future dangerousness is placed at issue during the penalty phase of a capital trial, and state law prohibits the defendant from being released on parole, “due process requires that the sentencing jury be informed that the defendant is parole ineligible.” Id. at 156, 114 S.Ct. 2187. A majority of the High Court reiterated this principle in Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001), stating that when a capital defendant’s future dangerousness is at issue and state law precludes the defendant from being paroled, the jury must be advised of the defendant’s parole ineligibility through a jury instruction or closing arguments of counsel. Id. at 39, 121 S.Ct. 1263. See also Kelly v. South Carolina, 534 U.S. 246, 248, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002) (<HOLDING>). In the ease at bar, the prosecutor placed
holding district court erred in relying on authority other than that of the supreme court of the united states in its analysis under  2254d recognizing that the supreme court has indicated that affirmative misconduct is a prerequisite to a finding of estoppel against the united states recognizing that where a state prisoner declines to pursue certiorari in the united states supreme court that petitioners conviction is not final  until  after the time for filing a petition for certiorari with the supreme court has passed recognizing that the united states supreme court reiterated the simmons holding in shafer recognizing federal constitutional claim against the united states