### *The H on. Charles B. Kornmann, United States District Judg e

for the District of South Dakota, sitting by designation. The Hon. Howard F. Sachs, United States District Judge fo r 1 

### the Western District of Missouri. _____________ No. 96-1086WM

_____________ Eric Clemmons, * * Appellant, * * On Appeal from the United v. * States District Court for * the Western District of * Missouri. Paul Delo, * *

Appellee. *

___________ Submitted: June 13, 1996 Filed: November 22, 1996

___________ Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Circuit Judge, and KORNMANN, District Judge.

*

___________ RICHARD S. ARNOLD, Chief Judge.

Eric Clemmons, the petitioner, has been sentenced to death fo r killing a fellow inmate at the Missouri State Penitentiary. Exculpatory evidence was apparently withheld from Clemmons by the State prior to his trial. In addition, evidence that was important to the State's case came in by deposition, raising serious issues under the Confrontation Clause. The District Court held, however, that both these claims were procedurally 1 barred. After thorough

### Petitioner also argues that certain claim s made in his habeas 2 

### petition were admitted by the State when (according to him) i t failed to deny them in a timely fashion, and that his trial counsel was ineffective in failing to object to certain allegedly improper actions of the prosecutor, in failing to ask on voir dire whether potential jurors would automatically vote for the death pena lty, in failing to conduct voir dire on the presumption of innocence, i n failing to present certain mitigating evidence, including ch aracter witnesses, accomplishments of the defendant, and psychologica l testimony, and in failing to make an offer of proof of th e testimony of one Robert E. Lee. We have considered these ar guments and reject them, substantially for the reasons given in th e District Court's opinion.
-2- consideration, we affirm, though not altogether for the same reasons. 2

I.

The District Court and the Missouri Supreme Court have rendere d careful and detailed opinions reciting the facts in this case. Clemmons

v. Delo , No. 90-0943-CV-W-6, slip op. (W.D. Mo. July 7, 1995); State v
. Clemmons , 753 S.W.2d 901 (Mo.) (en banc), cert. denied , 488 U.S. 94 8 (1988). We will summ arize them here only to the extent necessary for our review.

On August 7, 1985, Clemmons was an inmate at the Missouri Stat e Penitentiary. Shortly before 9:00 that evening, Corrections Officer Thoma s Steigerwald, while walking towards a group of inmates standing near Housin g Unit 3, observed one of the inmates grab another , strike him in the chest, and then hit him with a roundhouse punch in the side. Henry Johnson, the inmate wh o had been struck, ran past Steigerwald to the entrance to th e main corridor. As he did so, Steigerwald noticed blood on Johnson's shirt

. It was then that Steigerwald realized that a stabbing had occurred.
Steiger wald called for backup on his radio and began to pursue th e inmate whom he had seen striking Johnson. That inmate, who was

### -3-

wearing a gray sweatshirt, and another inmate, who was wearing a gray towe l
aroun d his head, began to move towards the prison chapel. Eventually , these inmates separat ed, and Steigerwald decided to pursue the one in the graysweatshirt. He testified that he saw the faces of both inmates, as well as a knife in the hand of the inmate in the gray sweatshirt.
Steigerwa ld eventually caught up with the inmate in the sweatshirt, who was Clemmons. By that time the sweatshirt had been turned inside out
so that it appeared to be white. There was human blood on the gray part of the sweatshirt, though it could not be typed. No knife was ever found.

The inm ate in the gray towel was also caught. When his cell wa s searched, a hat and a school book belonging to Clemmons were found. The book was splattered with blood. The inmate had been seen entering th e housing unit carrying the hat and the book shortly after the stabbing. Th e blood splatters on the hat were human blood of either type B or type AB. Johnson, the victim, had type B blood.

Johnson later died. An autopsy revealed that he had been stabbe d three times. The fatal blow was to the left side of his chest an d penetrated his heart. He also sustained a stab wound to his left side and anothe r under his right arm. A scratch on his shoulder was als o discovered, but it is uncertain whether the scratch was inflicted at the
same time as the three stab wounds. Prior to his death, Johnson exclaimed , "they have stuck me in my heart."

