The Honorable Edward L. Filippine, United States District Judge for the Eastern 1 District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-3786

_____________ Jerome Mallett, *
* Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri. Michael Bowersox, Superintendent of * the Potosi Correctional Center, *
* Appellee. *

_____________ Submitted: September 21, 1998 Filed: November 16, 1998

_____________ Before BOWMAN, Chief Judge, JOHN R. GIBSON, and BEAM, Circuit Judges.

_____________ BOWMAN, Chief Judge.

Jerome Mallett, a prisoner in the custody of the State of Missouri pursuant to a conviction of capital murder, appeals from a final judgment of the District Court 1W hile Mallett's habeas petition was pending with the District Court, Michae l 2 Bowersox replaced Paul Delo as the Super intendent of the Potosi Correctional Center, where Mallett was incarcerated. Pursuant to Federal Rule of Civil P rocedure 25(d), the District Court su bstituted Bowersox for Delo as the named respondent, see Mallett v. Delo , No. 90-437 C (2) at 1 n.1, and the case comes to us with the above caption.
-2- denyin g a writ of habeas corpus under 28 U.S.C. § 2254. See Mallett v. Delo , No

. 2 90-437 C (2) (E.D. Mo. July 29, 1996). We affirm.

I.

We begin wi th the facts of the crime for which Mallett was tried by a jury , convicted, and sentenced to death, the murder of Missouri state highway patrolma n James M. Froemsdorf.
Shortly after 5:30 p.m., on March 2, 1985, Trooper Froemsdorf pulled over a rust-colored 1973 Ford LTD driven by Jerome Mallett. Mallett had been speeding on northbound Interstate 55 in Perry County. Bef ore Trooper Froemsdorf approached the vehicle, Mallett hid his wallet and identification under the front seat. When Trooper Froemsdorf

arrived at the side of the vehicle and requested Mallett's driver's license, Malle tt replied that he did not have his license with him and falsely claimed to b e Anth ony Mallett, who is actually petitioner Jerome Mallett's brother. Troope r Froemsdorf

handcuffed Mallett and searched the vehicle. He found several item s bearing the name "Jerome Mallett," including a Texas driver's license.

Upon returning to his patrol car, Trooper Froemsdorf contacted the highwa y patrol ra dio dispatcher, who informed Trooper Froemsdorf that Mallett had fou r outs tanding warrants for probation violations and one outstanding warrant fo r aggravated robbery. At 5:40 p.m., in what would prove to be his last radi o transmission, Trooper Froemsdorf i nformed the dispatcher that Mallett was in custody-3-

an d that he needed no assistance. At approximately 6:00 p.m. a passing motoris t notic ed Trooper Froemsdorf's apparently abandoned patrol car and, upon close r investigation, discovered Trooper Froemsdorf's body.

The events occurring after Trooper Froemsdorf's final transmission and befor e the discove ry of his body were deduced at trial, for the most part, from the injurie s suffe red by Trooper Froemsdorf and forensic analysis of the interior of the patrol car. Viewe d in the light most favorable to the verdict, the evidence showed that afte r Trooper Froemsdorf led Mallett to the patrol car and placed him in the front passenger seat, he sat in the driver's side seat and began to write a speeding ticket. Troope r Froe msdorf's ticket book containing the partially written ticket later was found on the front passenger seat of the patrol car. M eanwhile, Mallett, aided by a childhood injury to his right thumb allowing him to compress his hand so that it was scarcely larger than the diameter of his wrist, managed to work h is right hand out of the handcuffs in which Trooper Froemsdorf had placed him and attacked Trooper Froemsdorf with the back of his still-manacled left hand. When Mallett subsequently was captured, the handcuffs still dangled from his lef

t hand. Upon freeing his right hand, Mallett repeatedly struck Troo per Froemsdorf on the left side of his face, leaving large bruises, numerou s abrasions an d a serrated cut under his left eye. The severity of the cut near Troope r Froemsdor f's eye suggested the blow would have temporarily blinded him. Whil e Tr ooper Froemsdorf was unable to see, Mallett drew the trooper's .357 magnu m service re volver from the holster on the trooper's right hip. The first shot fired b y Mallett grazed Trooper Froemsdorf's right epaulet and shattered the driver's sid e wi ndow of the patrol car. The slug from the second shot, intended for Troope r Froem sdorf's lower left chest, was found imbedded in the trooper's bullet proof vest

. The impact of the slug, as evidenced by the major abrasion left on Trooper Froemsdorf's ch est, would have slammed Trooper Froemsdorf against the driver's side door an d rendered h im helpless for a short period of time. In this helpless state, Troope r Fro emsdorf slumped backward against the driver's side door and away from th e passenger seat, the position in which his body ultimately was found. At point-blank-4-

range, as indicated by powder burns later found on T rooper Froemsdorf's body, Mallett fired two more shots into the right side of Trooper Froemsdorf's neck, killing him.

