### The Honorab le Carol E. Jackson, United States District Judge 1 

### for the Eastern District of Missouri. The Honorable David D. Noce, United States Magistrate Judge 2 

### for the Eastern District of Missouri. ___________ No. 95-3585

___________ Percy E. Cooksey, III, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Paul K. Delo, * * Appellee. *

___________ Submitted: May 17, 1996 Filed: September 10, 1996

___________ Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

___________ BOWMAN, Circuit Judge.

Percy E. Cooksey III is a Missouri prisoner serving a sentence o f life plus sixty years after being convicted by a jury of the unlawful use of a weapon, kidnapping, forcible rape, first degree robbery, and thre e counts of armed criminal action. He applied to the District Court for a 1 writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994). The District Court, a dopting the report and recommendation of a Magistrate Judge, 2 denied the application. Cooksey timely appeals, and we affirm.

On F ebruary 6, 1987, Cooksey attended a prayer service at th e Greater Faith Baptist Church in St. Louis, Missouri. During a

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prayer circle, Cookse y took out an eighteen-inch knife and held it to the throat of the woman n ext to him. After terrorizing the captive audience, Cookseywithdrew to a vacant building where he raped the woman and stole her watch. Cooksey did not challenge the suffic iency of the evidence when he appeale d his convictions in state court. Missouri v. Cooksey , 78 7 S.W.2d 324, 325 (Mo. Ct. App. 1990), cert. denied , 498 U.S. 1032 (1991). Cooksey also did not seek post-conviction relief in state court.

In his petition for a writ of habeas corpus, Cooksey advanced th e following five claims for relief: (1) the state trial court violated the Due Process Clause when it denied Cooksey's moti on for disclosure of grand jury de mographic data, which Cooksey sought in order to challenge th e method used to select grand jurors in St. Louis; (2) the state tria l court's local rule regarding probation recommendations violates the Du e Process Clause and the Sixth Amendment right to a jury trial; (3) the stat e tria l court violated the Due Process Clause when it based a sentenc e enhancement on a prio r void conviction; (4) the state prosecutor violated the Due Process Clause when the prosecutor preve nted Cooksey from deposing the principal female victim of his crimes; and (5) the cumulative effect of the foregoing constitutional violations resulted in a denial of both du e pro cess and effective assistance of counsel. On appeal, Cooksey argue s that the District Cou rt erred when it rejected his first four claims and,
a fortior i , rejected his fifth claim as well. Only the first issu e requires extensive analysis, and we now turn to that issue.

Pr ior to trial Cooksey filed a motion to dismiss the indictment , all eging that the grand jury had not been selected from a fair cross

sectio n of the community because certain racial groups had bee n systematically exclud ed. See O'Neal v. Delo , 44 F.3d 655, 662 (8th Cir.) (defining constitutional fair cross-section requirements), cert. denied , 116 S. C t. 129 (1995). At the same time, Cooksey sought disclosure o f demographic data relating to

### The motion to strike the information alleges that th e 3 

### info rmation is "contrary to the . . . due process rights o f Def endant" but only to the extent that the information wa s untimely. Missouri v. Cooksey , No. 871-0427, Motion to Dism iss and Strike Information at 1 (Cir. Ct. St. Louis Aug. 1, 1988). N o mention is made of any other due process rights.
-3- individuals selected for grand jury service during the last ten years. Th e state trial court denied the motion for disclosure of demographi c informat ion. Before the court ruled on the motion to dismiss th e indictment, the state filed a motion to substitute an information for the indictment

. Cooksey opposed the state's motion by filing a motion t o dismiss and strike th e information. The sole basis for his opposition to the filin g of the information was that the motion to substitute wa s untimely. The court granted the state's motion to substitute, and Cooksey

3 was tried on the info rmation. Cooksey did not make any further objection to the information nor did he appeal the trial court's denial of the motio n to strike the information.
Under Missouri law, "an information charging the same offense c harged in [a defective] indictment may be substituted t herefor at any time before the jury is sworn." Mo. Rev. Stat § 545.300 (1994). The decision t o substitute an informa tion is within the discretion of the prosecutor, and the co urt has no power to control that discretion. Missouri ex rel

