1

The Honorable Richard H. Battey, United States District Judge, for the District

of South Dakota, sitting by designation.

2

The Honorable Jean C. Hamilton, United States District Judge for the District

of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-1844

___________

Michael A. Clark, *

*

 Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Paul D. Caspari, *

*

 Appellee. *

___________

Submitted: March 15, 2001

Filed: November 28, 2001 

___________

Before HANSEN and HEANEY, Circuit Judges, and BATTEY1

, District Judge.

___________

HEANEY, Circuit Judge.

Michael A. Clark appeals the district court’s2

 denial of his Petition for Writ of

Habeas Corpus. The primary question presented on appeal is whether the state trial
2

court erred in failing to suppress eyewitness identification evidence that was the

product of a purportedly suggestive “show-up” procedure. The district court

answered that question in the negative, and we affirm.

I. BACKGROUND

On November 12, 1988, two African-American men entered Mack’s Package

Liquor Store in St. Louis County, Missouri. Store clerk Virginia Conner was the only

other person in the store. Conner testified that the men wanted to know where the

wine was located and that they both faced her as she directed them towards the wine.

The two men faced Conner another time to inquire about the price of various wine

products, and again when they approached the counter to pay for their purchases.

Conner testified that when she opened the cash register, the shorter of the two men

reached over the counter and removed some money. When she looked up, Conner

saw that the taller man was pointing a gun at her, and both men were smiling. 

After the two men removed the money from the cash register, they instructed

Conner to lie on the floor behind the counter. When Conner lied down, she was able

to activate the silent alarm. As the two men were leaving the store, a customer, John

Walker, was entering and had a brief verbal exchange with the taller of the two men

about some black gloves that the man had dropped. Specifically, Walker asked the

man whether he had dropped his gloves. The man took the gloves from Walker, said

“thank-you,” and left the store.

After shopping for a short while, Walker approached the counter with his

merchandise, whereupon Conner told him that the store had just been robbed. Walker

testified that he ran outside and yelled at the two men to stop. He was able to observe

the two men when they stopped momentarily, and again a short time later.

Eventually, he went to a nearby restaurant to call the police. Walker testified that he

described the two men to the 911 operator as a short black man, about 5' 7", and a tall
3

The police dispatcher described the suspects as two black males, one wearing

a dark coat and white tennis shoes, and the other wearing a dark coat and a green

stocking cap. This description differs from the one provided by Walker, and its origin

is unknown.

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black man wearing a dark jacket and scarf on his head. Walker also testified that he

attempted to provide a similar description to a responding police officer, however, the

officer drove off as soon as Walker told him the direction that the two men were

walking. 

About fifteen minutes after the robbery, police officer Michael Doedli observed

two black men who matched the description that was provided by the police

dispatcher walking near railroad tracks located north of Mack’s Package Liquor

Store.3

 The men fled after Doedli told them to stop. Fifteen minutes later, police

separately apprehended both of these men, who were later identified as Clark and

Paige Spears. At the time of his arrest, Clark was wearing jeans, a black corduroy

jacket, and a black silk scarf on his head. Spears was wearing a black silky jacket,

a blue beret-style hat, and dark pants. Police found a pair of black leather gloves and

a blue steel derringer near Clark. 

Following their arrest, Clark and Spears were taken to the driveway of a nearby

apartment complex, where they were forced to lie face down while handcuffed. A

white male police officer with a shotgun stood over them. Several minutes later,

Conner and Walker were taken to this location to identify Clark and Spears. When

they arrived, Conner and Walker saw Spears being hauled to his feet. Both men were

surrounded by white male police officers. Conner, who was visibly shaken by the

events, identified both Clark and Spears. Walker identified Clark, and indicated that

he was not sure about Spears. 

On February 9, 1989, Clark and Spears were charged with first degree robbery

and armed criminal action. They were tried together beginning on October 30, 1989.
4

After the jury was unable to reach a verdict, the court declared a mistrial. Clark and

Spears were retried on December 12, 1989. This time, the jury found them guilty. 

The state trial court determined that Clark was a prior, persistent, and Class X

offender, and sentenced him to life in prison on the robbery count, and thirty years on

the armed criminal action count. Clark appealed this conviction and sentence to the

Missouri Court of Appeals on three grounds: (1) lack of jurisdiction, (2)

impermissible identification (show-up), and (3) improper closing argument. The

Missouri Court of Appeals affirmed. See State v. Clark, 809 S.W.2d 139 (Mo. Ct.

