The Honorable Joseph E. Stevens, Jr., United States District 1

Judge for the Western District of Missouri. 

___________

No. 94-3712

___________

James Edward Bowman, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the

James Anthony (Tony) Gammon, * Western District of Missouri.

Superintendent of the Moberly *

Correctional Center; Jeremiah *

W. (Jay) Nixon, Attorney *

General of the State of *

Missouri, *

*

Appellees. *

___________

 Submitted: January 10, 1996

 Filed: June 7, 1996

___________

Before WOLLMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

Following his conviction in Missouri state court for felony murder,

stealing without consent, armed criminal action, and second degree

burglary, James Edward Bowman was sentenced to two consecutive life

sentences, plus seven years. After exhausting his state court remedies,

he brought this action pursuant to 28 U.S.C. § 2254. Following the

district court's denial of his petition, we remanded for further

1

proceedings on the basis of newly discovered evidence. The district court

again denied the petition, and we now affirm.
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I.

To analyze Bowman's contentions in this appeal, we begin by setting

forth the facts underlying his conviction. The Missouri Supreme Court, in

Bowman's direct appeal, summarized the record as follows:

The only witness to implicate the defendant was Anthony

Lytle, who testified that during the late evening of November

26, 1983 he and two other young men were riding in southeast

Kansas City in a car driven by [Bowman]. About 11:00 or 11:30

PM they decided to do some "stealing," and headed for the home

of Earl and Pauline Chambers, an elderly white couple, at 5801

Paseo. [Bowman] and his companions were black. They heard

voices, apparently of black people, in the home. The shotgun

was placed in the back seat but there is no evidence that it

was taken into the house. When they returned, one of their

companions indicated that he had reached accord with the people

inside, apparently another party of burglars. Lytle remained

as lookout while the others entered and carried property out of

the house. Lytle then went into the house and saw a body. One

of the burglars who had been in the house, said, "Don't worry

about it. We took care of him." Lytle and his companions then

drove away. This is the essence of Lytle's eyewitness

testimony.

The state then introduced the text of a videotaped

statement Lytle had given to the police, over appropriate

objection. Lytle told the police that he heard conversation

with "old people," and then "I hear, `no, no, no,' and then

sounds of pain." The statement continued,

 I ran back to see what was going on and Eddie

[Bowman] was standing there over this man I saw one

stab, I saw him do the last one. . . .

He said that the person [Bowman] was standing over was wearing

longjohns.

Lytle at trial admitted having made these statements, but

said that they were not true. He testified on crossexamination that each of the statements just quoted was a

"lie." He also testified that Detective Glynn, the

interrogating officer,
 Rule 27.26 was repealed January 1, 1988, and was replaced by 2

Rule 27.15.

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mistreated him and told him that [Bowman] had already made a

statement implicating him.

The bodies of Earl and Pauline Chambers were found the

next morning, dead of multiple stab wounds. Pauline was

wearing longjohns. The medical examiner testified that Earl

might have lived for as much as an hour, and Pauline for at

least half an hour, after the wounding.

State v. Bowman, 741 S.W.2d 10, 11-12 (Mo. 1987) (en banc) (footnotes

omitted). After the Missouri Supreme Court affirmed his conviction, see

id. at 16, Bowman sought post-conviction relief pursuant to Missouri

Supreme Court Rule 27.26. The motion court denied his motion for post2

conviction relief and the Missouri Court of Appeals affirmed the denial.

Bowman v. State, 787 S.W.2d 822 (Mo. Ct. App. 1990). In October 1990,

Bowman filed a habeas corpus petition, asserting four claims for relief.

The district court issued an order denying Bowman relief, Bowman v.

Armontrout, No. 90-0969, Opinion and Order Denying Petition for a Writ of

Habeas Corpus, (June 29, 1992), and Bowman appealed. In February 1993,

before filing an appellate brief, Bowman filed a motion to remand on the

basis of newly discovered evidence. We granted the motion on March 5,

1993, and instructed the district court to conduct further proceedings on

this issue. Without conducting an evidentiary hearing, the district court

again denied relief, Bowman v. Armontrout, 859 F. Supp. 369 (W.D. Mo.

