                                   ___________

                                   No. 96-2087
                                   ___________

Sylvester Hornbuckle,                   *
                                        *
           Appellant,                   *    Appeal from the United States
                                        *    District Court for the
     v.                                 *    Eastern District of Missouri.
                                        *
Michael Groose,                         *
                                        *
           Appellee,                    *
                                   ___________

                   Submitted:      December 13, 1996

                          Filed:   February 5, 1997
                                   ___________

Before WOLLMAN and MURPHY, Circuit Judges, and TUNHEIM,1 District
      Judge.
                               ___________


WOLLMAN, Circuit Judge.


     Sylvester Hornbuckle appeals from the district court's2 denial of his
28 U.S.C. § 2254 petition.    We affirm.


                                       I.


     On February 1, 1986, Hornbuckle attacked and robbed Robert and Emily
Sudhoff in a parking lot in a St. Louis suburb.           On May 14, 1987,
Hornbuckle was convicted of two counts of first-degree robbery, four counts
of armed criminal action, and two counts of




     1
      The HONORABLE JOHN R. TUNHEIM, United States District Judge
for the District of Minnesota, sitting by designation.
      2
      The Honorable Jean C. Hamilton, Chief Judge, United States
District Court for the Eastern District of Missouri, adopting the
report and recommendation of the Honorable Thomas C. Mummert,
United States Magistrate Judge for the Eastern District of
Missouri.
kidnapping.     The Missouri Court of Appeals reversed his convictions on
April 26, 1988.   The Missouri Supreme Court granted transfer and affirmed
Hornbuckle's convictions on April 18, 1989.   See State v. Hornbuckle, 769
S.W.2d 89 (Mo. 1989) (en banc).


     Hornbuckle filed a section 2254 petition in the district court,
raising two issues:   whether the trial court should have inquired into the
prejudicial effect of an exhibit that, although properly admitted into
evidence, mistakenly went to the jury; and whether Hornbuckle's due process
and equal protection rights were violated when his conviction was based
upon the visual identification testimony of Robert Sudhoff, who never saw
his attacker.   The district court rejected both of Hornbuckle's claims and
his request for an evidentiary hearing.


     On appeal, Hornbuckle argues four claims:     that the district court
erred in not holding an evidentiary hearing on the possible prejudicial
effect of the exhibit mistakenly sent to the jury; that Hornbuckle was
denied due process by Robert Sudhoff's identification testimony; and two
ineffective assistance of trial counsel claims.


                                    II.


     Hornbuckle concedes that the two ineffective assistance claims he
raises on appeal were not raised in state court and have been procedurally
defaulted, because under Missouri law he should have raised these claims
in a motion for post-conviction relief.   Hornbuckle did not file a motion
for post-conviction relief under Missouri Supreme Court Rule 27.26 (1987),
which was in effect when he was convicted, or under Missouri Supreme Court
Rule 29.15, which became effective on January 1, 1988.    See Mo. Sup. Ct.
R. 29.15




                                    -2-
(1995).3       Because Hornbuckle did not file a Rule 27.26 motion prior to
January 1, 1988, he was subject to the provisions of Rule 29.15(m), which
required persons convicted before January 1, 1988, to file a Rule 29.15
motion on or before June 30, 1988.     The failure of such persons to timely
file such a motion would be held to "constitute a complete waiver of the
right to proceed under this Rule 29.15."    Mo. Sup. Ct. R. 29.15(m) (1995).



     Hornbuckle argues that Missouri's adoption of Rule 29.15 serves as
cause excusing his procedural default.      Hornbuckle points out that after
the Missouri Court of Appeals reversed his conviction on April 26, 1988,
he was no longer under a judgment of conviction and had no reason to file
a Rule 29.15 motion prior to June 30, 1988.        He claims that under the
provisions of Rule 29.15(m), he would not have been allowed to file a Rule
29.15 motion after the Missouri Supreme Court reinstated his conviction in
1989, although he made no attempt to file such a motion.4         Hornbuckle
argues that because he had no opportunity to file a Rule 29.15 motion, the
State's actions prevented him from raising his ineffective assistance
claims in state court.      See Murray v. Carrier, 477 U.S. 478, 488 (1986).



