                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3378
                                   ___________

Alan Echols,                            *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Mike Kemna,                             *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: October 16, 2007
                                Filed: December 26, 2007
                                 ___________

Before BYE, BOWMAN, and SMITH, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

       Alan Echols was convicted of first degree murder and armed criminal action in
the Circuit Court of Jackson County, Missouri. Before being sentenced, Echols fled
the jurisdiction and remained at large for eight years. After his capture, Echols was
sentenced to a term of life in prison without the possibility of parole for murder and
an additional eight years' imprisonment for his armed criminal action conviction.
Echols filed a direct appeal to challenge his convictions. The Missouri Court of
Appeals, despite the state of Missouri's objection on escape rule grounds, heard the
appeal and affirmed Echols's convictions on the merits. Echols then sought
postconviction relief but the Missouri courts denied him relief citing the Missouri
escape rule. Echols now seeks habeas relief. The district court1 refused to hear his
petition for habeas relief because the court determined that the Missouri escape rule
is an adequate and independent state law ground barring recovery. We affirm.

                                     I. Background
       In October 1990, a Jackson County, Missouri jury convicted Echols of first
degree murder and armed criminal action for the stabbing death of Ronald Nichols.2
After the trial, the court allowed Echols to remain free on bond while he awaited
sentencing. Before he could be sentenced, Echols fled the jurisdiction and remained
a fugitive for eight years. In August 1999, the authorities arrested Echols in Louisiana
and brought him back to Missouri. At sentencing, Echols received a sentence of life

      1
        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
      2
        Nichols was killed after an altercation with Echols in a Kansas City nightclub
parking lot. Apparently, Nichols and Echols competed for the affections of Nichols's
wife, Billie Nichols. Billie moved in with Echols in early 1990 after separating from
Ronald. By September 1990, Billie decided to end the affair and return to her husband.
Echols, however, remained obsessed with Billie and reportedly "kept tabs" on her after
their affair ended. Echols told his business partner, Eugene Bailey, that he would kill
Ronald Nichols, if he knew it would not upset Billie.

       On October 12, 1990, Mr. and Mrs. Nichols went to Club 95 on a night out, and
at some point in the evening, Mrs. Nichols sent her husband outside the club to get
some medicine for her. Around this time, Echols came to the club with a military style
knife that he had stolen from his business partner. When Echols arrived at the club,
he attacked Mr. Nichols with a billy club and stabbed him 61 times in the head and
back.

       Echols told Bailey that Mr. Nichols had been killed, but Echols blamed the
killing on a robber. Bailey was suspicious of Echols's story and contacted the police
after he realized that his knife was missing and that it was possibly the murder
weapon. The police questioned Echols, searched his home, and discovered the knife
and Echols's bloody clothing.

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in prison for the murder charge and a consecutive sentence of eight years'
imprisonment on the armed criminal action charge.

      Echols unsuccessfully raised one claim on direct appeal, challenging the use of
his confession at trial. After the failure of his direct appeal, he then filed for post
conviction relief pursuant to Missouri Supreme Court Rule 29.15. The Missouri
Circuit Court determined that the Missouri escape rule barred the hearing of Echols's
claim and dismissed his petition. The Missouri Court of Appeals affirmed the
dismissal pursuant to the escape rule.

       After the Missouri state courts refused to hear his claims for postconviction
relief, Echols filed a habeas claim in federal district court. The district court
determined that the Missouri escape rule was an adequate and independent state
ground that barred his habeas claim and dismissed Echols's petition for habeas relief.

                                     II. Discussion
       We issued a certificate of appealability on two issues: (1) whether Missouri's
escape rule is firmly established, regularly followed, and readily ascertainable when
applied; (2) whether Echol's trial counsel was ineffective in failing to investigate the
issue of diminished capacity.

                  A. Adequate and Independent State Law Analysis
       We review de novo the district court's determination that Missouri's escape rule
is an adequate and independent state law ground that bars federal habeas review of
Echols's conviction. See Lee v. Kemna, 534 U.S. 362, 376 (2002) (declaring adequacy
a federal question); see also Franklin v. Gilmore, 188 F.3d 877, 882 (7th Cir. 1999)
(stating that adequacy claims are reviewed de novo).

