                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-1900
                                    ___________

Rodney Clay Evans,                   *
                                     *
            Appellant,               *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * Western District of Missouri.
Allen Luebbers, Superintendent,      *
Potosi Correctional Center,          *
                                     *
            Appellee.                *
                                ___________

                              Submitted: January 14, 2004
                                 Filed: June 10, 2004
                                  ___________

Before LOKEN, Chief Judge, FAGG and BOWMAN, Circuit Judges.
                              ___________

BOWMAN, Circuit Judge.

       Rodney Clay Evans was convicted of first-degree murder in Missouri and was
sentenced to life in prison for killing his estranged wife, Sheilah, by drowning her in
the family pool. After he exhausted his state appellate and post-conviction remedies,
he filed this 28 U.S.C. § 2254 (2000) habeas corpus petition by which he sought to
have his conviction vacated. The District Court1 denied the petition but granted a
certificate of appealability, which we enlarged. We affirm.

      1
      The Honorable Dean Whipple, Chief Judge, United States District Judge for
the Western District of Missouri.
       In his appeal, Evans raises five issues for our consideration. Our review of
these claims is governed by the Anti-Terrorism and Effective Death Penalty Act of
1996, pursuant to which we may not grant a writ of habeas corpus with respect to any
issue decided by a state court unless the state court's decision "was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court" or the state court's decision "was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court." 28 U.S.C. § 2254(d)(1), (2); see also Penry v. Johnson, 532 U.S. 782, 792–93
(2001) (explaining § 2254(d)(1)'s legal standard).2 In reviewing a district court's
decision denying a § 2254 petition, we review any findings of fact for clear error and
conclusions of law de novo. King v. Bowersox, 291 F.3d 539, 540 (8th Cir.), cert.
denied, 537 U.S. 1093 (2002).




      2
      In Penry, the Court reiterated its interpretation of § 2254(d)(1)'s "contrary to"
and "unreasonable application of" federal law standards.

      A state court decision will be "contrary to" our clearly established
      precedent if the state court either "applies a rule that contradicts the
      governing law set forth in our cases," or "confronts a set of facts that are
      materially indistinguishable from a decision of this Court and neverless
      arrives at a result different from our precedent." A state court decision
      will be an "unreasonable application of" our clearly established
      precedent if it "correctly identifies the governing legal rule but applies
      it unreasonably to the facts of a particular prisoner's case."

         . . . Distinguishing between an unreasonable and an incorrect
      application of federal law, we clarified that even if the federal habeas
      court concludes that the state court decision applied clearly established
      federal law incorrectly, relief is appropriate only if that application is
      also objectively unreasonable.

532 U.S. at 792–93 (citations omitted).

                                          -2-
       Evans first argues that there was insufficient evidence to find him guilty
beyond a reasonable doubt. Therefore, he claims, his conviction is constitutionally
invalid. See In re Winship, 397 U.S. 358, 364 (1970). In the § 2254 setting, we must
consider "whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979)
("[U]nder 28 U.S.C. § 2254 . . . the applicant is entitled to habeas corpus relief if it
is found that upon the record evidence adduced at the trial no rational trier of fact
could have found proof of guilt beyond a reasonable doubt." Id. at 324). We also
presume that the findings of fact made by a state court are correct unless the petitioner
rebuts that presumption by clear and convincing evidence, 28 U.S.C. § 2254(e)(1);
Hall v. Luebbers, 341 F.3d 706, 712 (8th Cir. 2003), which Evans has not done.
Based on the evidence presented at trial, the Missouri Court of Appeals held that a
jury could properly convict Evans of first-degree murder and could have found:

      1. That [Evans] had told people he had thought about killing Sheilah.
      2. That Sheilah was planning to get a divorce and that [Evans] was upset
      about the possibility of the divorce and having to divide the marital
      property and perhaps lose his home.
      3. That [Evans] had been informed by his attorney that he would be
      better off financially if something were to happen to his wife before the
      divorce.
      4. That [Evans] made statements to a number of people about his wife
      ending up in the swimming pool and to one person that if his wife did
      not forget about the divorce "they're liable to find her floating in the
      pool."
      5. That Sheilah was frightened of [Evans], she had gotten an ex parte
      restraining order against him at one point; she told various people that
      if something happened to her they should not assume it was an accident.
      6. That [Evans] picked Sheilah up at the Tulsa Airport on the night of
      September 8, 1994; on the way back to Springfield Sheilah had told
      [Evans] that she was planning on going through with the divorce;
      [Evans] and Sheilah arrived home between 1:00 and 1:30 a.m. on