Clemm ons was charged with murdering Johnson. At his trial, ther e were two pieces of pa rticularly damaging evidence against him. The first
was St eigerwald's testimony identifying him as the person who struc k Johnson and as having a knife. The second was testimony from Captain A. M. Gross that Clemmons had stated in

### -4-

Gross's pr esence, "I guess they got me." Clemmons's defense was tha t anothe r inmate, Fred Bagby, had killed Johnson, and several inmate s testified more or less to that effect. According to Clemmons, wha t Steigerwald saw was J ohnson running into Clemmons after Bagby had already stabbed Johnson. Bagby had died by the time of trial, and the State argue d that the testimony of Clemmons's witnesses shoul d be discounted because it
was easy for them to try to help Clemmons by blaming someone (Bagby) who could not defend himself.
Clemmons was found guilty. In the penalty phase, several aggra vating circumstances were alleged. Most notably, Clemmons was a prisoner under sentence of life imprisonment without possibility of parole for 50 years for another murder when Johnson was killed. The jury sentenced Clemmons to death.

II.

Clemmons alleges that exculpatory evidence was withheld from hi m prior to his trial inviolation of Brady v. Maryland , 373 U.S. 83 (1963). Follow ing Clemmons's direct appeal, he discovered an important piece o f evidence. On the very day that Johnson was killed, a Department o f Corrections inter-office communication was writt en by Captain A. M. Gross, the same Captain Gross who testified against Clemmons, stating that anothe r inmate had accused Fred Bagby of killing Johnson. The inter-offic e communication reads as follows:

On the above date at approximately 9:30 P.M. I was searching the upper yard for evidence in th e stabbi ng that had taken place about 8:55 P.M. o n inmate Johnson, Henry . . . when I met an d interviewed inmate Clark, D wight . . .. Clark said tha t he had witnessed the assault on Johnson, an d that he had seen two (2) men stabbing Johnson. He descr ibed both assailants as being black, and h e thought one was inmate Fred Bagby but only

### The State contends that the memorandum was in Johnson' s 3 

### inmate file, which was reviewe d by trial counsel for Clemmons. We agree with the District Court that "[t]here is little need t o resolv e the [issue]." Slip op. 13. "[I]f the memorandum was i n the victim's file, but was not examined or was discounted by [trial co unsel]," ibid. , a claim of ineffective assistance of counse l woul d arise that would be just as strong or just as weak, as th e case may be, as the Bradyclaim Clemmons now presses.
-5- kne wthe second inmate by sight. When questione d in d etail Clark did not make sense and furthe r inve stigation reflects that Clark's statement i s untrue.
This evidence was not provided to Clemmons's att orney, despite a discovery request for "[a]ny material or information . . . which tends to negate the guilt of the defendant." 3

Cl emmons raised the failure to disclose this memo in his initia l postconviction motion under Rule 29.15 of the Missouri Rules of Criminal Procedure. The memo itself was introduced in evidence at the 29.15 hearin g without objection from the State. Clemmons did not, however, call Clark as a witness, even though he had subpoenaed Clar k, and Clark was available to testify. In fact, Clemmons himself specifically chose not to call Clar k as a witness.

The 2 9.15 court denied Clemmons's motion, but did not discuss th e Bradyissue. Clemmons then appealed to the Missouri Supreme Court. See Clemmons v. State , 78 5 S.W.2d 524 (Mo.) (en banc), cert. denied , 498 U.S. 882 (1990) (affirming denial of postconviction relief). There, however, his la wyer, contrary to repeated instructions from Clemmons, failed t o raise the issue of the undisclosed evidence. Clemmons, in an effort t o
save the issue, attempted to file a pro se supplemental brief with th e Missouri Supreme Court, but his motion for leave to file the brief wa s denied.
Clemmons once again raised the Bradyissue in his petition for

### We do not k now why petitioner decided not to call Clark. We 4 

### do know that this decision was made by petitioner himself, not by post-conviction counsel. Ther e may be a reasonable inference here that petitioner had spoken wit h Clark privately and had determined that Clark's testimony would n ot help him. Clark testified later, at the evidentiary hearing in the federal habeas court, and hi s testimonywas quite favorable to petitioner, but this does no t necessarily mean that Clark would have testified to the same effect at the time of the State post-conviction hearing.
-6- a writ of habeas corpus before the District Court. That Court held that the claim was procedurally barred.

