The Hon. Owen M. Panner, United States District Judge for the District o f 1 Oregon, sitting by designation. The Hon. Howard F. Sachs, United States District Judge for the Wester n 2 District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-3067WM

_____________ James W. Chambers, * * Appellant, * * On Appeal from the United
v. * States District Court * for the Western District * of Missouri. Michael Bowersox, Warden, * * Appellee. *

___________ Submitted: June 8, 1998 Filed: September 23, 1998

___________ Be fore RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circui t Judges, and PANNER, District Judge. 1

___________ RICHARD S. ARNOLD, Circuit Judge.
James Wilson Chambers was convicted of capital murder and sente nced to death for killing Jerry Oestricker. He appeals the District Court's denial of his petition for 2-2-

writ of habeas corpus under 28 U.S.C. § 2254 (1994). We have reviewed the claims that have been certified as appealable, and we now affirm.

I.
On May 29, 1982, Chambers and his family, celebrating the Memorial Dayweek end, were camped near the Mera mec River in Arnold, Missouri. Because Chambers's two step-sons wanted to go out onto the river to fish, early that evening Chamber s sought to borrow a boat from friends, members of the Turner family. He set out to find the Turners, accompanied by his cousin, Donny Chapman, and Chapman's girlfriend, Eleanor Hotchkiss. After stopping by Chambers' s home, the three went to the Country Club Lounge, located on the other side of the river from their campsite. Earlier, at the lounge, o ne of the Turners, Jack, had gotten into an argument with Jerry Oestricke r after Oestricker had walked past Jack and bumped his chair. The owner of the bar was summoned from home, and he asked the Turners and Oestricker to leave. The Turners eventually complied, although Oestricker did not. By the time Chambers arrived, the Turners were gone, and Chambers left the bar without incident.

Chambe rs, Chapman, and Hotchkiss then went to the Turners' nearby home

. There, Chambers asked about borrowing their boat and was told that the boat was drydocked, but t hat a neighbor had one that Chambers might be able to borrow. Jac k Turner got into the car with C hambers, Chapman, and Hotchkiss, and they returned to the Country Club Lounge to find the neighbor. On the way to the bar, according t o Chapm an, Turner discussed the earlier incident involving Oestricker. When the y arrived at the bar, Chamb ers and Turner went inside, leaving Chapman and Hotchkiss in the car. Chambers had with him a .38-caliber pistol that he had gotten from his home when he, Chapman, and Hotchkiss first left the campsite. Inside, Chamber s approachedOestricker, and asked Oestricker to buy him a drink. Oestricker said he would not, and an argument en sued. The bar owner asked them either to stop arguing-3-

or leave , and Chambers walked to the door, saying, "Come on out, you motherfucker. We'll settle this outside." Oestricker then followed Chambers out of the bar.

What hap pened next is the subject of considerable dispute. According to th e Sta te, Chambers fatally shot Oestricker as soon as Oestricker emerged from the bar

. Awitness testified that Chambers said, "Take that," as he fired the gun at Oestricker. He then repeatedly struck Oestricker on the face with the gun, and, as Oestricker fell,

said, "Lay there and die." Chambers then dragged Oestricker out of the doorway and shouted into the bar, "The rest of you motherfuckers want so me of this?" Chambers got into the waiti ng car, and the car drove off. According to the defense theory, onc e Ch ambers and Oestricker were outside, they faced each other briefly and exchange d words. Oestricker then s truck Chambers, knocking him back into a truck and onto the ground. Oestr

icker moved toward Chambers, and Chambers shot him in self-defense. The jury accepted the State’s version of the facts . No one claims that the evidence was not sufficient to support this verdict.

