The Honorable George F. Gunn, United States District Judge

1

for the Eastern District of Missouri, adopting the report and

recommendation of the Honorable Lawrence O. Davis, United States

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 habeas corpus under 28 U.S.C. § 2254. Mack argues that the district

court erred in (1) failing to provide habeas relief on the ground that Mack

had been abandoned by state postconviction counsel, (2) denying habeas

relief on the merits of three alleged trial errors, and (3) failing to hold

an evidentiary hearing. We affirm.
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I.

In the early morning of July 9, 1985, Michael Tracy and Robert

Schaffner, 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 and

Schaffner 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 counts of first degree robbery,

and one count of armed criminal action.

Mack entered a plea of not guilty, and the case proceeded to trial

before a jury in January 1986. Mack was subsequently convicted on all

counts. He was sentenced to two consecutive terms of thirty years

imprisonment for assault, two concurrent terms of twenty years imprisonment

for robbery, and a consecutive term of life imprisonment for armed criminal

action. Mack's convictions were affirmed on direct appeal. See State v.

Mack, 725 S.W.2d 78 (Mo. App. 1987) (per curiam).

On February 4, 1988, Mack filed a pro se motion for postconviction

relief pursuant to Missouri Rule 29.15, arguing that he had received

ineffective assistance 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 the

motion, and the appointed counsel withdrew. Because Rule 29.15(f) required

Mack's retained counsel to file an amended motion within thirty days of his

March 25, 1988, appearance, the Rule 29.15 court notified Mack on May 26,

1988, that no amended motion would be accepted. On June 3, 1988, Mack

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 these new

allegations was that Mack's trial attorney presented an alibi

defense using the wrong date.

 The only change 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 rehearing

en banc by this Court in Abdullah v. Groose, 75 F.3d 408 (8th Cir.)

(en banc), cert. denied, 64 U.S.L.W. 3779 (May 20, 1996).

 Mack also moves this Court to modify the record on appeal

4

pursuant to Federal Rule of Appellate Procedure 10(e) to include a

transcript of his June 10, 1988 Rule 29.15 hearing, his habeas

petition to the Missouri Supreme Court, and the Missouri Supreme

Court's order denying relief. This motion is granted.

-3-

motion, and denied postconviction relief. Mack's attorney filed a second

motion on June 29, 1988, and the Rule 29.15 court refused to consider the 2

untimely second motion. The Missouri Court of Appeals affirmed both the

refusal to consider the second motion and the denial of postconviction

relief. See Mack v. State, 775 S.W.2d 288, 290-92 (Mo. App. 1989).

On January 31, 1994, Mack petitioned the Missouri Supreme Court for

a writ of habeas corpus, which was denied on February 22, 1994. Mack

brought the instant habeas petition before the district court on April 20,

1994, and the case was referred to a magistrate judge for a report and

recommendation. Without specifically addressing Mack's claim that his

postconviction counsel had abandoned him, the magistrate judge recommended

that the habeas petition be denied. Following consideration of objections,

the district court declined to hold an evidentiary hearing and adopted the

report and recommendation 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 state

postconviction counsel, and that the district court erred in not 
-4-

granting habeas relief so that Mack could secure a second Rule 29.15

hearing in a Missouri state court. In Luleff v. State, 807 S.W.2d 495 (Mo.

banc. 1991), the Missouri Supreme Court recognized a limited right to

effective assistance of counsel in postconviction hearings. Where the

record of a postconviction proceeding "shows not mere ineffectiveness but

such a total default in carrying out the obligations imposed upon appointed

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 hearing. Because the filing of

an amended petition out of time can constitute abandonment, see Sanders v.

State, 807 S.W.2d 493, 494-95 (Mo. banc. 1991), Mack argues that he was

denied due process of law and equal protection because he was not granted

a second hearing.

Although Mack referred to abandonment by postconviction counsel in

both his petition for habeas relief, see Pet. at 5p, and in a memorandum

of law supporting the petition, see Mem. at 9 (April 20, 1994), the

district court did not construe Mack's petition as a claim of abandonment

by postconviction counsel. Rather, the district court considered this as

a complaint that the state court erred in "summarily enter[ing] an order

denying petitioner the chance to amend his pro se Rule 29.15 motion or to

grant him a hearing without first notifying petitioner of its intent to do

so." Report & Recommendation at 9. The appellee argues that we are

precluded from considering this argument. See, e.g., Mellott v. Purkett,

63 F.3d 781, 784 (8th Cir. 1995) (this Court may not "consider legal

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 drafting

skills. The stakes in habeas cases are too high for a game of legal

'gotcha.'" Schneider v. Delo, 85 F.3d 335, 339 (8th Cir. 1996) (discussing

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 raised 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 has failed to state a cognizable claim for habeas relief. It

is well settled that "[t]here is no constitutional right to an attorney in

state post-conviction proceedings," Coleman v. Thompson, 501 U.S. 722, 752

(1991), and that "[c]onsequently, a petitioner cannot claim

constitutionally ineffective assistance of counsel in such proceedings."

