                       United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-3012
                                   ___________

Steven Earl Frasier,                    *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Herbert Maschner, Warden,               *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: February 14, 2002

                                  Filed: September 25, 2002
                                   ___________

Before LOKEN, and RILEY, Circuit Judges, and KORNMANN,1 District Judge.
                             ___________

RILEY, Circuit Judge.

       Steven Earl Frasier (Frasier) appeals the district court’s2 order denying his
petition for habeas corpus relief under 28 U.S.C. § 2254. On February 18, 1987, a
jury convicted Frasier of murder in the first degree and burglary in the first degree.

      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota, sitting by designation.
      2
        The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
An Iowa state court sentenced Frasier to life imprisonment without the possibility of
parole. The district court denied habeas relief finding, inter alia, Frasier had
procedurally defaulted his due process claim and failed to prove ineffective assistance
of counsel.

I.     BACKGROUND
       On Sunday, August 31, 1986, Frasier, along with James Simpson (Simpson)
and Simon Tunstall (Tunstall), went to the home of Christine Buddi. After entering
the apartment, an altercation ensued and Frasier shot Jeffrey Jones (Jones) three
times, ultimately causing his death. At trial Frasier claimed that upon entering the
apartment Jones attacked him, and he shot Jones in self-defense. Frasier and his co-
defendants, Tunstall and Simpson, were charged with murder and burglary.

       During the trial a local newspaper published an article containing information
about the trial. The article mentioned the trial court's rejection of Simpson's plea
agreement and statements made by Simpson in support of the plea agreement.
Counsel for each defendant moved for a mistrial, arguing the newspaper article
contained misstatements and was prejudicial. Frasier's and Tunstall's counsel also
moved for a change of venue and to sever the trial of these defendants from that of
Simpson. None of the three defense trial counsel moved to voir dire the jurors
regarding exposure to the newspaper article, nor did the trial court, sua sponte,
conduct such voir dire. The only evidence regarding exposure of the jury to the
article was that Simpson's counsel had seen a juror reading a newspaper in the jury
lounge. No evidence was presented at Frasier's trial or during the post-conviction
hearing that any juror from Frasier's trial had seen or read the critical article. The trial
court denied the motions for mistrial, change of venue, and severance.

      Frazier appealed his conviction to the Iowa Court of Appeals on various
grounds, and the appeal was denied. In June 1990, Frasier petitioned for post-
conviction relief alleging numerous grounds for relief. Among other allegations,

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Frasier claimed trial counsel was ineffective for his failure to seek voir dire of the jury
related to the newspaper article.

       During the post-conviction relief hearing, Frasier's trial counsel, Gregory
Jones, testified he made a calculated decision, based on his own experience and on
consultation with the other defense counsel, not to ask for a poll of the jury. In his
opinion, polling the jury had the disadvantage of extinguishing a claim on appeal,
namely a claim based on the denial of the motion for a mistrial. Gregory Jones made
it clear his decision was made as a matter of strategy.

       The state court found there was no prejudice to Frasier based on the absence
of any evidence that any juror was affected by the newspaper article, and bolstered
by the admonitions given by the court to the jurors to decide the case solely on the
evidence presented in court. The Iowa Court of Appeals affirmed. In his state
petition for post-conviction relief, Frasier did not raise the issue of whether the trial
court made a constitutional error by failing to voir dire the jury.

       On federal habeas review, the district court denied relief on all grounds raised
by Frasier, but granted a certificate of appealability on two issues. On appeal, Frasier
claims the state trial court violated his right to due process by not asking the jurors
about the newspaper article. He also claims his trial counsel rendered ineffective
assistance by failing to conduct such a voir dire of the jurors.

II.   DISCUSSION
      In consideration of a state habeas petition, “[w]e review the district court's
findings of fact for clear error and its conclusions of law de novo.” Randolph v.
Kemna, 276 F.3d 401, 403 (8th Cir. 2002) (citation omitted). Whether petitioner has
procedurally defaulted as a matter of law is reviewed de novo. Id.