App. 1991). Clark did not file a motion to transfer the case to the Missouri Supreme

Court or a Rule 29.15 motion for post-conviction relief. Instead, he filed a petition

in federal court, seeking habeas corpus relief. See Title 28 U.S.C. § 2254. 

 

Clark raised a variety of claims in his Petition for Writ of Habeas Corpus. The

district court dismissed Clark’s habeas corpus petition with prejudice, finding that all

of his claims, other than his claim of ineffective assistance of counsel on appeal, were

barred by procedural default because he failed to: (1) file a timely Rule 29.15 motion

in the Missouri state court, (2) raise the issues in his Motion for New Trial or on

direct appeal, and (3) seek transfer of his direct appeal to the Missouri Supreme

Court. See Hall v. Delo, 41 F.3d 1248, 1249 (8th Cir. 1994) (federal habeas review

is barred when a federal claim has not been “fairly presented” to the state court for

a determination on the merits) (citation omitted). Further, the district court found no

actual cause to excuse the procedural default with respect to Clark’s failure to file a

Rule 29.15 motion, or his failure to raise certain issues in his Motion for New Trial

or on direct appeal. See Wainwright v. Sykes, 433 U.S. 72, 90 (1977) (a procedural

bar exists to federal collateral review of the claims unless the petitioner can show

cause and prejudice for the failure). The district court did find cause to excuse his

failure to make a motion to transfer his direct appeal to the Missouri Supreme Court,

however, because at the time the Missouri Court of Appeals decided his direct appeal,

the prevailing law in this circuit was that a habeas petitioner did not have to make
5

such a motion to transfer in order to satisfy the exhaustion requirement. See, e.g.,

Dolney v. Erickson, 32 F.3d 381, 383-84 (8th Cir. 1994). The district court found no

actual prejudice with respect to any of Clark’s grounds to excuse the procedural

default, but did discuss the show-up claim at some length. The district court then

granted a certificate of appealability on the question of whether the pretrial show-up

was impermissibly suggestive. See Title 28 U.S.C. § 2253. This appeal followed. 

 

II. DISCUSSION

We first dispense with the State’s argument that the district court erred when

it found that Clark’s show-up claim was not procedurally barred for his failure to file

a motion to transfer his case to the Missouri Supreme Court. This issue is controlled

by Dixon v. Dormire, 263 F.3d 774 (8th Cir. 2001). See also Coleman v. Kemna, 263

F.3d 785 (8th Cir. 2001); Moore v. Luebbers, 262 F.3d 757 (8th Cir. 2001).

After Clark filed his federal habeas petition, the United States Supreme Court

decided that the exhaustion doctrine requires a state prisoner to file for any available

discretionary review in the state's highest court prior to filing for federal habeas relief.

See O'Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999). In Coleman, and in Moore,

we stated as follows:

In Dixon we concluded that the O'Sullivan opinion requires Missouri

prisoners to seek a discretionary transfer to the Supreme Court of

Missouri. Nevertheless, we did not allow the State to assert an

exhaustion or procedural default defense in that case because, although

the prisoners had failed to exhaust discretionary review, they had

bypassed this available remedy before O'Sullivan was filed and in

reliance on the State's prior and consistent position that such a transfer

was not necessary to exhaustion and would not be asserted as a defense

against claims brought in federal court. Id. Our reasoning was based on

Ford v. Georgia, 498 U.S. 411, 423-24 (1991), where the Court stated
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that only a “firmly established and regularly followed state practice” will

bar federal court review. There was no firmly established state practice

in Missouri of insisting on the exhaustion of discretionary review; to the

contrary, the State had consistently asserted that the exhaustion of

discretionary review was unnecessary.

Moore, 262 F.3d at 758; see also Coleman, 263 F.3d 785. For the reasons stated in

Dixon, we hold that O'Sullivan did not prohibit the district court from considering

Clark’s habeas petition in this instance “because the State has not previously ‘strictly

or regularly’ relied on the default of this state procedure to bar federal review.”

Moore, 262 F.3d at 758 (citation omitted). Accordingly, we turn to the merits of

Clark's show-up claim.

Clark claims the trial court erred by rejecting his motion to suppress the

identification testimony of Conner and Walker. He contends that their identifications

were the result of an improperly suggestive procedure, and were unreliable. Under

Missouri law, “[i]dentification testimony is admissible unless the pretrial

identification procedure was unnecessarily suggestive and the suggestive procedure

made the identification unreliable.” State v. Middleton, 995 S.W.2d 443, 453 (Mo.

1999) (citations omitted); see also State v. Secrease, 859 S.W.2d 278, 279 (Mo. Ct.

