The Hon. Charles B. Kornmann, United St ates 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

___________ Befor e RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Circuit Judge , and KORNMANN, District Judge. *

___________ RICHARD S. ARNOLD, Chief Judge.

In1987, Eric Clemmons was convicted and sentenced to death for the murder of a f ellow inmate at the Missouri State Penitentiary. Exculpatory evidence wa s apparentl ywithheld from Clemmons by the State prior to his trial. In addition , evi dence that was important to the State's case came in by deposition, raising seriousTwo 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.3 d at 1403, petitioner had in fact presented evidence crucial to hi s 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 ou r an alysis of the prejudice caused by the Brady violation to be flawed. Compare 10 0 F.3d at 1397-98, with infra at 9-10.
-2- issues under the Confrontation Clause. After exhaus ting his state remedies, Clemmons filed this petition for a writ of habeas corpus in th e United States District Court for the Western Dist rict of Missouri. While the District Court agreed that the above tw o claims probably warr anted 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, thu s 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 , 75 3 S.W.2d 901 (Mo.) (en banc), cert. denied , 488 U.S. 948 (1988). We will summarize them here only to the extent necess ary for our review. On August 7, 1985, Clemmons

was an inmat e at the Missouri State Penitentiary. Shortly before 9:00 that evening , Correcti ons Officer Thomas Steigerwald, while walking towards a group of inmate s standing near HousingUnit 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 tha t Steigerwald realized that a stabbing had occurred. ENDFIELD-3-

Steigerwald called for backup on his radio and began to pursue t he inmate whom he had seen striking Johnson. That inmate, who was wearing a gray sweatshirt, an d 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 t o pursue th e 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.
Steige rwaldeventually caught up with the inmate in the sweatshirt, who wa s 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 s earched, a hat and a school book belonging to Cle mmons were found. The book was splattered with blood. The inmate had been seen entering the housing unit carrying the hat and th e 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.

Johns on later died. An autopsy revealed that he had been stabbed three times. Th e fatal blow was to the left side of his chest and penetrated his heart. He als o sustaineda stab wound to his left side and another under his right arm. A scratch on his shoul der 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, Johns on exclaimed, "they have stuck me in my heart."

Clemmons was charged with murdering Johnson. At his trial, there were tw o pi eces of particularly damaging evidence against him. The first was Steigerwald' s testimony identifying him as the person who stru ck Johnson and as having a knife. The second was test

imony 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-

Bagb y, 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 st abbed Johnson. Bagby had died by the time of trial, and the State argued that the testimony of Clem mons's witnesses should be discounted because it was easy for the m to try to help Clemmons by blaming someone (Bagby) who could not defend himself.

Clemmons was found guilty. In the penalty phase, several aggravatin g circ umstances were alleged. Most notably, Clemmons was a prisoner under sentence of life imprisonment without possibilit y 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 appe al, he discovered an important piece of evidence. On the very day tha t Johnso n was killed, a Department of Corrections inter-office communication wa s written b y Captain A. M. Gross, the same Captain Gross who testified agains t Clemmons, stating that another inmate had accused Fred Bagbyof killing Johnson. The inter-office communication read as follows:

On th e above date at approximately 9:30 P.M. I wa s searching the upper yard for evidence in the stabbingthat 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 tha t he had s een two (2) men stabbing Johnson. He describe d bothassailants as being black, and he thought one wa s inmate Fred Bagby but only knew the second inmate b y sight. When questioned in detail Clark did not make senseThe State contends that the memorandum was in Johnson's inmate file, which 2
was revi ewed by trial counsel for Clemmons. We agree with the District Court tha t "[t]here is little need to resolve the [issue]." Memorandum and Order 13. "[I]f th e memorandum was in the victim's file, but was not examin ed 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 i s untrue.
This evidence was not provided to Clemmons's attorney, despi te 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 postconvictio n 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 testi fy. 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 postconvict ion relief), cert.denied , 498 U.S. 8 82 (1990). There, however, his lawyer, contrary to repeated instructions fro m 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 Missour i 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 b efore the District Court. That Court held that the claim was procedurall y barred.-6- A.