                                          -3-
      September 9, 1994; and paramedics arrived at 2:55 a.m. to find that
      Sheilah had drowned in the pool.
      7. That the autopsy revealed fresh bruising on Sheilah's head consistent
      with blows from a human fist. The bruises were made within
      approximately two hours prior to death. The bruises were inconsistent
      with a fall into the pool. They resulted from "pretty good blows
      [causing] this amount of hemorrhage." According to the pathologist
      such bruising showed a "significant possibility" of homicide.
      8. That [Evans's] versions of the events of that night weren't consistent.

State v. Evans, 992 S.W.2d 275, 294–95 (Mo. Ct. App. 1999). Based on the
evidence, and applying to it the Jackson v. Virginia standard (as did the Missouri
Court of Appeals), we are satisfied that the Missouri Court of Appeals' resolution of
this issue was not contrary to, or an unreasonable application of, clearly established
federal law. The District Court did not err when it denied the petitioner relief on this
claim.

       Evans next raises his sufficiency-of-the-evidence claim in another form and
insists that the trial court erred when it admitted his numerous incriminating
statements into evidence without sufficient independent proof of the corpus delicti.
See State v. Edwards, 116 S.W.3d 511, 544 (Mo. 2003) (en banc) ("[O]ut-of-court
confessions, statements, or admissions by the accused are generally not admissible
unless they are corroborated by independent evidence, either circumstantial or direct,
showing the corpus delicti of the crime."), cert. denied, 124 S. Ct. 1417 (2004); State
v. McQuinn, 235 S.W.2d 396, 397 (Mo. 1951) (en banc). As already noted, a
conviction obtained without proof beyond a reasonable doubt is constitutionally
invalid and we may review a claim that a conviction is wanting for lack of such proof
under the standard established in Jackson v. Virginia. Regarding the corpus delicti
issue as it is pled by Evans, however, no constitutional rights are at stake. Rather, his
claim is based on Missouri's corpus delicti requirement that the prosecution present
some independent proof of the death of the victim and that the death was caused by
human agency (i.e., not by accident or suicide), usually prior to introducing

                                          -4-
incriminating statements made by the defendant. McQuinn, 235 S.W.2d at 397 ("It
is undoubtedly the rule that confessions of a crime not made in open court or before
a committing magistrate and without proof aliunde that a crime has been committed
will not sustain a conviction. However, . . . full proof of the corpus delicti
independent of the defendant's extrajudicial confessions is not required. 'On the
contrary, what seemed to be only slight corroborating facts have been held
sufficient.'" (citations omitted)). Missouri's particular formulation of the corpus
delicti rule is of an evidentiary nature and we may not review any evidentiary rulings
unless they implicate federal constitutional rights. Estelle v. McGuire, 502 U.S. 62,
68 (1991).3 The abstract constitutional right at issue here is the Fourteenth
Amendment's requirement that Evans be found guilty only where there is evidence
to convince a reasonable trier of fact beyond a reasonable doubt. As we already
explained, the Missouri Court of Appeals' determination that this requirement was




      3
        Evans argues that our prior decisions, see, e.g., Howard v. Caspari, 99 F.3d
895, 897 (8th Cir. 1996), cert. denied, 520 U.S. 1234 (1997), and Lufkins v. Leapley,
965 F.2d 1477, 1482 (8th Cir.), cert. denied, 506 U.S. 895 (1992), show that the
corpus delicti doctrine is of a constitutional dimension. We pause here to note that
these earlier cases—and the Supreme Court decisions from which they stem—Wong
Sun v. United States, 371 U.S. 471, 488–89 (1963), and Smith v. United States, 348
U.S. 147, 152 (1954)—announce a rule with somewhat different bounds than the rule
Evans now urges upon us. Though the phrase corpus delicti permeates these cases,
the clear constitutional rule announced in these decisions is the requirement that a
defendant's conviction not rest solely upon his or her confession or extra-judicial
statements; that is, there must be independent evidence that corroborates these
statements. Whatever Missouri's corpus delicti rule might require, it is clear that the
federal constitutional requirements have been met in this case, for these merely
necessitate "that the corroborative evidence does not have to prove the offense
beyond a reasonable doubt, or even by a preponderance, as long as there is substantial
independent evidence that the offense has been committed, and the evidence as a
whole proves beyond a reasonable doubt that defendant is guilty." Smith, 348 U.S.
at 156.

