                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                _____________

                                No. 99-1660WM
                                _____________

Leamon White,                          *
                                       *
            Appellant,                 *
                                       *   On Appeal from the United
      v.                               *   States District Court
                                       *   for the Western District
                                       *   of Missouri.
Michael S. Bowersox,                   *
Superintendent,                        *
                                       *
            Appellee.                  *

                                 ___________

                         Submitted: December 13, 1999
  Resubmitted on Supplemental Briefs: February 10, 2000
                               Filed: March 14, 2000
                                ___________

Before RICHARD S. ARNOLD and LOKEN, Circuit Judges, and MELLOY,1 District
      Judge.
                            ___________

RICHARD S. ARNOLD, Circuit Judge.



      1
        The Hon. Michael J. Melloy, United States District Judge for the Northern
District of Iowa, sitting by designation.
       Leamon White appeals the denial of his petition for a writ of habeas corpus. The
District Court held that all of Mr. White's claims were procedurally barred, except
those adequately raised by his first amended post-conviction motion in the state courts.
We reverse and remand for further proceedings on the merits of those claims the
District Court held to be procedurally barred. We hold that the state procedural rule
that barred Mr. White's second amended motion was inadequate to bar federal
consideration of these claims. We affirm the remaining portion of the District Court's
judgment. We agree with that Court that the claims it found open on federal habeas are
without merit.

                                            I.

        Mr. White was tried and convicted of first degree murder. He was sentenced to
death. Mr. White appealed to the Missouri Supreme Court, which ultimately affirmed
his conviction. While Mr. White's direct appeal was proceeding, he filed a pro se
motion in the Circuit Court of Jackson County, Missouri, for post-conviction relief.
Mr. White's post-conviction motion became entangled in procedural difficulties because
his court-appointed attorneys failed to file a timely amended motion on his behalf.
Under Missouri law, this failure constituted "abandonment," and Mr. White was owed
some remedy for his attorneys' failures. As a remedy, the Missouri courts treated as
timely the first, but not the second, of two untimely motions filed by Mr. White's
attorneys. They limited the remedy to the first motion on the ground that Mr. White
had improperly signed a "blank verification." The predominant issue on appeal is
whether the procedural rule barring the second motion was an adequate state ground.
This issue is practically determinative of Mr. White's habeas petition because almost
all of the claims raised in the first motion, which was hastily drafted, were procedurally
defaulted due to inadequate fact pleading.

       On August 17, 1989, Mr. White filed his pro se motion for post-conviction relief
in the Circuit Court pursuant to Mo. R. Crim. P. 29.15. On September 25, 1989, the

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Court appointed the Missouri Public Defender's Office to represent Mr. White in post-
conviction proceedings. Under the Rule, counsel has a duty to file an amended motion
if, after consulting with the movant, there appear to be grounds for doing so. Just five
days before the amended motion was due, the Missouri Public Defender's Office
assigned an attorney, Larry Pace, to represent Mr. White.

      On October 20, 1989, Mr. Pace entered his appearance. He moved for and was
granted an extension, until November 23, 1989, to file an amended motion. Under Rule
29.15, this was the only extension allowed. On November 9, 1989, fourteen days
before the amended motion had to be filed, Mr. Pace improperly withdrew from the
case without permission of the Court. It is now undisputed that this constituted
abandonment under Missouri law. The Public Defender's Office replaced him with a
second attorney, Joe Locascio. At that time, Mr. Pace had not yet begun to write an
amended motion, had not secured the files of Mr. White's trial attorneys, and had not
met with Mr. White.

       Five days later and nine days before the final deadline, Mr. Locascio met with
Mr. White to discuss his post-conviction motion. This was Mr. White's first meeting
with any attorney to discuss his post-conviction motion. While at the prison, Mr.
Locascio had Mr. White sign a "blank" verification, to be added to the amended motion
once it was written.2 Mr. Locascio did this because Rule 29.15 motions are void unless
verified by the movant. With time so short, he felt there would be no opportunity to
obtain the verification properly after the motion was written.




      2
       Mo. R. Crim. P. 29.15 provides: "The movant shall verify the motion, declaring
that he has listed all grounds for relief known to him and acknowledging his
understanding that he waives any ground for relief known to him that is not listed in the
motion."

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        Despite this short-cut with the verification, Mr. Locascio missed the
November 23, 1989, deadline for filing Mr. White's amended motion. As the Supreme
Court of Missouri later held, this constituted a second instance of abandonment under
Missouri law. On November 27, 1989, Mr. Locascio filed the amended motion, four
days late, and a separate motion for a thirty-day extension to file a second amended
motion. Although the Circuit Court lacked the jurisdiction to do so, it granted leave to
file a second motion and an extension until January 9, 1990. Mr. Locascio filed a
second amended motion on January 8, 1990. Because the Court lacked jurisdiction to
grant the extension, this motion was later ruled untimely. On August 1, 1990, the
Circuit Court denied relief on all of Mr. White's post-conviction motions.

