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No. 95-4245EM

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Daniel J. Klueg, *

*

Appellant, * On Appeal from the United

* States District Court

v. * for the Eastern District

* of Missouri

Michael Groose, *

*

Appellee. *

*

*

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Submitted: November 19, 1996

 

 Filed: February 6, 1997

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Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and

LONGSTAFF,* District Judge.

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RONALD E. LONGSTAFF, District Judge.

On August 6, 1987, Appellant Daniel J. Klueg was convicted by jury

in the Circuit Court of St. Louis County, Missouri on two charges of

burglary in the second degree and two charges of felony stealing. He was

sentenced as a repeat offender to 45 years imprisonment. The Missouri

Court of Appeals affirmed Klueg's conviction on direct appeal. State v.

Klueg, 781 S.W.2d 133 (Mo. Ct. App. 1989). 

Klueg subsequently filed a petition for writ of habeas corpus in

federal district court. Klueg's amended petition raised two constitutional

challenges to his state court conviction: ineffective assistance of counsel

and involuntariness of his
* The Honorable Ronald E. Longstaff, United States District

Judge for the Southern District of Iowa, sitting by designation.

 The Honorable David D. Noce, United States Magistrate 1

Judge for the Eastern District of Missouri.

 The Honorable Carol E. Jackson, United States District 2

Judge for the Eastern District of Missouri.

2

confession. On March 15, 1995, a magistrate judge issued a report and

1

recommendation that the petition be denied. Specifically, the magistrate

judge found Klueg had procedurally defaulted on his ineffective assistance

of counsel claim, and concluded Klueg's confession was voluntary. The

district judge adopted the magistrate judge's report and recommendation. 2

In the present appeal, Klueg focuses his argument on one central

issue: whether his confession was involuntary and should have been

suppressed from evidence. We affirm the decision of the district court.

I. 

On December 15, 1986, the St. Louis Police Department learned through

a confidential informant that Klueg possessed certain stolen property,

including a video cassette recorder ("VCR"). The police gave the informant

currency that had been photocopied to make a controlled buy of the stolen

VCR, and followed the informant to Klueg's residence. The informant and

Klueg then drove to another location, where police observed Klueg putting

on gloves and retrieving a VCR from a storage shed. 

At this point, Klueg and the informant drove to the residence of

Klueg's girl friend. The informant left the residence with the VCR in his

trunk, and drove to the police station. Officers took possession of the

VCR, and returned to the girl friend's residence. 

Police knocked on the front door, and were greeted by Klueg's 16

year-old girl friend, wearing only a negligee. She told the officers that

Klueg was in the basement. Although the officers did
3

not have a warrant, the girl friend agreed to allow the officers to enter

the house and speak with Klueg. Officers found Klueg in the basement,

lying nude in his girl friend's bed. He was then placed under arrest, and

a search of his pants pocket revealed the $150.00 given to the informant

by the police.

 The police subsequently obtained the girl friend's verbal and

written consent to search the premises, and uncovered property believed to

be stolen from two different residences. Klueg was taken to the police

station for interrogation, and informed of his Miranda rights. He then

signed a Waiver of Rights Form.

Initially, Klueg denied knowledge of or participation in any

burglaries. The interrogating officer, Timothy Hagerty, showed Klueg all

of the property seized from the girl friend's residence, and told Klueg he

might also be facing a statutory rape charge, due to the fact he was found

naked in the home of a fifteen year old girl, clad only in a negligee.

Klueg then completed a written confession, which was admitted into evidence

at trial. 

 

II. 

Klueg first contends the district court failed to apply the

appropriate legal standard in evaluating the voluntariness of his

confession. We disagree. 

Under federal habeas law, a reviewing court must evaluate de novo the

ultimate determination as to whether a confession was voluntary, giving

substantial deference to the state court's finding of facts. Williams v.

Clarke, 40 F.3d 1529, 1543 (8th Cir. 1994) (citing Miller v. Fenton, 474

U.S. 104, 117 (1985)). The legal test for evaluating whether a confession

was coerced is "'whether, in light of the totality of the circumstances,

pressures exerted upon the suspect have overborne his will.'" United

States v. Jones, 23 F.3d 1307, 1313 (8th Cir. 1994) (quoting United States

v. Jorgensen, 871 F.2d 725, 729 (8th Cir. 1989)). 

