1The Hon. Cynthia Holcomb Hall, United States Circuit Judge for the Ninth

Circuit, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

______________

No. 97-3406WM

______________

John C. Burns, *

*

Appellant, *

* On Appeal from the United

v. * States District Court

* for the Western District

* of Missouri.

James A. Gammon and Jeremiah (Jay) *

Nixon, Attorney General, Missouri, *

*

Appellees. *

___________

Submitted: November 18, 1998

Filed: April 7, 1999

___________

Before RICHARD S. ARNOLD, FAGG, and HALL,1

 Circuit Judges.

___________

RICHARD S. ARNOLD, Circuit Judge.

John C. Burns, a Missouri prisoner, brings this petition under 28 U.S.C. § 2254

for a writ of habeas corpus. He challenges his 1987 state-court convictions for

attempted forcible rape, armed criminal action, and first-degree assault. Petitioner
2On February 4, 1998, we granted a certificate of appealability on these three

issues. The certificate was denied with respect to other issues raised below.

Petitioner, through appointed counsel, then moved for a "certificate of probable

cause." Petitioner took the position that the new certificate-of-appealability

procedure enacted by the Anti-Terrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, 110 Stat. 1213 (AEDPA), did not apply to this case, which was

filed in the District Court before the enactment of that statute. By order entered on

March 26, 1998, we denied the motion, citing our Circuit precedent, Tiedeman v.

Benson, 122 F.3d 518 (8th Cir. 1997). A petition for rehearing en banc directed to

that order was denied. Petitioner renews in his brief his argument, previously

rejected, that the certificate-of-appealability provision of AEDPA does not apply to

this case. We respect counsel's desire to preserve his record on the point, but we must

again reject it. Tiedeman is the law of this Circuit. One panel is not free to depart

from the previous holding of another.

Petitioner also argues that, even under AEDPA, the grant of a certificate of

appealability on one or more points brings up the whole case, so as to enable him to

argue the merits of points with respect to which the certificate was denied. We

disagree. The whole point of the new procedure is to limit appeals to issues on which

a substantial showing of the denial of a federal constitutional right has been made.

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argues that his trial counsel rendered ineffective assistance in a number of ways,

including not properly presenting evidence of mental impairment; that the prosecuting

attorney was guilty of misconduct in his closing argument by falsely implying that

Burns, by refusing to plead guilty, had subjected the victim of the crime to the

humiliation of having to testify in public; and that the trial judge had made the trial

fundamentally unfair by saying, in the presence of the jury, that "vicious crimes" had

been committed.2 The District Court denied the writ, and petitioner now appeals. We

reject petitioner's second and third arguments, but remand for further proceedings on

his ineffective-assistance claim. 
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I.

The facts of the case are set forth in the opinion of the Missouri Court of

Appeals affirming Burns's conviction on direct appeal. There seems to be no dispute

about these facts. Burns does not contest what happened. In fact, he confessed to

committing the acts charged. His defense was that he was mentally impaired to such

an extent as to provide him with a complete defense or, at least, to diminish his

responsibility. We quote from the Court of Appeals' opinion:

On the night of December 1, 1986, [appellant] entered the

"Inside Story" bookstore, located in the Red Bridge

Shopping Center. The sales clerk observed him browsing

through the books. Subsequently, he called the clerk from

the back of the store to help him with some books. The

clerk responded but became concerned because of

appellant's facial expression and started to step back from

him when he grabbed her by the shoulder and threw her

into the bookcases. Appellant told the victim, "Don't yell,

don't fight, or I'll cut you." He then pushed up her skirt and

pulled off her pantyhose and pants. The victim informed

appellant that the store owner was due back in a few

minutes. Appellant then began hitting the victim about the

face and ears. Appellant was kneeling in front of the

victim and unzipped his pants and started masturbating. At

this juncture appellant tore open the victim's blouse, pulled

her bra down and cut the straps with a knife. He then

proceeded to again hit the victim in the face. The victim

"was afraid I was going to die." The appellant then

attempted to rape the victim. The victim testified:

Q. Okay. When you say he tried to rape

you – I know this is difficult, but you're going

to have to explain to the Jury exactly what he

did that led you to believe he was trying to

rape you.
3Petitioner says he did present the claim in a pro se petition for habeas corpus

under Mo. Sup. Ct. R. 91. We have held that a Rule 91 petition does not remove a

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A. He was in front of me with his trousers

down. He was trying to penetrate me, and he

was saying, "Don't get tight, don't get tight."