. Lodwick v. Cottey , 497 S.W.2d 873, 880 (Mo. Ct. App. 1973). Additionally, the prosecutor may substitute an information for an indictment even if the court has not issued an order finding the indictment to be defective

. Miss ouri v. Green , 305 S.W.2d 863, 868 (Mo. 1957). Missouri Revise d Sta tutes § 544.250 provides that "a preliminary examination shall in n o
case be required . . . in any case where an information has bee n substit uted for an indictment as authorized by section 545.300." Th e Missouri Supreme Court in Green held that this language evinces " a legislative intent that the finding and return of an indictment, a s evidence of probable cause, should be and are

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a sufficient and lega l substitute for a preliminary examination." Green , 305 S.W.2d at 868-69. In sum, the substitution of an information in this
case appears to conform to Missouri law on the subject, and Cooksey does not challenge his con viction on that basis. The issue Cooksey would have
us decide is whether Missouri law comports with the requirements of the Du e Process Clause.

In 1884, the Supreme Court handed down its landmark decision i n Hurtado v. California , 110 U.S. 516 (1884). The Court held that neither the Fifth Amendment, which provides for the right to an indictment by a grand jury for seriou s criminal charges brought in federal court, nor the Fourte enthAmendment's Due Process Clause requires states to afford a defendant the right to be tried only upon an indictment by a grand jury. Id. at 521-22. The Court stated that the right to indictment by a grand jury was not essential to preserving "fundamental principles of liberty an d justice, " id. at 535, or guarding "the substantial interest of th e prisoner," id. at 538. Thereafter a number of s tates abolished the use of grand juries in state criminal cases. See Beale & Bryson, Grand Jury Law & Pr actice § 1.05 (1986). Nonetheless, the Due Process Clause stil l requires some form of pretrial screening such as the preliminary hearing available to Hurtado under then-applicable California law. Hurtado , 110 U.S. at 538. Under that procedure, a magistrate was required to conduct
a hearing to determine whether there was probable cause to believe that th e accused had committedthe crime charged. Id. Thus while the Due Process Clause does not require indictment by a grand jury, it clearly require s
some pret rial screening of criminal charges. The Court has no t
recon sidered its holding in Hurtado over the years, see , e.g. , Reed v

. Ross , 468 U.S. 1, 16 n.11 (1984), even though it has since recognized that manyof the limits placed on the power of the national government by the first ten amendments were made applicable to the states by the Due Process Clause of the Fourteenth Amendment, see Albright v. Oliver , 114 S. Ct. 807 , 812-13 (1994).

### -5- As noted above, Missouri law does not provide for a preliminar y hearing when an infor mation is substituted for an indictment. Nothing in the record indicates (and the state does not claim) that Cooksey wa s affor ded any type of pretrial screening other than the grand jur y proceedings that he has challenged at every turn . Cooksey argues that the charges against him were not screened at all and that Missouri law, a s appli ed in his case, violates the Due Process Clause of the Fourteent h Amendment because the indictment, which he alleges was invalid, is not "a sufficient and legal substitute for a preliminar y examination," Green , 305 S.W.2d at 868-69. This argument, as we have stated it, may well hav e merit. We conclude, however, that Cooksey is barred from raising it in hi s federal habeas corpus proceedings because he failed to raise the issue in the state courts.

"A sta te prisoner seeking a writ of habeas corpus from a federa l court must first fairly present his claims to th e state courts in order to meet the exhaustion r equirement of 28 U.S.C. § 2254(b)." Forest v. Delo , 52 F.3d 716, 719 (8th Cir. 1995). When a prison er fails to fairly present a claim in state cour t, thereby incurring a procedural bar as a matter of state law, the prisoner "has defaulted the claim for purposes of federal habeas relief." Id. Such issues may nonetheles s be reviewed in a federal habeas pro ceeding if the prisoner can "show cause for his default an d actual prejudice from the alleged constitutional violations or if he could demonstrate that failure to review the claim wou ld result in a miscarriage of justice." Id.

