The Honorable Joseph E. Stevens, Jr., United States District Judge for the

1

Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 96-2581

_____________

Glennon Paul Sweet, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Western

* District of Missouri.

Paul Delo, Superintendent, Potosi *

Correctional Center, *

*

Appellee. *

_____________

Submitted: June 12, 1997

Filed: September 10, 1997

_____________

Before BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

_____________

BOWMAN, Circuit Judge.

Glennon Sweet, a prisoner on Missouri's death row, appeals from the judgment

of the District Court denying his petition for habeas corpus. We affirm. 1
Rule 29.15, which became effective shortly before Sweet was sentenced,

2

provides a post-conviction proceeding for, inter alia, claims "that the conviction or

sentence imposed violates the constitution and laws of [Missouri] or the constitution

of the United States." Mo. Sup. Ct. R. 29.15(a). At the time Sweet was sentenced,

Rule 29.15 required the defendant to file a motion in the sentencing court within thirty

days after the transcript was filed in the direct appeal. See Mo. Sup. Ct. R. 29.15(b).

The direct appeal was then suspended and later consolidated with the appeal from the

judgment on the 29.15 motion. See Mo. Sup. Ct. R. 29.15(l). Missouri has since

abandoned the consolidated appeal procedure. A Rule 29.15 motion is now filed after

the disposition of the direct appeal. See Mo. Sup. Ct. R. 29.15(b) (effective Jan. 1,

1996); Sloan v. Bowersox, 77 F.3d 234, 235 (8th Cir.) (recognizing amended rule),

cert. denied, 116 S. Ct. 980 (1996). The prior version of the rule governs Sweet's post-

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I.

On February 8, 1987, Sweet sped past Trooper Russell Harper of the Missouri

State Highway Patrol on a highway outside of Springfield, Missouri. Harper turned on

his signal lights and gave chase, following Sweet as he turned onto a side road. After

Sweet stopped and opened the door of his truck, Harper slowly drove up behind him.

Sweet jumped out of the truck, aimed his semi-automatic assault rifle at the trooper's

car, and fired several bursts. Twenty-nine bullets hit Harper's vehicle; one struck

Harper in the head, killing him. Harper never even unbuttoned the holster flap covering

his service revolver.

Sweet was arrested and charged with first-degree murder. After a change of

venue to Clay County, he was tried and found guilty. Finding as aggravating

circumstances that the murder was committed against a peace officer engaged in his

official duties and that it was committed for the purpose of avoiding a lawful arrest, the

jury on December 12, 1987 fixed the punishment at death. Following the denial of his

motion for a new trial, on January 20, 1988, Sweet was sentenced to death. Sweet took

a timely direct appeal to the Missouri Supreme Court and also, pursuant to Missouri

Supreme Court Rule 29.15, filed a pro se post-conviction motion in Clay County 2
conviction remedies, however, see Mo. Sup. Ct. R. 29.15(m) (1996), and citations in

this opinion to Rule 29.15 refer to the version of the rule in effect at the time Sweet was

sentenced.

Several months after affirming Sweet's conviction, the Missouri Supreme Court 3

developed a doctrine of "abandonment" to mitigate the harsh consequences of

appointed counsel's failure to comply with the strict deadlines of Rule 29.15. See

Sanders v. State, 807 S.W.2d 493, 494-95 (Mo. 1991) (en banc) (remanding to circuit

court for examination of abandonment claim in circumstances similar to those of

Sweet's case); see also Moore v. State, 934 S.W.2d 289, 291-92 (Mo. 1996) (en banc)

(describing further developments in abandonment doctrine). Sweet does not claim the

benefit of the abandonment doctrine, and we know of no reason why Sweet's default

should be excused merely because it might not be considered a default if it occurred

today. See Mack v. Caspari, 92 F.3d 637, 640 (8th Cir. 1996) (rejecting abandonment

argument where petitioner's appeal was decided before doctrine was propounded), cert.

denied, 117 S. Ct. 1117 (1997).

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Circuit Court, raising a number of constitutional claims. The motion court appointed

counsel for Sweet. More than four months after counsel was appointed, Sweet

amended his 29.15 motion to assert additional claims. This amended petition was not

timely, however, because Sweet was required to file any amendment no later than sixty

days after the appointment of counsel. See Mo. Sup. Ct. R. 29.15(f). The motion court

denied Sweet's 29.15 motion in September 1989.

In the consolidated appeal, the Missouri Supreme Court held that the claims

raised for the first time in Sweet's amended 29.15 motion were not properly raised and

declined to consider them. See State v. Sweet, 796 S.W.2d 607, 615 (Mo. 1990) (en

banc). The court affirmed Sweet's conviction and sentence in the direct appeal and

3

affirmed on the merits the denial of the timely 29.15 claims in the post-conviction

appeal. See id. at 610-17. The United States Supreme Court denied certiorari on

March 18, 1991. Sweet v. Missouri, 499 U.S. 932 (1991).
We reject the State's argument that Sweet appealed only the denial of his Rule 4

59(e) motion and not the District Court's earlier denial of habeas relief. The State's

contention is belied by the language of Sweet's notice of appeal ("Sweet appeals . . .

from the final judgment denying petitioner habeas relief pursuant to 28 U.S.C. 2254 and

denying petitioner's motion for relief pursuant to Rule 59(e) . . . .") and by common

sense. We cannot imagine that a prisoner under a death sentence would abandon his

substantive claims and appeal only a procedural motion, and we certainly do not

believe that Sweet has done so in this case.

The State objected to our granting the certificate without specifying the issue

5

or issues as to which Sweet had made a substantial showing of the denial of a

constitutional right. See 28 U.S.C.A. § 2253(c)(2)-(3) (West Supp. 1997). We denied

the State's objection. More recently, our Court has held that § 2253, as amended by

the AEDPA, applies to appeals filed after the enactment of the AEDPA and that

certificates of appealability must specify the potentially meritorious issues raised by the

petitioner. See Tiedeman v. Benson, No. 96-3977, slip op. at 4, 7 (8th Cir. Aug. 6,

1997). The Court in Tiedeman considered a certificate of appealability granted by a

district court, recognized that it failed to specify the appropriate issues for appeal,

treated the appeal as an application for a certificate of appealability instead, and denied

the application. See id. at 7-8. Because the certificate in the instant case was granted

by our own Court and the parties have fully briefed and argued the merits of the appeal,

we will proceed to consider the merits.

