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No. 94-3187

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Rick W. Logan, *

*

Petitioner - Appellant, *

*

v. * Appeal from the United States

* District Court for the

Larry Norris, Director, * Western District of Arkansas.

Arkansas Department of *

Correction, * [UNPUBLISHED]

*

Respondent - Appellee. *

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 Submitted: November 16, 1995

 Filed: February 5, 1996

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Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

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PER CURIAM.

Rick W. Logan was convicted in two trials of raping eight

handicapped students while employed at the Sunshine School in

Benton County, Arkansas. He was sentenced to life imprisonment

after the first trial and to six additional, consecutive forty-year

prison terms after the second trial. After exhausting state

remedies, Logan filed two federal habeas corpus petitions

challenging those convictions. In Logan v. Lockhart, 994 F.2d 1324

(8th Cir. 1993), cert. denied, 114 S. Ct. 722 (1994), we affirmed

the denial of the petition challenging his first conviction but

remanded the dismissal of his second petition under the so-called
 1

The HONORABLE H. FRANKLIN WATERS, United States District

Judge for the Western District of Arkansas, who accepted the

Reports and Recommendations of the HONORABLE BEVERLY R. STITES,

United States Magistrate Judge for the Western District of

Arkansas.

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concurrent sentence doctrine. On remand, the district court1 held

an evidentiary hearing and again denied relief, and Logan appeals.

On appeal, Logan argues first that the prosecutor violated

Brady v. Maryland, 373 U.S. 83 (1963), in stating there was

"nothing exculpatory" on a videotape that defense counsel requested

at a pretrial hearing. The videotape recorded school staff

interviewing a student about suspected sexual abuse. Although the

student was not one of the seven Logan stood accused of raping,

Logan presented testimony at the habeas hearing suggesting that the

tape revealed improper interviewing techniques and was therefore

evidence that school staff had also "contaminated" the rape

victims' trial testimony. Logan also argues that his due process

rights were violated when the State was permitted to use the

testimony of these contaminated and therefore incompetent child

victim witnesses. As these issues were procedurally defaulted in

state court, the district court denied relief because Logan did not

prove either cause or prejudice. There was no cause for the

default, the court reasoned, because defense counsel was aware of

the tape, which was in the possession of the local juvenile court,

and chose not to advise the trial court of its potential relevancy

on the issue of contamination. There was no prejudice because the

tape would not have affected the state courts' decision that six of

the seven victims were competent to testify, and would not have

caused Logan's expert to change her adverse assessments that many

of the children were the victims of sexual abuse.

Logan next argues that the prosecutor during closing argument

made a constitutionally impermissible reference to Logan's failure

to testify. The Arkansas Supreme Court agreed but concluded that
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the error was harmless. Logan v. State, 773 S.W.2d 413 (1989).

Applying the harmless error standard adopted for collateral review

proceedings in Brecht v. Abrahamson, 113 S. Ct. 1710 (1993), the

district court concluded the Logan had failed to prove that the

comment in question had a substantial and injurious effect on the

jury's verdict. Finally, Logan argues that the district court

deprived him of a fair evidentiary hearing because the State's

expert witness was unable to attend the hearing, the court advised

that there would be a supplemental hearing, and the court then

concluded that a further hearing was unnecessary and denied Logan's

habeas petition.

After thorough review of the record, we conclude that these

contentions were properly rejected and Logan's petition for a writ

of habeas corpus was properly denied for the reasons stated by the

magistrate judge in the Report and Recommendation dated February

15, 1994, and in the Report and Recommendation dated June 27, 1994.

The judgment of the district court is affirmed.

A true copy.

Attest:

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