### The Honorab le 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.
Followinghis conviction in Missouri state court for felony murder, stealing without consent, armed criminal action, and second degre e burgla ry, James Edward Bowman was sentenced to two consecutive lif e sentences, plus seven years. After exhausting his state court remedies, he brough t this action pursuant to 28 U.S.C. § 2254. Following th e district court's denial of his petition, we remanded for furthe r 1 proceedings on the basis of newly discovered evi dence. The district court again denied the petition, and we now affirm.

### -2- I.
To analyz e 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 onl y witness to implicate the defendant was Anthon y Lytle, who testified that during the late evening of November 26, 1983 he and two other young men were riding in southeas t Kansas City in a car dri ven by [Bowman]. About 11:00 or 11:30 PM they decided to do so me "stealing," and headed for the home of Earl and Pauline Cham bers, an elderly white couple, at 5801 Paseo. [Bowman] and his companions were black. They hear d voices, apparently of black people, in the home. The shotgun was pl aced in the back seat but there is no evidence that i t wa s taken into the house. When they returned, one of thei r companions indicated that he had reached accord wit h the people inside, apparently another party of burglars. Lytle remained as lookout while the others entered and carried pro perty 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 com panions then dro ve away. This is the essence of Lytle's eyewitnes s testimony. The st ate then introduced the text of a videotape d stateme nt Lytle had given to the police, over appropriat e obj ection. Lytle told the police that he heard conversatio n wi th"old people," and then "I hear, `no, no, no,' and the n 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 the se statements, but said that they were not true. He testified on cross

exa minationthat each of the statements just quoted was a "lie." He also testified that Detective Glynn, th e interrogating officer,

### Rule 27.26 was repealed January 1, 1988, and was replaced by 2 

### Rule 27.15. -3- mistreated him and told him that [Bowman] had already made a statement implicating him. The bo dies of Earl and Pauline Chambers were found th e nex t morning, dead of multiple stab wounds. Pauline wa s wearin g longjohns. The medical examiner testified that Ear l might hav e lived for as much as an hour, and Pauline for a t least half an hour, after the wounding.

State v. B owman , 741 S.W.2d 10, 11-12 (Mo. 1987) (en banc) (footnote s omitted). After the Missouri Supreme Court affirmed his conviction, see id. at 16, Bowman sought post-conviction relief pursuant to Missour i Supre me Court Rule 27.26. The motion court denied his motion for post

2 convictionrelief 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. 90-09 69, 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 h earing, the district court again deni ed relief, Bowman v. Armontrout , 859 F. Supp. 369 (W.D. Mo
. 1994), and Bowman appeals.

II.

In his mo tion for remand to the district court, Bowman alleged that "newly discovered evidence" made a remand necessary in order to full y develop t he record. Our remand order states, in relevant part : "Appellant's motion for remand to the district court for

### -4-

evidentiary hearing o n newly discovered evidence is granted. The case is remand ed to the district court with directions to conduct furthe r proceedings on the issue of newly discovered evidence." As a threshol d matter, Bowman claims that the district court erred in failing to follow our order.

The district court, in interpreting our remand order, allowe d substanti al briefing on the issue and held a status conference. It di d not, however, hold an evidentiary hearing. The district court believed ou r direct ive required it to "consider whether claims of newly discovere d evidence may be brought and if so, to take evidence on those claims. Ther e is no ind ication from the Eighth Circuit that these claims of newl y discov ered evidence should be treated any differently than other suc h 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 fed eral habeas corpus relief. Herrera v. Collins , 506 U.S. 390, 400 (1993) (ci ting Townsend v. Sain , 372 U.S. 293, 317 (1963)). To constitute a basis fo r relief, such claims must establishan independent constitutional violation. Herrera , 506 U.S. at 400. "This rule is grounded in the principle that federal habeas courts sit to ens ure that individuals are not imprisoned in violation of th e constitution - not to correct errors of fact." Id.
Before a petitioner is entitled to a n evidentiary hearing in federal court , he must "`allege[] facts which, if proved, would entitle him t o relief[.]' " Church v. Sullivan , 942 F.2d 1501, 1510 (10th Cir. 1991 ) (alteration in original) (quoting Townsend , 372 U.S. at 312); see also Rui z
v. Norris , 71 F.3d 1404, 1406 (8th Cir. 1995). Based on its thoroug h opinio n, it is apparent that the district court carefully considere d 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 prov isions of law to the contrary, a prior inconsistent statemen t of any witness testifying in the trial of a n of fense under chapter 565, 566 or 568, RSMo , shall be received as substanti ve evidence, and the party offering the prior inconsisten t statement may argue the truth of suc h statement. -5- See Ruiz , 71 F.3d at 1406 (standard of review). We agree that none o f Bowman's "newly disco vered" evidence claims, even if further developed in an evidentiary hearin g, would have entitled him to relief for the reasons discussed below.