     We do not agree that Missouri's adoption of Rule 29.15 serves as
cause.     Hornbuckle has not explained why he could not have filed a Rule
29.15 motion between January 1, 1988, and April 26, 1988.         Hornbuckle
assumes that he should not have been expected to file




     3
      Rule 29.15 was amended effective January 1, 1996, but those
amendments are not relevant to this case. See Mo. Sup. Ct. R.
29.15 (1996).
           4
        While the State did not concede at oral argument that
Hornbuckle could not have filed a Rule 29.15 motion after his
conviction was reinstated in 1989, we have previously recognized
that by the terms of Rule 29.15(m), a defendant's failure to file
a motion by June 30, 1988, constituted a complete waiver of the
right to do so. See Abdullah v. Groose, 75 F.3d 408, 413 (8th
Cir.) (en banc), cert. denied, 116 S. Ct. 1838 (1996).

                                      -3-
such a motion while his direct appeal was pending, but this is contrary to
what Rule 29.15 required him to do.    Rule 29.15 was designed as a unitary
review process, in which motions for post-conviction relief were to be
filed while the direct appeal was pending, with the appellate court
subsequently reviewing both the direct appeal and the appeal from the
ruling on the post-conviction motion.       See Mo. Sup. Ct. R. 29.15(b), (l)
(1995); see also Lowe-Bey v. Groose, 28 F.3d 816, 818-19 (8th Cir. 1994)
(explaining Rule 29.15 process).    As a person convicted prior to January
1, 1988, Hornbuckle could have filed his motion anytime between January 1
and June 30, 1988, as provided for by Rule 29.15(m).       Hornbuckle had at
least four months while under a judgment of conviction in which he should
have filed a Rule 29.15 motion raising his ineffective assistance claims,
but he failed to do so.


     Hornbuckle argues that because the strict mandatory time limits of
Rule 29.15 were designed to thwart the assertion of federal rights, Rule
29.15 is an inadequate ground to bar federal review.       We have previously
rejected this argument.   See Sloan v. Delo, 54 F.3d 1371, 1378-81 (8th Cir.
1995), cert. denied, 116 S. Ct. 728 (1996); see also Reese v. Delo, 94 F.3d
1177, 1181-82 (8th Cir. 1996).   Hornbuckle had almost a year from the date
of his conviction--May 14, 1987--until his conviction was reversed on April
26, 1988, in which to prepare his post-conviction relief motion.         Cf.
Sloan, 54 F.3d at 1379-80 (petitioner had more than a year between
sentencing and June 30, 1988, deadline to prepare motion).


     The adoption of Rule 29.15 cannot serve as cause for Hornbuckle's
failure to properly raise his ineffective assistance claims in state court,
and Hornbuckle has not argued that a fundamental miscarriage of justice has
occurred.   Thus, our review




                                      -4-
of these claims is procedurally barred.5


                                    III.


     Hornbuckle argues that the district court erred in not holding an
evidentiary hearing on his claim regarding the possible prejudicial effect
of an exhibit--Mrs. Sudhoff's diary--that went to the jury during its
deliberations.    The district court rejected this claim, noting that
Hornbuckle had failed to develop the record in state court to show whether
any juror had read the allegedly prejudicial material in the diary and that
the Missouri Supreme Court had found that there was no indication in the
record of any improper communication with the jury.     The district court
concluded that Hornbuckle had failed to show cause and prejudice for his
failure to develop the record in state court and that he was not entitled
to a federal evidentiary hearing.    On appeal, Hornbuckle has not alleged
any grounds serving as cause for his failure to further develop the record
in state court, nor does he argue that a fundamental miscarriage of justice
will result from the district court's failure to hold an evidentiary
hearing.   Thus, the district court did not err in ruling that Hornbuckle
was not entitled to an evidentiary hearing.   See Keeney v. Tamayo-Reyes,
504 U.S. 1, 11-12 (1992).


     Hornbuckle does not raise the merits of his claim on appeal, but
intertwines the merits with the evidentiary hearing issue by arguing that
Remmer v. United States, 347 U.S. 227, 229-30 (1954), required the district
court to hold a hearing.    We disagree.




     5
     Furthermore, these claims were not raised before the district
court, so Hornbuckle's presentation of these claims to us
constitutes an attempt to file a second, and abusive, petition;
these claims are also subject to our general rule against
considering claims not raised below. See Whitmill v. Armontrout,
42 F.3d 1154, 1156 & n.1 (8th Cir. 1994). Hornbuckle's motion to
supplement the record with material relevant to these claims is
denied.