A.

As we have seen, the Bradyclaim was raised in the trial court o n Clemmons's petition for postconviction relief un der Rule 29.15. The Gross memorandumwas introduced into evidence by petitioner, without objection from the State. Moreover, there was not then, n or is there now, any claim by the State that the memorandum was a fabrication or was for any reason not authentic. It is true that petitioner did n ot call Clark as a witness at the postconvictionhearing, though Clark had been transported from the prison in order to testify and was readily avail able for that purpose. We cannot agree, however, that the failure to call Clark operated as a waiver of th e Bradyclaim itself, though, if the merits of the claim are to b e reached, our consider ation will have to be limited to the memorandum, and cannot include the testimony given by Clark at t he federal habeas hearing. See Keeney v. Tamayo- Reyes , 504 U.S. 1, 8-10 (1992) (holding that factual development of a claim must take place in the state courts). 4

Petitioner's difficulty stems from t he fact that the Bradyissue was not rais ed in the appeal from the denial of postconviction relief

. Omis sion of this issue was a serious mistake by Clemmons's appointe d counsel, perhaps the sort of mistake that, if committed at trial or o n direct appeal, would

### -7-

amount to ineffective assistance in violation of the Sixth and Fourteenth Amendments, but error of this kind on the part of postconviction counsel cannot be "cause" to excuse a procedural default. See Coleman v. Thompson , 501 U.S. 722, 753 (1991); Nolan v. Armontrout , 973 F.2d 615 (8th Cir

. 1992).

What we h ave here, however, goes beyond a mere omission on the part of counsel. After counsel had been appointed to represent Clemmons on his 29.15 appeal (counsel different from the lawyer who had represented him in the postconviction trial court) Clemmons wrote the new lawyer to request that he be kept informed. He specifically stated that he wanted all of hi s issues preserved. Ap pointed counsel, however, filed a brief in the 29.15 appeal without giving Clemmons an opportunity to review it and withou t including in the brief all of the issues previously raised in the tria l
cou rt. Petitioner then wrote counsel and instructed him to file a supplemental brief raising the additional issues. Clemmons specifically drewthe attention of counsel to the danger that issues not raised would later be held not to have been properly presente d. "I want you to lay the ground work so if the Missouri Supreme Court refuse [sic] to hear [th e unbriefed issues] the record will clearly show we tried to present them." Letter of December 26, 1989, App. 270. Counsel refused, stating that he had "made every argum ent on your behalf that I felt could be supported by law and evidence." Letter of December 29, 1989, App. 271.

Clemmons then made a motion in the Missouri Supreme Court for leave to file a supplemental brief pro se. This motion recites that appointed
coun sel had filed a brief raising only six points, that Clemmons ha d requested in writing that every other ground preserved by the record also be raised, and that c ounsel had refused this request. The motion further states that no fewer than 130 additional points should have been raised. It asks the Court to accept a number of document s "as a supplemental brief in this cause," including the original and first amended 29.15 motions,

### In the pres ent case, we have before us three pro se filings. 5 

### First, a pro se supplemental brief was received on May 13, 1996

. The motion for leave to file this brief is granted. Second, w e received on June 10, 1996, an additional document styled "Ora l Argu ment Written Statement." We have considered this document

