                                   ___________

                                   No. 94-4030
                                   ___________

Steven L. Toney,                       *
                                       *
             Appellant,                *
                                       *
        v.                             *    Appeal from the United States
                                       *    District Court for the Eastern
James A. Gammon; Jeremiah (Jay)        *    District of Missouri.
W. Nixon,                              *
                                       *
             Appellees.                *


                                   ___________

                     Submitted:    September 14, 1995

                          Filed:   March 29, 1996
                                   ___________

Before BOWMAN, ROSS and BEAM, Circuit Judges.

                                   ___________

ROSS, Circuit Judge.


        Steven L. Toney appeals from the district court's judgment denying
his petition for writ of habeas corpus.      We affirm in part and reverse in
part.


                                       I.


        Toney was convicted of the rape and sodomy of Kelly Eve Morris.
Morris testified that on September 30, 1982, she arrived at her apartment
complex about 3:00 a.m. and noticed a man on the stair landing.              She
testified that when she reached her apartment door she was grabbed from
behind by a man who covered her mouth and nose with his hand and held a
knife blade to her throat.   The man dragged her down the stairs and outside
to a wooded area behind the
apartment building.        She stated that she was able to see the man's face
when they paused at a well-lit corner of the building.                She was then
sodomized and raped.      Once back at her apartment, Morris called the police
and later gave a description of her assailant as a Negro male, 25 to 30,
5'8" to 5'10", stocky, muscular build, dark complexion, wearing a white T-
shirt, blue jeans and leather gloves.
     On October 5, 1982, Morris viewed over sixty photographs of possible
suspects but was unable to identify any of them as her assailant.                On
October 8, 1982, she was shown four photographs and from these identified
one of them, a photograph of Toney, as the man who had assaulted her.
During the trial, Lee Adams, an attendant at a gas station near the scene
of the crime, recalled that at about 3:30 a.m. on the night of the assault,
a man approached the pay booth of the gas station on foot.             Adams gave a
description to a police officer shortly afterward, stating that he was a
Negro male, 22 to 30, 5'8" to 5'10", stocky build, bad, gaped teeth, short
hair, a light mustache, wearing a white T-shirt, blue jeans and leather
gloves.   On October 14, 1982, two days after Toney was arrested, Adams was
shown four photographs and from these identified Toney as the man he had
seen at the gas station on the night of the crime.            Toney has steadfastly
maintained     his     innocence   throughout   his   trial    and   postconviction
proceedings.     Toney points out that the descriptions given by both the
victim and the gas attendant, while similar to each other, do not describe
him with any accuracy.        Toney was, in fact, 35 years old, 6' tall, 165
pounds, light-complected, pockmarked face, good teeth and a full beard and
mustache.


     Following his conviction, Toney filed a motion for a new trial and
received an evidentiary hearing on claims raised in that motion.                The
motion was denied and Toney was sentenced as a persistent and dangerous
offender to a term of life imprisonment on each of the two counts, to run
consecutively.       The Missouri Court of Appeals affirmed Toney's conviction
and sentence.    State v.




                                        -2-
Toney,     680   S.W.2d   268    (Mo.    Ct.   App.   1984).   Toney   then   sought
postconviction relief under Missouri Supreme Court Rule 27.26, claiming
ineffective assistance of counsel.         The motion was initially denied without
an evidentiary hearing.         The Missouri Court of Appeals, however, reversed
and remanded the case to the motion court for more detailed findings of
fact and conclusions of law.        Toney v. State, 730 S.W.2d 295 (Mo. Ct. App.
1987).   Toney's Rule 27.26 motion was again denied without an evidentiary
hearing.    Toney v. State, 770 S.W.2d 411 (Mo. Ct. App. 1989).


     Toney then filed a petition for habeas corpus in the United States
District Court for the Eastern District of Missouri raising twenty-one
grounds for reversal.      The matter was referred to a magistrate judge who
recommended denial of Toney's petition, as well as denial of his motion for
appointment of counsel, denial of his motion for a DNA blood test and for
scientific inspection of the physical evidence the state introduced at
trial, and the denial of his motion for copies of deposition transcripts.
Following consideration of Toney's pro se objections and in light of two
recent Missouri cases, on July 15, 1991, the district court recommitted the
petition to the magistrate judge for further consideration of Toney's third
petition claim, specifically that the trial judge mistakenly imposed
consecutive life sentences.             The district court also granted Toney's
request to file a motion to compel analysis of the blood sample and
referred the motion to compel to the magistrate judge for consideration.
On March 30, 1992, over eight months after the case was resubmitted, the
magistrate judge denied Toney's motion to compel and his request for an
evidentiary hearing without prejudice in a two-sentence order.