Clemmons's initial difficulty stems from the fact that the Brady issue was no t raised in the appeal from the denial of postconvict ion relief. Omission of this issue was

aserious mistake by Clemmons's appointed counsel, perhaps the sort of mistake that, if com mitted at trial or on direct appeal, would amount to ineffective assistance i n violation of the Sixth a

nd Fourteenth Amendments, but error of this kind on the part of postconviction counsel cannot be "cause" to exc use 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 o f counsel. After counsel had been appointed to represent Clemmons on his 29.15 appeal (counsel differ

ent from the lawyer who had represented him in the postconviction trial court) Cle mmons wrote the new lawyer to request that he be kept informed. H e speci fically stated that he wanted all of his issues preserved. Appointed counsel , h o wever, 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 brie f 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 refu se [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 ever y 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 ap pointed counsel had filed a brief raising only six points, that Clemmons h ad requested in writing that every other groundNo rule of court or reported M issouri case of which we are aware specifies the 3 circu mstances under which Missouri appellate courts allow pro se briefs. A stat e proc edural rule must be regularly adhered to if it is to be an adequate state groun d suppo rting a procedural bar. E.g. , James v. Kentucky , 466 U.S. 341, 348-51 (1984). So metimes Missouri courts allow pro se briefs, and sometimes they do not. That i s 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 t

hat no fewer than 130 additional points should have been raised. It ask s the Court to accept a number of documents "as a supplemental brief in thi s
ca use," including the original and first amended 29.15 motions, both of whic h documents, presumably, were in the record before the Missouri Supreme Court. The Court de nied the pro se motion without comment. The documents referred to in th e motion included the Brady issue now under discussion.

As no ted above, we agree with the State that mistakes made by counsel i n postconv iction proceedings do not constitute "cause" for habeas purposes. The initial question, th ough, is not whether there was cause to excuse a procedural default, bu t wh ether there was a default in the first place. In other words, did Clemmons fairl y present his Bradyclaim in the state courts? In the perhaps unique circumstances of this case, we think the answer is yes.
It is perfectly true that counse l 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 s o manypotential 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 th an a thousand others." App. 271. The client, however, is and always remains the master of his cause. Here, Clemmons di d the only t hing he could do: he tried to bring the issue to the attention of the Missouri Supr eme Court himself. We do not criticize that Court for refusing leave to file th e supplemental bri ef. Such matters are within the Court's discretion. Our own practice 3allow 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 l awyer, but the suggestion does not seem practical in the present circumstances. When Clemmons learned, after the fact, that his lawyer had vio lated his instructions by filing a brief omitting issues the client wanted raised, oral argument was only about a month away. Clemmons co uld have asked for appointment of new counsel to make the argume nt and file a supplemental brief, but he had no way of knowing whether such a motion would be granted. (Nor do we.) If he t hought about his alterna tive, he could reasonably have concluded that it would not be in his bes t interest to risk having no lawyer at all to a rgue his case. We do not normally order the relea se 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 ha s appeared. The fact remains that Clemmons called the attention of the Mis souri Supreme Court to his Brady claim, among many others. We do not know what else he coul d have done, as a practical matter, to present the claim to that Court for decision on the merit s. 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 fa cts we may properly consider to determine whether there is

areasonable 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 pro bability 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 t o show that he would more likely than not have been acquitted if the withheld evidence h a d been before the jury. "[A] showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulte d ultimately in the defendant's acquittal . . .." Kyles , 514 U.S. at 434. The question i s whether the defendant, in the absence o f the evidence in question, "received a fair trial, understo od as a trial resulting in a verdict worthy of confidence." Ibid. Further , Clemm ons does not have to show that "after discounting the inculpatory evidence i n lighto f 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 Rul e 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 large ly '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 Cla rk would have been petitioner's best possible witness, during the guilt phase of the trial." Id. at 13-14.

