                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-4123
                                     ___________

Michael J. Armstrong,                     *
                                          *
             Appellant,                   *
      v.                                  * Appeal from the United States
                                          * District Court for the Eastern
James A. Gammon,                          * District of Missouri.
                                          *
             Appellee.                    *
                                     ___________

                           Submitted: September 17, 1999
                             Filed: November 15, 1999
                                    ___________

Before McMILLIAN and MURPHY, Circuit Judges, and TUNHEIM,1 District Judge.
                          ___________

TUNHEIM, District Judge.

        Appellant Michael Armstrong filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of
Missouri after being convicted of class A felony first degree assault and armed
criminal action in Missouri state court. The district court2 denied his petition and
certified the following issues for appeal: whether appellate counsel was constitutionally


      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, sitting by designation.
      2
       The Honorable Jean C. Hamilton, Chief Judge, United States District Court for
the Eastern District of Missouri.
ineffective for failing to argue that the evidence was insufficient to prove “serious
physical injury” pursuant to Mo. Rev. Stat. § 565.050; whether appellate counsel was
constitutionally ineffective for abandoning the appeal of Armstrong's Rule 29.15
motion; and whether the pre-trial identification of Armstrong was obtained through the
use of an impermissibly suggestive procedure that created a substantial likelihood of
misidentification at trial. Armstrong has elected to abandon the issue regarding his
Rule 29.15 motion, and we affirm the district court's denial of his other claims.

BACKGROUND

       On January 8, 1991, Mary Meidinger went for an after-dinner walk through her
neighborhood in Kirkwood, Missouri. Shortly after 8:00 p.m., she noticed a two-tone
blue van pull into a driveway several feet in front of her, and subsequently saw the van
driving around the neighborhood several times. At approximately 8:20 p.m., she saw
the van come around a corner, and it pulled up beside her. Meidinger was standing two
or three feet away from the passenger side of the van. The driver slid across the seat
to the passenger window to ask for directions, and Meidinger spoke with him for
several minutes. The driver appeared not to understand her, and asked her to repeat
the directions at least two or three times. The driver then asked Meidinger if she would
do something for him, pointed a gun at her, and told her to get in the van. Meidinger
screamed and started to run, and the driver shot her in her right hip.

        Thomas VonHatten of the Kirkwood Police Department arrived on the scene
within minutes after the shooting. Meidinger told him about the shooting and described
her assailant as a black man wearing a knit cap who may have had a pock-marked face
and was driving a two-tone blue van. She estimated that he was approximately twenty-
eight to thirty-two years old and five feet eight inches in height. Two hours after the
shooting, Keith Wandless, another police officer, pulled over the van Armstrong was
driving. Wandless determined that Armstrong did not match the suspect's description
either in height or age, and he let Armstrong go. Prior to the shooting, Armstrong's van

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had caught Wandless's attention, and Wandless remembered that the last three digits
of the license plate read “970.”

       Meidinger was taken to the hospital, where she stayed overnight for observation.
The treating physician testified that the bullet entered in the back of her right hip and
exited near the front of her thigh in the groin area. The bullet passed roughly an inch
away from the main artery in her leg. The physician further testified that Meidinger
will have two permanent scars where the entry and exit wounds were, and that she has
permanent or long-term damage to her femoral nerve resulting in a loss of sensation to
the front of her thigh.

       The morning after the shooting, police officer Paul Faulstich conducted a
computer search of license plates ending in “970" and narrowed the list down to one
van in the Kirkwood area. Grover and Barbara Stewart were the registered owners of
the van. After contacting the Stewarts, Faulstich learned that they were permitting
Armstrong to drive the van. Faulstich obtained a 1988 photograph of Armstrong and
constructed a photo spread using five other pictures of black males of similar age and
appearance. Faulstich then showed this spread to Meidinger while she was still at the
hospital. Faulstich made no suggestion that he considered any of the men to be
suspects. After studying the photos for approximately five minutes, Meidinger
tentatively chose Armstrong's picture as the man who shot her. Armstrong was arrested
and questioned later that day.

