                                   ___________

                                   No. 95-3585
                                   ___________

Percy E. Cooksey, III,                 *
                                       *
            Appellant,                 *
                                       *   Appeal from the United States
     v.                                *   District Court for the
                                       *   Eastern District of Missouri.
Paul K. Delo,                          *
                                       *
            Appellee.                  *


                                   ___________

                    Submitted:     May 17, 1996

                          Filed:   September 10, 1996
                                   ___________

Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.
                               ___________

BOWMAN, Circuit Judge.


     Percy E. Cooksey III is a Missouri prisoner serving a sentence of
life plus sixty years after being convicted by a jury of the unlawful use
of a weapon, kidnapping, forcible rape, first degree robbery, and three
counts of armed criminal action.     He applied to the District Court1 for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994).      The District
Court, adopting the report and recommendation of a Magistrate Judge,2
denied the application.    Cooksey timely appeals, and we affirm.


         On February 6, 1987, Cooksey attended a prayer service at the
Greater Faith Baptist Church in St. Louis, Missouri.      During a




     1
     The Honorable Carol E. Jackson, United States District Judge
for the Eastern District of Missouri.
     2
      The Honorable David D. Noce, United States Magistrate Judge
for the Eastern District of Missouri.
prayer circle, Cooksey took out an eighteen-inch knife and held it to the
throat of the woman next to him.      After terrorizing the captive audience,
Cooksey withdrew to a vacant building where he raped the woman and stole
her watch.     Cooksey did not challenge the sufficiency of the evidence when
he appealed his convictions in state court.            Missouri v. Cooksey, 787
S.W.2d 324, 325 (Mo. Ct. App. 1990), cert. denied, 498 U.S. 1032 (1991).
Cooksey also did not seek post-conviction relief in state court.


     In his petition for a writ of habeas corpus, Cooksey advanced the
following five claims for relief:      (1) the state trial court violated the
Due Process Clause when it denied Cooksey's motion for disclosure of grand
jury demographic data, which Cooksey sought in order to challenge the
method used to select grand jurors in St. Louis; (2) the state trial
court's local rule regarding probation recommendations violates the Due
Process Clause and the Sixth Amendment right to a jury trial; (3) the state
trial court violated the Due Process Clause when it based a sentence
enhancement on a prior void conviction; (4) the state prosecutor violated
the Due Process Clause when the prosecutor prevented Cooksey from deposing
the principal female victim of his crimes; and (5) the cumulative effect
of the foregoing constitutional violations resulted in a denial of both due
process and effective assistance of counsel.           On appeal, Cooksey argues
that the District Court erred when it rejected his first four claims and,
a fortiori, rejected his fifth claim as well.              Only the first issue
requires extensive analysis, and we now turn to that issue.


     Prior to trial Cooksey filed a motion to dismiss the indictment,
alleging that the grand jury had not been selected from a fair cross-
section   of    the   community   because    certain   racial   groups   had   been
systematically excluded.     See O'Neal v. Delo, 44 F.3d 655, 662 (8th Cir.)
(defining constitutional fair cross-section requirements), cert. denied,
116 S. Ct. 129 (1995).      At the same time, Cooksey sought disclosure of
demographic data relating to




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individuals selected for grand jury service during the last ten years.            The
state    trial   court   denied   the   motion   for   disclosure    of   demographic
information.      Before the court ruled on the motion to dismiss the
indictment, the state filed a motion to substitute an information for the
indictment.      Cooksey opposed the state's motion by filing a motion to
dismiss and strike the information.        The sole basis for his opposition to
the filing of the information was that the motion to substitute was
untimely.3    The court granted the state's motion to substitute, and Cooksey
was tried on the information.      Cooksey did not make any further objection
to the information nor did he appeal the trial court's denial of the motion
to strike the information.