All I could see was the knife sticking there in

the box of books, and he would say, "Don't

get tight."

At this time the victim heard the book shop door open and

yelled for help. The defendant then grabbed his knife and

jabbed it in her throat and cut across her throat. He then

jumped up and left.

State v. Burns, 759 S.W.2d 288, 290 (Mo. App. 1988).

The jury found petitioner guilty on all three charges, attempted forcible rape,

armed criminal action, and first-degree assault. Under Missouri law, because Burns

had no prior convictions, it was the jury's duty to fix the punishment. It sentenced

Burns to 44 years, 50 years, and life imprisonment on the three counts, respectively.

The convictions were affirmed on direct appeal. Petitioner did not seek postconviction relief in the state courts either under Mo. Sup. Ct. R. 27.26, which was in

effect at the time of the convictions, in 1987, or under the successor rule, Mo. Sup.

Ct. R. 29.15, which became effective on January 1, 1988.

II.

Petitioner's first argument is that he was denied the effective assistance of

counsel at his trial. The District Court denied relief on this theory without reaching

the merits. The argument, that Court held, was procedurally barred because it had

never been properly presented to the state courts.3
prior procedural default. Byrd v. Delo, 942 F.2d 1226, 1231-32 (8th Cir.), stay

denied, 501 U.S. 1271 (1991).

4Actually, this is only the general rule. At the time of Burns's trial, such claims

could also have been raised, to a limited extent, on direct appeal. We discuss this

aspect of the case later in this opinion.

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There is no doubt that petitioner's federal claim of ineffective assistance of

counsel has been defaulted. It is also clear that this default is due to the application

of an independent and adequate state procedural rule. Petitioner not having properly

raised the issue up to now, there is no process presently available to enable him to

raise it in the state courts. State remedies, therefore, have been exhausted (the

exhaustion doctrine refers to the absence of presently available state remedies), but

the argument is procedurally barred, unless the bar can somehow be avoided.

Petitioner can avoid the bar in one of two ways, either by showing cause for the

procedural default and prejudice resulting from it, or by showing a fundamental

miscarriage of justice. See, e.g., Coleman v. Thompson, 501 U.S. 722, 750 (1991).

A fundamental miscarriage of justice is not suggested. Petitioner does contend,

however, that he had cause for the procedural default.

Burns argues that he has established cause in two different ways. The first has

to do with his failure to seek post-conviction relief. Burns had no Sixth Amendment

right to the assistance of counsel in seeking post-conviction relief. E.g., Coleman v.

Thompson, supra, 501 U.S. at 752. Indeed, if he had had counsel, either retained or

appointed, any deficiencies in that lawyer's performance could not have constituted

cause for present purposes. Id. at 752-54. Burns points out that, with respect to

claims of ineffective assistance of counsel, a Missouri post-conviction trial court is

the first court in which such claims could be made.4 Whether that situation should

be carved out from the Coleman rule was a question not addressed in Coleman itself,

see id. at 755-56. This Court, however, has addressed it. We decided the issue

adversely to Burns's position in Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir.
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1992). Burns argues at some length that Nolan was wrong, but this panel cannot

change Nolan, for reasons we have already discussed.

Burns argues that his case is different because of his lawyers' conflict of

interest. The lawyers who represented him at trial, two public defenders, were

obviously not in a position to attack their own conduct. Two different lawyers were

appointed to represent petitioner on direct appeal, but they were also public

defenders, apparently from the same office as trial counsel. (All four lawyers gave

their address as the 10th floor of the Jackson County Courthouse.) So Burns never

got a lawyer who could effectively, or even properly, argue that his trial counsel had

been ineffective. The difficulty with this argument is that Burns had no federal right

to any lawyer so far as post-conviction proceedings were concerned. Coleman v.

Thompson, supra. 