II.
Three separate juries have found Chambers guilty of capital murder, and he has been sent enced to death after each trial. His first conviction was reversed by th e Missouri Supreme Court on the basis of the trial court's refusal to instruct the jury on self-defe nse. State v. Chambers , 671 S.W.2d 781 (Mo. 1984) (en banc). Chambers's second convictio n was affirmed by the Missouri Supreme Court in State v. Chambers , 714 S.W.2d 527 (Mo. 1986) (en banc). He filed a Mo. Sup. Ct. R. 27.2 6 p o stconviction motion, which was denied by the circuit court. The Missouri Court of Appeals affirmed. Chambers v. State , 745 S.W.2d 718 (Mo. App. 1987). Chambers then sou ght habeas relief under 28 U.S.C. § 2254. His petition was denied by th e Dist rict Court. A panel of this Court reversed that judgment in Chambers v

. Arm ontrout , 885 F.2d 1318 (8th Cir. 1989), holding that Chambers's trial counse l provided ineffective assistanc e when he failed to interview or call a witness who could-4-

have t estified in support of Chambers's theory of self-defense. The State sough t rehearing en banc, which was granted. The full Court agreed with the panel and directed the Dist rict Court to enter an order requiring that Chambers be retried or freed

. Chambers v. Armontrout , 907 F.2d 825 (8th C ir.) (en banc) (6-5 decision), cert. denied , 498 U.S. 950 (1990). Chambers was tried and convicted a third time, and agai n sentenced to death in 199 2. He filed a motion for postconviction relief under Mo. Sup. Ct. R. 29.15, and the circuit court denied relief. His co nviction, sentence, and the denial of postconviction relief were all affirmed by the Missouri Supreme Court in State v

. Chambers , 891 S.W.2d 93 (Mo. 1994) (en banc). The petition for writ of habeas corpus before us now was filed in 1995, and amended in 1996. The District Court denied relief in 1997, and thereafter issued a certificate of appealability with respect to six o f petitioner’s claims.

III.

Chambers's f

irst claim centers on testimony given by his probation officer during the sentencing phase of the third trial. The officer testified that Chambers had told him that one of the regrets of his life was not having had a chance to kill a police officer

. According to the probation officer's testimony, the st atement came about in the following way. The probation officer visited the Jefferson County jail, where Chambers was being he ld, shortly after Chambers's first conviction. The officer did not go to the jail to se e Chamber s, but to see another inmate, in the course of his official duties. The visit took place som etime between December 16 and December 23, 1982. At that point, th e probation of

ficer's written presentence investigation report had apparently already been completed a

nd submitted to the trial court. The report was submitted on December 16, andpetitioner's formal sentencing took place on December 23. At any rate, during the visit, according to the probation officer's testimony, Chambers called the officer over to his cell and engaged him in conversation. Chambers told the officer that he had som e regrets about his life. When t he officer asked what they were, Chambers replied that he regretted not having had aThe st atute was amended by Laws 1995, H.B. No. 424, § A, and is no w 3 codifie d as Mo. Rev. Stat. § 559.125.2. The amendment is not material to any of the issues in this case.
-5- ch ance to kill a police officer. The official presentence investigation report does no t mention this statement, but the probation officer did inform the trial judge about it, orally. In additi on, the probation officer testified to this statement, without objection fro m Cha mbers, during Chambers's second trial. Neither was there any objection to th e testimony about the statement during the penalty phase of the third trial.

Chambers no w argues that this testimony was inadmissible under Mo. Rev. Stat. § 217.780 (1982), recodified at Mo. Rev. Stat . § 559.125 (1990). This statute provided 3 that:
Information and data obtained by a probation or parole officer shall be p rivileged information, and shall not be receivable in any court. Such infor

mation shall not be disclosed directly or indirectly to anyone other

than the members of a parole board and the judge entitled to rec eive reports, except the court may in its d iscretion permit the inspection of the report, or part s thereof, by the def

endant, or prisoner or his attorney, or other per son having proper interests therein, whenever the bes t interest or welfare of a parti cular defendant or prisoner makes such action desirable or helpful.

It is important to have

in mind the procedural history of Chambers's objections to this testimony. On direct appeal, Chambers argued that the evidence was irrelevant to any aggrav ating circumstance submitted to the jury, and that it was "inadmissibl e evidence of bad character and future dangerousness." State v. Chambers , 891 S.W. 2d 93, 106-07 (Mo. 1994) (e n banc). The Missouri Supreme Court reviewed both of these arguments on a plain-error basis, no objection to the testimony having been made at-6-

tria l. The Court held that no plain error had occurred, because the evidence wa s admissible. Any evidence regarding the defendant's character is admissible at the penalty phase, includ ing "[c]haracter and future dangerousness evidence . . .." Id. at 107. I n addi tion, the Court observed that evidence of the statement had been introduced at a previous trial, so that "Chambers was clearly on notice that the State would introduce it." Ibid. The probation-o fficer statute we have just quoted was not argued to the Missouri Supreme Court, and the Court's opinion does not mention it. In fact, the statute wa s never cited to any state court until after the present federal habeas corpus proceeding had been commenced. At that point, Chambers filed a motion in the Missouri Supreme Court for recall of that Court's mandate, arguing that his counsel on direct appeal had bee n inef fective for not contending that the admission of the evidence in question was plai n
error und er the statute. The Missouri Supreme Court denied this motion withou t comment.