II.
We now proceed to the relevant procedural history of the case.

Mal lett was charged in Perry County with the first-degree murder of Troope r Froemsdorf

. Because of extensive pretrial publicity, defense counsel moved for a change of venue from Perry County to another county with a substantial number o f black re sidents, making a jury that included black persons more likely. After defense counsel and

the State were unable to reach agreement on venue, each party submitted

a list of p referred counties. At the conclusion of argument on Mallett's motion, th e Perry County court entered an order transferring venue to Schuyler County, a county in which there were no black residents. Neither party had included Schuyler County in its list of preferred counties.

A Schuyler County jury convicted Mallett of the first degree murder of Troope r Froe msdorf. As shown by the verdict form, the jury found three aggravatin g ci rcumstances in assessing Mallett's sentence: (1) the murder involved depravity o f mind and as a result it was outrage ously or wantonly vile, horrible, or inhuman; (2) the murder was committed against a peace of ficer while engaged in the performance of his official duty; and (3) at the time of the murder Mallett had escaped from the lawfu l custody of a police officer. Based on these aggravating circumstances, the jur y imposed the death sentence. On direct appeal, the Missouri Supreme Court affirmed Mal let's conviction and death sentence. See State v. Mallett , 732 S.W.2d 527 (Mo.), cert. denied , 484 U.S. 933 (1987).Missouri Supreme Court Rule 27.26 was repealed effective January 1, 1 988, but 3 was Mallett's appropriate recourse when he sought post-conviction relief. On dire ct appeal, the Missouri Supreme Court noted that according to 198 0 4 census statistics Schuyler County h ad three black residents out of a total population of 4967

. See State v. Mallett , 732 S.W.2d 527, 540 (Mo. 1987). Whether any blac k residents remained in Schuyler County i n 1986, when Mallett's jury venire was drawn, is not indicated in the record.
-5- Pursua nt to Missouri Supreme Court Rule 27.26, Mallet moved for post

3 conviction rel ief. Following an evidentiary hearing, the post-conviction court vacated Malle t's conviction and death sentence. On appeal, the Missouri Supreme Cour t reversed the post-conviction court's or der and reinstated Mallett's conviction and death sentence. See Mallett v. State , 769 S.W.2d 77 (Mo. 1989), cert. de nied , 494 U.S. 1009 (1990).
Mallett subsequently f

iled the present petition for a writ of habeas corpus in the United State s District Court for the Eastern District of Missouri. The District Cour t denied habeas relief, and Mallett appeals.

III.

For reversal Mallett, a black man, argues the District Court erred in concluding: (1) Mall ett's equal protection, due process, and Sixth Amendment rights were no t violated when the state trial court transferred his case to a county in which no blacks resid ed; (2) his constitutional rights were not violated when the jury considere d

4 "depravity of

mind" as an aggravating circumstance in reaching its decision to impose the death penalty; (3) he was not deprived of h is constitutional right to an impartial and disintere sted trial judge; (4) his constitutional right to effective assistance of counse l was not violated either at trial or on direct appeal of his conviction and sentence; (5) he was not denied a fundamentally fair trial by the prosecutor's allegedly improperA late r hearing on Epps' application for post-conviction relief revealed th e 5 county to which

the trial court transferred venue had 11,114 residents, three of whom were black. See Epps , 901 F.2d at 1482 n.2.
-6- closing argument; and (6) the evidence tending to establish the existence o f deliberation,

an essential element of first degree murder, was sufficient for a reasonable jury t o convict. For the reasons discussed below, we affirm the judgm ent of the District Court.

We review de novo the District Court's legal conclusions and conclusion s regarding mixed questions of la w and fact. Laws v. Armontrout , 863 F.2d 1377, 1381 (8 th Cir. 1988), cert. denied , 490 U.S. 1040 (1989). The District Court's findings o f fact are reviewable under the clearly erroneous standard. Id. at 1381-82.

