair asks for an evi-dentiary hearing concerning the truthfulness of Jones’ testimony. It is clear that the record before us is complete. This fact differentiates this case from Johnson v. Trickey, 882 F.2d 316, where we remanded a case for an evidentiary hearing to resolve the defendant’s claim that perjured testimony was knowingly used by the prosecution. Id. at 319. We conclude that remand is unnecessary, because the record before us thoroughly supports the state courts’ careful and detailed consideration of Jones’ testimony.
II.
Blair argues that the district court erred by ruling, without an evidentiary hearing, that Blair’s waiver of his Miranda *1321rights was effective even though his attorney was excluded from pretrial custodial interrogation. To support this claim, Blair particularly relies on statements in Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), indicating that its result would have been different if the defendant in that case had known of the public defender’s efforts to contact him. He also relies upon Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Blair argues that, at a minimum, the district court should have conducted an evi-dentiary hearing to decide whether Blair validly waived his Miranda rights.
The incident involving attorney Kevin Locke, an assistant public defender who was representing Blair on an unrelated charge, occurred after Blair had made two detailed oral confessions, one of which was transcribed and signed, and immediately before he was to be interrogated before a video camera. The incident with Locke thus cannot affect the two earlier confessions; the second confession was read, in its entirety, to the jury. It is also true, although neither Locke nor Blair knew it then, that Locke could not have represented Blair in this capital murder charge, as the defender’s office had been appointed to represent Larry Jackson, the man who had extended the offer to Blair to kill Kathy Jo Allen.
The Supreme Court of Missouri, in Blair’s direct appeal, made a detailed recitation of the facts concerning this incident. State v. Blair, 638 S.W.2d at 755. After Blair had given a written statement, he was asked if he would make a confession on video tape and was told that he could have an attorney present if he desired. “Appellant agreed to make a videotaped statement and repeatedly stated that he did not want an attorney.” Id. at 749. The Missouri Supreme Court stated:
As appellant was being transported by officers to the grand jury room where the videotaping would take place, they encountered Kevin Locke, an assistant public defender who represented appellant on an unrelated charge. As appellant passed, Locke greeted him and appellant made an unknown reply, whereupon appellant and the accompanying officers continued on. Locke then demanded to speak with appellant and was refused. Mr. Locke did not represent appellant on the murder charge. At the beginning of his videotaped statement, appellant was again advised of his Miranda rights and again waived them. Appellant then made his third confession to the murder of Kathy Jo Allen.
Id. After pointing to the repeated Miranda warnings and its conclusion that the confessions were voluntary, the court further stated:
Nor does the fact that Kevin Locke requested to speak with appellant dictate another result. Although Locke represented appellant on an unrelated charge, appellant made no request for any attorney and in fact repeatedly stated that he did not want an attorney. The trial court did not err in overruling appellant’s motion to suppress his confessions.
Id.
Consistent with the factual findings made by the Missouri Supreme Court, the district court stated that “Blair knew at all times that he could refuse to speak and request a lawyer, and that he was aware of the State’s intention to use the videotaped confession to secure a conviction.” Blair v. Armontrout, 643 F.Supp. at 789.
We observe that “state-court findings [regarding subsidiary facts surrounding interrogations] ... are conclusive on the ha-beas court if fairly supported in the record and if the other circumstances enumerated in § 2254(d) are inapplicable.” Miller v. Fenton, 474 U.S. at 117, 106 S.Ct. at 453. Accordingly, since we believe that the factual findings of the Missouri Supreme Court are fairly supported in the record, these findings are binding upon us. The district court conducting the habeas hearings concluded that, given these facts, Blair’s waiver of his Miranda rights was valid, and that his confessions were voluntary. Blair v. Armontrout, 643 F.Supp. at 789. We agree with that conclusion.
We do not read Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410, as *1322aiding Blair’s claim. In Moran, the defendant’s sister had contacted a local public defender, who telephoned the police station and informed a detective that she would represent the defendant. Although the detective told the attorney that her client would not be questioned that night, not only was he questioned but he confessed to murder. The defendant in Moran did not know when he was questioned that the public defender had called for him. The Supreme Court held the confession admissible and stated that “deliberate deception of an attorney could not possibly affect a suspect’s decision to waive [his] Miranda rights unless [the defendant] [was] at least aware of the incident.” Id. at 423, 106 S.Ct. at 1142.
The situation before us is different from that in Moran. Locke did not represent Blair on the charge in question and could not have done so, because the public defender’s office already represented Jackson. More significantly, Blair had already given two detailed confessions before he saw Locke. Finally, both before and after this incident occurred, Blair stated repeatedly that he did not want to see an attorney.
Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, does not support Blair’s position. In Escobedo, the Supreme Court held that a confession should have been excluded when police told a suspect that his attorney did not want to see him. Id. at 484, 84 S.Ct. at 1761. This case is unlike Escobedo, because nothing in the record indicates that the police ever misled Blair concerning either his right to counsel or his right against self-incrimination. Moreover, we note that the Court in Moran stated that “ ‘the “prime purpose” of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda, “to guarantee full effectuation of the privilege against self-incrimination.” ’ ” Moran, 475 U.S. at 429-30, 106 S.Ct. at 1145, (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (Stewart, J.) (quoting Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966))).
Blair argues that the State’s conduct rendered his waiver of the Miranda rights invalid because he believed that the assertion of those rights would be futile. There is no support in the record for this position. Furthermore, we are not impressed with Blair’s argument that the record is silent in many respects which are material to this issue. The record concerning this issue was fully developed at both Blair’s suppression hearing and at his trial.
Since this issue was developed fully in a suppression hearing before trial and was aired in some detail before the jury during the trial, we reject Blair’s claim that the district court erred by ruling, without an evidentiary hearing, that Locke’s exclusion did not render Blair’s waiver of his Miranda rights ineffective.
III.
Blair argues that the prosecutor’s plea for death during the sentencing portion of Blair’s trial violated his eighth amendment rights. Blair points specifically to the following passage from the prosecution’s closing argument:
[T]here are only two penalties in this case, death or life without consideration of parole for 50 years.
