--------------- No. 95-4245EM

---------------
Daniel J. Klueg, * * Appellant, * On Appeal from the United * States District Court v. * for the Eastern District * of Missouri Michael Groose, * *

Appellee. * * *

--------------- Submitted: November 19, 1996 Filed: February 6, 1997

--------------- Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and LONGSTAFF,* District Judge.

--------------- RONALD E. LONGSTAFF, District Judge.
On Augu st 6, 1987, Appellant Daniel J. Klueg was convicted by jur y in the Circuit Court of St. Louis County, Missouri on two charges o f burglary in the secon d degree and two charges of felony stealing. He was sente nced as a repeat offender to 45 years imprisonment. The Missour i 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 i n federal district court. Klueg's amended petition raised two constitutiona l challenges to his state court conviction: ineffective assistance of counse l 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 confessi on. On March 15, 1995, a magistrate judge issued a report an d 1 recommendation that t he 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. Th e district j udge adopted the magistrate judge's report and recommendation. 2 In the present appeal, Klueg focuses his argument on one centra l issue: whether his confession was involuntary and should have bee n suppressed from evidence. We affirm the decision of the district court.

I. On December 15, 1986, the St. Louis Police Department learned t hrough

a co nfidential informant that Klueg possessed certain stolen property , including a video cassette recorder ("VCR"). The police gave the informan t currency that had bee n 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 a nother location, where police observed Klueg putting on gloves and retrieving a VCR from a storage shed. At thi s point, Klueg and the informant drove to the residence o f Klueg's girl friend. The informant left the res idence 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 1 6 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, t he 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 the n placed under arrest, and

a search of his pants pocket revealed the $150.00 given to the informant by the police. The pol ice subsequently obtained the girl friend's verbal an d written consent to search the premises, and unco vered property believed to be stolen from two different residences. Klueg was taken to the polic e station for interrogation, and informed of his Miranda rights. He the n signed a Waiver of Rights Form. Init ially, Klueg denied knowledge of or participation in an y burglaries. The inte rrogating officer, Timothy Hagerty, showed Klueg all of the property seized from the girl friend's re sidence, and told Klueg he might also be facing a statutory rape charge, du e to the fact he was found nake d in the home of a fifteen year old girl, clad only in a negligee

. Klueg then completed a written confession, which was admitted into evidenc e at trial.

II. Klueg first contends the district court failed to apply th e app ropriate legal standard in evaluating the voluntariness of hi s confession. We disagree. Under federal habeas law, a reviewing court must evaluate de no vo the ultima te determination as to whether a confession was voluntary, givin g 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 evalu ating whether a confession

was coerced is "'whether, in light of the totality of the circumstances, pressur es exerted upon the suspect have overborne his will.'" Unite d States v. Jones , 23 F.3d 1307, 1313 (8th Cir. 19 94) ( quoting United States v. Jorgensen , 871 F.2d 725, 729 (8th Cir. 1989)). In the present case, the district court gave appropriate deferenc e to the Missouri appellate court's depiction of the factual event s 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, inlight of the totality of the circumstances, Klueg's claim of a coerced confessio n is without merit. It was not unlawful for Detective Hagerty to infor m Klueg he could be cha rged as a result of having sexual intercourse with a 16 year-old girl. United States v. Jorgensen , 871 F.2d 725, 7 30 (8th Cir. 3 1989) (creating fear of imminent arrest did not render confessio n involuntary); Under Missouri law in effect at the time, it would have been possible to charg e Klueg with second degree sexual assault if he indeed had sexua l intercourse with a 16 year-old, regardless of whether she had given he r consent
. Although describing the charge as "statutory rape" might hav e

4 been misleading, we f ind that the prospect of being charged with one more crime was not suffici ent to induce a confession. Klueg had five previous felon y convictions at the time of his interrogation, and was wel l acquainted with the c riminal justice system. See United States v. Jones , 23 F.3d 1 307, 1313 (8th Cir. 1994); United States v. Barahona , 990 F.2 d 412, 418 (8th Cir. 1993) ("totality of circumstances" may include such

### 5

factor s as defendant's prior experience with criminal proceedings). I n ligh t of the totality of the circumstances, we find no evidence tha t "'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 evi dentiaryhearing on the issue of voluntariness. Again, we disagree

. Klueg argues the record is inadequate due to the fact Sergeant Michae l Panneri, who allegedly was present during Klueg's confession, failed to testify. Klueg claims Sergeant Panneri's testimony is necessary to develo p 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 no t entitled t o an evidentiary hearing unless "'he can show cause for hi s failur e to develop the facts in state-court proceedings and actua l prejudice resulting from that failure.'" Stewar t v. Nix , 31 F.3d 741, 743 (8th Cir. 1994) ( quot ing Keeney v. Tamayo-Reyes , 504 U.S. 1, 11, (1992)). As not ed in the respondent-appellee's brief, Klueg has provided n o justification for his own failure to present Ser geant Panneri's testimony during state court pr e- or post-conviction proceedings. Even assuming he could establish cause, Klueg has failed to estab lish actual prejudice from Panneri's failure to testify. With or without admission of Klueg' s conf ession, there is ample evidence in the record to support Klueg' s conviction. See e.g. Parkus v. Delo , 33 F.3d 93 3, 938-940 (8th Cir. 1994) (actual prejudice shown if petitioner can show "reasonable probability " that but for the erro rs, 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.