### The Honorable George F. Gunn, United States District Judg e 1 

### for the Eastern District of Missouri, adopting the report an d recomm endation of the Honorable Lawrence O. Davis, United State s Magistrate Judge for the Eastern District of Missouri. ___________ No. 95-2634

___________ Freddie Mack, * * Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Paul D. Caspari, * * Appellee. *

___________ Submitted: February 12, 1996 Filed: August 8, 1996

___________ Before MAGILL, HEANEY, and MURPHY, Circuit Judges.

___________ MAGILL, Circuit Judge.
Appellant Freddie Mack appeals the district court's denial of a writ 1 of habe as corpus under 28 U.S.C. § 2254. Mack argues that the distric t court erred in (1) failing to provide habeas relief on the ground that Mac k had be en abandoned by state postconviction counsel, (2) denying habea s relief on the merits of three alleged trial errors, and (3) failing to hol d an evidentiary hearing. We affirm.

### -2- I.

In th e early morning of July 9, 1985, Michael Tracy and Rober t Sch affner, both of whom had been drinking beer and taking amphetamines , were in a car parked in the "Stroll" area of St. Louis, Missouri, which is known for prostitution. While speaking with several prostitutes, Tracy an d Sch affner were attacked and robbed by three men. One of the robbers , identified at trial as petitioner Mack, shot both Tracy and Schaffner in the stomach. On July 30, 1985, Mack was indicted in Missouri state court on two counts of first degree assault, two count s of first degree robbery, and one count of armed criminal action.

Mack e ntered a plea of not guilty, and the case proceeded to tria l before a jury in January 1986. Mack was subsequently convicted on al l
cou nts. He was sentenced to two consecutive terms of thirty year s imprisonment for assault, two concurrent terms of twenty years imprisonmen t for robbery, and a consecutive term of life imprisonment for armed crimina l action. Mack's convi ctions were affirmed on direct appeal. See State v. Mack , 725 S.W.2d 78 (Mo. App. 1987) (per curiam).

On Febr uary 4, 1988, Mack filed a pro se motion for postconvictio n reli ef pursuant to Missouri Rule 29.15, arguing that he had receive d ineffective assistanc e of counsel for a variety of reasons. On March 17, 1988, the state public defender's office was appointed to represent Mack in his Rule 29.15 motion. Mack retained private counsel to pursue th e motion, and the appointed counsel withdrew. Because Rule 29.15(f) require d Mack's retained counsel to file an amended motion within thirty days of hi s March 25, 1988, appea rance, the Rule 29.15 court notified Mack on May 26, 1988, th at no amended motion would be accepted. On June 3, 1988, Mac k moved to dismiss his pro se motion without prejudice, but the Rule 29.15 court denied the motion. On June 10, 1988, the Rule 29.15 court held a hearing on the merits of Mack's pro se

### The June 29 motion included additional allegations of Mack's 2 

### trial counsel's ineffectiveness. The most significant of th ese new allegations was that Mack's trial attorney presented an alib i defense using the wrong date. The only ch ange made by the district court to the report and 3 

### recommendation was to strike a reference to Abdullah v. Groose , 44 F.3d 692 (8th Cir. 1995), which had been vacated, pending re hearing en banc by this Court in Abdullah v. Groose , 75 F.3d 408 (8t h Cir.) (en banc), cert. denied , 64 U.S.L.W. 3779 (May 20, 1996).
Mack also moves this Court to modify the record on appea l 4 

### pursuant to Federal Rule of Ap pellate Procedure 10(e) to include a transcript of his June 10, 1988 Rule 29.15 hearing, his habea s pet ition to the Missouri Supreme Court, and the Missouri Suprem e Court's order denying relief. This motion is granted.
-3- motion, and denied po stconviction relief. Mack's attorney filed a second motion on June 29, 1988, and the Ru le 29.15 court refused to consider the 2 untimelysecond motion. The Missouri Court of Appeals affirmed both the refusal to consider the second motion and the denial of postconvictio n relief. See Mack v. State , 775 S.W.2d 288, 290-92 (Mo. App. 1989).

On Januar y 31, 1994, Mack petitioned the Missouri Supreme Court for

a writ of habeas corpus, which was denied on February 22, 1994. Mac k brought the instant habeas petition before the d istrict court on April 20, 1994, an d the case was referred to a magistrate judge for a report an d
reco mmendation. Without specifically addressing Mack's claim that hi s postconviction counsel had abandoned him, the ma gistrate judge recommended that the habeas petition be denied. Following consideration of objections , the district court declined to hold an evidentia ry hearing and adopted the report andrecommendation of the magistrate judge. Mack now appeals the 3 denial of his petition for habeas relief. 4

II.

