1The Honorable Nanette K. Laughrey, United States District Judge for the

Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-4202

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Ricky E. Ferdinand,

Appellant,

v.

Dave Dormire, Superintendent;

Jeremiah (Jay) Nixon, Attorney

General, State of Missouri,

Appellees.

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Appeal from the United States

District Court for the

Western District of Missouri.

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Submitted: January 13, 2000

 Filed: May 8, 2000 

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Before RICHARD S. ARNOLD, BRIGHT, and HANSEN, Circuit Judges.

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HANSEN, Circuit Judge.

Ricky E. Ferdinand, a Missouri prisoner, appeals the district court’s1 denial of

his 28 U.S.C. § 2254 petition. We affirm.
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I.

On January 12, 1994, a jury found Ferdinand guilty of attempted forcible

sodomy, in violation of Mo. Rev. Stat. §§ 564.011.1 (attempt) and 566.060.1 (forcible

sodomy). He had committed the offense on August 5, 1992. Ferdinand was sentenced

to thirty years imprisonment, the minimum sentence for which he was eligible as a

persistent sexual offender, having been convicted in 1987 of forcible rape. See Mo.

Rev. Stat. § 558.018.3.

Ferdinand appealed to the Missouri Court of Appeals and moved for

postconviction relief in the trial court. The trial court denied his postconviction motion,

and Ferdinand appealed. The Missouri Court of Appeals consolidated the appeals and

affirmed both Ferdinand’s conviction and the denial of his postconviction motion in an

unpublished February 27, 1996, opinion. Ferdinand moved to recall the mandate,

alleging ineffective assistance of appellate counsel. The Missouri Court of Appeals

denied the motion without a written opinion on January 28, 1997.

Ferdinand then filed this § 2254 petition alleging, among other things, ineffective

assistance of appellate counsel. The district court denied the petition, Ferdinand

appealed, and we granted a certificate of appealability on the following issue: “Was

direct appeal counsel ineffective in failing to raise sentencing reduction issues under

Mo. Rev. Stat. §§ 1.160, 566.060, including whether application of amended § 1.160

violated the Ex Post Facto Clause?”

II.

Ferdinand alleges that his state appellate counsel was ineffective for failing to

file a motion for resentencing with the Missouri Court of Appeals seeking relief based

on an amendment to the Missouri statute under which Ferdinand was convicted.
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At the time Ferdinand committed the offense, as well as when he was convicted

and sentenced, Missouri defined the offense of forcible sodomy as “deviate sexual

intercourse with another person to whom he is not married, without that person's

consent by the use of forcible compulsion.” Mo. Rev. Stat. § 566.060.1 (1990).

Deviate sexual intercourse, in turn, was defined as “any sexual act involving the

genitals of one person and the mouth, tongue, hand or anus of another person.” Mo.

Rev. Stat. § 566.010.1(2) (1990).

An amendment to the statute defining deviate sexual intercourse took effect on

January 1, 1995, after Ferdinand's conviction and sentence but during the pendency of

Ferdinand’s state appellate and postconviction proceedings. Deviate sexual intercourse

was redefined as “any act involving the genitals of one person and the mouth, tongue,

or anus of another person or a sexual act involving the penetration, however slight, of

the male or female sex organ or the anus by a finger, instrument or object done for the

purpose of arousing or gratifying the sexual desire of any person.” Mo. Rev. Stat. §

566.010(1) (1994).

Ferdinand contends that, under the amended statute, his offense conduct would

no longer constitute attempted forcible sodomy but would instead be attempted sexual

misconduct in the first degree. See Mo. Rev. Stat. §§ 566.090.1 (1994) (defining

offense as “purposely subject[ing] another person to sexual contact . . . without that

person’s consent”) and 566.010(3) (1994) (defining sexual contact as “any touching

of the genitals or anus of another person . . . for the purpose of arousing or gratifying

sexual desire of any person”). This offense does not trigger an enhanced sentence

under the persistent sexual offender provision, see Mo. Rev. Stat. § 558.018.1, and

exposes Ferdinand to no more than one year imprisonment, see Mo. Rev. Stat. §§

566.090.2 (substantive offense is class D felony due to Ferdinand’s prior forcible rape

conviction), 564.011.3(4) (attempt is therefore class A misdemeanor), and 558.011.1(5)

(authorized term of imprisonment of up to one year).
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Ferdinand claims that he is entitled to relief under these amended statutes

through the operation of yet another Missouri statute in effect at the time he committed

the offense. It provided that if a defendant was prosecuted for an offense and, before

his conviction became final, the statute creating the offense was amended to reduce the

penalty for the offense, the defendant was entitled to the reduced sentence. See Mo.

