### *The HONORABLE CHARLES B. KORNMANN, United State s

District Judge for the Distric t of South Dakota, sitting by designation. ___________ No. 95-3784

___________ Ronnie Parker, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Michael S. Bowersox, * Jeremiah W. Nixon, * * Appellees. *

___________ Submitted: June 14, 1996 Filed: August 26, 1996

___________ Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN, Circuit Judge, and KORNMANN, District Judge.

*

___________ WOLLMAN, Circuit Judge.

Ronnie Parker appeals the denial of his 28 U.S.C. § 2254 petition , arguing that his Fourteenth Amendment due process rights and his Sixt h Amendment right to effective assistance of counsel were violated during hi s state court trial and appeal. We affirm.

I.
At approximately 2:00 p.m. on February 6, 1989, Beverly Tate wa s shot and killed. Her neighbor, Johnetta Graham, testified that less than two hours before Tate's death, she saw Parker, Tate's former boyfriend, sittin g on a stool outside the door of Tate's

### -2-

apartment. Shortly thereafter, she heard Tate o pen her door, and she then heard scuffling sounds, as if Tate were trying t o close the door but could not because someone was pushing it from the opposite side. As th e struggling parties en tered the apartment, the noise escalated to screams, and Graham heard punching sounds and then Tate's voice screaming, "Ronnie, stop punching me, Ronnie, stop hitting me." She then heard Parker respond , "Whe re is my gun? You are playing tricks, you bitch, you bitch." Th e sounds moved upstairs to where Tate's bedroom was located, and they were subsequently drowned out by the noise of a television.

Grahamcalled the police, who arrived at approximately 12:50 p.m

. Two police officers knocked on Tate's door, but heard no answer. The nois e quiete d. After waiting for approximately thirty minutes, the officer s left. Approximately thirty minutes later they returned to Tate's apartmen t after receiving a call from the apartment manager reporting the sound of
a gunshot. They discovered Tate's body, naked on the floor of her bedroom , with a fatal bullet wound to her head.

Latez Strong, who was visiting his sister in the apartment to th e imme diate left of Tate's, corroborated Graham's testimony, although h e testified that he did not know the identities of the male and female that he heard fighting next door. In addition to the sounds heard by Graham, Strong testified that he heard a male voice say, "If [you are] going to ac t like a dog, I'll treat you like a dog. Get f--- naked." Strong further testified that after the police left the first time, he heard a gunshot.
A criminalist with the St. Louis police department testified th at the resul ts from tests of swabs taken from Tate's body indicated ana l inte rcourse. The medical examiner testified that in addition to th e gunshot wound to Tate's head, her body contained some "irregular very thin scratches and superficial punctures in the small area of the back and on to the adjacent parts of the

### The Honorable Donald J. Stohr, United States District Judge 1 

### for the Eastern District of Missouri.
-3- buttocks."

Mild red Morgan, Tate's mother, testified, over Parker's objection , that Parker and her daughter had fought on previous occasions and tha t Parke r had "blackened her eyes." She also testified that her daughte r wished to discontinue her relationship with Parker and had made plans to
move to California. Over Parker's objection, Morgan further testified tha t her daughter did not want Parker around because she had recently completed
a d rug treatment program. Counsel moved for a mistrial after thi s testimony, arguing that the implication that Parker was a drug user wa s irrelevant and prejud icial. The court denied the request for a mistrial, but directed the jury to disregard the last statement.

Fol lowing his conviction for murder, sodomy, and armed crimina l action, Parker filed a petition for state post-conviction relief, which wa s denied. After consolidating Parker's appeal from this ruling with hi s direct appeal, the Missouri Court of Appeals affirmed both Parker' s convic tion and the denial of his petition for post-conviction relief

. Park er then filed this petition for writ of habeas corpus, which th e district court denied. 1

II.
Parker first argues that his due pro cess rights were violated by the trial court's admission of Mildred Morgan's testimony referring to pas t fights between Tate and Parker and implying that Parker was a drug user. Parker attacks this testimony as improper evidence of prior bad acts and as irrelevant.

A state court's evidentiary rulings can form the basis for federa l habeas relief under the due process clause only when they

### -4-

were so conspicuously prejudicial or of such magnitude as to fatally infec t the trial and deprive the defendant of due process. Troupe v. Groose , 72 F.3d 75 , 76 (8th Cir. 1995); Bennett v. Lockhart , 39 F.3d 848, 856 (8t h Cir. 1994), cert. denied , 115 S. Ct. 1363 (1995) . We find that the errors alleged by Parker were not of such magnitude as to support a due process claim

. The jury was instructed to disregard the comment implying tha t Parker was a drug use r, and we presume that it did so. See United States

v. Koskela , 86 F.3d 122, 125 (8th Cir. 1996). Moreover, in light of the abundant testimony that Parker was in the apartment threatening and hittin g Tate s hortly before her death, the evidence that on one or two prio r occasions Parker blackened Tate's eyes was not s ufficiently prejudicial to fatally infect the trial.