Mack contends on appeal that he was abandoned by his stat e postconviction counsel, and that the district court erred in not

### -4-

gran ting habeas relief so that Mack could secure a second Rule 29.1 5 hearing in a Missouri state court. In Luleff v. State , 807 S.W.2d 495 (Mo

. banc. 1 991), the Missouri Supreme Court recognized a limited right t o effect ive assistance of counsel in postconviction hearings. Where th e record of a postconvi ction proceeding "shows not mere ineffectiveness but such a total default in carrying out the obligations imposed upon appointe d counsel by Rule 29.15 (e) as to constitute abandonment," State v. Bradley , 811 S.W.2d 379, 384 (Mo. banc. 1991) (per curiam), new counsel should be appointed and the petitioner allowed a new heari ng. Because the filing of an amended petition out of time can constitute a bandonment, see Sanders v. State , 80 7 S.W.2d 493, 494-95 (Mo. banc. 1991), Mack argues that he wa s denied due process of law and equal protection because he was not granted a second hearing.

Al though Mack referred to abandonment by postconviction counsel i n both his petition for habeas relief, see Pet. at 5p, and in a memorandum of law su pporting the petition, see Mem. at 9 (April 20, 1994), th e district court did no t construe Mack's petition as a claim of abandonment by postconviction cou nsel. Rather, the district court considered this as

a complaint that the state court erred in "summarily enter[ing] an order denying petitioner th e chance to amend his pro se Rule 29.15 motion or to grant him a hearing without first notifying peti tioner of its intent to do so." Repo rt & Recommendation at 9. The appellee argues that we ar e precluded from consid ering this argument. See, e.g. , Mellott v. Purkett , 63 F.3 d 781, 784 (8th Cir. 1995) (this Court may not "consider lega l arguments raised for the first time on appeal, except for plain error"). We disagree. While we do not require a district court to read a " pro se motion so clairvoyantly so as to recognize [an] unarticulated argument," id. , neither is this rule "meant to trap a petitioner who has poor draftin g sk ills. The stakes in habeas cases are too high for a game of lega l 'gotcha.'" Schneider v. Delo , 85 F.3d 335, 339 (8th Cir. 1996) (discussin g state exhaustion requirement). While Mack could have,

### -5-

and in fairness to both the district court and the opposing party should have, been clearer in his presentation of this issue in the district court , we conclude that this issue was adequately raise d in the district court to allow review by this Court. See Turner v. Armontrout , 922 F.2d 492, 493 n.1 (8th Cir. 1991) (pro se habeas petitions are construed liberally).

Mack h as failed to state a cognizable claim for habeas relief. I t is well settled that "[t]here is no constitution al right to an attorney in state post-conviction proceedings," Coleman v. T hompson , 501 U.S. 722, 752 (1991), and that "[c]onsequently, a petitioner cannot clai m constitutionallyineffective assistance of counsel in such proceedings." Id. Mack is therefore left only with a claim that the state court erred by inc orrectly applying its own procedural rule in a postconvictio n hearin g--a consideration beyond this Court's review. See Schleeper v

. Groose , 36 F.3d 735, 737 (8th Cir. 1994) ("A federal court may not re

examin e a state court's interpretation and application of state law.") ; Smith v. Lockhart , 882 F.2d 331, 334 (8th Cir. 1989) (finding no du e process violation where there was only an "alleged violation of a stat e rule concerning post- conviction proceedings, an area in which a defendant is not necessarily afforded constitutional protections"), cert. denied , 49 3 U.S. 1028 (1990).

While a c ontention that a state court has applied a procedural rule arbitrarily to a defe ndant's prejudice may state a federal constitutional due process violation, see, e.g. , Evitts v. Lucey , 469 U.S. 387, 401 (1985 ) ("when a State opts to act in a field where its action has significan t discretionary elements, it must nonetheless act in accord with the dictate s of the Constitution--and, in particular, in accord with the Due Proces s Clause"), such a contention could not be made under the facts of this case

. The rule allegedly vi olated by Mack's Rule 29.15 court did not even exist unti l long after the decision had become final. The Luleff opinion , creating the abandonment rule, was filed on April 9, 1991,

### We note tha t the dissent relies on Easter v. Endell , 37 F.3d 5 

### 1343 (8th Cir. 1994), for the proposition that "only a firml y established and regularly followed state practice may be int erposed by a State to prevent subsequent review of a federal constit utional cla im." Dissenting Op. at 18 (quotations and ellipsis omitted)

. While this is undoubtedly corr ect, it is also irrelevant under the facts of this case. Unlike the defendant in Easter , Mack has not sought to litigate the issue of whether his trial counsel wa s ineffective, and therefore he has not had to show that a n inte rvening state procedural rule was inadequate to bar federa l consideration of the underlying claim. See Easter , 37 F.3d at 1345 (discussing bar of federal consideration of claim by independent and adequate state grounds). Rather, Mack has argued that h is Rule 29.15 hearing constitutes a violation of his federal constit utional right to due process. See Appellant's Br. at 6 ("Mr. Mack wa s deprived of his Fifth, Sixth, and Fourteenth Amendment rights when
-6- while Mack's unsucces sful appeal of the denial of his Rule 29.15 petition

was decid ed on June 27, 1989, almost two years earlier. Mack's precis e argument, therefore, is not even that the state courts violated an existen t state proc edural rule, but that in adhering to settled state law, th e courts dep rived him of due process and equal protection by failing t o anticipate future sta te law developments. We find this argument unsound.