                                         -5-
fulfilled was not contrary to, or an unreasonable application of, clearly established
federal law. Accordingly, this claim was properly denied.

        As his third point, Evans urges that the prosecution violated Brady v.
Maryland's requirement that the prosecution disclose evidence favorable to the
accused. 373 U.S. 83 (1963). Specifically, Evans argues that his rights as defined by
Brady were violated because the State did not disclose that Dr. Spindler, the State's
pathologist, was previously disciplined for illegally prescribing narcotics and had his
license suspended in Illinois. We agree with the District Court that this claim was
procedurally defaulted, notwithstanding the fact that the Missouri Court of Appeals
reviewed the claim for plain error after it concluded that the issue had not been raised
at trial. Evans, 992 S.W.2d at 293–94. Although procedurally defaulted, we may
review this claim if Evans can show cause for the default and prejudice from the
alleged violation of his rights. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Evans has shown neither. On the record presented to us, Evans has not made a
showing that the prosecution knew of this information prior to, or during, the trial and
deliberately withheld it; that is, he has not shown cause. Cf. Strickler v. Greene, 527
U.S. 263, 281–82 (1999) (explaining components of a Brady violation). We therefore
do not reach the issue of prejudice and the District Court did not err when it denied
Evans relief on his Brady claim.

       Evans next urges that his Sixth Amendment Confrontation Clause rights were
violated when the trial court admitted—through the testimony of some ten different
witnesses—numerous out-of-court statements made by Evans's wife, the victim. The
trial court admitted statements suggesting that Sheilah Evans was scared of the
petitioner (e.g., "I'll be like another Nicole Simpson." Trial Tr. at 486; "This might
be another O.J. Simpson case." Trial Tr. at 341), that Sheilah Evans was verbally and
physically abused by the petitioner, that Sheilah Evans intended to divorce the
petitioner, and that Sheilah Evans obtained a protective order against the petitioner.
Until recently, Ohio v. Roberts, permitted the introduction of hearsay statements

                                          -6-
against a criminal defendant if the evidence was shown to be dependable because it
"falls within a firmly rooted hearsay exception" or "it contains 'particularized
guarantees of trustworthiness.'" Lilly v. Virginia, 527 U.S. 116, 125 (1999) (plurality
opinion) (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)). The District Court
determined that the admission of these statements did not involve an unreasonable
application of clearly established federal law because the bulk of the statements fell
within firmly rooted exceptions to the hearsay rule. We agree. Some of Sheilah
Evans's statements were properly admitted as statements made by her for the purpose
of obtaining a medical diagnosis. See White v. Illinois, 502 U.S. 346, 355 n.8 (1992);
United States v. Sumner, 204 F.3d 1182, 1185 (8th Cir. 2000). And, as the Missouri
Court of Appeals determined, the bulk of the statements were properly admitted as
evidence of Sheilah Evans's mental state—which the defense put into question when
it implied she committed suicide—under the state-of-mind exception. Lenza v.
Wyrick, 665 F.2d 804, 810 (8th Cir. 1981) (holding that victim's "statements were
hearsay admissible under the 'state of mind' exception to the hearsay rule and
constitutionally permissible under Ohio v. Roberts." (citations omitted)); see also
Hayes v. York, 311 F.3d 321, 324–25 (4th Cir. 2002), cert. denied, 538 U.S. 979
(2003). The District Court and the Missouri Court of Appeals both noted that some
of the statements regarding physical abuse should not have been admitted, but
because the substance of most of these statements came into evidence through the
petitioner's own inculpatory statements, any unfair prejudice was negligible.