Why should we as taxpayers have to house this man for fifty years? Why should we have to feed him three meals a day for fifty years, clothe him for fifty years, furnish him recreation, medical care?
(Tr. VII 2317).
The district court recognized Blair’s argument that recent polls had shown that cost was one reason for public support of the death penalty, but concluded that the argument did not violate his constitutional rights. Blair v. Armontrout, 643 F.Supp. at 793-94.
Blair argues, citing Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), that the sentencing portion of the trial did not meet the standard of reliability that the eighth amendment requires unless it can be said that the prosecutor’s argument “had no effect on the *1323sentencing decision.” Id. at 341, 105 S.Ct. at 2646. He points out that such arguments have been held indefensible, particularly by the Eleventh Circuit. See Tucker v. Kemp, 762 F.2d 1480 (11th Cir.) (en banc), cert. granted and judgment vacated by 474 U.S. 1001, 106 S.Ct. 517, 88 L.Ed.2d 452 (1985), on remand, 802 F.2d 1293 (11th Cir.1986) (en banc) (per curiam), cert. denied, 480 U.S. 911, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987); Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985) (en banc), cert. granted and judgment vacated by 478 U.S. 1016, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986), on remand, 809 F.2d 700 (11th Cir.1987) (en banc) (per curiam), cert. denied, 483 U.S. 1010, 107 S.Ct. 3240, 97 L.Ed.2d 744 (1987).
In Brooks, the Eleventh Circuit noted that it was clearly improper for the prosecutor “to argue that death should be imposed because it was cheaper than life imprisonment.” 762 F.2d at 1412. Similarly, in Tucker, the Eleventh Circuit admonished the prosecutor for making an economic efficiency argument to support a death sentence. 762 F.2d at 1488 (calling the reference unprofessional and improper). In both cases, however, the court concluded that the arguments did not have enough adverse impact to render the sentencing proceedings under review fundamentally unfair. See Tucker, 762 F.2d at 1488; Brooks, 762 F.2d at 1416.11
We have no hesitation in condemning this argument.12 There is simply no legal or ethical justification for imposing the death penalty on this basis and it is not a proper factor to be considered by the jury, for it does not reflect the properly considered circumstances of the crime or character of the individual. See Zant v. Stephens, 462 U.S. 862, 878-79, 103 S.Ct. 2733, 2743-44, 77 L.Ed.2d 235 (1983). The question remains, however, whether Blair has presented sufficient grounds for granting a writ.
The danger of a jury being swayed by prosecutorial misbehavior in closing arguments in the sentencing phase, especially in a capital murder case, is obvious. However, “[i]t is axiomatic that federal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension.” Wainwright v. Goode, 464 U.S. 78, 83, 104 S.Ct. 378, 381, 78 L.Ed.2d 187 (1983) (per curiam); see Wycoff v. Nix, 869 F.2d 1111, 1113 (8th Cir.) (quoting Goode), cert. denied, — U.S. -, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989). “In a § 2254 habeas corpus proceeding, a federal court’s review of alleged due process violations stemming from a state court conviction is narrow.” Hamilton v. Nix, 809 F.2d 463, 470 (8th Cir.) (en banc), cert. denied, 483 U.S. 1023, 107 S.Ct. 3270, 97 L.Ed.2d 768 (1987).
Blair’s trial was bifurcated. Thus the prosecution’s argument in the sentencing phase, which came after the jury had already found Blair guilty of capital murder, could not have affected the determination of guilt. We will only consider whether or not Blair was denied his due process rights during the sentencing phase by the prosecutor’s comments.
In a recent Supreme Court case involving an argument more vicious than that before us today, Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), the prosecutor repeatedly referred to that defendant as an animal and wished that the defendant had been shot and had his “face” blown away. Id. at 183 n. 14, 106 S.Ct. at 2472 n. 14. The Supreme Court rejected the defendant’s argument that the eighth amendment standard in Caldwell, 472 U.S. 320, 105 S.Ct. 2633, applied and instead evaluated the argument under the due process standard. Id. In distinguishing Caldwell, the Supreme Court observed that the comments there were made at the guilt-innocence stage rather than the sentencing stage, but went on to say that Caldwell:
*1324is relevant only to certain types of comment—those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision. In this case, none of the comments could have had the effect of misleading the jury into thinking that it had a reduced role in the sentencing process.
Darden, 477 U.S. at 183-84 n. 15, 106 S.Ct. at 2473 n. 15. Darden deals with an argument that is similar in nature to that before us and one that we believe to be stronger and more improper than the one in this case. As Darden applied the due process standard, we are satisfied that we are compelled to do so.13 Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), applying an eighth amendment analysis to evidence of a victim impact statement, and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), dealing with a prolonged argument based on the victim, are not to the contrary.14
We recently defined this due process standard in Newlon v. Armontrout, 885 F.2d 1328 (8th Cir.1989), cert. denied sub nom. — U.S. -, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990), where we stated that:
The petitioner must show that the alleged improprieties were “so egregious that they fatally infected the proceedings and rendered his entire trial fundamentally unfair.” Moore v. Wyrick, 760 F.2d 884, 886 (8th Cir.1985). Under this standard, a petitioner must show that there is a “reasonable probability that the error complained of affected the outcome of the trial—i.e., that absent the alleged impropriety, the verdict probably would have been different.” Hamilton [v. Nix], 809 F.2d at 470.
Id. at 1336-37.
Neither Blair’s conclusory arguments that the statement by the prosecutor violated all standards of human decency and caused the jury to abandon its duty to objectively apply the death penalty nor our study of the record convinces us that the sentencing phase was rendered fundamentally unfair by the part of the prosecutor’s closing argument at issue.