The d issent asserts that Missouri courts consistently applied th e abandonment rule prior to its creation in Luleff

. See Dissenting Op. at 14-19. We disagree. In Sanders , 807 S.W.2d at 494, filed the same day as Luleff , the court stated:
Until today this Court h as not deviated from its firm position that failure to timely file a motion constitutes a complete bar to consideration of a movant's claims, even when th e claims are attributable entirely to inaction of counsel. Our courts have traditionallyheld that postconviction proceedings may no t under any circumstances be used to challenge the effectiveness of postconviction counsel.

The dissent would have us ignore this clear statement of Missouri state la w bythe highest Missouri state court. See Dissenting Op. at 17-18. This we simply cannot do. See Wainwright v. Goode , 4 64 U.S. 78, 84 (1983) (per curiam) ("the views of the State's highest court with respect to state law are binding on the federal courts"). 5

### he was not granted a full and fair opportunity to pursue his state

coll ateral proceeding"). These are distinct claims, see, e.g. , Ea ster , 37 F.3d at 1346 ("While Arkansas' post-convictio n procedures . . . are not in themselves constitutionally infi rm, the question is whether they are adequate to foreclose Easter's federal habeas corpus petition."), and should be distinguished.
-7-

### There appea rs to be a decisional split within our Circuit on 6 

### whether plain-error review by a state appellate court waives a proced ural default by a habeas petitioner, allowing collatera l review by this Court. Compare Sidebottom v. Delo , 46 F.3d 7 44, 759 (8th Cir.) (applying plain error review), cert denied , 116 S. Ct. 144 (1995); Jones , 20 F.3d at 854 ("Because the state court s reviewed [petitioner's] claim under a plain-error standard, we also applya plain-error standard on habeas review.") with Toney v
. Gammon , 79 F.3d 693, 699 (8th Cir. 1996) ("a properly limite d plain error review by a state court does not cure procedural default"). We are "powerless to resolve this conflict in our decisions, as one panel of this Court is not at liberty to overrule an opinion filed by a nother panel. Only the Court en banc may take such a step. " Kostelec v. State Farm Fire & Cas. Co. , 64 F.3d 1220, 1228 n .8 (8th Cir. 1995) (quotations omitted). "We are, however, free t o ch o[o]se which line of cases to follow," id. , and we choose t o review Mack's claims for plain error.
-8- III. Mack next challenges the district co urt's denial of habeas relief on the basis of several trial errors. Mack alleges that he received an unfai r tria l because two members of the jury were biased, because a witnes s identification of him as the gunman was improperly admitted, and because the pr osecutor improperly called him a killer during closing arguments

. We review the district court's conclusions of law de novo, see Dodd v. Nix , 48 F.3d 1071, 1073 (8th Cir. 1995), and its factual findings for clea r
error. See Fed. R. C iv. P. 52(a). On collateral review of a state court conviction, the findings of fact by the state co urt are generally presumed correct, see 28 U.S.C. § 2254(d), unless not fairly supported by the recor d
as a whole. Mack failed to object to the alleged juror bias o r prose cutorial misconduct at trial, see Mack , 725 S.W.2d at 78, and ou r review of these issues would usually be precluded due to procedura l default. See, e.g. , Jones v. Jerrison , 20 F.3d 849, 854 (8th Cir. 1994). Becaus e the Missouri Court of Appeals considered Mack's allegations fo r pla in error, however, see Mack , 725 S.W.2d at 78, this Court may als o review for plain error. See Jones , 2 0 F.3d at 854. Under this standard, 6 we will grant

### -9-

habeas relief only if "manifest injustice resulted" from the allege d
errors. Blackmon v. White , 825 F.2d 1263, 1266 (8th Cir. 1987).

A. Juror Bias
During voir dire, venireperson Salsman stated that her sister-in

law's mo ther had been shot and raped. When asked whether this had an y effect on the venireperson's feelings about people who have been charged with a cr ime, venireperson Salsman replied, "No, I think I could sit i n judgment." Report & Recommendation at 3. Venireperson Salsman also state d that her cousin was a former police officer who had been shot in the line of duty. Venireperson Royer indicated that a friend's daughter had been beaten to death five years before, and that the killer was on death row. When asked whether this had "any effect on you now in how you see people who are just even cha rged with crimes?", venireperson Royer responded, "I don't know. I couldn 't really say for sure." Report & Recommendation at 4. The trial court d id not sua sponte conduct any further investigation, and Mack's attorney m ade no challenges against these venirepersons. Both Salsman and Royer served as jury members. Mack contends that these jurors harbored actual bias against him, depriving him of a fair trial.