A.

First, we address the question whether the change of venue from Perry County to Schuyler County was consistent with Mallett's Fourteenth Amendment equa l protection and due process rights. We are unable to find any authority to support a concl usion that Mallett's Fourteenth Amendment rights were violated by a change o f venue to a county without any, or at least a very small number of, black residents from which to draw a jury venire. See Epps v. State , 901 F.2d 1481, 1483 (8th Cir. 1990).

In Epps , a panel of this Court rejected a habeas claim nearly identical to th e argument Mallett now make s. Epps, a black man, had been convicted of murder in an Iowa state court. Id. at 1482. Because of extensive pretrial publicity, defense counsel requested that venue be changed to another county with a black population. Instead, the state trial court ch anged venue to a county with no black residents, in which Epps 5 subs equently was tried and convicted of felony murder. Id. After unsuccessfull y pursuing his state court remedies, Epps filed a pro se habeas petition in the United-7-

States District Co urt for the Southern District of Iowa. Id. at 1483. The district court denied habeas reli ef, and Epps appealed to this Court. Then, as now, we were unable to find a constitutional right requir ing that the population of a county to which venue is transferred include a black segment from which a jury venire may be drawn. Id.
Nonetheless, Mallett argues the Supreme Court's decision in Batso n v. Kentucky , 476 U .S. 79 (1986), prohibits, as a violation of the Equal Protection Clause of th e Fourteen th Amendment, the transfer of a black defendant's criminal case to a count y with no black residents. We reject such a reading and hold that Batson is inapplicable to the present case.

In Batson , the petitioner claimed that the state prosecutor challenged potentia l jurors solely on account of their race and thereby violated the Fourteenth Amendment. The Supreme Court held the Equal Protection Clause forbids a prosecutor to use hi s peremptory challeng es to exclude veniremen based solely on their race. See id. at 89. He re, in contrast, Mallett challenges a change of venue occurring well before th e process of choosing a jury had begun. The trial court's decision to transfer venue o n defense counsel's motion has nothing to do wit h prosecutorial discrimination in striking veniremen based on their race and was not addressed by the Court in Batson

.
Further, the Batso n

Court rested its holding in part on the equal protection right of jurors to avoid exclusion from a petit jury solely because of their race. "[B] y denying a p erson participation in jury service on account of his race, the Stat e unconstitutionally discriminate[s] aga inst the excluded juror." Id. at 87. In the present case, denial of participation on Mallett's jury could not have been on account of racial disc rimination, for none of the potential jurors of Schuyler County (or at least a ver y small number of them) were black, and no black persons were members of the jur y venire from which the trial jury was selected.Section 2254(d) provides that in federal habeas corpus proceedings brought by 6
a state prisoner, written factual findings by a state court of competent jurisdictio n "shall be presumed correct," unless one of several enumerated conditions is met. 28 U.S.C. § 2254(d) (1994). None of the specified conditions exists here. Mallett's due process argument consists of a single sentence flatly asserting 7 "[t]he circumstances underlying the change of venue also violate due process in that th e procedure employed by the state involves such a probability that prejudice wil l result that it's de emed inherently lacking in due process." Brief for Appellant at 15-16 (citation omitted). Although we doubt a single sentence constitutes a sufficien t expositio n

of the issue, see Sidebottom v. Delo , 46 F.3d 744, 750 (8th Cir.), cert

. denied , 516 U.S. 849 (1995), we exercise our discretion to address the merits o f Mallett's due process claim as we understand it.
-8- Finally, even were we to apply Batson , which we do not, Mallett would b e required to make a show ing of purposeful discrimination in order to establish an equal protecti on violation. See id. at 93 (citing Whitus v. Georgia , 385 U.S. 545, 55 0 (1967)). On appeal of Mallett's Rule 27.26 m otion, the Missouri Supreme Court found "a complete void of evidence that [the transferring court's] venue de cision was animated by a discriminatory purpose." Mal lett v. State , 769 S.W.2d at 80. We are required by 28 U.S.C. § 2254(d) to presume the correct ness of the factual findings of the Missouri 6 Supre me Court. See Sumner v. Mata , 449 U.S. 539 (1981); Sloan v. Delo , 54 F.3 d 1371, 1383-8 4 (8th Cir. 1995), cert. denied , 516 U.S. 1056 (1996). Thus, we hol d Mallett's Fourteenth Amendment equal protection rights were not offended by th e transfer of his case to Schuyler County.