                                    -5-
Remmer, the cases Hornbuckle cites in his brief, and almost all of our
cases applying Remmer, deal with alleged jury tampering, juror misconduct,
or private, extrajudicial communication with jurors.                      Only one of our cases
applying       Remmer   involved         an    exhibit    sent    to    the   jury    during     its
deliberations, but the problem in that case was that the exhibit contained
material that had not been admitted into evidence.                        See United States v.
Johnson, 647 F.2d 815, 817 (8th Cir. 1981).                       In contrast, the Missouri
Supreme Court found that the diary was properly admitted into evidence
without objection or limitation and was sent to the jury in violation of
only an agreement between the parties.                   See Hornbuckle, 769 S.W.2d at 98-
99.    Thus, Remmer is not applicable to Hornbuckle's situation.


                                                 IV.


       Robert Sudhoff admittedly never saw his attacker, who was positioned
behind him and holding a gun to his neck, but only heard the attacker's
voice.       Sudhoff later read newspaper accounts of a similar robbery which
named Hornbuckle as a suspect.                Sudhoff testified that he picked Hornbuckle
out of a photo array based on his wife's description of the attacker.                            The
photo was a mug shot that had Hornbuckle's name on it.                             Sudhoff later
identified Hornbuckle at a live line-up after hearing his voice.                                  He
testified regarding both of his out-of-court identifications of Hornbuckle,
but    did    not   make    an    in-court      identification         because   Hornbuckle      had
voluntarily absented himself from his trial.                    Hornbuckle, 769 S.W.2d at 91-
92, 94.


       Hornbuckle argues that Robert Sudhoff's identification testimony
violated      his   right    to    due    process.        The    State    argues     that   we   are
procedurally barred from reviewing this claim because the Missouri Supreme
Court conducted only a plain error review.                      As we recently noted in Mack
v.    Caspari, 92 F.3d 637 (8th Cir. 1996), "[t]here appears to be a
decisional split within our Circuit on whether plain-error review by a
state appellate court waives a




                                                 -6-
procedural default by a habeas petitioner, allowing collateral review by
this court."    Id. at 641 n.6.   The State relies on Toney v. Gammon, 79 F.3d
693, 699 (8th Cir. 1996), as authority for the proposition that "a properly
limited plain error review by a state court does not cure a procedural
default."      Another line of cases, including Mack and the cases cited
therein, see 92 F.3d at 641 & n.6, holds that when a state court reviews
for plain error, we may also review for plain error.       Although we cannot
resolve this divergence in our holdings, we may choose which line of cases
to follow, see id. at 641 n.6.     We choose to follow Mack, and thus we will
review for plain error resulting in manifest injustice.       See id. at 641.


        The Missouri Supreme Court concluded that the photo array was not
impermissibly suggestive and that any problems with the photographic
identification went to the weight of the Sudhoffs' testimony.        Although
Robert Sudhoff's testimony arguably should not have been admitted, the
court    concluded there was no plain error because the problems with
Sudhoff's identification--his acknowledgments that he had not seen the
attacker's face and that he had selected Hornbuckle from the photo array
based on his wife's description, a police officer's testimony that Sudhoff
had not been able to identify anyone, and the lack of Sudhoff's signature
on Hornbuckle's photo confirming that he had selected that one--had been
put before the jury.    See Hornbuckle, 769 S.W.2d at 92-95.


        Although we agree with the Missouri Supreme Court that Robert
Sudhoff's testimony about his photographic identification of Hornbuckle
should not have been allowed, we find no plain error resulting in manifest
injustice.    The jury was made aware of Sudhoff's lack of opportunity to see
Hornbuckle.     Cf. Dodd v. Nix, 48 F.3d 1071, 1075 (8th Cir. 1995) ("Any
remaining concerns about . . . the reliability of the out-of-court
identification were for the jury to resolve."); Mack, 92 F.3d at 643
(citing Dodd).




                                      -7-
     With   respect   to   the   live    line-up,   the   Missouri   Supreme   Court
concluded that Sudhoff's identification testimony was admissible because
his identification was based on his recognition of Hornbuckle's voice.           See
Hornbuckle, 769 S.W.2d at 95.           We agree that there is no plain error
regarding Sudhoff's testimony about the live line-up.


     The judgment is affirmed.6


     A true copy.


            Attest:


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




      6
       The State argues that portions of Hornbuckle's appeal are
governed by provisions of the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1218-21
(April 24, 1996), amending 28 U.S.C. §§ 2244(b) & 2254(d). Given
our disposition of Hornbuckle's claims, we need not decide whether
these amendments apply to Hornbuckle's appeal.     See Preston v.
Delo, 100 F.3d 596, 599 n.4 (8th Cir. 1996). We note that the
Supreme Court has granted certiorari to consider the retroactive
application of the Act. See Lindh v. Murphy, 96 F.3d 856 (7th Cir.
1996), cert. granted, 117 S. Ct. 726 (1997).

                                         -8-