Chambers makes a number of arguments against the admission of this evidence: (1) that admission of the evidence in violation of the state statute depriv ed him of his right under the Due Process Clause of the Fourte enth Amendment to the proper application of state law in cap ital proceedings; (2) that admission of the statement deprived him of his right against self-incrimination (no Miranda warnings having been given) and of his right to counsel ( Chambers being represented by counsel at the time he made the statement); (3) that the statement was so inflammatory and prejudicial that it violated his right to a rati onal sentencing process under the Eighth Amendment; and (4) that his appellat e counsel was ineffective for not arguing to the M issouri Supreme Court that the statement

was in admissible, as a matter of state law, under the probation-officer statute. W e address each of these arguments in turn.

We discus s first what might be called petitioner's "pure" due process claim

– "pure" because it relies on the Due Process Clause of the Fourteenth Amendmen t simpliciter , and not on that Clause's incorpora tion of any of the specific provisions of the Bill of Rights. The argument is simply this: the testimony of probation officerThe State argu es that the point is procedurally barred for a number of reasons, 4 and it may be right. In this instance, as in the case of some of the other argument s advanced by petitioner, the law of procedural bar is a grea t deal more complicated than the law governing the merits of petitioner's point. Since petitioner cannot prevail on the merits in any event, we see n o reason to ring the changes of the various formulas used in determining the issue o f procedural bar. The simplest way to decide a case is often the best.
-7- Johnston was received in violation of the Missouri statute, petiti oner had a right to expect that the st atute would be properly applied, and, since that did not occur, he has bee n deprived of due proce ss of law. Another way of putting it is to say that petitioner had a "liberty interest" in the enforcement of the statute, which, in his view, mandated exclusion of the evidence. We cannot accept this argument. 4

We have held many times that a mere violation of state law is not the automati c equivalent of a violation of the federal Constit ution. E.g. , Meis v. Gunter , 906 F.2d 364, 369 (8th Cir. 1990) ("A violation of state law, without more, is not the equivalent of a violation of the Fourteenth Amendment."). A long line of Supreme Court cases is to the same effect. E.g. , Snowden v. Hughes , 32 1 U.S. 1, 11 (1944). Hicks v. Oklahoma , 447 U.S. 343 (1980), the principal authority petitioner ci tes, must be read against this general background. In Hicks , a jury, in accordance with the habitual-offender statute then i n effect in Oklahoma, had sentenced a defendant to a mandatory term of 40 years in prison. While the case was on a

ppeal, the habitual-offender statute was held unconstitutional in anotherc ase. When Hicks's case came before the appellate court, however, hi s conviction and sentence were nevertheless affirmed, the Court reasoning that the sentence was, in any event, within the outer limit that the jury could have imposed. Our own case of Rust v. Hopkins , 984 F.2d 1486, 1492-95 (8th Cir. 1993), perhaps expands Hick s somewhat, but not e nough to reach the circumstances presented in Chambers's case. In Rust , a three-judge sentencing panel had imposed a sentence of death without findin g aggravating circumstances beyond a reasonable doubt, as required by state law. We held that the error had not been cured-8-

by the Neb raska Supreme Court, and that to execute Rust under those circumstance s would be to deprive him of his life without due process. These cases, it seems to us , represent a rather narrow rule: some aspects of the sentencing process, created by state law, are so fundamental that the state must adhere to them in order to impose a vali d

sen tence. We reject the notion that every trial error, even every trial error occurrin g during the sentencing phase of a capital case, gives rise to a claim under the Due Process Clause of the Fourteenth Amendment. Wh at happened to petitioner here may have been wrong (more about this later), but the mistake, if there was one, was not so central as to be like the errors found in Hicks and Rust

