United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-2444

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Dana A. Ivy, *

*

Petitioner-Appellant, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Michael S. Bowersox, *

*

Respondent-Appellee. *

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Submitted: April 17, 1997

 Filed: September 4, 1997 

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Before BOWMAN, HANSEN, and MURPHY, Circuit Judges.

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The Honorable Donald J. Stohr, United States District Judge for the Eastern

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District of Missouri, adopting the report and recommendation of the Honorable Thomas

C. Mummert, III, United States Magistrate Judge for the Eastern District of Missouri.

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HANSEN, Circuit Judge.

Dana Ivy (petitioner), an inmate at the Potosi Correctional Center in Mineral

Point, Missouri, appeals the district court's order denying his petition for a writ of

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habeas corpus filed pursuant to 28 U.S.C. § 2254. The petitioner argues that the

district court erred in denying him relief on his two claims alleging state trial court

evidentiary errors and on his four claims alleging that he received ineffective assistance

of counsel during his direct appeal. Finding no merit to the petitioner's arguments, we

affirm.

I.

The petitioner was convicted of first degree robbery for stealing a woman's car

and purse. On direct appeal, the Missouri Court of Appeals affirmed his conviction.

State v. Ivy, 768 S.W.2d 151 (Mo. Ct. App. 1989). In his petition for a writ of habeas

corpus, the petitioner asserted that (1) the Missouri trial court had erred in allowing the

victim to testify that she had identified the petitioner through the use of police

department photographs, allegedly suggesting to the jury that the petitioner had a

criminal record, and (2) the Missouri trial court had erred in admitting evidence of

unauthorized long-distance telephone calls to the petitioner's aunt that were charged to

the victim's telephone credit card following the robbery, allegedly constituting

impermissible circumstantial evidence and evidence of other crimes. The petitioner

argued that both of these errors deprived him of his constitutional right to due process.

The petitioner also asserted that his appellate counsel had rendered ineffective

assistance for failing to raise four additional claims in the direct appeal of petitioner's
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conviction. After reviewing each of these claims, the district court denied the petition

for a writ of habeas corpus.

II.

We review the district court's legal conclusions de novo and its findings of fact

for clear error. Miller v. Lock, 108 F.3d 868, 870 (8th Cir. 1997). In the habeas

context, a state court evidentiary ruling will warrant relief "only if the alleged error was

so conspicuously bad that it fatally infected the trial and rendered it fundamentally

unfair." Troupe v. Groose, 72 F.3d 75, 76 (8th Cir. 1995). Moreover, an appellate

counsel's failure to raise an issue on appeal will justify habeas relief only when there

is a "reasonable probability that an appeal of [the] issue would have been successful

and that the result of the appeal would thereby have been different." Pryor v. Norris,

103 F.3d 710, 714 (8th Cir. 1997). After careful review, we find no clear error in the

district court's factual findings, and we agree with the court's conclusion that none of

the petitioner's claims qualify for habeas relief under the standards listed above.

III.

Thus, we affirm the judgment of the district court. The petitioner's pending

motions are denied.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.