                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

      ___________

      No. 01-1103
      ___________


William Lovelle Stringer,             *
                                      *
                  Appellee,           *
                                      *
      v.                              *
                                      *
Paul Hedgepeth,                       *
                                      *
                  Appellant.          *
                                          Appeals from the United States
                                          District Court for the
      ___________                         Southern District of Iowa.

      No. 01-1106
      ___________


William Lovelle Stringer,             *
                                      *
                  Appellant,          *
                                      *
      v.                              *
                                      *
Paul Hedgepeth,                       *
                                      *
                  Appellee.           *
                                    ___________

                              Submitted: November 14, 2001

                                   Filed: February 6, 2002
                                    ___________

Before LOKEN, LAY, and HEANEY, Circuit Judges.
                           ___________

HEANEY, Circuit Judge.


        The State of Iowa appeals from the order of the district court granting William
Lovelle Stringer’s petition for habeas corpus, pursuant to 28 U.S.C. § 2254. Stringer
is serving a life sentence for murder. We reverse the district court’s grant of habeas
relief.



I.    BACKGROUND

      On November 4, 1986, an intruder armed with a sawed-off shotgun broke
through the front door of a home occupied by Lyn Ballard, Kevin Colburn, and Jim
Clay. The intruder was an African-American male wearing makeup on his face, a
stocking cap, a black coat, and black pants. He also had a nylon pulled down over his
head. The intruder grabbed Ballard, held a gun to her head, and demanded that she
give him money or drugs. Colburn ran upstairs to call police.

       While Colburn proceeded upstairs, Clay came into the room and pleaded with
the intruder to release Ballard. The intruder complied, but began to push Clay up the
stairway. Both Colburn and Ballard took this opportunity to flee to a neighbor’s to
call the police. Minutes later, they heard a gunshot and saw the intruder run from the


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house. Clay staggered outside afterwards, and collapsed in the street. He died after
a short time from a gunshot wound to the chest.

       Later that night, a man named Gary Lewis called the police and informed them
that Stringer had confessed to the killing. At trial, Lewis testified that Stringer had
been staying with him at his girlfriend’s apartment, which was two blocks from the
murder scene. Lewis stated that on the evening of the murder, Stringer drank a bottle
of wine, borrowed some of his clothing, left the apartment, and returned thirty
minutes later with a sawed-off shotgun and makeup on his face. After Stringer
washed his face, he and Lewis left the apartment to get some “dope.” During their
walk, Stringer saw police at the murder scene and told Lewis that he had “iced” a
man. Lewis said he called the police after they returned to the apartment and Stringer
fell asleep. Approximately thirty minutes later, the police arrived at the apartment.
They found a sawed-off shotgun and clothing matching that worn by the intruder.

       At trial, Ballard and Colburn positively identified Stringer as the assailant, and
Lewis testified about calling the police after hearing Stringer’s confession. Stringer’s
defense counsel tried to discredit the testimony of Ballard and Colburn by pointing
out discrepancies in their descriptions of the assailant. He also argued that Lewis was
the killer. However, both Ballard and Colburn refuted this theory by testifying that
Lewis did not resemble the intruder. The jury eventually returned a guilty verdict.
Stringer was then sentenced to life in prison. The Iowa Court of Appeals affirmed his
conviction on direct appeal. Stringer then filed two motions for post-conviction
relief. The state trial court denied both motions, and these denials were affirmed on
appeal. During the course of these state proceedings, Stringer petitioned for federal
habeas corpus relief, which the district court granted in part, and denied in part. The
State appealed, and Stringer was granted leave to cross-appeal.

      In support of his petition for writ of habeas corpus, Stringer raised the
following arguments: (1) the prosecutor engaged in prosecutorial misconduct by

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asking questions which indicated Stringer had a criminal history and had been
identified in other shootings; (2) the trial court erred when it denied his motion to
suppress the eyewitness testimony of Ballard and Colburn; (3) he was denied the
effective assistance of counsel because the jury was improperly instructed with
respect to eyewitness testimony; and (4) he was able to demonstrate his actual
innocence.