        Under Missouri law, "an information charging the same offense charged
in [a defective] indictment may be substituted therefor at any time before
the jury is sworn."       Mo. Rev. Stat § 545.300 (1994).           The decision to
substitute an information is within the discretion of the prosecutor, and
the court has no power to control that discretion.              Missouri ex rel.
Lodwick v. Cottey, 497 S.W.2d 873, 880 (Mo. Ct. App. 1973).            Additionally,
the prosecutor may substitute an information for an indictment even if the
court has not issued an order finding the indictment to be defective.
Missouri v. Green, 305 S.W.2d 863, 868 (Mo. 1957).                  Missouri Revised
Statutes § 544.250 provides that "a preliminary examination shall in no
case be required . . . in any case where an information has been
substituted for an indictment as authorized by section 545.300."                  The
Missouri Supreme Court in Green held that this language evinces "a
legislative intent that the finding and return of an indictment, as
evidence of probable cause, should be and are




          3
        The motion to strike the information alleges that                        the
information is "contrary to the . . . due process rights                          of
Defendant" but only to the extent that the information                           was
untimely. Missouri v. Cooksey, No. 871-0427, Motion to Dismiss                   and
Strike Information at 1 (Cir. Ct. St. Louis Aug. 1, 1988).                        No
mention is made of any other due process rights.

                                         -3-
a sufficient and legal substitute for a preliminary examination."           Green,
305 S.W.2d at 868-69.    In sum, the substitution of an information in this
case appears to conform to Missouri law on the subject, and Cooksey does
not challenge his conviction on that basis.          The issue Cooksey would have
us decide is whether Missouri law comports with the requirements of the Due
Process Clause.


       In 1884, the Supreme Court handed down its landmark decision in
Hurtado v. California, 110 U.S. 516 (1884).          The Court held that neither
the Fifth Amendment, which provides for the right to an indictment by a
grand jury for serious criminal charges brought in federal court, nor the
Fourteenth Amendment's Due Process Clause requires states to afford a
defendant the right to be tried only upon an indictment by a grand jury.
Id. at 521-22.    The Court stated that the right to indictment by a grand
jury was not essential to preserving "fundamental principles of liberty and
justice," id. at 535, or guarding "the substantial interest of the
prisoner," id. at 538.   Thereafter a number of states abolished the use of
grand juries in state criminal cases.        See Beale & Bryson, Grand Jury Law
& Practice § 1.05 (1986).          Nonetheless, the Due Process Clause still
requires some form of pretrial screening such as the preliminary hearing
available to Hurtado under then-applicable California law.           Hurtado, 110
U.S. at 538.     Under that procedure, a magistrate was required to conduct
a hearing to determine whether there was probable cause to believe that the
accused had committed the crime charged.       Id.    Thus while the Due Process
Clause does not require indictment by a grand jury, it clearly requires
some   pretrial   screening   of    criminal   charges.      The   Court   has   not
reconsidered its holding in Hurtado over the years, see, e.g., Reed v.
Ross, 468 U.S. 1, 16 n.11 (1984), even though it has since recognized that
many of the limits placed on the power of the national government by the
first ten amendments were made applicable to the states by the Due Process
Clause of the Fourteenth Amendment, see Albright v. Oliver, 114 S. Ct. 807,
812-13 (1994).




                                       -4-
     As noted above, Missouri law does not provide for a preliminary
hearing when an information is substituted for an indictment.                      Nothing in
the record indicates (and the state does not claim) that Cooksey was
afforded   any    type      of   pretrial   screening       other   than   the   grand     jury
proceedings that he has challenged at every turn.                  Cooksey argues that the
charges against him were not screened at all and that Missouri law, as
applied in his case, violates the Due Process Clause of the Fourteenth
Amendment because the indictment, which he alleges was invalid, is not "a
sufficient and legal substitute for a preliminary examination," Green, 305
S.W.2d at 868-69.           This argument, as we have stated it, may well have
merit.   We conclude, however, that Cooksey is barred from raising it in his
federal habeas corpus proceedings because he failed to raise the issue in
the state courts.


     "A state prisoner seeking a writ of habeas corpus from a federal
court must first fairly present his claims to the state courts in order to
meet the exhaustion requirement of 28 U.S.C. § 2254(b)."                   Forest v. Delo,
52 F.3d 716, 719 (8th Cir. 1995).           When a prisoner fails to fairly present
a claim in state court, thereby incurring a procedural bar as a matter of
state law, the prisoner "has defaulted the claim for purposes of federal
habeas relief."       Id.    Such issues may nonetheless be reviewed in a federal
habeas proceeding if the prisoner can "show cause for his default and
actual prejudice from the alleged constitutional violations or if he could
demonstrate that failure to review the claim would result in a miscarriage
of justice."     Id.