This was not the strongest part of the prosecutor’s closing argument. The prosecutor delivered a tough, hard-hitting argument which was based on the hard facts presented by this case. His main focus was on establishing at least one of four aggravating circumstances which Missouri requires be present before a jury in order to impose the death penalty. He discussed the murder of Kathy Jo Allen, called it a murder for hire, stressed Blair’s monetary gain from the murder, noted Blair’s “tough guy” image in prison, talked of the constitutional right of the people of the State of Missouri to sentence a man to death, and stressed that the jury should not give Blair “mercy” just because he was only 20 years old. (Tr. VII 2317-19). During his argument, without pause or repetition, the prosecutor made the challenged statement about the cost of caring for Blair for the next fifty years, which was the only alternative to a death sentence. (Tr. VII 2317).
*1325The argument in Darden branded the defendant as an animal on repeated occasions, see 477 U.S. at 179 n. 7, 106 S.Ct. at 2470 n. 7, and had the capacity for producing far greater prejudicial impact than the argument at issue in this case. In Newlon, in which we affirmed the granting of the writ based on the closing argument, the prejudicial statements were repeated and infected nearly the entirety of the argument. In that case, we outlined the improper statements as follows:
[T]he prosecutor (1) expressed his personal belief in the propriety of the death sentence and implied that he had special knowledge outside the record; (2) emphasized his position of authority as prosecuting attorney of St. Louis County; (3) attempted to link petitioner with several well-known mass murderers; (4) appealed to the jurors’ personal fears and emotions; and (5) asked the jurors to “kill him now. Kill him now.”
Newlon, 885 F.2d at 1335 (emphasis added).
Arguments similar to the one made in Blair’s case were made in Tucker and Brooks, but in both they comprised only a brief portion of the prosecutor’s closing argument, and in each case the Eleventh Circuit concluded that the defendant’s due process rights had not been violated. We compare the argument in this case with others to demonstrate the level at which such behavior necessitates habeas corpus relief.
We are satisfied that the argument in question is not sufficiently prejudicial to fatally infect the proceedings so as to render Blair’s sentencing hearing fundamentally unfair.15
Accordingly, we conclude that the district court did not err in its conclusion on this issue.
IV.
Blair argues that, when the trial court refused to instruct the jury on first-degree murder,16 it violated the due process clause of the fourteenth amendment, the equal protection clause of the fourteenth amendment, and the ex post facto clause of article I, section 10, clause 1 of the United States Constitution. These arguments are all unpersuasive.
A.
As a threshold matter, we must consider the State’s contention that Blair is procedurally barred from raising these arguments. We believe that we should address the merits of Blair’s arguments because the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977), is satisfied in this case.
Blair could not have made these arguments until the Missouri Supreme Court decided State v. Goddard, 649 S.W.2d 882 (Mo.) (en banc), cert. denied, 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 689 (1983). Goddard was decided on April 26,1983, shortly after Blair filed his state-court collateral attack on his conviction pursuant to Missouri’s Rule 27.26, but before that claim was decided. Thus, although Blair’s arguments depend only upon well-settled principles of federal law, the factual basis for the claims “was not reasonably available to counsel” before the default. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). Therefore, cause has been established, see Amadeo v. *1326Zant, 486 U.S. 214, 221-22, 108 S.Ct. 1771, 1776-77, 100 L.Ed.2d 249 (1988); Murray, 477 U.S. at 488, 106 S.Ct. at 2645, and we believe that prejudice is sufficiently apparent that an extended analysis is not required.
B.
After Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), states may not force a jury to make a stark choice between acquitting a defendant and imposing the death penalty upon him.17 In Beck, the Supreme Court reviewed an Alabama statute that prevented trial judges from instructing juries on lesser-included offenses of capital murder. Relying upon the due process clause of the fourteenth amendment, the Court held that Alabama had to submit a “third option” to the jury. Theoretically, Beck’s jury would have acquitted him unless the prosecution established every element of capital murder beyond a reasonable doubt. Nevertheless, the Court explained that a defendant in a capital case:18
“is entitled to a lesser offense instruction ... precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.”
Id. at 634, 100 S.Ct. at 2388 (emphasis in original) (quoting Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 1997-98, 36 L.Ed.2d 844 (1973)).
This case is unlike Beck, because, even after Blair was found guilty of capital murder, the jury was given the option of sen-fencing him to a prison term. Furthermore, the jury was instructed concerning not only capital murder but also second-degree murder and manslaughter. Blair argues that he was also entitled to a first-degree murder instruction because his offense involved kidnapping.
In effect, Blair argues that Beck required the trial court in his case to instruct the jury on every homicide offense defined by Missouri law. This interpretation is incorrect. Beck does not prescribe a first-degree murder instruction in this case unless first-degree murder is a lesser-included offense of capital murder, see id. at 627, 100 S.Ct. at 2384; and the Missouri Supreme Court held, in the appeal of Blair’s conviction, that first-degree murder was not a lesser-included offense of capital murder, State v. Blair, 638 S.W.2d 739, 747 (Mo.1982) (en banc), cert. denied, 459 U.S. 1188, 103 L.Ed.2d 838, 74 L.Ed.2d 1030 (1983). Blair, however, challenges the validity of that holding; he argues that, in a series of cases, the Missouri Supreme Court has answered that question inconsistently. We now turn to this equal protection argument.
C.
Blair’s equal protection claim is based upon the treatment by several Missouri Supreme Court decisions of statutory amendments dealing with whether first-degree murder was a lesser-included offense of capital murder. A statute declaring first-degree murder a lesser-included offense of capital murder was repealed effective January 1, 1979. See Mo.Rev.Stat. *1327§ 556.220 (repealed 1979).19 After January I, 1979, a new statute provided that:
1. A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when
(1) It [was] established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It [was] specifically denominated by statute as a lesser degree of the offense charged....
2. The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
Mo.Rev.Stat. § 556.046 (1979).20 Although these modifications occurred in 1979, the Missouri Supreme Court did not specifically address them until State v. Baker, 636 S.W.2d 902 (Mo.1982) (en banc), cert. denied, 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983). See Goddard, 649 S.W.2d at 887-89; id. at 890-92 (Welliver, J., dissenting).