.
Petitioner's next argument is that the statement introduced against him wa s obtained in violation of his Fifth Amendment right against self-incr imination and his Sixth Amendment right to counsel. Again, we do not agree. The statement was not t he product of interrogation by Officer Johnston. The conversation was initiated by petitioner, at a time when Officer Johnston was at the jail on other business. Petitioner began by stating that there were things about his life he regret ted. Officer Johnston, it is true, pursued the matter, in a sense, by asking what those things were, but this inquiry by the officer was instigated and invited by Chambers himself. Immediat ely thereafter, Chambers made the statement (assuming one believes Johnston' s testimony) introduced against him at two of his trials. There

is no indication whatever that the statement was not voluntary. We do notthin k that the law protects petitioner, in these circumstances, against th e consequences of a statement that he clearly wanted to make.

The Eighth Amendment argument – that the statement was so inflammatory and emotional as to encourage an irrational response by the jury – may also be disposed of quickly. The Supreme Court of Missouri, in rejecting this argument, cited Simmons v. South Ca rolina , 512 U.S. 154, 162 (1994), and we believe the citation was apt. Th e pluralit yopinion in Simmons , written by Justice Blackmun, clearly states that " a defe ndant's future dangerousness bears on all sentencing determinations made in ou r criminal justice system." And this is true even when the state statute laying out aThe rule has since been changed. See Mo. Sup. Ct. R. 29.15, as amended on 5 June 20, 1995. Effective January 1, 19 96, claims of ineffective assistance of appellate counsel must be raised in the sentencing c ourt, and must be raised within 90 days after the mandate of the appellate court is issued. See generally State v. Kelly , 966 S.W.2d 382 (Mo. App. 1998). It might also be argue d that trial counsel was ineffective for failing to object to 6 the ev idence when it was offered. Such a claim would be procedurally barred. Th e place to raise such a claim, under Missouri procedural law, is in a postconvictio n proceedi ng under Mo. Sup. Ct. R. 29.15, and the claim was not raised there

. Ineffectivenes s or neglect on the part of postconviction counsel cannot be "cause" for purposes of excusing a procedural default. Clemmons , supra , 124 F.3d at 947-48.
-9- capital sentencing procedure does not mandate consideration of a defendant's futur e dangerousness. "[T]he State's evidence in aggravation is not limited to evidence relating to statu tory aggravating circumstances." Ibid. Once a state has proved at least on e st atutory aggravating circumstance – and there is no doubt that this occurred in th e present case – a

jury, in deciding what sentence actually to impose, may consider many factors, including future dangerousness.

We turn, fi nally, to the argument that is probably petitioner's strongest, and t o which we have given the most thought. Petitioner contends that his counsel on direc t appealwas ineffective in the constitutional sense because he did not argue that the trial court had committed plain error by adm itting Officer Johnston's statement in violation of th e Missouri statute. This argument is not procedurally barred. Chambers raised th e claim in his motion tothe Supreme Court of Missouri for recall of that Court's mandate. At the time Chambers filed his motion, claims of ineffective assistance of appellat e counsel w ere properly raised in a motion to recall the mandate, and there was no tim e limit on the fi ling of such motions. Clemmons v. Delo , 124 F.3d 944, 953-54 (8th Cir. 5 1997), cert. denied , 118 S. Ct. 1548 (1998). Because the Missouri Supreme Court denied Chamb ers's motion to recall the mandate without explanation, the Court's action is presumed to be on the merits. See Har ris v. Reed , 489 U.S. 255 (1989). Accordingly, the issue is open for review on federal habeas. 6-10-

A claim of ineffective assistance of appellate coun sel is reviewed under Strickland v. Washington , 466 U.S. 668 (1984). A petitioner must show that counsel's performance was objectively unreasonable, and that there i s a reasonable probability that the outcome of his appeal wou ld have been different if counsel had raised the claim. We assume, as did the District Court, that a reasonably competent appellate counsel would have made this argument. The question then becomes whether there is a reasonable probability that the result of the direct appe al would have been different if the argument had been made. On this issue, the burden of proof is on Chambers. He must show not only that th e Missouri Supreme Court would have thought that an error had been made, but also , because no objection was made at trial, that the error was "plain."