     On September 4, 1992, the district court entered an order accepting
the magistrate judge's denial of the petition only as to eleven of Toney's
twenty-one claims, and recommitted the ten remaining claims, as well as
various pending motions, to the




                                           -3-
magistrate judge for further consideration, holding that the present record
supported sustaining Toney's motion for appointment of counsel and required
further consideration of several issues pertaining to the analysis of
evidence and blood samples, as well as the appropriateness of holding an
evidentiary hearing to allow Toney a full opportunity to present his
claims.


       On March 24, 1994, over a year and a half after the remaining claims
were       resubmitted   for   further   consideration,   the   magistrate   judge
recommended denial of Toney's remaining habeas claims and denial of his
renewed motion to permit DNA testing.          On October 15, 1994, the district
court adopted the magistrate judge's recommendations and dismissed the
petition with prejudice.


                                         II.


       On appeal, Toney first argues the district court erred in denying his
habeas petition without first conducting an evidentiary hearing.        He claims
he was denied a full and fair opportunity to present his claims where the
state court and the district court denied his substantial claims of
ineffective assistance and constitutional claims without an evidentiary
hearing.1


       In order to prove such ineffective assistance of counsel, Toney must
show that his attorney's performance was deficient and that such deficient
performance prejudiced his defense.        Sidebottom v. Delo, 46 F.3d 744, 752
(8th Cir.), cert. denied, 116 S. Ct. 144




       1
      Toney generally argued he is entitled to an evidentiary
hearing on other issues raised in his habeas petition; however,
he failed to specify in his brief on appeal why these grounds
entitled him to a hearing. It is insufficient to incorporate by
reference various arguments made to the district court.
Sidebottom v. Delo, 46 F.3d 744, 750 n.3 (8th Cir.), cert.
denied, 116 S. Ct. 144 (1995); see 8th Cir. R. 28A(j). He has,
therefore, waived any right to have these arguments considered on
appeal. Sidebottom, 46 F.3d at 750.

                                         -4-
(1995).   Toney claims his trial counsel was ineffective in failing to:   (1)
highlight the lack of evidence linking Toney to the crime; (2) have the
semen of the assailant blood-typed, which he claims would have excluded him
as a suspect; (3) cross-examine the state's forensic expert on whether her
testing protocol was generally accepted in the scientific community; and
(4) insure that a probable cause hearing was held by the court.        Toney
claims his trial counsel was grossly ineffective in failing to develop a
defense of mistaken identity, particularly in light of Toney's strong
protestations of innocence, his demand for a blood test in order to
exonerate himself, and the striking dissimilarity between the description
of the assailant given by the victim and the gas attendant and Toney's
physical characteristics.    Toney contends that but for these errors, a
"reasonable probability" existed that the jury would not have found him
guilty beyond a reasonable doubt.    See id.


     In remanding the case to the magistrate judge, the district court
stated that Toney's remaining claims appeared to raise substantial grounds:


     The present record . . . supports the granting of petitioner's
     motion for appointment of counsel and the denial without
     prejudice of the other two March, 1990, motions [motion for
     leave to compel analysis of victim's blood sample and request
     for an evidentiary hearing]. Various claims remain before the
     Court as the result of this and earlier orders, and several
     issues pertaining to the analysis of evidence and blood samples
     may need to be addressed more fully.      While petitioner has
     shown an ability to present his positions, the issues still to
     be considered by the Court are relatively unusual and it is not
     clear that the state court record alone will resolve the
     pending issues.

                                     * * *


     [T]he magistrate judge may deem it appropriate to grant
     [petitioner's] requests, at least in part, so as to provide
     petitioner with a full opportunity to present his




                                    -5-
      claims, particularly in light of the fact petitioner did not
      have an evidentiary hearing in his state postconviction
      proceedings.



(Emphasis added).     Notwithstanding the district court's expressed concerns,
the magistrate judge recommended denial of the petition and motion for DNA
testing "without further proceedings."