The first case decided after the amendments was State v. Gardner, 618 S.W.2d 40 (Mo.1981). The crime in Gardner, however, occurred in 1978, before the amendments. The defendant in Gardner, who was charged with capital murder, claimed that the trial court should have instructed the jury on first-degree murder. The Missouri Supreme Court accepted the defendant's argument and held that “[t]he failure to instruct on first degree murder [in a capital murder case] ... requires reversal of the judgment of conviction.” Id. at 41. In so holding, the court did not acknowledge the amendments.
In Baker, 636 S.W.2d 902, the issue was whether “it is error, when only capital murder is charged, to fail to submit a first degree murder instruction in a trial for capital murder committed after January 1, 1979.” Id. at 904 (emphasis in original). The court distinguished Gardner, because the crime in Gardner occurred in 1978. Id. The court also recognized that under the amended version of section 556.046, “an offense can be a lesser included offense of another either: (1) when its elements are necessarily included therein, or (2) when by statute it is specifically denominated as a lesser degree of the offense charged.” Id. The court concluded that “first degree murder is not a lesser included offense of capital murder on their elements,” because one can be convicted of first-degree murder only if he commits an independent felony, while a capital murder conviction requires no such proof. Id. Also, first-degree murder was not specifically denominated by statute as a lesser-included offense of capital murder. Id. Therefore, the court held that, under the new statutory scheme, the first-degree murder instruction need not be given, since “first degree murder is not a lesser included offense of capital murder.” Id.
The Missouri Supreme Court decided Blair’s appeal soon after it decided Baker. Relying upon Gardner, Blair argued in his appeal that “the trial court erred in failing to give an instruction on first-degree murder because there was evidence that the murder occurred during the commission of kidnapping, burglary, and robbery.” Blair, 638 S.W.2d at 746-47 (citation omitted). Since Blair was convicted of a crime which occurred on August 31, 1979, the *1328court relied upon Baker’s holding that first-degree murder was not a lesser-included offense of capital murder and rejected Blair’s argument. See id. at 747.
Blair’s argument that there is an inconsistency in the Missouri Supreme Court decisions on whether first-degree murder is a lesser-included offense of capital murder arises primarily from Goddard, 649 S.W.2d 882. The defendant in that case had been charged with capital murder before Baker was decided, but was convicted of first-degree murder. He claimed that the trial court should not have instructed the jury on first-degree murder for two reasons: (1) he was not charged with first-degree murder; and (2) Baker established that first-degree murder was not a lesser-included offense of capital murder. See id. at 887. The court rejected Goddard’s argument, holding that he “was on clear notice at the time of the homicide and his trial that he could be convicted of first degree murder even though he was formally charged with [only] capital murder.” Id. at 889. This conclusion was supported by the fact that Gardner, which had ruled that first-degree murder was a lesser-included offense of capital murder, was decided only a few months before the trial in Goddard. See id. at 887. The court recognized that defendants cannot be convicted of any offense of which the information or indictment did not give them fair notice, but concluded that defendants who were charged with capital murder before Baker were aware that they might be convicted of first-degree murder. Because defendants who were tried for capital murder after Baker would not have such notice, the court acknowledged that they could not be convicted of first-degree murder. It stated that the conviction of murder in the first-degree was a mitigation of the offense charged, rather than a conviction of something other than what was charged, and that reversal was not required because the trial court followed the long approved form of submission. Id. at 889. The court stated that while Goddard, as a matter of due process, could not be convicted of any offense of which he did not have fair notice, “Baker is not retroactive, but prospective, in its application and the trial court did not commit reversible error in submitting first degree murder.” Id. This last statement is the root of Blair’s equal protection claim, because he argues that Baker was applied retrospectively to him.
Shortly after Goddard, the Missouri Supreme Court decided State v. Holland, 653 S.W.2d 670 (Mo.) (en banc). As in Goddard, the defendant in Holland had been charged with only capital murder but was convicted of first-degree murder after the jury was instructed on both offenses. The Missouri Supreme Court stated that the issue was whether the defendant had adequate notice that he might be convicted of first-degree murder. Id. at 674. Because Holland had been tried before Baker was decided, the court held that he “had an abundance of notice that first degree murder was going to be submitted to the jury.” Id. The court also indicated that its decision did not “intrude upon the solution of State v. Baker to the failure to instruct down to ... first-degree murder.” Id.
These cases fall into two distinct categories. In the first category, exemplified by Baker and Blair, defendants who were convicted of capital murder argued that the jury should have been instructed on first-degree murder. The second group consists of cases such as Goddard and Holland, in which defendants had been charged with only capital murder but had been convicted of first-degree murder. The defendants in this second line of cases argued that the jury should not have been instructed on first-degree murder.
The first step in analyzing Blair’s equal protection challenge is to determine the appropriate standard of scrutiny. The distinction between these two groups of defendants will be upheld if it is rationally related to a legitimate state interest. See Evans v. Thompson, 881 F.2d 117, 121 (4th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 3255, 111 L.Ed.2d 764 (1990); Dickerson v. Latessa, 872 F.2d 1116, 1119-20 (1st Cir.1989); Williams v. Lynaugh, 814 F.2d 205, 208-09 (5th Cir.), cert. denied, 484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 270 (1987). For the reasons given below, we *1329hold that there is a rational distinction between the two groups of defendants.
The Goddard-Holland line of cases implicates the rule that a defendant’s sixth amendment “ ‘right to reasonable notice of the charge against him ... is incorporated in the Fourteenth Amendment to the United States Constitution and thus cannot be abridged by the states.’ ” Franklin v. White, 803 F.2d 416, 417 (8th Cir.1986) (per curiam) (quoting Goodloe v. Parratt, 605 F.2d 1041, 1045 (8th Cir.1979)), cert. denied, 481 U.S. 1020, 107 S.Ct. 1904, 95 L.Ed.2d 510 (1987).21 However, the states are not bound by the technical rules governing federal criminal prosecutions; the crucial question in state prosecutions is whether the defendant had sufficient notice of the potential charges against him that he could prepare to contest those charges. See Johnson v. Trickey, 882 F.2d 316, 320 (8th Cir.1989); Wright v. Lockhart, 854 F.2d 309, 312 (8th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 2077, 104 L.Ed.2d 642 (1989); Franklin, 803 F.2d at 418; see also Hulstine v. Morris, 819 F.2d 861, 864 (8th Cir.1987) (“Due Process requirements may be satisfied if a defendant receives actual notice of the charges against him, even if the indictment or information is deficient.”) (emphasis in original), cert. denied, 484 U.S. 1068, 108 S.Ct. 1034, 98 L.Ed.2d 998 (1988); Williams v. Nix, 751 F.2d 956, 961 (8th Cir.) (“The omission of any express mention of felony murder from the indictment ... did not affect any of the [the defendant’s] substantial rights.... In the federal courts such a de facto amendment of an indictment might raise serious problems, but the Supreme Court has held that the Fourteenth Amendment does not require the states to use grand-jury indictments at all, even to prosecute serious crimes.”), cert. denied, 471 U.S. 1138, 105 S.Ct. 2681, 86 L.Ed.2d 699 (1985).