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Days later, Sweet filed this habeas corpus action in federal district court.

Counsel was appointed, and Sweet amended his petition several times. The State

moved to dismiss, and the District Court ultimately denied relief and dismissed the

action on November 22, 1995. Sweet then filed a motion to alter or amend the

judgment pursuant to Federal Rule of Civil Procedure 59(e). The court denied Sweet's

motion on May 9, 1996, and Sweet appealed to this Court. We granted Sweet a

4

certificate of appealability pursuant to § 102 of the then-newly-enacted Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.

1214 (codified at 28 U.S.C.A. § 2253 (West Supp. 1997)). Following a dispute about

the scope of the certificate of appealability, the appeal proceeded.5
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In this appeal, Sweet raises nineteen claims, which we summarize under twelve

headings as follows: (1) ineffective assistance of trial counsel during the guilt phase

of the trial in (a) failing to investigate certain witnesses and evidence, (b) failing to

request a curative instruction or a mistrial during the prosecution's closing argument,

(c) failing to investigate and present evidence in support of his motion to suppress

evidence, and (d) allegedly being addicted to cocaine during the trial; (2) ineffective

assistance of trial counsel during the penalty phase of the trial in (a) failing to object

appropriately to the prosecutor's cross-examination of one of Sweet's witnesses, (b)

failing to investigate and present certain mitigating evidence, and (c) failing to make an

offer of proof to preserve for appeal certain mitigating testimony; (3) misconduct of the

prosecutor in (a) introducing a prior bad act during the guilt phase, (b) failing to provide

proper notice of the witnesses and evidence to be introduced during the penalty phase,

and (c) using Sweet's arrest record to cross-examine one of Sweet's witnesses during

the penalty phase; (4) improper exclusion of a juror; (5) improper exclusion of

exculpatory evidence during Sweet's cross-examination of one of the prosecution's

witnesses; (6) unlawful search and seizure of Sweet's property; (7) improper jury

instruction defining reasonable doubt; (8) exclusion of certain mitigating evidence

during the penalty phase; (9) improper admission of evidence of a prior bad act during

the guilt phase; (10) improper jury instruction on mitigating circumstances during the

penalty phase; (11) failure of the Missouri Supreme Court to conduct a meaningful

proportionality review; and (12) ineffective assistance of appellate and post-conviction

counsel.

II.

We begin by discussing those of Sweet's claims that are not properly before us

for one reason or another.
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A.

As a rule, we do not consider claims that have not been presented to the District

Court. See Hornbuckle v. Groose, 106 F.3d 253, 256 n.5 (8th Cir. 1997), petition for

cert. filed, No. 97-5054 (June 6, 1997). We decline to consider two of Sweet's claims

for this reason: his search-and-seizure claim (#6) and his claim that the trial court

improperly admitted evidence of a prior bad act against him in the guilt phase (#9). A

claim related to Sweet's ninth claim has been preserved for review; we consider this

claim, which turns on prosecutorial misconduct, later in this opinion.

Sweet's sixth claim is also improper for another reason. A Fourth Amendment

claim of an unconstitutional search or seizure is not cognizable in a habeas corpus

action unless the state has not "provided an opportunity for full and fair litigation" of

the claim. Stone v. Powell, 428 U.S. 465, 494 (1976). We are not empowered to

examine whether the Missouri courts made errors of law in deciding the Fourth

Amendment issues argued by Sweet. See Willett v. Lockhart, 37 F.3d 1265, 1270 (8th

Cir. 1994) (en banc), cert. denied, 514 U.S. 1052 (1995). A search-and-seizure claim

is cognizable in a habeas action only if "the state provided no procedure by which the

prisoner could raise his Fourth Amendment claim, or the prisoner was foreclosed from

using that procedure because of an unconscionable breakdown in the system." Id. at

1273. Sweet has not even attempted to make such a showing, nor does the record

support it.

B.

Next we discuss those of Sweet's claims that are procedurally defaulted. Sweet

defaulted two of his claims by failing to present them to the Missouri courts at any

stage of his direct appeal or his post-conviction proceedings. See Nave v. Delo, 62

F.3d 1024, 1030 (8th Cir. 1995) (recognizing that failure to present issue to state courts

is a default), cert. denied, 116 S. Ct. 1837 (1996). These claims are that trial counsel
Although we have held that Sweet's substantive Fourth Amendment claim is

6

barred by the doctrine of Stone v. Powell, his claim of ineffective assistance of counsel

with regard to the search-and-seizure issue is cognizable in a habeas action. See

Kimmelman v. Morrison, 477 U.S. 365, 382-83 (1986).

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was ineffective in failing to make an offer of proof of certain mitigating evidence during

the penalty phase (#2c) and that the jury instruction on reasonable doubt violated Cage

v. Louisiana, 498 U.S. 39 (1990) (per curiam) (#7). Another claim was defaulted when

Sweet failed to raise it in his post-conviction appeal to the Missouri Supreme Court.

See Reese v. Delo, 94 F.3d 1177, 1181 (8th Cir. 1996) (holding that failure to raise

claim in post-conviction appeal is considered abandonment of claim), cert. denied, 117

S. Ct. 2421 (1997). This barred claim is that Sweet's trial counsel was ineffective in

his handling of the motion to suppress evidence (#1c).6

Still other claims are barred because they were first raised in state court in

Sweet's untimely amended 29.15 motion, as the Missouri Supreme Court held. See

Sweet, 796 S.W.2d at 615. This default encompasses all of Sweet's claims of

ineffective assistance of trial counsel (#1 and #2).

One of these ineffective-assistance claims requires further discussion. Although

it was not raised in a timely 29.15 motion, the Missouri Supreme Court considered one

issue on the merits: whether trial counsel was ineffective in failing to investigate or call

Freddie Hensley as a witness (part of Sweet's claim #1a). See id. at 616. When a state

court decides an issue on the merits despite a possible procedural default, no

independent and adequate state ground bars consideration of that claim by a habeas

court. See Harris v. Reed, 489 U.S. 255, 262-63 (1989); County Court of Ulster

County v. Allen, 442 U.S. 140, 152-54 (1979). Accordingly, we will consider the

Freddie Hensley issue below in our discussion of Sweet's preserved claims. We note

that the same reasoning does not apply to Sweet's claim of ineffective assistance of

counsel in failing to object adequately to the use of Sweet's arrest record in the crossexamination of one of Sweet's witnesses during the penalty phase (#2a). The Missouri
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Supreme Court considered a related issue--whether the use of the arrests was proper

as a matter of state evidence law--but it did not consider these events in the guise of a

claim of ineffective assistance of counsel, most likely because Sweet did not present

the claim as such on appeal. See Sweet, 796 S.W.2d at 614. This claim is therefore

barred.