III.

Bowman raises numerous claims in this appeal, some of which h e alleges are newly discovered and others which appear to emanate from his initial petition. The essence of Bowman's claim s are as follows: (1) the prosecution made a secret deal with Anthony Lytle, a testifying co

defendant; (2) the autopsy report of Pauline Chambers was falsified; (3) tria l counsel was ineffective in failing to protect his speedy tria l rights; and (4) Missouri Revised Statute § 491.074 was appliedagainst him 3 ex post facto. A. Evidence of Secret Deal

Bowma nfirst alleges that the prosecution made a secret deal wit h Lytle for his testimony, that the deal was not disclosed, and that th e prosec utionelicited false testimony from Lytle about the deal, thu s violating Bowman's due process rights. At Bowman's trial, both th e 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 o ppose Lytle's motion to vacate his sentence based upon a prio r agreement. At that hearing, the assistant prosecutor explained:

### -6- [Anthony Lytle] did not cooperate with us in the se nse of doing anything unusual. In fact he was arguing against o ur 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 culpabl e people . . . Numerous times people fr om our office would go down to the pen to visit with him. . . . What we did tell him is that at the fi rst available opportunity we would not oppose an earl y release, and at the time our thought was if he came up fo r parole, we certainly wou ldn't stand in the way of parole . . .

.

In ad dition, just prior to the start of Bowman's trial, the prosecuto r stated:
AnthonyLytle sent a letter to his attorney and to me stating that h e wanted to come back to court and also filed a motio n with J udge 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, a nd he agreed to testify against Mr. Bowman. He never made that agreemen t 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 ass uming the existence of the deal before Lytle testified, Bowman's due process rights were not violated

. Und er United States v. Agurs , 427 U.S. 97, 103 (1976), due process i s violated if the prosecution fails to disclose any agreement with a witness
or fail s to correct any false statement by a witness, and "there is an y reason able likelihood that the false testimony could have affected th e 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 cross

4 

### examination: Q. And isn't it true that [your attorney] was hired for the veryspecific purpose of trying to make a deal with [th e prosecutor] in return for your testimony here today? A. Something to that extent. Q. That's the only reason he's representing you is t o tryto get you a deal with [the prosecutor], trying t o get you a lighter sentence; is that right? A. Something to that extent, yes, sir. Q. And you know [your attorney] has spoken with [th e pros ecutor] an awful lot about you testifying in thi s case, hasn't he? A. Yes, he has.

. . . -7- considered it, . . . the additional evidence could not have affected the judgment of the jury." Bowman , 859 F. Supp. at 377.

Norma lly, evidence that a witness had a deal with the prosecutio n 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 liv e testimony- not his prior confession. In light of the fact that Lytle's live testimony favore d Bowman, evidence of a deal was more likely to have undermined the live testimony rather than to have strengthened it. We fin d it difficult to fathom a situation where the jur y 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 confessi on and disbelieve his live testimony. It is unl ikely that evidence of a deal would have changed the jury's evaluation.

In additi on, we find persuasive the fact that during Lytle's crossexamin ation, he acknowledged that he was hoping to receive favorabl e 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 anythin g

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 hopin g that you win that appeal and a fter you win that appeal if you cooperated with [the prosecuto r] 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 attorne y] 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 kno w 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.

-8-

### 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 yo u 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 devel oped on the existence of a deal. -9- newly discovered evidence of a deal between Lytle and the prosecution woul d not likely have affec ted 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 b ecause the prosecution suppressed, destroyed, and falsified evidence pertaining to the Pauline Chambe rs' autopsy. The crux of Bowman's claim is that the autopsy report is inc onsistent with the description of the stabbing given by Lytle in his confession. The district court found that all of th e evidence that Bowman referred to was available to him at the time of trial

. Bowma n , 859 F. Supp. at 379 ("The only thing `new' at this time is tha t petitioner's counsel has read the testimony in anew light, with a medical dictionary at his side."). We agree.

A petitioner's failure to develop a material fact in state cour t proceedings will be excused if he can show cause for and prejudice from hi s failure to raise the claim. See Keeney v. Tamayo-Reyes , 501 U.S. 1, 1 1 (1992). "`[C]ause . . . ordinarily requires a showing of some externa l impediment preventing counsel from constructing or raising the claim.' " Cornel l v. Nix , 976 F.2d 376, 380 (8th Cir. 1992) (en banc) (quotin g McCleskey v. Zant , 111 S. Ct. 1454, 1472 (1991), cert. denied , 507 U.S
. 1020 (1 993)). Also relevant is whether the newly discovered evidenc e "could have

### -10-

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 t hat the factual basis of Bowman's claim concerning th e 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, th e district court was correct in denying this claim.

