The Hon. Charles B. Kornmann, United States District Judge for the District of *

South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 96-1086WM

_____________

Eric Clemmons, *

*

Appellant, *

* On Appeal from the United

v. * States District Court

* for the Western District

* of Missouri.

Paul Delo, *

*

Appellee. *

___________

Submitted: July 21, 1997

Filed: August 28, 1997

___________

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Circuit Judge,

and KORNMANN, District Judge. *

___________

RICHARD S. ARNOLD, Chief Judge.

In 1987, Eric Clemmons was convicted and sentenced to death for the murder

of a fellow inmate at the Missouri State Penitentiary. Exculpatory evidence was

apparently withheld from Clemmons by the State prior to his trial. In addition,

evidence that was important to the State's case came in by deposition, raising serious
Two principal concerns led us to take the unusual step of granting rehearing by 1

the panel. First, the petition for rehearing pointed out that, contrary to our earlier view,

see 100 F.3d at 1403, petitioner had in fact presented evidence crucial to his

Confrontation Clause claim to the state post-conviction court. See infra at 19. Second,

we had not properly understood Missouri evidence law, a mistake that caused our

analysis of the prejudice caused by the Brady violation to be flawed. Compare 100

F.3d at 1397-98, with infra at 9-10.

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issues under the Confrontation Clause. After exhausting his state remedies, Clemmons

 filed this petition for a writ of habeas corpus in the United States District Court for the

Western District of Missouri. While the District Court agreed that the above two

claims probably warranted reversal of Clemmons's conviction, it found that they were

procedurally barred and therefore denied Clemmons's petition. This appeal followed,

and we affirmed. 100 F.3d 1394 (8th Cir. 1996). Clemmons then filed a petition for

rehearing by the panel. We granted the petition, thus vacating the initial panel opinion 1

and judgment, and now reverse the judgment of the District Court.

I.

The District Court and the Missouri Supreme Court have rendered careful and

detailed opinions reciting the facts in this case. Clemmons v. Delo, No. 90-0943-CVW-6 (W.D. Mo., July 7, 1995) (Memorandum and Order); State v. Clemmons, 753

S.W.2d 901 (Mo.) (en banc), cert. denied, 488 U.S. 948 (1988). We will summarize

them here only to the extent necessary for our review. On August 7, 1985, Clemmons

was an inmate at the Missouri State Penitentiary. Shortly before 9:00 that evening,

Corrections Officer Thomas Steigerwald, while walking towards a group of inmates

standing near Housing Unit 3, observed one of the inmates grab another, strike him in

the chest, and then hit him with a roundhouse punch in the side. Henry Johnson, the

inmate who had been struck, ran past Steigerwald to the entrance to the main corridor.

As he did so, Steigerwald noticed blood on Johnson's shirt. It was then that

Steigerwald realized that a stabbing had occurred.ENDFIELD 
-3-

Steigerwald called for backup on his radio and began to pursue the inmate whom

he had seen striking Johnson. That inmate, who was wearing a gray sweatshirt, and

another inmate, who was wearing a gray towel around his head, began to move towards

the prison chapel. Eventually, these inmates separated, and Steigerwald decided to

pursue the one in the gray sweatshirt. He testified that he saw the faces of both

inmates, as well as a knife in the hand of the inmate in the gray sweatshirt.

Steigerwald eventually caught up with the inmate in the sweatshirt, who was

Clemmons. By that time the sweatshirt had been turned inside out so that it appeared

to be white. There was human blood on the gray part of the sweatshirt, though it could

not be typed. No knife was ever found.

The inmate in the gray towel was also caught. When his cell was searched, a hat

and a school book belonging to Clemmons were found. The book was splattered with

blood. The inmate had been seen entering the housing unit carrying the hat and the

book shortly after the stabbing. The blood splatters on the hat were human blood of

either type B or type AB. Johnson, the victim, had type B blood.

Johnson later died. An autopsy revealed that he had been stabbed three times.

The fatal blow was to the left side of his chest and penetrated his heart. He also

sustained a stab wound to his left side and another under his right arm. A scratch on

his shoulder was also discovered, but it is uncertain whether the scratch was inflicted

at the same time as the three stab wounds. Prior to the death, Johnson exclaimed, "they

have stuck me in my heart."

Clemmons was charged with murdering Johnson. At his trial, there were two

pieces of particularly damaging evidence against him. The first was Steigerwald's

testimony identifying him as the person who struck Johnson and as having a knife. The

second was testimony from Captain A. M. Gross that Clemmons had stated in Gross's

presence, "I guess they got me." Clemmons's defense was that another inmate, Fred
-4-

Bagby, had killed Johnson, and several inmates testified more or less to that effect.

According to Clemmons, what Steigerwald saw was Johnson running into Clemmons

after Bagby had already stabbed Johnson. Bagby had died by the time of trial, and the

State argued that the testimony of Clemmons's witnesses should be discounted because

it was easy for them to try to help Clemmons by blaming someone (Bagby) who could

not defend himself.

Clemmons was found guilty. In the penalty phase, several aggravating

circumstances were alleged. Most notably, Clemmons was a prisoner under sentence

of life imprisonment without possibility of parole for 50 years for another murder when

Johnson was killed. The jury sentenced Clemmons to death.