Id. Mack is therefore left only with a claim that the state court erred

by incorrectly applying its own procedural rule in a postconviction

hearing--a consideration beyond this Court's review. See Schleeper v.

Groose, 36 F.3d 735, 737 (8th Cir. 1994) ("A federal court may not reexamine a state court's interpretation and application of state law.");

Smith v. Lockhart, 882 F.2d 331, 334 (8th Cir. 1989) (finding no due

process violation where there was only an "alleged violation of a state

rule concerning post-conviction proceedings, an area in which a defendant

is not necessarily afforded constitutional protections"), cert. denied, 493

U.S. 1028 (1990).

While a contention that a state court has applied a procedural rule

arbitrarily to a defendant'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 significant

discretionary elements, it must nonetheless act in accord with the dictates

of the Constitution--and, in particular, in accord with the Due Process

Clause"), such a contention could not be made under the facts of this case.

The rule allegedly violated by Mack's Rule 29.15 court did not even exist

until long after the decision had become final. The Luleff opinion,

creating the abandonment rule, was filed on April 9, 1991,
 We note that the dissent relies on Easter v. Endell, 37 F.3d 5

1343 (8th Cir. 1994), for the proposition that "only a firmly

established and regularly followed state practice may be interposed

by a State to prevent subsequent review of a federal constitutional

claim." Dissenting Op. at 18 (quotations and ellipsis omitted).

While this is undoubtedly correct, 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 was

ineffective, and therefore he has not had to show that an

intervening state procedural rule was inadequate to bar federal

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 his Rule

29.15 hearing constitutes a violation of his federal constitutional

right to due process. See Appellant's Br. at 6 ("Mr. Mack was

deprived of his Fifth, Sixth, and Fourteenth Amendment rights when

-6-

while Mack's unsuccessful appeal of the denial of his Rule 29.15 petition

was decided on June 27, 1989, almost two years earlier. Mack's precise

argument, therefore, is not even that the state courts violated an existent

state procedural rule, but that in adhering to settled state law, the

courts deprived him of due process and equal protection by failing to

anticipate future state law developments. We find this argument unsound.

The dissent asserts that Missouri courts consistently applied the

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 has 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 the claims are

attributable entirely to inaction of counsel. Our courts have

traditionally held that postconviction proceedings may not

under any circumstances be used to challenge the effectiveness

of postconviction counsel.

The dissent would have us ignore this clear statement of Missouri state law

by the highest Missouri state court. See Dissenting Op. at 17-18. This

we simply cannot do. See Wainwright v. Goode, 464 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

collateral proceeding"). These are distinct claims, see, e.g.,

Easter, 37 F.3d at 1346 ("While Arkansas' post-conviction

procedures . . . are not in themselves constitutionally infirm, the

question is whether they are adequate to foreclose Easter's federal

habeas corpus petition."), and should be distinguished.

-7-
 There appears to be a decisional split within our Circuit on 6

whether plain-error review by a state appellate court waives a

procedural default by a habeas petitioner, allowing collateral

review by this Court. Compare Sidebottom v. Delo, 46 F.3d 744, 759

(8th Cir.) (applying plain error review), cert denied, 116 S. Ct.

144 (1995); Jones, 20 F.3d at 854 ("Because the state courts

reviewed [petitioner's] claim under a plain-error standard, we also

apply a plain-error standard on habeas review.") with Toney v.

Gammon, 79 F.3d 693, 699 (8th Cir. 1996) ("a properly limited 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 another 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 to

cho[o]se which line of cases to follow," id., and we choose to

review Mack's claims for plain error.

-8-

III.