       Three days after the shooting, Faulstich showed Meidinger another photo spread.
The spread contained six photographs, including one of Armstrong taken after his arrest
two days earlier. Other than Armstrong's picture, the spread did not contain pictures
of any of the individuals pictured in the first spread. Meidinger chose Armstrong's
picture without hesitation.




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       After a jury trial, Armstrong was convicted of class A felony first degree assault
under Mo. Rev. Stat. § 565.050 and armed criminal action under Mo. Rev. Stat.
§ 571.015. On October 23, 1992, he was sentenced to consecutive terms of twenty-
four years for assault and three years for armed criminal action. Prior to the disposition
of his direct appeal, Armstrong filed a Missouri state post-conviction motion, which
was denied. Armstrong's conviction, sentence, and denial of his post-conviction motion
were thereafter affirmed on direct appeal. Armstrong filed two motions to recall the
mandate with the Missouri Court of Appeals, which were denied, and he petitioned to
the Missouri Supreme Court for a writ of habeas corpus, which was denied. Armstrong
then filed this habeas petition.

ANALYSIS

      A.     Standard of Review

      Armstrong filed this petition for writ of habeas corpus on April 25, 1996, one
day after President Clinton signed the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. Accordingly, our review
of Armstrong's habeas petition is limited by AEDPA, which provides in relevant part:

      (d) An application for a writ of habeas corpus on behalf of a person in
      custody pursuant to the judgment of a State court shall not be granted
      with respect to any claim that was adjudicated on the merits in State court
      proceedings unless the adjudication of the claim –

         (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or

      (2) resulted in a decision that was based on an unreasonable determination
      of the facts in light of the evidence presented in the State court
      proceeding.

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28 U.S.C. § 2254(d). A state court decision is an unreasonable application of clearly
established Federal law if the “'decision, evaluated objectively and on the merits,
resulted in an outcome that cannot reasonably be justified under existing Supreme
Court precedent.'" Long v. Humphrey, 184 F.3d 758, 760 (8th Cir. 1999) (quoting
Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 890 (3d Cir. 1999) (en banc)).

      B.     Ineffective Assistance of Counsel

       Armstrong contends that there was insufficient evidence that Meidinger suffered
“serious physical injury” under Missouri law and argues that his appellate counsel on
direct appeal was ineffective for failing to raise this issue. Because Armstrong was
sentenced prior to January 1, 1996, and he raised this issue in a motion to recall the
mandate filed with the Missouri Court of Appeals, the merits of this claim are properly
before this Court. See Mo. Sup. Ct. R. 29.15(m); Chambers v. Bowersox, 157 F.3d
560, 565 & n.5 (8th Cir. 1998), cert. denied, 119 S. Ct. 2383 (1999).

       A claim of ineffective assistance of appellate counsel is reviewed under
Strickland v. Washington, 466 U.S. 668 (1984). See Chambers, 157 F.3d at 566. To
prevail on this claim, Armstrong must show both that his counsel's performance was
objectively unreasonable and that there is a reasonable probability that the outcome of
his appeal would have been different if counsel had raised the claim. See id. Counsel
is not required to raise every colorable claim on appeal. See Roe v. Delo, 160 F.3d
416, 418 (8th Cir. 1998) (citation omitted). Unless there is evidence to the contrary, we
assume that counsel's decision not to raise a claim was a strategic decision to
emphasize stronger claims at the expense of weak ones. See id.

       In challenges to the sufficiency of evidence, the relevant inquiry is whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. See State v. Williams, 784 S.W.2d 309, 311 (Mo. Ct. App. 1990)

                                          –5–
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In Missouri, first degree
assault is not a class A felony unless the victim suffers “serious physical injury.” Mo.
Rev. Stat. § 565.050. “Serious physical injury,” in turn, is defined as injury that
“creates a substantial risk of death or that causes serious disfigurement or protracted
loss or impairment of the function of any part of the body.” Mo. Rev. Stat.
§ 565.002(6). Armstrong relies on State v. Baker, in which the victim was shot in the
leg and the only testimony regarding his injury was that his leg ached when the weather
was cold or rainy. State v. Baker, 859 S.W.2d 805, 813 (Mo. Ct. App. 1993). The
Missouri Court of Appeals held that this was insufficient evidence of “serious physical
injury,” and noted that this evidence did not show any impairment of the victim's ability
to stand or walk. See id. At the same time, the court upheld a finding that another
victim had suffered serious physical injury. See id. The other victim was shot in the
shoulder, and testified that he continued to experience stiffness as a result. See id. The
court held that continued stiffness constituted protracted impairment of the shoulder's
function because it interfered with the shoulder's movement. See id.