In Holland and Goddard, the Missouri Supreme Court recognized these notice requirements. However, in each case, the court held that the trial court could submit a first-degree murder instruction to the jury because, at the time of the trials, the defendants had notice that anyone who was charged with capital murder could be convicted of first-degree murder.
Concerns about reasonable notice are not implicated in the Baker-Blair category of cases.22 Rather, the question is whether either state law or Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), requires the submission of a first-degree murder instruction to the jury. We cannot review the state law questions, Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503, 53 L.Ed.2d 594 (1977) (stating that “a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts”); Woods v. Solem, 891 F.2d 196, 199 (8th Cir.1989) (stating that “these are conclusions of state law that we may not reexamine”), cert. denied, — U.S. -, 110 S.Ct. 1952, 109 L.Ed.2d 314 (1990), and we have already concluded that Beck is satisfied in this case.
The two groups of cases are thus derived from two distinct sets of legal principles. The Missouri Supreme Court recognized the difference between the two types of cases in both Holland and Goddard. See Holland, 653 S.W.2d at 674; Goddard, 649 S.W.2d at 889 & n. 1. For example, the court stated in Holland that its decision turned on the issue of notice, and thus did not “intrude upon the solution of State v. *1330Baker to the failure to instruct down to first degree murder.” 653 S.W.2d at 674 (citation omitted). Although Judge Welliver, dissenting in Goddard, said that the Missouri cases had created a “classic eatch-22” for defendants, 649 S.W.2d at 890 (Welliver, J., dissenting), he did not address the differences between the two groups of cases. Interestingly, in Holland, Chief Justice Rendlen referred to “the dissenting opinion which compares apples with oranges.” 653 S.W.2d at 678 (Rendlen, C.J., concurring).
Blair’s argument, at its base, must rest upon Goddard’s holding that Baker would apply only prospectively. However, that statement was made in dealing with issues where due process considerations of reasonable notice were involved and would have mandated the result. We cannot conclude that Blair was deprived of equal protection by Goddard’s holding, after Blair’s appeal was decided.
Nor do we believe that two pre-Baker cases, State v. Fuhr, 626 S.W.2d 379 (Mo. 1982), and State v. Daugherty, 631 S.W.2d 637 (Mo.1982), support Blair’s argument. Although the crimes involved in both Fuhr and Daugherty occurred after January, 1979, neither case referred to the 1979 statutory change. Moreover, both cases relied upon cases involving crimes that were committed before January, 1979, see State v. Gardner, 618 S.W.2d 40 (Mo.1981), and State v. Wilkerson, 616 S.W.2d 829 (Mo. 1981) (en banc), to support their holdings that convictions should be reversed because of the failure to instruct on first-degree murder. Goddard commented that both Fuhr and Daugherty “appear to be necessarily overruled by Baker.” 649 S.W.2d at 888 (emphasis not in original). Daugherty, it must also be added, is a case that falls in the Goddard-Holland category. These cases do not establish an equal protection violation.
Because there is a rational distinction between the two categories of cases, we cannot conclude that there has been a violation of Blair’s equal protection interests. We also observe that even if first-degree murder were a lesser-included offense of capital murder, the district court held that Blair’s argument was untenable because the state trial court had found that there was insufficient evidence to support a separate charge of first-degree murder. See 643 F.Supp. at 790.23
D.
Blair claims that the Missouri Supreme Court transgressed the ex post facto clause of the United States Constitution by applying Baker’s holding retrospectively to him. This argument is unpersuasive because, for the purposes of the ex post facto clause, Baker’s holding is merely a procedural change that can be applied retrospectively.
Technically, the ex post facto clause does not proscribe the retrospective application of judicial decisions, because “[t]he Ex Post Facto Clause is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government.” Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (1977) (citation omitted). However, the principles that underlie the ex post facto clause operate through the due process clause of the fourteenth amendment to prevent state courts from making certain unforeseeable doctrinal changes. See id. at 192, 97 S.Ct. at *1331993; Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 1702-03, 12 L.Ed.2d 894 (1964).
The ex post facto clause, however, does not prohibit the retrospective application of new procedural, as opposed to substantive, rules. Dobbert v. Florida, 432 U.S. 282, 292-93, 97 S.Ct. 2290, 2297-98, 53 L.Ed.2d 344 (1977). Significantly, the realm of changes which are considered procedural for this purpose is quite large. See id. at 292-97, 97 S.Ct. at 2297-2300; Thompson, 881 F.2d at 120-21.
In Dobbert, the Supreme Court held that a change in the sentencing powers of judges and juries in death penalty cases was merely procedural. Prior to the change, a defendant who was convicted of capital murder was sentenced to death unless a majority of the jury recommended leniency. See 432 U.S. at 288 & n. 3, 97 S.Ct. at 2296 & n. 3. After the change, the jury was relegated to the task of rendering an advisory decision. See id. at 291, 97 S.Ct. at 2297. The Court concluded that the modification was merely procedural because “ ‘[t]he crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent [change].’ ” 432 U.S. at 294, 97 S.Ct. at 2298 (emphasis added) (quoting Hopt v. Utah, 110 U.S. 574, 589-90, 4 S.Ct. 202, 209-10, 28 L.Ed. 262 (1884)).