1994), and Bowman appeals. 

II.

In his motion for remand to the district court, Bowman alleged that

"newly discovered evidence" made a remand necessary in order to fully

develop the record. Our remand order states, in relevant part:

"Appellant's motion for remand to the district court for
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evidentiary hearing on newly discovered evidence is granted. The case is

remanded to the district court with directions to conduct further

proceedings on the issue of newly discovered evidence." As a threshold

matter, Bowman claims that the district court erred in failing to follow

our order. 

The district court, in interpreting our remand order, allowed

substantial briefing on the issue and held a status conference. It did

not, however, hold an evidentiary hearing. The district court believed our

directive required it to "consider whether claims of newly discovered

evidence may be brought and if so, to take evidence on those claims. There

is no indication from the Eighth Circuit that these claims of newly

discovered evidence should be treated any differently than other such

claims similarly situated." Bowman, 859 F. Supp. at 371. 

Claims of newly discovered evidence that relate only to the guilt or

innocence of a state prisoner do not warrant federal habeas corpus relief.

Herrera v. Collins, 506 U.S. 390, 400 (1993) (citing Townsend v. Sain, 372

U.S. 293, 317 (1963)). To constitute a basis for relief, such claims must

establish an independent constitutional violation. Herrera, 506 U.S. at

400. "This rule is grounded in the principle that federal habeas courts

sit to ensure that individuals are not imprisoned in violation of the

constitution - not to correct errors of fact." Id. 

Before a petitioner is entitled to an evidentiary hearing in federal

court, he must "`allege[] facts which, if proved, would entitle him to

relief[.]'" Church v. Sullivan, 942 F.2d 1501, 1510 (10th Cir. 1991)

(alteration in original) (quoting Townsend, 372 U.S. at 312); see also Ruiz

v. Norris, 71 F.3d 1404, 1406 (8th Cir. 1995). Based on its thorough

opinion, it is apparent that the district court carefully considered

Bowman's claims. In light of the record, we hold that the district court

did not abuse its discretion in concluding that no evidentiary hearing was

necessary.
 The statute reads as follows: 3

Notwithstanding any other provisions of law to

the contrary, a prior inconsistent statement

of any witness testifying in the trial of an

offense under chapter 565, 566 or 568, RSMo,

shall be received as substantive evidence, and

the party offering the prior inconsistent

statement may argue the truth of such

statement.

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See Ruiz, 71 F.3d at 1406 (standard of review). We agree that none of

Bowman's "newly discovered" evidence claims, even if further developed in

an evidentiary hearing, would have entitled him to relief for the reasons

discussed below. 

III.

Bowman raises numerous claims in this appeal, some of which he

alleges are newly discovered and others which appear to emanate from his

initial petition. The essence of Bowman's claims are as follows: (1) the

prosecution made a secret deal with Anthony Lytle, a testifying codefendant; (2) the autopsy report of Pauline Chambers was falsified; (3)

trial counsel was ineffective in failing to protect his speedy trial

rights; and (4) Missouri Revised Statute § 491.074 was applied against him 3

ex post facto. 

A. Evidence of Secret Deal

Bowman first alleges that the prosecution made a secret deal with

Lytle for his testimony, that the deal was not disclosed, and that the

prosecution elicited false testimony from Lytle about the deal, thus

violating Bowman's due process rights. At Bowman's trial, both the

prosecutor and Lytle denied having any type of deal. However, at Lytle's

29.15 hearing for post-conviction relief held in January 1990, the state

did not oppose Lytle's motion to vacate his sentence based upon a prior

agreement. At that hearing, the assistant prosecutor explained:
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[Anthony Lytle] did not cooperate with us in the sense of doing

anything unusual. In fact he was arguing against our case, but

we believe he knew that by arguing against our case, it allowed

us to put the video [of his confession] on, which resulted in

the conviction of the three other, we believe, more culpable

people . . . 

Numerous times people from our office would go down to the pen

to visit with him. . . . What we did tell him is that at the

first available opportunity we would not oppose an early

release, and at the time our thought was if he came up for

parole, we certainly wouldn't stand in the way of parole . . .

