*The Hon. Charles B. Kornmann, United States District Judge

for the District of South Dakota, sitting by designation.

 The Hon. Howard F. Sachs, United States District Judge for

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 for

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 claims made in his habeas 2

petition were admitted by the State when (according to him) it

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 penalty, in

failing to conduct voir dire on the presumption of innocence, in

failing to present certain mitigating evidence, including character

witnesses, accomplishments of the defendant, and psychological

testimony, and in failing to make an offer of proof of the

testimony of one Robert E. Lee. We have considered these arguments

and reject them, substantially for the reasons given in the

District Court's opinion.

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consideration, we affirm, though not altogether for the same reasons.2

I.

The District Court and the Missouri Supreme Court have rendered

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. 948

(1988). We will summarize them here only to the extent necessary for our

review.

On August 7, 1985, Clemmons was an inmate at the Missouri State

Penitentiary. Shortly before 9:00 that evening, Corrections Officer Thomas

Steigerwald, while walking towards a group of inmates standing near Housing

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 who had been struck, ran past Steigerwald to the entrance to the

main corridor. As he did so, Steigerwald noticed blood on Johnson's shirt.

It was then that Steigerwald realized that a stabbing had occurred.

Steigerwald called for backup on his radio and began to pursue the

inmate whom he had seen striking Johnson. That inmate, who was
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wearing a gray sweatshirt, and another inmate, who was wearing a gray towel

around his head, began to move towards the prison chapel. Eventually,

these inmates separated, and Steigerwald decided to pursue the one in the

gray sweatshirt. 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.

Steigerwald 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 inmate in the gray towel was also caught. When his cell was

searched, a hat and a school book belonging to Clemmons were found. The

book was splattered with blood. The inmate had been seen entering the

housing unit carrying the hat and the book shortly after the stabbing. The

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 stabbed

three times. The fatal blow was to the left side of his chest and

penetrated his heart. He also sustained a stab wound to his left side and

another under his right arm. A scratch on his shoulder was also

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."

Clemmons was charged with murdering Johnson. At his trial, there

were two pieces of particularly damaging evidence against him. The first

was Steigerwald's testimony identifying him as the person who struck

Johnson and as having a knife. The second was testimony from Captain A.

M. Gross that Clemmons had stated in
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Gross's presence, "I guess they got me." Clemmons's defense was that

another inmate, Fred Bagby, had killed Johnson, and several inmates

testified more or less to that effect. According to Clemmons, what

Steigerwald saw was Johnson running into Clemmons after Bagby had already

stabbed Johnson. Bagby had died by the time of trial, and the State argued

that the testimony of Clemmons's witnesses should 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 aggravating

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 him

prior to his trial in violation of Brady v. Maryland, 373 U.S. 83 (1963).

Following Clemmons's direct appeal, he discovered an important piece of

evidence. On the very day that Johnson was killed, a Department of

Corrections inter-office communication was written by Captain A. M. Gross,

the same Captain Gross who testified against Clemmons, stating that another

inmate had accused Fred Bagby of killing Johnson. The inter-office

communication reads as follows:

On the above date at approximately 9:30 P.M. I was

searching the upper yard for evidence in the

stabbing that had taken place about 8:55 P.M. on

inmate Johnson, Henry . . . when I met and

interviewed inmate Clark, Dwight . . .. Clark said

that he had witnessed the assault on Johnson, and

that he had seen two (2) men stabbing Johnson. He

described both assailants as being black, and he

thought one was inmate Fred Bagby but only
 The State contends that the memorandum was in Johnson's

3

inmate file, which was reviewed by trial counsel for Clemmons. We

agree with the District Court that "[t]here is little need to

resolve the [issue]." Slip op. 13. "[I]f the memorandum was in

the victim's file, but was not examined or was discounted by [trial

counsel]," ibid., a claim of ineffective assistance of counsel

would arise that would be just as strong or just as weak, as the

case may be, as the Brady claim Clemmons now presses.

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knew the second inmate by sight. When questioned

in detail Clark did not make sense and further

investigation reflects that Clark's statement is

untrue.