        On appeal, the Missouri Supreme Court reversed and remanded for a
determination of whether Mr. White's first and second attorneys had abandoned him.
White v. State, 813 S.W.2d 862 (Mo. 1991) (en banc) ("White I"). Under Rule 29.15,
it was the duty of appointed counsel to determine whether sufficient facts were asserted
in the pro se motion to support the claims that it raised; to determine whether the
movant had included in the pro se motion all claims for post-conviction relief known
to the movant; and to correct any deficiencies in the pro se motion by filing an amended
motion. Although there was no right to effective assistance of post-conviction counsel,
Missouri provided a remedy, as a matter of state law, where appointed counsel
"abandoned" his client by completely failing to perform these statutory duties. Luleff
v. State, 807 S.W.2d 495 (Mo. 1991) (en banc). The Missouri Supreme Court,
therefore, remanded for determination of whether Mr. White's first and second
attorneys had abandoned him by withdrawing without leave of court, by failing to file
a timely amended motion, and by failing to obtain a proper verification of the amended
motion. On remand, the Circuit Court found no abandonment, but it was again reversed
on appeal to the Missouri Supreme Court.

     The Missouri Supreme Court found abandonment but provided only a limited
remedy because Mr. White had signed the "blank" verification. White v. State, 873

                                          -4-
S.W.2d 590 (Mo. 1994) (en banc) ("White II"). The Missouri Supreme Court held that
Mr. White had been abandoned when his first attorney withdrew without court
permission. This constituted abandonment because Mr. White's "second counsel did
not have enough time to file a timely amended motion after he entered his appearance."
Id. at 597. Additionally, the Court found that Mr. White had been abandoned when
his second attorney failed to file a timely amended motion.3 The Court found that "no
action or inaction by [Mr. White] contributed to the delayed filing." Ibid.

       As a remedy, the Missouri Supreme Court forgave the untimely filing of the first
amended motion. The Court, however, refused to apply this remedy to the second
amended motion. The Court reasoned, first, that Mr. White had been abandoned only
with respect to the timing of the first amended motion, not with respect to its content.
Second, the Court considered that Mr. White had waived any claim that the first
amended motion was incomplete when he signed the "blank" verification: "By signing
the verification in blank, defendant knew or should have known that he was an active
participant in falsely verifying a document that had not yet been written." Id. at 595.

       The Missouri Supreme Court remanded to the Circuit Court for consideration
only of those claims made in Mr. White's first amended motion. The Circuit Court
denied all of Mr. White's claims. On appeal, the Missouri Supreme Court affirmed.
White v. State, 939 S.W.2d 887 (Mo. 1997) (en banc) ("White III"). The Missouri
Supreme Court addressed only six of Mr. White's twenty-eight claims on the merits.
The Court held that the rest of Mr. White's claims were procedurally defaulted due to
the inadequate pleading of the first amended motion. Specifically, the Court found that




      3
       The Missouri Supreme Court also requested an investigation by Missouri's Chief
Disciplinary Counsel to determine whether any ethical rules had been broken by the
Public Defender's Office or the two attorneys.

                                          -5-
in twenty-two of his claims, Mr. White had failed to plead sufficient facts to warrant
relief.4

       On December 26, 1997, Mr. White filed his petition for a writ of habeas corpus
in the District Court. The Court held that the Missouri Supreme Court's rejection of the
second amended motion was based on an independent and adequate state ground.
Likewise, the Court held that Missouri's fact-pleading requirement was an independent
and adequate state ground. Accordingly, the District Court found that all of Mr.
White's claims were procedurally barred, except those six claims that the Missouri
Supreme Court had found adequately raised in the first amended motion. On these six
claims, the District Court ruled against Mr. White on the merits. Three of these claims
have been appealed, along with the District Court's ruling on procedural bar.

                                           II.

        Federal review of a habeas petition is barred when a state court dismisses or
rejects a prisoner's claims on independent and adequate state grounds unless a
petitioner can demonstrate either (1) cause and prejudice or (2) actual innocence.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Procedural default of a claim under
state law may constitute an independent and adequate state ground, Harris v. Reed, 489
U.S. 255, 262 (1989), but only if the state procedural rule is firmly established,
regularly followed, and readily ascertainable. Ford v. Georgia, 498 U.S. 411, 423-4
(1991). The underlying principle is "that failure to follow state procedures will warrant
withdrawal of a federal remedy only if those procedures provided the habeas petitioner


      4
        Our holding that consideration of the second amended petition was not barred
by an adequate state procedural ground makes it unnecessary to consider the adequacy
of the state pleading rules held to bar most of the claims in the first amended petition.
We likewise need not consider petitioner's assertion that his actual innocence excuses
any procedural default.