. Th ird, on September 3, 1996, Clemmons filed a pro se motion t o supplement the record. This motion is granted, and we hav e con sidered the materials attached to it. This Court's norma l practice is to refuse pro se filings from clients who ar e represented by counsel. We ha ve departed from our normal practice in this case for two reasons: Clemmons's history of difficult y withpreviously appointed counsel, and the fact that this is a death-penalty case.
-8- both of which documents, presumably, were in the record before the Missour i Supreme Court. The Court denied the pro se motion without comment. The docum ents referred to in the motion included the Bradyissue now unde r discussion.
As noted above, we agree with the State that mistakes made by c ounsel in postconviction proceedings do not constitute "cause" for habea s purposes. The initial question, though, is not whether there was cause to excuse a procedural d efault, but whether there was a default in the first place. In other words, did Clemmons fairly pres ent his Bradyclaim in the state courts? In the perhaps unique circumstances of this case, we think the answer is yes.

It is perfectly true that counsel does not have to present ever y issue appearing in the record. In fact it could be bad lawyering to do so , especiallywhen there are so many potential issues. As counsel remarked in his letter to Clem mons, "[y]ou can't expect every single allegation to hol d up in court, and it's not the number of allegations that matter s anyway. One good issue is better than a thousan d others." App. 271. The client, however, is and always remains the master of his cause. Here , Clemmons did the only thing he could do: he tried to bring the issue to the attention of the Missouri Supreme Court himself. We do not criticize that Court for refusing leave to file the supplemental brief. Such matter s are within the Court' s discretion. Our own practice is usually to refuse leave to file supplemental briefs in cases in which counsel has appeared. 5

### -9-

The fact remains that

### At the evidentiary hearing on this habeas petition, th e 6 

### District Court suggested that Clemmons could have fired his lawyer and then fil ed his pro se brief. No doubt a client can alway s discharge his lawyer, but the suggestion does not seem pract ical in the present circumstances. Wh en Clemmons learned, after the fact, that his lawyer had violated his instructions by filing a brie f omi tting issues the client wanted raised, oral argument was onl y about a month away. Clemmons could have asked for appointment of new counsel to make the argument and file a supplemental bri ef, but he had no way of knowing whether such a motion would be granted

. (Nor do we.) If he thought about this alternative, he coul d reasonably have concluded that it would not be in his best i nterest to risk having no lawyer at all to argue his case. We do no t normallyorder the release of inmates from jail to argue thei r appeals pro se, and we assume the practice of the Supreme Court of Missouri is similar.
-10- Clemmons called the attention of the Supreme Court of Missouri to his Brady claim, among many others. We do not know what e lse he could have done, as a practical matter, to present the claim to that Court for decision on the merits. We therefore hold that the claim was fairly presented, and that

6 the merits are now open for decision on federal habeas corpus.

B.

The qu estion to be answered is this: If the Gross memorandum, bu t not C lark's live testimony, had been before the state trial court, ho w would the case have been different? In order to succeed, Clemmons mus t show a reasonable pro bability that the outcome would have been different. "A `reasonable probability' is a probability sufficient to undermin e confidenc e in the outcome." United States v. Bagley , 473 U.S. 667, 68 2 (1985) (opinion of Blackmun, J.) (adopted by the Court in Kyles v. Whitley , 115 S. Ct. 1555, 1566 (1995)).
Petitioner does not have to show that he would more likely

### -11-

than not have been ac quitted if the withheld evidence had been before the jury. "[A] showing of materiality does not require demonstration by a prepo nderance that disclosure of the suppressed evidence would hav e resulted ultimately in the defendant's acquittal . . .." Kyles v. Whitley , supra , 115 S. Ct. at 1566. The question is rather whether the defendant, in the ab sence of the evidence in question, "received a fair trial , understood as a trial resulting in a verdict wor thy of confidence." Ibid. Further , petitioner does not have to show that "after discounting th e inculpatory evidence in light of the undisclosedevidence, there would not have been enough left to convict." Ibid.