Sweet argues that many of these claims are properly before us because he raised

them in state court in both a motion to recall the mandate and a state petition for habeas

corpus. We disagree. A motion to recall the mandate is a proper means of preserving

an issue for habeas review only in very limited circumstances, as we explained in Nave,

62 F.3d at 1031-32. In particular, we noted that a motion to recall the mandate is not

a proper method of raising claims of trial error or ineffective assistance of trial counsel.

See id. at 1031. Because all of Sweet's defaulted claims fall within these categories,

his motion to recall the mandate was not a proper method of raising them, and the

motion could do nothing to vitiate his earlier defaults. Sweet's argument that his state

habeas petition under Missouri Supreme Court Rule 91 preserved his claims is similarly

flawed. As we have recognized, a state habeas proceeding may not be used to raise a

claim that was known to the petitioner at the time he filed his Rule 29.15 motion. See

Reese, 94 F.3d at 1181 (citing State ex rel. Simmons v. White, 866 S.W.2d 443, 446-

47 (Mo. 1993) (en banc)). Sweet inveighs mightily against this conclusion, arguing that

the restricted scope of review available under Rule 29.15, as compared to the earlier

Rule 27.26, makes a state habeas petition a viable means of raising certain claims for

the first time. This argument is incorrect for three reasons. First, we have already

decided this point against Sweet in Reese, a case we decided several months before

Sweet filed his opening brief. Second, Simmons, on which we relied in Reese, was

decided in the Rule 29.15 era, although it relied on the companion rule applicable to

post-conviction challenges to guilty pleas. Third, the Missouri Supreme Court denied

Sweet's own habeas petition on procedural grounds. See State ex rel. Sweet v. Delo,

No. 75071, slip op. at 1 (Mo. Sept. 22, 1992). It is not the office of a federal habeas

court to determine that a state court made a mistake of state law. See Estelle v. 
We also note that the relevant claim in Simpson was a claim of ineffective

7

assistance of appellate counsel, a type of claim that may be raised for the first time in

a motion to recall the mandate. See Nave, 62 F.3d at 1031.

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McGuire, 502 U.S. 62, 67-68 (1991). If the highest court of Missouri concludes that

Sweet's claims have not been raised properly in a state habeas proceeding, that is the

end of the matter.

Much of Sweet's argument is aimed at the wrong target. Sweet relies, for

example, on Simpson v. Camper, 927 F.2d 392 (8th Cir. 1991), in which we held a

habeas appeal in abeyance while the petitioner brought a motion to recall the mandate

in state court. The issue in Simpson, however, was not procedural default, but

exhaustion of state remedies. See id. at 393; see also 28 U.S.C. § 2254(b)-(c) (1994)

(requiring exhaustion of remedies before federal court may grant habeas relief). The 7

State does not argue that Sweet has failed to exhaust his available remedies in state

court, but exhaustion alone is not sufficient to entitle Sweet to consideration of his

claims in federal court. If the petitioner has "failed to follow applicable state

procedural rules in raising the claims," Sawyer v. Whitley, 505 U.S. 333, 338 (1992),

he is procedurally barred from raising them in a federal habeas action, regardless of

whether he has exhausted his state-court remedies. See Coleman v. Thompson, 501

U.S. 722, 731-32 (1991).

C.

Finding these claims defaulted, we turn to Sweet's argument that he has

established cause and prejudice for the defaults.

In all cases in which a state prisoner has defaulted his federal claims in

state court pursuant to an independent and adequate state procedural rule,

federal habeas review of the claims is barred unless the prisoner can

demonstrate cause for the default and actual prejudice as a result of the
At times, Sweet seems to ignore the issue of cause and argues that the prejudice 8

he suffered from the ineffective assistance of his trial counsel is, by itself, enough to

excuse his default. Another way of reading Sweet's argument is that the ineffective

assistance of his trial counsel is cause for his failure to raise his claims of ineffective

assistance of trial counsel. We cannot endorse Sweet's attempt to bootstrap himself

into habeas relief, which would have the effect of reducing the "cause" requirement to

a nullity. In any event, the argument makes no sense, because it was not trial counsel's

duty to raise the issue of his own ineffectiveness; that was the duty of Sweet and his

post-conviction counsel. See Oxford v. Delo, 59 F.3d 741, 747 (8th Cir. 1995) ("[W]e

fail to see any causal connection between trial counsel's performance and Oxford's

failure to verify his amended Rule 29.15 motion. . . . Oxford cannot resurrect this

procedurally defaulted claim [of ineffective assistance of trial counsel] by cloaking it

in the garb of a cause argument."), cert. denied, 116 S. Ct. 1361 (1996).

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alleged violation of federal law, or demonstrate that failure to consider the

claims will result in a fundamental miscarriage of justice.

Coleman, 501 U.S. at 750. Because we conclude that Sweet has not established cause

for any of his defaults, we need not consider the question of prejudice.

As cause for failing to raise his claims properly in state court, Sweet argues that

he received ineffective assistance of post-conviction counsel. A defendant, however, 8

has no constitutional right to effective assistance of post-conviction counsel. See

Coleman, 501 U.S. at 752. Absent a constitutional right, Sweet cannot claim

ineffective assistance of post-conviction counsel as cause for his procedural defaults.

See id. at 752-54. We have recognized that this principle applies to claims of

ineffective assistance of Rule 29.15 counsel in Missouri. See Reese, 94 F.3d at 1182;

Oxford v. Delo, 59 F.3d 741, 748 (8th Cir. 1995), cert. denied, 116 S. Ct. 1361 (1996).

Accordingly, Sweet's effort to show cause for his defaults fails as a matter of law.

