The Hono rable Joseph E. Stevens, Jr., United States District Judge for th e 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

_____________ Bef ore BOWMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD , Circuit Judges.

_____________ BOWMAN, Circuit Judge. Glennon Sweet, a priso ner on Missouri's death row, appeals from the judgment of the District Court denying his petition for habeas corpus. We affirm. 1Rule 29.15, which became effective shortly before Sweet was sentenced , 2 provides a post-conviction proceeding for, inter alia , claims "that the conviction o r 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 defendan t to file a motion in the sentencing court within thirty days after th e transcript was filed in the direct appeal. See Mo. Sup. Ct. R. 29.15(b). The direct appeal was t

hen 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 sinc e abandoned the consolidated appeal proc edure. 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 r ule governs Sweet's post-
-2- I.

On Februar

y 8, 1987, Sweet sped past Trooper Russell Harper of the Missouri State Highway Patrol on a highway outside of Spr ingfield, Missouri. Harper turned on his signal lights an d gave chase, following Sweet as he turned onto a side road. After Sweet stopp ed 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 struc k Harper in the head, killing him. Harper never even unbuttoned the h olster flap covering his service revolver.

Swe etwas arrested and charged with first-degree murder. After a change o f

venue to Clay County, he was tried and found guilty. Finding as aggravatin g circums tances that the murder was committed against a peace officer engaged in hi s official duties and that it was committed for the purpos e 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 Missour i Supreme Court Rule 29.15, filed a pro se post-conviction motion in Clay County 2convi ction 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 co nviction, the Missouri Supreme Court 3 developed a doctrine of "abandonment" to mitigate the harsh consequences o f appoin ted counsel's failure to comply with the strict deadlines of Rule 29.15. Se e Sanders v. State , 807 S.W.2d 493 , 494-95 (Mo. 1991) (en banc) (remanding to circuit
cour t for examination of abandonment claim in circumstances similar to those o f Sweet's case); see also Moore v. State , 934 S. W.2d 289, 291-92 (Mo. 1996) (en banc) (describing further developments i n abandonment doctrine). Sweet does not claim the benefit of the abandonment doctrine, and we know of no reason why Sweet's default sho uld be excused merely because it might not be considered a default if it occurre d today. See Mack v. Caspari , 92 F.3d 637, 640 (8 th Cir. 1996) (rejecting abandonment argument where petitioner's appeal was decided before doctrine wa s propounded), cert. denied , 117 S. Ct. 1117 (1997).
-3- C i rcuit Court, raising a number of constitutional claims. The motion court appointed counsel for Sweet. More than four months after counsel was appointed, Swee t amended his 29.15 motion to assert additional claims. This amended petition was not timely, however, because Sweet was required to file any a mendment 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 claim s raised for the first time in Sweet's amen ded 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 an d

3 affirmed o n the merits the denial of the timely 29.15 claims in the post-convictio n ap peal. See id. at 610-17. The United States Supreme Court denied certiorari o n March 18, 1991. Sweet v. Missouri , 499 U.S. 932 (1991).We reject the St ate's argument that Sweet appealed only the denial of his Rule 4 59(e) mo tion 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 denyi ng petitioner's motion for relief pursuant to Rule 59(e) . . . .") and by commo n sense. We cannot imagine that a prisoner under a death sentence would abandon his substa ntive claims and appeal only a procedural motion, and we certainly do no t believe that Sweet has done so in this case. The State objected to our granting the certificate without specifying the issu e 5
or issues as t o 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 tha t certificates of appealability must specify the potentially mer itorious issues raised by the pe titioner. 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 distric t 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. a t 7-8. Because the certificate in the instant case was granted by our own Court and the parties have fully briefed and argued the m erits of the appeal, we will proceed to consider the merits.
-4- Days later, Sweet filed this habeas corpus action in federal district court

. Counsel was appointed, and Sweet amended his petition several times. The Stat e moved to dismiss, and the District Court ultimately denied relief and dismissed th e action on November 22, 1995. Sweet then filed a motion to alter or amend th e judgment pursuant to Federal Rule of Civil Pr ocedure 59(e). The court denied Sweet's motion on May 9, 1996, and Sweet appealed to this Court. We granted Sweet a 4 certifi cate 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. § 22 53 (West Supp. 1997)). Following a dispute about the scope of the certificate of appealability, the appeal proceeded. 5-5-