We hav e read the entire transcript of the guilt phase of the tria l as it actually occurred in 1987. What would the evidence have looked like if the defense had been given, and had used, the later-discovered Gros s memorandumdated August 7, 1985? The main support for the State's case, th e eyewitness testimony of Officer Steigerwald, would be unchanged

. Steigerwald's testimony was clear, consistent with the physical evidence about the location of blood, and unshaken on cross-examination. It wa s alm ost dark when the incident began, and Steigerwald was a considerabl e distance away, but he was within 10 or 12 feet of Clemmons (the inmate in the gray sweatshirt whom he had seen strike John son) when he saw the knife in his ha nd. There is absolutely no reason to suspect that Office r Steigerwald fabricated any part of his testimony , and no one suggests that he did so. It is always possible, of course, that he was mistaken, but, to the extent that the written page conveys an impression, we find hi s testimony convincing.

The ot her major witness for the State was Captain A. M. Gross, wh o testified about the admission Clemmons is supposed to have made the next morning. Clemmons now denies that he made any such statement, but not muc h in the w ay of a concrete reason for disbelieving Captain Gross i s suggested. Presumably the Clark memorandum would have been used by th e defense during the cross

### -12-

examina tion of this witness. Also presumably, the witness would hav e admitted, after seein g the memorandum, that Clark had identified Bagby as the culprit immediately after the incident, at a time when Bagby was still alive. The memorandum, however, does not cut all one way. It ends with the f ollowing sentence: "When questioned in detail Clark did not mak e
sense and further investigation reflects that Clark's statement is untrue. " If the matter had bee n pursued on cross-examination, Gross would probably have given his reasons for making this statement . In the alternative, the State could have brought out his reasons on re-direct. In either event, we think it likely th at the impact of the first portion of the memorandum would have been somewhat diminished.

The fact that Clark had accused Bagby before Bagby's death would, to be sure, have been useful to the defense in connection with the State' s att ack on the credibility of defense witnesses. Three inmates, Justic e Mays, Seymour G. Abdullah, and Keith Brown, test ified for the defense. On direct examination, Mays testified unequivocally that the victim, Johnson, hit Bagby in the face, and that Bagby then pulled a knife and stabbe d John son three times. Johnson then ran and bumped into Clemmons, th e defendant. On cross- examination, however, Mays's testimony was seriously underm ined. When he realized that he had placed the location of th e alleged collision between Johnson and Clemmons a t a place nowhere near the trail of blood found on the ground, he changed his testimony about th e location. This change was highlighted during th e State's closing argument to the jury.
Seymour Abdullah also identified Bagby as the perpetrator, and it was during cross-examinat ion of this witness that the State referred to Bagby as "conveniently dead ." Tr. 448. According to Abdullah's version of the facts, ho wever, it was Bagby, not Johnson, who had a collision wit h Clemmons, and Abdullah admitted that he saw no blood at the location o f this collision. (The

### -13-

importance of the collision, according to the theory of the defense, i s that it provides an explanation for the blood on Clemmons's sweatshirt.)

The final witness was Keith Brown, the inmate who, according t o Officer Steigerwald, ran away from the scene with Clemmons and ended u p with Clemmons's hat a nd book in his cell. Brown testified that there was a scuffle, and that Johnson began running, with Bagby right behind chasing him. Brown was less certain about the collision . He thought that Johnson appeared to have bumped into Clemmons, or another inmate named Lewis, or someone else. He the n left the scene but returned to pick up some papers of his own. It was t hen, he said, that he happened to see a hat and some papers lying on the ground, which he picked up and took to his cell. On
cro ss-examination, he gave confused and evasive answers about hi s activities in the vicinity of the chapel. His version of the facts did no t appear to be consistent with the location of the chapel door.

In his closing argument, counsel for the State stressed Office r Steigerwald's unequivocal identification of the defendant. He observe d that the location of the trail of blood was inconsistent with th e defendant's statement to Officer Brooks as to where he was standing when the victim, Johnson, brushed or bumped against him. Steigerwald had n o reason to lie, counse l stressed, and there was no blood where the defense witn esses had placed the altercation. Counsel also referred to "th e convenientlydeceased Mr. Bagby," Tr. 500, but added that both Mays an d Abdullah appeared to be uncertain as to whether Bagby or the victi m collided with Clemmons. Towards the end of his argument, another referenc e was made to the fact that the defense witnesses were blaming the crime on a dead man. Tr. 504.