App. 1993) (stating that under Missouri law, the test for whether identification

testimony is admissible depends on whether the identification was impermissibly

suggestive, and if so, whether this suggestiveness had an impact on the reliability of

the identification). 

The circumstances surrounding Walker and Conner’s identifications indicate

that the procedures used were improperly suggestive. The record reveals that prior

to the identifications, Walker and Conner were asked to identify several suspects that

had been apprehended by the police. When they arrived on the scene, Walker and
4

Neither Walker nor Conner was ever shown any other suspects, photographs,

or a lineup.

7

Conner saw only Clark and Spears.4

 Both individuals were handcuffed, and were

surrounded by white police officers, one of whom was holding a shotgun. Under

these circumstances, Walker and Conner may have felt obligated to positively identify

Clark and Spears, so as not to disagree with the police, whose actions exhibited their

belief that they had apprehended the correct suspects. Essentially, Walker and

Conner were given a choice: identify the apprehended suspects, or nobody at all.

This coercive scenario increased the possibility of misidentification.

 

Although the identification procedures used by the police in this case give

cause for concern, Walker and Conner’s identifications may nonetheless be

admissible, as long as they are reliable. Reliability “is the linchpin in determining the

admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114

(1977); see also Middleton, 995 SW.2d at 453 (citations omitted) (“The linchpin of

due process in identification procedures is reliability, not suggestiveness.”). In

determining the reliability of a witness's identification, Missouri courts consider: (1)

the witness’s opportunity to view the suspect at the time of the crime; (2) the

witness's degree of attention; (3) the accuracy of any prior description given by the

witness; (4) the level of certainty demonstrated by the witness in making the

identification; and (5) the length of time between the event and the identification. See

State v. Littleton, 649 S.W.2d 225, 227 (Mo. 1983) (en banc); see also Brodnicki v.

City of Omaha, 75 F.3d 1261 (8th Cir. 1996). 

There are several factors which demonstrate that Walker and Conner’s

identifications may have been unreliable. First, neither Walker nor Conner were able

to provide a detailed description to the police prior to the apprehension of Clark and

Spears. This makes it impossible to assess the reliability of their identifications based

on the accuracy of any prior descriptions, and leaves open the possibility that their
8

later descriptions were tainted by their opportunity to view the suspects at the showup. Further, Conner and Walker’s trial testimony was inconsistent. Both witnesses

admitted that they had difficulty remembering certain details about the suspects at the

time of the robbery, and both gave conflicting testimony throughout the two trials.

These factors undercut the reliability of their testimony, and indicate that they may

have been inattentive at the time of the crime and uncertain at the time of the

identifications. Also, Walker testified that he spontaneously identified Clark before

Conner had a chance to voice her opinion. This outburst could have influenced

Conner’s subsequent identification of Clark. 

Despite these concerns, we do not believe the district court erred in affirming

the Missouri Court of Appeals. Three factors lead us to conclude that the witnesses’

identifications were reliable, despite the questionable circumstances surrounding the

identifications. First, both Walker and Conner had the opportunity to clearly view the

perpetrators at the time of the robbery. Conner viewed them face-to-face when they

asked for her help in finding wine, and also, when they were at the cash register.

Walker viewed them face-to-face when he passed them while entering the store, and

when he returned a pair of gloves to one of the perpetrators. Also, only thirty minutes

elapsed between the time of the crime and the show-up. This short time period

allowed Walker and Conner to make their identifications while their recollections

were still fresh. See State v. Pettit, 719 S.W.2d 474, 477 (Mo. Ct. App. 1986)

(finding that the reliability of identification is greatly enhanced by returning a freshly

apprehended suspect to the scene of an offense for prompt identification by

eyewitnesses). Finally, there is no evidence in the record to indicate that the police

prompted Conner or Walker to positively identify Clark and Spears. Although the

record reveals that the police may have made several inquires about the identity of the

suspects before receiving a positive identification, there is no evidence to suggest that

their questions were designed to elicit a particular response. 
9

III. CONCLUSION

The show-up procedures used in this case were suggestive, and there are

several reasons to question the reliability of the identifications. Nevertheless, for the

reasons discussed above, we affirm.

HANSEN, Circuit Judge, concurring. 

I agree with the result reached by the court but write separately to emphasize

the restricted nature of our habeas review and to point out the appropriate level of

deference that must be afforded the Missouri Court of Appeals' decision. Following

the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.