Mack had a constitutional right to an impartial jury. See Irvin v. Dow d , 366 U.S. 717, 722 (1961). For Mack to "maintain a claim that a biased juror prejudiced him, however, [he] must show

### -10-

that the juror was actually biased against him." Goeders v. Hundley , 59 F.3d 73, 75 (8th Cir. 1995). Whether a juror is biased "is a question of fact, and we defer to a state court finding of juror bias if it is fairly supported by the record." Antwine v. Delo , 54 F.3d 1357, 1369 (8th Cir. 1995), cert. denied , 116 S. Ct. 753 (1996).
In considering Mack's allegation of juror bias under review for plain
error, the Missouri Court of Appeals concluded that Mack suffered "n o manifest injustice nor miscarriage of justice." Mack , 725 S.W.2d at 78. We agree with the dis trict court that this finding is fairly supported by the rec ord. Venireperson Salsman indicated during voir dire that he r attitude towards thos e accused of crimes had not been affected by knowing the victim of a crime, and venireperson Royer's response, while equivocal, did not affirmatively state bias. Because Mack has demonstrated no actual juror b ias, the district court properly denied habeas relief for thi s claim.

B. Witness Identification
While recovering in the hospital immediately after the assault, Tracy and Schaffner were shown mug shot books containi ng pictures of persons who frequ ented the Stroll area. Schaffner positively identified Mack' s photograph as his ass ailant, while Tracy was more tentative, stating that he wa s "not a hundred percent sure" that it was his attacker. Report & Recommend ation at 7. Mack objected to the admission of Tracy' s identification of Mack, which was overruled. Both Tracy and Schaffne r identified Mack as the gunman at trial. Mack contends that the trial cour t erred in allowing Tracy's identification of Mack to be used as evidence, depriving him of a fair trial.

In Trevino v. Dahm , 2 F.3d 829, 833 (8th Cir. 1993), this Cour t stated that

### -11- [a] conviction based on eyewitness identification a t trial will be set aside only when pre-trial identification pro cedures were so impermissibly suggestive that they give rise to a ver y subst antial likelihood of irreparable harm. The centra l question is whether, under the totality of the circumstances, the id entification was reliable despite any suggestive o r ina ppropriate pre-trial identification techniques. Neil v

. Biggers , 409 U.S. 188 (1972). The factors to consider i n eva luating the likelihood of misidentification include: th e opportunitya witness has to view the criminal at the time of the crime; the witness's degree of attention; the accuracy of the witness's prior description of the criminal; the level of certainty demonstrated by the witness at the confro ntation; and the length of time between the crime and the confrontation

. Id. at 199-200.

(note omitted; citations omitted). Whether an i dentification was reliable is a question of fact, id. , and "federal courts must accord the state cour t findings of fact a high measure of deference." Id.

It is true that the circumstances su rrounding Tracy's identification of Mack we re not optimal: the assault occurred outside in the predaw n hours, Tra cy had been drinking and using amphetamines, and he was no t absol utelycertain that Mack's photograph was that of the gunman. Th e state trial court, however, concluded that the use at trial of Tracy' s id entification of Mack was not improper, see Trial Tr. at 41, 8 0 (ove rruling Mack's motion in limine to out-of-court identification an d objection to in-court identification), and the t rial court was affirmed on appeal. See Mack , 725 S.W.2d at 78 (holding that "no manifest injustice nor miscarriage of justice" occurred during tria l). Under the totality of circumstances, we conclude that the record suppo rts these findings. Tracy had an opportunity to observe the gunman, who was only two feet away from Tracyat one point. There was nothing suggestive in the photo line-u p presented to Tracy a day after the shooting, and he confronted Mack a t trial only six months after the shooting. While not absolutely certain, Tracy was "almost sure"

### -12-

that Mack was the gunman. Report & Recommendation at 7. Under thes e circumstances, "[a]ny remaining concerns about the suggestiveness of the iden tification procedure or the reliability of the out-of-cour t identification were f or the jury to resolve." Dodd v. Nix , 48 F.3d 1071, 1075 (8th Cir. 1995).