.

In addition, just prior to the start of Bowman's trial, the prosecutor

stated:

Anthony Lytle sent a letter to his attorney and to me stating

that he wanted to come back to court and also filed a motion

with Judge Lombardo in which he wanted to come back as a

witness for the Court in these cases. At that time, officers

of the Kansas City, Missouri Police Department were sent to the

Jefferson City Penitentiary, talked to Mr. Lytle, and he agreed

to testify against Mr. Bowman. He never made that agreement

before.

Based on these events, the district court found that, at some point,

the prosecution made a "deal" with Lytle not to oppose early parole. The

court also concluded that this did amount to new evidence because it was

not available at the time Bowman presented his claims to the state court.

Although the court found it was unclear whether the "deal" was made before

or after Lytle testified, it held that, even assuming the existence of the

deal before Lytle testified, Bowman's due process rights were not violated.

Under United States v. Agurs, 427 U.S. 97, 103 (1976), due process is

violated if the prosecution fails to disclose any agreement with a witness

or fails to correct any false statement by a witness, and "there is any

reasonable likelihood that the false testimony could have affected the

judgment of the jury." We agree with the district court that "[b]ecause

of the peculiar nature of Mr. Lytle's testimony and the way in which the

jury must have
 The following exchange occurred during Lytle's cross4

examination:

Q. And isn't it true that [your attorney] was hired for the

very specific purpose of trying to make a deal with [the

prosecutor] in return for your testimony here today?

A. Something to that extent.

Q. That's the only reason he's representing you is to

try to get you a deal with [the prosecutor], trying to

get you a lighter sentence; is that right?

A. Something to that extent, yes, sir.

Q. And you know [your attorney] has spoken with [the

prosecutor] an awful lot about you testifying in this

case, hasn't he?

A. Yes, he has.

. . .

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considered it, . . . the additional evidence could not have affected the

judgment of the jury." Bowman, 859 F. Supp. at 377.

Normally, evidence that a witness had a deal with the prosecution

would cause the jury to question the credibility of the witness. However,

evidence of a deal would only have affected the credibility of Lytle's live

testimony - not his prior confession. In light of the fact that Lytle's

live testimony favored Bowman, evidence of a deal was more likely to have

undermined the live testimony rather than to have strengthened it. We find

it difficult to fathom a situation where the jury would give more credence

to a testifying witness who had a deal with the prosecution. In any event,

the jury chose to believe Lytle's prior confession and disbelieve his live

testimony. It is unlikely that evidence of a deal would have changed the

jury's evaluation.

In addition, we find persuasive the fact that during Lytle's crossexamination, he acknowledged that he was hoping to receive favorable

treatment from the state in exchange for his cooperation. In effect, he

admitted to everything but a deal. Because the 4
Q. It's true Mr. Lytle, that you're not getting anything

out of this testimony, is that right?

A. That's right.

Q. And you say the only reason you're here today is because

you want to be; isn't that right?

A. That's right.

Q. But isn't it true, Mr. Lytle, that you're really hoping

that you win that appeal and after you win that appeal if you

cooperated with [the prosecutor] he is going to not prosecute

you for murder anymore?

A. I anticipate something. I don't know--

Q. You're going to get something out of this, aren't you?

A. Hoping for something.

Q. You're hoping that all that money spent on [your attorney]

doesn't go to waste, isn't that right?

A. Yes, I am.

Q. And [your attorney] knows that no deal has been made for

your testimony, right?

A. As far as to my knowledge, yes.

Q. And you know that you couldn't be forced to testify here

if you didn't want to, don't you?

A. Right.

Q. But even knowing all that, your lawyer has told you that

it's okay for you to go ahead and testify; isn't that right?

A. Right.

Q. And that's because you know that if you don't testify you

can't even hope to get a deal out of [the prosecutor] later;

isn't that right?

A. Yes.

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Q. And that's why you're here, isn't it?

A. I'm here because I want to be here.

Q. You're here because you have to be here because if you

don't testify [the prosecutor] isn't going to help you, isn't

[sic] he?