                                          -6-
with a fair opportunity to seek relief in state court." Easter v. Endell, 37 F.3d 1343,
1347 (8th Cir. 1994). Or, as Justice Holmes expressed it, "[w]hatever springes the
State may set for those who are endeavoring to assert rights that the State confers, the
assertion of federal rights, when plainly and reasonably made, is not to be defeated
under the name of local practice." Davis v. Wechsler, 263 U.S. 22, 24 (1923). We
believe that Mr. White was denied a fair opportunity to seek relief in this case because
the procedural rule that barred his second amended petition was neither firmly
established nor readily ascertainable.

       The procedural default in this case was based on two limitations of Missouri's
remedy for abandonment newly introduced in Mr. White's own case. First, the
Missouri Supreme Court held that Mr. White's second amended motion was not entitled
to consideration because he had been abandoned only as to the timing of his first
amended motion, but not as to its content. At the time of Mr. White's case, the
Missouri Supreme Court had just recently decided that there should be a remedy for
attorney abandonment in post-conviction proceedings. The Court had stated a general
rule that relief was appropriate where the attorney, and not the movant, was responsible
for the untimeliness or improper verification of the motion. Mr. White's case, White
II, was the first in which the distinction between timing and content was announced and
employed to limit the remedy available to an abandoned defendant.

      Even in retrospect, the basis for this distinction is unclear to us. The Missouri
Supreme Court found that Mr. White's first attorney had abandoned him by leaving his
second attorney without time to file a timely motion. We cannot see why such an
abandonment, forcing Mr. White's second attorney to prepare and write a motion in
fourteen days, would not include the content of the motion. Mr. White's attorney
lacked the time to write a motion because he lacked the time to write its content. With
no concern for content, one day would have been sufficient. As confusing as this
distinction is in retrospect, we have no trouble finding that neither Mr. White nor his


                                          -7-
attorneys could reasonably have anticipated any such rule in advance of its first
application in Mr. White's own case.

        Before White II, the Missouri Supreme Court had held that where abandonment
occurred new counsel would be appointed and an extension provided as necessary to
file an amended motion. Luleff v. State, 807 S.W.2d 495 (Mo. 1991) (en banc);
Bradey v. State, 811 S.W.2d 379 (Mo. 1991) (en banc). In White II, the Missouri
Supreme Court stated a new rule limiting the remedy for abandonment. The State of
Missouri argues vigorously that this limit was implicit in, and correctly derived from,
Missouri's prior precedents. The State's argument, however, is not determinative of
the issue before us. Even though a rule appears in retrospect to form part of a
consistent pattern of procedures, it should not be applied as a procedural default if the
defendant could not be deemed to have been apprised of its existence. Ford v. Georgia,
498 U.S. at 423. The limitation on extensions announced in Mr. White's case is
dependent upon the distinction, discussed above, between abandonment as to timeliness
and abandonment as to content. For the reasons already discussed, we cannot say that
Mr. White was fairly apprised of its existence. Accordingly, even if, as Missouri
argues, this rule forms a consistent pattern with prior precedents, we could not apply
it as a procedural default in this case.

       As a second ground for limiting Mr. White's abandonment remedy, the Missouri
Supreme Court held that Mr. White had waived any claim that he had been abandoned
as to the content of the motions when he signed the "blank" verification. This waiver
principle was, again, first announced in Mr. White's own case, White II. The Court
based this principle on the fact that Mr. White knew or should have known he was an
active participant in falsely verifying a document that had not yet been written. The
Missouri Supreme Court was free to interpret its procedural rules in this way.
Nevertheless, we do not see how, before the decision in Mr. White's own case, anyone
could have known that signing this sort of open-ended verification constituted a waiver
of remedies for abandonment.

                                          -8-
        To begin with, before White II, there was no Missouri precedent relating to the
signing of "blank" verifications. Moreover, in White I, the Missouri Supreme Court
itself suggested that the blame for the "blank" verification might fall on the second
attorney who asked Mr. White to sign it; the Court remanded Mr. White's case to the
Circuit Court for a determination of whether the attorney's actions in procuring the
improper verification constituted abandonment. In the absence of any precedent, we
do not see how Mr. White could have known the legal significance of the improper
verification before the Missouri Supreme Court did. In sum, this principle was also
neither readily ascertainable nor firmly established at the time of Mr. White's case.

