The Honorable Charles R. Wolle, Chi ef Judge, United States District Court for 1 the Southern District of Iowa. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3736

___________ John A. Knox, Jr., * * Petitioner - Appellant, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. State of Iowa, * * Respondent - Appellee. *

___________ Submitted: September 10, 1997 Filed: December 23, 1997

___________ Before McMILLIAN, ROSS, and MURPHY, Circuit Judges.

___________ MURPHY, Circuit Judge.
J o hn A. Knox, Jr. was convicted of first degree murder and first degree sexual abuse, in violation of

Iowa Code §§ 707.2(1), 707.2(2), 709.1(1), and 709.2, and was sentenced to two concurrent terms of life imprisonment. After the Iowa Supreme Court af firmed his convictions on direct appeal and his application for postconviction relief
was denied in s tate court, he filed a petition for a writ of habeas corpus under 2 8 U.S.C . § 2254, and now appeals from its denial by the district court. The certificate 1-2-

of appealability focuses on t wo issues: whether his constitutional rights were violated by the failure of the jury foreman to disclose certai n information or by the failure of the prosecution to disclose exculpatory evidence. We affirm.

I.
Elise Gillam, a 57 year-old school teacher in Marshalltown, Iowa, wa s raped and murd ered on June 3, 1987. Her neighbors called the police after they heard her cr y “you will kill me anyway” and “oh my god.” The police found her in bed bleedin g from twenty-five stab wounds on her torso and arms, and she died shortly after arriving at the hospital. Sh e had lost most of the blood in her body, but she was able to report that a n eighbor had attacked her. Knox lived directly behind Gillam’s house, and a knife the size of the murder weapon wa s found in his apartment. That knife had blood
on it that was the same type as the victim’s, and hairs consistent with Knox’s wer e found on the victim’s bedspread and nightgown. His girlfriend testified that she found the clothes Knox had been wearing the night of the murder hanging over the bathtu b the next morning, and she noticed they were damp. The ev idence also included a sheet from the vic tim’s bed which had a blood print that was never identified. Th e prosecution’s expert testified at trial t hat the print appeared to be a composite and was too distorted by the fabric of the sheet to be positively identified.
The jury was unable to reach a verdi ct when Knox was first tried, and a mistrial
was declared. The second trial lasted ten days and ended in a jury finding that Knox was guilty of first degree murder and first degree sexual abuse.
Knox appealed a number of issues to the Iowa Supreme Court, including claims that th e state had violated his right to a speedy trial and that the jury which convicted him was not impartial. The Iowa Supreme Court denied Knox’s req uest to preserve his juror bias claim for postconviction relief and affirmed both convictions, rejecting hi s other claims on the merits. Knox then sought postconviction relief in state court,-3-

raising a number of the same issues along with claims that h e had been denied effective assistance of counsel and that the prosecution had failed to disclose exculpator y evidence. His petition was denied, and the Iowa Court of Appeals affirmed.
Knox then filed this habeas corpus petition in federal court, claiming that he had been denied his sixth amendment right to trial by an imp artial jury due to the foreman’s failure during voir dire to reveal information reflecting bia s. Knox also claimed that his lawyer s at trial and on direct appeal were ineffective, that the prosecution had no t disclosed exculpatory evidence, that he had been denied a speedy trial, and that the trial court abused its discretion in admitting evidence of his prior bad acts. The distric t court held that habeas review of Knox’s juror bias and ineffective assistance of tria l counsel c laims was procedurally barred and that the default could not be excuse d because Knox had made no showing of cause and prejudice. Knox’ s other claims were denied on the merits.
This court g ranted a certificate of appealability limited to the issues of whether Knox was denied his right to trial by an impartial jury d ue to alleged misconduct by the jury fo reman and whether the prosecution’s nondisclosure of allegedly exculpator y evidence regarding a blood print on the victim’s bed sheet violated his constitutional rights. Our review of the district court’ s conclusions of law is de novo, see Hendrix v. Norris , 81 F.3d 805, 807 (8th Cir. 1996), the district court’s findings of fact ar e
re viewed for clear error, and state court findings of fact are presumed to be correc t under 2 8 U.S.C. § 2254(d), see McDonald v. Bowersox , 101 F.3d 588, 592 (8th Cir. 1 9 96), cert. denied , 117 S.Ct. 2527 (1997). Determinations of state law by the Iowa Supreme Cou rt are binding on federal courts. See Frey v. Leapley , 931 F.2d 1253 , 1254 (8th Cir. 1991).