       We are cognizant that the Supreme Court's recent decision in Crawford v.
Washington, — U.S. —, 124 S. Ct. 1354 (2004), arguably bears on this case. In
Crawford, the Court overruled Ohio v. Roberts and held that "testimonial" hearsay
is inadmissable against a criminal defendant unless the declarant is unavailable and
the defendant had a prior opportunity to cross-examine the declarant. Crawford, 124
S. Ct. at 1374. We doubt Crawford's application to the case at hand for at least two
reasons. First, the Crawford Court did not suggest that this doctrine would apply
retroactively and the doctrine itself does not appear to fall within either of the two

                                         -7-
narrow exceptions to Teague v. Lane's non-retroactivity doctrine. 489 U.S. 288
(1989); see also, Williams v. Taylor, 529 U.S. 362, 411–13 (2000) (discussing
Teague and AEDPA).4 Second, even if Crawford's rule could apply retroactively as
a general proposition, by the strict terms of its holding, Crawford does not apply to
this particular case. We recognize that there is language in Crawford that could
arguably encompass some of Sheilah Evans's statements. See Crawford, 124 S. Ct.
at 1364 (discussing "[v]arious formulations of this core class of 'testimonial'
statements"). We also recognize that the Court declined to give a full definition of
what "testimonial" statements are, specifically saving that question for another day.
Id. at 1374. Still, by its terms, Crawford's holding applies "to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations. These are the modern practices with closest kinship to the abuses at
which the Confrontation Clause was directed." Id. The hearsay statements of Sheilah
Evans do not fit this definition. See United States v. Reyes, 362 F.3d 536, 540 n.4
(8th Cir. 2004) (noting testimonial vs. non-testimonial statement distinction).

       In sum, because the decision of the Missouri Court of Appeals denying Evans
relief on his Confrontation Clause claims was not contrary to, or an unreasonable
application of, clearly established federal law, the District Court did not err when it
denied this claim.

       As his final claim, Evans urges that his Sixth Amendment right to effective
assistance of counsel was violated because his trial counsel failed to present expert


      4
        The two exceptions to Teague's non-retroactivity rule are for: (1) new rules
that place "'certain kinds of primary, private individual conduct beyond the power of
the criminal law-making authority to proscribe,'" Teague, 489 U.S. at 311 (plurality
opinion) (quoting Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J.,
concurring in part and dissenting in part)), and (2) "watershed rules of criminal
procedure" that increase the accuracy of the judicial process, id. at 311 (plurality
opinion).

                                         -8-
testimony to refute the State's expert witness, Dr. Spindler. The District Court
concluded that this claim was procedurally defaulted because it had not been
presented to the Missouri Court of Appeals during Evans's direct appeal. We agree.
Still, we may review this claim if Evans can show cause for the default and prejudice
from the alleged violation of his rights. Coleman, 501 U.S. at 750. Evans contends
that the ineffective assistance of his appellate counsel is the cause for his failure to
properly present the issue in state court. In order for ineffective assistance of counsel
to itself be cause to excuse a procedural default, the ineffective assistance must rise
to the level of an independent constitutional violation. Edwards v. Carpenter, 529
U.S. 446, 451–52 (2000). Thus, the assistance rendered must have been
constitutionally substandard and prejudice must have resulted therefrom. Strickland
v. Washington, 466 U.S. 668, 687 (1984). Evans concedes, however, that his direct-
appeal counsel's omission of the claim was a strategic decision made after
"considering the relative strength of all of the issues." Appellant's Supp. Br. at 6.
This concession is fatal to Evans's claim of ineffective assistance of counsel,
inasmuch as as we have frequently recognized that the strategic and tactical decisions
made by counsel, though they may appear unwise in hindsight, cannot serve as the
basis for an ineffective-assistance claim under Strickland. See, e.g., Graham v.
Dormire, 212 F.3d 437, 440 (8th Cir. 2000). Because Evans cannot show his
counsel's actions on direct appeal fell below the level guaranteed by the constitution,
he cannot show cause that will excuse his procedural default.5 We conclude that the
District Court properly refused to reach this claim.

      For the foregoing reasons, the judgment of the District Court is affirmed.
                      ______________________________

      5
        We also reject Evans's claim that he has passed through the "actual innocence"
gateway on the strength of, inter alia, the deposition of Dr. Dix, another pathologist.
See Schlup v. Delo, 513 U.S. 298, 327 (1995) ("[P]etitioner must show that it is more
likely than not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt.").

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