The Honorable 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 of

life plus sixty years after being convicted by a jury of the unlawful use

of a weapon, kidnapping, forcible rape, first degree robbery, and three

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, adopting the report and recommendation of a Magistrate Judge,2

denied the application. Cooksey timely appeals, and we affirm.

 On February 6, 1987, Cooksey attended a prayer service at the

Greater Faith Baptist Church in St. Louis, Missouri. During a
-2-

prayer circle, Cooksey took out an eighteen-inch knife and held it to the

throat of the woman next to him. After terrorizing the captive audience,

Cooksey withdrew to a vacant building where he raped the woman and stole

her watch. Cooksey did not challenge the sufficiency of the evidence when

he appealed his convictions in state court. Missouri v. Cooksey, 787

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 the

following five claims for relief: (1) the state trial court violated the

Due Process Clause when it denied Cooksey's motion for disclosure of grand

jury demographic data, which Cooksey sought in order to challenge the

method used to select grand jurors in St. Louis; (2) the state trial

court's local rule regarding probation recommendations violates the Due

Process Clause and the Sixth Amendment right to a jury trial; (3) the state

trial court violated the Due Process Clause when it based a sentence

enhancement on a prior void conviction; (4) the state prosecutor violated

the Due Process Clause when the prosecutor prevented 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 due

process and effective assistance of counsel. On appeal, Cooksey argues

that the District Court erred when it rejected his first four claims and,

a fortiori, rejected his fifth claim as well. Only the first issue

requires extensive analysis, and we now turn to that issue.

Prior to trial Cooksey filed a motion to dismiss the indictment,

alleging that the grand jury had not been selected from a fair crosssection of the community because certain racial groups had been

systematically excluded. See O'Neal v. Delo, 44 F.3d 655, 662 (8th Cir.)

(defining constitutional fair cross-section requirements), cert. denied,

116 S. Ct. 129 (1995). At the same time, Cooksey sought disclosure of

demographic data relating to
 The motion to strike the information alleges that the

3

information is "contrary to the . . . due process rights of

Defendant" but only to the extent that the information was

untimely. Missouri v. Cooksey, No. 871-0427, Motion to Dismiss and

Strike Information at 1 (Cir. Ct. St. Louis Aug. 1, 1988). No

mention is made of any other due process rights. 

-3-

individuals selected for grand jury service during the last ten years. The

state trial court denied the motion for disclosure of demographic

information. Before the court ruled on the motion to dismiss the

indictment, the state filed a motion to substitute an information for the

indictment. Cooksey opposed the state's motion by filing a motion to

dismiss and strike the information. The sole basis for his opposition to

the filing of the information was that the motion to substitute was

untimely. The court granted the state's motion to substitute, and Cooksey 3

was tried on the information. Cooksey did not make any further objection

to the information nor did he appeal the trial court's denial of the motion

to strike the information. 

Under Missouri law, "an information charging the same offense charged

in [a defective] indictment may be substituted therefor at any time before

the jury is sworn." Mo. Rev. Stat § 545.300 (1994). The decision to

substitute an information is within the discretion of the prosecutor, and

the court 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.

Missouri v. Green, 305 S.W.2d 863, 868 (Mo. 1957). Missouri Revised

Statutes § 544.250 provides that "a preliminary examination shall in no

case be required . . . in any case where an information has been

substituted for an indictment as authorized by section 545.300." The

Missouri Supreme Court in Green held that this language evinces "a

legislative intent that the finding and return of an indictment, as

evidence of probable cause, should be and are
-4-

a sufficient and legal 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 conviction on that basis. The issue Cooksey would have

us decide is whether Missouri law comports with the requirements of the Due

Process Clause.