       At Armstrong's trial, a doctor testified that Meidinger has suffered nerve damage
and a resultant loss of sensation that is at least long term and possibly permanent.
Armstrong argues that this loss of sensation, like the leg injury in Baker, does not
implicate the leg's function of standing or walking, and therefore is not an “impairment
of the function of any part of the body” under § 565.002(6). Unlike the victim in
Baker, however, Meidinger does not merely experience intermittent aches; instead, she
has experienced a loss of sensation. At the outset, therefore, it appears that Meidinger
has suffered an impairment of the function of a part of her body, namely, her femoral
nerve, because the function of a nerve is to feel and her nerve is no longer fully
performing this function. Furthermore, a jury could rationally conclude that the loss of
sensation interferes with Meidinger's use of her leg and is akin to the shoulder stiffness
that the Baker court upheld as sufficient evidence of serious physical injury. See State
v. Kruger, 926 S.W.2d 486, 489 (Mo. Ct. App. 1996) (weakness and numbness in


                                           –6–
victim's leg was serious physical injury because victim was “unable to distinguish
sensations which directly impairs the functioning of her leg.”).

       Armstrong also argues that Meidinger herself testified that she suffered no loss
of function. In challenges to the sufficiency of evidence, however, Missouri appeals
courts disregard evidence and inferences contrary to the verdict, and thus this evidence
would not be used to disturb the verdict. See Baker, 859 S.W.2d at 811. Accordingly,
we are unable to conclude that there is any reasonable probability that the outcome of
Armstrong's appeal would have been different had his counsel raised the insufficiency
of evidence issue. Armstrong's claim therefore fails.

      C.     Impermissibly Suggestive Identification Procedures

       Armstrong argues that the photo spreads used to identify him impermissibly
suggested to Meidinger that the officer thought Armstrong was her attacker and that
this suggestiveness casts doubt on the reliability of Meidinger's in-court identification
of Armstrong. At trial, Armstrong moved to suppress Meidinger's out-of-court
identifications of him and to disallow Meidinger's in-court identification. On direct
appeal from his conviction, the Missouri Court of Appeals affirmed the denial of these
motions.

       To prevail on his claim that the identifications were unreliable, Armstrong must
first show that the out-of-court identification procedures were impermissibly
suggestive. See United States v. Triplett, 104 F.3d 1074, 1079 (8th Cir. 1997) (quoting
United States v. Ramsey, 999 F.2d 348, 349 (8th Cir. 1993)). Armstrong's sole basis
for asserting that the photo spreads were impermissibly suggestive is that his
photograph was the only one to be included in both. This fact is insufficient, by itself,
to show that the procedure was impermissibly suggestive. See United States v.
Johnson, 56 F.3d 947, 954 (8th Cir. 1995). Furthermore, the district court found that
Meidinger was not told that Armstrong was a suspect, nor was there any evidence that

                                          –7–
Armstrong's appearance in the photo spreads was suggestive in any way; in fact,
different photographs of Armstrong were used in each spread, and Meidinger testified
that she did not know that Armstrong was the only person to appear in both. These
findings of fact are reviewable only for clear error. See Ivy v. Bowersox, 122 F.3d 675,
676 (8th Cir. 1997), cert. denied, 118 S. Ct. 1063 (1998). Under these facts, Armstrong
cannot show that the out-of-court identification procedures were impermissibly
suggestive, and the Missouri Court of Appeal's denial of this claim accordingly did not
involve an unreasonable application of Federal law.

CONCLUSION

      For these reasons, the judgment of the district court is affirmed.

A true copy.

  ATTEST:

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




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