      The State claims Toney was not entitled to an evidentiary hearing in
federal court because he received an evidentiary hearing in state court on
his motion for a new trial and because the record itself was sufficient to
clearly indicate his grounds were all without merit.            Generally, a habeas
petitioner is entitled to an evidentiary hearing in federal court if the
petition "alleges sufficient grounds for release, relevant facts are in
dispute, and the state courts did not hold a full and fair evidentiary
hearing."    Wilson v. Kemna, 12 F.3d 145, 146 (8th Cir. 1994) (citations
omitted).    However, a petition may be summarily dismissed if the record
clearly indicates that the petitioner's claims are either barred from
review or without merit.       Id.


      The record in the present case does not conclusively establish that
Toney's claims are either barred from review or without merit.              Toney has
raised substantial claims that his counsel provided ineffective assistance
by failing to exhaustively pursue the issue of mistaken identity and by
failing to obtain the requested blood tests.        Compare Moore v. State, 827
S.W.2d 213, 214-16 (Mo. 1992) (under the circumstances of this case, trial
counsel's failure to obtain requested blood tests fell below reasonable and
customary standards; there was a reasonable probability of a different
outcome had such test results been obtained).           The record shows that Toney
did   not   receive   an   evidentiary   hearing   in    his   state   postconviction
proceedings and, in light of that fact, the district court initially
advised the magistrate judge that granting Toney's request for a hearing
may be appropriate in order to ensure that he




                                         -6-
has a full and fair opportunity to present his claims.                       We reject the
State's argument that the hearing held on Toney's motion for a new trial
provided Toney with the requisite opportunity to submit his postconviction
arguments.    We conclude the district court abused its discretion in failing
to ensure that Toney was accorded an evidentiary hearing on his ineffective
assistance of counsel claims.


                                            III.


     Toney raises several other claims challenging the district court's
refusal to grant his petition.            He claims his constitutional rights were
violated     when    the   jury    was    allowed   to    view    mugshots    used   in    two
photographic lineups, each of which contained one mugshot of Toney.                       Toney
claims the police data appearing on the photographs was inadequately
concealed     and,    consequently,       the   jury     had    the   opportunity    to     see
information which linked him to past criminal activity in violation of his
Fifth Amendment rights.


     The magistrate judge rejected Toney's claim for two reasons.                     First,
Toney never presented the federal constitutional aspects of his claim to
the Missouri state courts, thus creating a procedural bar to review.
Second, the Missouri Court of Appeals never reached the merits of his claim
under state or federal law because Toney failed to provide that court with
an adequate record on which to review his claims.                 It is well established
that attacking an alleged trial error as a violation of state law in state
court proceedings does not preserve a federal constitutional law claim
based on the same alleged trial error for federal habeas corpus review.
Picard v. Connor, 404 U.S. 270, 278 (1971).                    Toney makes no attempt to
demonstrate     either     cause     or    prejudice      for    failing     to   raise     the
constitutional dimensions of his claim relating to the mugshots in state
court.   Therefore, we conclude this claim is procedurally barred.




                                             -7-
                                        IV.


      Relying on Wardius v. Oregon, 412 U.S. 470 (1973), Toney next argues
his   due   process   rights   were   violated   when   Larry   Freeman,   a   state
investigator, was allowed to testify in rebuttal to Toney's alibi witness,
although Mr. Freeman had not been named as a rebuttal witness until the
third day of trial.    In Wardius, the Supreme Court held that if a defendant
is required to reveal witnesses under a discovery rule, the Due Process
Clause requires reciprocal discovery on the part of the prosecution.            Id.
at 475.
      In the present case, Mamie Toney stated in her alibi testimony that
her grandson could not have committed the crime because she specifically
remembered that he was asleep at her house on the night of the assault.
Mr. Freeman, the rebuttal witness, did not call this alibi testimony into
question.     Instead, his entire testimony consisted of his recollection
that, several months after the crime and shortly before the trial, he had
interviewed Mrs. Toney on a Tuesday, while Mrs. Toney had believed it was
a Wednesday.     Mr. Freeman's testimony had the very limited effect of
possibly calling into question Mrs. Toney's ability to remember certain
dates.    Mr. Freeman in no way challenged Mrs. Toney's alibi statement, nor
the basis for Mrs. Toney's precise recollection of Toney's whereabouts at
the time of the crime.    In fact, Mrs. Toney's own testimony revealed that
she was not absolutely certain of the date of Mr. Freeman's visit.


