1The Honorable Michael J. Melloy, United States District Judge for the Northern

District of Iowa, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-2903

___________

John C. Burns, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the Western

James Anthony Gammon, Jeremiah * District of Missouri.

(Jay) Nixon, Attorney General, *

Missouri, *

*

Appellee. *

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Submitted: April 11, 2001

Filed: August 14, 2001

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Before BYE, and BEAM, Circuit Judges, and MELLOY,1 District Judge.

___________

BEAM, Circuit Judge.

Missouri prisoner John Burns appeals the district court's denial of his 28 U.S.C.

§ 2254 petition for a writ of habeas corpus. Because we find Burns can show cause

and prejudice sufficient to raise the procedural bar to one of his ineffective assistance

of trial counsel claims, and because we find such claim to be meritorious, we reverse
2We found that Burns had adequate cause for the procedural default–that Burns'

direct appeal counsel had a conflict in bringing ineffective assistance claims in the

direct appeal because he was employed by the same public defender's office as trial

counsel. Burns v. Gammon, 173 F.3d 1089, 1094 (8th Cir. 1999). We noted that when

Burns was convicted in 1987, the new Missouri Supreme Court Rule 29.15 had not yet

gone into effect, and ineffective assistance of trial counsel claims at that time could be

raised on direct appeal as long as the appellate court could have resolved the claims on

the record from the trial court. Id. Thus, the absence of conflict-free counsel on direct

appeal violated Burns' Sixth Amendment right to counsel and provided cause for the

procedural default. Id.

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in part and direct that a writ of habeas corpus be issued, subject to conditions outlined

later in this opinion.

I. BACKGROUND

In 1987 Burns was convicted in a Missouri state court of attempted forcible rape,

armed criminal action, and first-degree assault. This is Burns' second appeal to this

court following the district court's denial of his habeas petition. In the first appeal, we

remanded to the district court for an initial determination of whether Burns could show

that he was prejudiced,2 in the context of procedural bar analysis, by deficient

assistance of trial counsel. Burns v. Gammon, 173 F.3d 1089, 1097 (8th Cir. 1999)

(Burns I). 

Burns I clearly limited the district court on remand to consideration of the

following issues: 1) whether Burns could establish prejudice to overcome the

procedural bar on the ineffective assistance of trial counsel claims; 2) if the procedural

bar was overcome, whether Burns' ineffective assistance of counsel claims were

sufficiently developed on the trial record to permit consideration on direct appeal; and

3) if these first two conditions were satisfied, whether Burns had meritorious ineffective

assistance of counsel claims under Strickland v. Washington, 466 U.S. 668 (1984).
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Upon remand, the district court found that Burns could not establish prejudice

for purposes of procedural default because there existed an available postconviction

procedure in which he could have raised his ineffective assistance of counsel claims.

The district court reasoned that because claims of ineffective assistance of counsel were

routinely brought in postconviction proceedings in Missouri, rather than on direct

appeal, the failure of counsel to bring these claims on direct appeal "did not preclude

resort to postconviction proceedings to raise the issue."

Nonetheless, the district court went on to analyze the remaining two issues of the

Burns I mandate and found that one of the ineffective assistance of counsel claims–that

trial counsel was ineffective for failing to lodge a sufficient objection to the prosecutor's

closing argument that Burns had humiliated the victim by requiring her to testify and

be cross-examined at trial–was sufficiently developed on the trial record and has merit.

The court found that the remaining allegations of ineffective assistance of counsel are

either groundless or require further development of the record in a postconviction

proceeding, and therefore are not adjudicable based on the record on direct appeal.

We agree with the district court's analysis of the second and third issues of the

Burns I mandate. Specifically, we agree with the district court that this one claim is

meritorious, and the remaining ineffective assistance of counsel claims alleged in the

habeas petition are either without merit, or were not sufficiently developed on the trial

record and are therefore procedurally barred. See 8th Cir. Rule 47B. However, we

hold that Burns can establish prejudice to overcome the procedural bar on the

meritorious claim. 

II. DISCUSSION

The district court found that since Burns could have raised his ineffective

assistance claims in a postconviction proceeding (in addition to the direct appeal), he

was not prejudiced by counsel's failure to bring the claims on direct appeal. However,
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the district court confuses the prejudice needed to show ineffective assistance of direct

appeal counsel with the prejudice Burns must establish to overcome the procedural bar

with regard to trial counsel's errors. While it is true that the conflicted direct appeal

counsel served as cause for the procedural default, we do not look to direct appeal

counsel's conduct to determine prejudice for the procedural default. To establish

prejudice sufficient to excuse a procedural default, Burns must show that the ineffective

assistance of trial counsel worked to his actual and substantial disadvantage, and

infected his entire trial with constitutional error. Carroll v. Schriro, 243 F.3d 1097,

1102 (8th Cir. 2001).