Mack next challenges the district court's denial of habeas relief on

the basis of several trial errors. Mack alleges that he received an unfair

trial because two members of the jury were biased, because a witness

identification of him as the gunman was improperly admitted, and because

the prosecutor 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 clear

error. See Fed. R. Civ. P. 52(a). On collateral review of a state court

conviction, the findings of fact by the state court are generally presumed

correct, see 28 U.S.C. § 2254(d), unless not fairly supported by the record

as a whole. Mack failed to object to the alleged juror bias or

prosecutorial misconduct at trial, see Mack, 725 S.W.2d at 78, and our

review of these issues would usually be precluded due to procedural

default. See, e.g., Jones v. Jerrison, 20 F.3d 849, 854 (8th Cir. 1994).

Because the Missouri Court of Appeals considered Mack's allegations for

plain error, however, see Mack, 725 S.W.2d at 78, this Court may also

review for plain error. See Jones, 20 F.3d at 854. Under this standard, 6

we will grant 
-9-

habeas relief only if "manifest injustice resulted" from the alleged

errors. Blackmon v. White, 825 F.2d 1263, 1266 (8th Cir. 1987).

A. Juror Bias

 During voir dire, venireperson Salsman stated that her sister-inlaw's mother had been shot and raped. When asked whether this had any

effect on the venireperson's feelings about people who have been charged

with a crime, venireperson Salsman replied, "No, I think I could sit in

judgment." Report & Recommendation at 3. Venireperson Salsman also stated

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 charged with crimes?", venireperson Royer responded, "I

don't know. I couldn't really say for sure." Report & Recommendation at

4. The trial court did not sua sponte conduct any further investigation,

and Mack's attorney made 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.

Dowd, 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 "no

manifest injustice nor miscarriage of justice." Mack, 725 S.W.2d at 78.

We agree with the district court that this finding is fairly supported by

the record. Venireperson Salsman indicated during voir dire that her

attitude towards those 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 bias, the district court properly denied habeas relief for this

claim. 

B. Witness Identification

While recovering in the hospital immediately after the assault, Tracy

and Schaffner were shown mug shot books containing pictures of persons who

frequented the Stroll area. Schaffner positively identified Mack's

photograph as his assailant, while Tracy was more tentative, stating that

he was "not a hundred percent sure" that it was his attacker. Report &

Recommendation at 7. Mack objected to the admission of Tracy's

identification of Mack, which was overruled. Both Tracy and Schaffner

identified Mack as the gunman at trial. Mack contends that the trial court

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 Court

stated that
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[a] conviction based on eyewitness identification at trial will

be set aside only when pre-trial identification procedures were

so impermissibly suggestive that they give rise to a very

substantial likelihood of irreparable harm. The central

question is whether, under the totality of the circumstances,

the identification was reliable despite any suggestive or

inappropriate pre-trial identification techniques. Neil v.

Biggers, 409 U.S. 188 (1972). The factors to consider in

evaluating the likelihood of misidentification include: the

opportunity a 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 confrontation; and

the length of time between the crime and the confrontation.

Id. at 199-200.

(note omitted; citations omitted). Whether an identification was reliable

is a question of fact, id., and "federal courts must accord the state court

findings of fact a high measure of deference." Id.

It is true that the circumstances surrounding Tracy's identification

of Mack were not optimal: the assault occurred outside in the predawn

hours, Tracy had been drinking and using amphetamines, and he was not

absolutely certain that Mack's photograph was that of the gunman. The

state trial court, however, concluded that the use at trial of Tracy's

identification of Mack was not improper, see Trial Tr. at 41, 80

(overruling Mack's motion in limine to out-of-court identification and

objection to in-court identification), and the trial court was affirmed on

appeal. See Mack, 725 S.W.2d at 78 (holding that "no manifest injustice

nor miscarriage of justice" occurred during trial). Under the totality of

circumstances, we conclude that the record supports these findings. Tracy

had an opportunity to observe the gunman, who was only two feet away from

Tracy at one point. There was nothing suggestive in the photo line-up

presented to Tracy a day after the shooting, and he confronted Mack at

trial only six months after the shooting. While not absolutely certain,

Tracy was "almost sure" 
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that Mack was the gunman. Report & Recommendation at 7. Under these

circumstances, "[a]ny remaining concerns about the suggestiveness of the

identification procedure or the reliability of the out-of-court

identification were for the jury to resolve." Dodd v. Nix, 48 F.3d 1071,

1075 (8th Cir. 1995). 