We take it that if the Clark memorandum had been used in cross

examining Captain Gross, as indicated above, the State would

### -14-

have omitted the argument about Bagby's being dead at the time of trial - thoughit still might have been logical to point out that the three live witnes ses actually called, Mays, Abdullah, and Brown, had waited unti l Bagby's death to accuse him. However that may be, most of the State' s
ca se, including notably Officer Steigerwald's eyewitness account an d Clemmons's arguable a dmission, would have been untouched. We are acutely mindfu l that "[o]ur duty to search for constitutional error wit h painstaking care is never more exacting than it is in a capital case. " Burger v. Kemp , 483 U.S. 776, 785 (1987). We take this responsibilit y extremelyseriously, as the District Court did. Having considered th e matter with the care that it deserves, we are simply unable to say that ou r confid ence in the verdict is sufficiently reduced. The standard , unfo rtunatelybut perhaps necessarily, contains some element o f subjectivi ty. We suppose that any piece of evidence favorable to th e defense - and the Clark memorandum certainly fal ls in this category - must have some tendency to undermine one's confidence level, so to speak. It is da ngerous and perhaps misleading to try to express these matters i n quantitat ive terms. The judgment we have to make is a qualitative one

. The closest we can come to expressing it clearly is this: as the case was actuall ytried, it seems to us that the defense had only a rather smal l chance of prevailing. We do not think that the Clark memorandum would hav e increased this chance more than marginally. We still have confidence in the verdict of guilty, and it is, accordingly our bounden duty to reject Clemmons's Bradyclaim.

III.

We tur n now to the other major contention made by Clemmons on thi s appeal - that his rights under the Confrontation Clause were violated by the use against him o f the deposition of Captain A. M. Gross. Clemmons's lawyer did not inform him of the deposition in a dvance, he was not present when it was taken, and he did not thereafter consent to its being use d against him at trial. (The

### -15-

lawyer decided to take the deposition as a courtesy to Gross, whose wife had died immediately before the trial.) We agree with the District Court that this contention, if open for decision on the merits in this federal habeas proceeding, would be a substantial one. See Don v. Nix , 886 F.2d 203, 206 (8th Cir. 1989) (holding that "the righ t to be physically present when the accusations that the jury will hear are made" extends to pretrial depositions intended to be used at trial).

The D istrict Court held, however, that the contention wa s procedu rallybarred by petitioner's failure to raise it in the prope r fashion in the state courts. Before addressing this issue directly, w e briefly describe and put to one side two subsidiary contentions made by th e parties. First, the State argues that petitioner never actually made a Confrontation Clause claim in the District Court. The claim, rather, was that petitioner's trial counsel had been ineffective for allowing the Stat e to use a deposition t aken when petitioner was not personally present. We
assume f or present purposes that the District Court was correct i n believing that petitioner had made a Confrontation Clause claim as such, and not just an ineffective-assistance claim bas ed on counsel's failure to preserve his client's right of confrontation.

Second , petitioner argues that the State never pleade d "nonex haustion" in the District Court with respect to his Confrontatio n Clause claim. Any objection to consideration of the claim on its merits
was, ther efore, waived, the argument runs, and it was error for th e District Court not to reach the merits. We reject this argument. W e believe it rests on confusion between the doctrines of exhaustion an d procedural bar. It i s true that the State did not plead nonexhaustion as
a defen se, but exhaustion refers to the present availability of stat e remedies. If no state remedies are presently available for adjudication of a federal claim, e xhaustion of remedies has occurred, and this is true whether the absence of state remedies is due to the state courts'