In at tempting to determine whether the withholding of Clark's testimon y underm ines our confidence in the outcome of the trial, we may at least assume tha t Clark would have testified at trial and that he would have said what was in the Gross

memor andum. "Statements of uncalled witnesses are normally admissible at a Rul e 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 Sta te 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-10-

procedura ldefault," see Appellee's Supp. Br. 23, but this excerpt is misleading. I n Bo lder , petitioner argued in his state postconviction proceeding that his trial counse l

was ineffective for failing "to interview or call character witnesses and inmat e 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 hi s failure actually to call the mitigation witnesses at his 27.26 proceeding, bu t beca use petitioner completely "failed to allege what mitigating evidence would hav e 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 provid e the 29.15 court with the particulars of his ineffective assistance of counse l claim. In contrast, Clemmons introduced Clark's statement, which, as we have already

sa id, is admissible in 29.15 proceedings to show what Clark's testimony would hav e 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 b asis for his claim. Clemmons was, therefore, not barred from presenting the substance of Clark's testimony to the District Court.

We ha ve read the entire transcript of the guilt phase of the trial as it actuall y occurred in 19 87. What would the evidence have looked like if the defense had been giv en and had used the Gross memorandum, and Clark had testified at trial as to th e contents of the memorandum? First, a live witness would have testified that Fre d 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 imp each their claims by pointing out that Bagby was "conveniently dead" at the time that they accused him of the murder. Bagby wa s 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 th e three witnesses who also accused Bagby of the murder. On direct examination, Justice Mays testified-11-

uneq uivocally that the victim, Johnson, hit Bagby in the face, and that Bagby the n pulled a kni fe and stabbed Johnson three times. Johnson then ran and bumped int o Clemm ons, the defendant. On cross-examination, however, Mays's testimony wa s severely undermined. When he realized that he had placed the location of the alleged collision b etween Johnson and Clemmons at a place nowhere near the trail of bloo d found on the ground, he changed his testimony about the location. This change wa s highlighted during the State's closing argument to the jury.
SeymourA bdullah also identified Bagby as the perpetrator, and it was durin g
cross-e xaminationof this witness that the State referred to Bagby as "convenientl y 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

n o blood at the location of this collision. (The importance of the collision, according to the th eory of the defense, is that it provides an explanation for the blood o n Clemmons's sweatshirt.)

The final witness was Keith Brown, the inmate who, according to Office r 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 Johnso n began running, with Bagby right behind chasing him. Brown w as less certain about the collis ion. He thought that Johnson appeared to have bumped into Clemmons, o r another inmat

e 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 happ ened to see a hat and

so me 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 n ot 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 w hen Clemmons's witnesses accused-12-

him of the crime. In his closing argument, counsel for the State again referred to the "c onveniently 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 en d of the argument, another reference was made to the fact tha t 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 kille r 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 p hysical evidence about the location of blood, and unshaken on cross-examin ation. It was almost dark when the incident began, and Ste igerwaldwas a considerable distance away, but he was within 10 or 12 feet o f Clemmons (the inmate in the gray sweatshirt whom he had seen st rike Johnson). There is abs olutely no reason to suspect that Officer Steigerwald fabricated any part of hi s tes timony, and no one suggests that he did so. Nonetheless, Steigerwald admitted i t
was poss ible that inmates had a better view of the incident than he did. Tr. 275. I n addition, though he testified originally tha t 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 co nsistent with Johnson's dying declaration that " they have stabbed me in my heart" than the State's version that Clemmons was the killer.