C. Prosecutorial Misconduct
During closing arguments, the prose cutor, referring to Mack, stated that "that man is a k iller. He tried to kill and I'm sure he would do it again given the opportunity." Trial Tr. at 257. The prosecutor late r argued that

[e] veryone who swore and who testified said he's the killer , he's the man who shot, he's the man who tried to ki ll. . . . We are fortunate that we have an opportunity to remove from th e community a killer, a ki ller who is just as frightening to the people who live in and about the Stroll as he should be t o people who come down there who have no business there.
Trial Tr. at 270. Mack did not object to the st atements at trial, and now contends that the statements "inflamed the jury with passion and prejudice against Mr. Mack," Appellant's Br. at 13-14, thereby depriving him of a fair trial.
We agree with Mack that the prosecutor's comments were improper . The prosecutor should not have referred to Mack, on trial for assault, robbery , and armed criminal action, as a "killer"; nor should the prosecutor have referred to his own certainty of Mack's potential dangerousness. In our review, however, "it is not enough that the prosecutors' remarks wer e undesirable or even universally condemned." Darden v. Wainwright , 477 U.S

. 168, 181 (1986) (quotations omitted). Rather, the "relevant question is whether the prosecutors' comments so infected th e trial with unfairness as to make the resulting conviction a denial of due process." Id. (quotation s omitted). Mack bears the

### -13-

heavy burden of showing

that the alleged improprieties were so egregious that the y fatally infected the pro ceedings and rendered his entire trial fundamentallyunfair. Under this standard, a petitioner must sho w that there is a reasonable probability that the erro r complained of affected the outcome of the trial--i.e., tha t absent the alleged impropriety, the verdict probabl y would have been different.

Jones v. Jones , 938 F .2d 838, 844-45 (1991) (quoting Blair v. Armontrout , 916 F.2d 1310, 1324 (8th Cir. 1990), cert. denied , 502 U.S. 825 (1991) ) (internal quotations omitted).

Mack has not met this burden. The prosecutor's statements "did not manipulate or misstate the evidence or implicate other specifi c constitutional rights of the accused such as the right to counsel or the right to remain silen t," Pickens v. Lockhart , 4 F.3d 1446, 1453 (8th Cir. 1993), cert. denied , 114 S. Ct. 1206 (1994), andMack "has made no showing that absent the alleg ed impropriety, the verdict probably would have been different ." Jones , 938 F.2d at 845. Mack made no objection to thes e statements at trial, placing the trial court in the difficult position of either sua sponte reprimanding the prosecutor and giving a correctiv e instruction to the jury, thereby possibly interfering with Mack's own tria l strategy, cf. Darden , 477 U.S. at 183 n.14 (noting that counsel "made the tac tical decision not to object to the improper comments"), and perhap s reinforcing the prosecutor's improper statements, or allowing these fe w comments to go without remark. The trial court chose the latter path, and we perceive no manifest injustice arising from t he trial court's decision. The district court did not err in denying Mack habeas relief on this claim

.

IV.
Finally, Mack contends that the district court erred in

### Mac k is correct that "the state courts did not hold a ful l 7 

### and fair evidentiary hearing" on several of his claims

. Appellant's Br. at 23. This, however, was not due to an error by the state courts, but rather d ue to actions, or inactions, by Mack hi mself. As noted above, Mack failed to object to the allege d ju ror bias or prosecutorial misconduct at trial, depriving th e st ate court of any opportunity to address those issue s contemporaneouslywith additional evidentiary proceedings. Mac k was denied an evidentiary hearing during his Rule 29.15 proc eedings because he failed to make a ti mely request for one, as required by the state rule. See Mack , 775 S.W.2d at 291 ("Movant [Mack] failed to request an evidentiary hearing within the time constraints o f Rule 29.15 (g), therefore the trial court correctly refused to hold a hearing."). We do not require "a federal evidentiary hearin g solely on the basis of a habeas petitioner's negligent failure to develop facts in state-court p roceedings," Keeney v. Tamayo-Reyes , 504 U.S. 1, 8-9 (1992), unless the petitioner "can show cause for his fa ilure to develop the facts in state-court proceedings an d actual prejudice resulting from that failure." Id. at 11. We note that Mack has shown neither cause nor prejudice.
-14- denying his petition without first granting him an evidentiary hearing. While "[g]enerally, a habeas petitioner is entitled to an evidentiar y hea ring in federal court if the petition alleges sufficient grounds fo r release, relevant fac ts are in dispute, and the state courts did not hold
a full an d fair evidentiary hearing," Toney v. Gammon , 79 F.3d 693, 69 7 (8th C ir. 1996) (quotations omitted), Mack's "petition may be summaril y dismissed if the record clearly indicates that [his] claims are eithe r barred from review or without merit." Id.

Summarydismissal of Mack's petition for habeas relief was proper , and Mack w as therefore not entitled to an evidentiary hearing in thi s
case. Under the clear record devel oped in the state trial court, none of

7 the alleged errors by Mack deprived him of a fundamentally fair trial, or other wise rendered his continued incarceration in a Missouri priso n violative "of the Con stitution or laws or treaties of the United States." 28 U .S.C. § 2254(a). The district court did not err in denying him a n evidentiary hearing.

### In the untimely, amended motion, the movant claimed , 1 

### gen erally, that his trial counsel was ineffective for failing t o interview the movant; assigning an inexperienced assistant t o represent movant at the hearing; and failing to intervie w witnesses, at least one of whom would have testified that th e movant could not possibly have committed the crime charged. (Legal File at 13-20.) I agr ee with the majority opinion insofar as it holds tha t 2 

### Mack's convictions were not the result of unreliable identif ication by witnesses.
-15- Accordingly, we affirm the judgment of the district court.
HEANEY, Circuit Judge, dissenting.