This evidence was not provided to Clemmons's attorney, despite a discovery

request for "[a]ny material or information . . . which tends to negate the

guilt of the defendant."3

Clemmons raised the failure to disclose this memo in his initial

postconviction motion under Rule 29.15 of the Missouri Rules of Criminal

Procedure. The memo itself was introduced in evidence at the 29.15 hearing

without objection from the State. Clemmons did not, however, call Clark

as a witness, even though he had subpoenaed Clark, and Clark was available

to testify. In fact, Clemmons himself specifically chose not to call Clark

as a witness.

The 29.15 court denied Clemmons's motion, but did not discuss the

Brady issue. Clemmons then appealed to the Missouri Supreme Court. See

Clemmons v. State, 785 S.W.2d 524 (Mo.) (en banc), cert. denied, 498 U.S.

882 (1990) (affirming denial of postconviction relief). There, however,

his lawyer, contrary to repeated instructions from Clemmons, failed to

raise the issue of the undisclosed evidence. Clemmons, in an effort to

save the issue, attempted to file a pro se supplemental brief with the

Missouri Supreme Court, but his motion for leave to file the brief was

denied.

Clemmons once again raised the Brady issue in his petition for
 We do not know why petitioner decided not to call Clark. We 4

do know that this decision was made by petitioner himself, not by

post-conviction counsel. There may be a reasonable inference here

that petitioner had spoken with Clark privately and had determined

that Clark's testimony would not help him. Clark testified later,

at the evidentiary hearing in the federal habeas court, and his

testimony was quite favorable to petitioner, but this does not

necessarily mean that Clark would have testified to the same effect

at the time of the State post-conviction hearing.

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a writ of habeas corpus before the District Court. That Court held that

the claim was procedurally barred.

A.

As we have seen, the Brady claim was raised in the trial court on

Clemmons's petition for postconviction relief under Rule 29.15. The Gross

memorandum was introduced into evidence by petitioner, without objection

from the State. Moreover, there was not then, nor 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 not call Clark as a witness

at the postconviction hearing, though Clark had been transported from the

prison in order to testify and was readily available for that purpose. We

cannot agree, however, that the failure to call Clark operated as a waiver

of the Brady claim itself, though, if the merits of the claim are to be

reached, our consideration will have to be limited to the memorandum, and

cannot include the testimony given by Clark at the 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 the fact that the Brady issue was

not raised in the appeal from the denial of postconviction relief.

Omission of this issue was a serious mistake by Clemmons's appointed

counsel, perhaps the sort of mistake that, if committed at trial or on

direct appeal, would
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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 have 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 his

issues preserved. Appointed counsel, however, filed a brief in the 29.15

appeal without giving Clemmons an opportunity to review it and without

including in the brief all of the issues previously raised in the trial

court. Petitioner then wrote counsel and instructed him to file a

supplemental brief raising the additional issues. Clemmons specifically

drew the attention of counsel to the danger that issues not raised would

later be held not to have been properly presented. "I want you to lay the

ground work so if the Missouri Supreme Court refuse [sic] to hear [the

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 argument 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

counsel had filed a brief raising only six points, that Clemmons had

requested in writing that every other ground preserved by the record also

be raised, and that counsel 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 documents "as a supplemental brief

in this cause," including the original and first amended 29.15 motions,
 In the present 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, we

received on June 10, 1996, an additional document styled "Oral

Argument Written Statement." We have considered this document.

Third, on September 3, 1996, Clemmons filed a pro se motion to

supplement the record. This motion is granted, and we have

considered the materials attached to it. This Court's normal

practice is to refuse pro se filings from clients who are

represented by counsel. We have departed from our normal practice

in this case for two reasons: Clemmons's history of difficulty

with previously appointed counsel, and the fact that this is a

death-penalty case.

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both of which documents, presumably, were in the record before the Missouri

Supreme Court. The Court denied the pro se motion without comment. The

documents referred to in the motion included the Brady issue now under

discussion.