II.

Clemmons alleges that exculpatory evidence was withheld from him prior to his

trial in violation of Brady v. Maryland, 373 U.S. 83 (1963). Following Clemmons's

direct appeal, he discovered an important piece of evidence. On the very day that

Johnson was killed, a Department of Corrections inter-office communication was

written by Captain A. M. Gross, the same Captain Gross who testified against

Clemmons, stating that another inmate had accused Fred Bagby of killing Johnson. The

inter-office communication read as follows:

On the above date at approximately 9:30 P.M. I was

searching the upper yard for evidence in the stabbing that had

taken place about 8:55 P.M. on inmate Johnson, Henry . . .

when I met and interviewed inmate Clark, Dwight . . .. Clark

said that he had witnessed the assault on Johnson, and that

he had seen two (2) men stabbing Johnson. He described

both assailants as being black, and he thought one was

inmate Fred Bagby but only knew the second inmate by

sight. When questioned in detail Clark did not make sense
The State contends that the memorandum was in Johnson's inmate file, which 2

was reviewed by trial counsel for Clemmons. We agree with the District Court that

"[t]here is little need to resolve the [issue]." Memorandum and Order 13. "[I]f the

memorandum was in the victim's file, but was not examined or was discounted by [trial

counsel]," ibid., a claim of ineffective assistance of counsel would arise that would be

just as strong or weak, as the case may be, as the Brady claim Clemmons now presses.

-5-

and further investigation reflects that Clark's statement is

untrue.

This evidence was not provided to Clemmons's attorney, despite a discovery request for

"[a]ny material or information . . . which tends to negate the guilt of the defendant."2

Clemmons raised the failure to disclose this memo in his initial postconviction

motion under Rule 29.15 of the Missouri Rules of Criminal Procedure. The memo itself

was introduced in evidence at the 29.15 hearing without objection from the State.

Clemmons did not, however, call Clark as a witness, even though he had subpoenaed

Clark, and Clark was available to testify. In fact, Clemmons himself specifically chose

not to call Clark as a witness.

The 29.15 court denied Clemmons's motion, but did not discuss the Brady issue.

Clemmons then appealed to the Missouri Supreme Court. See Clemmons v. State, 785

S.W.2d 524 (Mo.) (en banc) (affirming denial of postconviction relief), cert.denied, 498

U.S. 882 (1990). There, however, his lawyer, contrary to repeated instructions from

Clemmons, failed to raise the issue of the undisclosed evidence. Clemmons, in an effort

to save the issue, attempted to file a pro se supplemental brief with the Missouri

Supreme Court, but his motion for leave to file the brief was denied.

Clemmons once again raised the Brady issue in his petition for a writ of habeas

corpus before the District Court. That Court held that the claim was procedurally

barred.
-6-

A.

Clemmons's initial difficulty stems from the fact that the Brady issue was not

raised in the appeal from the denial of postconviction relief. Omission of this issue was

a serious mistake by Clemmons's appointed counsel, perhaps the sort of mistake that,

if committed at trial or on direct appeal, would amount to ineffective assistance in

violation of the Sixth and Fourteenth Amendments, but error of this kind on the part of

postconviction counsel cannot be "cause" to excuse a procedural default. See Coleman

v. Thompson, 501 U.S. 722, 753 (1991); Nolan v. Armontrout, 973 F.2d 615 (8th Cir.

1992).

What we have here, however, goes beyond a mere omission on the part of

counsel. After counsel had been appointed to represent Clemmons on his 29.15 appeal

(counsel different from the lawyer who had represented him in the postconviction trial

court) Clemmons wrote the new lawyer to request that he be kept informed. He

specifically stated that he wanted all of his issues preserved. Appointed counsel,

however, filed a brief in the 29.15 appeal without giving Clemmons an opportunity to

review it and without including in the brief all of the issues previously raised in the trial

court. Petitioner then wrote counsel and instructed him to file a supplemental brief

raising the additional issues. Clemmons specifically drew the attention of counsel to the

danger that issues not raised would later be held not to have been properly presented.

"I want you to lay the ground work so if the Missouri Supreme Court refuse [sic] to hear

[the unbriefed issues] the record will clearly show we tried to present them." Letter of

December 26, 1989, App. 270. Counsel refused, stating that he had "made every

argument on your behalf that I felt could be supported by law and evidence." Letter of

December 29, 1989, App. 271.

Clemmons then made a motion in the Missouri Supreme Court for leave to file

a supplemental brief pro se. This motion recites that appointed counsel had filed a brief

raising only six points, that Clemmons had requested in writing that every other ground
No rule of court or reported Missouri case of which we are aware specifies the 3

circumstances under which Missouri appellate courts allow pro se briefs. A state

procedural rule must be regularly adhered to if it is to be an adequate state ground

supporting a procedural bar. E.g., James v. Kentucky, 466 U.S. 341, 348-51 (1984).

Sometimes Missouri courts allow pro se briefs, and sometimes they do not. That is

their prerogative. But in the absence of regularly applied criteria, the decision not to

-7-

preserved by the record also be raised, and that counsel had refused this request. The

motion further states that no fewer than 130 additional points should have been raised.