      We reject Toney's argument that Wardius requires the conclusion that
admission of a surprise rebuttal witness testimony, in all instances,
amounts to a violation of fundamental fairness rising to the level of an
infringement of due process.            Even if we were to assume that the
introduction of Mr. Freeman's testimony violated Toney's due process
rights, we conclude the error was harmless beyond a reasonable doubt.           See
Mauricio v. Duckworth, 840 F.2d 454, 459 (7th Cir.), cert. denied, 488 U.S.
869 (1988).    The




                                        -8-
fact that the prosecution had the opportunity to interview Mr. Freeman
prior to his testimony, coupled with the extremely limited value of the so-
called    rebuttal    testimony,   we   cannot   say   there    was   a   "reasonable
possibility that the [errors] complained of might have contributed to the
conviction."    Id.    There was no need for an evidentiary hearing on this
issue because the record clearly establishes that the claim is without
merit.


                                         V.


     Toney also contends the trial court violated his due process right
to a fair trial by improperly granting the state's motion in limine to
exclude evidence, including a newspaper article and a composite sketch, in
support of the theory that Arnett Smith, and not Toney, had raped the
victim.    The Missouri Court of Appeals declined to address the merits of
this claim, concluding that the issue had not been raised before the trial
court.    State v. Toney, 680 S.W.2d 268, 277 (Mo. Ct. App. 1984).           Instead,
the state appellate court, reviewing only for plain error, found no
manifest injustice or miscarriage of justice.          Id.     The court's analysis
went no further.     As we have recently reaffirmed, a properly limited plain
error review by a state court does not cure procedural default.                  See
Bannister v. Armontrout, 4 F.3d 1434, 1445 n.16 (8th Cir. 1993), cert.
denied, 115 S. Ct. 418 (1994) (citing Hayes v. Lockhart, 766 F.2d 1247,
1252 (8th Cir.), cert. denied, 474 U.S. 922 (1985)).                  This claim is
procedurally barred as neither cause nor prejudice has been demonstrated.


                                        VI.


     Toney next argues the district court erred by applying the "clear and
convincing" standard in Sawyer v. Whitley, 112 S. Ct. 2514, 2525 (1992),
rather than the more lenient "more likely than not" standard of Schlup v.
Delo, 115 S. Ct. 851, 867 (1995) (applying standard of proof established
by Murray v. Carrier, 477




                                        -9-
U.S. 478, 496 (1986)), to any possible miscarriage of justice claims
arising from the district court's conclusion that certain claims were
procedurally barred.   Because Toney did not argue that actual innocence or
miscarriage of justice excused the default of any of these claims, a
reconciliation of this issue was not necessary to the determination of this
case by the district court and we therefore do not consider any possible
error in the district court's discussion.


                                      VII.


     Toney   next   contends   that   he   was   erroneously   sentenced    to   two
consecutive life sentences in violation of his due process rights.                At
sentencing, the judge imposed a term of life imprisonment on each of the
two counts for which Toney was convicted, rape and sodomy.             The court
stated that the applicable statute, Mo. Rev. Stat. § 558.026.1, "provides
the sentence to be consecutive and mandatory, not even optional."          Although
the state appellate court upheld this ruling, State v. Toney, 680 S.W.2d
at 273-74, the Missouri Supreme Court later effectively overruled this
conclusion and held that § 558.026.1 allows the trial court discretion in
deciding whether to impose sentences concurrently or consecutively where
the relevant counts of conviction are crimes of a sexual nature, committed
at the same time.   See Williams v. State, 800 S.W.2d 739, 740 (Mo. 1990);
State v. Burgess, 800 S.W.2d 743, 744 (Mo. 1990).          Toney claims in his
petition that he is entitled to have his case remanded to the state court
for a discretionary determination of whether his sentence should run
concurrently or consecutively.    The magistrate judge concluded, as adopted
by the district court, that although the trial judge may have misapplied
the state sentencing procedures, this claim is not cognizable in a § 2254
proceeding and should be dismissed.        We disagree.


     While we recognize that "it is not the province of a federal habeas
court to reexamine state-court determinations on state-law




                                      -10-
questions," Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), it is important
to   note   the   particular     constitutional       difficulties   encountered      with
application of state sentencing statutes.             In Hicks v. Oklahoma, 447 U.S.
343, 346 (1980), the Supreme Court held that when a state creates a
"substantial      and    legitimate   [sentencing]      expectation"    an   "arbitrary
deprivation"      of    such   entitlement   may   create   an   independent     federal
constitutional violation.