In 1884, the Supreme Court handed down its landmark decision in

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 serious criminal charges brought in federal court, nor the

Fourteenth Amendment'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 and

justice," id. at 535, or guarding "the substantial interest of the

prisoner," id. at 538. Thereafter a number of states abolished the use of

grand juries in state criminal cases. See Beale & Bryson, Grand Jury Law

& Practice § 1.05 (1986). Nonetheless, the Due Process Clause still

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 the

accused had committed the crime charged. Id. Thus while the Due Process

Clause does not require indictment by a grand jury, it clearly requires

some pretrial screening of criminal charges. The Court has not

reconsidered 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

many of 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 preliminary

hearing when an information is substituted for an indictment. Nothing in

the record indicates (and the state does not claim) that Cooksey was

afforded any type of pretrial screening other than the grand jury

proceedings that he has challenged at every turn. Cooksey argues that the

charges against him were not screened at all and that Missouri law, as

applied in his case, violates the Due Process Clause of the Fourteenth

Amendment because the indictment, which he alleges was invalid, is not "a

sufficient and legal substitute for a preliminary examination," Green, 305

S.W.2d at 868-69. This argument, as we have stated it, may well have

merit. We conclude, however, that Cooksey is barred from raising it in his

federal habeas corpus proceedings because he failed to raise the issue in

the state courts.

"A state prisoner seeking a writ of habeas corpus from a federal

court must first fairly present his claims to the state courts in order to

meet the exhaustion requirement of 28 U.S.C. § 2254(b)." Forest v. Delo,

52 F.3d 716, 719 (8th Cir. 1995). When a prisoner fails to fairly present

a claim in state court, 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 nonetheless be reviewed in a federal

habeas proceeding if the prisoner can "show cause for his default and

actual prejudice from the alleged constitutional violations or if he could

demonstrate that failure to review the claim would result in a miscarriage

of justice." Id. 

The Missouri Court of Appeals held that Cooksey's grand-jurydemographics claim was waived because he failed to lodge a proper objection

against the substitute information. Under Missouri law, a defective

indictment does not contaminate a subsequent information that is

substituted 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
-6-

had not been prejudiced because (1) the substitute "information did not

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 selection

process did not affect the validity of the information on which he was

tried. Missouri v. Cooksey, 787 S.W.2d at 326.

We agree with the conclusion reached by the Missouri Court of

Appeals. Cooksey's objection to the timeliness of the information is not

legally significant to this case; in order to fairly present his claim to

the state courts he should have objected to the filing of the information

on the ground that he was not being afforded the pretrial screening

required by the Due Process clause. In essence, Cooksey put the cart

before the horse. It would be inappropriate for any court to decide

whether the state court 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 for

indictments, Mo. Rev. Stat. § 545.300, and providing that, in such cases,

the accused is not afforded a preliminary hearing, id. § 544.250. Cooksey

can prevail on his grand-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 challenged

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

deprived him of his due process rights when it denied his request for

discovery on the demographics of the grand jury that indicted him. Thus

the claim that the state trial court denied Cooksey's due process rights

by refusing 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
-7-

information that was substituted for the indictment. He thus has defaulted

the claim for purposes of his federal habeas corpus petition. 

Despite the procedural bar and default, 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 Cooksey

could show cause for his failure to raise this issue in state court. He

had the opportunity to oppose the state's motion to substitute an

information for the indictment. In fact, Cooksey took advantage of the

opportunity but argued only that the information was untimely. Similarly,

Cooksey cannot show prejudice because he has never argued that the evidence

was insufficient to support his convictions. Clearly the evidence is

sufficient to provide probable cause to believe that Cooksey committed the

crimes charged, which is all that a grand jury indictment or a preliminary

hearing would have established in this case. While 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. See

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 District

Court. We express no disapproval of those reasons; we simply do not reach

them.

We turn now to the other issues that Cooksey has raised in this

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 carefully

reviewed the Magistrate Judge's report and recommendation as well as the

arguments of the parties, and we conclude that the District Court correctly

rejected Cooksey's claims. With respect to these issues, we agree with the

reasoning
-8-

of District Court as set forth in the report and recommendation that it

adopted.

For the foregoing reasons, the judgment of the District Court denying

Cooksey's petition for a writ of habeas corpus is affirmed.

A true copy.

Attest:

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