The Missouri Court of Appeals held that Cooksey's grand-jury

demographics claim was waived because he failed to lodge a proper objectio n agains t the substitute information. Under Missouri law, a defectiv e indict ment does not contaminate a subsequent information that i s
su bstituted for the indictment without objection from the defendant

. Missouri v. Johnson , 504 S.W.2d 23, 26 (Mo. 1973). The court in Johnson reasoned that the defendant

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had not been prejudiced because (1) the substitute "information did no t charge any additional or different offense" and (2) the defendant did not make any attack on the substitute information itself. Id. at 26-27. In this case the Missouri Court of Appeals relied upon Johnson when it held that the alleged defects in the composition of the grand jury selectio n process did not affect the validity of the information on which he wa s tried. Missouri v. Cooksey , 787 S.W.2d at 326.

We agree with the conclusion reached by the Missouri Court o f Appeals. Cooksey's o bjection to the timeliness of the information is not legally significant t o this case; in order to fairly present his claim to the state courts he s hould have objected to the filing of the information
on the gr ound that he was not being afforded the pretrial screenin g req uired by the Due Process clause. In essence, Cooksey put the car t before the horse. It would be inappropriate for any court to decid e whether the state cou rt should have granted discovery on the demographics of the grand jury before that court decided the constitutionality of the Missouri statutes providing for informations to be substituted fo r indictments, Mo. Rev. Stat. § 545.300, and providing that, in such cases, the accused is not afforded a preliminary hearin g, id. § 544.250. Cooksey can prevail on his gr and-jury-demographics claim only if the substitution of an information in the circumstances of this case fails to satisfy the requirements of the Due Process Clause. Cooksey, however, never challenge d the procedures provided by state law until he appeared in federal court. The only objection he raised to the information was that it was untimely. On appeal in the state courts, he argued only that the state trial court dep rived him of his due process rights when it denied his request fo r discoveryon the demographics of the grand jury that indicted him. Thus the claim that the state trial court denied Cooksey's due process rights byrefusing to allow discovery of grand jury demographic data is, as the Missouri Court of Appeals held, procedurally barred as a matter of state law because Cooksey failed to lodge a proper objection to the

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information that was substituted for the indictment. He thus has defaulte d the claim for purposes of his federal habeas corpus petition.
Despite the procedural bar and defau lt, Cooksey could obtain federal habeas review of his claim if he were able to show cause for his default and actual prejudice as a result. Simply put, there is no way that Cookse y could show cause for his failure to raise this issue in state court. He had t he opportunity to oppose the state's motion to substitute a n information for the indictment. In fact, Cooksey took advantage of th e opportunity but argued only that the informationwas untimely. Similarly, Cooksey cannot show prejudice because he has never argued that the evidenc e
was ins ufficient to support his convictions. Clearly the evidence i s sufficient to provide probable cause to believe that Cooksey committed the crimes charged, which is all that a grand jury i ndictment or a preliminary hearing would have established in this case. Wh ile the District Court and the Magistrate Judge did not consider whether Cooksey's claim was barred, this Court may affirm a judgment on any basis supported by the record. Se e Phillips v. Marist Soc. , 80 F.3d 274, 275 (8th Cir. 1996). We thus hold that the District Court properly denied habeas relief on Cooksey's claim regarding the state trial court's denial of his motion to disclose grand jury demographic data, though our reasons differ from those of the Distric t Court. We express no disapproval of those reaso ns; we simply do not reach them.

We turn now to the other issues that Cooksey has raised in thi s appeal: the local rule on probation recommendations, the use of a prior conviction to enhance his sentence, and the prosecutor's alleged role in preventing Cooksey from deposing the woman he had raped. We have carefull y reviewed the Magistrate Judge's report and recommendation as well as the arguments of the parties, and we conclude that the District Court correctl y rejected Cooksey's claims. With respect to these issues, we agree with th e reasoning

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of Distri ct Court as set forth in the report and recommendation that i t adopted.
For the foregoing reasons, the judgment of the District Court d enying Cooksey's petition for a writ of habeas corpus is affirmed.

A true copy.

Attest:

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