C. Prosecutorial Misconduct

 During closing arguments, the prosecutor, referring to Mack, stated

that "that man is a killer. He tried to kill and I'm sure he would do it

again given the opportunity." Trial Tr. at 257. The prosecutor later

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 kill. . . . We

are fortunate that we have an opportunity to remove from the

community a killer, a killer who is just as frightening to the

people who live in and about the Stroll as he should be to

people who come down there who have no business there.

Trial Tr. at 270. Mack did not object to the statements 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 were

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 the trial with unfairness as

to make the resulting conviction a denial of due process." Id. (quotations

omitted). Mack bears the 
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heavy burden of showing 

that the alleged improprieties were so egregious that they

fatally infected the proceedings and rendered his entire trial

fundamentally unfair. Under this standard, a petitioner must

show that there is a reasonable probability that the error

complained of affected the outcome of the trial--i.e., that

absent the alleged impropriety, the verdict probably 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 specific

constitutional rights of the accused such as the right to counsel or the

right to remain silent," Pickens v. Lockhart, 4 F.3d 1446, 1453 (8th Cir.

1993), cert. denied, 114 S. Ct. 1206 (1994), and Mack "has made no showing

that absent the alleged impropriety, the verdict probably would have been

different." Jones, 938 F.2d at 845. Mack made no objection to these

statements at trial, placing the trial court in the difficult position of

either sua sponte reprimanding the prosecutor and giving a corrective

instruction to the jury, thereby possibly interfering with Mack's own trial

strategy, cf. Darden, 477 U.S. at 183 n.14 (noting that counsel "made the

tactical decision not to object to the improper comments"), and perhaps

reinforcing the prosecutor's improper statements, or allowing these few

comments to go without remark. The trial court chose the latter path, and

we perceive no manifest injustice arising from the 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 
 Mack is correct that "the state courts did not hold a full

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 due to actions, or inactions, by Mack

himself. As noted above, Mack failed to object to the alleged

juror bias or prosecutorial misconduct at trial, depriving the

state court of any opportunity to address those issues

contemporaneously with additional evidentiary proceedings. Mack

was denied an evidentiary hearing during his Rule 29.15 proceedings

because he failed to make a timely 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 of

Rule 29.15 (g), therefore the trial court correctly refused to hold

a hearing."). We do not require "a federal evidentiary hearing

solely on the basis of a habeas petitioner's negligent failure to

develop facts in state-court proceedings," Keeney v. Tamayo-Reyes,

504 U.S. 1, 8-9 (1992), unless the petitioner "can show cause for

his failure to develop the facts in state-court proceedings and

actual prejudice resulting from that failure." Id. at 11. We note

that Mack has shown neither cause nor prejudice. 

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denying his petition without first granting him an evidentiary hearing. 

While "[g]enerally, a habeas petitioner is entitled to an evidentiary

hearing in federal court if the petition alleges sufficient grounds for

release, relevant facts are in dispute, and the state courts did not hold

a full and fair evidentiary hearing," Toney v. Gammon, 79 F.3d 693, 697

(8th Cir. 1996) (quotations omitted), Mack's "petition may be summarily

dismissed if the record clearly indicates that [his] claims are either

barred from review or without merit." Id.

Summary dismissal of Mack's petition for habeas relief was proper,

and Mack was therefore not entitled to an evidentiary hearing in this

case. Under the clear record developed in the state trial court, none of 7

the alleged errors by Mack deprived him of a fundamentally fair trial, or

otherwise rendered his continued incarceration in a Missouri prison

violative "of the Constitution or laws or treaties of the United States."

28 U.S.C. § 2254(a). The district court did not err in denying him an

evidentiary hearing.
 In the untimely, amended motion, the movant claimed,

1

generally, that his trial counsel was ineffective for failing to

interview the movant; assigning an inexperienced assistant to

represent movant at the hearing; and failing to interview

witnesses, at least one of whom would have testified that the

movant could not possibly have committed the crime charged. (Legal

File at 13-20.)

 I agree with the majority opinion insofar as it holds that

2

Mack's convictions were not the result of unreliable identification

by witnesses.

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Accordingly, we affirm the judgment of the district court.

HEANEY, Circuit Judge, dissenting.