III.

Parker next argues that he received ineffective assistance of bot h trial and appellate counsel. As it pertains to trial counsel, thi s argument is based on counsel's failure to object to testimony that Parker cha racterizes as inadmissible hearsay and his failure to call a certai n witness in Parker's defense. Parker contends that his appellate counsel failed to appeal the admission of allegedly prejudicial evidence of witnes s thre ats and that he failed to appeal the sufficiency of the evidenc e supporting the murder conviction.

To obtain relief for a claim of ineffective assistance of eithe r trial or appellate counsel, a defendant must sho w both that his attorney's performance fell below an objective standard of reasonableness and that he
was prejudiced by that deficient performance. Strickland v. Washington , 466 U.S. 668, 687-688 (1984); Harris v. State , 9 60 F.2d 738, 740 (8th Cir. 1992) (applying Strickland analysis to appellate counsel), cert. denied , 506 U.S. 921 (1992).

### -5- A. Trial Counsel

Without objection by trial counsel, Morgan testified that he r daughter told her tha t she did not wish to continue her relationship with Parker. The district court characterized this testimony as fitting into the state-of-mind exception to the hearsay rule under Missouri law. See State v. Post , 901 S.W.2d 231, 235 (Mo. App. Ct. 1995). We need not delve into the intricacies of Missouri evidentiary law to determine whether this characterization was correct, because we find that even if counsel erred in failing to object to this testimony, the omission was not sufficiently prejudicial to warrant habeas relief. In light of the strong evidence tha t Tate wished to keep P arker out of her apartment on that day and that once he e ntered a vicious struggle ensued, the jury could have reasonabl y inferred (indeed, could hardly have done otherwise) that Tate wished to en d her relationship with Parker even without this evidence. Moreover, given the str ong evidence of guilt, Parker has failed to show that there is a reasonable probability that, but for counsel's failure to object to this evidence , the result of the trial would have been different. Se e Strickland 466 U.S. at 694.

Parker next attacks his trial counse l's failure to call Donald Cohen as a witness in his defense. Cohen allegedly wo uld have testified that he
saw a man leaving Tate's apartment building around the time of the killing

. Cohen's description o f this man is inconsistent with Parker's appearance. This claim was first addressed to the state court at Parker's sentencing heari ng, during which his trial counsel stated that he had spoken wit h Cohen, but that Cohen refused to give him an address or phone number a t which he could be contacted. Counsel further stated that he and hi s investigator set up a meeting with Cohen but that Cohen did not show up fo r the arranged meeting. According to counsel, he and his investigato r perceived that Cohen was extremely reluctant to get involved and that "as a matter of trial strategy [they] felt there

### -6-

was nothing to do."

Parker again raised this claim in his Rule 29.15 motion for post

convict ion relief. The Rule 29.15 court, pointing to trial counsel' s explanation of his ac tions, found the claim to be without merit. Several months after this hearing, Parker obtained an affidavit in which Cohe n state d that he had been willing to testify at trial but that he was no t called by anyone to do so. In addition, more than three years afte r obtaining Cohen's affidavit, Parker obtained an affidavit from his brother , Aaro n Parker, stating that Aaron had met with trial counsel prior t o Parker's trial and gave him Cohen's address and phone number. As thes e affida vits were prepared after the conclusion of the state-cour t proceedings, the district court was apparently t he first court to consider this ne w evidence. The district court determined that an evidentiar y hearing on this issue was not warranted, and we agree.

We mus t evaluate counsel's decision not to interview or call a particular witness from the perspective of counsel at the time the decisio n
was made. See Whitmore v. Lockhart , 8 F.3d 614, 619 (8th Cir. 1993). Whe n evaluated in this lig ht, trial counsel's performance did not fall outside the wide range of pro fessionally reasonable performance. See Strickland , 466 U.S. at 687.