It asks the Court to accept a number of documents "as a supplemental brief in this

cause," including the original and first amended 29.15 motions, both of which

documents, presumably, were in the record before the Missouri Supreme Court. The

Court denied the pro se motion without comment. The documents referred to in the

motion included the Brady issue now under discussion.

As noted above, we agree with the State that mistakes made by counsel in

postconviction proceedings do not constitute "cause" for habeas purposes. The initial

question, though, is not whether there was cause to excuse a procedural default, but

whether there was a default in the first place. In other words, did Clemmons fairly

present his Brady claim in the state courts? In the perhaps unique circumstances of this

case, we think the answer is yes.

It is perfectly true that counsel does not have to present every issue appearing in

the record. In fact, it could be bad lawyering to do so, especially when there are so

many potential issues. As counsel remarked in his letter to Clemmons, "[y]ou can't

expect every single allegation to hold up in court, and it's not the number of allegations

that matters anyway. One good issue is better than a thousand others." App. 271. The

client, however, is and always remains the master of his cause. Here, Clemmons did

the only thing he could do: he tried to bring the issue to the attention of the Missouri

Supreme Court himself. We do not criticize that Court for refusing leave to file the

supplemental brief. Such matters are within the Court's discretion. Our own practice 3
allow such a brief cannot be said to rest on a regularly applied rule of state procedural

law. 

At the evidentiary hearing on this habeas petition, the District Court suggested 4

that Clemmons could have fired his lawyer and then filed his pro se brief. No doubt

a client can always discharge his lawyer, but the suggestion does not seem practical in

the present circumstances. When Clemmons learned, after the fact, that his lawyer had

violated his instructions by filing a brief omitting issues the client wanted raised, oral

argument was only about a month away. Clemmons could have asked for appointment

of new counsel to make the argument and file a supplemental brief, but he had no way

of knowing whether such a motion would be granted. (Nor do we.) If he thought about

his alternative, he could reasonably have concluded that it would not be in his best

interest to risk having no lawyer at all to argue his case. We do not normally order the

release of inmates from jail to argue their appeals pro se, and we assume the practice

of the Supreme Court of Missouri is similar.

-8-

is usually to refuse leave to file supplemental briefs in cases in which counsel has

appeared. The fact remains that Clemmons called the attention of the Missouri Supreme

Court to his Brady claim, among many others. We do not know what else he could

have done, as a practical matter, to present the claim to that Court for decision on the

merits. We therefore hold that the claim was fairly presented, and that the merits are 4

now open for decision on federal habeas corpus.

B.

Whether framed as an ineffective assistance of counsel claim or as a Brady claim,

Clemmons's claim undeniably states a constitutional violation. The next question, which

we now address, is what facts we may properly consider to determine whether there is

a reasonable probability that the outcome of the trial would have been different if the

Gross memorandum had been produced prior to trial. "A 'reasonable probability' is a

probability sufficient to undermine confidence in the outcome." United States v.

Bagley, 473 U.S. 667, 682 (1985) (opinion of Blackmun, J.) (adopted by the 
-9-

Court in Kyles v. Whitley, 514 U.S. 419, 434 (1995)). Clemmons does not have to

show that he would more likely than not have been acquitted if the withheld evidence

had been before the jury. "[A] showing of materiality does not require demonstration

by a preponderance that disclosure of the suppressed evidence would have resulted

ultimately in the defendant's acquittal . . .." Kyles, 514 U.S. at 434. The question is

whether the defendant, in the absence of the evidence in question, "received a fair trial,

understood as a trial resulting in a verdict worthy of confidence." Ibid. Further,

Clemmons does not have to show that "after discounting the inculpatory evidence in

light of the undisclosed evidence, there would not have been enough left to convict."

Id. at 434-35

As we say above, Clemmons introduced the Gross memorandum at the Rule

29.15 hearing, but did not call Clark as a witness. Clark did testify before the District

Court, and the District Court was favorably impressed by his testimony. The Court

stated that "Clark may have a rather quirky personality, but he does largely 'make sense.'

His credibility was rather high . . .. He seems individualistic and candid, not subject to

'prison etiquette.'" Memorandum and Order 13. The District Court concluded that "[i]t

is difficult to avoid the conclusion that Clark would have been petitioner's best possible

witness, during the guilt phase of the trial." Id. at 13-14.

In attempting to determine whether the withholding of Clark's testimony

undermines our confidence in the outcome of the trial, we may at least assume that

Clark would have testified at trial and that he would have said what was in the Gross

memorandum. "Statements of uncalled witnesses are normally admissible at a Rule

29.15 hearing to demonstrate what the witness would have said if called at the original

trial." State v. Debler, 856 S.W.2d 641, 653 (Mo. 1993) (en banc).

The State argues that Bolder v. Armontrout, 921 F.2d 1359, 1363 (8th Cir.

1990), cert. denied, 502 U.S. 850 (1991), stands for the proposition that "the failure

to present a witness during a post-conviction evidentiary hearing constitutes a
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procedural default," see Appellee's Supp. Br. 23, but this excerpt is misleading. In

Bolder, petitioner argued in his state postconviction proceeding that his trial counsel

was ineffective for failing "to interview or call character witnesses and inmate

witnesses" for use as mitigation evidence in petitioner's capital sentencing proceeding.