I resp ectfully dissent. After Mack filed his pro se motion in th e Missouri circuit cour t, he was appointed post-conviction counsel. Mack's
coun sel, however, promptly abandoned him by failing to file a timel y amende d motion as required under Rule 29.15. The state court's failur e 1 to appoint new post-conviction counsel for Mack violated his constitutiona l right to due process under the established state law. Accordingly, I woul d remand this case to the Missouri state courts so that newly-appointe d
coun sel can raise all of Mack's claims for full consideration by th e circu it court. Alternatively, in reaching the merits of Mack's pro s e 29.15 motion on this appeal, I believe Mack was denied a fair trial becaus e of jur or bias and prosecutorial misconduct. Based on these grave tria l 2 errors, Mack's convic tions cannot stand. The state should either release Mack within a reasonable period of time or grant him a new trial.

I. ABANDONMENT
Beginning with Fields v. State , 572 S.W.2d 477 (Mo. 1978) (en banc), the Missouri Supreme Court has recognized that a pro se movant for habeas corpus r elief is entitled to appointed counsel and that counsel i s obligated to file a timely amended motion

### -16-

incorpor ating all of the movant's claims. Id . at 482. In Fields , th e Missouri Supreme Cour t, considering the predecessor to Rule 29.15, stated that it was

des igned to discover and adjudicate all claims for relief i n one ap plication and avoid successive motions by requirin g motions to be in questionnaire form and by providing for th e appointment of counsel i f the motion presents questions of law or issues of fact and the movant is shown to be indigent

.
Id

. at 480 (emphasis added). By adopting this rule, the state "'assumed complete responsibility for protecting constitut ional rights in accordance with federal principl es.'" Id. at 481 (quoting Anderson, Post-Conviction Relief in Missouri--Five Years Under Amended Rule 27.26, 38 Mo. L. Rev. 21 , 43 (1973)). While praising the new rule, the court observed that

del ayand confusion rather than speed and finality had bee n occasion ed . . . and an excessive number of appeals hav e res ulted from summary denials of pro se motions to vacat e sente nce or judgment without the appointment of counsel , evidentiary hearings or specific findings of fact o r conclusions of law.

Id. at 482.

The cou rt then adopted a three-step process to be followed for al l motions under 27.26: (1) the court must appoint counsel for all indigent movants; (2) appointed counsel will have the opportunity and the obligatio n to amend the motion and to state factually, "in a lawyerlike fashion," all of the movant's claims for relief under Rule 27.26; and (3) based on the amended motion, the trial court shall make findings of fact and conclusion s of law on all issues presented. Id. at 483. Thus, the Missouri Supreme Court determined that to ensure protection of an indigent movant' s constitutional rights, counsel must be appointed and must submit an amende d motion incorporating all of the movant's claims. The

### -17-

burden was no longer to be solely on the movant, but on appointed counsel. The failure of appointed counsel to file an amen ded motion would no longer prejudice the movant. In the words of Judge Sat z of the Missouri Court of Appeals: It [would be] incongruou s, to say the least, to choose counsel for movant and then penalize the movant because cou nsel did not fulfill the duty she was chosen for. In effect, movant' s rights [would be] extinguished without meaningful c onsideration because of the court's choice and not due to any ap parent fault of movant.
Young v. State , 724 S.W.2d 326, 328 (Mo. Ct. App. 1987).

The successor to Rule 27.26, Rule 29.15, was adopted January 1, 1988. Mack filed a pro se, post-conviction motion on F ebruary 4, 1988. A public defender was appointed to represent him on March 17, 1988. Had Mack' s moti on been filed thirty-four days earlier, his case would have bee n decide d under Rule 27.26 and Fields , and he no doubt would have bee n entitled to have newl y-appointed counsel file an amended motion detailing all of his claims. A s it was, the Missouri courts determined that Mack's motion would be decided under the new rule. Although one might question this decis ion because Mack had been convicted while Rule 27.26 was i n effect, I accept the state court's decision for purposes of this appeal.

Neverthe less, Mack is entitled to the same relief under Rule 29.1 5
as he wou ld have been under the former rule. Rule 29.15 continues t o requi re appointed counsel to interview the movant and to file a timel y amended motion. The rule provides:

Co unsel shall ascertain whether sufficient facts support th e gro unds asserted in the motion and whether the movant ha s incl uded all grounds known to him. . . . If the motion doe s not assert sufficient facts, or include all grounds known t o movant, counsel shall fi le an amended motion that sufficiently alleges the additional facts and grounds.

