                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-3241
                                   ___________

Ecclesiastes M.D. Matthews,             *
                                        *
            Appellant,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Eastern District of Missouri.
                                        *
James Purkett,                          *      [UNPUBLISHED]
                                        *
            Appellee.                   *
                                   ___________

                             Submitted: July 1, 2010
                                Filed: July 8, 2010
                                 ___________

Before LOKEN, BYE, and SHEPHERD, Circuit Judges.
                            ___________

PER CURIAM.

      Ecclesiastes Matthews appeals the district court’s1 judgment denying his 28
U.S.C. § 2254 petition. The district court granted a certificate of appealability on
Matthews’s venue-related ineffective-assistance claims. For the reasons that follow,
we affirm.

       Matthews was charged in Marion County, Missouri, with two felony counts of
sale of a controlled substance. Prior to trial, he moved for a change of venue under


      1
       The HONORABLE CAROL E. JACKSON, United States District Judge for
the Eastern District of Missouri.
Missouri Supreme Court Rule 32.03, which provides that a criminal defendant is
entitled upon timely request to a change of venue as a matter of right if charges are
brought in a county of 75,000 or fewer inhabitants. The trial court granted the motion,
but transferred the case to another district within the same county--from District 2 in
Hannibal to District 1 in Palmyra--instead of transferring the case to another county.
Matthews proceeded to trial, the Palmyra jury found him guilty after a trial that
included testimony of two confidential informants who wore recording devices while
they made controlled purchases of drugs from Matthews, and the trial court sentenced
Matthews as a prior drug offender to two consecutive 25-year prison terms. On direct
appeal, Matthews did not raise a change-of-venue issue, and the Missouri Court of
Appeals affirmed. See State v. Matthews, 99 S.W.3d 494 (Mo. Ct. App. 2003) (per
curiam). He then filed a state post-conviction petition, asserting in part that his
counsel had provided ineffective assistance by failing to object at trial and on direct
appeal to the trial court’s failure to transfer the case to a different county. The motion
court denied relief without an evidentiary hearing, the Missouri Court of Appeals
reversed and remanded for an evidentiary hearing on two issues, and the Missouri
Supreme Court granted transfer and affirmed. See Matthews v. State, 175 S.W.3d
110, 113-15 (Mo. 2005) (en banc) (concluding that, even though criminal trial court
had erred in failing to transfer Matthews’s case to different county, Matthews did not
plead facts showing prejudice stemming from his counsel’s failure to object to the
improper venue, and Rule 32.03 did not create presumption that defendant could not
receive fair trial in counties having 75,000 or fewer inhabitants).

       In this section 2254 petition, Matthews claimed, in relevant part, that his trial
counsel was ineffective for failing to object when the trial court transferred the case
within the same county, and his appellate counsel was ineffective for failing to raise
on direct appeal the venue issue as plain error. A magistrate judge found that
Matthews’s venue-related claim of ineffective assistance of appellate counsel had
merit, but the district court, upon de novo review, sustained the State’s objection and
denied habeas relief.


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       We review the district court’s findings of fact for clear error and its conclusions
of law de novo. See Flowers v. Norris, 585 F.3d 413, 416 (8th Cir. 2009), cert.
denied, 2010 WL 247112 (U.S. June 21, 2010) (No. 09-10582). If the issues raised
in the federal habeas petition have been adjudicated on the merits in a state court
proceeding, the petition must be denied unless the state court decision “resulted in a
decision contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” or “resulted
in a decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings.” See 28 U.S.C. § 2254(d);
Flowers, 585 F.3d at 416.

        We agree with the district court that the Missouri Supreme Court’s adjudication
of Matthews’s venue-related ineffective-assistance claims was not contrary to, and did
not involve an unreasonable application of, clearly established federal law, and it was
not based on an unreasonable determination of the facts. Contrary to Matthews’s
argument on appeal, his criminal trial counsel failed to preserve a venue objection
after the trial court granted his change-of-venue motion but improperly transferred the
case within the same county. Cf. State v. Bradshaw, 81 S.W.3d 14, 28 (Mo. Ct. App.
2002) (“A defendant’s failure to object to the action of the court in ordering a change
of venue acts to waive the defendant’s right to a particular venue.”). Matthews did not
plead or demonstrate he was prejudiced by his counsel’s waiver of the issue, and thus
his claims of ineffective assistance of trial and appellate counsel fail. See
Witherspoonv. Purkett, 210 F.3d 901, 903 (8th Cir. 2000) (in order to establish
counsel was ineffective, habeas petitioner must demonstrate he suffered material
prejudice as result of counsel’s poor performance).

      The judgment is affirmed.
                      ______________________________




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