II.Knox’s c laims of ineffective assistance of trial and appellate counsel were not 2 included i n the certificate of appealability, but he mentions them in his brief i n connect ion with the juror bias claim. Ineffective assistance of trial counsel must b e raised in I owa on direct appeal before postconviction relief is available, unless th e defendant can show s ufficient reason for the default. See Jones v. State , 479 N.W.2d 265, 271 (Iowa 1991); Washington v. Scurr , 304 N.W.2d 231, 235 (I owa 1981). Knox first raised this claim in the state postconviction proceeding without offering an y explanat ion for his failure to raise it on direct appeal, thereby defaulting the claim

. Knox has also not specified any errors of appellate counsel that prejudiced him. -4- Knox, an African American, claims that he received information after hi s
conv iction that shows the foreman of the jury which convicted him, Arylahn Johnson, was biased ag ainst him on the basis of race. Before judgment was entered on the jury
verdict, Knox’s attorneys were informed by James Christianson, a mechanic who had worked on Johnson’s minivan three years earlier, that Johnson had at that time talked to him about th e Posse Comitatus. On the basis of this information, Knox alleged that Johnson was a member of the Posse Comitatus and that he should have disclosed hi s membership during voir dire when prospective jurors were asked whether they belonged to any civic organizations or espoused any racist views. Knox alleges that Poss e
members have white supremacist views that would make it impossible to be impartial at a trial of an African American.
Knox moved for a new trial on the ground tha t the jury which convicted him was not impartial as guar anteed by the sixth amendment. The trial court held a hearing on 2 the motio n for which Christianson was subpoenaed. Christianson failed to appear , however, and his sworn statement was offered but rejected as hearsay. In that statement Christianson said Johnson had talked about the Posse Com itatus, but he did not say that Johnson had ever said he belonged to it. Knox presented testimony from the research dir ector of Prairiefire Rural Action, an organization that assists farmers and monitor s rural groups believed to be racist. That individual testified about the Posse Comitatus, but there was no evidence to link Johnson to it. At the conclusion of the hearing, the court held that Knox had not presented sufficient evidence of juror biasWhen the Iowa Supreme Court considered Knox’s request, the relevan t 3 provisi on of the code on postconviction procedure was codified at Iowa Code § 663A.2(4); in 1993 it was moved to Iowa Code § 822.2(4). -5- to support his motion for a new trial and subsequently sentenced him to two concurrent terms of life imprisonment.
On direct appeal, Knox sought permission from the Iowa Suprem e Court to apply for postconviction relief

on the basis of newly discovered evidence in accordance with state procedure. See Iowa Code Ann. § 822.2(4) (West 1994). Knox claimed tha t 3 Chri stianson’s testimony was new evidence which he should be allowed to offer a s grounds for vacating his conviction and for a new trial. The Iowa Supreme Court found t h at this evidence was known to Knox before judgment and therefore was not “newly discovered” a s required under Iowa law. The court refused to preserve the issue fo r postco nviction review because such a proceeding is not an opportunity to relitigate a claim about which one has previously failed to present sufficient evidence. See State v. Knox , 464 N.W.2d 445, 450 (Iowa 1990).

Federal habeas review of a constitutional claim is not available if a state court has refused to consider that claim because o f state procedural grounds that are independent of the federal question and that are adequate to support the decision. See Harris v

. Reed , 489 U.S. 255, 260-62 ( 1989). The state procedural rule must have been “firmly established and regularly followed” at the time it was appli ed in order to bar subsequent federal review. See Ford v. Georgia , 498 U.S. 411, 423-24 (1991).
The Iowa Supreme Court ruling that Knox cou ld not pursue postconviction relief for his juror bias claim did rest on independent and adequate state procedural grounds. As Knox concedes in his brief, that court applied a well-established and regularl y followe d procedural rule in requiring him to demonstrate that his new evidence wa s discovered after final judgment in order to pursue his claim in a postconvictionThe Iowa Supreme Court affirmed a summary judgment in favor of th e 4 newspaper and a judgment on a jury verdict in favor of K nox’s attorneys. See Johnson v. Nickerson , 542 N.W.2d 506 (Iowa 1996). Although we do not reach the merits of this claim, t he merits depend entirely on 5 whether Johnson had a duty to respond di fferently to the particular voir dire questions, see Can non v. Lockhart , 850 F.2d 437, 439-40 (8th Cir. 1988) (citing McDonoug h
-6- proceeding. See Jones v. Scurr , 316 N.W.2d 905, 910 (Iowa 1982); Stanford v. Iowa State Reformatory , 279 N.W.2d 28, 32-33 (Iowa 1979). Federal habeas review i s therefore barred on this claim.
Knox argues that n evertheless the jury foreman’s failure to disclose information reflecting bias denied him his sixth amendment right to trial by an impartial jury. I n support of this argument Knox attempted to expand the record be fore the federal district court to include Christianson’s sworn statement and deposition transcripts from a defamation action brought by Arylahn Johnson, the jury foreman, against Knox’ s attorneys and a local newspaper. 4
The state respon ds that even if Knox could overcome the procedural default, he has not demonstrated that Johnson was actually biased or th at he was tried by a jury not “capa ble and willing to decide the case solely on the evidence before it.” Smith v