### -18-

Rule 29.15(e) (emphas is added). The only change in the rule, significant to this case, is the length of time during which counsel must take action. Nothing in Rule 29.15 changes counsel's obligations. As the Missour i Supreme Court, sitting en banc, confirmed in Luleff v. State , 807 S.W.2d 495 (Mo. 1991) (en banc), an indigent movant is entitled to appointment of
new counsel to file an amended 29.15 motion if originally appointed counse l abandons his or her duty. Id . at 498.

In Luleff , after the movant filed a pro se motion for post-conv iction relief, the circuit c ourt appointed counsel to represent Luleff. Counsel failed to file an amended motion under Rule 29.15(e) within the appropriat e time frame. Reviewing the conduct of appointed counsel, the court remande d the case to the motion court for:
determination of whether appointed counsel acted to ascertain whether sufficient facts are asserted in the pro se motion and whet her the movant included all grounds known to him. Th e motion court shall make findings on this point. If the court finds that appointed counsel has not performed as required by Rule 29.15(e), and the lack of performance is not t he result of mo vant's action or inaction, the court shall appoint ne w counsel allowing time, if necessary, to amend the p ro se motion as permitted under Rule 29.15(f), and the cause shall proceed anew according to the provisions of the rule.

Id. at 497-98.

In a co mpanion opinion issued the same day as Luleff , the Missour i Supreme court reached the same result and prescr ibed the same remedy. See Sanders v. State , 807 S.W.2d 493, 495 (Mo. 1991) (en banc). The Sanders court u nfortunately confused matters, however, by stating that Lulef f marked a change in course for the Missouri courts, id. at 494, and th e majority cites Sanders as support for that proposition. See Maj. Op. , supra at 6. With all due respect to the Missouri Supreme Court, whic h certainlyreached a correct result in Fields , Luleff , and Sanders , three of the four

### -19-

cas es cited in Sanders do not even involve abandonment. See Young v
. State , 770 S.W.2d 243, 244-5 (Mo. 1989) (en banc) (relief denied because post -conviction counsel filed timely amended post-conviction motion a s minimally required under 29.15); Lingar v. State , 766 S.W.2d 640, 641 (Mo. 1989) (en banc) (same); Sloan v. State , 779 S.W.2d 580, 583 (Mo.) (en banc ) (same), cert. denied , 489 U.S. 1040 (1980). Those cases merely state the general rule that a post-conviction proceeding c annot be used to challenge the effectiveness of counsel in the post-conviction proceeding. They do
no t address the situation in which appointed post-conviction counse l entirely abandons his or her duty to timely file an amended motion. In th e only rele vant cited case, State v. Sweet , 796 S.W.2d 607 (Mo. 1990) (e n banc), the court considered the issues raised ina late amended motion "ex gratia," obviating an y need for a remand. Id . at 615. Thus, Luleff does not mark a change in Missouri's recognition and redress of abandonment by post-conviction counsel. Mack is entitled to nothing more and nothing les s than Luleff. He is e ntitled, according to the Missouri Supreme Court, to have this matter remanded to the circuit court to make the require d findings.
The major ity states that a convicted indigent has no constitutional right to an attorney in a post-conviction proceeding. I do not disput e that as a general statement of the law. As Judge Wollman pointed out in Eas ter v. Endell , 37 F.3d 1343 (8th Cir. 1994), however, "once such a
rem edyis granted by the state, its operation must conform to the du e process requirements of the 14th Amendment." Id. at 1345 (citing Evitts v. Lucey , 469 U.S. 387, 400-01 (1985)). Thus, " 'only a firmly established and r egularly followed state practice' may be interposed by a State t o prevent subsequent review . . . of a federal constitutional claim." Id. (quoting James v. Kentucky , 466 U.S. 341, 348-51 (1984)). As discusse d above, the Missouri Supreme Court en banc has consistently applied rules 27.26 and 29.15 to re quire that appointed, post-conviction counsel file a timely

### -20-

amended motion, and if post-conviction counsel f ails to do so, a movant is entitled to have new counsel appointed.

The m ajority contends that if a state incorrectly applies its ow n procedur al rules, as it has clearly done in this case, a movant is no t entitled to relief. In other words, if a partic ular movant is unfortunate enough to have his case presented to a court that disregards established law, he is not entitled to relief. But our cour t, as indicated by Easter , holds to the contrary. This case presents even a stronger case than Easte r becaus e here, the Missouri Supreme Court has not inconsistently applie d Rule 29.15; rather when a post-conviction counsel has abandoned his client , the court has consistentlyappointed new post-conviction counsel.

I do not believe that we have any alternative but to remand to th e district c ourt with directions to remand to the state court to permi t newly-appointed counsel to file an amended 29.15 motion within thirty days of the appointment.

II. TRIAL ERRORS

The state courts and the federal district court did not addres s Mack's abandonment argument. Rather, they considered--and rejected--Mack' s claims as raised in his original, pro se motion, including that (1) tw o biased persons were p ermitted to sit on the jury, and (2) the prosecuting attorneyimproperly commented that Mack was a "killer" who needed to b e convicted in order to prevent him from killing a gain. The majority agreed with the state and federal courts and determined that these claims lac k merit. I disagree.