B.
We also reject Mallett's argument that the change of venue p rocedure in this case

was i nherently lacking in due process. Generally, a petitioner must show the actua l 7 existen ce of prejudice to prove he was denied the due process guarantee of a fundamentally fair trial. See Irvin v. Dowd , 366 U.S. 717, 723 (1961); Hill v.We have noted previously that the Estes principle is rarely applicable and i s 8 reserved for extreme situati ons. See Snell v. Lockhart , 14 F.3d 1289, 1293 (8th Cir.), cert. denied , 513 U.S. 960 (1994) (citations omitted). Even in cases involving claims of prejudi cial pretrial publicity, where Estes would appear to be most germane, w e have been reluctant to conclude due process has been violated without demonstrated prejudi ce. See, e.g. , Snell , 14 F.3d at 1294 (refusing to presume prejudice an d requiring petitioner to show actual prejudice despite very thorough media coverage); Perry v. Lockhart , 871 F.2d 1384, 1390 (8th Cir.) ("Pretrial publicity can be th e grounds for reversal only if it has actually preju diced the jury."), cert. denied , 493 U.S. 959 (1989).
-9- Loc khart , 28 F.3d 832, 847 (8th Cir. 1994) (quoting Irvin , 366 U.S. at 724), cert

. denied , 513 U.S. 1102 (1995). However, "at times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due proce ss." Estes v. Texas , 381 U.S. 532, 542-43 (1965); United States v

. Johnson , 892 F.2d 707, 711 n.1 (8th Cir. 1989) (Lay, C.J., concurring) (quoting Estes , 381 U .S. at 542-43). Mallett claims the change of venue in this case is the sort o f pro cedure to which Estes lends itself. From this premise, Mallett apparently argue s 8 that a high probability e xisted that the change of venue from Perry County to Schuyler Count y was the result of a transferring court motivated by racial prejudice or resulted in a jury prejudiced against him. As discussed supra , the Missouri Supreme Cour t found no evidence of racial motivation for the Perry County court's decision to transfer venue to Schuy ler County, and we are bound by a presumption that those findings are valid. The presumption of validity likewise extends to the Missouri Supreme Court's det ermination, after extensive review of the voir dire record, that "direct evidenc e [exist ed] that the jurors were not motivated by racism." State v. Mallett , 732 S.W.2d at 539. Based on these facts, we are unable to conclude that Mallett has shown th e identifiable prejudice generally required.

Further, we decline Mallett's invitation under Es tes to infer prejudice solely from the circumstances that the transferring court transferred venue t o a county with no black-10-

residents (or a very small number of black reside nts) and the jury ultimately was drawn fro m that county. To hold that prejudice may be inferred simply because the jur y included no jurors of Mallett's race--the predictable consequence of d rawing a jury from a county without a substantial black population--would amount t o a holding that Mallett is entit led to have members of his race on the jury. Cf. Taylor v. Louisiana , 419 U.S. 522, 538 (19 75) (holding defendants are not entitled to a jury of a particular racia l composition). Therefore, we hold the change of venue procedure employed here did not deprive Mallett of the fundamentally fair trial he was due.

C.
Next we consider the argume nt that the change of venue deprived Mallett of his Sixth Amendment right to a jury selected from a fair cross-section of the community. See id. a t 530 (holding the Sixth Amendment, as applied against the states by th e Fourteenth Am endment, confers on state criminal defendants the right to a jury venire drawn from a fair cross-section of the community). To establish a violatio n of this right, Mallett must show that blacks constitute a distinctive group in the community, th e number of blacks in jury pools is unfairly and unreasonably small as compared to the number o f blacks in the community, and this disproportionate representation is due to the systematic exc lusion of blacks from the jury-selection process. See Wharton-el v. Nix , 38 F. 3d 372, 376 (8th Cir. 1994) (quoting Duren v. Missouri , 439 U.S. 357, 364 (1979)), cert. denied , 513 U.S. 1162 (1995). Because Schuyler County contained no pool of black residents from which a jury could have been drawn, Mallett canno t establish even a single element necessary for his claim that the dearth of black jurors

on his petit jury constituted a violation of his right to a jury drawn from a fair cross