921 F.2d at 1362. This Court held that this claim was procedurally barred, not because

of his failure actually to call the mitigation witnesses at his 27.26 proceeding, but

because petitioner completely "failed to allege what mitigating evidence would have

been discovered had [his lawyer at trial] conducted a reasonable investigation into his

background." Id. at 1363 n.6. The problem was not just that Bolder had failed to call

the witnesses; he also neglected to allege what they would have said and thus failed to

provide the 29.15 court with the particulars of his ineffective assistance of counsel

claim. In contrast, Clemmons introduced Clark's statement, which, as we have already

said, is admissible in 29.15 proceedings to show what Clark's testimony would have

been at trial. Missouri law did not obligate Clemmons to do any more than he did to

provide the 29.15 court with the factual basis for his claim. Clemmons was, therefore,

not barred from presenting the substance of Clark's testimony to the District Court.

We have read the entire transcript of the guilt phase of the trial as it actually

occurred in 1987. What would the evidence have looked like if the defense had been

given and had used the Gross memorandum, and Clark had testified at trial as to the

contents of the memorandum? First, a live witness would have testified that Fred

Bagby and another inmate (who it is clear was not Clemmons) had stabbed Henry

Johnson. Three other witnesses testified to the same effect at trial, but the prosecution

was able to impeach their claims by pointing out that Bagby was "conveniently dead"

at the time that they accused him of the murder. Bagby was alive at the time that Clark

accused him of Johnson's murder. Indeed, Clark identified Bagby as the murderer less

than one hour after the killing.

It is true that there were other problems with the testimony of the three witnesses

who also accused Bagby of the murder. On direct examination, Justice Mays testified
-11-

unequivocally that the victim, Johnson, hit Bagby in the face, and that Bagby then

pulled a knife and stabbed Johnson three times. Johnson then ran and bumped into

Clemmons, the defendant. On cross-examination, however, Mays's testimony was

severely undermined. When he realized that he had placed the location of the alleged

collision between Johnson and Clemmons at a place nowhere near the trail of blood

found on the ground, he changed his testimony about the location. This change was

highlighted during the State's closing argument to the jury.

Seymour Abdullah also identified Bagby as the perpetrator, and it was during

cross-examination of this witness that the State referred to Bagby as "conveniently

dead." Tr. 448. According to Abdullah's version of the facts, however, it was Bagby,

not Johnson, who had a collision with Clemmons, and Abdullah admitted that he saw

no blood at the location of this collision. (The importance of the collision, according

to the theory of the defense, is that it provides an explanation for the blood on

Clemmons's sweatshirt.)

The final witness was Keith Brown, the inmate who, according to Officer

Steigerwald, ran away from the scene with Clemmons and ended up with Clemmons's

hat and book in his cell. Brown testified that there was a scuffle, and that Johnson

began running, with Bagby right behind chasing him. Brown was less certain about the

collision. He thought that Johnson appeared to have bumped into Clemmons, or

another inmate named Lewis, or someone else. He then left the scene but returned to

pick up some papers of his own. It was then, he said, that he happened to see a hat and

some papers lying on the ground, which he picked up and took to his cell. On crossexamination, he gave confused and evasive answers about his activities in the vicinity

of the chapel. His version of the facts did not appear to be consistent with the location

of the chapel door.

In addition to pointing out these inconsistencies, however, the State also pointed

out several times in the trial that Bagby was dead when Clemmons's witnesses accused
-12-

him of the crime. In his closing argument, counsel for the State again referred to the

"conveniently deceased Mr. Bagby," Tr. 500, although he also added that both Mays

and Abdullah appeared to be uncertain as to whether Bagby or the victim collided with

Clemmons. Towards the end of the argument, another reference was made to the fact

that the defense witnesses were blaming a dead man for the crime. At the very least,

Clark would have been a witness whose identification of Bagby as Johnson's killer

clearly did not stem from the fact that Bagby was no longer around to defend himself.

The State's strongest argument is that Captain Steigerwald's extremely damaging

eyewitness testimony would have been unchanged by Clark's testimony. Steigerwald's

testimony was clear, consistent with the physical evidence about the location of blood,

and unshaken on cross-examination. It was almost dark when the incident began, and

Steigerwald was a considerable distance away, but he was within 10 or 12 feet of

Clemmons (the inmate in the gray sweatshirt whom he had seen strike Johnson). There

is absolutely no reason to suspect that Officer Steigerwald fabricated any part of his

testimony, and no one suggests that he did so. Nonetheless, Steigerwald admitted it

was possible that inmates had a better view of the incident than he did. Tr. 275. In

addition, though he testified originally that he had seen a knife in Clemmons's hand, he

later admitted that he had only seen a flash of metal sharpened to a point. Id. at 258-

59, 263. He did not see a knife handle and did not see anything in Clemmons's hand

at the time Clemmons was supposed to have been assaulting Johnson. Id. at 258-59,

275. When Steigerwald caught up with Clemmons, Clemmons had eye glasses in his

hand. Id. at 261, 283. We also note that Clark's story that two men stabbed Johnson

is more consistent with Johnson's dying declaration that "they have stabbed me in my

heart" than the State's version that Clemmons was the killer.