A. Juror Bias

The majo rity recognizes that Mack has a constitutional right to a n impartial jury. They also accurately characterize the record

### -21-

with respect to the t wo jurors whom Mack's trial counsel failed to strike for bias. Conceding that whether the two jurors were biased against Mack is a question of fact, I am unable to agree with the majority that th e state court's finding of no bias was fairly supported by the record.

When venireperson Royer stated that a friend's daughter had bee n beaten to death five years earlier, she was aske d whether this event would have any effect on her view of people who are charged with crimes. Sh e answered, "I don't kn ow. I really couldn't say for sure." (Trial Tr. at 33.) At this point, neither Mack's counsel nor the court made furthe r inquiry. Forgetting for a moment that further inquiry should have bee n made, the venireperson's answer alone indicated that she was not sure in her own mind whether she could be fair. Her expressed uncertainty as to her impartiality, without additional comment, constituted a sufficien t basis for her disqualification from the jury. Similarly, venireperso n Salsman informed counsel that her sister-in-law' s mother had been shot and raped and that her cousin, a former police officer, had been shot in the line of dut y. ( Id . at 31, 35.) Salsman expressed doubt that thes e exper iences would affect her ability to serve on the jury, stating, " I think I could sit in judgment." ( Id . at 31.) Yet her bias, based on the experiences alone, was evident from the record.

The majority concludes that Mack has not demonstrated actual bias

. Not only do I disagree with their conclusion, but I question how or when Mack could have attempted to further demonstrate the jurors' bias. Th e
rem edyfor allegations of juror partiality is an evidentiary hearing a t which a d efendant has an opportunity to show actual bias. Smith v

. Phillips , 455 U.S. 209, 215 (1981). The majority concedes that Mack was
never given such a hearing. See Maj. Op., supra at 13 n.7. They argue, however, that it was Mack's failure to make a timely request that prevente d him from a hearing inthe state court. Id . As discussed above, Mack was abandoned by

### -22-

his post-conviction counsel. At a minimum, we should remand this matter to the state courts f or an appropriate evidentiary hearing on juror bias.

B. Prosecutorial Misconduct

I agree with the majority that the comments made by the prosecuto r dur ing closing arguments were clearly improper. Referring to Mack, th e prosecutor stated:
[T]hat man is a killer. He tried to kill and I'm sure he would do it again given the opportunity. . . . Everyone who swore and who testified said he's the killer, he's the man wh o shot, he's the man who tried to kil l. . . . We are fortunate that we have an opportunity to remove from the community a killer, a killer who is just as frighteni ng to the people who live in and about the St roll as he should be to people who come down there wh o have no business there.
(Trial Tr. at 257, 27 0.) In my view, however, these comments so infected the trial with unfair ness as to make the resulting conviction a denial of due process.

The prosecutor made repeated references to Mack as a "killer, " despite the fact that Mack was not on trial for murder or attempted murder

. In addition to the in appropriate characterizations of Mack as a "killer," the prosecutor improperly injected fear into the jurors' minds, urging the m that if t hey did not take advantage of the opportunity to lock up th e "frightening" Mack, there is no telling who may be his next victim. The prosecutor even buttressed this general fear of Mack with the explici t statement, "I'm sure [Mack would kill] again giv en the opportunity." Such person al opinions by a prosecutor about a defendant's future crimina l proclivitycannot be tolerated. See United States v. Young , 470 U.S. 1, 8 (1985) (prosecutor must refrain from interjecting personal beliefs into the presentation).

### The majorit y suggests that Mack's trial counsel's failure to 3 

### object to the prosecutor's com ments may have been a trial strategy with which the court may not have wanted to interfere. See infra at 12. I cannot accept the majority's suggestion. In any event, these arguments, again, could have been explored in the context of an evidentiary hearing--a hearing Mack was never given.

-23- Not only were these comments improper and prejudicial to Mack's case, but nothing was done by either counsel or the court to minimize thei r prejudicial effect. See Miller v. Lockhart , 65 F.3d 676, 683-684 (8t h 3 Cir. 1995) (in determining whether a prosecutor's improper closing argumen t rises to the level of a due-process violation, we must consider whethe r counsel or the court cured the erroneous argumen ts). Without any curative
measures taken by the court or counsel, I cannot believe that the egregiou s statements made by the prosecutor did not affect the outcome of the trial.

CONCLUSION

For the above-stated reasons, I dissent from the majority opinion

. Mack clearly was abandoned by his post-convictio n counsel and, at minimum, I would r emand this case to the state courts for appointment of ne w
counse l. Alternatively, I would vacate Mack's convictions because th e bi ased jury and the prosecutor's improper statements violated Mack' s constitutional right to a fair trial.

A true copy.

Attest:

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