C. Ineffective Assistance

Bowman next claims that his trial attorney was ineffective fo r failing t o protect his speedy trial rights. The district court ha d pre viouslyrejected this claim in Bowman's initial habeas petition. I t declined to address this issue on remand because Bowman did not show any "newlydiscovered evidence" relating to his claim. A district court may declin e to address a successive claim decided adversely against a petitioner in an earlier petition. Ruiz , 71 F.3 d 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). Beca use Bowman raised this claim in his first petition, however, an d because we have not previously addressed it, we believe it warrant s discussion in this appeal.

Bowman first raised an ineffective assistance claim in his Rule 27.26 motion for post-convi ction 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 conduc t
was pr ofessionally unreasonable and that, but for his attorney' s performance, the outcome of the proceeding would have likely been

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dif ferent. Griffin v. Delo , 33 F.3d 895, 900 (8th Cir. 1994) (citin g Stric kland v. Washington , 466 U.S. 668, 694 (1984)). Bowman bears th e burden in showing that his attorney's conduct "fell below an objectiv e standard of reasonabl eness." 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 p rejudiced by his attorney's performance. Griffin , 33 F.3d at 90 0 (citing Lawrence v. Armontrout , 961 F.2d 113, 115 (8th Cir. 1992)).
In Bowman's post-conviction proceeding, the Missouri Court of A ppeals 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 appell ant had been denied his right to a speedy trial. [Further], according t o [co unsel's] testimony at the Rule 27.26 hearing, it was t o [pe titioner's] advantage to delay the start of the trial, a s [counsel] was using the time to try to arrange a fa vorable deal with the prosecutor. Thus, [counsel's] requests fo r 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 , Strick land holds that decisions related to trial strategy are virtuall y uncha llengeable. Id. at 690. The record establishes that counsel fo r Bowm an recognized the Speedy Trial Act issue and made tactical tria l decisions in the interests of his client. Because counsel's trial strategy decisions were objectively reasonable, Bowman's ineffective assistanc e claim is without merit.

D. Ex Post Facto Claim

Bowman al so 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 ini tial habeas petition. The district court denied the claim, finding that it was procedurally defaulte d. On appeal, Bowman does not allege any newly discovered evidence relating to this claim.

Instea d of raising the ex post facto claim in his direct appeal , Bowman challenged the constitutionality of section 491.074 on Confrontatio n Clause grounds. See Bowman , 741 S.W.2d at 12-13 . His failure to properly presen t 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 allege d violation of his cons titutional rights. See Heffernan v. Norris , 48 F.3d 331, 333 (8th Cir. 19 95). 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, w e decline to address it.

E. Actual Innocence
Despite Bowman's failure to show cau se for his default, we can reach the merits of his claims if he can show that he is probably actuall y inn ocent. Wyldes v. Hundley , 69 F.3d 247, 254 (8th Cir. 1995), cert
. den ied , 116 S. Ct. 1578 (1996). Under Schlup v. Delo , 115 S. Ct. 85 1 (1995), a petitioner who raises a gateway claim of actual innocence must satisf ya two-part test. First, the petitioner's allegations o f constitutional error must be supported "with new reliable evidence . . . that was not presented at trial." Id. at 865. Second, the petitioner mus t establish "that it is more likely than not that no reasonable juror would hav e convicted him in the light of the new evidence." Id. at 867. Se e also Wylde s , 69 F.3d at 254. The actual innocence exception require s "review of procedural ly barred, abusive, or successive claims only in the
narrow est type of case--when a fundamental miscarriage of justice woul d 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 i nvolved at the time of the murders. Under Missouri law, Bowman's conviction for felony murder will stand if he participa ted in the burglary when the murders occurred. See Mo. Rev. S tat. § 565.021 (a person commits second-degree murder if h e "commits or attempts to commit any felony, and, in the perpetration or the attempted perpetratio n of such felony . . . another person is killed as a result . . ."). As t he district court found, "Even if petitioner did not wield the murder weapon, as he argues the evidence shows, that does no t prove that he is `actually innocent' of the more broad reaching crime of felony murder." Bowman , 859 F. Supp. at 372, n.3.

Th e state put on ample evidence of Bowman's participation in th e burglary. It is true that Lytle's confession was the only evidence that directly placed Bowma n 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. Eve n Lytl e's live testimony did not conclusively show that Bowman was no t present at the time of the murders. Thus, we agree with the district cour t 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 p etition for writ of habeas corpus is affirmed.

### -14- A true copy.

Attest:

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