      Generally, a defendant must exhaust all available state court remedies before
seeking habeas relief. Carney v. Fabian, 487 F.3d 1094, 1096 (8th Cir. 2007). "If a

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petitioner has not presented his habeas corpus claim to the state court, the claim is
generally defaulted." Id. (quoting Barrett v. Acevedo, 169 F.3d 1155, 1161 (8th Cir.
1999)). The default of the federal claim applies even if the defendant's failure to
exhaust results from the application of state law. Lee, 534 U.S. at 375. (Federal courts
will not entertain the habeas claim "if the decision of [the state] court rests on a state
law ground that is independent of the federal question and adequate to support the
judgment.") (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991). "The rule
applies with equal force whether the state-law ground is substantive or procedural."
Id. However, even if a state procedural rule is generally sound, it will not be adequate
to bar federal review, unless the rule is "strictly or regularly followed." Barr v. City
of Columbia, 378 U.S. 146, 149 (1964). Further, a state procedural bar is adequate
only if state courts have applied the rule evenhandedly to all similar claims. See
Hathorn v. Lovorn, 457 U.S. 255, 263 (1982).

       The Missouri escape rule provides that state courts have the discretion to refuse
to hear a defendant's appeal when the defendant escapes from the control of the state.
See State v. Simpson, 836 S.W.2d 75, 77–78 (Mo. App. 1992). The Missouri courts'
authority to deny appellate or postconviction relief under this rule is triggered by
proof that the defendant has, in fact, escaped, see id. (reversing the application of the
escape rule where there was no loss of control over the defendant), and that the
defendant's escape has impacted the administration of justice. See State v. Brown, 974
S.W.2d 630, 631 (Mo. App. 1998).3




      3
        While the escape must have an impact on the administration of justice before
the escape rule may be applied, the court is not required to make an explicit finding
on the record before applying the rule. See Laws v. State, 183 S.W.3d 629, 634 (Mo.
App. 2006) (holding that there was no error where the motion court denied the
defendant's motion for postconviction relief without an express finding that the
defendant's escape impacted the criminal justice system).

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       Echols argues that the Missouri escape rule is inadequate to bar his federal
claim for habeas relief because of the broad discretion granted to courts in deciding
whether it should apply. Echols also alleges that Missouri has arbitrarily applied the
rule in the past. Echols's claims are without merit.

        The relevant inquiry regarding the adequacy of the escape rule to bar habeas
relief is two fold. First, we must determine if the rule is strictly or regularly followed,
and then we will determine if the rule has been applied evenhandedly to all similar
claims.

                            1. Strictly or Regularly Followed
       We are satisfied that Missouri's escape rule has been regularly followed in cases
similar to Echols's, that is, where the defendant has escaped for a substantial period
of time, without any mitigating circumstances. See generally Dobbs v. State, 229
S.W.3d 651 (Mo. App. 2007) (affirming the motion court's refusal to hear the
defendant's petition for postconviction relief where the defendant escaped while
awaiting sentencing and remained at large for several months before he was
recaptured); Pradt v. State, 219 S.W.3d 858 (Mo. App. 2007) (applying the rule where
the defendant escaped twice and in both circumstances, had to be forcefully brought
back before the court); Laws v. State, 183 S.W.3d 629 (Mo. App. 2006) (affirming the
motion court's refusal to hear the defendant's petition for postconviction relief where
the defendant fled from sentencing and remained at large for eighteen days before he
was recaptured); Crawley v. State, 155 S.W.3d 836 (Mo. App. 2005) (affirming the
motion court's refusal to hear the defendant's request for postconviction relief where
the defendant escaped before he could be sentenced on a probation violation and
remained at large for over eighteen months before being recaptured); State v. Surritte,
35 S.W.3d 873, 875 (Mo. App. 2001) (applying the escape rule to refuse to hear the
defendant's direct appeal of his conviction where the defendant escaped for four days
causing a 14-day delay in sentencing).



                                           -5-
      Missouri cases take note of the length of the escape, but the more important
consideration is whether the application of the rule furthers any of the eight
recognized rationales for the rule's maintenance. See Holmes v. State, 92 S.W.3d 193,
196 (Mo. App. 2002) (holding that "[t]here is no threshold amount of time an
appellant must have escaped justice before dismissal is allowed"); see also Pradt, 219
S.W.3d at 862 (enumerating the eight recognized justifications for the escape rule).4

        Echols contends that the discretion given to the Missouri courts renders the
escape rule inadequate to default his habeas claims. We disagree. A rule is not
inadequate merely because its application is discretionary. The Supreme Court's
comments in Harris v. Reed, 489 U.S. 255 (1989), contemplate instances where a rule
may be deemed adequate even though there is state court discretion in its enforcement.
In Harris, the issue before the court was whether the plain statement rule—a rule
requiring a clear and express statement from a state court that it is relying on a
procedural default to bar relief—should apply in habeas cases. In a footnote, the Court
stated, "in some instances state courts have discretion to forgive procedural defaults.
. . . The plain statement rule relieves a federal court from having to determine whether
in a given case, consistent with state law, the state court has chosen to forgive a
procedural default." Id. at 265 n.11. If a procedural rule that gave discretion to the
state was per se inadequate, the plain statement rule would be unnecessary.