Thus, for purposes of the prejudice analysis which we remanded for

consideration, the existence of the postconviction procedure is irrelevant. Instead, we

look to whether trial counsel's conduct–failing to lodge a proper objection to the

prosecutor's argument implicating Burns' constitutional rights to a jury trial and to

confront witnesses–worked to Burns' actual and substantial disadvantage and infected

his entire trial with constitutional error. We find that it did. 

As we noted in Burns I, Burns had no prior convictions, and therefore it fell to

the jury to fix punishment. The prosecutor asked the jury, while considering guilt and

sentencing, to consider the fact that Burns, by exercising his constitutional right to a

jury trial and to confront witnesses, forced the victim to attend trial, take the stand and

relive the attack. Counsel failed to lodge a sufficient constitutional objection to this

argument. The Sixth Amendment right to confront witnesses is a fundamental right

made obligatory on the states by the Fourteenth Amendment, Pointer v. Texas, 380

U.S. 400, 403 (1965), as is the right to a jury trial in serious criminal cases, Duncan v.

Louisiana, 391 U.S. 145, 155-56 (1968). The prosecution cannot use the defendant's

exercise of specific fundamental constitutional guarantees against him at trial. See,

e.g., Griffin v. California, 380 U.S. 609, 615 (1965) (prosecution prohibited from using

defendant's exercise of constitutional right to remain silent against defendant in case-inchief). Cf. Darden v. Wainwright, 477 U.S. 168, 182 (1986) (prosecutorial misconduct
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may be grounds for habeas relief when it "implicate[s] . . . specific rights of the

accused"). But cf. Portuondo v. Agard, 120 S. Ct. 1119, 1125-27 (2000) (prosecutor's

closing argument that defendant had opportunity to hear other witnesses testify and

tailor his testimony accordingly did not unlawfully burden his right to be present at trial,

to confront witnesses against him, or to testify on his own behalf, because prosecutor's

comments were directed at defendant's status as witness whose credibility was subject

to attack). 

Clearly the jury's unfettered receipt of this argument worked to Burns' actual and

substantial disadvantage. As the argument was made in rebuttal, Burns' attorney was

unable to respond before the jury retired for deliberation. Cf. Antwine v. Delo, 54 F.3d

1357, 1363 (8th Cir. 1995) (court should examine what defense counsel did to

minimize prejudice from prosecutor's closing argument to determine if trial infected

with constitutional error). Given the lack of a sufficient objection, the trial court issued

no cautionary instruction leaving the jury free to consider this highly improper factor

in determining guilt and fixing sentencing. Cf. United States v. Wadlington, 233 F.3d

1067, 1080 (8th Cir. 2000) (defendant not prejudiced by prosecutorial misconduct

during trial where district court gave appropriate cautionary instructions). Had counsel

objected and prompted a curative instruction from the trial court, the court could have

given an appropriate cautionary instruction to the jury. 

Counsel's failure to lodge this objection thus prejudiced Burns and infected his

entire trial with constitutional error. Cf. Darden, 477 U.S. at 182 (prosecutorial

misconduct during closing argument may infect trial with constitutional error when it

"implicate[s] . . . specific rights of the accused"). The first requirement of our Burns

I mandate is therefore met, as Burns can establish prejudice sufficient to overcome the

procedural default of this claim.

As stated above, with regard to the remaining two issues– the adequacy of the

trial record and the merits of this claim under Strickland–we agree with the district
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court that Burns is entitled to relief. As the district court noted, the trial record "is

abundantly clear that trial counsel failed to make a constitutional argument predicated

on the prosecutor's invitation to the jury that it punish [Burns] for invoking his

constitutional rights." While many ineffective assistance of counsel claims need further

development of the record that can only occur in a postconviction hearing to determine

the reasoning behind counsel's actions, this claim is not one of those. No sound trial

strategy could include failing to make a constitutional objection to a prosecutor's

improper comment concerning Burns' rights to a jury trial and to confront witnesses.