### -16-

having already considered the claim, or to a pet itioner's failure to raise the claim at some earlier, proper time. In other words, a claim that is procedurallybarred is, by definition, an exhausted claim. The District Court's opinion does state that the claim "has not been exhausted before the Missouri courts, and has, therefore, been waived as procedural error under sta te law," slip op. 7, but we read this statement as simply a n informal way of saying that the claim was never properly raised in th e state courts and is therefore now procedurally barred. As the remainder of the Di strict Court's opinion shows, that Court did not intend to sa y that the Confrontation Clause claim had been exhausted in the state courts , in the sense of having been raised and decided t here. Quite the contrary: the District Court explained at length its reasons for holding that th e claimha d not been properly raised in the state courts, and that , therefore, it was procedurally barred. We now turn to this issue.

In his brief to this Court, petitioner argues that the claim wa s proper lyraised on direct appeal. The motion for new trial filed b y counsel does refer to the right of confrontation , and petitioner's own pro se motion for new trial directly claims that "[t ]he court denied defendant the right to confront his accuser, when the court allowed the State to rea d to the j ury and into evidence the deposition of Mr. Gross." Brief fo r Appellant 35. However, appellate counsel on the direct appeal, not th e same as trial counsel, did not raise the Confron tation Clause issue in her brief. Petitioner argues that the issue was preserved when he filed a motion to recall the mandate and claimed ineffective assistance o f appellate counsel. As we understand Missouri pr actice, a motion to recall the mandate, at least on direct appeal, is a proper way (perhaps the only proper way) to claim ineffective assistance of appellate counsel. Th e trouble with this poi nt for present purposes is that petitioner's motion, whic hwe have examined, though it does charge appellate counsel wit h ineffective assistance in several respects, says nothing about the

### -17-

Confr ontation Clause. Nor does the motion refer to or incorporate an y docum ents that would have alerted the Supreme Court of Missouri to th e Confrontation Clause argument. The pages of the appendix which petitioner cites in this connect ion, 284-85, are entirely devoid of any reference to thi s issue. We do not think that a general allegation of ineffectiv e assi stance of appellate counsel, without elaboration, is sufficient t o rais e any particular instance of the allegedly ineffective assistance

. Still less is a motion specifying certain grounds of ineffective assistanc e adequate to alert a court to any particular other ground. Petitioner' s motion does claim that appellate counsel was ineffective in failing t o brief as plain error "[t]he other allegations of trial counsel' s ineffe ctiveness," App. 285, but nothing is said to particularize thes e grounds, nor, again, is any reference made to th e Confrontation Clause or, indeed, to Captain Gross's deposition in any connection.

Petitione r has now filed a second motion to recall the mandate, and this motion does clearly refer to the Confrontation Clause issue. Th e Supreme Court of Missouri denied the motion on October 20, 1995, while thi s habeas cas e was pending before the District Court. The Supreme Cour t denied this motion without comment. We have no reason to believe that the denial was on other than procedural grounds. No authority has been cited,
nor are we aware of any, that would support the filing of second o r successive motions to recall the mandate. If su ch filings were permitted, there would be no particular incentive to includ e in one's first motion to recall the mandate all grounds of ineffective assistance of appellat e counsel then known or available. The Missouri Supreme Court's order does not sta te that it is based on procedural grounds, but we believe we ar e safe in concluding that it was. There is simply no reason to conclude tha t the federal claims we re rejected on their merits, or were interwoven with claims that were decided on their merits. See Jolly v. Gammon , 28 F.3d 51 , 53 (8th Cir.), cert. denied , 115 S. Ct. 462 (1994). Petitioner also

### We assume, without deciding, that ineffective assistance o f 7 

### direct-appeal counsel can be raised in a 29.15 postconvictio n petition. We observe that the assumption seems questionable. We are aware of no authority so holding, and the appellate court , which unquestionably can consider the issue on motion for re call of mandate, would be more familiar with counsel's performance before it. In addition, if I can raise the point in my 29.15 petitio n anyway, why bother to move the appellate court to recall it s mandate? On the other hand, the 29.15 trial court in the present case did consider the Confrontation Clause issue and rejec t petitioner's claim on the merits, so the claim, absent some other default, would be cognizable o n habeas in the present case even if state procedural law would not normally allow it in a 29.1 5 proce eding. See, e.g. , Hadley v. Caspari , 36 F.3d 51 (8th Cir