1214, federal courts may grant a state prisoner's petition for writ of habeas corpus in

three limited situations: (1) when the state court decision was contrary to clearly

established federal law, 28 U.S.C. § 2254(d)(1) (Supp. IV 1998); (2) when the state

court decision involved an unreasonable application of clearly established federal

law, id.; or (3) when the state court decision "was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding," id. § 2254(d)(2). Under the first two scenarios, we may look only to the

Supreme Court's jurisprudence on a particular issue for purposes of defining what

constitutes clearly established federal law. Williams v. Taylor, 529 U.S. 362, 412-13

(2000).

The Missouri Court of Appeals stated in deciding Clark's appeal that Missouri

courts employ a two-pronged test to determine the admissibility of identification

testimony: "(1) Was the pretrial identification procedure impermissibly suggestive;

and (2) if so, what impact did the pretrial identification have upon the reliability of

the witness' identification." Clark, 809 S.W.2d at 142 (citing Missouri v. Hornbuckle,

769 S.W.2d 89, 93 (Mo. 1989) (en banc)). The state court went on to conclude that

the officers' "show-up" procedure was not impermissibly suggestive and that the
10

nature of the preidentification encounter did not render the subsequent identifications

unreliable. Id. at 142-43. 

The analysis undertaken by the state court is entirely consistent with the twopart test announced by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98

(1977), although Manson's facts are distinguishable from those present here. In

Manson, the Supreme Court stated that in evaluating identification testimony, a court

must consider: (1) whether the identification procedures were impermissibly

suggestive; and (2) if they were impermissibly suggestive, whether under the totality

of the circumstances "the suggestive procedures created a 'very substantial likelihood

of irreparable misidentification.'" Manson, 432 U.S. at 116-17; see also United States

v. Fields, 167 F.3d 1189, 1190 (8th Cir.) (describing the analysis required under

Manson), cert. denied, 526 U.S. 1140 (1999). The Supreme Court also reiterated in

Manson the same five factors to guide courts in assessing the reliability of a pretrial

identification that the Court previously identified in Neil v. Biggers, 409 U.S. 188

(1972). See Manson, 432 U.S. at 114-16. The Supreme Court of Missouri's

development of the proper analysis to be undertaken when identification procedures

are challenged can be traced directly to the Supreme Court's decisions in Manson and

Biggers. See Missouri v. Higgins, 592 S.W.2d 151, 160 (Mo. 1979) (quoted in

Hornbuckle, 769 S.W.2d at 93), overruled on other grounds by Kuyper v. Stone

County Comm'n, 838 S.W.2d 436 (Mo. 1992). 

While I too am concerned that the identification procedures employed by the

police officers were suggestive, the resolution of Clark's appeal turns not on whether

they were or were not, but on whether the state court's decision involved an

unreasonable application of federal law in determining that the identifications

themselves were reliable. This is so because, as our court notes in its opinion,

reliability is the analytical "linchpin" to determining the admissibility of identification

evidence. The Supreme Court explained in Williams v. Taylor, as relevant here, that

a state court decision involves an "unreasonable application of" federal law "if the
11

state court identifies the correct governing legal rule . . . but unreasonably applies it

to the facts of the particular state prisoner's case." 529 U.S. at 407. Our task then is

not to examine the case as if it were on direct review, applying our independent

judgment to determine whether the state court was correct in its decision, but rather

we are to determine whether the state court's application of the clearly established

federal law (even if erroneous) was objectively reasonable. See Carter v. Bowersox,

265 F.3d 705, 713 (8th Cir. 2001).

The Missouri Court of Appeals in Clark's case applied the appropriate legal

framework in making its decision, and it identified and discussed the relevant facts

surrounding the identification procedures. Although the state court did not refer

specifically to the Biggers factors, it looked to the facts that touch on the Biggers

considerations, factors which our court discusses in independent detail in today's

decision. Specifically, the state court determined that both Conner and Walker had

a clear view of the robbers, that Conner viewed Clark face-to-face for three to four

minutes, that both Conner's and Walker's descriptions were "fairly" accurate, that

there was a minimal delay between the robbery and the identifications, and that

Conner expressed no difficulty in making a positive identification. Clark, 809

S.W.2d at 142-43. Clark presents no evidence now to suggest that the state court's

view of the facts was unreasonable based on the evidence presented, and the state

court's reliability conclusion is not unreasonable in light of the indicia of reliability

upon which it based its decision. Because the Missouri Court of Appeals' decision

in Clark's case cannot be labeled as an unreasonable application of the principles

enunciated by the Supreme Court in Manson, I concur in our court's affirmance of the

district court's judgment. 
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A true copy.

Attest:

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