Sweet also claims that a fundamental miscarriage of justice will result if we do

not review his defaulted claims on the merits. He does not claim that he is actually

innocent of the murder for which he was convicted; he merely repeats the claimed 
In a pro se filing in this Court, Sweet states that he is claiming actual innocence 9

and requests time and funds to develop his claim. We have held recently that a "bare,

conclusory assertion" that a petitioner is actually innocent is insufficient to excuse a

procedural default, and we also have rejected the argument that a prisoner is entitled

to a hearing to assist him in developing evidence of actual innocence. Weeks v.

Bowersox, No. 95-4123, slip op. at 24-29 (8th Cir. July 24, 1997) (en banc). Sweet

has had many years to develop evidence of actual innocence, and he has submitted

none.

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constitutional errors in his trial and pleads for justice. Sweet's argument falls far short 9

of the showing of actual innocence that is required to meet the miscarriage-of-justice

exception. See Schlup v. Delo, 513 U.S. 298, 316 (1995) ("Without any new evidence

of innocence, even the existence of a concededly meritorious constitutional violation

is not in itself sufficient to establish a miscarriage of justice that would allow a habeas

court to reach the merits of a barred claim."). Nor can Sweet meet the more demanding

test required to show "actual innocence" of the death penalty. See Sawyer, 505 U.S.

at 336 (holding that petitioner "must show by clear and convincing evidence that, but

for a constitutional error, no reasonable juror would have found the petitioner eligible

for the death penalty under the applicable state law").

We therefore conclude that Sweet has shown no reason why we may consider

his defaulted claims, and we do not discuss them further.

III.

We now turn to two claims that the Missouri Supreme Court reviewed for plain

error even though Sweet did not preserve them properly for appeal. We have remarked

recently that our decisions on plain error review and procedural bar are in apparent

disagreement. See Hornbuckle, 106 F.3d at 257. Some of our cases hold that a plain

error review by a state court does not cure a procedural default, while others hold that

when a state court conducts a plain error review, we also review for plain error in a 
Sweet's related contention that the instruction informed the jurors that they

10

"may" consider any mitigating factors rather than telling them that they "must" consider

such factors was not presented to the District Court. In any event, we have rejected the

same argument in other cases. See Reese, 94 F.3d at 1186.

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habeas action. See id. (citing, respectively, Toney v. Gammon, 79 F.3d 693, 699 (8th

Cir. 1996), and Mack v. Caspari, 92 F.3d 637, 641 & n.6 (8th Cir. 1996)). We are

powerless to resolve this disagreement, but we may choose which line of cases to

follow. See id. For different reasons, we elect to review one of Sweet's claims for

plain error and conclude that the other claim is defaulted.

Sweet's tenth claim is that the jury instruction on mitigating circumstances

violated Mills v. Maryland, 486 U.S. 367 (1988), by requiring the jurors to agree

unanimously that a mitigating circumstance existed before they could sentence him to

life imprisonment. See id. at 384. Although Sweet failed to object to the instruction

at trial, perhaps because Mills had not yet been decided, he raised the claim of error in

his direct appeal, and the Missouri Supreme Court reviewed it for plain error, rejecting

the argument as foreclosed by Missouri precedent. See Sweet, 796 S.W.2d at 614.

Because Sweet presented this claim clearly to the state court in constitutional terms, we

will exercise our discretion and review it for plain error. See Hornbuckle, 106 F.3d at

257. We conclude that no plain error is present. In McDonald v. Bowersox, 101 F.3d

588 (8th Cir. 1996), cert. denied, 117 S. Ct. 2527 (1997), we considered a jury

instruction identical in all material respects to the instruction in Sweet's case, and we

concluded that it did not violate Mills. See id. at 599-600. We reach the same

conclusion in the instant case.10

In his direct appeal to the Missouri Supreme Court, Sweet complained that the

prosecutor failed to comply with a Missouri statute governing disclosure of witnesses

to be called at the penalty phase of the trial. See Mo. Rev. Stat. § 565.005 (1986). The

court reviewed that claim for plain error and found it wanting. See Sweet, 796 S.W.2d

at 613 n.4. Sweet now raises the issue on habeas (claim #3b), but in the form of a 
Sweet also alleges that the prosecutor improperly refused to disclose the

11

evidence that the State planned to introduce at the penalty phase. This argument was

not presented on appeal to the Missouri Supreme Court at all, even as plain error, and

we decline to consider it further.

This reasoning applies equally to several of Sweet's defaulted claims. For

12

example, Sweet argues that he presented the "substance" of some of his claims of

ineffective assistance of trial counsel in his timely 29.15 motion and therefore did not

default them. In reality, Sweet raised claims based on the same facts as his ineffectiveassistance claims, but he raised them under different legal theories. (He also raised

some claims based on the same theories he now argues but different facts.) This is an

insufficient method of presenting claims to the state courts under Abdullah, and so we

reaffirm our conclusion that these claims were defaulted.

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claim of prosecutorial misconduct. We conclude that Sweet did not "'fairly present'" 11

his claim of misconduct to the state courts, even as a form of plain error. Abdullah v.

Groose, 75 F.3d 408, 411 (8th Cir.) (en banc) (citation omitted), cert. denied, 116

S. Ct. 1838 (1996). In order to fairly present his constitutional claim to the state courts,

Sweet was required to refer to the Constitution, a specific constitutional right, or a state

or federal case raising a constitutional issue. See id. at 411-12. Raising a state-law

claim in state court that is merely similar to the constitutional claim later pressed in a

habeas action is insufficient to preserve the latter for federal review. See id.; cf. Gray

v. Netherland, 116 S. Ct. 2074, 2081 (1996) (holding that general appeal to broad

concept such as due process is insufficient presentation of issue to state court).12

Although it is not clear from the Missouri Supreme Court's opinion, an examination of

Sweet's appellate briefs discloses that his argument in that court was couched

exclusively in state-law terms and that federal issues were never addressed. In fact,

one of the cases cited by Sweet in his state-court brief disclaims the idea that discovery

has constitutional implications. See State v. Sykes, 628 S.W.2d 653, 656 (Mo. 1982).

We therefore conclude that the Missouri Supreme Court's plain error review 
We note that even if Sweet had surpassed the procedural bar, his claim would 13

founder on retroactivity grounds. The Supreme Court held recently that a similar claim

of inadequate notice of penalty-phase evidence could succeed only if the Court

established a new constitutional rule. See Gray, 116 S. Ct. at 2083-85 (citing Teague

v. Lane, 489 U.S. 288 (1989)).