Cf. Combs v. Coyle, 205 F.3d 269, 286 (6th Cir.), cert. denied, 121 S. Ct. 623 (2000)

(there was "no possible strategic reason" for counsel's failure to object to prosecutor's

closing argument use of defendant's pre-arrest silence); Freeman v. Class, 95 F.3d 639,

644 (8th Cir. 1996) (no "reasonable tactical basis" not to object to prosecutor's

comments on defendant's post-arrest silence). Thus, the second requirement from

Burns I is also satisfied.

Furthermore, Burns has a meritorious ineffective assistance of counsel claim

under Strickland. In order to establish ineffective assistance of counsel, Burns must

show both deficient performance and that this deficient performance prejudiced the

defense. Strickland, 466 U.S. at 687. To show deficient performance, Burns must

show that counsel made such serious errors as to not be functioning as "counsel" as

guaranteed by the Sixth Amendment. Id. To establish prejudice, Burns must show that

counsel's errors were so serious as to deprive him of a fair trial with a reliable result.

Id. To do this, Burns must establish that the result of the proceeding would have been

different without counsel's unprofessional errors. Pryor v. Norris, 103 F.3d 710, 713

(8th Cir. 1997). In performing the Strickland analysis, we are again required to

examine the underlying error. Boysiewick v. Schriro, 179 F.3d 616, 620 (8th Cir.

1999).

Our previous discussion in the procedural bar prejudice analysis demonstrates

that the underlying error–the prosecutor's closing argument derogating Burns'
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constitutional right to a jury trial and to confront witnesses–worked to Burns' actual and

substantial prejudice, infecting his entire trial with constitutional error. Thus, the

prosecutor's argument here "was constitutionally defective such that any reasonable

counsel would have objected under the circumstances." Combs, 205 F.3d at 279.

Defense counsel's performance was deficient because counsel's inaction allowed, and

in fact, invited the jury to punish Burns for exercising his constitutional rights. There

was no reasonable tactical basis for failing to make a constitutional objection to this

argument. Id. at 286. In not making the constitutional objection, Burns' counsel was

not functioning as "counsel" as guaranteed by the Sixth Amendment, Strickland, 466

U.S. at 687, and Burns can establish deficient performance.

Burns can also establish prejudice, both at trial and later on appeal. At trial, the

failure of trial counsel to elicit a cautionary instruction from the judge allowed the jury

to consider counsel's argument without riposte. A cautionary instruction would have

lessened, if not eliminated, the prejudice to Burns. See, e.g., United States v. Emmert,

9 F.3d 699, 701-02 (8th Cir. 1993) (defendant not prejudiced by improper prosecutorial

comment on witness veracity during closing argument where district court gave

appropriate cautionary instructions). 

Further, trial counsel's failure to make a constitutional argument concerning the

prosecutor's remarks started a chain reaction of burdensome review by the Missouri

appellate courts and this court. Combs, 205 F.3d at 286. Because trial counsel did not

make the constitutional objection, the Missouri Court of Appeals and this court

reviewed the prosecutorial misconduct claim only for plain error to determine whether

the comments had "a decisive effect" on the outcome of the trial. State v. Burns, 759

S.W.2d 288, 294 (Mo. Ct. App. 1988); Burns I, 173 F.3d at 1096. Plain error review

is much more onerous for both the direct appeal defendant and the habeas corpus

petitioner than is review for a defendant or petitioner pursuing a properly preserved

prosecutorial misconduct claim. See Roe v. Delo, 160 F.3d 416, 419 (8th Cir. 1998)

(courts recognize "more rigorous" plain error standard is appropriate where federal
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constitutional error has not been properly preserved). Counsel's performance thus

prejudiced Burns at trial, on direct appeal, and on collateral review. But for counsel's

unprofessional errors, the result of either the trial or the later appeals would likely have

been different, and Burns can therefore establish that counsel's deficient performance

prejudiced his defense. Pryor, 103 F.3d at 713.

III. CONCLUSION

In sum, we hold that the district court correctly adjudicated all but one of Burns'

ineffective assistance of counsel claims. We further hold that for this one claim, Burns

can establish prejudice for the purpose of overcoming the procedural bar, the claim is

sufficiently developed on the limited trial record, and finally, that it is meritorious under

Strickland. Accordingly, we affirm in part, reverse in part and remand the judgment

of the district court with directions to issue a writ of habeas corpus, unless the State of

Missouri retries Burns within ninety days of this order or within such further time as

the district court may find reasonable.

A true copy.

Attest:

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