. Phill ips , 455 U.S. 209, 217 (1982). The state points out that most of the evidence o n which Knox relies cannot be considered on habeas review, either because it i s inadmissible hearsay or because it was never offered in state court. See 28 U.S.C.A. § 22 54(e)(2) (West 1997); see also Keeney v. Tamayo-Reyes , 504 U.S. 1, 11-1 2 (1992). The state also notes that none of this evidence sho ws that Johnson was actually a member of the Posse Comitatus, but that it shows at most that he participated in tax prote stactivities. According to the state, Knox has not shown either that Johnso n should ha ve affirmatively answered the voir dire questions about racial bias an d membership in civic organizations or that he w as deprived of his sixth amendment right to trial by an impartial jury. 5Power Equip., Inc., v. Greenwood , 464 U.S. 548, 556 (1984)), and petitioner’ s

submissions do not establish that he did. He does not claim that he has established cause and prejudice to excuse hi s 6 procedural default. See Coleman , 501 U.S. at 750. -7- Knox argues that failure to consider his juror misconduct claim would result in
a fundamental miscarriage of justice. See Coleman v. Thompson , 501 U.S. 722, 750 (1991). In order to u se this exception to a procedural bar, a petitioner must offer new

6 reliable evidence of his innocence, in light of which “it is more likely than not that no reasonable jur or would have convicted him.” Schlup v. Delo , 513 U.S. 298, 324, 327 (1995). Knox has not presented new evidenc e of his innocence nor has he even argued tha t he is actually innocent. He merely asserts that his trial was unfair because of a flawed voir dire and a biased juror and that it would be a fundamental miscarriage o f justice not to be able to have a thorough review of the merits. He thus does not meet th e actual innocence standard to open a gateway for consideration of the merits of his procedurally defaulted claim. See id. at 316.

III.

The other ha beas claim certified for review on appeal is that the state violate d petit ioner’s constitutional rights by failing to disclose allegedly exculpatory evidenc e about a blood print found on the victim’s bed sheet. During the investigation of th e crime scene, police discovered what appeared to be a partial palm print. A loca l fingerpri nt

expert, John Kilgore, could not match the print to Knox or to the victim

. Anothe r expert, Ralph Turbyfill, had initially given an oral opinion consistent with Kilgore’s, but later prepared a written report concluding that the print was too distorted to be positively identified. After obtaining Kilgore’s opinion, but prior to receivin g Turbyfill’s written report, the state moved to dismiss the charges against Knox without prejudice. The Kilgore opinion was disclosed to the defense at the time of th e dismissal, but the initial conclusion of Turbyfill was not.Knox suggests that the nondiscl osure of Turbyfill’s initial opinion impacted his 7 constitutional right to a speedy trial. Even if he were clearly raising a speedy trial claim and it had been included in the certificate of appealability, Knox would not succeed

. He has not shown that the reason for the delay was improper, that he asserted hi s speedy trial right by resisting the dismissal, or that he was prejudiced as a result of the delay. See Barker v. Wingo , 407 U.S. 514, 530 (1972). -8- Knox was indicted by a grand jury approximately three months after t he dismissal
on the basis of additional physical evidence unrelated to the blood print. At tria l Turbyfill testified that on first impression the print appeared to be a partial left pal m print, but that closer examination revealed it to be a composite print that was s o distorted by the fabric of the sheet that it could not be positi vely identified, leaving open the possibility that the print could have been made by either Knox or the v ictim. Kilgore testified on the other hand that the pr int was an identifiable right palm print that did not match either of them.
Knox argues that Turbyfill’s initial oral opinion on the blood print wa s exculpatory , and that if disclosed, he would have used it to impeach Turbyfill’s tria l testimony that the print could not be positively identified. The prosecution’s failure to 7 disclose evidence that is favorable to the defendant and material to the issue of guil t violates a defendant’s right to due process. See Brady v. Maryland , 373 U.S. 83, 8 7 (1 963). The mere possibility that the undisclosed evidence might have influenced the jury does not establish materi ality, however. See United States v. Agurs , 427 U.S. 97, 109-10 (1976). Rather, there must be a reasonable probability that its disclosure would have led to a different result at trial, thus undermining confidence in the jury verdict

. See United States v. Bagley , 473 U.S. 667, 682 (1985).

Knox has not shown that the nondisclos ure of the initial oral opinion of Turbyfill places the “justice of the finding of gui lt” in doubt. Agurs , 427 U.S. at 112-13. By the time the state refiled the charges against Knox, it had gathered additional physica l evidence of his guilt which lessened the relative importance of the print to the-9-

prosecution’s case. Moreover, Knox was informed about Kilgore’s e xculpatory opinion at the time of the dismissal and was therefore able to rely on it in preparing his defense and to present it to the jury to undermine Turbyfill’s conclusion. Finally, Turbyfill’ s testimony did not contradict his initial opinion; rather, he developed a plausibl e explanation for the lack of a match between Knox’ s palm and the blood print. At most, appellant c ould have asked Turbyfill to explain why he placed greater weight on hi s
s e cond opinion, which Turbyfill testified was the result of closer examination. Under all the circumstances Turbyfill’s initial opinion would not have been of grea t impeach ment

value. The undisclosed evidence does not cast the whole case in a different light, and the trial resulted in a “verdict worthy of confidence.” Kyles v

. Whitley , 514 U.S. 419, 434-35 (1995).

Since p etitioner has not raised claims which entitle him to habeas relief, th e judgment of the district court is affirmed.
A true copy.

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