As noted above, we agree with the State that mistakes made by counsel

in postconviction proceedings do not constitute "cause" for habeas

purposes. The initial question, though, is not whether there was cause to

excuse a procedural default, but whether there was a default in the first

place. In other words, did Clemmons fairly present his Brady claim 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 every

issue appearing in the record. In fact it could be bad lawyering to do so,

especially when there are so many potential issues. As counsel remarked

in his letter to Clemmons, "[y]ou can't expect every single allegation to

hold up in court, and it's not the number of allegations that matters

anyway. One good issue is better than a thousand 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 matters

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
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The fact remains that
 At the evidentiary hearing on this habeas petition, the

6

District Court suggested that Clemmons could have fired his lawyer

and then filed his pro se brief. No doubt a client can always

discharge his lawyer, but the suggestion does not seem practical in

the present circumstances. When Clemmons learned, after the fact,

that his lawyer had violated his instructions by filing a brief

omitting issues the client wanted raised, oral argument was only

about a month away. Clemmons could have asked for appointment of

new counsel to make the argument and file a supplemental brief, but

he had no way of knowing whether such a motion would be granted.

(Nor do we.) If he thought about this alternative, he could

reasonably have concluded that it would not be in his best interest

to risk having no lawyer at all to argue his case. We do not

normally order the release of inmates from jail to argue their

appeals pro se, and we assume the practice of the Supreme Court of

Missouri is similar.

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Clemmons called the attention of the Supreme Court of Missouri to his Brady

claim, among many others. We do not know what else 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 question to be answered is this: If the Gross memorandum, but

not Clark's live testimony, had been before the state trial court, how

would the case have been different? In order to succeed, Clemmons must

show a reasonable probability that the outcome would have been different.

"A `reasonable probability' is a probability sufficient to undermine

confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682

(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
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than not have been acquitted if the withheld evidence had been before the

jury. "[A] showing of materiality does not require demonstration by a

preponderance that disclosure of the suppressed evidence would have

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 absence of the evidence in question, "received a fair trial,

understood as a trial resulting in a verdict worthy of confidence." Ibid.

Further, petitioner does not have to show that "after discounting the

inculpatory evidence in light of the undisclosed evidence, there would not

have been enough left to convict." Ibid. 

We have read the entire transcript of the guilt phase of the trial

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 Gross

memorandum dated August 7, 1985? The main support for the State's case,

the 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 was

almost dark when the incident began, and Steigerwald was a considerable

distance away, but he was within 10 or 12 feet of Clemmons (the inmate in

the gray sweatshirt whom he had seen strike Johnson) when he saw the knife

in his hand. There is absolutely no reason to suspect that Officer

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 his

testimony convincing.

The other major witness for the State was Captain A. M. Gross, who

testified about the admission Clemmons is supposed to have made the next

morning. Clemmons now denies that he made any such statement, but not much

in the way of a concrete reason for disbelieving Captain Gross is

suggested. Presumably the Clark memorandum would have been used by the

defense during the cross
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examination of this witness. Also presumably, the witness would have

admitted, after seeing 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 following sentence: "When questioned in detail Clark did not make

sense and further investigation reflects that Clark's statement is untrue."

If the matter had been 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 that 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

attack on the credibility of defense witnesses. Three inmates, Justice

Mays, Seymour G. Abdullah, and Keith Brown, testified 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 stabbed

Johnson three times. Johnson then ran and bumped into Clemmons, the

defendant. On cross-examination, however, Mays's testimony was seriously

undermined. When he realized that he had placed the location of the

alleged collision between Johnson and Clemmons at a place nowhere near the

trail of blood found on the ground, he changed his testimony about the

location. This change was highlighted during the State's closing argument

to the jury.

Seymour Abdullah also identified Bagby as the perpetrator, and it was

during cross-examination of this witness that the State referred to Bagby

as "conveniently dead." Tr. 448. According to Abdullah's version of the

facts, however, it was Bagby, not Johnson, who had a collision with

Clemmons, and Abdullah admitted that he saw no blood at the location of

this collision. (The
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importance of the collision, according to the theory of the defense, is

that it provides an explanation for the blood on Clemmons's sweatshirt.)

The final witness was Keith Brown, the inmate who, according to

Officer Steigerwald, ran away from the scene with Clemmons and ended up

with Clemmons's hat and 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 then left the scene but returned to pick up some papers

of his own. It was then, 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

cross-examination, he gave confused and evasive answers about his

activities in the vicinity of the chapel. His version of the facts did not

appear to be consistent with the location of the chapel door. 