sect ion of the community. No authority exists for the proposition that the ter m "communit

y," as used in the context of this Sixth Amendment claim, means any place othe r than Schuyler County, the county from which Mallett's venire ultimately wa s drawn. We therefore conclude the change of venue from Perry County to Schuyle r County was consistent with the Sixth Amendment.-11- D.
We turn now to the question whether Mallett's constituti onal rights were violated when th e jury considered "depravity of mind" as an aggravating circumstance i n imposing th e death penalty. The trial court instructed the jury that it could find a n aggrav ating circumstance if "the murder of James Froemsdorf involved depravity o f mind, and that as a resu lt thereof, it was outrageously or wantonly vile, horrible or . . . inhuman ." Trial Tr. at 2772-73. According to Mallett, the trial court's depravity-of

mind instruction is unconstitutionally vague in violation of the Eighth Amendment a s incorporated against the states by the Fourteenth Amendment. We disagree.
The Eighth Amendment requires that state law defi ne with reasonable specificity the circumstances in whic h the death penalty is to be imposed. A state must articulate guidelines to provide a jury principled means to distinguish a case in which the death penalty is appropriate from tho se cases in which it is not. Maynard v. Cartwright , 486 U.S. 356, 362-63 ( 1988); Godfrey v. Georgia , 446 U.S. 420, 427-28 (1980); Battle v. Delo , 19 F.3d 1547, 1562 (8th Cir. 1994), cert. denied , 517 U.S. 1235 (1996). A lim iting construction of the depravity-of-mind aggravating circumstance requiring a finding of "some kind of torture or serious physical abuse" is sufficient to channel and limit the jury's discretion in imposing the death sentence. Maynard , 486 U.S. at 364-65; Battle , 19 F.3d at 1562; State v. Griffin , 756 S.W.2d 475, 490 (Mo. 1988) (holdin g murder involving "serious physical abuse" or "callous disre gard for human life" justifies finding of depravity of mind), cert. denied , 490 U.S. 1113 (1989). A state appellat e court may provide such a limiting construction. Walton v. Arizona , 497 U.S. 639, 653- 54 (1 990); Sloan , 54 F.3d at 1384-85 ("A state appellate court may cure a n unconstitutionally vague instruction . . . by establishing and then later applying a valid limiting construction.").
In the present case, the Missouri Supreme Court, on direct appeal, found:-12-

The evidence that defendant repeatedly beat Trooper Froemsdorf across the face with his still handcuffed left hand, that defendant temporaril y incapacitated the trooper by firing a shot into the trooper's bulletproof vest, and that defendant took advantage of this temporary incapacity b y pum ping not one, but two, .357 magnum slugs through the helples s trooper's neck, provide d justification for the jury's finding that the murder was outrageously or wantonly vile, horribl e, or inhuman in that it involved depravity of mind.

Sta te v. Mallett , 732 S.W.2d at 542. Again, on appeal of Mallett's Rule 27.26 post

conviction claim, the Missouri Supreme Court revisited the ci rcumstances of the murder and, addressing Mallett's argument that the depravity -of-mind aggravating circumstance

wa s unconstitutionally vague, found "[t]he evidence indicated the victim had bee n subjected to serious physical abuse and that movant's actions were in callous disregard for the sanctity of human life." Mallett v. State , 769 S.W.2d at 83 (citing Griffin , 756 S

. W.2d at 489-90, in which Missouri Supreme Court followed Godfrey and Maynard in explicitly narrowing depravity of mind aggravating circumstance). These finding s
amou nt to a limiting construction of the depravity-of-mind aggravating circumstance

. See Smith v. Armontrout , 888 F.2d 530, 538 (8 th Cir. 1989) (citing Maynard , 486 U.S. at 365).

