                                    ___________

                                    No. 95-3932
                                    ___________

Donald E. Reese,                         *
                                         *
            Appellant,                   *
                                         *    Appeal from the United States
     v.                                  *    District Court for the
                                         *    Eastern District of Missouri.
Paul Delo, Superintendent,               *
Potosi Correctional Center,              *
                                         *
            Appellee.                    *
                                    ___________

                    Submitted:      June 10, 1996

                          Filed:    September 4, 1996
                                    ___________

Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and
      DOTY,* District Judge.
                               ___________


WOLLMAN, Circuit Judge.


     Donald E. Reese, a Missouri inmate sentenced to death, appeals the
district court's1 denial of his petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254.       We affirm.


                                   I.   Background


     On March 25, 1988, Reese was convicted of two counts of first-degree
murder.   The details of the crime were set forth by the Missouri Supreme
Court in State v. Reese, 795 S.W.2d 69 (Mo. 1990) (en banc), cert. denied,
498 U.S. 1110 (1991), and are summarized




     *The HONORABLE DAVID S. DOTY, United States District
     Judge for the District of Minnesota, sitting by
     designation.
     1
      The Honorable Charles A. Shaw, United States District Judge
for the Eastern District of Missouri.
here.


        On September 9, 1986, four bodies were discovered at the Marshall
Junction Wildlife Reserve shooting range.    After the investigating officers
learned that Reese had purchased the type of ammunition used in the
killings, they conducted several interviews with him, as well as a
consensual search of his home.    Following his arrest on September 15, Reese
asked the officers whether he should retain an attorney.        The officers
replied that they could not advise him on the matter but that an attorney
could be furnished if he wanted one.    Reese replied, "Forget it," whereupon
he was read his Miranda rights.      After waiving his rights, Reese talked
with the officers for approximately three hours and denied participation
in the crime.    Later that evening he was arraigned on a complaint charging
him with multiple counts of first degree murder, armed criminal action, and
robbery.    He was advised of his right to retain an attorney, right to be
assigned an attorney if he could not afford one, and right to remain
silent.    A preliminary hearing was set for September 18.


        The next morning, Reese again waived his Miranda rights and refused
an officer's offer to telephone an attorney for him by replying, "I didn't
do it and I don't need an attorney and I don't want one."     An officer then
advised Reese that he needed to have an attorney for the preliminary
hearing and that that policy required him to fill out a form to determine
whether he was financially eligible for the appointment of the public
defender.    Reese continued to talk to the officers for approximately one
hour.    He again denied his involvement in the crime and reaffirmed that he
did not need an attorney.


        The interview resumed later that afternoon after Reese confirmed that
he had waived his Miranda rights.      During the course of the interview,
Reese was visited by his wife and his son.    At approximately 6:00 p.m. that
evening, Reese admitted that he killed




                                     -2-
the four men.    His statement was reduced to writing and included an express
waiver of his Miranda rights.          Reese later led the officers to the place
where he had hidden the murder weapon and the victims' wallets and money.



     Reese was charged with two counts of first-degree murder.              After the
jury found him guilty, the state presented evidence at the penalty phase
of the trial that Reese had attended the funeral of two of the victims and
had posed as a family friend despite the fact that he did not know the
victims.   John Lewis, Reese's cellmate, testified that Reese had told him
that he went to the shooting range intending to get money.                 Reese also
related the details of the crime to Lewis.           Despite Reese's presentation
of mitigating evidence through family members and other witnesses, the jury
recommended a sentence of death for both offenses, citing as aggravating
circumstances that Reese had murdered the victims for the purpose of
receiving money and during the course of a robbery.                   The trial court
sentenced Reese to death for the murder of James Watson and to life
imprisonment for the murder of Christopher Griffith, after taking into
consideration     the   fact    that   Griffith's    family     had   expressed   their
opposition to the death penalty.


     On November 14, 1988, Reese filed a motion for post-conviction relief
pursuant to Missouri Supreme Court Rule 29.15.           On July 20, 1989, the post-
conviction court denied Reese's request for relief after conducting an
evidentiary     hearing.       Reese   then   appealed   both   his   convictions   and
sentences, along with the denial of post-conviction relief, to the Missouri
Supreme Court.      See Reese, 795 S.W.2d 69.            The Missouri Supreme Court
affirmed his convictions, sentences, and the denial of post-conviction
relief in the consolidated appeal.            Id.


