### The HONORABLE JOHN R. TUNHEIM, United States District Judge 1 

### for the District of Minnesota, sitting by designation. The Honorable Jean C. Hamilton, Chief Judge, United State s 2 

### District Court for the Eastern District of Missouri, adopting the report and recommendation of the Honorable Thomas C. Mummert , Un ited States Magistrate Judge for the Eastern District o f Missouri. ___________ No. 96-2087

___________ Sylvester Hornbuckle, * * Appellant, * Appeal from the United States * District Court for the v. * Eastern District of Missouri. * Michael Groose, * * Appellee, *

___________ Submitted: December 13, 1996 Filed: February 5, 1997

___________ Before WOLLMAN and MURPHY, Circuit Judges, and TUNHEIM, District 1 Judge.

___________ WOLLMAN, Circuit Judge.
Sylvester Hornbuckle appeals from the district court 's denial of his 2 28 U.S.C. § 2254 petition. We affirm.

I.

On February 1, 1986, Hornbuckle atta cked and robbed Robert and Emily Sudhoff in a parking lot in a St. Louis suburb. On May 14, 1987 , Hornbuckle was convicted of two counts of first-degree robbery, four count s of armed criminal action, and two counts of

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kidnapping. The Missouri Court of Appeals reversed his convictions o n April 26, 1988. The Missouri Supreme Court granted transfer and affirmed Hornbuckle's convicti ons on April 18, 1989. See State v. Hornbuckle , 769 S.W.2d 89 (Mo. 1989) (en banc).

Hornbuckle filed a section 2254 petition in the district court , raising two issues: whether the trial court sho uld have inquired into the prejud icial effect of an exhibit that, although properly admitted int o evidence, mistakenly went to the jury; and whether Hornbuckle's due proces s and equal protection rights were violated when his conviction was base d upon the visual ident ification testimony of Robert Sudhoff, who never saw his attacker. The district court rejected both of Hornbuckle's claims and his request for an evidentiary hearing.

On appea l, Hornbuckle argues four claims: that the district cour t
err ed in not holding an evidentiary hearing on the possible prejudicia l effec t of the exhibit mistakenly sent to the jury; that Hornbuckle wa s denied due process by Robert Sudhoff's identification testimony; and two ineffective assistance of trial counsel claims.

II.

Hornb uckle concedes that the two ineffective assistance claims h e raises on appeal were not raised in state court and have been procedurally defaulted, because under Missouri law he should have raised these claims in a motion for post- conviction relief. Hornbuckle did not file a motion for post-conviction relief under Missouri Suprem e Court Rule 27.26 (1987), which was in effect when he was convicted, or un der Missouri Supreme Court Rule 29.15, which became effective on January 1, 1988. See Mo. Sup. Ct. R. 29.15

### Rule 29.15 was amended effective January 1, 1996, but those 3 

### amendm ents are not relevant to this case. See Mo. Sup. Ct. R
. 29.15 (1996).

Whi le the State did not concede at oral argument tha t 4 

### Hornbuckle could not have filed a Rule 29.15 motion after hi s convic tion was reinstated in 1989, we have previously recognize d that by the terms of Rule 29.15(m), a defendant's failure to file a mot ion by June 30, 1988, constituted a complete waiver of th e right to do so. See Abdullah v. Groose , 75 F.3d 408, 413 (8t h Cir.) (en banc), cert. denied , 116 S. Ct. 1838 (1996).
-3- (1995). Because Hornbuckle did not file a Rule 27.26 motion prior t o

3 January 1, 1988, he w as subject to the provisions of Rule 29.15(m), which required persons convicted before January 1, 1988, to file a Rule 29.1 5 motion on or before J une 30, 1988. The failure of such persons to timely file such a motion would be held to "constitute a complete waiver of the right to proceed under this Rule 29.15." Mo. Su p. Ct. R. 29.15(m) (1995).

Hornbuckle argues that Missouri's adoption of Rule 29.15 serves a s
cause excusing his procedural default. Hornbuckle points out that after the Missouri Court of Appeals reversed his conviction on April 26, 1988, he was no longer unde r a judgment of conviction and had no reason to file
a R ule 29.15 motion prior to June 30, 1988. He claims that under th e provisions of Rule 29.15(m), he would not have b een allowed to file a Rule 29.15 motion after the Missouri Supreme Court re instated his conviction in 19 89, although he made no attempt to file such a motion. Hornbuckl e 4 argues that because he had no opportunity to fil e a Rule 29.15 motion, the State's actions prevented him from raising his ineffective assistanc e claims in state court. See Murray v. Carrier , 477 U.S. 478, 488 (1986).