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 tr ial in (a) failing to investigate certain witnesses and evidence, (b) failing t o 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 suppres s evide nce, and (d) allegedly being addicted to cocaine during the trial; (2) ineffectiv e assistance of trial counsel during the penalty phase of the trial in (a) failing to objec t appropria tely to the prosecutor's cross-examination of one of Sweet's witnesses, (b ) failing to investigate and present certain mitigatin g 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 evid ence to be introduced during the penalty phase, and (c) using Sweet's arrest record to cross-examine one of Sweet's witnesses during the p enalty phase; (4) improper exclusion of a juror; (5) improper exclusion o f 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 jur y instru ction defining reasonable doubt; (8) exclusion of certain mitigating evidenc e during the penalty phase; (9) impr oper 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 meaningfu l proportionality review; and (12) ineffective a ssistance of appellate and post-conviction counsel.

II.
We begin b y discussing those of Sweet's claims that are not properly before us for one reason or another.-6- A.

As a rule, we do not consider claims that hav e 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 rea son: his search-and-seizure claim (#6) and his claim that the trial cour t improperly admitted evidence of a prior bad act against him in the guilt phase (#9). A claim r elated to Sweet's ninth claim has been preserved for review; we consider thi s 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 corpu s 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 t o examine w hether the Missouri courts made errors of law in deciding the Fourt h Amendment issues argued by Sweet. See Willett v. Lockha rt , 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 recor d support it.

B.

Next we discuss those of Sweet's c laims that are procedurally defaulted. Sweet defaulte d two of his claims by failing to present them to the Missouri courts at an y stage of his direct appeal or his post-conviction proceedings. See Nave v. Delo , 6 2 F.3d 1024, 1030 (8th Cir. 1995) (recognizing that failure to prese nt issue to state courts is a default), cert. denied , 116 S. Ct. 1837 (1996). These claims are that trial counselAl thoughwe have held that Sweet's substantive Fourth Amendment claim i s 6 barred by the doctrine of Stone v. Powell , his claim of ineffective assistance of counsel wi th regard to the search-and-seizure issue is cognizable in a habeas action. Se e Kimmelman v. Morrison , 477 U.S. 365, 382-83 (1986).
-7- was ineffective in failing to make an offer of proof of certain mitig ating evidence during the penalty phase (#2c) and that the jury instru ction on reasonable doubt violated Cage v. Louisiana , 498 U.S. 39 (1990) (per curiam) (#7). Another clai m was defaulted when Sw eetfailed to raise it in his post-conviction appeal to the Missouri Supreme Court

. See Reese v. D elo , 94 F.3d 1177, 1181 (8th Cir. 1996) (holding that failure to rais e claim in post-conviction appeal is considered aba ndonment 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 i n Sweet' s untimely amended 29.15 motion, as the Missouri Supreme Court held. Se e Swe et , 796 S.W.2d at 615. This default encompasses all of Sweet's claims o f 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 Miss ouri Supreme Court considered one issue on the merits: whether trial counsel was ineffective in faili ng to investigate or call Freddie Hensley as a witness (part of Sweet's claim #1a). S ee id. at 616. When a state court decides an issue on the merits despite a possible procedural default, n o inde pendent

and adequate state ground bars consideration of that claim by a habea s
cour t. See Harris v. Reed , 489 U.S. 255, 262-63 (1989); County Court of Ulste r County v. Allen , 442 U.S. 140, 152-54 (1979). Accordingly, we will consider th e Freddie He nsley 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 o f counsel in faili ng to object adequately to the use of Sweet's arrest record in the crossexamination of one of Sweet's witnesses durin g the penalty phase (#2a). The Missouri-8-