     Reese then petitioned for relief in federal district court.                     On
October 24, 1995, the district court denied Reese's second amended petition
for habeas corpus and granted him a certificate of




                                          -3-
probable cause to appeal.        On appeal Reese presents most of the claims
denied by the district court.


                  II.   Ineffective Assistance of Counsel


      Reese first claims that his trial attorney was ineffective in failing
to:   (1) investigate his background, psychological impairments, and family
history;   (2)   withdraw   as    counsel    or   preserve   the   attorney-client
relationship when it began to break down before trial; and (3) investigate
and prepare the penalty phase evidence.


      We review ineffective assistance claims de novo, as they present
mixed questions of law and fact.      Laws v. Armontrout, 863 F.2d 1377, 1381
(8th Cir. 1988) (en banc), cert. denied, 490 U.S. 1040 (1989).                 The
district court held that Reese's ineffective assistance claims were
procedurally barred because he failed to advance his claims on appeal from
the denial of his Rule 29.15 motion for post-conviction relief.          We agree.
In Missouri, a claim presented in a Rule 29.15 motion but not advanced on
appeal is considered abandoned.       Sloan v. Delo, 54 F.3d 1371, 1382 (8th
Cir. 1995) (citing O'Neal v. State, 766 S.W.2d 91, 91 (Mo.) (en banc),
cert. denied, 493 U.S. 874 (1989)), cert. denied, 116 S. Ct. 728 (1996).



      Reese's contention that the ineffective assistance claims are not
barred because he raised them in his state habeas corpus petition pursuant
to Missouri Supreme Court Rule 91 is without merit.            See State ex rel.
Simmons v. White, 866 S.W.2d 443, 444 (Mo. 1993) (en banc) (petitioner who
fails to advance claim on appeal cannot seek review in Rule 91 petition
unless claim presents jurisdictional issue or circumstances so "rare and
extraordinary" that manifest injustice will result).         Although the Missouri
courts have not yet determined what circumstances constitute manifest
injustice, we have held that "state habeas proceedings are not to




                                       -4-
be used in lieu of Rule 29.15 unless the petitioner can demonstrate that
the claim was not `known to him' when he filed his 29.15 motions."            Sloan,
54 F.3d at 1382 (citing Simmons, 886 S.W.2d at 446-47).              Clearly, this is
not the case here.    Likewise, Reese's contention that the claims are not
barred because they were raised in his motion to recall the mandate is
without merit, for "a motion to recall the mandate cannot be used to allege
ineffective assistance of trial counsel."        Nave v. Delo, 62 F.3d 1024, 1031
(8th Cir. 1995), cert. denied, 116 S. Ct. 1837 (1996).


      Reese further argues that his claims are not procedurally barred
because Rule 29.15 was designed to thwart federal habeas review of his
state convictions and is thus invalid.        "[A] procedural default under state
law may constitute independent and adequate state law grounds precluding
federal review."   Oxford v. Delo, 59 F.3d 741, 744 (8th Cir. 1995) (citing
Harris v. Reed, 489 U.S. 255, 262 (1989)), cert. denied, 116 S. Ct. 1361
(1996).   The state procedural rule must be both firmly established and
regularly followed, however, to preclude federal review.               Id.   We have
previously rejected claims that Rule 29.15 is an inadequate state ground
to bar federal review.     See, e.g., Sloan, 54 F.3d at 1379-81 (time limit
procedures under Rule 29.15 adequate); Oxford, 59 F.3d at 745 (verification
requirement of Rule 29.15 was firmly established and regularly followed).
Moreover, Reese fails to even allege that any procedural requirement under
Rule 29.15 was not firmly established or regularly followed, so as to
preclude review of his claims.      See Oxford, 59 F.3d at 744-45.


      Because Reese's claims are procedurally defaulted, he must show cause
and actual prejudice from the alleged constitutional violations to warrant
federal review.    Forest v. Delo, 52 F.3d 716, 719 (8th Cir. 1995).            Reese
raises the ineffective assistance of his post-conviction appellate counsel
as   cause.   There   is   no   right   to    counsel   in   state   post-conviction
proceedings, however, Coleman v. Thompson, 501 U.S. 722, 752 (1991), and
thus a claim that post




                                        -5-
conviction appellate counsel was ineffective does not constitute cause for
default.     Lowe-Bey v. Groose, 28 F.3d 816, 819 (8th Cir.), cert. denied,
115 S. Ct. 674 (1994).       Because Reese has failed to overcome the procedural
bar, we decline to reach the merits of his ineffective assistance claims.