Rev. Stat. § 1.160 and (2) (1986). This statute was amended in 1993, however, prior

to Ferdinand’s conviction and sentence, as well as prior to the amendment of the statute

defining deviate sexual intercourse. The amended version provides such relief only if

the statute creating the defendant’s offense is amended prior to the defendant’s original

sentencing. See Mo. Rev. Stat. § 1.160 and (2) (1994). Ferdinand posits that the

version of section 1.160 in effect at the time he committed the offense is the one

applicable to him because application of the amended version would violate section

1.160 itself and the Ex Post Facto Clause.

III.

Ferdinand alleges that his state appellate counsel was ineffective for failing to

seek relief under these provisions of Missouri law by filing a motion for resentencing.

For his ineffective-assistance claim to be meritorious, however, Missouri law must in

fact afford the relief Ferdinand claims his counsel should have pursued. See Grubbs

v. Delo, 948 F.2d 1459, 1464 (8th Cir. 1991) (if underlying substantive claim lacked

merit, appellate counsel cannot be considered ineffective for having failed to raise it),

cert. denied, 506 U.S. 835 (1992). Absent a demonstration of “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different,” Ferdinand’s counsel’s performance did not prejudice his defense,

defeating his ineffective-assistance claim. Strickland v. Washington, 466 U.S. 668,

694, 697 (1984).

The Missouri Supreme Court has recently resolved the issues presented here.

See State v. Graham, 13 S.W.3d 290 (Mo. 2000) (en banc). Graham was convicted
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in 1992 of three counts of sodomy involving hand-to-genital contact and sentenced to

three consecutive twenty-year terms of imprisonment. While his appeal was pending,

the amendments to sections 1.160 and 566.060 went into effect. After the Missouri

Court of Appeals affirmed his conviction, Graham moved to recall the mandate,

alleging that his appellate counsel had been ineffective for failing to seek relief under

the amended statutes. The Court of Appeals granted his motion and ordered

resentencing. See State v. Graham, 969 S.W.2d 759 (Mo. App. 1998). Neither party

appealed to the Missouri Supreme Court. In an appeal after resentencing, however, the

Missouri Supreme Court concluded that the Court of Appeals had erred. See Graham,

12 S.W.3d at 292. It held that the new version of section 1.160 is to be applied to

pending cases, and that doing so violates neither the old version of section 1.160 nor

the Ex Post Facto Clause. See id. As such, Graham was not entitled to relief arising

from the amendment to the sodomy statute, which occurred subsequent to his original

sentencing. See id. at 292-93. Nonetheless, under the law of the case doctrine,

Graham retained the benefit of the erroneous decision of the Court of Appeals. See id.

at 293.

The Missouri Supreme Court's Graham decision disposes of the case before us.

The amended version of section 1.160 applies to Ferdinand, and the postsentencing

amendment to the statute under which he was convicted affords him no relief.

Ferdinand’s state appellate counsel cannot be deemed ineffective for having failed to

pursue a claim which the Missouri Supreme Court has shown to be unavailing. We can

imagine the potential argument that Ferdinand, like Graham, might have been able to

secure an erroneous favorable ruling from the Missouri Court of Appeals prior to the

Missouri Supreme Court speaking on the matter, but we reject this attenuated

possibility. Cf. Jones v. Armontrout, 953 F.2d 404, 405 (8th Cir. 1992).

Finally, to the extent that the correctness of the Missouri Supreme Court’s
2The Missouri Supreme Court’s interpretation of section 1.160 itself, standing

alone, provides no basis for § 2254 relief. See Jones, 953 F.2d at 405.

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treatment of the Ex Post Facto Clause is implicated,2 we agree that the application of

the amended version of section 1.160 is not a constitutional violation. See Collins v.

Youngblood, 497 U.S. 37, 52 (1990) (Ex Post Facto Clause prohibits “punish[ing] as

a crime an act previously committed, which was innocent when done . . . mak[ing]

more burdensome the punishment for a crime, after its commission . . . [and]

depriv[ing] one charged with crime of any defense available according to law at the

time when the act was committed”). Applying the amended version of section 1.160

does not increase Ferdinand’s punishment from the level fixed by law at the time he

committed the offense.

IV.

We find no violation of Ferdinand's right to effective assistance of counsel or any

violation of the Ex Post Facto Clause, and therefore Ferdinand’s § 2254 petition was

properly denied. Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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