The other major witness for the State was Captain A. M. Gross, who testified

about the admission Clemmons is supposed to have made the next morning. Clemmons

denies making any such statement, but not much in the way of a concrete reason for

disbelieving Captain Gross is suggested. Presumably the Clark memorandum would
-13-

have been used by the defense during cross-examination of this witness, and then Gross

would have had the opportunity to explain why Clark did not make sense. Clark would

have testified in the defense's case, and the jury would then have had the opportunity

to assess Clark's credibility against Captain Gross's deposition testimony.

 There is no question that the State's case would have remained strong even with

the new evidence, and that the jury could still have reasonably determined that

Clemmons was guilty. Nonetheless, we think there is a reasonable probability that the

verdict would have been different were it not for this unquestioned violation of

Clemmons's constitutional rights. As we described above, the State made reference

several times during the trial to the fact that Bagby was dead to detract from the

credibility of three of Clemmons's witnesses who accused him of the crime. The State

could not have used this argument to attack Clark's testimony, and the argument would

have been less helpful in attacking the testimony of the other three witnesses. The

existence of the memorandum thus eliminated one of the State's key arguments for

disbelieving the story that Bagby killed Johnson. We cannot say with confidence that

the jury would have reached the same verdict when presented with an eyewitness who

accused a different inmate of the crime within an hour of the murder, the very same

inmate that three other witnesses had also accused of the crime.

To this point, we have not discussed the District Court's favorable assessment of

Clark and his testimony. The Court's evaluation further dampens our confidence in the

verdict. The District Court concluded that "absent procedural default or waiver by

petitioner, the belated discovery of the memorandum would justify a new trial."

Memorandum and Order 13. It concluded, however, that Clemmons's failure to call

Clark at the 29.15 hearing barred the Court's consideration of Clark's testimony at the

hearing and, in turn, the Clark memorandum. As we explain above, the District Court

could at least have assumed that Clark would have testified at trial consistently with the

contents of the memorandum which Clemmons presented to the 29.15 court. The only

question is whether the District Court had the discretion to evaluate the witness's
As we say above, this is not a case where the petitioner completely failed to

5

present the factual basis for his claim to the District Court. See Bolder, supra. Unlike

Bolder, Clemmons presented to the state court what was necessary under state law for

the state court to consider the substance of his claim.

-14-

credibility in addition to the substance of his testimony, despite the fact that Clemmons

did not call Clark at the 29.15 hearing. We conclude that the District Court had the

discretion to hold a hearing to evaluate how much of a difference Clark's testimony

would have made, though it was not required to do so. 

In Townsend v. Sain, 372 U.S. 293 (1963), overruled in part, Keeney v. TamayoReyes, 504 U.S. 1 (1992), the Supreme Court listed six circumstances under which

district courts are required to hold evidentiary hearings to develop the factual basis for

a petitioner's habeas claims. 372 U.S. at 313-18. Keeney eliminates the hearing

requirement for the fifth circumstance, where the facts were not adequately developed

in the state courts, except where petitioners show cause and prejudice for their failure

to develop the factual predicate for their claim fully in the state courts. 504 U.S. at 11-

12. There is no question that Clemmons cannot show cause and prejudice and thus was

not entitled to an evidentiary hearing under the fifth circumstance of Keeney.

Keeney, however, addresses only the circumstances under which an evidentiary

hearing is required. "But Townsend also made clear that a District Court retained the

power to hold a hearing even though one was not required . . .. This aspect of

Townsend remains the law. As Justice O'Connor observed in dissent, 'the district courts

. . . still possess the discretion, which has not been removed by today's opinion

[Keeney], to hold hearings even where they are not mandatory.'" Pagan v. Keane, 984

F.2d 61, 64 (2d Cir. 1993) (quoting Keeney, 504 U.S. at 23 (O'Connor, J., dissenting))

(second ellipsis in original); see also Jamison v. Lockhart, 975 F.2d 1377, 1381 (8th

Cir. 1992); Wilkins v. Bowersox, 933 F. Supp. 1496, 1504 (W.D. Mo. 1996), appeal

submitted, No. 96-2441 (8th Cir., Mar. 10, 1997). Once Clemmons properly 5
-15-

preserved Clark's testimony for consideration by the District Court, the District Court

had the discretion to evaluate it for itself. Therefore, the District Court erroneously

determined that it lacked the discretion to consider what was revealed to it at

Clemmons's evidentiary hearing. The District Court's conclusion that Clark would have

been a credible witness provides further support for our resolution of this issue. For

these reasons, we hold that Clemmons has a meritorious Brady claim.

III.

We now turn to Clemmons's Confrontation Clause claim. Captain Gross testified

by deposition that Clemmons stated "I guess they got me" in Gross's presence shortly

after Johnson's murder. Gross did not testify at trial, but his deposition was admitted

into evidence with the consent of Clemmons's lawyer as a courtesy to Captain Gross,

whose wife had passed away just prior to trial. Clemmons's lawyer was present at the

deposition and cross-examined Gross, but Clemmons was not present because his

lawyer had not informed him that the deposition was going to take place. Clemmons

did not find out about the deposition until it was being introduced into evidence at his

trial, and never consented to its admission. Clemmons contends on appeal that the

admission of the deposition without his consent violated his right to confront the

witnesses against him.