Supreme Court considered a related issue--whether the use of the arrests was proper as a matter of state e vidence 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 st ate petition for habeas corpus. We disagree. A motion t o recall the mandate is a proper means of preserving an issue for habeas review only in very limited circumstances, as we ex plained in Nave , 62 F.3d at 10 31-32. In particular, we noted that a motion to recall the mandate is not a proper method of raising claims of trial error or ineff ective assistance of trial counsel. See id. at 1031. Because all of Sweet's defaulted claims fall within these categories, his motio n to recall the mandate was not a proper method of raising them, and th e motion could do not

hing to vitiate his earlier defaults. Sweet's argument that his state habeas petition under Missouri Supreme Court Rule 91 preserved his claim s is similarly flawed. As we have recog nized, a state habeas proceeding may not be used to raise a claim that was known to the pe titioner 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 conclusio n, 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 tim e. This argument is incorrect for three reasons. First, we have alread y decided t his point against Sweet in Reese , a case we decided several months befor e Sweet filed his opening brief. Second, Simmons , on which we relied in Reese , wa s decided in the Rule 29.15 era, although it relied on the companion rule applicable t o post-conviction challen ges to guilty pleas. Third, the Missouri Supreme Court denied Sweet's own habeas petition on procedural grounds. See State ex rel. Sweet v. Delo , N o . 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 no te that the relevant claim in Simpson was a claim of ineffectiv e 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.
-9- McGuire , 502 U.S. 62, 67-68 (1991). If the highest court of Missouri concludes that Sw eet'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, fo r 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 cou rt. The issue in Simpson , however, was not procedural default, bu t exhaustion of state

remedies. See id. at 393; see also 28 U.S.C. § 2254(b)-(c) (1994) (requiring e xhaustion 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 stat e court, but exhaustion alone is not sufficient to entitle Sweet to consideration of hi s claims in fe deral court. If the petitioner has "failed to follow applicable stat e procedural rules i n 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 o f whether he has exhausted his state-court remedies. See Coleman v. Thompson , 50 1 U.S. 722, 731-32 (1991).

C.

Fin ding these claims defaulted, we turn to Sweet's argument that he ha s established cause and prejudice for the defaults.

In all cases in which a state prisoner has defaulted his federal claims i n state court pursuant to an independent and ade quate state procedural rule, fed eral habeas review of the claims is barred unless the prisoner ca n demonstrate cause for the default and actual prejudice as a result of th eAt times, Sweet seems to ignore the issue of cause and ar gues that the prejudice 8 he suffered from the ineffective assistance of his trial counsel is, by itself, enough t o excuse h is default. Another way of reading Sweet's argument is that the ineffectiv e assistance of his trial counsel is cause for his failure to raise his claims of ineffective assistanc e of trial counsel. We cannot endorse Sweet's attempt to bootstrap himsel f into habeas relief, which would have the effect of reducing the "cause" requirement to a nullity. In any event, the argument makes no se nse, 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.3 d 741, 747 (8th Cir. 1995) ("[W]e fail to se e any causal connection between trial counsel's performance and Oxford' s failu re to verify his amended Rule 29.15 motion. . . . Oxford cannot resurrect thi s 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).
-10- alleged violation of federal law, or demonstrate that fai lure 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 cla ims properly in state court, Sweet argues that he received ineffective assi stance of post-conviction counsel. A defendant, however, 8 has n o constitutional right to effective assistance of post-conviction counsel. Se e Colema n , 501 U.S. at 752. Absent a constitutional right, Sweet cannot clai m inef fective 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 o f ineffective assistance of Rule 2 9.15 counsel in Missouri. See Reese , 94 F.3d at 1182; Oxford v. Delo , 59 F.3d 741, 748 (8th Cir. 1995), cert. denied , 1 16 S. Ct. 1361 (1996). Accordingly, Sweet's effort to show cause for his defaults fails as a matter of law.

Sweet als o claims that a fundamental miscarriage of justice will result if we do not revi ew his defaulted claims on the merits. He does not claim that he is actuall y innocent of the murder for which he was convicted; he merely repeats the claimedIn a pro se filing in this Court, Sweet states that he is claiming actual innocence 9 and requests time and fund s 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 hearin g 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 submitte d
none. -11- constitutional errors in his trial and pleads f or 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 th e more demanding te st 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 constitut

ional 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

re cently that our decisions on plain error review and procedural bar are in apparen t disagreement. Se e 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 aSweet's related contention that the instruction informed the jurors that the y 10 "may" consider any mitigating factors rather than telling th em 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.
-12- habeas action. See id. (cit

ing, 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 ar e powerle ss to resolve this disagreement, but we may choose which line of cases t o follow. See id. For different reasons, we elect to review one of Sweet's claims fo r plain error and conclude that the other claim is defaulted.