We do not agree that Missouri's adoption of Rule 29.15 serves a s
cause. Hornbuckle has not explained why he could not have filed a Rul e 29.15 moti on between January 1, 1988, and April 26, 1988. Hornbuckl e assumes that he should not have been expected to file

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such a motion while his direct appeal was pendin g, but this is contrary to what Rule 29.15 requi red him to do. Rule 29.15 was designed as a unitary review process, in which motions for post-conviction relief were to b e filed while the direct appeal was pending, with the appellate cour t subsequ ently reviewing both the direct appeal and the appeal from th e ruling on the post-conviction motion. See Mo. Sup. Ct. R. 29.15(b), ( l ) (1995); see also Lowe-Bey v. Groose , 28 F.3d 816, 818-19 (8th Cir. 1994) (explaining Rule 29.15 process). As a person convicted prior to January 1, 1988, Hornbuckle c ould have filed his motion anytime between January 1 and Jun e 30, 1988, as provided for by Rule 29.15(m). Hornbuckle had a t least four months whi le under a judgment of conviction in which he should have filed a Rule 29. 15 motion raising his ineffective assistance claims, but he failed to do so.

Hornbuckle argues that because the strict mandatory time limits o f Rule 29.15 were designed to thwart the assertion of federal rights, Rule 29.15 is an inadequate ground to bar federal review. We have previously rejected this argument. See Sloan v. Delo , 54 F.3d 1371, 1378-81 (8th Cir

. 1995), cert. denied , 116 S. Ct. 728 (1996); see also Reese v. Delo , 94 F.3 d 1177, 1181-82 (8th Cir. 1996). Hornbuckle had a lmost a year from the date of his conviction--May 14, 1987--until his conviction was reversed on Apri l 26, 1988, in which to prepare his post-conviction relief motion. Cf

. Slo an , 54 F.3d at 1379-80 (petitioner had more than a year betwee n sentencing and June 30, 1988, deadline to prepare motion).

The a doption of Rule 29.15 cannot serve as cause for Hornbuckle' s failure to properly raise his ineffective assistance claims in state court , and Hornbuckle has not argued that a fundamental miscarriage of justice ha s occurred. Thus, our review

### Furthermore, these claims were not raised before the district 5 

### court, so Hornbuckle's presentation of these claims to u s consti tutes an attempt to file a second, and abusive, petition ; these claims are also subject to our general rule agains t considering claims not raised below. See Whitmill v. Armontrout , 42 F.3d 1154, 1156 & n.1 (8th Cir. 1994). Hornbuckle's motion to supple ment the record with material relevant to these claims i s denied.
-5- of these claims is procedurally barred. 5

III.

Hornb uckle argues that the district court erred in not holding a n evidentiary hearing on his claim regarding the p ossible prejudicial effect of an e xhibit--Mrs. Sudhoff's diary--that went to the jury during it s delibe rations. The district court rejected this claim, noting tha t Hornbuckle had failed to develop the record in s tate court to show whether any juror had read the allegedly prejudicial material in the diary and tha t the Missouri Supreme Court had found that there was no indication in the record of any improper communication with the jury. The district cour t concluded that Hornbuckle had failed to show cause and prejudice for his failure to develop th e record in state court and that he was not entitled to a federal evidentiary hearing. On appeal, Hornbuckle has not alleged any grounds serving as cause for his failure to further develop the record in state court, nor does he argue that a fundamental miscarriage of justic e will result from the district court's failure to hold an evidentiar y hearing. Thus, the district court did not err in ruling that Hornbuckle
was not entitled to an evidentiary hearing. See Keeney v. Tamayo-Reyes , 504 U.S. 1, 11-12 (1992).

Hornbu ckle does not raise the merits of his claim on appeal, bu t intertwines the merit s with the evidentiary hearing issue by arguing that Remmer v. United States , 347 U.S. 227, 229-30 (1954), required the distric t court to hold a hearing. We disagree.