A.

As an initial matter, the State contends that Clemmons presented only an

ineffective assistance of counsel claim to the District Court, and should not be allowed

to raise a free-standing Confrontation Clause claim for the first time on appeal. 

It may be true that Clemmons's initial habeas petition does not artfully raise a

free-standing Confrontation Clause claim. The part of the petition addressing the Gross
In addition, Clemmons's pro se habeas petition expressly incorporated pleadings 6

from the 29.15 proceeding, including the 27.26 Addendum, which expressly asserts a

free-standing Confrontation Clause claim. 

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deposition reads "A. Mr. Clemmons was denied effective assistance of counsel during

the pre-trial stage of his case because . . ." and continues:

3. Trial counsel agreed to the deposition of Captain Gross

and did not object to presentation of Captain Gross'

testimony at the time of trial without informing Petitioner of

his actions. Said actions by trial counsel waived Petitioner's

right to confront the witnesses against him in accordance

with the Sixth Amendment to the U.S. Constitution and

deprived Petitioner of his right to meaningful cross

examination of those witnesses against him . . .. Clearly,

there was no reason to agree to a deposition of a prosecution

witness because there was no basis for such testimony to be

helpful to Petitioner.

Clemmons's First Amended Petition for Writ of Habeas Corpus 3, 6-7. Yet, as the State

recognizes, Clemmons raised a free-standing Confrontation Clause claim in a brief

submitted after the District Court held an evidentiary hearing and over one year before

the District Court filed its opinion dismissing Clemmons's petition. See Petitioner's

Post-Hearing Br. 10. The State then submitted a response to Clemmons's post-hearing

brief which specifically addressed the merits of Clemmons's Confrontation Clause

claim. The State's response did not object that Clemmons's Confrontation Clause claim

had been improperly raised in the post-hearing brief because he had failed to raise this

claim in his petition.6

We hold that Clemmons's free-standing Confrontation Clause claim was properly

presented to the District Court.
The State argues that Clemmons failed to argue ineffective assistance of

7

appellate counsel to the District Court as cause for his failure to raise the Confrontation

Clause claim on direct appeal and, therefore, is barred from doing so in this Court. We

do not agree with Clemmons's contention that his assertion of cause in his Motion to

Amend and Alter Judgment was sufficient to present the claim to the District Court.

See Bannister v. Armontrout, 4 F.3d 1434, 1440 (8th Cir. 1993), cert. denied, 513 U.S.

960 (1994). Still, so far as we can tell, the State did not clearly assert this procedural

bar in any of the papers it submitted to the District Court. Clemmons, of course, would

have no reason to assert cause for a procedural bar that the State failed clearly to assert.

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B.

 

We now turn to the State's argument that the Confrontation Clause claim is

procedurally barred. The State first argues that Clemmons's failure to raise a

Confrontation Clause claim on the direct appeal from his conviction bars our

consideration of this claim. 

Clemmons asserts ineffective assistance of appellate counsel as cause for his

failure to raise the Confrontation Clause claim on direct appeal. In Missouri, claims 7

of ineffective assistance of appellate counsel are properly raised in a motion to recall the

mandate. Clemmons filed an initial motion to recall the mandate which asserted a

generalized claim of ineffective assistance of appellate counsel but did not specify that

the failure to raise the Confrontation Clause claim demonstrated ineffectiveness. We

agree with the State that this motion was not specific enough to preserve Clemmons's

claim of cause. Years later, while this habeas petition was pending before the District

Court, Clemmons filed a second motion to recall the mandate which was denied without

comment. 
The contrary view we expressed in the initial panel opinion, see 100 F.3d at

8

1402, appears to have been mistaken. 

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Apparently, Missouri law permits successive motions to recall the mandate.8

The State does not argue that there is a regularly applied procedural rule in Missouri
-19-

that prohibits the filing of successive motions to recall the mandate. Moreover,

Clemmons points to two cases in his Supplemental Brief, at 35, in which a Missouri

Court of Appeals considered successive motions to recall the mandate on the merits.

See Appellant's Supp. App. 12-20 (reprinting Tyler v. State, No. WD 42318 (Mo. Ct.

App. 1996), and State v. Tyler, No. WD 29846 (Mo. Ct. App. 1996)). The State does

not answer these citations. Instead, it invites this Court to dismiss Clemmons's claim

"on equitable concerns alone" based on the time (seven years) that had passed between

the rejection of his direct appeal and his second motion to recall the mandate. We

decline to prevent petitioner from raising an obviously meritorious claim solely on the

basis of uncertain "equitable concerns." Procedural bars must be firmly and regularly

applied, and the State does not argue that such a bar exists against successive motions

to recall the mandate. Nor does it assert that the passage of time has made answering

the Confrontation Clause claim on the merits more difficult.