Sweet's tenth claim is that the jury instruction on mitigating circumstance s violate d Mills v. Maryland , 486 U.S. 367 (1988), by requiring the jurors to agre e unanimously tha

t 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 y et been decided, he raised the claim of error in his direct appeal, and the Missouri Supreme Cou rt reviewed it for plain error, rejecting the argu ment as foreclosed by Missouri precedent. See Sweet , 796 S.W.2d at 614

. Because Sweet presented this claim clearly to the state court in co nstitutional terms, we will exercise our discretion an d review it for plain error. See Hornbuckle , 106 F.3d at 257. We conclude that no plain error is pres ent. In McDonald v. Bowersox , 101 F.3d 588 (8th Cir. 1996), cert. denied , 117 S. Ct. 2527 (1997), we considered a jur y instruction identical in all material respects to the instruction in Sweet's case, and we conclu ded that it did not violate Mills

. See id. at 599-600. We reach the sam e conclusion in the instant case. 10

In his direct appeal to the Missouri Supreme Court, Sweet complained that the prosecutor faile d to comply with a Missouri statute governing disclosure of witnesses to be called at the penalty phase of the trial. See Mo. Rev. Stat. § 565.00 5 (1986). The court reviewed that claim for plain error and found i t 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 aSweet also alleges that the prosecutor improperly refused to disclose th e 11 evidence th at 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 r easoning applies equally to several of Sweet's defaulted claims. Fo r 12 example, Sw eet argues that he presented the "substance" of some of his claims o f ineffective assistance of trial counsel in his timely 29.15 motion and therefore did not default them. In reality, Sweet raised claims based on thesame facts as his ineffectiveassista nce claims, but he raised them under different legal theories. (He also raise d some claims based on the s ame theories he now argues but different facts.) This is an insufficient method of pres enting claims to the state courts under Abdullah , and so we reaffirm our conclusion that these claims were defaulted.
-13- claim of prosecutorial misco nduct. We conclude that Sweet did not "'fairly present'" 11 his claim of misc onduct 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 , 11 6 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 const itutional right, or a state

or federa l case raising a constitutional issue. See id. at 411-12. Raising a state-la w
c l aim in state court that is merely similar to the constitutional claim later pressed in a habeas action is insuffic ient to preserve the latter for federal review. See id. ; cf. Gray

v. Netherlan d , 116 S. Ct. 2074, 2081 (1996) (holding that general appeal to broa d 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 Swe et's appellate briefs discloses that his argument in that court was couche d exclus ively 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 dis claims the idea that discovery has constitutional implications. See S tate v. Sykes , 628 S.W.2d 653, 656 (Mo. 1982). We therefore conclude that the Missouri Supreme Court's plain error reviewWe note that even if Sw eet had surpassed the procedural bar, his claim would 13 founder on retroactivity grounds. The Supreme Court he ld recently that a similar claim of inadequate notice of penalty-phase evidence could succeed only if the Cour t established a new co nstitutional 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).
-14- 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 conside r 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

ca ll Freddie Hensley as a witness (#1a). As we have noted above, this claim wa s apparentl y 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 "mu st establish that counsel's performance was deficient and that he was prejudiced by that deficient perf ormance." Preston v. Delo , 100 F.3d 596, 603 (8t h 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 factua l find ings for clear error and its conclusions of law de novo. See id. "[W]e presum e st ate court findings of fact to be correct in habeas proceedings unless the petitione r est ablishes, the respondent admits, or the record shows otherwise or the petitione r produce s evidence that convincingly establishes that the state court's findings wer e erroneous." McDonald , 101 F.3d at 592 (citing 28 U.S.C. § 2254(d)). 14-15-

The procee dings in state court indicate that Hensley contacted Sweet's counsel with information that she had seen a m an who resembled Sweet driving a truck similar to Sweet's in the Springfield area shortly after the shooting. Counsel drove by th e 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. Se e 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 th e 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 coun sel's representation "fell below an objective standard of reasonableness." Washington , 466 U.S. at 688. Nor can Sweet establish preju dice. The post-conviction court found that Hensley's testimony did not match the s pecificity of Sweet's claim and suggested that she was not a credibl e witness, and the Missouri Supreme Court held that the evidence of the other truc k would not have been admissible. See Sweet , 796 S.W.2d at 616. Sweet's claim o f ineffective assistance of counsel fails.