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Remmer , the cases Hornbuckle cites in his brief, and almost all of ou r cases applying Remmer , deal with alleged jury ta mpering, juror misconduct,
or private, extrajudicial communication with jurors. Only one of our case s applying Remmer involved an exhibit sent to the jury during it s deliberations, but the problem in that case was that the exhibit contained material that had not been admitted into evidence. See United States v. Johnson , 647 F.2d 815, 817 (8th Cir. 1981). In contrast, the Missour i Supreme Court found that the diary was properly admitted into evidenc e without objection or limitation and was sent to the jury in violation of only an agreement bet ween the parties. See Hornbuckle , 769 S.W.2d at 98- 99. Thus, Remmer is not applicable to Hornbuckle's situation.

IV.
Robert Sudhoff admittedly never saw his attacker, who was positioned behind him and holding a gun to his neck, but only heard the attacker' s voice. Sudhoff later read newspaper accounts of a similar robbery which named Hornbuckle as a suspect. Sudhoff testified that he picked Hornbuckl e out of a photo array based on his wife's descrip tion of the attacker. The photo was a mug shot that had Hornbuckle's name on it. Sudhoff late r iden tified Hornbuckle at a live line-up after hearing his voice. H e testified regarding both of his out-of-court identifications of Hornbuckle , but di d not make an in-court identification because Hornbuckle ha d voluntarily absented himself from his trial. Hornbuckle , 769 S.W.2d at 91

- 92, 94.

Hornbuckle argues that Robert Sudhoff's identification testimon y violat ed his right to due process. The State argues that we ar e procedurally barred from reviewing this claim be cause the Missouri Supreme Court conducted only a plain error review. As we recently noted in Mack

v. Caspari , 92 F.3d 637 (8th Cir. 1996), "[t]here appears to be a decisional split within our Circuit on whether plain-error review by a state appellate court waives a

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procedural default by a habeas petitioner, allowing collateral review by this court." Id. at 641 n.6. The State relies on Toney v. Gammon , 79 F.3 d 693, 699 (8th Cir. 1996), as authority for the proposition that "a properl y limited plain error review by a state court does not cure a procedura l defa ult." Another line of cases, including Mack and the cases cite d therein, see 92 F.3d at 641 & n.6, holds that when a state court reviews for plain error, we may also review for plain error. Although we cannot resolve this divergence in our holdings, we may choose which line of cases to follow, see id. at 641 n.6. We choose to fol low Mack , and thus we will review for plain error resulting in manifest injustice. See id. at 641.

The M issouri Supreme Court concluded that the photo array was no t im permissibly suggestive and that any problems with the photographi c ide ntification went to the weight of the Sudhoffs' testimony. Althoug h Robert Sudhoff's testimony arguably should not have been admitted, th e court co ncluded there was no plain error because the problems wit h Sudh off's identification--his acknowledgments that he had not seen th e attacker's face and that he had selected Hornbuckle from the photo array based on his wife's description, a police office r's testimony that Sudhoff had not been able to identify anyone, and the lack of Sudhoff's signature
on Hornbuckle's photo confirming that he had selected that one--had been put before the jury. See Hornbuckle , 769 S.W.2d at 92-95.

Although we agree with the Missouri Supreme Court that Rober t Sudho ff's testimony about his photographic identification of Hornbuckl e should not have been allowed, we find no plain e rror resulting in manifest injustice. The jury was made aware of Sudhoff's lack of opportunity to se e Hornbuck le. Cf. Dodd v. Nix , 48 F.3d 1071, 1075 (8th Cir. 1995) ("An y remainin g concerns about . . . the reliability of the out-of-cour t iden tification were for the jury to resolve."); Mack , 92 F.3d at 64 3 (citing Dodd ).

### The State argues that portions of Hornbuckle's appeal ar e 6 

### gove rned by provisions of the Antiterrorism and Effective Deat h Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1218-21 (April 24, 1996), amending 28 U.S.C. §§ 2244(b) & 2254(d). Given our disposition of Hornbuckle' s claims, we need not decide whether these amendments apply to Hornbuckle's appeal. See Preston v
. Delo , 100 F. 3d 596, 599 n.4 (8th Cir. 1996). We note that th e Suprem e Court has granted certiorari to consider the retroactiv e application of the Act. See Lindh v. Murphy , 96 F.3d 856 (7 th Cir. 1996), cert. granted , 117 S. Ct. 726 (1997).
-8- With respect to the live line-up, the Missouri Supreme Cour t concluded that Sudhoff's identification testimony was admissible because his identification was based on his recognition of Hornbuckle's voice. Se e Hornbuckle , 769 S.W.2d at 95. We agree that there is no plain erro r regarding Sudhoff's testimony about the live line-up.
The judgment is affirmed. 6

A true copy.

Attest:

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