The Honorable Lawrence L. Piersol, United States District Judge for the District *

of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 97-1692WM

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Thomas Lee Umphfrey, *

*

Appellant, * Appeal from the United States

* District Court for the Western

v. * District of Missouri.

*

Michael Groose, * [UNPUBLISHED]

*

Appellee. *

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 Submitted: November 21, 1997

Filed: December 29, 1997

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Before FAGG and HANSEN, Circuit Judges, and PIERSOL, District Judge. *

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PER CURIAM.

Thomas Lee Umphfrey was convicted of robbery in Missouri state court and his

conviction was affirmed on direct appeal. See State v. Umphfrey, 694 S.W.2d 816

(Mo. Ct. App. 1985) (per curiam). After state postconviction relief was denied,

Umphfrey filed this federal habeas petition claiming he was denied his Sixth

Amendment right to an impartial jury. Two jurors had stated in voir dire that an

innocent man would testify on his own behalf, and Umphfrey did not take the stand in
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his own defense. Umphfrey did not preserve the juror bias claim at trial or raise it on

direct appeal. The district court denied habeas relief, holding Umphfrey procedurally

defaulted his juror bias claim in state court and failed to show cause for his procedural

default. Umphfrey appeals. 

Umphfrey first asserts we should ignore his procedural default because the

record establishes actual juror bias that amounts to a structural constitutional error, see

Johnson v. Armontrout, 961 F.2d 748, 751-52 (8th Cir. 1992), but the record does not

conclusively establish actual juror bias. Alternatively, Umphfrey asserts he has shown

cause and prejudice to excuse his procedural default. See Sloan v. Delo, 54 F.3d 1371,

1381-82 (8th Cir. 1995), cert. denied, 116 S. Ct. 728 (1996). According to Umphfrey,

the state’s failure to send him a copy of the voir dire transcript constitutes cause.

Umphfrey was present at both voir dire and the trial, however, so he did not need the

transcript to know of the factual basis for raising the claim on direct appeal. As another

cause for default, Umphfrey contends his trial attorney’s failure to object to the biased

jurors amounted to ineffective assistance of counsel. Umphfrey did not assert this

ineffective assistance claim independently in state postconviction proceedings, so

ineffective assistance of trial counsel cannot constitute cause. See Oxford v. Delo, 59

F.3d 741, 747 (8th Cir. 1995), cert. denied, 116 S. Ct. 1361 (1996). Additionally,

contrary to Umphfrey's view, trial counsel was not ineffective. Trial counsel

recognized the juror issue on the record in Umphfrey's presence, and for tactical

purposes counsel declined to challenge the jurors. Umphfrey’s claim that ineffective

assistance of postconviction counsel excuses his procedural default is meritless.

Because there is no right to effective assistance of counsel in postconviction

proceedings, ineffective assistance of postconviction counsel cannot serve as cause to

excuse a procedural default. See Sweet v. Delo, 125 F.3d 1144, 1151 (8th Cir. 1997).

We thus affirm the denial of Umphfrey’s habeas petition.
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A true copy.

Attest:

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