A. I don't think so. I don't think he would, no, sir.

 It is axiomatic that no evidentiary hearing is warranted on 5

this issue, for there is nothing further that could be developed on

the existence of a deal. 

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newly discovered evidence of a deal between Lytle and the prosecution would

not likely have affected the jury's verdict, the district court correctly

denied this claim.5

B. Falsification of Autopsy

Bowman next asserts that his due process rights were violated because

the prosecution suppressed, destroyed, and falsified evidence pertaining

to the Pauline Chambers' autopsy. The crux of Bowman's claim is that the

autopsy report is inconsistent with the description of the stabbing given

by Lytle in his confession. The district court found that all of the

evidence that Bowman referred to was available to him at the time of trial.

Bowman, 859 F. Supp. at 379 ("The only thing `new' at this time is that

petitioner's counsel has read the testimony in a new light, with a medical

dictionary at his side."). We agree.

A petitioner's failure to develop a material fact in state court

proceedings will be excused if he can show cause for and prejudice from his

failure to raise the claim. See Keeney v. Tamayo-Reyes, 501 U.S. 1, 11

(1992). "`[C]ause . . . ordinarily requires a showing of some external

impediment preventing counsel from constructing or raising the claim.'"

Cornell v. Nix, 976 F.2d 376, 380 (8th Cir. 1992) (en banc) (quoting

McCleskey v. Zant, 111 S. Ct. 1454, 1472 (1991), cert. denied, 507 U.S.

1020 (1993)). Also relevant is whether the newly discovered evidence

"could have
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been discovered earlier in the exercise of due diligence." Cornell, 976

F.2d at 380 (citing United States v. Bednar, 776 F.2d 236, 238 (8th Cir.

1985)).

We find that the factual basis of Bowman's claim concerning the

autopsy evidence was reasonably available to him at the time of his trial.

Thus, Bowman should have presented this claim to the state court. Because

he has failed to demonstrate cause for his failure to do so, we need not

discuss whether he was prejudiced by the default. Accordingly, the

district court was correct in denying this claim.

C. Ineffective Assistance

Bowman next claims that his trial attorney was ineffective for

failing to protect his speedy trial rights. The district court had

previously rejected this claim in Bowman's initial habeas petition. It

declined to address this issue on remand because Bowman did not show any

"newly discovered evidence" relating to his claim. A district court may

decline to address a successive claim decided adversely against a

petitioner in an earlier petition. Ruiz, 71 F.3d at 1409. "The motion to

remand is the functional equivalent of a second or successive petition for

habeas corpus." Smith v. Armontrout, 888 F.2d 530, 540 (8th Cir. 1989).

Because Bowman raised this claim in his first petition, however, and

because we have not previously addressed it, we believe it warrants

discussion in this appeal.

 

Bowman first raised an ineffective assistance claim in his Rule 27.26

motion for post-conviction relief. After holding an evidentiary hearing,

the motion court denied relief and the Missouri Court of Appeals affirmed.

To prevail on this claim, Bowman must establish that his attorney's conduct

was professionally unreasonable and that, but for his attorney's

performance, the outcome of the proceeding would have likely been
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different. Griffin v. Delo, 33 F.3d 895, 900 (8th Cir. 1994) (citing

Strickland v. Washington, 466 U.S. 668, 694 (1984)). Bowman bears the

burden in showing that his attorney's conduct "fell below an objective

standard of reasonableness." See Griffin, 33 F.3d at 900 (citing Wing v.

Sargent, 940 F.2d 1189, 1191 (8th Cir. 1991)). He must also prove that he

was prejudiced by his attorney's performance. Griffin, 33 F.3d at 900

(citing Lawrence v. Armontrout, 961 F.2d 113, 115 (8th Cir. 1992)). 

In Bowman's post-conviction proceeding, the Missouri Court of Appeals

rejected his ineffective assistance claim regarding the Speedy Trial Act

issue for the following reasons:

[P]rior to the start of the trial, [counsel] did make a motion

for dismissal of the case on the ground that appellant had been

denied his right to a speedy trial. [Further], according to

[counsel's] testimony at the Rule 27.26 hearing, it was to

[petitioner's] advantage to delay the start of the trial, as

[counsel] was using the time to try to arrange a favorable deal

with the prosecutor. Thus, [counsel's] requests for

continuances were a reasonable trial strategy . . . .