B.

Next w e address Sweet's claim of prosecutorial misconduct based on th e pr osecutor's introduction of evidence of a prior bad act (#3a). During the guilt phase of the trial, the prosec utor elicited from witness Donald Bills evidence that at the time of the murder, Sweet was under an outstanding Texas warrant aris ing out of an incident involving cocaine and a gun. The purpose of this evidence, according to th e prosecuto r, was to show that Sweet's motive for killing Harper was to avoid bein g arrested and returned to Texas. The Missouri Supreme Court held that the evidenc e
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 denie d him due process of law by admitting this evidence, and that claim isIn cases where the petitioner alleges that both the court's act ion in admitting the 15 evidence and the prosecutor's action in presenting the evidence violate due process, we have conflat ed the two issues and applied the same test, looking to see whether th e admission of the evidence w as so egregiously improper as to deny the petitioner a fair trial. See Anderson v. Goeke , 44 F.3d 675, 678-79 & n.2 (8th C ir. 1995). In this case, where the trial court's action is no longer an issue, we take Swe et's claim of misconduct as he presents it to us.
-16- not now before us. Sweet's t heory of prosecutorial misconduct is that the prosecutor 15 "kn ew it was improper to pursue purely irrelevant and inflammatory testimony" bu t introduced it nevertheless. Sweet Br. at 25.
The problem with Sweet's claim is that he cannot sho w that the prosecutor knew that this evidence was irrelevant and inflammatory. In fact, the Missouri Suprem e Court conc luded just the opposite: the evidence was relevant and admissible. Se e Sweet , 796 S.W.2d at 614. Aside from occasional references to broad principles o f due proc ess, 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 67-6 8. Anticipating such a holding, Sweet insists that "this issue requires a federa l court r uling on the prosecutor's misconduct, not on a state evidentiary issue. Th e 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 evidencewas 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 cross

examining a witness during the penalty phase (claim #3c). Sweet presented Jud y Meyer during the penalty phase to testify about Sweet's good character. On cross-At t imes in his argument, Sweet also claims that the prosecutor's question s 16
were false, inaccurate, or distorted. Sweet presents nothing to indicate that the facts subsumed in the prosecutor's ques tions--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 fail ed to include the eventual outcomes of the arrests. We therefore limit our inquiry to this issue.
-17- examination, the prosecutor sought to test Meye r's knowledge of Sweet's reputation by asking her whether she was aware that Sweet had been arrested on a numbe r of charges on different occasions. S ee generally Michelson v. United States , 335 U.S. 469, 482- 83 (1948) (approving this type of cross-examinati on in federal courts). The prosecutor did not mention that some of the arrests had led to acquitta ls 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 wer e
m i sleading and rendered the penalty phase unreliable and fundamentally unfair. As 16 we have noted above, Sweet defaulted the related claim that his couns el 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) (pluralit y opinion). See also Penry v. Lynaugh , 492 U.S. 302, 313-14 (1989) (holding tha t Teague doctrine applies in cap ital 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 al l 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 fina l 'would have felt compelled by existing precedent' to rule in his favor, we are barred-18-