     The     Missouri       Court   of   Appeals     held   that    Cooksey's    grand-jury-
demographics claim was waived because he failed to lodge a proper objection
against the substitute information.                  Under Missouri law, a defective
indictment     does    not       contaminate    a    subsequent      information    that     is
substituted for the indictment without objection from the defendant.
Missouri v. Johnson, 504 S.W.2d 23, 26 (Mo. 1973).                    The court in Johnson
reasoned that the defendant




                                               -5-
had not been prejudiced because (1) the substitute "information did not
charge any additional or different offense" and (2) the defendant did not
make any attack on the substitute information itself.             Id. at 26-27.    In
this case the Missouri Court of Appeals relied upon Johnson when it held
that the alleged defects in the composition of the grand jury selection
process did not affect the validity of the information on which he was
tried.     Missouri v. Cooksey, 787 S.W.2d at 326.


     We agree with the conclusion reached by the Missouri Court of
Appeals.    Cooksey's objection to the timeliness of the information is not
legally significant to this case; in order to fairly present his claim to
the state courts he should have objected to the filing of the information
on the ground that he was not being afforded the pretrial screening
required by the Due Process clause.            In essence, Cooksey put the cart
before the horse.      It would be inappropriate for any court to decide
whether the state court should have granted discovery on the demographics
of the grand jury before that court decided the constitutionality of the
Missouri    statutes   providing   for   informations   to   be    substituted    for
indictments, Mo. Rev. Stat. § 545.300, and providing that, in such cases,
the accused is not afforded a preliminary hearing, id. § 544.250.           Cooksey
can prevail on his grand-jury-demographics claim only if the substitution
of an information in the circumstances of this case fails to satisfy the
requirements of the Due Process Clause.        Cooksey, however, never challenged
the procedures provided by state law until he appeared in federal court.
The only objection he raised to the information was that it was untimely.
On appeal in the state courts, he argued only that the state trial court
deprived him of his due process rights when it denied his request for
discovery on the demographics of the grand jury that indicted him.                Thus
the claim that the state trial court denied Cooksey's due process rights
by refusing to allow discovery of grand jury demographic data is, as the
Missouri Court of Appeals held, procedurally barred as a matter of state
law because Cooksey failed to lodge a proper objection to the




                                         -6-
information that was substituted for the indictment.        He thus has defaulted
the claim for purposes of his federal habeas corpus petition.


        Despite the procedural bar and default, Cooksey could obtain federal
habeas review of his claim if he were able to show cause for his default
and actual prejudice as a result.       Simply put, there is no way that Cooksey
could show cause for his failure to raise this issue in state court.               He
had   the   opportunity   to   oppose   the   state's   motion   to   substitute   an
information for the indictment.         In fact, Cooksey took advantage of the
opportunity but argued only that the information was untimely.           Similarly,
Cooksey cannot show prejudice because he has never argued that the evidence
was insufficient to support his convictions.             Clearly the evidence is
sufficient to provide probable cause to believe that Cooksey committed the
crimes charged, which is all that a grand jury indictment or a preliminary
hearing would have established in this case.       While the District Court and
the Magistrate Judge did not consider whether Cooksey's claim was barred,
this Court may affirm a judgment on any basis supported by the record.             See
Phillips v. Marist Soc., 80 F.3d 274, 275 (8th Cir. 1996).             We thus hold
that the District Court properly denied habeas relief on Cooksey's claim
regarding the state trial court's denial of his motion to disclose grand
jury demographic data, though our reasons differ from those of the District
Court.    We express no disapproval of those reasons; we simply do not reach
them.


        We turn now to the other issues that Cooksey has raised in this
appeal:     the local rule on probation recommendations, the use of a prior
conviction to enhance his sentence, and the prosecutor's alleged role in
preventing Cooksey from deposing the woman he had raped.          We have carefully
reviewed the Magistrate Judge's report and recommendation as well as the
arguments of the parties, and we conclude that the District Court correctly
rejected Cooksey's claims.     With respect to these issues, we agree with the
reasoning




                                        -7-
of District Court as set forth in the report and recommendation that it
adopted.


     For the foregoing reasons, the judgment of the District Court denying
Cooksey's petition for a writ of habeas corpus is affirmed.



     A true copy.


           Attest:


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




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