      We conclude the Missouri escape rule is regularly followed.


      4
       The recognized justifications for the escape rule are: (1) to maintain control
over the defendant while the case is being decided; (2) to reduce the possibility of
administrative problems that arise because of a defendant's long absence; (3) to protect
the State from unfair prejudice in the event that the case is remanded for a new trial;
(4) to prevent the defendant from selectively obeying court decisions; (5) to
discourage others from escaping; (6) to encourage defendants who escape to
voluntarily surrender; (7) to preserve respect for the criminal justice system; and (8)
to promote the dignified operation of the appellate courts. Pradt, 219 S.W.3d at 862.

                                          -6-
                              2. The Escape Rule is Applied
                     Consistently to Similarly Situated Defendants
      Echols's claim that the Missouri escape rule has been inconsistently applied is
also without merit. Echols raises two arguments to demonstrate that Missouri does not
consistently apply the escape rule to similarly situated defendants and that its
application of the rule is arbitrary. First, he cites several cases involving similar escape
periods and notes that the Missouri courts applied the escape rule differently. Second,
Echols asserts that his own state appellate process reflects arbitrary enforcement.

        None of the cases Echols cites show that a defendant, similarly situated to him,
received postconviction appellate review. Echols remained at large for eight years
before his capture. In State v. Kearns, the Missouri Court of Appeals applied the
escape rule to deny the defendant a direct appeal of his conviction after the defendant
escaped and remained a fugitive for more than five years. 743 S.W.2d 553 (Mo. App.
1987). The court determined that application of the rule was appropriate primarily
because the defendant's absence caused great delay in sentencing, created a high risk
of prejudice to the state if the court ordered a remand for a new trial, and demonstrated
the defendant's contempt for the criminal justice system. Id. at 554. Kearns is similar
to this case and indicative of the Missouri courts' handling of similar cases. Echols has
not shown that Missouri treated him differently than it would another similarly
situated defendant.

      Finally, Missouri's application of the rule in Echols's case was not arbitrary.
Under Missouri precedent, the escape rule can be applied by either the state appellate
court—both on direct review of the conviction and on appeal in a postconviction
proceeding—or by the state circuit court when the circuit court is petitioned to
conduct a collateral review of a conviction. In Echols's case, the Missouri Court of
Appeals chose not to apply the escape rule to bar Echols's direct appeal, choosing
instead to summarily deny him relief on the merits of his claim. State v. Echols, 32
S.W.3d 623 (2000). When the case came before the circuit court for postconviction

                                            -7-
review, the circuit court dismissed the petition pursuant to the escape rule. On appeal,
the court of appeals merely upheld the circuit court's decision to dismiss the case
under the escape rule.

        Missouri's escape rule is governed by an identifiable standard and is thus not
arbitrarily applied. "The relevant inquiry in determining whether to apply the escape
rule is deciding whether the escape adversely affected the criminal justice system."
State v. Ore, 192 S.W.3d 723, 725 (Mo. App. 2006) (quoting Smith v. State, 174
S.W.3d 74, 75 (Mo. App. 2005)). The standard, while broad, is not illusory. In fact,
the Missouri Court of Appeals recently reversed a motion court's decision to refuse
to hear a defendant's application for postconviction relief finding that "the trial court
abused its discretion in the application of the escape rule because the failure of
Movant to appear at the first sentencing hearing did not hinder the administration of
justice." Smith v. State, 173 S.W.3d 928, 930 (Mo. App. 2005). If this standard was
truly illusory, there would have been no basis on which the appellate court could have
found an abuse of discretion.

      Because the Missouri escape rule is regularly followed, and the rule is applied
consistently to similarly situated defendants, the rule is adequate to bar Echols from
federal habeas relief.

              B. Echols's Ineffective Assistance of Counsel Claim
     Because we determine that Echols's petition for habeas relief is barred by the
Missouri escape rule, we make no determinations as to the merits of his Sixth
Amendment claim.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________



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