In Mercer v. Armontrout , 864 F.2d 1429, 1435 (8th Cir. 1988), a case in which the Mi ssouri Supreme Court made similar findings of fact effecting a limitin g
co nstruction, a panel of this Court held the depravity-of-mind instruction was no t unconstitutionally vague. Since deciding Mercer , this Court repeatedly has found the Mis souri depravity-of-mind instruction, when narrowly construed, consistent with the Eighth Amendment. See, e.g. , LaRette v. Delo , 44 F.3d 681, 686-87 (8th Cir.), cert

. denied , 516 U.S. 89 4 (1995); Murray v. Delo , 34 F.3d 1367, 1382-83 (8th Cir. 1994), cert. denied , 515 U.S. 1136 (1995); Battle , 19 F.3d at 1 562; Smith , 888 F.2d at 537-38. Cf. Newlon v. Armontrout , 885 F.2d 1328, 1333-35 (8th Cir. 1989) (finding depravityof-mind instruction was not capable of objective determinat ion by the jury and Missouri-13-

Supre me Court did not provide limiting construction sufficient to satisfy Eight h Ame ndment), cert. denied , 497 U.S. 1038 (1990). Once again we conclude th e depravity-of

-mind aggravating circumstance, as here limited by the Missouri Supreme Court, does not violate the Eighth Amendment.

Even were we to determine that the depravity-of-mind instruction wa s unconstitutionally vague, the two remaining aggravating circumstances fou nd by the jury would suffice to sustain Mallett's death sentence. In addition to concluding Mallett' s actions involved depravity of mind, the jury found that the murder was committe d against a peace offic er while engaged in the performance of his duties and that Mallett had es caped the lawful custody of a peace officer at the time of the murder. "[U]nder Missouri law a death sentence need not be vacated if only one of several aggravating circumstances is later found to be deficient." Harper v. Grammer , 895 F.2d 473, 480 (8th Cir. 1990) (citing Mercer , 864 F.2d at 1435-36 n.5).

Mallett argues the jury's consideration of an invalid aggravating circumstanc e cannot be cured by the existence of additional aggravating circumstances. This is so, he claims, because Missouri is a "weighing" state--a state in which a jury must weigh the agg ravating circumstances against the mitigating circumstances in determinin g whether to impose the death sentence. U pon invalidation of one of several aggravating circumstances, Mallett's argu ment goes, the remaining aggravating circumstances must be r eweighed against the mitigating circumstances. This simply is incorrect. "[T]h e sentencing proc ess in Missouri does not involve a simple weighing of aggravating and mitigating circumstances. Once a single aggravating ci rcumstance is found in Missouri, the factfinder is free to consider all the evidence to determine whether the death penalty is appropriate." Sloan , 54 F.3d at 1385 (citations omitted); see also Feltrop , 46 F.3d at 771 ("Missouri is not a weighing State."); State v. Merc er , 618 S.W.2d 1, 10 n.5 (Mo.), cert. denied , 454 U.S. 933 (1981). Thus, in the case at bar, even if the depravity-of

mind instruct

ion were unconstitutionally vague (we already have determined it is not), the two remaining aggravating circumstances found by the jury would be sufficient to-14-

sustain Mallett's death sentence. For all of these reasons, the depravity-of-min d aggravating circumstance does not support a reversal of Mallett's sentence.

E.

We consider next Mallett's argument that he was denied his Fourteent h Amendment due process right to an impartial and disinterested judge. Prior to bein g assigned to Mallett's case, the state trial court judge sent two plaques to the stat e hi ghway patrol in memory of Trooper Froemsdorf and another patrolman killed in the line of duty. One plaque was forwarded to the family of Trooper Froemsdorf. Based on these facts, Mallett moved for recusal of the trial court judge bef ore trial. His motion

was denied . Mallett raised this issue again in his motion for new trial, but failed t o address the issu e on direct appeal. He attempted to resurrect the argument in his Rule 27.26 motion, but the moti on court determined the issue was not cognizable because it was not raised on direct appeal. See O'Neal v. St ate , 486 S.W.2d 206, 207 (Mo. 1972) ("A pro ceeding under Rule 27.26 is not a substitute for appeal."). The Missour i Supreme Court affirm ed the motion court's finding that the claim was abandoned. See Mallett v. State , 769 S.W.2d at 83. Because this issue is procedurally defaulted under Mis souri law, and because Mallett makes no showing of cause and prejudice t o overcome the resulting procedural bar against federal collateral review of the issue, we necessarily find that federal habeas review is procedurally barred. See Harris v. Reed , 489 U.S. 255 (1989); LaRette , 44 F.3d at 687.

F.

We have co nsidered Mallett's remaining claims regarding ineffective assistance of trial and ap pellate counsel, the State's allegedly improper closing argument, and the suffi ciency of the evidence regarding the element of deliberation, and conclude tha t none of them has merit. The judgment of the District Court is affirmed.-15-

A true copy.

Attest:

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