Petitioner asserts that the "absence of a general right to the effective assistance

of counsel in rule . . . 29.15 proceedings" does not "bar a finding of 'cause' when, as

here, the attorney who was representing the petitioner at the relevant time labored

under a conflict of interest." Brief for Appellant 24. Two cases are cited for this

proposition: Jennings v. Purkett, 7 F.3d 779, 782 (8th Cir. 1993), and Jamison v.

Lockhart, 975 F.2d 1377, 1380 (8th Cir. 1992). Both of them are distinguishable.

No doubt there was a conflict of interest in the present case. The lawyer who

represented petitioner on direct appeal came from the same office as the lawyer who

had represented him at trial. So far as an argument that trial counsel had been

constitutionally ineffective is concerned, direct-appeal counsel had a clear conflict

of interest. The same would have been true if the Court had appointed counsel to

represent petitioner in a 29.15 or 27.26 proceeding, and that lawyer had come from

the same office. The conflict situation addressed in Jennings and Jamison was quite

different. There, it was trial counsel himself who had a conflict of interest, for

example, a business connection with a key witness that might have prevented counsel
5Mo. Sup. Ct. R. 29.07(b)(4) provides that, after the end of a trial, the Court

must advise a convicted defendant that he has a right to question the performance of

his counsel, and inquire whether there are any reasons for dissatisfaction. If

substantial reasons are stated, the Court must then appoint counsel to prepare a 29.15

post-conviction petition. No such advice was given in the present case. The rule,

however, did not become effective until January 1, 1988, several months after

petitioner's conviction.

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from making a vigorous cross-examination. That sort of conflict was indeed

discussed in the context of "cause" for cause-and-prejudice purposes in both the

Jennings and Jamison opinions. The crux of the reasoning in those opinions,

however, was that the respective petitioners did not know, or at least claimed not to

have known, of the alleged conflict in time to file a 29.15 proceeding within the

period allowed by that rule. 

It was this lack of knowledge that led us to find "cause" for purposes of the

procedural-bar analysis, or, at least, to remand for further findings on the issue of

cause. Nothing of the kind exists here. Petitioner's point on the merits is not that trial

counsel, at the time of trial, had a conflict of interest, but rather that trial counsel was

constitutionally ineffective in other respects – for example, in not properly presenting,

through the use of expert witnesses, petitioner's defense of diminished capacity. All

of the facts creating that claim had already occurred by the conclusion of the trial, and

all of those facts were known to petitioner. 

Perhaps there is a hint of unreality in this kind of reasoning, given the fact that

petitioner had no lawyer to advise him as to what might or might not have been

ineffective assistance of his trial counsel in the constitutional sense.5 The answer is

that the law, in its solicitude for the protection of judgments from collateral attack,

presumes that clients have this kind of knowledge. Otherwise, it would never be

appropriate to invoke the procedural-bar doctrine against a petitioner who had not

been given post-conviction counsel. Such a proposition would run squarely contrary
6Both the respondent in the present case and the State of Arkansas, which has

filed an amicus brief, argue that Dawan was wrongly decided. The argument is

misdirected and must be rejected. As we have already observed in this opinion, one

panel is not free to disregard the holding of another. Moreover, we reaffirmed Dawan

in Robinson v. Norris, 60 F.3d 457 (8th Cir. 1995), cert. denied, 116 S. Ct. 1344

(1996).

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to the established doctrine that there is no Sixth Amendment right to post-conviction

counsel, and that neither the absence of such counsel, nor the deficient performance

of such counsel, if appointed, can create cause to avoid a procedural bar.

In short, we believe the law requires us to reject petitioner's conflict-of-interest

theory insofar as it is based on our Jennings and Jamison opinions.