The amendments to § 2254(d) enacted by the AEDPA do not apply in this case. 14

See Lindh v. Murphy, 117 S. Ct. 2059, 2062 (1997).

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encompassed only state-law issues and did nothing to cure Sweet's failure to assert his

claim of prosecutorial misconduct in state court.13

IV.

We now consider on the merits the claims Sweet has preserved for our review.

A.

We begin with the claim that Sweet's trial counsel was ineffective in failing to

call Freddie Hensley as a witness (#1a). As we have noted above, this claim was

apparently defaulted, but the Missouri Supreme Court reviewed it on the merits,

clearing the way for habeas review. To establish a claim of ineffective assistance of

counsel, a petitioner "must establish that counsel's performance was deficient and that

he was prejudiced by that deficient performance." Preston v. Delo, 100 F.3d 596, 603

(8th Cir. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)), petition

for cert. filed, No. 97-5133 (June 30, 1997). We review the District Court's factual

findings for clear error and its conclusions of law de novo. See id. "[W]e presume

state court findings of fact to be correct in habeas proceedings unless the petitioner

establishes, the respondent admits, or the record shows otherwise or the petitioner

produces evidence that convincingly establishes that the state court's findings were

erroneous." McDonald, 101 F.3d at 592 (citing 28 U.S.C. § 2254(d)).14
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The proceedings in state court indicate that Hensley contacted Sweet's counsel

with information that she had seen a man who resembled Sweet driving a truck similar

to Sweet's in the Springfield area shortly after the shooting. Counsel drove by the

address Hensley gave him, noticed that the truck's door was a different color from the

doors of Sweet's truck, and decided not to put Hensley on the witness stand. See

Sweet, 796 S.W.2d at 616. "We will not fault a reasonable strategy not to investigate

further if it is based on sound assumptions." Kenley v. Armontrout, 937 F.2d 1298,

1308 (8th Cir.), cert. denied, 502 U.S. 964 (1991). The assumption here--that the

mystery truck was not likely to be confused with Sweet's truck--was certainly a sound

one, and we cannot conclude on this record that counsel's representation "fell below an

objective standard of reasonableness." Washington, 466 U.S. at 688. Nor can Sweet

establish prejudice. The post-conviction court found that Hensley's testimony did not

match the specificity of Sweet's claim and suggested that she was not a credible

witness, and the Missouri Supreme Court held that the evidence of the other truck

would not have been admissible. See Sweet, 796 S.W.2d at 616. Sweet's claim of

ineffective assistance of counsel fails.

B.

Next we address Sweet's claim of prosecutorial misconduct based on the

prosecutor's introduction of evidence of a prior bad act (#3a). During the guilt phase

of the trial, the prosecutor elicited from witness Donald Bills evidence that at the time

of the murder, Sweet was under an outstanding Texas warrant arising out of an incident

involving cocaine and a gun. The purpose of this evidence, according to the

prosecutor, was to show that Sweet's motive for killing Harper was to avoid being

arrested and returned to Texas. The Missouri Supreme Court held that the evidence

was admissible on the issue of motive. See Sweet, 796 S.W.2d at 614. As we have

remarked already, Sweet did not renew before the District Court his argument that the

trial court denied him due process of law by admitting this evidence, and that claim is
In cases where the petitioner alleges that both the court's action in admitting the 15

evidence and the prosecutor's action in presenting the evidence violate due process, we

have conflated the two issues and applied the same test, looking to see whether the

admission of the evidence was so egregiously improper as to deny the petitioner a fair

trial. See Anderson v. Goeke, 44 F.3d 675, 678-79 & n.2 (8th Cir. 1995). In this case,

where the trial court's action is no longer an issue, we take Sweet's claim of misconduct

as he presents it to us.

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not now before us. Sweet's theory of prosecutorial misconduct is that the prosecutor 15

"knew it was improper to pursue purely irrelevant and inflammatory testimony" but

introduced it nevertheless. Sweet Br. at 25.

The problem with Sweet's claim is that he cannot show that the prosecutor knew

that this evidence was irrelevant and inflammatory. In fact, the Missouri Supreme

Court concluded just the opposite: the evidence was relevant and admissible. See

Sweet, 796 S.W.2d at 614. Aside from occasional references to broad principles of

due process, Sweet's entire argument is directed at rearguing the admissibility issue.

But this issue has been decided against him already, and we are powerless to determine

that evidence is inadmissible as a matter of Missouri law. See McGuire, 502 U.S. at

67-68. Anticipating such a holding, Sweet insists that "this issue requires a federal

court ruling on the prosecutor's misconduct, not on a state evidentiary issue. The

evidentiary issue simply forms part of the basis for the prosecutorial misconduct claim."

Sweet Br. at 25. As Sweet has formulated his misconduct claim, however, it cannot

succeed unless we also decide that the evidence was inadmissible. This we cannot do,

and so we agree with the District Court that relief is unavailable to Sweet.

C.

Sweet next argues that the prosecutor was guilty of misconduct in crossexamining a witness during the penalty phase (claim #3c). Sweet presented Judy

Meyer during the penalty phase to testify about Sweet's good character. On cross-
At times in his argument, Sweet also claims that the prosecutor's questions

16

were false, inaccurate, or distorted. Sweet presents nothing to indicate that the facts

subsumed in the prosecutor's questions--namely, that Sweet was arrested on particular

charges on particular dates--are in any way inaccurate. Before the District Court,

Sweet argued only that the questions were misleading because they failed to include the

eventual outcomes of the arrests. We therefore limit our inquiry to this issue.

-17-

examination, the prosecutor sought to test Meyer's knowledge of Sweet's reputation by

asking her whether she was aware that Sweet had been arrested on a number of charges

on different occasions. See generally Michelson v. United States, 335 U.S. 469, 482-

83 (1948) (approving this type of cross-examination in federal courts). The prosecutor

did not mention that some of the arrests had led to acquittals or to convictions on lesser

charges, nor that Sweet had never been prosecuted following other of the arrests.

Although the Missouri Supreme Court concluded that the prosecutor's questions were

proper under Missouri law, see Sweet, 796 S.W.2d at 614, Sweet argues that his Eighth

Amendment and due process rights were violated because the questions were

misleading and rendered the penalty phase unreliable and fundamentally unfair. As 16

we have noted above, Sweet defaulted the related claim that his counsel was ineffective

in failing to object to the questions and failing to explain adequately the outcomes of

the arrests.