Under Strickland, there is a strong presumption that an attorney's

performance is professionally reasonable. 466 U.S. at 689. Moreover,

Strickland holds that decisions related to trial strategy are virtually

unchallengeable. Id. at 690. The record establishes that counsel for

Bowman recognized the Speedy Trial Act issue and made tactical trial

decisions in the interests of his client. Because counsel's trial strategy

decisions were objectively reasonable, Bowman's ineffective assistance

claim is without merit.

D. Ex Post Facto Claim

Bowman also alleges that the application of section 491.074 against

him constituted an ex post facto violation. Bowman raised
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this claim in his initial habeas petition. The district court denied the

claim, finding that it was procedurally defaulted. On appeal, Bowman does

not allege any newly discovered evidence relating to this claim. 

Instead of raising the ex post facto claim in his direct appeal,

Bowman challenged the constitutionality of section 491.074 on Confrontation

Clause grounds. See Bowman, 741 S.W.2d at 12-13. His failure to properly

present this claim in state court constitutes a procedural default.

Because the claim has been procedurally defaulted, Bowman must establish

cause for the default and show that he was prejudiced by the alleged

violation of his constitutional rights. See Heffernan v. Norris, 48 F.3d

331, 333 (8th Cir. 1995). Bowman has failed to advance any cause in this

appeal for his procedural default. Thus, we need not examine whether he

was prejudiced. Because this claim has been procedurally defaulted, we

decline to address it.

E. Actual Innocence

Despite Bowman's failure to show cause for his default, we can reach

the merits of his claims if he can show that he is probably actually

innocent. Wyldes v. Hundley, 69 F.3d 247, 254 (8th Cir. 1995), cert.

denied, 116 S. Ct. 1578 (1996). Under Schlup v. Delo, 115 S. Ct. 851

(1995), a petitioner who raises a gateway claim of actual innocence must

satisfy a two-part test. First, the petitioner's allegations of

constitutional error must be supported "with new reliable evidence . . .

that was not presented at trial." Id. at 865. Second, the petitioner must

establish "that it is more likely than not that no reasonable juror would

have convicted him in the light of the new evidence." Id. at 867. See

also Wyldes, 69 F.3d at 254. The actual innocence exception requires

"review of procedurally barred, abusive, or successive claims only in the

narrowest type of case--when a fundamental miscarriage of justice would

otherwise result." Ruiz, 71 F.3d at 1409 (citing Schlup, 115
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S. Ct. at 864).

The district court found no merit in Bowman's actual innocence claim.

At trial, Bowman defended on the ground that although he participated in

the burglary at the Chambers' home, he was not involved at the time of the

murders. Under Missouri law, Bowman's conviction for felony murder will

stand if he participated in the burglary when the murders occurred. See

Mo. Rev. Stat. § 565.021 (a person commits second-degree murder if he

"commits or attempts to commit any felony, and, in the perpetration or the

attempted perpetration of such felony . . . another person is killed as a

result . . ."). As the district court found, "Even if petitioner did not

wield the murder weapon, as he argues the evidence shows, that does not

prove that he is `actually innocent' of the more broad reaching crime of

felony murder." Bowman, 859 F. Supp. at 372, n.3.

The state put on ample evidence of Bowman's participation in the

burglary. It is true that Lytle's confession was the only evidence that

directly placed Bowman at the scene at the time of the murders. The jury

chose to believe Lytle's confession and disbelieve his live testimony,

despite evidence that tended to discredit the confession. In any event,

the jury could reasonably have inferred that the murders occurred during

the course of the burglary regardless of the confession evidence. Even

Lytle's live testimony did not conclusively show that Bowman was not

present at the time of the murders. Thus, we agree with the district court

that Bowman has not established a claim of actual innocence.

IV.

We have considered the remainder of Bowman's claims and find them to

be without merit. The judgment dismissing the petition for writ of habeas

corpus is affirmed.
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A true copy.

Attest:

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