I respectfully dissent. After Mack filed his pro se motion in the

Missouri circuit court, he was appointed post-conviction counsel. Mack's

counsel, however, promptly abandoned him by failing to file a timely

amended motion as required under Rule 29.15. The state court's failure

1

to appoint new post-conviction counsel for Mack violated his constitutional

right to due process under the established state law. Accordingly, I would

remand this case to the Missouri state courts so that newly-appointed

counsel can raise all of Mack's claims for full consideration by the

circuit court. Alternatively, in reaching the merits of Mack's pro se

29.15 motion on this appeal, I believe Mack was denied a fair trial because

of juror bias and prosecutorial misconduct. Based on these grave trial

2

errors, Mack's convictions 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 relief is entitled to appointed counsel and that counsel is

obligated to file a timely amended motion 
-16-

incorporating all of the movant's claims. Id. at 482. In Fields, the

Missouri Supreme Court, considering the predecessor to Rule 29.15, stated

that it was 

designed to discover and adjudicate all claims for relief in

one application and avoid successive motions by requiring

motions to be in questionnaire form and by providing for the

appointment of counsel if 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 constitutional rights in accordance

with federal principles.'" 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

delay and confusion rather than speed and finality had been

occasioned . . . and an excessive number of appeals have

resulted from summary denials of pro se motions to vacate

sentence or judgment without the appointment of counsel,

evidentiary hearings or specific findings of fact or

conclusions of law.

Id. at 482. 

The court then adopted a three-step process to be followed for all

motions under 27.26: (1) the court must appoint counsel for all indigent

movants; (2) appointed counsel will have the opportunity and the obligation

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 conclusions

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 amended

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 amended motion would no longer

prejudice the movant. In the words of Judge Satz of the Missouri Court of

Appeals:

It [would be] incongruous, to say the least, to choose counsel

for movant and then penalize the movant because counsel did not

fulfill the duty she was chosen for. In effect, movant's

rights [would be] extinguished without meaningful consideration

because of the court's choice and not due to any apparent 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 February 4, 1988. A public

defender was appointed to represent him on March 17, 1988. Had Mack's

motion been filed thirty-four days earlier, his case would have been

decided under Rule 27.26 and Fields, and he no doubt would have been

entitled to have newly-appointed counsel file an amended motion detailing

all of his claims. As it was, the Missouri courts determined that Mack's

motion would be decided under the new rule. Although one might question

this decision because Mack had been convicted while Rule 27.26 was in

effect, I accept the state court's decision for purposes of this appeal.

Nevertheless, Mack is entitled to the same relief under Rule 29.15

as he would have been under the former rule. Rule 29.15 continues to

require appointed counsel to interview the movant and to file a timely

amended motion. The rule provides:

Counsel shall ascertain whether sufficient facts support the

grounds asserted in the motion and whether the movant has

included all grounds known to him. . . . If the motion does

not assert sufficient facts, or include all grounds known to

movant, counsel shall file an amended motion that sufficiently

alleges the additional facts and grounds.
-18-

Rule 29.15(e) (emphasis 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 Missouri

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 counsel

abandons his or her duty. Id. at 498.

In Luleff, after the movant filed a pro se motion for post-conviction

relief, the circuit court appointed counsel to represent Luleff. Counsel

failed to file an amended motion under Rule 29.15(e) within the appropriate

time frame. Reviewing the conduct of appointed counsel, the court remanded

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

whether the movant included all grounds known to him. The

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 the result of

movant's action or inaction, the court shall appoint new

counsel allowing time, if necessary, to amend the pro 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 companion opinion issued the same day as Luleff, the Missouri

Supreme court reached the same result and prescribed the same remedy. See

Sanders v. State, 807 S.W.2d 493, 495 (Mo. 1991) (en banc). The Sanders

court unfortunately confused matters, however, by stating that Luleff

marked a change in course for the Missouri courts, id. at 494, and the

majority cites Sanders as support for that proposition. See Maj. Op.,

supra at 6. With all due respect to the Missouri Supreme Court, which

certainly reached a correct result in Fields, Luleff, and Sanders, three

of the four 
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cases 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 as

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 cannot be used to challenge

the effectiveness of counsel in the post-conviction proceeding. They do

not address the situation in which appointed post-conviction counsel

entirely abandons his or her duty to timely file an amended motion. In the

only relevant cited case, State v. Sweet, 796 S.W.2d 607 (Mo. 1990) (en

banc), the court considered the issues raised in a late amended motion "ex

gratia," obviating any 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 less

than Luleff. He is entitled, according to the Missouri Supreme Court, to

have this matter remanded to the circuit court to make the required

findings. 