from doing s o 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 convict ion became final. The Supreme Court's deni al of Sweet's petition for certiorari on March 18, 1991 fixes the point o f finality. (We note that there have not been any developments since tha t date that would affect our analysis anyway.) Next we determine "whether a state court considerin g [Sweet's] claim at the time his conviction became final would have felt compelled by existing p recedent to conclude that the rule [Sweet] seeks was required by th e Consti tution." Parks , 494 U.S. at 488. No case cited by Sweet or discovered by u s
eve n approaches, much less compels, his proposed rule that a prosecutor may no t cross-examine a character witness about the defendant's prior arre sts without disclosing th e 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 reverse d violated Eighth Ame ndment); Gardner v. Florida , 430 U.S. 349, 362 (1977) (plurality opinion) (holding that death sentence based in part on presentence re port that defendant "had no opp ortunity to deny or explain" violated due process); Woodson v. Nort h 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 i n prosecutor's closing argumen t did not violate due process); Miller v. Pate , 386 U.S. 1, 7 (1967) (holding that prosecutor's "knowing use of false evidence" violated du e process); Newlon v. Armontrout , 885 F.2d 1328, 1335 (8th Cir. 1989) (holding tha t closing argument in which prosecutor "(1) expressed his personal b elief in the propriety of the death sentence and implied that he had special know ledge outside the record; (2) emphasized his position of authority as prosecuting attorney of St. Louis County; (3) attempted t o link petitioner with several well-known mass murderers; (4) appealed to the jurors' persona

l 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 w e have been unable to locate any cases discus sing 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 c ategory 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

na rrower exception for rules requiring procedures that "'are implicit in the concept of ordered liber ty.'" O'Dell , 117 S. Ct. at 1973 (quoting Graham , 506 U.S. at 478)

. Be cause the proposed new rule does not fit either Teague exception, it may not b e established in federal habea s 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 per forming 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 unsu re 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 so n 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 impart ially nevertheless. The pro secutor 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 regu lar policy of handling venirepersons with problems in their personal lives i n
cases in which there are sufficient venirepersons without such problems to fill a jur y 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 remove d from the panel in effect. It appe ars 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 penalt y, but because of issues in her personal life. Sweet has given us no reason t o 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 co urt's inquiry of the prosecutor whether, in light of the constitutional objection, he still wan ted Gill excluded suffices to alter the nature of the court's action; in fact, imm ediately after this exchange, the judge reaffirmed that he was adhering to his policy. We are u nable to conclude that the trial court's action had anything to do with issues of capital punishment; instead, we believ e that the court's policy was a neutral, humanitarian method of enablin g venirepersons to escape jury duty when events in their personal lives directed theirSweet argues that Parker v. Dugger , 4 98 U.S. 308 (1991), requires us to "look 17 at the underlying reasons" for the trial court's action. Swee t 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 an y mitigatin g factors were present, since the trial court had not made a finding to th e contrary. See Parker , 498 U.S. at 321-22. We are already looking at the record, o f course, and Sweet does not suggest any deeper level of review to which we coul d descend. More importantly, however, we are not a state appellate court considerin g this cas e 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, th e court's action would be entitled to the presumption of correctness of 2 8 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 cou rts, we do not see how we may determine that the reason for the tria l court's action was something other than what the court said it was.
-21- attenti on elsewhere. Whether the trial court's policy comported with state law o n strikes for cause is not an issue for our consideration. See McGuire , 5 02 U.S. at 67-68.

To the extent t

hat 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 i s foreclosed by the Teague

principles we have discussed above. We conclude only that 17 th e 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-

Sw eetnext complains that he was not permitted to introduce exculpator y evidence during his cross-examination of Donald Bills during the guilt phas e (claim #5). Bills test ified on direct examination that on the day of the murder, Sweet began t o repaint his truck, changed its tires, listened to a police scanner continuously, an d shaved off his moustache. On cross-examination, Sweet sought to ask Bills whether Sweet had ever denied involv ement 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 ag ain reject Sweet's attempt to reargue an issue of state law, namel y admissib ility. See McGuire , 502 U.S. at 67-68. But Sweet also argues that th e 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 ass erted error was 'so conspicuously prejudicial or of such magnitude that i t fatally infected the trial and depriv ed [the defendant] of fundamental fairness.'" Logan

