                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-1330
                                   ___________

Terrance E. Jackson,                   *
                                       *
             Appellant,                *
                                       *
       v.                              *
                                       * Appeal from the United States
James A. Gammon, Superintendent,       * District Court for the
Moberly Correctional Center;           * Western District of Missouri
Jeremiah Nixon, Attorney General,      *
State of Missouri,                     *
                                       *
             Appellees.                *
                                  ___________

                             Submitted: September 14, 1999

                                  Filed: October 28, 1999
                                   ___________

Before McMILLIAN, FAGG and MURPHY, Circuit Judges.
                           ___________

McMILLIAN, Circuit Judge.

       Terrence Jackson (petitioner) appeals from a final order entered in the United
States District Court1 for the Western District of Missouri denying his petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Jackson v. Gammon, No. 96-126-


      1
        The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
CV-W-1 (W.D. Mo. Oct. 23, 1996) (order) (hereinafter "slip op."). For reversal,
petitioner argues that the district court erred in denying relief on his claims of
ineffective assistance of trial and appellate counsel in light of their failure to challenge
the admissibility of certain eyewitness identification testimony. Petitioner additionally
argues that, because he filed his § 2254 petition prior to the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), he should not be
limited to appealing only those claims for which a certificate of appealability was
granted. For the reasons stated below, we affirm the order of the district court.

                                       Jurisdiction

       Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331, 2254.
Jurisdiction is proper in this court based upon 28 U.S.C. §§ 1291, 2253(a). The notice
of appeal was timely filed pursuant to Fed. R. App. P. 4(a).

                                       Background

      On September 13, 1988, at approximately 1:00 a.m., a drive-by shooting
occurred at a park at 35th and Wabash in Kansas City, Missouri. As a result of the
shooting, one individual died and another was severely injured. Based upon that
incident, petitioner was tried before a jury in Missouri state court.

      Witnesses for the state testified at petitioner's trial that, on the night in question,
they saw a blue van drive slowly past the park while several individuals fired shots
through the van's open side door. Eric Dunlap identified petitioner in court and testified
that he saw petitioner sitting in the back of the van (around the middle of the van),
apparently holding something in his hands, while the shots were being fired. See Trial
Transcript, Vol. II, at 216-18. Dunlap testified that he had known petitioner for
approximately three years prior to the shooting. See id. at 202-03. Dunlap also
testified that, after the shooting occurred, he went to the hospital and then, from there,

                                            -2-
went to the police station to give a statement about the shooting. See id. at 222-23.
Regarding the events at the police station, Dunlap testified at trial to the following
sequence of events. See id. at 224-26.

       At the police station, an officer showed Dunlap an array of photographs and
asked him to identify the individuals he had seen in the blue van. Dunlap selected one
photograph, identifying the individual as Michael Hamilton and stating that Hamilton
had been in the van during the shooting. Dunlap indicated that he could not make any
other identifications from the photographs. The officer then left the room, telling
Dunlap to keep looking at the pictures. While the officer was out of the room, Dunlap
looked at the backs of the photographs and saw the names "Terrance Jackson" and
"Leroy Hudson" written on two separate photographs. After the officer returned,
Dunlap picked out those two photographs, stating that he picked them out because of
the names on the backs, even though -- as he testified at trial -- the picture marked
"Leroy Hudson" did not look like Leroy Hudson and the picture marked "Terrance
Jackson" looked like petitioner "just a little bit." Id. at 226. After being informed that
the pictures were not photographs of Terrance Jackson and Leroy Hudson, Dunlap was
shown a different photographic array and, this time, selected actual photographs of
petitioner and Hudson.

       Petitioner's trial counsel did not object to the admission of Dunlap's in-court
identification of petitioner or to his testimony about the photographic identification
procedures used at the police station. Another witness for the state, Arlvelt Bruster,
also identified petitioner, among others, as having been in the back of the blue van at
the time of the shooting. Bruster testified that petitioner was sitting in the middle part
of the van and appeared to be holding something in his hands while the shots were
being fired. See id. at 352-56. After the shooting, Bruster went to the hospital and,
from there, went to the police station where he was shown a photographic array.
Bruster identified petitioner's photograph as depicting one of the individuals whom he
had seen in the blue van at the time of the shooting. See id. 356-60. Bruster testified

                                           -3-
that he had known petitioner approximately three years prior to the shooting. See id.
359.