Th e other major witness for the State was Captain A. M. Gross, who testifie d about the admission Clemmons is supposed to have made t he next morning. Clemmons denies making any such statement, but not much in the way of a concrete reason fo r disbelieving Captain Gross is suggested. Presumably the Clark memorandum would-13-

have been used by the defense during cross-examination o f this witness, and then Gross would have had the opportunity to explain why Clar k 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 tha t Clemmons was guilty. Non etheless, we think there is a reasonable probability that the verdict w ould have been different were it not for this unquestioned violation o f Clem mons's constitutional rights. As we described above, the State made referenc e several times during the trial to the fact that Bagby was dead to detract from th e credibility of three of Clemmons's w itnesses 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. Th e existence of the memorandum thus eliminated one of the State's key arguments fo r disbelie ving the story that Bagby killed Johnson. We cannot say with confidence that the jury would have re ached the same verdict when presented with an eyewitness who

acc useda different inmate of the crime within an hour of the murder, the very sam e inmate that three other witnesses had also accused of the crime.
To this point, we have not discussed th e 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 b y petit ioner, the belated discovery of the memorandum would justify a new trial. " Memorandum and Order 13. It concluded, however, that Clemmons's failure to cal l Clar k at the 29.15 hearing barred the Court's consideration of Clark's testimony at the hearing and, i n turn, the Clark memorandum. As we explain above, the District Court could at least have assumed that Clark would have te stified at trial consistently with the contents of the memorandum w hich Clemmons presented to the 29.15 court. The only question is whether the District Court had the discretion to evaluate the witness'sAs w e say above, this is not a case where the petitioner completely failed t o 5 present the factual basis for his clai m 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 substa nce of his testimony, despite the fact that Clemmons did not c all Clark at the 29.15 hearing. We conclude that the District Court had th e di scretion to hold a hearing to evaluate how much of a difference Clark's testimon y would have made, though it was not required to do so.

In Townsend v. Sain , 372 U.S. 293 (1963), overruled in part , Kee ney v. TamayoRey es , 504 U.S. 1 (1992), the Supreme Court listed six circumstances under whic h district courts are required to hold evidentiary hearings to develop the factual basis for

a petiti oner's habeas claims. 372 U.S. at 313-18. Keeney eliminates the hearin g 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 th eir 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 hea ring is required . "But Townsendalso made clear that a District Court retained the power to hold a hearing even though one was not required . . .. This aspect o f 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 opinio n [ Keeney ], to hold hearings even where they are not mandatory.'" Pagan v. Keane , 984 F.2d 61, 64 (2d Cir. 1993) (quot ing Keeney , 504 U.S. at 23 (O'Connor, J., dissenting)) (secondellipsis 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 erroneousl y determined that it lacked the discretion to consider what was revealed to it a t Clemmons's evidentiary hearing. The District Court's c onclusion that Clark would have been a credible witness provides further support for our resolution of this issue. Fo r these reasons, we hold that Clemmons has a meritorious Brady claim.

III.
We now turn to Clemmons's Confrontation Clause claim. Capta in 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 pass ed away just prior to trial. Clemmons's lawyer was present at the de position and cross-examined Gross, but Clemmons was not present because hi s lawyer had not informed him that the deposition was going to take place. Clemmons d i d 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 th e admission of the deposition without his consent violated his right to confront th e witnesses against him.

A.

As an init ial matter, the State contends that Clemmons presented only a n ineffective assistance of counsel claim to t he District Court, and should not be allowed to raise a free-standing Confrontation Clause claim for the first time on appeal.

It may be tr ue that Clemmons's initial habeas petition does not artfully raise a free-standing Confrontation Clause claim. The part of the petition addressing the GrossIn addition, Clemmons's pro se habeas petition expressly incor porated pleadings 6 from the 29.15 proceeding, including the 27.26 Addendum, which expressly asserts a free-standing Confrontation Clause claim.
-16- deposition reads "A. Mr. Clemmo ns was denied effective assistance of counsel during the pre-trial stage of his case because . . ." and continues:

