1The Honorable E. Richard Webber, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-3844

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Michael McRoberts,

Appellant,

v.

Michael Bowersox,

Appellee.

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Appeal from the United States

District Court for the

Eastern District of Missouri.

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Submitted: September 13, 2000

 Filed: December 8, 2000 

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Before HANSEN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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HANSEN, Circuit Judge.

Michael McRoberts appeals the district court's1 denial of his 28 U.S.C. § 2254

petition for habeas corpus. We affirm.
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I.

McRoberts was convicted by a Missouri state court jury of first degree murder

and armed criminal action for the shooting death of Byron Lewis. He was sentenced

to life imprisonment without the possibility of probation or parole on the murder count

and twenty-five years of imprisonment on the armed criminal action count, to be served

concurrently. After an evidentiary hearing was held pursuant to Missouri Supreme

Court Rule 29.15, his motion for postconviction relief was denied. The Missouri Court

of Appeals affirmed his conviction and the denial of his motion for postconviction

relief. McRoberts then filed a § 2254 motion in district court raising four issues. The

district court adopted the magistrate judge's report and recommendation and denied his

§ 2254 motion. We granted a certificate of appealability on the single issue of whether

his trial counsel was ineffective for failing to call three witnesses who could have

testified that they knew of no dispute between McRoberts and the murder victim. 

II.

The district court's findings of fact are reviewed for clear error, and its

conclusions of law are reviewed de novo. See Thomas v. Bowersox, 208 F.3d 699,

701 (8th Cir.), cert. denied, 2000 WL 1281483 (Oct. 30, 2000). "We may grant habeas

relief on a claim that was adjudicated on the merits in state court only if it 'resulted in

a decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States.'"

Id. (citing 28 U.S.C. § 2254(d)(1)). In this case, petitioner must demonstrate, first, that

his counsel's performance was deficient and, second, a "reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland v. Washington, 466 U.S. 668, 694 (1984).

McRoberts contends that trial counsel's performance was deficient in failing to

call three known witnesses who would have testified that they knew of no feud between
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McRoberts and the victim but that they were aware of a dispute between Antoni

Horton, a state's witness, and the victim. McRoberts asserts that had these three

witnesses so testified, the jury would have acquitted McRoberts because they would

have been shown that Horton had a greater motive to kill the victim than McRoberts.

At the state evidentiary hearing, McRoberts failed to present the witnesses, and

therefore, there is no way to ascertain what their testimony may have been. In addition,

even if the asserted witness testimony had come in, it is unlikely the outcome would

have been different given the substantial evidence against McRoberts, including his

own admission to a friend that he "just shot a dude." McRoberts has not demonstrated

that trial counsel's performance constituted ineffective assistance under Strickland.

III.

Consequently, we affirm the judgment of the district court. See 8th Cir. R. 47B.

A true copy.

Attest:

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