In an effort to avoid this conclusion, petitioner cites Dawan v. Lockhart, 980

F.2d 470 (8th Cir. 1992). That case involved a new Arkansas post-conviction

procedure that bore some similarities to the Rule 29.15 procedure in Missouri. In our

order granting a certificate of appealability in this case, we invited the parties to

discuss "whether appellant had a federal constitutional right to the appointment of

counsel to pursue the then-new Missouri post-conviction [relief] procedure," citing

Dawan. The key provision in Dawan was newly adopted Ark. R. Crim. P. 36.4, under

which any claim of ineffective assistance of counsel had to be presented in the motion

for new trial. If this motion, including such claims, was then denied, the ineffectiveassistance issues would go up to the appellate court as part of the direct appeal. This

procedure, we held, created a post-trial, rather than a post-conviction procedure,

properly so called, and, in the special circumstances of the Dawan case, we held that

there was a right to the appointment of counsel in connection with the motion for new

trial.6 The difficulty with petitioner's Dawan argument is that Dawan concerned a

particular Arkansas procedure which, we have held, is crucially different from

Missouri's Rule 29.15. The latter rule creates a collateral remedy, not part of the

direct appeal. Lowe -Bey v. Groose, 28 F.3d 816 (8th Cir.), cert. denied, 115 S. Ct.
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674 (1994). There is a Sixth Amendment right to appointment of counsel on direct

appeal. That right, plus our understanding of Ark. R. Crim. P. 36.4, was the

underpinning of Dawan. There is no such right in post-conviction collateral

proceedings, and Missouri Rule 29.15 is such a proceeding. Dawan is therefore not

controlling here.

Finally, however, petitioner points out that, at the time of his trial, claims of

ineffective assistance in Missouri could be raised on direct appeal. The then-existing

collateral remedy, Mo. Sup. Ct. R. 27.26, was not the only means of raising a claim

of ineffective assistance of trial counsel, as Rule 29.15 now is. In 1987, when

petitioner was convicted, petitioner could have claimed ineffective assistance of trial

counsel on direct appeal, because the new Rule 29.15 had not yet gone into effect.

And here petitioner's conflict-of-interest argument strikes home, because the counsel

the state appointed to handle the direct appeal had, as we have noted, a clear conflict

of interest so far as the ineffective-assistance issue was concerned. The State points

out, and petitioner concedes, that ineffective-assistance claims could, at that time,

have been raised on direct appeal only "so long as the record would permit the

appellate court to evaluate the claims." Brief for Appellant 25. See State v. Wheat,

775 S.W.2d 155 (Mo. 1989) (en banc), cert. denied, 493 U.S. 1030 (1990); State v.

Harvey, 692 S.W.2d 290 (Mo. 1985) (en banc). So we agree with petitioner to this

extent: the absence of conflict-free counsel on direct appeal did violate his Sixth

Amendment rights and does furnish cause for his having failed to argue in the state

courts that his trial counsel was ineffective, but only to the extent that the trial record

itself would have permitted the appellate court to evaluate the claims of

ineffectiveness.

In order to avoid the procedural bar, of course, petitioner has to show more

than cause. He also has to show prejudice. In addition, he also has to show deficient

performance and prejudice in the sense of Strickland v. Washington, 466 U.S. 668

(1984), in order to succeed on the merits of any claim of ineffective assistance. And
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finally, in the special circumstances of this case, he would have to show that his

ineffective-assistance arguments would have been apparent on the face of the record,

so as to be reachable on direct appeal. None of these issues has been briefed, and we

do not think it would be prudent for us to address them in the first instance. Instead,

this case will be remanded to the District Court for further proceedings to determine

whether petitioner can show prejudice for procedural-bar purposes, whether his

arguments could have been reached on direct appeal in the Missouri state courts

under the procedures that obtained in 1987, and finally (if the analysis gets this far),

whether he is entitled to relief under Strickland v. Washington, supra.

III.

Petitioner's next point has to do with a passage in the closing argument of the

prosecution. Petitioner's counsel's closing argument had made the point that a

defendant is entitled to justice just as much as the state is, and that petitioner had a

right to a fair trial and a fair verdict. In response, the prosecutor referred to the rights

of criminal defendants. He stated:

MR. BEDNAR: And it's fair that this defendant have a

trial, and it's fair that the State has the burden to prove

beyond a reasonable doubt that this defendant is guilty of

the crimes charged, the highest burden known to our

system. And now it's also fair that he has Caroline Arnold

come in here and he had the ability to sit there and, face-toface, confront all of the witnesses against him, to question

them through his attorney, to cross-examination, one of the

finest machines invented by man to get to the truth. That

was fair, and it was fair that Caroline Arnold had to go

through those humiliating --

MS. SCHENKENBERG: Your Honor, I object to that. It

was the State that called Ms. Arnold.
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THE COURT: Objection overruled.