       Petitioner was found guilty on one count of second degree murder, two counts
of armed criminal action, and one count of first degree assault. Petitioner was
sentenced in Missouri state court to four consecutive life sentences. Petitioner
appealed his conviction. Petitioner did not raise, in the direct criminal appeal, a claim
of plain error based upon the admission of Dunlap's in-court identification or testimony
concerning Dunlap's pretrial photographic identification of petitioner at the police
station.

        Petitioner also separately filed a motion for post-conviction relief in Missouri
state court pursuant to Missouri Supreme Court Rule 29.15. Petitioner's counsel in the
Rule 29.15 proceeding argued, among other things, that Dunlap's photographic
identification of petitioner was unreliable and that trial counsel had been ineffective in
failing to file a pretrial motion to suppress evidence related to that identification or to
object during trial to the admission of such evidence, particularly where petitioner's
theory of defense was based upon alibi and unreliable identification. See Appellant's
Appendix, Vol. I, at 94-95 (transcript of hearing on Rule 29.15 motion). The state
court denied petitioner's motion for post-conviction relief on the ground that prejudice
had not been demonstrated. See id. at 44-45 (unpublished state court order denying
post-conviction relief). Petitioner appealed the denial of his motion for post-conviction
relief.

      The state court of appeals consolidated petitioner's two appeals – the direct
appeal from his conviction and his appeal from the denial of post-conviction relief.
Both state court judgments were summarily affirmed. See State v. Jackson, 834
S.W.2d 802 (Mo. Ct. App. 1992).




                                           -4-
       Petitioner, represented by his present counsel, filed a petition for writ of habeas
corpus in federal district court on January 30, 1996.2 Petitioner asserted, among other
things, that he was denied due process and received ineffective assistance of counsel
because of his appellate counsel's failure to challenge the admission of Dunlap's
eyewitness identification testimony, which had been obtained through
unconstitutionally suggestive means.3 The district court construed these assertions as
"claim[ing] that the state court allowed, and Petitioner's trial and appellate counsel


      2
        The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became
effective on April 24, 1996.
      3
          The petition stated this claim for relief as follows:

            Petitioner Was Denied Due Process and the Effective Assistance
      of Counsel When Appellate Counsel Failed to Challenge the Admission
      of Eyewitness Identification Testimony That Was Obtained Through
      Unconstitutionally Suggestive Means; The Admission of the Testimony
      Should Have Been Challenged on the Basis of Plain Error and Through
      a Claim of Ineffective Assistance of Counsel.

Appellant's Appendix, Vol. II, at 233-34 (Petition for Writ of Habeas Corpus at 28-29
(filed Jan. 30, 1996)). In responding to an order of the district court to show cause why
the petition should not be granted, respondents interpreted the above-quoted claim as
setting forth the following two separate grounds for relief:

             6. Ineffective Assistance of Direct Appeal Counsel: Direct appeal
      counsel failed to allege that it was plain error to admit the eyewitness
      identification testimony by Mr. Dunlap.

            7. Ineffective Assistance of Counsel on Appeal of the Denial of the
      Post-Conviction Motion: Post-conviction appellate counsel failed to
      allege trial counsel was ineffective for not moving to suppress the
      eyewitness identification.

Id. at 245 (Response to Order to Show Cause at 3).

                                             -5-
should have objected to, the admission of improper eyewitness identification
testimony." Slip op. at 6. In addressing these grounds for relief, the district court
stated: "[f]or the sake of judicial economy, the Court proceeds to the merits without
regard to the procedural posture." Id. at 7.4 The district court considered whether the
photographic identification procedures used at the police station were so suggestive as
to render the subsequent admission of Dunlap's identification testimony at trial a
violation of petitioner's right to due process under the standard set forth in Trevino v.
Dahm, 2 F.3d 829, 833 (8th Cir. 1993). See slip op. at 6.

       The district court opined that the question of whether the photographic
identification procedures actually prejudiced petitioner "could go either way." Id. at 7.
However, based upon the totality of the circumstances – including Dunlap's familiarity
with petitioner prior to the shooting, the fact that the van was moving slowly with the
side door open, and Dunlap's "high degree of attention during the crime" – the district
court concluded that Dunlap's in-court identification was reliable despite any suggestive
or inappropriate pretrial identification procedures used at the police station. Id. at 7-8.