Inassessing the probability that such an argument would have succeeded, we of course apply Mis souri procedural law. Under Mo. Sup. Ct. R. 29.12(b), "[p]lain errors aff ecting substantial rights may be considered in the discretion of the court when th e court finds that manifest injustice or miscarriage of justice has resulted therefrom." And under Rule 30.20, "[a]llegations of error that are not briefed or are not properly briefed

on appeal shall not be considered by the appellate court except errors respecting th e suffic iency of the information or indictment, verdict, judgment, or sentence. Whethe r briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice ha s resulted t herefrom." The Missouri courts appear to consider, first, whether an erro r occurred, then whether that error was "plain," and, finally, whether the error woul d produce a manifest injustice or mis carriage of justice if it were overlooked. See State v. Bai ley , 839 S.W.2d 657, 661 (Mo. App. 1992), requiring that the error be evident , ob vious, and clear. Most Missouri cases lay emphasis on the question whether a miscarriage of

justice has occurred. See State v. Hall , 955 S.W.2d 198 (Mo. 1997) (en banc). In State v. Hornbuckle , 769 S.W.2d 89, 92-93 (Mo. 1989) (en banc) , the Supreme Court wrote that, under plain error review,-11- [The] appellant bears the burden of demonstrating that th e action of the trial court was not only erroneous, but that th e error s o substantially impacted upon his rights that manifes t injustice or a miscarriage of justice will result if the error i s leftuncorrected. . . . Relief under plain error, therefore , requ ires that appellant go beyond a mere showing o f demonstrable prejudice to show manifest prejudice affecting his substantial rights.

(Citations omitted.)

As we have noted, the probation officer testified that he visited the Jefferso n County Jai l, where Chambers was being held, shortly after Chambers's first conviction. The officer testified that he had gone there to conduct a presentence investigation i n anoth er case, and that he was summoned by Chambers to his cell. According to th e officer, Chambers "instigated" the conversation. The District Court held that no erro r
was committed, principally on the ground that the statement was not "obtained" by the officer, bec ause Chambers volunteered it. The District Court also noted there was n o evid ence that the jail-house conversation "was or became part" of Chambers' s presentence report, which did not mention the conversation and which appears to have been prepared before the conversation occurred.
The District Court's interpre tation of the statute is plausible, and certainly there is

no aut hority from the Missouri courts that is contrary to that interpretation. Only on e appellate court in Missouri has interpreted this statute . In State v. Dale , 874 S.W.2d 446 (Mo. App. 1994), the Court of Appeals assumed that the privilege applied to the facts in that c ase, although the Court did not decide the issue. We think Dale can b e distinguished, however, because the test imony in that case came from officers who were supervising a defendant while she was on parole, and the statements testified to wer e made during the officers' probation-a ssessment interviews with the defendant. Here, the officer was at the jail on another assignment, and Chambers called him over-12-

and volu nteered the information. The privilege may well not apply unless the office r solicits the information for the p urpose of reporting it to the sentencing judge. Thus, the error of admitting this testimony, if there was one, was not "plain."

We als o believe the facts do not show any manifest injustice, as required b y Missou ri's plain-error standard. Chambers does not claim that he was aware of th e statute when he made the statement, or that he believed that the statement would be kept confidential, or that he relied on the statute in any way.

Two othe r factors are important to us in determining whether a miscarriage o f justice, going beyond a mere showing of demonstrable prejudice, occurred here. First, the information was already "out," Officer Johnston having testified without objection at the guilt phase of Ch ambers's second trial. At the time of the third trial, the information

was n o longer confidential, and had not been for some time. Whether or not thi s circumstance amounts to a waiver of the privilege, we think it reduces the injustice, i f any, that occurred here. And finally, we are mindful that privileges are not much i n vogue these days. They have the effect of keeping from the trier of fac t relevant evidence of what ac tually happened, or, as here, what was actually said. The adverse effect o n Chambers's case, if there was one, was the product of his own voluntary act. On balance, we think it unlikely that the Supreme Court of Missouri, if it had undertaken plain-error review on this point, would have reversed the sentence.
Chambers has not persuaded us that there is a reasonable probabi lity that he would have won his direct appeal if counsel had made the argument in question. We agree with the District Court that no prejudice in the Stricklandsense occurred as a result o f appellate counsel's failure to seek review of the statutory issue.-13- IV.