       After receiving the State’s response to Stringer’s Petition, the district court
granted habeas relief on the prosecutorial misconduct claim, holding that the
prosecutor made improper remarks about Stringer’s criminal history which fatally
infected the trial, rendering it fundamentally unfair and thereby denying Stringer due
process. See Stringer v. Hedgepeth, No. 4:90-CV-50054, slip op. at 53 (S.D. Iowa
Nov. 20, 2000). The district court also held there was a reasonable possibility that
the verdict would have been different absent the improper remarks. See id.

       As to Stringer’s motion to suppress, the court found that Ballard’s and
Colburn’s identification of Stringer at his initial appearance may have resulted from
a confrontation that was impermissibly suggestive. See id. at 12. However, the court
found that regardless of whether the confrontation was suggestive, the identifications
of Colburn and Ballard were otherwise reliable and therefore the Constitution did not
require the suppression of their testimony. Id. The court also concluded that
Stringer’s challenge to the trial court’s jury instruction involving eyewitness
testimony was not sufficient to merit habeas relief. See id. at 21. Finally, the court
concluded that Stringer failed to present evidence of actual innocence sufficient to
demonstrate he would not have been convicted had the evidence been introduced at
trial. See id. at 57. The State appealed the court’s grant of habeas relief on the
prosecutorial misconduct issue, while Stringer cross-appealed the court’s refusal to
grant relief on the remaining issues.




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II.   DISCUSSION

       This appeal encompasses four issues. They include Stringer’s claim that the
district court erred by denying his request for habeas relief based upon the trial
court’s denial of his motion to suppress the eyewitness testimony of Ballard and
Colburn, his claim that he was denied the effective assistance of counsel and his right
to due process when the jury was improperly instructed, and his claim that he is
actually innocent. We find no error in the district court’s determination that these
claims do not merit habeas relief. Therefore, we will confine our discussion to a
review Stringer’s prosecutorial misconduct claim.

      Because Stringer filed his habeas petition prior to the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we apply
pre-AEDPA standards in reviewing the case. See Lindh v. Murphy, 521 U.S. 320,
327 (1997). “Under these standards, we review the District Court's conclusions of
law de novo, and give the state court's factual findings a ‘presumption of
correctness.’” Jones v. Delo, 258 F.3d 893, 901 (8th Cir. 2001) (citations omitted).

       “As a general rule, ‘prosecutorial misconduct does not merit federal habeas
relief unless the misconduct infected the trial with enough unfairness to render [a]
petitioner’s conviction a denial of due process.’” Louisell v. Dir. of Iowa Dept. of
Corr., 178 F.3d 1019, 1023 (8th Cir. 1999) (citations omitted). To amount to a due
process violation, improper remarks by a prosecutor must be “so egregious that they
fatally infect[] the proceedings and render[] [a defendant’s] entire trial fundamentally
unfair.” Moore v. Wyrick, 760 F.2d 884, 886 (8th Cir. 1985). A petitioner “must
show that there is a reasonable probability that the error complained of affected the
outcome of the trial – i.e., that absent the alleged impropriety the verdict probably
would have been different.” Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995)
(citations omitted).



                                          -5-
       Stringer argues that he was denied his right to due process when the trial court
refused to grant his motions for a mistrial on grounds of prosecutorial misconduct.
Stringer’s allegations emanate from several comments made by the prosecutor during
the course of the trial. The first occurred during the examination of Ballard. During
Ballard’s cross-examination, Stringer’s counsel asked whether prosecutors informed
her, before a pre-trial deposition, that Stringer was a suspect in other shootings. This
exchange took place as follows:

      Q:     Were you also told that Mr. Stringer was a suspect in some other
             shootings?

      A:     [Colburn] had asked that and they said that that was a possibility.

      Q:     They being whom?

      A:     The prosecutor.

      Q:     Mr. Ramey and Mr. Thomas?

      A:     Right. And they said that that was a possibility that they were
             looking into, that it was a possibility that he was wanted on other
             crimes.

      Q:     They told you that?