The majority states that a convicted indigent has no constitutional

right to an attorney in a post-conviction proceeding. I do not dispute

that as a general statement of the law. As Judge Wollman pointed out in

Easter v. Endell, 37 F.3d 1343 (8th Cir. 1994), however, "once such a

remedy is granted by the state, its operation must conform to the due

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 regularly followed state practice' may be interposed by a State to

prevent subsequent review . . . of a federal constitutional claim." Id.

(quoting James v. Kentucky, 466 U.S. 341, 348-51 (1984)). As discussed

above, the Missouri Supreme Court en banc has consistently applied rules

27.26 and 29.15 to require that appointed, post-conviction counsel file a

timely 
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amended motion, and if post-conviction counsel fails to do so, a movant is

entitled to have new counsel appointed.

The majority contends that if a state incorrectly applies its own

procedural rules, as it has clearly done in this case, a movant is not

entitled to relief. In other words, if a particular movant is unfortunate

enough to have his case presented to a court that disregards established

law, he is not entitled to relief. But our court, as indicated by Easter,

holds to the contrary. This case presents even a stronger case than Easter

because here, the Missouri Supreme Court has not inconsistently applied

Rule 29.15; rather when a post-conviction counsel has abandoned his client,

the court has consistently appointed new post-conviction counsel.

I do not believe that we have any alternative but to remand to the

district court with directions to remand to the state court to permit

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 address

Mack's abandonment argument. Rather, they considered--and rejected--Mack's

claims as raised in his original, pro se motion, including that (1) two

biased persons were permitted to sit on the jury, and (2) the prosecuting

attorney improperly commented that Mack was a "killer" who needed to be

convicted in order to prevent him from killing again. The majority agreed

with the state and federal courts and determined that these claims lack

merit. I disagree.

A. Juror Bias

The majority recognizes that Mack has a constitutional right to an

impartial jury. They also accurately characterize the record
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with respect to the two 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 the

state court's finding of no bias was fairly supported by the record.

When venireperson Royer stated that a friend's daughter had been

beaten to death five years earlier, she was asked whether this event would

have any effect on her view of people who are charged with crimes. She

answered, "I don't know. I really couldn't say for sure." (Trial Tr. at

33.) At this point, neither Mack's counsel nor the court made further

inquiry. Forgetting for a moment that further inquiry should have been

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 sufficient

basis for her disqualification from the jury. Similarly, venireperson

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 duty. (Id. at 31, 35.) Salsman expressed doubt that these

experiences 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. The

remedy for allegations of juror partiality is an evidentiary hearing at

which a defendant 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 prevented

him from a hearing in the state court. Id. As discussed above, Mack was

abandoned by
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his post-conviction counsel. At a minimum, we should remand this matter

to the state courts for an appropriate evidentiary hearing on juror bias.

B. Prosecutorial Misconduct

I agree with the majority that the comments made by the prosecutor

during closing arguments were clearly improper. Referring to Mack, the

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 who shot, he's

the man who tried to kill. . . . We are fortunate that we have

an opportunity to remove from the community a killer, a killer

who is just as frightening to the people who live in and about

the Stroll as he should be to people who come down there who

have no business there.

(Trial Tr. at 257, 270.) In my view, however, these comments so infected

the trial with unfairness 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 inappropriate characterizations of Mack as a "killer,"

the prosecutor improperly injected fear into the jurors' minds, urging them

that if they did not take advantage of the opportunity to lock up the

"frightening" Mack, there is no telling who may be his next victim. The

prosecutor even buttressed this general fear of Mack with the explicit

statement, "I'm sure [Mack would kill] again given the opportunity." Such

personal opinions by a prosecutor about a defendant's future criminal

proclivity cannot be tolerated. See United States v. Young, 470 U.S. 1,

8 (1985) (prosecutor must refrain from interjecting personal beliefs into

the presentation).
 The majority suggests that Mack's trial counsel's failure to 3

object to the prosecutor's comments 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.

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Not only were these comments improper and prejudicial to Mack's case,

but nothing was done by either counsel or the court to minimize their

prejudicial effect. See Miller v. Lockhart, 65 F.3d 676, 683-684 (8th

3

Cir. 1995) (in determining whether a prosecutor's improper closing argument

rises to the level of a due-process violation, we must consider whether

counsel or the court cured the erroneous arguments). Without any curative

measures taken by the court or counsel, I cannot believe that the egregious

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-conviction counsel and, at minimum,

I would remand this case to the state courts for appointment of new

counsel. Alternatively, I would vacate Mack's convictions because the

biased 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.