In his closing argument, counsel for the State stressed Officer

Steigerwald's unequivocal identification of the defendant. He observed

that the location of the trail of blood was inconsistent with the

defendant's statement to Officer Brooks as to where he was standing when

the victim, Johnson, brushed or bumped against him. Steigerwald had no

reason to lie, counsel stressed, and there was no blood where the defense

witnesses had placed the altercation. Counsel also referred to "the

conveniently deceased Mr. Bagby," Tr. 500, but added that both Mays and

Abdullah appeared to be uncertain as to whether Bagby or the victim

collided with Clemmons. Towards the end of his argument, another reference

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 crossexamining Captain Gross, as indicated above, the State would
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have omitted the argument about Bagby's being dead at the time of trial -

though it still might have been logical to point out that the three live

witnesses actually called, Mays, Abdullah, and Brown, had waited until

Bagby's death to accuse him. However that may be, most of the State's

case, including notably Officer Steigerwald's eyewitness account and

Clemmons's arguable admission, would have been untouched. We are acutely

mindful that "[o]ur duty to search for constitutional error with

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 responsibility

extremely seriously, as the District Court did. Having considered the

matter with the care that it deserves, we are simply unable to say that our

confidence in the verdict is sufficiently reduced. The standard,

unfortunately but perhaps necessarily, contains some element of

subjectivity. We suppose that any piece of evidence favorable to the

defense - and the Clark memorandum certainly falls in this category - must

have some tendency to undermine one's confidence level, so to speak. It

is dangerous and perhaps misleading to try to express these matters in

quantitative 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

actually tried, it seems to us that the defense had only a rather small

chance of prevailing. We do not think that the Clark memorandum would have

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 Brady claim. 

III.

We turn now to the other major contention made by Clemmons on this

appeal - that his rights under the Confrontation Clause were violated by

the use against him of the deposition of Captain A. M. Gross. Clemmons's

lawyer did not inform him of the deposition in advance, he was not present

when it was taken, and he did not thereafter consent to its being used

against him at trial. (The
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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 right 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 District Court held, however, that the contention was

procedurally barred by petitioner's failure to raise it in the proper

fashion in the state courts. Before addressing this issue directly, we

briefly describe and put to one side two subsidiary contentions made by the

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 State

to use a deposition taken when petitioner was not personally present. We

assume for present purposes that the District Court was correct in

believing that petitioner had made a Confrontation Clause claim as such,

and not just an ineffective-assistance claim based on counsel's failure to

preserve his client's right of confrontation. 

Second, petitioner argues that the State never pleaded

"nonexhaustion" in the District Court with respect to his Confrontation

Clause claim. Any objection to consideration of the claim on its merits

was, therefore, waived, the argument runs, and it was error for the

District Court not to reach the merits. We reject this argument. We

believe it rests on confusion between the doctrines of exhaustion and

procedural bar. It is true that the State did not plead nonexhaustion as

a defense, but exhaustion refers to the present availability of state

remedies. If no state remedies are presently available for adjudication

of a federal claim, exhaustion of remedies has occurred, and this is true

whether the absence of state remedies is due to the state courts'
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having already considered the claim, or to a petitioner's failure to raise

the claim at some earlier, proper time. In other words, a claim that is

procedurally barred 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 state law," slip op. 7, but we read this statement as simply an

informal way of saying that the claim was never properly raised in the

state courts and is therefore now procedurally barred. As the remainder

of the District Court's opinion shows, that Court did not intend to say

that the Confrontation Clause claim had been exhausted in the state courts,

in the sense of having been raised and decided there. Quite the contrary:

the District Court explained at length its reasons for holding that the

claim had 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 was

properly raised on direct appeal. The motion for new trial filed by

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 read

to the jury and into evidence the deposition of Mr. Gross." Brief for

Appellant 35. However, appellate counsel on the direct appeal, not the

same as trial counsel, did not raise the Confrontation 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 of

appellate counsel. As we understand Missouri practice, 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. The

trouble with this point for present purposes is that petitioner's motion,

which we have examined, though it does charge appellate counsel with

ineffective assistance in several respects, says nothing about the
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Confrontation Clause. Nor does the motion refer to or incorporate any

documents that would have alerted the Supreme Court of Missouri to the

Confrontation Clause argument. The pages of the appendix which petitioner

cites in this connection, 284-85, are entirely devoid of any reference to

this issue. We do not think that a general allegation of ineffective

assistance of appellate counsel, without elaboration, is sufficient to

raise any particular instance of the allegedly ineffective assistance.