       The district court denied relief under 28 U.S.C. § 2254 on "all grounds
presented," id. at 10, and entered judgment for respondents on October 23, 1996.
Petitioner filed a timely notice of appeal from the judgment.5

       4
        We, too, dispose of the present case on the merits of petitioner's constitutional
claims without regard to any procedural default issues that could have been raised by
the state.
       5
         By motion and amended motion filed on November 1, 1996, and November 25,
1996, respectively, petitioner moved pursuant to Fed. R. Civ. P 59(e) to alter or amend
the judgment denying the petition for a writ of habeas corpus. The Rule 59(e) motion
was denied by an order of the district court dated December 1, 1997. However, the
district court inadvertently failed to notify some or all of the parties of its order denying
petitioner's Rule 59(e) motion. Upon realizing the oversight several months later, the

                                            -6-
        Petitioner thereafter filed an application for a certificate of appealability in the
district court. The district court granted the application "on the issue of whether
[petitioner's] appellate counsel was ineffective in failing to object to the admission of
the eyewitness identification testimony at trial," and denied it "as to all other issues."
Jackson v. Gammon, No. 96-0126-CV-W-1 (W.D. Mo. Dec. 30, 1998) (order granting
in part and denying in part application for certificate of appealability). Petitioner then
filed a notice of appeal from the partial denial of the application for a certificate of
appealability and also applied for a broader certificate of appealability from this court.
This court entered an order stating that "[t]he appeal will proceed on the issues on
which the District Court granted the certificate." Id., No. 99-1330 (8th Cir. Mar. 9,
1999) (order issued by the Clerk for the Eighth Circuit at the direction of the Court).

                                       Discussion

Certificate of appealability requirement

       As a preliminary matter, we address petitioner's argument that he should be
permitted to raise on appeal claims for which no certificate of appealability was
granted. He argues that he should not be bound by the certificate of appealability
requirement in 28 U.S.C. § 2253(c) because he filed his § 2254 petition in the district
court "well before the recent amendments to the Antiterrorism and Effective Death
Penalty Act (AEDPA), which imposed new requirements on the right to appeal." Brief
for Appellant at 18. He acknowledges that, under Tiedeman v. Benson, 122 F.3d 518
(8th Cir. 1997), the law in this circuit is that a certificate of appealability is now
required for all § 2254 appeals to proceed, regardless of when the petition was
originally filed. He contends, however, that Tiedeman was wrongly decided under


district court amended the order of December 1, 1997, to reflect a date of July 8, 1998.
See Jackson v. Gammon, No. 96-0126-CV-W-1 (W.D. Mo. July 8, 1998) (amended
order). Petitioner's notice of appeal was filed on July 14, 1998.

                                            -7-
Lindh v. Murphy, 521 U.S. 320 (1997), and should be overruled by this court en banc.
He maintains that every other circuit that has addressed this AEDPA retroactivity issue
has decided it contrary to the holding in Tiedeman. See Brief for Appellant at 21& n.4
(citing cases from the First, Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth,
Eleventh, and D.C. Circuits). In fact, he points out, one circuit has specifically
criticized the Eighth Circuit's rationale in Tiedeman as fundamentally flawed. Id. at 19-
24 (citing United States v. Skandier, 125 F.3d 178, 182 (3d Cir. 1997)).

       We are bound by our court's prior decision in Tiedeman, which now requires
petitioner to meet the certificate of appealability requirements set forth in 28 U.S.C.
§ 2253(c). In the absence of a Supreme Court decision or an en banc decision from
this court overruling Tiedeman, we lack jurisdiction to consider the merits of
petitioner's claims for relief other than his ineffective assistance of counsel claims
related to the admission of Dunlap's eyewitness identification testimony.

Ineffective assistance of counsel

       Petitioner interprets the district court's order granting the certificate of
appealability as allowing him to argue the ineffectiveness of both his trial counsel and
his appellate counsel in the underlying criminal matter. Because the district court's
order granting the certificate of appealability is ambiguous in this respect, we review
both ineffective assistance claims advanced by petitioner.