MR. BEDNAR: (Continuing) -- that she had to go through

those humiliating sexual assaults and those violent acts

perpetrated against her in this trial so that the defendant,

through his counsel, could cross-examine her.

Now it's fair that you, the Jury, who we chose on Monday,

go back to your jury room and deliberate upon the

punishment that this defendant deserves for the violent acts

that he committed at the Red Bridge Shopping Center on

December 1st.

Petitioner argues that these remarks invited the jury to punish him for exercising his

constitutional right to trial by jury and to confrontation of the witnesses against him.

We first deal with a procedural point. The Missouri Court of Appeals held that

counsel's objection was not sufficiently specific to preserve anything for appellate

review. "Such an objection states no grounds for why the remark is opposed, does

not allow the court an informed opportunity to rule and ultimately presents no

question to the trial court for decision or to the appellate court for review." 759

S.W.2d at 294. The State argues that the point is procedurally barred, not having

been properly preserved in the state courts.

The Missouri Court of Appeals, however, went on to give the argument plainerror review. "[U]nless the complained of remarks are determined to have a 'decisive

effect' on the jury no plain error exists." Id., quoting State v. Wilson, 757 S.W.2d

622, 630 (Mo. App. 1988). In the Court's view, it could not be determined that the

argument had a decisive effect on the jury, and so, the Court held, there was no plain

error.
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When the state courts have given a point plain-error review, is that point

procedurally barred on federal habeas? As the District Court observed, our

precedents are in some disarray on this issue. See Mack v. Caspari, 92 F.3d 637, 641

n.6 (8th Cir. 1996). In this situation, this panel is free to select what it believes to be

the better rule. We think we should do what the state court did: give the point plainerror review. In this way, we are not encroaching at all on the authority of the state

courts; we are fully respecting their procedural rule; and we are giving the argument

the same degree of attention that the state courts gave it. This is what we did in

Robert v. Bowersox, 137 F.3d 1062, 1064 (8th Cir. 1998), and in Chambers v.

Bowersox, 157 F.3d 560, 566 (8th Cir. 1998), and we will do the same thing here.

We do not think that the argument amounted to plain error. Error it surely was,

because the prosecutor's sarcastic statement invited the jury, though not in express

words, to punish petitioner for making the victim of the crime go through the ordeal

of cross-examination, which petitioner had every right to do. As the Missouri Court

of Appeals observed, the remarks were those of "a prosecuting attorney ensnared in

his own eloquence, [and] add[ed] little to the case . . .." They were "better left

unsaid." 759 S.W.2d at 294-95. We think the trial judge ought to have instructed the

jury to disregard the remarks, and certainly not to penalize petitioner for having

exercised his right to go to trial. But petitioner has not met his burden of

demonstrating that the prosecutor's statements had a decisive effect on the jury's

decision. The comments were isolated in nature, and there was overwhelming

evidence of petitioner's guilt. Petitioner makes the point, in addition, that the remarks

were untrue, because he had offered to plead guilty, an offer which the State had

rejected. Accordingly, in petitioner's view, it was the actions of the State, and not of

his side, that had necessitated the trial. We cannot agree. True, petitioner had offered

to plead guilty, but he had not done so unconditionally. A more accurate statement

would be that petitioner had asked to enter into plea negotiations, a request that the

State refused. The State was under no obligation to negotiate. It had a right to go to

trial, just as petitioner did. Petitioner could have avoided a trial by pleading guilty
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unconditionally. He chose not to do so. In our view, there is no miscarriage of

justice here, and therefore no plain error.

IV.