We also believe that recent decisions by the Fourth and Tenth Circuits provide a valuable benchmark against which to measure Blair’s argument. See Evans, 881 F.2d 117; Coleman v. Saffle, 869 F.2d 1377 (10th Cir.1989), cert. denied, -U.S. -, 110 S.Ct. 1835, 108 L.Ed.2d 964 (1990). In both cases, state law originally provided that if a death sentence were declared invalid, the sentence would be replaced automatically by a sentence of life imprisonment. See Evans, 881 F.2d at 119; Coleman, 869 F.2d at 1385. After the state laws were modified, an invalid death sentence could be followed by a valid death sentence. See Evans, 881 F.2d at 119; Coleman, 869 F.2d at 1385. Both cohrts held that these changes, which increased the probability that the defendant will be sentenced to death, were merely procedural. See Evans, 881 F.2d at 120; Coleman, 869 F.2d at 1387.
In light of these cases, we reject Blair’s ex post facto argument. Blair was convicted of capital murder. Neither the definition of that crime nor the accompanying punishment changed between the murder and the trial.
V.
In Blair’s pro se brief, he argues that his constitutional right to effective assistance of counsel was infringed when his court-appointed counsel failed to raise all exhausted issues in the district court and on appeal. We have considered and rejected Blair’s argument urged pro se with respect to the first-degree murder instruction.24 Blair in his pro se brief makes specific reference to only one other issue, that the trial judge spoke directly with the jury without his being present. The state postconviction proceedings determined that this discussion dealt only with whether court would be held on Saturday and specifically rejected any claim that there had been mention of any security problems.25
The issue raised by the dissent as to failure to call two witnesses was considered to be a question of trial strategy in *1332the state postconviction proceedings. This issue was not specifically raised either in the pro se brief or by counsel, either before the district court or this court.26
We find it difficult to see how the exacting standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), could be met in either of the latter two respects.
We must also recognize that it has not heretofore been held that there is a constitutional right to representation in a habeas action. Johnson v. Avery, 393 U.S. 483, 488, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969); Hooks v. Wainwright, 775 F.2d 1433, 1438 (11th Cir.1985); 17A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4268.4, at 524 (1988); cf. Murray v. Giarratano, — U.S. -, 109 S.Ct. 2765, 2769-72, 106 L.Ed.2d 1 (1989) (holding that states are not required to appoint counsel for prisoners who are collaterally attacking their convictions and death sentences in state court); Miller v. Keeney, 882 F.2d 1428, 1432 (9th Cir.1989) (rejecting an ineffective assistance of counsel claim that was based upon an attorney’s decision not to file a petition for a writ of certiorari). As ineffective assistance of counsel claims spring from the right to counsel contained in the sixth amendment, Strickland, 466 U.S. at 684-86, 104 S.Ct. at 2062-64, it follows that there is no constitutional underpinning for the claimed right to effective assistance in this habeas action. We recognize that Congress is now considering legislation that would encourage states to provide counsel in habeas and review of death cases, but that does not assist us in considering this case.
We cannot conclude that Blair’s most general argument that all unexhausted issues should be raised justifies relief or requires further consideration.
VI.
Finally, the State cross-appeals from the district court’s order disqualifying the Missouri Attorney General’s Office from appearing in this case. The district court disqualified the entire office because a member of the office, when serving as a public defender, had represented Blair during various attempts to attack his conviction.
In reaching its conclusion, the district court primarily relied upon the decisions in Arkansas v. Dean Foods Products Co., 605 F.2d 380 (8th Cir.1979), overruled on other grounds, In re Multi-Piece Rim Products Liability Litigation, 612 F.2d 377, 378 (8th Cir.1980), and in State v. Croka, 646 S.W.2d 389 (Mo.Ct.App.1983). Neither decision supports the continued disqualification of the entire office.
In Dean Foods Products, this court affirmed a district court order disqualifying an Assistant Attorney General from taking part in an antitrust action against a defendant that was being represented by his former law firm. See 605 F.2d at 382, 384-86. Moreover, the court disqualified those members of the Attorney General’s staff who had actively participated in the case under the supervision of the disqualified attorney. See id. at 387. The court explicitly reserved judgment on whether the conflict should have resulted in the imputed disqualification of the entire Attorney General’s office. See id. at 387 n. 9.
The Missouri Court of Appeals in Croka disqualified the entire Saline County Prosecuting Attorney’s Office because an attorney in the office had obtained confidential information from the defendant while representing the defendant. 646 S.W.2d at *1333392-93.27
We do not think that Dean Foods Products and Croka required the district court to disqualify the entire Office of the Attorney General in this case. The United States District Court for the Western District of Missouri had adopted the Missouri Code of Professional Responsibility, “as amended from time to time” by the Missouri Supreme Court. W.D.Mo.R. 2(D)(2). Rule 1.11 of the Missouri Rules of Professional Conduct, which regulates successive government and private employment, disqualifies a government attorney from “par-ticipat[ing] in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment.” Rule 1.11(c)(1), reprinted in Missouri Supreme Court Rule 4. The commentary accompanying that section explicitly states that “[pjaragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated.” Under these rules, we believe that a screening mechanism or Chinese Wall could be implemented to avoid disqualifying the entire Attorney General’s office. This result is consistent with academic commentary. See, e.g., Developments in the Law: Conflicts of Interest in the Legal Profession, 94 Harv.L.Rev. 1244, 1367-70 (1981); Comment, The Chinese Wall Defense to Law-Firm Disqualification, 128 U.Pa.L.Rev. 677 passim (1980).
VII.
We affirm the denial of the writ and reverse the district court’s order concerning disqualification.
. The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri.
. Rule 27.26 was repealed effective January 1, 1988. Post-conviction relief in Missouri is now available under Missouri Supreme Court Rule 29.15.
. In the post-conviction proceedings, the circuit court ruled on a number of issues. The court of appeals issued a three-line order, but filed a supporting memorandum which dealt with Blair’s arguments in detail. See Blair v. State, No. WD 35053, memorandum (Mo.Ct.App. July 31, 1984) (unpublished).