      A:     Yes. Well, because at that time we had figured out that the night
             before the shooting there had been another shooting and
             [Colburn] was the doctor on duty at the emergency room the night
             before, and that particular shooting victim had been brought into
             the emergency room and [Colburn] fixed him up.

      Q:     But the prosecutors told you that Mr. Stringer was a possible
             suspect in other shootings.

      A:     Yes.


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       Q:     I have nothing further, Lyn. Thank you.

Trial Transcript at 43-45.


       Soon after, during redirect examination, the prosecutor asked Ballard:


       Q:     As a matter of fact, Lyn, I told you he had been identified in those
              other shootings; hadn’t he [sic].

Id. at 45.

Stringer’s counsel immediately moved for a mistrial. The trial court denied the
motion, but admonished the jury that the question was “stricken from [the] record”
and that they “should attach no significance whatsoever to that question.” Id. at 58-
59.

      The second alleged incident of prosecutorial misconduct occurred during the
prosecutor’s examination of Lewis, when this exchange occurred:

       Q:     And at this present time, are you still on parole then?

       A:     Yes.

       Q:     As part of your parole, you’re not supposed to be involved with
              criminals; is that true?

       A:     That’s correct.

       Q:     At the time Mr. Stringer was there with you, did you know
              whether or not that might be a violation of your parole to have
              Mr. Stringer around?

Id. at 117.

                                           -7-
After this exchange, Stringer’s counsel again moved for a mistrial, arguing that the
question implied that Stringer had a felony criminal record. The court denied the
motion, and ordered the prosecutor to refrain from further inquiry. Stringer’s counsel
refused the trial court’s offer to admonish the jury.

       We believe that both of these cited instances represent examples of improper
prosecutorial statements. The prosecutor’s question to Ballard amounted to testimony
that Stringer had been “identified” as a suspect in other shootings. The prosecutor’s
evident objective was to convey to the jury that Stringer had past involvement in
criminal activities similar to that for which he had been indicted. Similarly, the
prosecutor’s question to Lewis placed the jury on notice that Stringer had a criminal
history and was likely to damage the jury’s perception of his character. Both
questions were improper, as the prosecution may not introduce evidence of prior
criminal conduct to prove the accused’s propensity to commit a particular crime. See
Fed.R.Evid. 404(b); United States v. Jones, 255 F.3d 916, 919 (8th Cir. 2001).

        In this case, however, Stringer’s claim of prosecutorial misconduct fails
because he did not demonstrate he was prejudiced by counsel's damaging statements.
Specifically, Stringer has not satisfied his burden of establishing that the outcome of
his trial “probably would have been different” but for the prosecutor’s objectionable
remarks. Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995). The evidence
introduced at trial to support Stringer’s guilt was quite strong. Both Colburn and
Ballard had different opportunities to view the intruder at the time of the break-in.
Colburn was able to observe the intruder entering the home for several seconds before
he fled up the stairs. Ballard was grabbed by the intruder and held in close proximity
to his head and face. Although the intruder’s face was partially obscured by make-up
and a nylon, Ballard had a considerable opportunity to view the details of the
intruder’s appearance. Both witnesses later testified that they were confident that
Stringer was the man they observed on the evening of the crime.



                                         -8-
       Further, the testimony of Lewis provided supportive evidence of Stringer’s
guilt, despite Stringer’s suggestion that Lewis fabricated the story to conceal his
involvement in the crime. Although the murder weapon was found in Lewis’s
apartment, both Colburn and Ballard testified that Lewis did not resemble the man
who broke into their home. The jury considered Lewis’s testimony, and Colburn’s
and Ballard’s identification of Stringer, and concluded that Stringer was guilty. In
our view, their guilty verdict cannot be attributed to the prosecutor’s improper
remarks. The district court erred in concluding otherwise.

III.   CONCLUSION

      For the reasons discussed above, the judgment of the district court as to
Stringer’s claims of prosecutorial misconduct is reversed. As to Stringer’s other
assignments of error, the judgment of the district court is affirmed.

       A true copy.

             Attest:

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




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