The District Court concluded that Sweet's claim was without merit. We might

well agree if we were to reach the merits, but we conclude that Sweet is not entitled to

relief under the doctrine of Teague v. Lane, 489 U.S. 288, 316 (1989) (plurality

opinion). See also Penry v. Lynaugh, 492 U.S. 302, 313-14 (1989) (holding that

Teague doctrine applies in capital cases). As it is relevant here, Teague stands for the

proposition that "habeas corpus cannot be used as a vehicle to create new constitutional

rules of criminal procedure unless those rules would be applied retroactively to all

defendants on collateral review." Teague, 489 U.S. at 316. This means that "unless

reasonable jurists hearing petitioner's claim at the time his conviction became final

'would have felt compelled by existing precedent' to rule in his favor, we are barred 
-18-

from doing so now." Graham v. Collins, 506 U.S. 461, 467 (1993) (quoting Saffle v.

Parks, 494 U.S. 484, 488 (1990)). We must apply Teague before considering Sweet's

claim on its merits. See Caspari v. Bohlen, 510 U.S. 383, 389 (1994).

Our Teague inquiry has three steps. See O'Dell v. Netherland, 117 S. Ct. 1969,

1973 (1997). We first determine when Sweet's conviction became final. The Supreme

Court's denial of Sweet's petition for certiorari on March 18, 1991 fixes the point of

finality. (We note that there have not been any developments since that date that would

affect our analysis anyway.) Next we determine "whether a state court considering

[Sweet's] claim at the time his conviction became final would have felt compelled by

existing precedent to conclude that the rule [Sweet] seeks was required by the

Constitution." Parks, 494 U.S. at 488. No case cited by Sweet or discovered by us

even approaches, much less compels, his proposed rule that a prosecutor may not

cross-examine a character witness about the defendant's prior arrests without disclosing

the results of those arrests. See Johnson v. Mississippi, 486 U.S. 578, 590 (1988)

(holding that use as aggravating factor of prior conviction that was later reversed

violated Eighth Amendment); Gardner v. Florida, 430 U.S. 349, 362 (1977) (plurality

opinion) (holding that death sentence based in part on presentence report that defendant

"had no opportunity to deny or explain" violated due process); Woodson v. North

Carolina, 428 U.S. 280, 305 (1976) (plurality opinion) (holding that mandatory death

penalty for first-degree murder violated Eighth Amendment); Donnelly v.

DeChristoforo, 416 U.S. 637, 646-47 (1974) (holding that ambiguous remark in

prosecutor's closing argument did not violate due process); Miller v. Pate, 386 U.S. 1,

7 (1967) (holding that prosecutor's "knowing use of false evidence" violated due

process); Newlon v. Armontrout, 885 F.2d 1328, 1335 (8th Cir. 1989) (holding that

closing argument in which prosecutor "(1) expressed his personal belief in the propriety

of the death sentence and implied that he had special knowledge outside the record; (2)

emphasized his position of authority as prosecuting attorney of St. Louis County; (3)

attempted to link petitioner with several well-known mass murderers; (4) appealed to

the jurors' personal fears and emotions; and (5) asked the jurors to 'kill him now. Kill
-19-

him now.'" violated due process), cert. denied, 497 U.S. 1038 (1990). Although we

have been unable to locate any cases discussing the precise issue argued by Sweet, we

have suggested that cross-examination of the sort that took place in the instant case is

permissible. See Byrd v. Armontrout, 880 F.2d 1, 11 (8th Cir. 1989), cert. denied, 494

U.S. 1019 (1990); cf. Marshall v. Lonberger, 459 U.S. 422, 439 n.6 (1983) (suggesting

that due process does not require more than Michelson requires).

Only a new rule, therefore, would help Sweet. The third step of our inquiry is

whether this new rule "nonetheless falls within one of the two narrow exceptions to the

Teague doctrine." O'Dell, 117 S. Ct. at 1973. Little discussion is required here. Sweet

does not proffer a rule "forbidding criminal punishment of certain primary conduct [or]

prohibiting a certain category of punishment for a class of defendants because of their

status or offense." Penry, 492 U.S. at 330. Nor is his proposed rule within the even

narrower exception for rules requiring procedures that "'are implicit in the concept of

ordered liberty.'" O'Dell, 117 S. Ct. at 1973 (quoting Graham, 506 U.S. at 478).

Because the proposed new rule does not fit either Teague exception, it may not be

established in federal habeas review of a state conviction, and thus relief on this claim

is not available to Sweet.

D.

Sweet's fourth claim is that venireperson Charlene Gill was struck improperly for

cause. Because Gill had expressed doubts about the death penalty but had indicated

that her feelings about the death penalty would not prevent or substantially impair her

from performing the duties of a juror, Sweet claims, her exclusion violated his Sixth

Amendment rights under Witherspoon v. Illinois, 391 U.S. 510 (1968), and its progeny.

As Witherspoon has been interpreted, the proper test for exclusion of a juror for cause

is "whether the juror's views would 'prevent or substantially impair the performance of

his duties as a juror in accordance with his instructions and his oath.'" Wainwright v.

Witt, 469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).
-20-

The transcript of voir dire reveals that Gill was unsure how she felt about capital

punishment, but she eventually stated that she could vote for the death penalty. Later,

the court inquired about events in Gill's personal life, and Gill indicated that her son

was about to have a birthday and that her husband, who was in night school, would be

unable to be with her son. She said that she would be worried about her son, but she

later stated that she would be able to decide the case fairly and impartially nevertheless.

The prosecutor moved to strike Gill for cause, and the court denied that motion. The

trial judge later moved Gill to the back of the panel on his own motion, however, citing

his regular policy of handling venirepersons with problems in their personal lives in

cases in which there are sufficient venirepersons without such problems to fill a jury

panel.

The Missouri Supreme Court rejected Sweet's constitutional argument because

"Gill was not actually removed from the venire panel." Sweet, 796 S.W.2d at 612. We

do not believe that the issue may be resolved so simply, because Gill was removed

from the panel in effect. It appears from the record that the trial judge would not have

moved Gill to the back of the panel unless there were enough other venirepersons to

ensure that she would not be selected.

