dissenting.
I concur in the judgment of the Court insofar as it affirms the District Court’s rejection of Brown’s various claims for ha-beas relief. I respectfully dissent from that part of the judgment reversing the District Court on Brown’s ground 12 and remanding for resentencing.
I agree with the Court that AEDPA deference to the state-court decision is not appropriate here, as the state court did not address the merits of the constitutional question. On the other hand, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). To the extent Brown’s argument attacks the Missouri courts’ application of its own rules of evidence, it is not cognizable in federal habeas. See 28 U.S.C. § 2253(c)(2) (2000) (“A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.”). The only issue properly before the federal habeas courts is Brown’s claim that his Sixth, Eighth, and Fourteenth Amendment rights under the Constitution were violated by the exclusion of the letter from his brother, Sergeant Darius Turner, as evidence in mitigation at the sentencing phase of the trial.8
Initially, I note that the Court places what I consider to be undue emphasis on the trial judge’s comments to the jury regarding the then-ongoing Gulf War and the contemporaneous service of U.S. troops in that war. As later revealed by the letter in question, Turner was stationed in Saudi Arabia during the Gulf War. It appears that the Court is suggesting that the jury would have found mitigating circumstances in Turner’s service to his country in the Gulf War, i.e., in deeds of Turner that have no relevance to Brown, his crime, his character, or his relationship with Turner. That is not proper mitigation evidence.
The trial court’s evidentiary ruling regarding the Turner letter could be a violation of Brown’s due-process rights, such that the writ must issue, only if it resulted in error that was “gross, conspicuously prejudicial or of such import that the trial was fatally infected.” Griffin v. Delo, 33 F.3d 895, 904 (8th Cir.1994) (quoting Rhodes v. Foster, 682 F.2d 711, 714 (8th Cir.1982)), cert. denied, 514 U.S. 1119, 115 S.Ct. 1981, 131 L.Ed.2d 869 (1995). I conclude that Brown has not made the case for the necessary prejudice. While “substantial reasons existed to assume [the letter’s] reliability,” I do not think “[t]he *788excluded evidence was highly relevant to a critical issue in the punishment phase of the trial.” Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam). That is to say, having studied the record in this case, I must conclude that Brown cannot show that the letter, had it been admitted into evidence, would have changed the jury’s decision to impose the death penalty. There was, in fact, other mitigating character evidence before the jury, and, even more relevant here, there was devastating evidence of aggravating circumstances. Even if “harmless error” be the governing standard, the exclusion of the Turner letter was harmless beyond a reasonable doubt.
The jury was instructed on four aggravating circumstances, two statutory and two nonstatutory. The first factor that the jury considered was whether Brown was convicted in 1973 in Indiana on a charge of assault and battery with intent to gratify sexual desires. In fact, the indictment on the charge, read into evidence during the sentencing portion of Brown’s trial, accused Brown of fondling and caressing the body of a twelve-year old girl to gratify his own sexual desires. Trial Transcript at 2298. Brown pleaded guilty to the charge.
Next, the jury was instructed to consider whether Brown’s murder of Synetta Ford “involved torture and depravity of mind and whether, as a result thereof, the murder was outrageously and wantonly vile, horrible, and inhuman.” State v. Brown, Cause No. 861-03056, Legal File Components of the Record on Appeal at 86 (Mo.S.Ct.). The jury could find depravity of mind only if it found that Brown “committed repeated and excessive acts of physical abuse upon Synetta Ford and the killing was therefore unreasonably brutal.” Id. The evidence before the jury was that nineteen-year-old Synetta Ford was found dead in her basement apartment with a knife sticking out of her throat and the electrical cord from a curling iron “tightly knotted around the neck.” Trial Transcript at 2043, see also id. 1662,1684. The door to her apartment had been forced open. The evidence showed that Brown first strangled her, taking the time to knot the electrical cord around her neck, and then as she was dying he stabbed her in the chest and neck. The stab wound to her neck severed her carotid artery, the major artery in the neck. The jurors saw photographs of Ford’s body taken as it appeared when it was discovered on the floor of her apartment and also an autopsy photograph. In addition, the jury watched a videotape of Brown’s confession, where he claimed that Ford had accidentally stabbed herself before and after he strangled her with the cord.
The jury was further charged with deciding whether Brown was convicted of first degree murder in 1988. During sentencing, jurors heard evidence that in October 1986 Brown took nine-year-old Janet Perkins, who was at his home playing with his stepsons, into the basement where he wrapped a cord around her neck and strangled her. The boys heard her screaming as they played upstairs. The body was found near a trash dumpster, wrapped in trash bags, with a rusty coat hanger wrapped around her ankles and one of her arms, so that her knees were drawn up to her body. After Brown was picked up in connection with the Perkins murder, and confessed his guilt, he led officers to another dumpster a block from where the body was found. There they found a bag containing Janet Perkins’s missing shoe, a yellow plastic raincoat, and some of her school papers. The Ford jury also saw photographs of the little girl’s body and watched Brown’s videotaped confession to the Perkins murder. Brown was convicted of first degree murder in the Perkins case and sentenced to death.
*789Finally, the jury was instructed to decide whether Brown committed acts of sodomy on his stepsons Christopher Moore, Jason Moore, and Tommy Johnson, who were about seven, five, and nine years old, respectively, at the time of the abuse to which they testified. Christopher, age eleven at the time of the sentencing, testified that before Brown was arrested for the Perkins murder in October 1986, he would take Christopher alone into the bedroom Brown shared with Christopher’s mother and tell him to undress and lie on his stomach on the bed. Brown would undress, put “hair grease” on his penis, and put his penis in Christopher’s anus and then in his mouth. Id. at 2262. Brown committed these acts of sodomy on several different occasions. Christopher told no one about the incidents until Brown was in jail because Brown had said that if he told, he “would never see any of [his] brothers or [his] mother again.” Id. at 2264. Jason, nine years old when he testified, also explained to the jury how Brown had performed anal sex on him and said that Brown had threatened to “kill us” if he told anyone. Id. at 2288. Thirteen-year-old Tommy Johnson testified that Brown put his penis in Tommy’s anus and mouth and that Brown also put his mouth on Tommy’s penis. Id. at 2323. The boys said that Brown would commit the acts of sodomy when their mother was not at home, taking them one at a time from playing with their brothers and locking the door so that the boys who were not being victimized at the time could not come in.
The jury found all four aggravating circumstances, unanimously, beyond a reasonable doubt.
In light of this damning evidence, I cannot see how a letter expressing brotherly affection rooted in a childhood memory would have changed the jury’s decision to impose the death penalty upon Brown. I would affirm the judgment of the District Court denying the writ on all claims.
. Throughout Brown's brief, counsel is wont to allege violations of all manner of constitutional amendments, usually the Sixth, Eighth, and Fourteenth — often invoking "due process” and "equal protection” for good measure — regardless of their applicability to the issue raised. Preparing briefs for § 2254 review of capital cases is often complex, and counsel's continuing representation of habeas petitioners facing execution is of great assistance to the Court. I would suggest, however, that more focused arguments, identifying with specificity the constitutional issues in play, would better serve his clients. Further, I believe that counsel’s disparaging rhetoric directed at the state courts, at Brown's previous counsel, and at counsel for the State goes beyond the proper bounds of zealous advocacy-