In the present case, the district court gave appropriate deference

to the Missouri appellate court's depiction of the factual events

surrounding Klueg's interrogation. It then
 In actuality, the detective told Klueg he could be charged 3

for raping a 15 year-old girl, even though Klueg's girl friend was

16 years-old at the time. State v. Klueg, 781 S.W.2d at 135. It

is not clear why the detective made this error, but we do not find

it to be constitutionally significant.

 In 1986, Missouri Revised Statute § 566.050 provided in 4

part:

1. A person commits the crime of sexual assault in

the second degree if, being seventeen years old or more, he has

sexual intercourse with another person to whom he is not married

who is sixteen years old.

Mo. Rev. Stat. § 566.050 (1986) (repealed 1995). 

It is undisputed Klueg was 22 years-old on the day of his

arrest.

4

correctly noted that the voluntariness of a confession was a legal issue,

and conducted an independent review before reaching its conclusion. See

Klueg v. Groose, No. 4:92 CV 754 CEJ, slip op. at 3-4 (E.D. Mo. Mar. 15,

1995). 

 We further agree with the district court's conclusion that, in light

of the totality of the circumstances, Klueg's claim of a coerced confession

is without merit. It was not unlawful for Detective Hagerty to inform

Klueg he could be charged as a result of having sexual intercourse with a

16 year-old girl. United States v. Jorgensen, 871 F.2d 725, 730 (8th Cir. 3

1989) (creating fear of imminent arrest did not render confession

involuntary);

Under Missouri law in effect at the time, it would have been possible to

charge Klueg with second degree sexual assault if he indeed had sexual

intercourse with a 16 year-old, regardless of whether she had given her

consent. Although describing the charge as "statutory rape" might have

4

been misleading, we find that the prospect of being charged with one more

crime was not sufficient to induce a confession. Klueg had five previous

felony convictions at the time of his interrogation, and was well

acquainted with the criminal justice system. See United States v. Jones,

23 F.3d 1307, 1313 (8th Cir. 1994); United States v. Barahona, 990 F.2d

412, 418 (8th Cir. 1993) ("totality of circumstances" may include such
5

factors as defendant's prior experience with criminal proceedings). In

light of the totality of the circumstances, we find no evidence that

"'pressures exerted upon the suspect [had] overborne his will.'" United

States v. Jones, 23 F.3d at 1313 (quoting United States v. Jorgensen, 871

F.2d at 729.

Klueg also claims the district court erred in failing to give him an

evidentiary hearing on the issue of voluntariness. Again, we disagree.

Klueg argues the record is inadequate due to the fact Sergeant Michael

Panneri, who allegedly was present during Klueg's confession, failed to

testify. Klueg claims Sergeant Panneri's testimony is necessary to develop

the record regarding alleged statements made by Detective Hagerty during

the interrogation.

We have previously held that when a petitioner claims the facts have

been inadequately developed in the state court, a petitioner is not

entitled to an evidentiary hearing unless "'he can show cause for his

failure to develop the facts in state-court proceedings and actual

prejudice resulting from that failure.'" Stewart v. Nix, 31 F.3d 741, 743

(8th Cir. 1994) (quoting Keeney v. Tamayo-Reyes, 504 U.S. 1, 11, (1992)).

As noted in the respondent-appellee's brief, Klueg has provided no

justification for his own failure to present Sergeant Panneri's testimony

during state court pre- or post-conviction proceedings. Even assuming he

could establish cause, Klueg has failed to establish actual prejudice from

Panneri's failure to testify. With or without admission of Klueg's

confession, there is ample evidence in the record to support Klueg's

conviction. See e.g. Parkus v. Delo, 33 F.3d 933, 938-940 (8th Cir. 1994)

(actual prejudice shown if petitioner can show "reasonable probability"

that but for the errors, result of proceeding would have been different).

Klueg's remaining arguments are without merit.

The judgment of the district court is affirmed.

A true copy.

Attest:

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