v. Lock hart , 994 F.2d 1324, 1330 (8th Cir. 1993) (citation omitted) (alteration i n Logan ), cert. denied , 510 U.S. 1057 (1994). "'Where the state interest [in excludin g evidence] is strong, only the exclusion of critical, reliable and highly p robative evidence will violate due process.'" Stallings v. Benson , 26 F.3d 817, 819 (8th Cir. 1994 ) (cit ation omitted) (emphasis in Stallings ; our alteration). The state's interest i n 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 tha t untrustworthyevidence 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 contai ns no indicia whatsoever of reliability. Cf. id. at 302 (ho lding that exclusion of evidence that another person confessed to three othe r individual s that he committed murder violated due process). Nor, we add, was thi s evidence critical to Sweet's defense. Sweet took the stand in his own defense an d denied killing H arper. 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 pre viously 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 evidenc e 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 o f Sweet's witnesses testified about various social activities she and her husband ha d enjoyed with Sweet, and she remarked that Sweet was a good photographer who liked to take pictures. After the wi tness 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 capita l trial." Parks , 494 U.S. at 490. This principle has been held to require that th e sentencing judge or jury be permitted to consider various types of mitigating evidence. See Penr y , 492 U.S. at 328 (mental retardation and background of abuse); Hitchcock

v. Dugg er , 481 U.S. 393, 398-99 (1987) (family background and potential fo r rehabilita tion); Skipper v. South Carolina , 476 U.S. 1, 5 (1986) (evidence tha t 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 co nstitutes relevance for Lockett purposes, but

we know t hat "the mere declaration that evidence is 'legally irrelevant' to mitigatio n cannot bar the consideration of that evidence if the sentence r 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 Supr eme Court that the jury could not reasonably have foun d that Sweet's photographs warranted or helped to warrant a sentence les s than death. See Sweet , 796 S.W.2d at 614 ("[I]t is difficult to s ee how the photographsWe apply the Chapman standard rather than the more deferential standard of 18 Brecht v. Abrahamson , 507 U.S. 619, 638 (1993), because the Missouri Supre me Court did no t conduct harmless-error review on direct appeal. See Joubert v. Hopkins , 7 5 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 re quired the trial judge to admit the photogra

phs, their exclusion was harmless error. See Hitchcock , 481 U.S. at 399 (implying that harml ess-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 o wn behalf during the penalty phase, and the testimony of

more than one witness that Sweet is a good photographer, we are satisfied that an y
error in excluding the photographs themselves was "harmless beyond a reasonabl e 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
me aningful and proper proportionality review of his death sentence. By "proper, " Sweet a pparently means to argue that the state court did not comply with the stat e statute requiring proportionality review of capital cases. See Mo. Rev. Stat. § 565.035 (1986). We have rejected many arguments by Missouri petitioners that they ar e entitled to habeas relief because of the Missouri courts' perceived failure to compl y wi th § 565.035. See Bannister , 100 F.3d at 627; Six v. Delo , 94 F.3d 469, 478 (8t h Cir. 199 6) ("The Constitution does not require us to look behind [the court' s pro portionality] conclusion to consider the manner in which the court conducted it s 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 goo d faith and found that Walton's sentence was proportional to the sentences imposed i n
cases similar to his. The Constitution does not require us to look behind tha t conclusion.") . We add that the habeas statute does not permit us to consider whether the court misinterpreted the state statute, as we hav e 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. S ee 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 no t articulate any coherent theory under either doctrine, except to rely on state law an d Eighth Amen dment cases decided before Pulley . Even if we assume that Sweet' s
ar guments would survive analysis under Teague , we see no merit in them. We hav e rejected previous due process ch allenges to Missouri's proportionality procedures, see Foster v. Delo , 39 F.3d 873, 882 (8th Cir. 1994) (en banc), cer t. 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 violate d 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 constitutiona l right t o 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 h as 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 ev ent, we have had occasion to review appellate counsel's work in ou r 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 o f these points in a certiorari petition. Sweet was not entitled to have counsel raise " every argument, regardles s of merit," Evitts v. Lucey , 469 U.S. 387, 394 (1985), and Sweet has not ev en attempted to demonstrate how anything counsel might have don e differently wou ld 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 i ts discretion in denying him an evidentiary hearing. Sweet sought a hearing on his claims o f ineffective assistance of trial counsel and his claim regarding the prosecutor's use of his arrest record to impe ach 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 arres t record, which is barred by Teague . Only the is sue 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 i s 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 evidentiar y hearin g. See id. at 12. Accordingly, the District Court did not abuse its discretion in denying Sweet a hearing.

VI.

We h ave considered the additional arguments that may be drawn from Sweet's briefs, and we have concluded that they are without merit. The judgme nt 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.