. During Blair’s trial, the prosecutor questioned Jones concerning the existence of any deals Jones might have made with the prosecution before testifying:
Q. And even though you’ve received, or you’re entitled to receive an additional 12,000 as reward money for your testimony, has anyone in the prosecutor’s office offered to dismiss any of the three pending cases against you?
A. No.
Q. Have they made any deals with you on those three cases?
A. No.
(Tr. V 1498).
. The transcript of Bell's testimony in Jones’ sentencing reads, in part, as follows:
I had several discussions with Mr. Jones and his attorney prior to his testifying, telling him that I thought for tactical reasons it would be better not to discuss the specifics of a plea bargain in this case, but that I would make sure and recommend a lenient disposition of this case in exchange for his probation — or words to that effect — or in exchange for his cooperation. Words to that effect.
He had already agreed to cooperate prior to that recommendation, but it is in consideration of this cooperation and the expense that would be incurred to house this defendant in an institution outside the State of Missouri that the State feels that probation is appropriate.
(Jones Sen. Tr. 4-5).
. Sterling testified at Blair’s Rule 27.26 hearing as follows:
Q. (By Mr. Gardner) Did you feel you had an understanding with Mr. Bell that your client would not go to the penitentiary?
A. Yes, I did.
Q. Okay. And did you advise your client that he would not go to the penitentiary?
A. Yes.
Q. And you did feel that you had an agreement with Mr. Bell if your client testified in Walter Blair’s case he would not go to the penitentiary?
A. That is right.
(Rule 27.26 Hearing Tr. 68, 71-72).
. The district court, in rather abbreviated fashion, outlined the evidence on this issue and concluded that ”[b]oth counsel stated, under oath, that Jones had been informed of a possible plea bargain with the State for his testimony,” Blair v. Armontrout, 643 F.Supp. at 787, but pointed to other impeaching testimony and the nature of Jones’ testimony to show that the outcome would not have been different. Id. at 787-88. In reaching this conclusion, the district court made no reference to the limitations on its review imposed by 28 U.S.C. § 2254 and failed to consider any of the state court determinations on this issue. Instead, the court simply conducted an analysis under Bagley, 473 U.S. 667, 105 S.Ct. 3375, and found that any error that had occurred was harmless. In light of our holding, we do not reach these questions.
. In Miller, the Court noted that:
[OJther considerations often suggest the appropriateness of resolving close questions concerning the status of an issue as one of “law” or "fact” in favor of extending deference to the trial court. When, for example, the issue involves the credibility of witnesses and therefore turns largely on an evaluation of demeanor, there are compelling and familiar justifications for leaving the process of applying law to fact to the trial court and according its determinations presumptive weight.
474 U.S. at 114, 106 S.Ct. at 452 (emphasis added).
. The state circuit court stated that:
The movant’s own evidence at the hearing held on June 20, 1983 revealed that no deal was made regarding Ernest Jones' pending cases.
Mr. Peter Sterling, Mr. Jones’ attorney at the time of movant’s trial stated Mr. Bell would not enter into any specifics concerning Jones’ pending cass [sic], Mr. Sterling testified that he did not believe until one or two days before the date of Jone’s [sic] plea, November 24, 1980, that he had a plea agreement as to the specific number of years of imprisonment to be imposed upon and of probation to be served by Jones. Mr. Sterling also testified that Mr. Bell did not say anything about Jones not having to go to the penitentiary. Mr. Sterling believed he had an agreement with Mr. Bell, but that was based only upon his unilateral speculative expectation of what Mr. Bell would do, not upon what Mr. Bell spoke of in unequivocal terms.
You cannot base a motion to vacate sentence and judgment upon the basis of one attorney’s "belief" that there was an agreement when in fact no agreement was ever reached prior to one or two days before Jones' guilty plea, some 47 days after the testimony of Jones in movant’s trial. The evidence at the movant’s trial and at the movant’s eviden-tiary hering [sic] is that Jones and Mr. Bell had not reached an agreement on Jones’ pending cases.
*1320State v. Blair, No. CV83-6637, slip op. at 9 (emphasis added).
. The Missouri Court of Appeals stated in its unpublished memorandum that:
(1) The particular facts upon the record in support of the finding [that no deal existed] are as follows:
(a) the testimony of the witness [Jones] that he was not aware of any plea agreement,
(b) testimony of counsel for witness—that while the prosecutor advised counsel there would be no problems working out the witness's pending charge, the prosecutor declined entering into any specific agreement,
(c) details as to a plea agreement were not discussed until a few days prior to the witness’s guilty plea, which was a month subsequent to movant’s trial,
(d) the evidence only supports a conclusion that the witness would be in a good position to enter into a plea agreement, not that such an agreement was in fact reached, and
(e) during movant's trial, counsel for the witness, just prior to the witness's giving his testimony, advised the trial court that pending charges against the witness had not been disposed of.
Blair v. State, No. WD 35053, memorandum at 2-3 (emphasis in original).
. The Eleventh Circuit’s opinion in Brooks, 762 F.2d 1383, was reinstated by the court in Brooks, 809 F.2d at 701.
. As the Eleventh Circuit observed in Brooks, 762 F.2d at 1442 n. 13, arguments such as this have been condemned and have brought about reversal in state courts. See, e.g., State v. Jordan, 80 Ariz. 193, 195, 294 P.2d 677, 679 (1956); Commonwealth v. Clark, 322 Pa. 321, 185 A. 764, 766 (1936).
. It is significant that one of the instructions read to the jury in Blair’s sentencing trial was as follows:
15.46 Guilty of Capital Murder: Final Decision on the Punishment
Even if you decide that a sufficient mitigating circumstance or circumstances do not exist which outweigh the aggravating circumstance or circumstances found to exist, you are not compelled to fix death as the punishment. Whether that is to be your final decision rests with you.
MAI-CR 15.46, MAI-CR 2d 15-57 (1979). (Tr. VII 2332).