. 1994) (per curiam).
-18- attempted to raise this issue by original petition for writ of habea s corpus in the Missouri Supreme Court under Mo. S up. Ct. R. 91, but, again, this petition was sum marily denied without comment, and we have no reason to believe that this denial represented a ruling on the merits of th e Confrontation Clause issue. See Byrd v. Delo , 9 42 F.2d 1226, 1231-32 (8th Cir. 1991).

Pet itioner also contends that the Confrontation Clause issue i s preserved for federal review by reason of having been urged in his state post conviction proceeding. The 29.15 trial court, in its findings an d 7 conclusions, rejected the argument on the groundthat the Gross deposition

was taken "with the consent of the Movant." Respondent's Exhibit G, p

. 235. This finding was not supported by the record, there having been no testimony to support it, and no one now defends it. Petitioner's problem is that there was no evidence in the postconviction record one way or the oth er on the issue. At the postconviction hearing in state court , petitioner testified, but he said nothing about not having been given an opport unityto be present during the Gross deposition. Petitioner' s counsel did not call trial counsel. He testified only when called by the State, and his testimony did not include any reference to petitioner' s presence vel non at the Gross deposition. Indeed, as the District Court remarked, slip op. 8 n.6, the

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"dispo sitive finding [that petitioner had consented to the Gros s deposition] does not seem to have been challenge d by petitioner or counsel prior to the proceeding in this court."
As we have previously noted, those who would attack a conviction are obligated to develop the material facts in the state courts. "[A] state prisoner's failure to develop material facts in state court" can be excuse d onl yif petitioner demonstrates cause for this lack of development, an d prejudice resulting f rom it. See Keeney v. Tamayo-Reyes , supra , 504 U.S. at 8. Prejudice there may be, due to the evident substantiality of th e Confrontation Clause issue, but we see no "cause " as that word has come to be defin ed in the cases. It may have been inexcusable neglect, in th e sense of a lawyer's o bligation to a client, not to have either petitioner or trial counsel test ify that Clemmons had not agreed to the use at trial of t he Gross deposition, but this sort of omission by postconvictio n counsel cannot, as a matter of law, qualify as "cause." See, e.g. , Colema n v. Thompson , supra ; Nolan v. Armontrout , supra .
Petitioner points out that he attempted to bring the issue to th e attenti on of the Missouri Supreme Court, first by instructin g postconviction appellate counsel to raise it, and then by filing his own pro se brief incorporating pleadings that raised it. As we have held in part II o f this opinion, these efforts by petitioner were, in our view , sufficient to present the issue to the Missouri Supreme Court. The proble m is that there was nothing, factually speaking, to present. If the Missour i Suprem e Court had addressed the Confrontation Clause claim, there woul d have been no testimony or other evidence before it to justify a reversal of the 29.15 trial court.

No doubt all of this seems more than somewhat technical. The basic principle , however, is simple and easily understood: in order to get a federal habeas court to consider on its merits an

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attack on a state-court conviction, the facts said to justify the attack

mus t first have been fully developed in the state courts, unless a petitioner can show some good reason, recognized in the law, that prevente d him from doing so. The state courts are and mus t be the primary forum for the administration of the criminal law, and a due regard for thei r competence requires u s to respect those procedural rules that require the underlying facts, absent some adequate cause, to be presented in the first instance in the state system.

IV.

For the reasons we have attempted to explain in this opinion, th e judgment of the District Court, dismissing with prejudice the petition for writ of habeas corpus, is affirmed. The Bradyclaim is rejected on th e merits. The Confront ation Clause claim is procedurally barred. We thank appointed counsel for petitioner for their diligent and able service.

Affirmed.

A true copy.

Attest:

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