Chambers next a

rgues that his trial counsel was ineffective in failing to interview and present the testimony of Dr. S. D. Parwatikar. We beli eve this claim was adequately reviewed by the District Court, and we find no error.
Dr. Parwatikar performed a court-ord ered mental evaluation of Chambers prior to his first trial, and concluded that he suffered from situational depression and may have acted impulsively, rather than deliberately, following provocation by the victim. Dr

. Parwatik ar

testified to these conclusions during the penalty phase of the first trial , alt hough he acknowledged that Chambers was mentally able to conform his conduct to the law. The doctor’s report also recounted that Chambers had suffered a head trauma as a child, and had been diagnosed as borderline mentally retarded. Chambers argues this testimony should have been presented during the guilt phase of the third trial, because it would have negate d the State's claim that he acted after deliberation, leading the jury to

con vict Chambers of a lesser-included offense. Or, Chambers argues, the testimon y
wo uld have altered the balance between the aggravating and mitigating circumstance s presented during the penalty phase, and the jury might have decided to sentence him to life imprisonment instead of death.

The Stat e argues that Chambers's counsel made a strategic decision, afte r inve stigation, not to call Dr. Parwatikar. Trial counsel explained during th e pos tconvictionhearing that she had reviewed Dr. Parwatikar's testimony from the firs t trial and determine d that he did not stand up well under cross-examination. The District Court also noted evidence that likely would have come out on cross-examination. There

were psychological evaluations contrary to Dr. Parwatikar's, and his own report conta inedstatements attributed to Chambers that he knew that Oestricker had bee n "obnoxious" and had "assaulted" his friend Jack Turner, and that Chambers had "decided to meet" Oestricker because he "wanted to mak e peace" between Turner and Oestricker. This explanation would have conflicted with Chapman's testimony that-14-

Chambers was s imply looking for a boat, and that there had been no plan to confron t Oestricker. In addition, as the Missouri Supreme Court pointed out, Dr. Parwatikar' s testimony did not prevent the jury in the first trial from imposing the death penalty, and none of Chambers's counsel in three trials had presented the docto r's testimony during the guilt phase.
Having re viewed the evidence, we believe the District Court correctly held that Cha mbers's trial counsel was not ineffective in failing to present Dr. Parwatikar' s testimony.

V.

Chambers also complains that his counsel ineffectively impeached Fred Ieppert,

a witness for the State who provided some of the most damaging testimony agains t Chambers. Ieppert testified, inter alia , that Chambers, after challengin g Oestricker to join him in settlin g their dispute outside, stopped and "checked" his gun to make sure it was loa ded, suggesting premeditation. Ieppert had not previously testified to this, despit e having given a statement to the police after the murder, and having testified during both previous trials and a preliminar y hearing. There were other variations between Ieppert's testimony at the third trial and his earlier testimony, including how much time passe d between Chambers's departure from the bar and the firing of the gun. As the Missouri Supreme Court noted, Ieppert was a difficult witness because of his age and hearin g problems, and care had to be taken not to alienate the jury with an overly aggressiv e cross-examination. The District Court held there was no prejudice, and we agree. Any possibility that a few more questions asked of Ieppert would have produced a different result is remote.-15- VI.

Justic e Stevens, in a memorandum opinion respecting the denial of certiorari i n Lackey v. Texas , 514 U.S. 1045 (1995), questioned whether executing a prisoner who has spent many years on death row constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Chambers, with 15 years on death row, argues that it does, and that his is an appropriate case in which to examine the issue.