In any event, we find that Parker was not prejudiced by counsel' s fai lure to call Cohen as a witness. The jury heard uncontroverte d testimony that Parker was sitting outside Tate's apartment less than two hours before the murd er and that a person, whom Tate was calling "Ronnie" and who se voice Graham testified sounded like Parker's, was in Tate' s apartment punching her and shouting "Where is my gun?" less than an hour before Tate was shot. In light of this testimony, we conclude that there is no reasonable like lihood that the outcome of the trial would have been different had the jury heard testimony that a ma n who did not fit Parker's description was seen leaving the building around the time of the

### -7-

murder. See Strickland , 466 U.S. at 694.

B. Appellate Counsel
Parker argues that his appellate cou nsel was ineffective for failing to raise two issues on appeal: 1) the trial cou rt's admission of evidence of thr eats allegedly received by prosecution witnesses; and 2) th e sufficiency of the evidence supporting the murder conviction.

We find that counsel's failure to raise these issues on appeal di d not ri se to the level of constitutionally deficient performance

. Reasonable appellate strategy requires an attorney to limit the appeal to those issues which he determines to have the highest likelihood of success

. To per form competently under the Sixth Amendment, counsel is neithe r required nor even advised to raise every conceiv able issue on appeal. See Ruff v. Armontrout , 77 F.3d 265, 268 (8th Cir. 1996).

Evide nce that witness Strong had received threats that led to hi s reluctance to testify against Parker arose because of a strategy followed by Parker's trial counsel. Strong's testimony before the grand jury was highly favorable to the state. At a pre-trial h earing, however, he became
a mu ch less cooperative witness. In fact, he initially attempted t o exercise his perceived Fifth Amendment right against self-incrimination. When the prosecuting attorney met with him and ostensibly explained that he was in no danger of incriminating himself and therefore had no Fift h Am endment right not to testify, Strong reluctantly testified agains t Parker, both at the h earing and at trial. On cross examination at trial, defense counsel asked Strong if he remembered taking the Fifth Amendment at the pre-trial hearing. The state objected on relevancy grounds, but th e court allowed the testimony, giving the state permission to question Stron g on this point during re-direct examination. On re-direct, the prosecuting attorney

### -8-

elicited an explanation from Strong that his attempt to invoke the Fifth Amendment was prompted by his fear that his family would be harmed if he testified.
Having opened the door to this testimony, Parker may not now argu e that the court erred in allowing the state to obtain an explanation fo r Strong's reluctance t o testify. Accordingly, appellate counsel's failure to raise this issue on appeal was not only reasonable, but prudent.

Parker next attacks his appellate counsel's choice to appeal th e suf ficiency of the evidence supporting the sodomy conviction but not o f that supporting the murder conviction. In light of the ample evidenc e supporting the murder conviction, we find this decision to be well within the bounds of competent appellate assistance.

C. State Post-Conviction Counsel

The basis of Parker's final ineffective assistance claim is tha t poten tial jurors at his trial were challenged solely on the account o f their race in violation of Batson v. Kentucky , 476 U.S. 79 (1986). This claim comes to us in a rather convoluted posture. Parker claims that his trial c ounsel was ineffective for failing to raise a Batson challeng e during the voir dire. Because this claim was co nsidered by the Rule 29.15
cou rt, Parker is confined to an argument that his state post-convictio n appellate counsel was ineffective for failing to appeal the Rule 29.1 5 court's denial of this claim. Because a defendant has no constitutional right to effective assistance of counsel on the appeal of a Rule 29.1 5 motion, ineffective assistance claims such as th is one are not cognizable. Lowe-Bey v. Groose , 2 8 F.3d 816, 820 (8th Cir.), cert. denied , 115 S. Ct. 674 (1994).

### -9- IV.

Par ker next argues that he was denied due process because th e evidenc e was insufficient to support his sodomy conviction. A sodom y conviction under Missouri law requires proof that defendant "has deviate sexual intercourse wi th another person to whom he is not married, without that person's consent by the use of forcible compulsion." Mo. Rev. Stat. § 566.060.

We conclude that Parker's challenge to the sufficiency of th e evidence is without m erit. Tate's mother testified that her daughter and Parke r were not married. The medical examiner found numerous sperm i n Tate' s rectal cavity, which implied that Tate had engaged in anal sex

. Strong testified that he heard a male named "Ronnie" state to a female, wh o could hardly have bee n anyone other than Tate, "If [you are] going to act like a dog, I'll treat you like a dog," and "Get f--- naked." Moreover, the jury heard evidence of possible coercion with a gun and evidence o f scratches and punctur es on Tate's back and buttocks. Viewed in the light most favorable to the verdict, this circumstanti al evidence was sufficient to allow a reasonable jury to infer that Tate wa s forced to submit to anal intercourse and that Parker was the perpetrator.
The judgment is affirmed.

A true copy.

Attest:

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