Nevertheless, the trial judge stated that he was moving Gill not because of her

scruples about the death penalty, but because of issues in her personal life. Sweet has

given us no reason to disregard the court's stated reason for its action and to conclude

instead that the court was motivated by Gill's position on capital punishment. Neither

the invocation of the Sixth Amendment by Sweet's counsel nor the court's inquiry of the

prosecutor whether, in light of the constitutional objection, he still wanted Gill excluded

suffices to alter the nature of the court's action; in fact, immediately after this exchange,

the judge reaffirmed that he was adhering to his policy. We are unable to conclude that

the trial court's action had anything to do with issues of capital punishment; instead, we

believe that the court's policy was a neutral, humanitarian method of enabling

venirepersons to escape jury duty when events in their personal lives directed their 
Sweet argues that Parker v. Dugger, 498 U.S. 308 (1991), requires us to "look 17

at the underlying reasons" for the trial court's action. Sweet Br. at 34. We do not think

that this is what Parker means at all. In that case, a Florida trial judge sentenced Parker

to death, and the state appellate court found that two of the aggravating factors relied

on by the judge were invalid but affirmed the sentence anyway. The Supreme Court

held that the appellate court was required to review the record to determine if any

mitigating factors were present, since the trial court had not made a finding to the

contrary. See Parker, 498 U.S. at 321-22. We are already looking at the record, of

course, and Sweet does not suggest any deeper level of review to which we could

descend. More importantly, however, we are not a state appellate court considering

this case on direct review, and Sweet neglects to acknowledge the deference we owe

to the state courts. For example, if the trial court had excluded Gill for Witherspoon

reasons, the court's action would be entitled to the presumption of correctness of 28

U.S.C. § 2254(d). See Witt, 469 U.S. at 426-29. Similarly, if the motivation for the

trial judge's action had been ambiguous and the Missouri Supreme Court had resolved

the ambiguity, we would defer to that resolution under § 2254(d). See Wainwright v.

Goode, 464 U.S. 78, 84-86 (1983) (per curiam). In light of the deference we owe to

the state courts, we do not see how we may determine that the reason for the trial

court's action was something other than what the court said it was.

-21-

attention elsewhere. Whether the trial court's policy comported with state law on

strikes for cause is not an issue for our consideration. See McGuire, 502 U.S. at 67-68.

To the extent that Sweet is suggesting that some sort of pretext analysis should

apply to facially constitutional juror strikes or that Witherspoon's limitation on strikes

"for cause" applies to strikes for any sort of cause, rather than merely to strikes based

on the venireperson's feelings about capital punishment, any such argument is

foreclosed by the Teague principles we have discussed above. We conclude only that 17

the trial court's movement of Gill to the back of the venire panel for personal reasons

did not violate Sweet's Sixth Amendment rights.

E.
-22-

Sweet next complains that he was not permitted to introduce exculpatory

evidence during his cross-examination of Donald Bills during the guilt phase (claim #5).

Bills testified on direct examination that on the day of the murder, Sweet began to

repaint his truck, changed its tires, listened to a police scanner continuously, and

shaved off his moustache. On cross-examination, Sweet sought to ask Bills whether

Sweet had ever denied involvement in the crime. The court sustained the prosecutor's

hearsay objection over Sweet's argument that the statement was admissible on the issue

of state of mind. The Missouri Supreme Court affirmed. See Sweet, 796 S.W.2d at

614.

We again reject Sweet's attempt to reargue an issue of state law, namely

admissibility. See McGuire, 502 U.S. at 67-68. But Sweet also argues that the

exclusion of this evidence violated his due process rights, regardless of the propriety

of the court's action under state law. The exclusion of evidence violates due process

if "the asserted error was 'so conspicuously prejudicial or of such magnitude that it

fatally infected the trial and deprived [the defendant] of fundamental fairness.'" Logan

v. Lockhart, 994 F.2d 1324, 1330 (8th Cir. 1993) (citation omitted) (alteration in

Logan), cert. denied, 510 U.S. 1057 (1994). "'Where the state interest [in excluding

evidence] is strong, only the exclusion of critical, reliable and highly probative evidence

will violate due process.'" Stallings v. Benson, 26 F.3d 817, 819 (8th Cir. 1994)

(citation omitted) (emphasis in Stallings; our alteration). The state's interest in

excluding hearsay testimony is undeniably strong. See Chambers v. Mississippi, 410

U.S. 284, 298 (1973) (noting that hearsay rule is "grounded in the notion that

untrustworthy evidence should not be presented to the triers of fact"). We are unable

to conclude that Sweet's proffered evidence is at all reliable; a denial of guilt made by

a criminal defendant to a friend contains no indicia whatsoever of reliability. Cf. id. at

302 (holding that exclusion of evidence that another person confessed to three other

individuals that he committed murder violated due process). Nor, we add, was this

evidence critical to Sweet's defense. Sweet took the stand in his own defense and

denied killing Harper. If the jury did not credit Sweet's denial of guilt at trial, there is
-23-

no reason to believe that a secondhand report that he had previously denied guilt would

have carried any weight with the jury.

F.

We now turn to Sweet's argument that the trial court's exclusion of evidence

during the penalty phase violated his Eighth Amendment rights under Lockett v. Ohio,

438 U.S. 586 (1978), and its progeny (claim #8). During the penalty phase, one of

Sweet's witnesses testified about various social activities she and her husband had

enjoyed with Sweet, and she remarked that Sweet was a good photographer who liked

to take pictures. After the witness stepped down, Sweet offered into evidence albums

of photographs taken by him. The trial court refused the evidence as irrelevant.

Lockett stands for the proposition that "the State cannot bar relevant mitigating

evidence from being presented and considered during the penalty phase of a capital

trial." Parks, 494 U.S. at 490. This principle has been held to require that the

sentencing judge or jury be permitted to consider various types of mitigating evidence.