3. Tr ial counsel agreed to the deposition of Captain Gros s and did not object to presentation of Captain Gross ' testimony at the time of trial without informing Petitioner of his actions. Said act

ions by trial counsel waived Petitioner's right to confront the witnesses against him in accordanc e wit h the Sixth Amendment to the U.S. Constitution an d de privedPetitioner of his right to meaningful cros s exa minationof those witnesses against him . . .. Clearly , there was no reason to agree to a d eposition 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 recog nizes, Clemmons raised a free-standing Confrontation Clause claim in a brie f submitted after the Distr

ict Court held an evidentiary hearing and over one year before the Di strict Court filed its opinion dismissing Clemmons's petition. See Petitioner' s Post-Hearing Br. 10. The St ate then submitted a response to Clemmons's post-hearing brief which specifically addressed the merits of Clemmons's Confrontation Claus e claim. The State's response did not object that Clemmons's Confrontation Clause claim had been improperlyraised 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 Cl ause claim was properly presented to the District Court.Th e State argues that Clemmons failed to argue ineffective assistance o f 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 fro m 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. 199 3), cert. denied , 513 U.S. 960 (1994). Sti ll, 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. Cl emmons, of course, would have no reason to assert cause for a procedural bar that the State failed clearly to assert.
-17- B.

We now turn to the State's argument that the Confrontation Clause claim i s proc edurally barred. The State first argues that Clemmons's failure to raise a Con frontationClause claim on the direct appeal from his conviction bars ou r consideration of this claim.

Clemmons asserts ineffective assistance of appellate counsel as cause for hi s 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 inef

fective 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 contr ary view we expressed in the initial panel opinion, see 100 F.3d a t 8 1402, appears to have been mistaken.
-18- Appa rently, 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 , Clem mons points to two cases in his Supplemental Brief, at 35, in which a Missour i 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 298 46 (Mo. Ct. App. 1996)). The State does not an swer these citations. Instead, it invites this Court to dismiss Clemmons's claim "on equitable concerns alone" based on the time (seven y ears) that had passed between the rejectio n of his direct appeal and his second motion to recall the mandate. W e decline to prevent pet

itioner from raising an obviously meritorious claim solely on the basis of uncertain "equitable c oncerns." 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 o f Clemmons's lawyer to raise the Conf rontation Clause claim on direct appeal was ineffective assistance of appellat e
coun sel, and that it thus provides cause for Clemmons's failure to raise the claim o n direct appeal in state court. As we discuss below, themerits of Clemmons's claim were obvious at the time of Clemmons's direct appeal. See Banks v. Reynolds , 54 F.3 d 1508, 1515 (10th Cir. 1995) (failure to raise "dead-bang winner" claim on appea l constitutes ineffective assistance of appellate counsel even though counsel may hav e
r aised other strong but ultimately unsuccessful claims). (The substantial merits of the clai m provide the necessary prejudice to excuse the default.) The State argues tha t Clemmons's appellate counsel could not have raised t his 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 t his witness was not legally unavailable, and in fact could have been subpoene d [sic] to testify." Thus, Clemmons did state in his motion for a new trial thatThe St ate does not argue that the Confrontation Clause claim was no t 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 th e 10 admi ssion of the Gross deposition "denied Movant his right to confront [witnesses ] against Movant." See Clemmons's 2d Addendum to Rule 27.26 Motion.
-20- hi s 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 claimon t he ground that the Gross deposition was taken "with the consent of th e Movant." This finding is directly contradicted by th e record. Clemmons testified at the 29.15 hearing that h e 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 Confrontatio n Clause claimto th e Missouri Supreme Court in the 29.15 appeal. As Clemmons argues, h e attempt ed to bring this issue to the attention of the Missouri Supreme Court, first b y instr ucting postconviction counsel to raise it, and then by filing his own pro se brie f 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 o r 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 othe r 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 b y 11 pr ecedent," 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, 88 5 (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 , 1 17 S. Ct. 225, 616 (1996). We thus do not consider Don v. Nix , 886 F.2d 203 (8th Cir. 1989). That case, which was deci ded shortly after Clemmons's conviction became final anyway, held that th e defendant "clearly had a right to attend" a deposition admitted into evidence because "the right to confront an accus er means . . . the right to be physically present when the accusati ons that the jury will hear are made." Id. at 206. We also note that th e Mi ssouri Constitution requires that the Confrontation Clause rights of a defendant be protected for any pret

rial 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) (Pretria l dep osition 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. 28 8 (1989), precludes our consideration of Clemmons's Confro ntation Clause claim. Teague andits progeny prohibit federal courts from resolving habeas claims based on rules of constituti onal law that were not "dictated by precedent" existing at the time that th e ha beas 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 paradigm atic violation of the Confrontation Clause as it has been traditionall y interpreted by the Supreme Court. 11