      "'In determining whether to grant habeas relief, we review the district court's
conclusions of law de novo and its findings of fact for clear error.'" Harris v.
Bowersox, 184 F.3d 744, 748 (8th Cir. 1999) (quoting Bounds v. Delo, 151 F.3d 1116,




                                          -8-
1118 (8th Cir. 1998)). The state courts' factual findings are entitled to a presumption
of correctness. Id.6

                    An ineffective assistance of counsel claim presents a
             mixed question of law and fact. . . . "The benchmark for
             judging any claim of ineffectiveness must be whether
             counsel's conduct so undermined the proper functioning of
             the adversarial process that the [relevant proceeding] cannot
             be relied on as having produced a just result." [The
             petitioner] must show that counsel's performance was
             deficient and prejudiced his defense. . . . Once deficient
             performance has been established, petitioner must
             demonstrate "a reasonable probability that but for counsel's
             unprofessional errors, the result of the proceeding would
             have been different.”

Kellogg v. Skon, 176 F.3d 447, 452 (8th Cir. 1999) (citations omitted).

       Petitioner argues that his trial counsel's performance was deficient because
counsel failed to move to suppress Dunlap's eyewitness identification testimony and all
references to Dunlap's pretrial photographic identification and further failed to object
to such evidence at trial. Petitioner argues that his appellate counsel's performance was
deficient because counsel failed to argue that the admission of Dunlap's eyewitness
identification testimony was plain error. Petitioner maintains that he has shown
prejudice at both levels because there is a reasonable probability that (a) Dunlap's
eyewitness identification testimony would have been excluded if the issue had been



      6
        Because petitioner filed his habeas petition before the effective date of the
AEDPA, we review state court findings of fact under the pre-AEDPA standard, which
entitles such findings to a presumption of correctness. See Bounds v. Delo, 151 F.3d
1116, 1118 n.3 (8th Cir. 1998) (cited in Harris v. Bowersox, 184 F.3d 744, 748 (8th
Cir. 1999)).

                                          -9-
properly raised in the trial court and (b) the admission of that testimony would have
been deemed plain error if the issue had been properly raised on appeal. We disagree.

       As indicated above, in order to establish a constitutional basis for habeas relief,
petitioner must show prejudice under the standards of Strickland v. Washington, 466
U.S. 668 (1984) (cited in Kellogg v. Skon, 176 F.3d at 451). To do that in the present
case, petitioner must demonstrate that the admission of Dunlap's eyewitness
identification testimony resulted in a deprivation of his due process rights and,
therefore, it is reasonably probable that, but for his counsel's failure to challenge that
evidence, the result of the proceedings would have been different.

             A conviction based on eyewitness identification at trial will be set
      aside only when pretrial identification procedures were so impermissibly
      suggestive that they give rise to a very substantial likelihood of irreparable
      harm. The central question is whether, under the totality of the
      circumstances, the identification was reliable despite any suggestive or
      inappropriate pre-trial identification techniques. The factors to consider
      in evaluating the likelihood of misidentification include: the opportunity
      a witness has to view the criminal at the time of the crime; the witness's
      degree of attention; the accuracy of the witness's prior description of the
      criminal; the level of certainty demonstrated by the witness at the
      confrontation; and the length of time between the crime and the
      confrontation.

Trevino v. Dahm, 2 F.3d at 833 (footnote and citations omitted).

       Upon review of the district court's findings of fact and conclusions of law, we
hold that the district court did not clearly err in finding that Dunlap knew petitioner
prior to the shooting, the blue van had been moving slowly with the door open, and the
circumstances were such that Dunlap would have paid close attention to the events
around him. See slip op. at 7-8. We agree with the district court's conclusion that
Dunlap's in-court identification was reliable under the totality of the circumstances


                                          -10-
despite any suggestive or inappropriate pretrial identification procedures. Thus, upon
de novo review, we hold that no due process violation occurred as a result of Dunlap's
in-court identification of petitioner or his testimony regarding the pretrial photographic
identification procedures used at the police station. Accordingly, petitioner suffered
no prejudice as a result of either his trial counsel's or his appellate counsel's failure to
challenge the admission of Dunlap's eyewitness identification testimony. Petitioner's
ineffective assistance claims fail as a matter of law.

                                       Conclusion

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



       A true copy.

              Attest:

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




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