        Given the state of the law at the time, Mr. White did not have a fair opportunity
to seek relief in this case. Mr. White was presented with a very difficult decision when
his attorneys abandoned him: to lose all of his claims in an untimely motion or to sign
an improper verification and hope that the motion would be at least timely. The new
principles announced by the Missouri Supreme Court in his case were not available to
guide him in making that decision. Because these principles were neither readily
ascertainable nor firmly established, the procedural default that ensued cannot be
considered an adequate state ground to bar federal review.

                                           III.

       Mr. White also appeals the District Court's denial of three claims that the District
Court found were not procedurally defaulted. First, Mr. White argues that he received
ineffective assistance of counsel on his direct appeal. At Mr. White's trial, the Court
sustained the prosecutor's motion to strike for cause a venireman, Mr. Layson, over Mr.
White's lawyers' objection. The Court had found that Mr. Layson had admitted his bias
against the prosecutor; that he was a "loose cannon," likely to share extrajudicial
knowledge with other jurors; and that he was a danger to both prosecutor and
defendant. Mr. White's attorney failed to argue on direct appeal that Mr. Layson had
been improperly removed. Mr. White contends that the trial judge's decision was

                                           -9-
groundless because Mr. Layson showed no indication of bias. Mr. White concludes,
therefore, that failure to raise this "sure" argument on appeal constituted ineffective
assistance of counsel.

       Largely for the reasons given by the District Court, we reject this argument.
Absent contrary evidence, we must assume that Mr. White's appellate counsel failed
to raise this claim for reasons of strategy. Roe v. Delo, 160 F.3d 416, 418 (8th Cir.
1998). There is no contrary evidence in this case. We cannot accept Mr. White's
argument that Mr. Layson showed no indication of bias and that this would be a
successful claim on appeal. According to the record, Mr. Layson indicated that he
believed the prosecutor was lying because he failed to mention the possibility of
conviction on a lesser offense. Mr. Layson then engaged in an involved disagreement
with the trial judge and the prosecutor about the nature of the penalty phase of the trial.
Under Missouri law, the trial court has "broad discretion to determine the qualifications
of prospective jurors." State v. Parker, 886 S.W.2d 908, 919 (Mo. 1994) (en banc).
There were no clear grounds in the record for challenging the trial court's discretionary
determination that Mr. Layson was biased and a "loose cannon," dangerous to both the
prosecutor and Mr. White. Mr. Layson's own words support that conclusion.



       Second, Mr. White argues that he received ineffective assistance of trial counsel
because of his attorneys' conflict of interest. At various points during the trial, Mr.
White's attorneys asked him, before the court, to endorse or acknowledge certain
decisions made with respect to his defense. Mr. White argues that his attorneys were
motivated by a desire to protect themselves from ineffective-assistance-of-counsel
claims, and that their questions revealed confidential and damaging trial strategies to
the court and the prosecutor. Like the District Court, we cannot accept Mr. White's
argument. Mr. White relies on Blanco v. Singletary, 943 F.2d 1477, 1500 (11th Cir.
1991). Unlike Blanco, however, where attorneys conceded to the court during the
sentencing phase that there was no mitigating evidence for their client, Mr. White can

                                           -10-
assert no prejudice here. It is true that Mr. White was asked questions to make sure
that he understood his rights and that he acquiesced in certain strategic decisions. In
doing so, however, no damaging admissions or revelations were communicated to the
Court or the prosecutor. Asking such questions was not improper, but even if it had
been, no relief would be appropriate, because no prejudice to Mr. White resulted.

       Third, Mr. White argues that judicial bias deprived him of due process.
Specifically, Mr. White maintains that the Missouri Circuit Court in considering his
claims of abandonment had an ex parte communication with the prosecutor about the
proper scope of an evidentiary hearing. Mr. White also claims that the Court adopted
verbatim the prosecutor's proposed findings of fact and conclusions of law after this
hearing. Even assuming that the Court did something improper, Mr. White cannot
show any prejudice from this episode. The Missouri Supreme Court completely
vacated the Circuit Court's decision on appeal and found abandonment. Any prejudice
to Mr. White that might have occurred either from the conversation or by the verbatim
adoption of findings was eliminated by the decision of the Missouri Supreme Court.
Again, we affirm the decision of the District Court.

       Accordingly, we reverse in part, affirm in part, and remand to the District Court
for consideration of Mr. White's constitutional claims, except those claims that the
District Court has already addressed on the merits.

      A true copy.

             Attest:

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




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