See Penry, 492 U.S. at 328 (mental retardation and background of abuse); Hitchcock

v. Dugger, 481 U.S. 393, 398-99 (1987) (family background and potential for

rehabilitation); Skipper v. South Carolina, 476 U.S. 1, 5 (1986) (evidence that

defendant would not pose a danger if sentenced to life in prison); Eddings v. Oklahoma,

455 U.S. 104, 113-15 (1982) (youth and difficult family background).

We have little guidance on what constitutes relevance for Lockett purposes, but

we know that "the mere declaration that evidence is 'legally irrelevant' to mitigation

cannot bar the consideration of that evidence if the sentencer could reasonably find that

it warrants a sentence less than death." McKoy v. North Carolina, 494 U.S. 433, 441

(1990). We agree with the Missouri Supreme Court that the jury could not reasonably

have found that Sweet's photographs warranted or helped to warrant a sentence less

than death. See Sweet, 796 S.W.2d at 614 ("[I]t is difficult to see how the photographs
We apply the Chapman standard rather than the more deferential standard of 18

Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), because the Missouri Supreme Court

did not conduct harmless-error review on direct appeal. See Joubert v. Hopkins, 75

F.3d 1232, 1245 (8th Cir.), cert. denied, 116 S. Ct. 2574 (1996).

-24-

are even tangentially relevant to defendant's character."); see also Schneider v. Delo,

85 F.3d 335, 342 (8th Cir.) (holding that evidence that accomplice had agreed to plea

bargain was not relevant mitigating evidence), cert. denied, 117 S. Ct. 530 (1996).

Assuming arguendo that the Eighth Amendment required the trial judge to admit

the photographs, their exclusion was harmless error. See Hitchcock, 481 U.S. at 399

(implying that harmless-error analysis applies to Lockett errors); Skipper, 476 U.S. at

7-8 (same). In light of the record as a whole, including the nature of the crime, Sweet's

decision not to testify in his own behalf during the penalty phase, and the testimony of

more than one witness that Sweet is a good photographer, we are satisfied that any

error in excluding the photographs themselves was "harmless beyond a reasonable

doubt." Chapman v. California, 386 U.S. 18, 24 (1967).18

G.

Sweet's eleventh claim is that the Missouri Supreme Court did not conduct a

meaningful and proper proportionality review of his death sentence. By "proper,"

Sweet apparently means to argue that the state court did not comply with the state

statute requiring proportionality review of capital cases. See Mo. Rev. Stat. § 565.035

(1986). We have rejected many arguments by Missouri petitioners that they are

entitled to habeas relief because of the Missouri courts' perceived failure to comply

with § 565.035. See Bannister, 100 F.3d at 627; Six v. Delo, 94 F.3d 469, 478 (8th

Cir. 1996) ("The Constitution does not require us to look behind [the court's

proportionality] conclusion to consider the manner in which the court conducted its

review or whether the court misinterpreted the Missouri statute."), cert. denied, 117 
-25-

S. Ct. 2418 (1997). See generally Walton v. Arizona, 497 U.S. 639, 656 (1990)

("[T]he Arizona Supreme Court plainly undertook its proportionality review in good

faith and found that Walton's sentence was proportional to the sentences imposed in

cases similar to his. The Constitution does not require us to look behind that

conclusion."). We add that the habeas statute does not permit us to consider whether

the court misinterpreted the state statute, as we have now repeated several times in this

opinion. See McGuire, 502 U.S. at 67-68.

The Eighth Amendment does not require a state appellate court to undertake a

proportionality review. See Pulley v. Harris, 465 U.S. 37, 50-51 (1984). Sweet casts

his argument instead in terms of due process and equal protection, but he does not

articulate any coherent theory under either doctrine, except to rely on state law and

Eighth Amendment cases decided before Pulley. Even if we assume that Sweet's

arguments would survive analysis under Teague, we see no merit in them. We have

rejected previous due process challenges to Missouri's proportionality procedures, see

Foster v. Delo, 39 F.3d 873, 882 (8th Cir. 1994) (en banc), cert. denied, 514 U.S. 1075

(1995); Murray v. Delo, 34 F.3d 1367, 1377 (8th Cir. 1994), cert. denied, 515 U.S.

1136 (1995), and we see no basis for a conclusion that these procedures violated

Sweet's right to equal protection of the laws.
-26-

H.

Sweet's final claim (#12) is that he received ineffective assistance of appellate

and post-conviction counsel. We have held already that Sweet has no constitutional

right to effective assistance of post-conviction counsel. The totality of Sweet's

argument regarding his appellate counsel is that "counsel for the consolidated appeal

failed to present properly all issues on appeal." Sweet Br. at 47. Sweet has waived this

claim by failing to argue it with any specificity whatsoever. See Sidebottom v. Delo,

46 F.3d 744, 750 (8th Cir.) (citing Fed. R. App. P. 28(a)(5)), cert. denied, 116 S. Ct.

144 (1995).

In any event, we have had occasion to review appellate counsel's work in our

examination of the procedural-default issues, and we are satisfied that counsel's

representation was able and thorough. Counsel raised eighteen points of error in more

than 150 pages of briefing in the Missouri Supreme Court, and she pursued two of

these points in a certiorari petition. Sweet was not entitled to have counsel raise "every

argument, regardless of merit," Evitts v. Lucey, 469 U.S. 387, 394 (1985), and Sweet

has not even attempted to demonstrate how anything counsel might have done

differently would have affected the outcome of his case. Sweet's argument is without

merit.

V.

Finally, we address Sweet's argument that the District Court abused its discretion

in denying him an evidentiary hearing. Sweet sought a hearing on his claims of

ineffective assistance of trial counsel and his claim regarding the prosecutor's use of his

arrest record to impeach his character witness. Because the bulk of Sweet's claims of

ineffective assistance of trial counsel are procedurally barred, a hearing on those claims

would get him nowhere. The same reasoning applies to the issue of Sweet's arrest

record, which is barred by Teague. Only the issue of Freddie Hensley and the mystery
-27-

truck possibly could be affected by further development of the facts. Sweet received

a five-day hearing on his 29.15 motion and developed the factual basis of this claim at

that time. He is entitled to an evidentiary hearing in federal court only if he can show

cause and prejudice for his failure to develop the facts fully in state court. See Keeney

v. Tamayo-Reyes, 504 U.S. 1, 11 (1992). Sweet has not done so, nor has he shown

that a fundamental miscarriage of justice will result if he is denied an evidentiary

hearing. See id. at 12. Accordingly, the District Court did not abuse its discretion in

denying Sweet a hearing.

VI.

We have considered the additional arguments that may be drawn from Sweet's

briefs, and we have concluded that they are without merit. The judgment of the District

Court is affirmed. We thank appointed counsel for their diligent service.

A true copy.

Attest:

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