The Stat e has a preliminary argument, however: that the Lackey claim i s procedurally barred because it was never raised properly in the state courts. We agree with t his argument. Nothing resembling the Lackey claim was made at trial, on direc t appeal, or in postconviction proceedings follow ing Chambers's third trial and conviction. The claim was included in petitioner's motion to recall the mandate of the Missouri Supreme Court on direct appeal, but we do not think that such a motion is a prope r vehicle, under Missouri law, for raising this sort of claim. "Such a motion may . . . b e employed when the decision o f a lower appellate court directly conflicts with a decision of the United States Supreme Court upholding the rights of the accused." State v

. Thompson , 659 S.W.2d 766, 769 (Mo. 1983) (en banc). But there of course is n o decision of the Supreme Court of the United States holding that delay in executio n violates the Eig hth Amendment. There is only an opinion by one Justice indicating that the issue deserves consideration, plus a notation by another Justice that the issue i s important and undecided. We hold that Chambers's Lackey claim is procedurally barred. Petitioner suggests that the argument was novel, whi ch might amount to cause for his not having made it earlier, but this argument cannot stand. Prisoners have been making the delay argument for years, always without success.
Notwithstanding this clear obstacle, which is sufficient to dispose of this argument, we dee m it appropriate to add a few words with respect to the substance of the Lackey point in this case. We do so because of the respect that we owe to theSection 17(1) of the Jamaican Constitution provides that "[n]o person shall be 7 subjected to torture or to inhuman or degrading punishment or other treatment."
-16- foreign courts that have accepted this argument, or some variation of it, under their own legal systems.

The a rgument has met with some success, especially in the British courts, where the issue arises principally because the Judicial Committee of the Privy Council is stil l the highest court of appeal for many Commonwealth countries. See generally William A. Schaba s, "The Death Row Phenomenon," pp. 96-156, The Death Penalty as Crue l Treatment and Torture: Capital Punishment Cha llenged in the World's Courts (1996). In

a1993 case, the Privy Council recommended to the Crown that the death sentences of two appell ants be commuted to life imprisonment, concluding that executing them after almost 14 years on death row would violate the Jamai can Constitution. Pratt v. Attorney General of Jamaica , [1994] 2 App. Cas. 1, [1993] 4 All E.R. 769 (P.C. 1 993). Regarding other prisoners who were then awaiting execution in Jamaica, their Lordships said that "in any case in which execution is to take place more than five years after sentence there wi llbe strong grounds for believing that the delay is such as to constitute 'inhuman o r degrading punishment or other treatment.' " [1994] 2 App. Cas. at 35, [1993] 4 All E.R. 7 at 788-89 (P.C. 1993).

The Privy Council in Pratt overruled its earlier judgment in Riley v. Attorney

General of Jamaica , [1983] 1 App. Cas. 719, [1982] 3 All E.R. 469, 35 W.L. R. 279 (P.C. 1982). The dissent in Riley had written that "there is a formidable case for suggesting that execution after inordinate delay would have infringed the prohibition against cruel and u nusual punishments to be found in section 10 of the Bill of Rights [Act of] 1689." [198 3] 1 App. Cas. at 734, [1982] 3 All E.R. at 478 (P.C. 1982) (Lord Scarman , dissentin g, joined by Lord Brightman). That section of the English Bill of Rights i s "undoubtedly the precursor of our own Eighth Amendment," Lackey v. Texas ,-17-

51 4 U.S. at 1047 (1995) (opinion of Stevens, J.), though delay in the execution o f sentences was hardly a problem in 1689.
The ruling in Pratt

was followed by similar rulin gs. In a case arising in Belize, the Privy Council recommended tha t the death sentence of an appellant be quashed, and the

case remitted to the Court of Appeal of Belize for sentencing on the substituted charge of manslaughter, at least

in part because the appellant had already served three years on deat h row. Logan v. The Queen , [1996] App. Cas. 871, [1996] 4 All E.R. 190, [1996] 2 W .L.R. 711 (P.C. 1996). And in Henfield v. Attorney-General of Bahamas , [1997 ] App. Cas. 413, [1996] 3 W.L.R. 1079 (P.C. 1996), overruled in part by Fisher v

. Minister of Publ ic Safety and Immigration , [1998] 3 W.L.R. 201 (P.C. 1997), the Privy Council recommended the commutation of death sentences for two other appellants, one of whom had served almost seven years on death row. Lord Goff of Chievele y wrote that

"their Lordships have had to form a judgment as to the period whi chshould be held to constitute [an average period o f acceptable delay between sentence and executio n] and, having given the matter careful considera tion, have concluded, taking int o account an appropriate period of time for the domesti c appeals available to condemned men in their own interest, that
a period of [three and a half years] in prison awaitin g execution, with all the agony of mind which that entails, would in all t he circumstances be so prolonged a time as to rende r execution cruel or inhuman punishment."