Still less is a motion specifying certain grounds of ineffective assistance

adequate to alert a court to any particular other ground. Petitioner's

motion does claim that appellate counsel was ineffective in failing to

brief as plain error "[t]he other allegations of trial counsel's

ineffectiveness," App. 285, but nothing is said to particularize these

grounds, nor, again, is any reference made to the Confrontation Clause or,

indeed, to Captain Gross's deposition in any connection.

Petitioner has now filed a second motion to recall the mandate, and

this motion does clearly refer to the Confrontation Clause issue. The

Supreme Court of Missouri denied the motion on October 20, 1995, while this

habeas case was pending before the District Court. The Supreme Court

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 or

successive motions to recall the mandate. If such filings were permitted,

there would be no particular incentive to include in one's first motion to

recall the mandate all grounds of ineffective assistance of appellate

counsel then known or available. The Missouri Supreme Court's order does

not state that it is based on procedural grounds, but we believe we are

safe in concluding that it was. There is simply no reason to conclude that

the federal claims were 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 of

7

direct-appeal counsel can be raised in a 29.15 postconviction

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 recall of

mandate, would be more familiar with counsel's performance before

it. In addition, if I can raise the point in my 29.15 petition

anyway, why bother to move the appellate court to recall its

mandate? On the other hand, the 29.15 trial court in the present

case did consider the Confrontation Clause issue and reject

petitioner's claim on the merits, so the claim, absent some other

default, would be cognizable on habeas in the present case even if

state procedural law would not normally allow it in a 29.15

proceeding. See, e.g., Hadley v. Caspari, 36 F.3d 51 (8th Cir.

1994) (per curiam).

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attempted to raise this issue by original petition for writ of habeas

corpus in the Missouri Supreme Court under Mo. Sup. Ct. R. 91, but, again,

this petition was summarily denied without comment, and we have no reason

to believe that this denial represented a ruling on the merits of the

Confrontation Clause issue. See Byrd v. Delo, 942 F.2d 1226, 1231-32 (8th

Cir. 1991). 

Petitioner also contends that the Confrontation Clause issue is

preserved for federal review by reason of having been urged in his state

postconviction proceeding. The 29.15 trial court, in its findings and

7

conclusions, rejected the argument on the ground that 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

other on the issue. At the postconviction hearing in state court,

petitioner testified, but he said nothing about not having been given an

opportunity to 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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"dispositive finding [that petitioner had consented to the Gross

deposition] does not seem to have been challenged 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 excused

only if petitioner demonstrates cause for this lack of development, and

prejudice resulting from it. See Keeney v. Tamayo-Reyes, supra, 504 U.S.

at 8. Prejudice there may be, due to the evident substantiality of the

Confrontation Clause issue, but we see no "cause" as that word has come to

be defined in the cases. It may have been inexcusable neglect, in the

sense of a lawyer's obligation to a client, not to have either petitioner

or trial counsel testify that Clemmons had not agreed to the use at trial

of the Gross deposition, but this sort of omission by postconviction

counsel cannot, as a matter of law, qualify as "cause." See, e.g., Coleman

v. Thompson, supra; Nolan v. Armontrout, supra.

Petitioner points out that he attempted to bring the issue to the

attention of the Missouri Supreme Court, first by instructing

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 of this opinion, these efforts by petitioner were, in our view,

sufficient to present the issue to the Missouri Supreme Court. The problem

is that there was nothing, factually speaking, to present. If the Missouri

Supreme Court had addressed the Confrontation Clause claim, there would

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

must first have been fully developed in the state courts, unless a

petitioner can show some good reason, recognized in the law, that prevented

him from doing so. The state courts are and must be the primary forum for

the administration of the criminal law, and a due regard for their

competence requires us 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, the

judgment of the District Court, dismissing with prejudice the petition for

writ of habeas corpus, is affirmed. The Brady claim is rejected on the

merits. The Confrontation 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.