We have no trouble concluding that the failure of Clemmons's lawyer to raise the

Confrontation Clause claim on direct appeal was ineffective assistance of appellate

counsel, and that it thus provides cause for Clemmons's failure to raise the claim on

direct appeal in state court. As we discuss below, the merits of Clemmons's claim were

obvious at the time of Clemmons's direct appeal. See Banks v. Reynolds, 54 F.3d

1508, 1515 (10th Cir. 1995) (failure to raise "dead-bang winner" claim on appeal

constitutes ineffective assistance of appellate counsel even though counsel may have

raised other strong but ultimately unsuccessful claims). (The substantial merits of the

claim provide the necessary prejudice to excuse the default.) The State argues that

Clemmons's appellate counsel could not have raised this claim on direct appeal because

Clemmons failed to preserve it for appeal in his motion for a new trial. But Clemmons's

pro se motion for a new trial states, "The court denied defendant the right to confront

his accusor [sic], when the court allowed the State to read to the jury and into evidence

the deposition of Mr[.] Gross. Said conduct was unconstitutional and unnecessary in

that this witness was not legally unavailable, and in fact could have been subpoened

[sic] to testify." Thus, Clemmons did state in his motion for a new trial that
The State does not argue that the Confrontation Clause claim was not

9

cognizable in a 29.15 proceeding. Compare 100 F.3d at 1403 n.7.

In a pro se submission to the 29.15 trial court Clemmons asserted that the

10

admission of the Gross deposition "denied Movant his right to confront [witnesses]

against Movant." See Clemmons's 2d Addendum to Rule 27.26 Motion. 

-20-

his Confrontation Clause rights were violated by the admission of Captain Gross's

testimony. 

Clemmons also presented his claim in the state 29.15 proceedings. The 29.15 9

trial court, in its findings and conclusions, rejected Clemmons's Confrontation Clause

claim on the ground that the Gross deposition was taken "with the consent of the

Movant." This finding is directly contradicted by the record. Clemmons testified at the

29.15 hearing that he had not known that his lawyer had taken a deposition of Captain

Gross, and that he did not find out about the deposition until trial, when the prosecutor

was discussing the introduction of the transcript with the judge. 29.15 Hearing Tr. 121.

There is no evidence to the contrary in the record.

The State argues that Clemmons did not properly present his Confrontation Clause

claim to the Missouri Supreme Court in the 29.15 appeal. As Clemmons argues, he

attempted to bring this issue to the attention of the Missouri Supreme Court, first by

instructing postconviction counsel to raise it, and then by filing his own pro se brief

incorporating pleadings that raised it. As we have held in Part II of this opinion, these 10

efforts by Clemmons were sufficient to present the issue to the Missouri Supreme Court.

The State points to no authority suggesting that there is a state rule that is "strictly or

regularly adhered to," see Grubbs v. Delo, 948 F.2d 1459, 1462 (8th Cir. 1991), cert.

denied, 506 U.S. 835 (1992), that prohibits the filing of pro se briefs by parties already

represented by counsel. Clemmons, on the other hand, points to authority demonstrating

that "such pro se briefs have been accepted by the Missouri Supreme Court in other

cases." Appellant's Supp. Br. 31 (citing State v. Peterson, 518 S.W.2d 1, 2 (Mo. 1974)).
We assume without deciding that when the Court says "firmly dictated by

11

precedent," it means Supreme Court precedent. See Lockhart v. Fretwell, 506 U.S.

364, 376 (1993) (Thomas, J., concurring) (state courts not obligated by the Supremacy

Clause to follow circuit precedent); see also Glock v. Singletary, 65 F.3d 878, 885

(11th Cir. 1995) (en banc) ("[C]ourts of appeals do not 'dictate' a particular rule to state

courts" for purposes of Teague analysis.), cert. denied, 117 S. Ct. 225, 616 (1996). We

thus do not consider Don v. Nix, 886 F.2d 203 (8th Cir. 1989). That case, which was

decided shortly after Clemmons's conviction became final anyway, held that the

defendant "clearly had a right to attend" a deposition admitted into evidence because

"the right to confront an accuser means . . . the right to be physically present when the

accusations that the jury will hear are made." Id. at 206. We also note that the

Missouri Constitution requires that the Confrontation Clause rights of a defendant be

protected for any pretrial depositions to be used in lieu of trial testimony. Mo. Const.

art. I, § 18(b); see State v. Jackson, 495 S.W.2d 80, 87 (Mo. App. 1973) (Pretrial

deposition taken without presence or consent of defendant "unusable by the state . . .

because it was constitutionally and basically unacceptable for any purpose.")

(emphasis in original). 

-21-

C.

 

Thus, no procedural bar prevents us from considering Clemmons's Confrontation

Clause claim on the merits. The State next argues that Teague v. Lane, 489 U.S. 288

(1989), precludes our consideration of Clemmons's Confrontation Clause claim. Teague

and its progeny prohibit federal courts from resolving habeas claims based on rules of

constitutional law that were not "dictated by precedent" existing at the time that the

habeas petitioner's state conviction became final. 489 U.S. at 301 (plurality opinion).