[1997] App. Cas. at 429, [1996] 3 W.L.R. at 1092 (P.C. 1996).

In Soering v. United Kingdom (App. no. 14038/8 8), Series A, Vol. 161, p. 54, the European Court of Human Rights cited delay as the principal ground for its decision that allowing the extradition to the United States of a German citizen, arrested inThe average length of time served between sentence and execution for the 45 8 persons executed in the United States in 199 6 was ten and a half years. See Bureau of Justice Statistics, Cap ital Punishment, 1996 , Time Under Sentence of Death Sentence and Execution, by Race, 1977-96, p. 12, Table 12.
-18- Eng landand charged with capital murder in Virginia, would violate the Europea n Convent ionon Human Rights. The Court found that it was likely that Soering, i f

ex tradited, would be sentenced to death, and held that the six to eight years a Virgini a inmate must spend on death row before being executed would violate Article 3 of th e Convention, which provides that "[n] o one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Th e essential point for our purposes, of course, is whether or not the Eighth Amendment

is being violated. We believe that delay in capital cases is too long. But 8 delay, in large part, is a function of the desire of our courts, state and federal, to get i t right, to explore exhaustively, or at least sufficiently, any argument that might sav e someone's life. Cham

bers's strongest argument is that the State has had to try him three times before getting it right. That is true, but there is no evidence, not even a claim, that the State has deliberately sought to convict Chambers invalidly in order to prolong th e time before it could secure a valid conviction and execute him. We believe the State has been attempting in good faith to enforce its laws. Delay has come about becaus e Chambers, of course with justification, has contested the judgments against him, and, on tw o occasions, has done so successfully. If it is not cruel and unusual punishment t o execute someone after the electric chair malfunctioned the first time , see Louisiana ex rel. Francis v. Resweber , 329 U.S. 459 (1947), we do not see how the present situation even begins to approach a constitutional violation. Petitioner's argument is without merit.-19- VII.
Chambers argu es that the Missouri Supreme Court failed to conduct an adequate proportionality review of his sentence as required by Missouri law, and that the Court has failed to maintain the data necessary to conduct a meaningful review. See Mo. Rev

. Sta t. § 565.014 (1978), amended and recodified at § 565.035 (1984). Our Court ha s repeatedly rejected this kind of argument. See Kilgore v. Bowersox , 124 F.3d 985 (8th Cir. 1997), cert. denied , 118 S. Ct. 2352 (1998); Bannister v. Delo , 100 F.3d 610 (8th Cir. 1996), cert. denied , 117 S. Ct. 2526 (1997). The Missouri Supreme Court di d review Chambers's sentence, and concluded that it was proportion ate, State v. Chambers , 891 S.W.2d at 113-14, and we cannot look behind that determination.

VIII.

Chambers's final argument is that he should have been allowed to present othe r claims in this appeal without having first obtained a certificate of app ealability. The basis for this argument is the Supreme Court's recent decision in Lindh v. Murphy , 117 S. Ct. 20 59 (1997). In Lindh , the Court held that certain provisions of the Antiterrorism an d Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, do not apply to habeas petitioners whose petitions werefiled before April 24, 1996, the effective date of the Ac t. Chambers's petition was filed on April 21, 1995, and was denied by th e District Court on March 12, 1997. He filed a notice of appeal on July 16, 1997. H e arg ues that the Act does not apply to him because his petition was filed before th e effective date of the Act. This argument is foreclo sed by our recent opinion in Tiedeman

v. Benson , 122 F.3d 518 (8th Cir. 1997). In Tiedeman , we held that the certificate-ofappealability requirement does apply to cases in which a peti tioner's notice of appeal was filed after April 24, 1996. Chambers's petition, therefore, must comply with th e certificat e-of-appealability requirements of the Act, and he may not raise claims o n appeal for which a certificate has not been issued. In-20-

addition, Chambers's brief does not explain why any of the addit ional arguments he seeks to raise would have merit.

IX.

For the foregoing reasons, the District Court's denial of the petition for writ o f habeas corpus is

Affirmed.
A true copy.

Attest:

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