Petitioner's third and final point relates to a remark that the trial judge made in

the presence of the jury. As we have noted, Burns did not contest the charge, in the

sense of denying that he had committed the acts alleged. His lawyers attempted to

present a defense of diminished capacity or lack of specific intent, but they did not

offer any professional mental-health evidence in support of this defense. They tried

to get it before the jury in the form of "life history" testimony from the petitioner and

his parents: events of petitioner's childhood, trouble he had gotten into in school, the

difficulties of his new life as a college student, and the like. The prosecution objected

to this lay evidence, and the trial court sustained the objection. Notwithstanding this

action by the Court, which, as far as we can tell, was completely appropriate, counsel

persisted in asking questions that the Court had clearly ruled out. When objections

were sustained, the questions were rephrased in different form, and the objections

were again sustained. Finally, the trial judge lost patience and made the following

statement in the presence of the jury:

THE COURT: Objection sustained. Counsel, you've

elected to make your disrespectful argument in the

presence of the Jury and I'm going to answer you in the

presence of the Jury. You have not elicited any

information from this defendant about his mental state at

the time of these vicious crimes and the Court has properly

ruled that those other items are inadmissible, and you're

admonished not to criticize the Court's order and not to try

to get improper matters into evidence.
7On the other hand, defense counsel herself stated in closing argument: "There

is no real issue about the crime itself." Tr. 224 (Respondent's Exhibit A).

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Defense counsel then moved for a mistrial "based on the Court's . . .

characterization . . . that this was a vicious crime. It's a comment by the Court on this

crime, and I believe that's uncalled for." The motion was denied.

The Court, in our view, should not have lost its patience and should not have

said what it did in the jury's presence. The Court's statement that counsel had

behaved disrespectfully, we think, was permissible, but we think it was error for the

Court to refer to the crimes charged as "vicious crimes." No doubt they were vicious.

The evidence amply supports the statement. In addition, there was no doubt that the

defendant had done what the State charged. Whether his actions were "crimes,"

however, was a decision to be made by the jury, and the trial court should not have

made a statement that assumed the answer to this question.7 The State makes the

argument that the evidence was harmless, and surely it was, so far as the question of

guilt or innocence was concerned, but petitioner also argues that this particular jury

had the job of fixing his sentence, and that the Court's characterization could well

have caused the jury to give the defendant the severe sentence he received. The

sentence, as we have noted, was 44 years, 50 years, and life on the three counts,

respectively. This sentence was almost exactly what the State had requested in its

closing argument (50 years, 50 years, and life). The sentence was made consecutive

by the Court, which the Court had the authority to do, but the present point has to do

with the jury's action in fixing the sentence. It is hard for anyone to say what

motivated the jury to make this decision, and impossible to know whether the trial

judge's use of the adjective "vicious" played any part in the jury's thought processes.

In this situation, there being no argument of procedural bar, we have some

difficulty with the point presented. Neither side can show what effect the improper
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remark had on the jury, so the case would come down, we suppose, to burden of

proof. If the State has the burden of proof of proving the error harmless beyond a

reasonable doubt, it is hard to see how it could win. Here, however, we think the

State does win, because the remedy of a mistrial is a drastic one, and certainly not the

only way the error could have been cured. A proper instruction admonishing the jury

to disregard the Court's characterization of the crimes, or, at least, reminding the jury

that it was its job, and not the Court's, to fix the penalty, no matter what remarks the

Court may have made during the trial, would, in our opinion, have cured the error.

No such instruction was requested. We agree with the statement of the Missouri

Court of Appeals:

The appellant did not seek a specific ruling, such as

requesting the trial court to instruct the jury to disregard his

characterization of the assault, instead he sought a mistrial.

Mistrials are drastic remedies and the granting of a mistrial

is within the trial judge's discretion.

759 S.W.2d at 291. We agree with this holding, and reject petitioner's argument for

this reason.

V.

In short, petitioner's second and third points, having to do with the prosecutor's

closing argument and with the trial court's remarks in the presence of the jury, are

rejected, the former on a plain-error basis and the latter after full review on the merits.

Petitioner's first argument, ineffectiveness of trial counsel, is remanded for further

proceedings. On remand, the District Court should determine first whether petitioner

has shown prejudice for procedural-bar purposes. If the answer to this question is

yes, the Court should consider the merits of petitioner's ineffective-assistance

argument. An important point to keep in mind, however, is that the ineffective-
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assistance argument is open on habeas only to the extent that a Missouri appellate

court would have reviewed it on a direct appeal filed before January 1, 1988. To this

limited extent, the judgment of the District Court dismissing the petition for habeas

corpus is reversed, and the cause is remanded for further proceedings consistent with

this opinion.

It is so ordered.

A true copy.

Attest:

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