Far from being a "new rule" of constitutional law, however, Clemmons's claim presents

a paradigmatic violation of the Confrontation Clause as it has been traditionally

interpreted by the Supreme Court.11

Since its original interpretation of the Confrontation Clause in Mattox v. United

States, 156 U.S. 237 (1895), the Supreme Court has determined that 
-22-

The primary object of the [Confrontation Clause] was

to prevent depositions or ex parte affidavits, such as were

sometimes admitted in civil cases, being used against the

prisoner in lieu of a personal examination and crossexamination of the witness in which the accused has an

opportunity, not only of testing the recollection and sifting the

conscience of the witness, but of compelling him to stand face

to face with the jury in order that they may look at him, and

judge by his demeanor upon the stand and the manner in

which he gives his testimony whether he is worthy of belief.

Id. at 242-43; see also Maryland v. Craig, 497 U.S. 836, 845 (1990) (quoting this

passage); Coy v. Iowa, 487 U.S. 1012, 1017 (1988) ("'[T]he Confrontation Clause

provides two types of protection for a criminal defendant: the right physically to face

those who testify against him, and the right to conduct cross-examination.'") (quoting

Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987) (plurality opinion)).

Clemmons was denied the right to face-to-face confrontation with one of his two

accusers (the other being Steigerwald), the right to have the jury observe the witness's

demeanor, the right to participate in the cross-examination of the witness, and the right

to observe the witness against him, in short every single element of the right of

confrontation. This is not a violation about which reasonable jurists may disagree, see

Sawyer v. Smith, 497 U.S. 227, 234 (1990), nor are these mere general principles which

require jumps in reasoning to conclude that Clemmons's rights were violated, id. at 236.

Instead, they are concrete requirements circumscribed only in rare situations "where

denial of such confrontation is necessary to further an important public policy and only

where the reliability of the testimony is otherwise assured." Craig, 497 U.S. at 850. So

far the Court has held that only protecting victims of child abuse from face-to-face

confrontation with their alleged abuser justifies departure from the norm of face-to-face

confrontation. In addition, we note that even in Maryland v. Craig, where
-23-

the State had allowed a child to testify against her alleged abuser by closed-circuit

television, the jury still had the opportunity to view the child's demeanor, the defendant

had the opportunity to participate in the cross-examination of the witness, and the

defendant had the opportunity to observe the witness. Nor is there any plausible

argument that Captain Gross's testimony is so inherently reliable that cross-examination

before the trier of fact in front of Clemmons and the jury would have been of only

marginal value. See Ohio v. Roberts, 448 U.S. 56, 66 (1980) (to be admissible, hearsay

must possess particularized guarantees of trustworthiness that make such a statement

as reliable as a "firmly rooted" hearsay exception). Accordingly, we hold that Teague

is not an obstacle to our consideration of Clemmons's claim. 

As we have shown above, Clemmons consented neither to the taking of the

deposition nor to its admission in evidence against him at trial. The State does not argue

that the right was waived either by Clemmons himself or by his counsel, and, in any

event, the law seems to be clear that the right of confrontation is personal and

fundamental and cannot be waived by counsel. See, e.g., Brookhart v. Janis, 384 U.S.

1, 7 (1966). Nothing in this record remotely approaches a waiver by Clemmons of this

fundamental right. "There is a presumption against the waiver of constitutional rights,

see, e.g., Glasser v. United States, 315 U.S. 60, 70-71, and for a waiver to be effective

it must be clearly established that there was 'an intentional relinquishment or

abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464."

Brookhart, supra, 384 U.S. at 4. 

The State does argue that the error was harmless. More precisely, it asserts that

"petitioner fails to demonstrate that the error was not harmless." Appellee's Supp. Br.

20. This formulation would turn the law upside down. Confrontation is a "'fundamental

requirement,'" Lee v. Illinois, 476 U.S. 530, 540 (1986) (quoting Painter v. Texas, 380

U.S. 400, 405 (1965)). Under our precedents, where, as here, the state courts have not

themselves engaged in a harmless-error analysis with respect to the particular point at

issue, we can hold an error harmless only if the State establishes
Clemmons also argues that his trial counsel was ineffective in failing to

12

preserve for appellate review the order of the trial court excluding the testimony of one

Robert E. Lee. We reject this argument without extended discussion.

-24-

harmlessness beyond a reasonable doubt. In other words, in such a situation, the

standard of Chapman v. California, 386 U.S. 18 (1967), applies. See, e.g., Orndorff v.

Lockhart, 998 F.2d 1426, 1429 (8th Cir. 1993), cert. denied, 511 U.S. 1060, 1063

(1994). The State has not even begun to meet this exacting standard in the instant case.

We do not know whether Captain Gross's testimony would have been different nor do

we know to what extent it might have been different had Mr. Clemmons been notified

and allowed to be present. That is, however, exactly the point. The burden is on the

State here to show harmlessness, and it cannot do so.

IV.

The failure to disclose the Gross memorandum and the admission of Captain

Gross's testimony by deposition are both violations of fundamental constitutional rights

which independently justify reversal of Clemmons's conviction. The judgment is

12

reversed, and the cause remanded to the District Court with instructions to enter a new

judgment granting the writ of habeas corpus, thus vacating Clemmons's conviction. The

State of course is free to retry him, and he will remain in custody because of his

convictions for other crimes.

A true copy.

Attest:

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