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        1.     Procedural Default
        Frasier's first claim on appeal involves the state trial court's failure to question
the jurors about the newspaper article. Frasier defaulted on this claim by failing to
raise it in state court, either on direct appeal or in post-conviction proceedings. See
Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Frasier argues that we should
excuse his default because he can show "cause and prejudice" for failing to raise his
claim in state court. See id. at 750.

        As "cause" for his default, Frasier points to his trial counsel's failure to raise
the claim on direct appeal. However, "ineffectiveness of appellate counsel may not
be asserted as cause to excuse procedural default unless the petitioner has first
presented this argument 'as an independent Sixth Amendment claim to the state
courts, if a forum existed to make the argument.'" Whitmill v. Armontrout, 42 F.3d
1154, 1157 (8th Cir. 1994). In the state court proceedings, Frasier did not challenge
his trial counsel's decision not to appeal the trial court's failure to voir dire the jurors
about the newspaper article. We therefore hold that Frasier has not shown cause and
prejudice necessary to overcome his procedural default of this issue.

       Frasier has also asked us to excuse his default because the time for raising his
claim in state court has expired. In other words, Frasier asks us to hold that a
procedural default is itself an excuse for the default. If we were to adopt Frasier's
circular logic, the procedural default issue would no longer exist. Because we are
bound to apply the procedural default doctrine, see Coleman, 501 U.S. at 750, we
refuse to grant Frasier's request.

      In the alternative, had Frasier not procedurally defaulted, his claim fails for the
reasons stated in his co-defendant Tunstall's case. Tunstall v. Hopkins, No. 01-2730
(8th Cir. 2002). In Tunstall, we determined the trial court had no duty to voir dire the
jury under the circumstances presented. See also King v. Bowersox, No. 01-2149,
2002 WL 1067336 (8th Cir. May 30, 2002).

                                            -4-
       2.     Ineffective Assistance
       A federal court's review of a state court conviction is limited to determining
whether the conviction or sentence was obtained in violation of "the Constitution or
laws or treaties of the United States." 28 U.S.C. § 2254(a); see Williams v. Taylor,
529 U.S. 362, 375 n.7 (2000). "The deprivation of the right to the effective assistance
of counsel recognized in Strickland is such an error." Id. at 375 (citing Strickland v.
Washington, 466 U.S. 668, 686, 697-98 (1984)). Under Strickland a habeas
petitioner must prove counsel was deficient and that such performance caused him
legitimate prejudice. See id. at 691-94.

       To establish ineffectiveness, a petitioner "must show that counsel's
representation fell below an objective standard of reasonableness." Strickland, 466
U.S. at 688. "Judicial scrutiny of counsel's performance must be highly deferential."
Strickland, 466 U.S. at 689. "[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable." Id. at
690. To establish prejudice, the petitioner "must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id. at 694.

       In this case, trial counsel clearly made a strategic decision to move for a
mistrial without seeking voir dire of the jury about the newspaper article. We cannot
say counsel's decision was objectively unreasonable and must give counsel's decision
due deference. Additionally, Frasier failed to show he was prejudiced in any way by
the lack of voir dire. Accordingly, the state court's decision denying relief does not
contravene any clearly established federal law.

III.   CONCLUSION
       Having considered the claims raised in Frasier's appeal, we affirm the district
court's denial of Frasier's petition for habeas relief.

                                         -5-
KORNMANN, District Judge, concurring.

      I concur fully that Frasier's claims are procedurally defaulted. I do not endorse
the language of the court's opinion to the effect that Frasier's claims fail for the
reasons stated in his co-defendant Tunstall's case. Tunstall v. Hopkins, No. 01-2730
(8th Cir. 2002). I believe the state trial court did have "a duty to voir dire the jury
under the circumstances presented" although, as stated, such claims are now
procedurally defaulted. I respectfully continue to endorse the views expressed in my
dissent in Tunstall.

      A true copy.

             Attest:

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




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