Si nce 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 prim ary object of the [Confrontation Clause] was to prev ent depositions or ex parte affidavits, such as wer e sometim es admitted in civil cases, being used against th e prisone r in lieu of a personal examination and cross

examinationof the witness in which the accused has a n opportunity, not only of testing the recolle ction and sifting the conscience of the witness, but of compelling him tostand face to face with the jury in order that they may look at him, and ju dge by his demeanor upon the stand and the manner i n whi ch 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 thi s passa ge); Coy v. Iowa , 487 U.S. 1012, 1017 (1988) ("'[T]he Confrontation Claus e pr ovides two types of protection for a criminal defendant: the right physically to fac e thos e who testify against him, and the right to conduct cross-examination.'") (quotin g Pennsylvania v. Ritchie , 480 U.S. 39, 51 (1987) (plurality opinion)).
Clemmons was denied the right to face-to-f ace confrontation with one of his two accusers (theother being Steigerwald), the right to have the jury observe the witness's demeanor, the right to particip ate in the cross-examination of the witness, and the right to observe the witness against him, in short every single element of the right o f 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 p rinciples which require jumps in reasoning to conclude that Clemmons's rights were viol ated, id. at 236. Instead, they are concrete requirements circumscribed only in rare situations "wher e denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assure d." Craig , 497 U.S. at 850. So farth e Court has held that only protecting victims of child abuse from face-to-fac e confrontation with their alleged abuser justif ies departure from the norm of face-to-face confrontation. In addition, we note that even in Maryland v. Craig , where-23-

the Stat e had allowed a child to testify against her alleged abuser by closed-circui t television, the jury still had the opp ortunity to view the child's demeanor, the defendant had the opportunity to participate in the cross-examination of the witness, and th e defenda nt had the opportunity to observe the witness. Nor is there any plausibl e argument that Captain Gross's testimony is so inher ently reliable that cross-examination bef ore the trier of fact in front of Clemmons and the jury would have been of onl y 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 a s 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 th e deposition nor to its admission in evidence against him at trial. The State does not argue that t he right was waived either by Clemmons himself or by his counsel, and, in an y event, the law seems to be clear that the right of confrontation is personal an d fundamental and cannot be w aived 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 ri ght. "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 o r abandonment o f 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 er ror 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. Confronta tion 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 preceden ts, where, as here, the state courts have not themse lves engaged in a harmless-error analysis with respect to the particular point at issue, we can hold an error harmless only if the State establishesClem mons also argues that his trial counsel was ineffective in failing t o 12 preserve for appellate review the order of the tria l court excluding the testimony of one Robert E. Lee. We reject this argument without extended discussion.
-24- harmlessnes s beyond a reasonable doubt. In other words, in such a situation, th e standard of Chapman v. California , 386 U.S. 18 (1967), applies. See, e.g. , Orndorff v. Lockhar t , 998 F.2d 1426, 1429 (8th Cir. 1993), cert. denied , 511 U.S. 1060, 106 3 (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 andallowed 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 failu re to disclose the Gross memorandum and the admission of Captai n Gross's testimony by deposition are bot h violations of fundamental constitutional rights wh ichindependently justify reversal of Clemmons's conviction. The judgment i s 12 reversed, and the cause remande d to the District Court with instructions to enter a new judgment granting the writ of habeas corpus, thus vacating Clem mons's conviction. The St ate of course is free to retry him, and he will remain in custody because of hi s convictions for other crimes.
A true copy.

Attest:

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