. Were we to conclude that Blair’s argument falls properly under the eighth amendment under Caldwell and the other similar cases, a very recent decision by the United States Supreme Court, Sawyer v. Smith, -U.S. -, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990), has held Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to be a bar. Sawyer reasoned that no case before Caldwell invalidated a prosecuto-rial argument as impermissible under the eighth amendment. Id. — U.S. at -, 110 S.Ct. at 2827. Accordingly, where a conviction became final before Caldwell, the Teague bar applied. Sawyer also held that neither of the two narrow exceptions to Teague were applicable. As Blair’s conviction became final on October 7, 1982, it predates Caldwell. Accordingly, Teague would bar an eighth amendment argument.
. The dissent also discusses the prosecutor’s reference to Blair as a black man. There was no objection of any kind to this argument at trial. The motion for new trial, the 27.26 motion and amendments, the petition for writ of habeas corpus and briefs by counsel and filed pro se in this court nowhere raise this issue.
. Missouri law provided, at all relevant times, that: "Any person who unlawfully kills another human being without a premeditated intent to cause the death of a particular individual is guilty of the offense of first degree murder if the killing was committed in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary, or kidnapping.” Mo.Rev. Stat. § 565.003 (1979).
On the other hand, Missouri provided at all relevant times, that "[a]ny person who unlawfully, willfully, knowingly, deliberately, and with premeditation kills or causes the killing of another human being is guilty of the offense of capital murder.” Id. § 565.001 (1979).
. But see Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). In Spaziano, six Justices held that Beck was not violated when Florida refused to instruct on a lesser-included offense for which the statute of limitations had run. A plurality of four Justices would have required an instruction if defendant was willing to waive the statute of limitations defense with respect to that charge. Id. at 456-57, 104 S.Ct. at 3160-61 (Blackmun, J., joined by Burger, C.J., Powell, J., and O'Connor, J.). Two Justices disagreed with the plurality’s intimation that Beck “requires a state court ... to permit the defendant to waive the statute of limitations and to give a lesser-included-offense instruction as to an offense that would otherwise be barred.” Id. at 467, 104 S.Ct. at 3166 (White, J., joined by Rehnquist, J., concurring).
. The Supreme Court stated in Beck that it did "not decide whether the Due Process Clause would require the giving of [lesser included offense] instructions in a noncapital case.” 447 U.S. at 638 n. 14, 100 S.Ct. at 2390 n. 14.
. The repealed statute provided:
Upon indictment for any offense consisting of different degrees, ... the jury may find the accused not guilty of the offense charged in the indictment, and may find him guilty of any degree of such offense inferior to that charged in the indictment, or of an attempt to commit such offense, or any degree thereof....
Mo.Rev.Stat. § 556.220 (emphasis added) (repealed 1979).
. Another amendment took effect on September 28, 1979. Before the amendment, first-degree murder instructions had to be given in every capital murder case. See Mo.Rev.Stat. § 565.006.1 (amended 1979). After the amendment, however, section 565.006.1 provided that, in capital murder cases, courts "shall not give instructions on any lesser included offense which could not be supported by the evidence presented in the case.” Id. (1979).
. See also Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979) (stating that due process demands "that a person [not] incur the loss of liberty for an offense without notice and a meaningful opportunity to defend"); Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948) ("No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.”).
. Other cases involving refusals to give a first-degree murder instruction and crimes that occurred after January, 1979, are State v. Williams, 652 S.W.2d 102 (Mo.1983) (en banc), State v. Betts, 646 S.W.2d 94 (Mo.1983) (en banc), and State v. Woods, 639 S.W.2d 818 (Mo.1982).
. Missouri cases make it clear that kidnapping should not be charged where the movement or confinement is merely incidental to another offense, and that to make this determination it is necessary to consider whether there was any increased risk of harm or danger to the victim that was not present as a result of the other offenses. See Williams v. Armontrout, 912 F.2d 924, 929-930 (8th Cir.1990). In this case, in which Allen was removed from her apartment to a parking lot in an urban area where her screams could be clearly heard by occupants of nearby apartments, we cannot conclude that there is constitutional error in the trial court's determination that there was no submissible issue of kidnapping. See State v. Erby, 735 S.W.2d 148, 149 (Mo.Ct.App.1987); State v. Jackson, 703 S.W.2d 30, 32-33 (Mo.Ct.App.1985). Blair’s motion for new trial claimed that the trial court erred in refusing the first-degree murder instruction on the sole ground that there was evidence to support it. The denial of this motion is a ruling by the trial court on this issue.
. This issue was thoroughly briefed before this court in Williams v. Armontrout, 912 F.2d 924 (8th Cir.1990).
. At the 27.26 hearing the trial judge testified that he spoke briefly with the jury to answer a question about whether court would be held on a given Saturday during the trial. He denied that there was mention of any security problems. In ruling the 27.26 motion the circuit court found that there was no merit to the claim of misconduct of the trial judge, making specific reference to this testimony. The court of appeals in its affirming memorandum relied upon these findings and commented that there was no evidence introduced to the contrary with respect to the judge’s denial of any comment about security. Further, there was nothing to demonstrate prejudice about the fact that this comment was not transcribed in the record.
. The dissent discusses the claim of ineffective assistance of counsel in failing to call two witnesses listed in the police report as present near the homicide scene. The record contained testimony of the experienced defense counsel that he was aware of the two witnesses, Q.T. Lee and Clarence Wilson, and concluded that they should not be called as "it was inconsistent with the theory of defense that we are presenting." (27.26 Hearing Tr. 134-35). In ruling the 27.26 motion, the state court concluded that this point was a matter of trial strategy, referred to counsel’s testimony and held that there was no ineffective assistance by not calling the two witnesses. (Order Cir.Ct. 18-19). The Missouri Court *1333of Appeals affirming this argument also referred to the testimony of defense counsel.
. The state argues that the relevant portion of the Croka opinion is dictum. While it is technically correct that the discussion had no effect on the disposition of the appeal, 646 S.W.2d at 393, the ruling on the disqualification was not merely gratuitous, because the court remanded the case to the trial court, with instructions based upon the disqualification argument, id.