      Whether Missouri state court sentencing judges have the discretion
to consider consecutive or concurrent sentences is a question of state law
which only the state can decide.         Here, the Missouri sentencing statutes
are clear.    The state legislature, as interpreted by the Missouri Supreme
Court, conclusively established that under § 558.026.1, a defendant will
be   sentenced    to    either   consecutive     or    concurrent    sentences   at    the
discretion of the sentencing court.          See Williams v. State, 800 S.W.2d at
740; State v. Burgess, 800 S.W.2d at 744.               Toney has a constitutionally
protected liberty interest in the sentence resulting from the exercise of
this discretion, and that liberty interest is one that the Fourteenth
Amendment preserves against arbitrary deprivation by the State.                  In this
case, the sentencing judge, erroneously believing he had no discretion to
do otherwise, imposed two consecutive life sentences.                Such an arbitrary
disregard of Toney's right to liberty is a denial of due process of law.
The case is remanded to the district court with directions that, after the
hearing we have heretofore required is concluded and made part of the
court's final order, the district court shall remand to the state court for
a discretionary determination of whether Toney's sentence should run
concurrently or consecutively.


                                         VIII.


      Finally, Toney argues that the district court erred in adopting the
magistrate judge's denial of a motion to now conduct




                                         -11-
DNA and other scientific testing of various exhibits introduced at Toney's
state court trial.     Such testing was not available at the time of the
trial.    Toney claims that he has not even been able to obtain the samples
from the State in order to perform any kind of testing -- blood-typing or
DNA fingerprinting.   He claims that such testing may well exonerate him of
the crime.   The State has acknowledged that the exhibits from Toney's state
criminal trial remain in the custody of St. Louis County authorities and
are available for testing if ordered by the court.   However, the State has
refused this court's request to voluntarily make such exhibits available
to Toney's counsel.


     The magistrate judge's decision, as adopted by the district court,
concluded that Toney was not entitled to access to the state exhibits for
the purpose of DNA testing because such testing had no relationship to any
claim before the court and for the public policy reason that granting the
motion "would open the flood gates for DNA testing . . . in every rape case
where the individual is still serving time."


     Rule 6(a) of the Rules Governing Section 2254 Cases expressly
provides for discovery in habeas proceedings if the petitioner shows "good
cause" for discovery.2     The determination of whether to grant leave is
within the discretion of the district court.   According to the Commentary
to Rule 6:


     [W]here specific allegations before the court show reason to
     believe that the petitioner may, if the facts are fully
     developed, be able to demonstrate that he is confined illegally
     and is therefore entitled to relief,




     2
         Rule 6(a) provides:

     A party shall be entitled to invoke the processes of
     discovery available under the Federal Rules of Civil
     Procedure if, and to the extent that, the judge in the
     exercise of his discretion and for good cause shown
     grants leave to do so, but not otherwise.

                                    -12-
it is the duty of the court to provide the necessary facilities and
procedures for an adequate inquiry.


Although it is generally within a district court's discretion to grant or
deny discovery requests under Rule 6, a court's denial of discovery is an
abuse of discretion if discovery is "indispensable to a fair, rounded,
development of the material facts."    East v. Scott, 55 F.3d 996, 1001 (5th
Cir. 1995) (quoting Townsend v. Sain, 372 U.S. 293, 322 (1963)).


     Given the nature of Toney's allegations, we conclude that Toney has
shown good cause for discovery under Rule 6.   Toney has claimed throughout
his postconviction proceedings that he is innocent of the crime and that
his counsel was ineffective for failing to pursue his claim of mistaken
identity or to obtain state's evidence so as to conduct scientific
examinations.    In order to prove the prejudice prong of his ineffective
assistance claim, Toney is entitled to have access to this evidence through
discovery.      The district court abused its discretion in denying his
discovery requests.


                                      IX.


     For the reasons stated above, we reverse the district court's denial
of Toney's motion for an evidentiary hearing and request for discovery.
We also reverse the district court's conclusion with respect to Toney's
sentencing.   The remaining bases of appeal are affirmed.   Accordingly, the
case is affirmed in part, reversed in part and remanded to the district
court for further proceedings consistent with this opinion.




                                      -13-
A true copy.


     Attest:


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




                            -14-