                            III.    Prosecutorial Misconduct


     Reese     next   raises        three   claims       of   prosecutorial      misconduct,
contending     that   the    prosecutor         failed   to   disclose    three     items    of
exculpatory evidence:              (1) a $500 payment to Reese's wife for her
assistance in obtaining Reese's confession; (2) a deal between the state
and Lewis, Reese's cellmate, for Lewis's testimony at the penalty phase;
and (3) that Griffith's family was opposed to the death penalty.                            The
district court held that the first two claims were procedurally defaulted
and that the third claim was without merit.


     Because Reese failed to bring his first two claims in Missouri state
court, he must establish cause for his default and prejudice before we will
address their merits.         Forest, 52 F.3d at 719.             To show cause for his
default, Reese alleges that his post-conviction appellate counsel was
ineffective and that Rule 29.15 is inadequate.                  We have already rejected
these grounds as cause for default.              Moreover, Reese's allegation that his
trial counsel was ineffective cannot constitute cause because Reese failed
to present this claim in state court.                 See Oxford, 59 F.3d at 747.


     Reese also alleges ineffective assistance of his appellate counsel
as cause.    Ineffective assistance of appellate counsel can constitute cause
for default.    Murray v. Carrier, 477 U.S. 478, 492 (1986).                    To prevail on
an ineffective assistance claim, Reese must show that his attorney's
performance was professionally unreasonable and that, but for his deficient
performance,    the   outcome        of   the    proceeding    would     have    likely   been
different.




                                                -6-
Griffin v. Delo, 33 F.3d 895, 900 (8th Cir. 1994) (citing Strickland v.
Washington, 466 U.S. 668, 694 (1984)). cert. denied, 115 S. Ct. 1981
(1995).


     To assess the effectiveness of appellate counsel's conduct, we must
examine Reese's underlying constitutional claims.   Reese must show that the
prosecutor suppressed evidence favorable to his defense that was material
to the question of guilt in order to establish a Brady violation.   Cornell
v. Nix, 976 F.2d 376, 382 (8th Cir. 1992) (en banc), cert. denied, 507 U.S.
1020 (1993); see also Brady v. Maryland, 373 U.S. 83, 87 (1963).      Reese
admitted at his post-conviction hearing that he was aware that the police
had offered his wife a reward if he confessed before trial.       Thus, his
claim that the prosecutor had suppressed the evidence is without merit, and
appellate counsel's failure to raise this claim was not unreasonable.


     Nor was appellate counsel's conduct unreasonable in failing to raise
an allegation that the state had an agreement with Lewis.      The district
court found there was ample evidence to refute Reese's claim of an
agreement.2   Because there was no agreement, Reese could not establish a
Brady violation; thus, appellate counsel acted reasonably in foregoing the
claim.


     We agree with the Missouri Supreme Court that Reese's contention that
the prosecutor violated Brady by failing to disclose that the Griffith
family was opposed to the death penalty has no merit.   Rejecting the claim
on Reese's direct appeal, the Missouri Supreme Court stated:




         2
       The district court pointed out that Lewis had denied the
existence of an agreement with the prosecution while under oath
during the penalty phase. In addition, he referred to a letter
apparently signed by the prosecutor which expressly stated,
"Although prior to his testimony we had promised Mr. Lewis nothing
for his testimony, it was his feeling that justice would have been
frustrated should he refuse to testify."

                                   -7-
     The opposition of the parents of one of the victims to capital
     punishment is not a material circumstance, and there was no
     violation of discovery principles in not disclosing this
     opposition. A criminal prosecution is a public matter and not
     a contest between the defendant and his victims, or their
     relatives.


Reese, 795 S.W.2d at 75.


     The parties do not dispute that the prosecutor knew about this
evidence and failed to disclose it to Reese.     However, no constitutional
violation occurs unless the withholding of such evidence denies the
defendant the right to a fair trial.   Walker v. Lockhart, 763 F.2d 942, 957
(8th Cir. 1985), cert. denied, 478 U.S. 1020 (1986).     In other words, if
the evidence would have affected the result of the trial, then the evidence
should have been disclosed.   Griffin, 33 F.3d at 904.    Because the state
court's determination on the materiality of evidence is a mixed question
of law and fact, our review is de novo.     Cornell, 976 F.2d at 382.   The
district court found that the outcome of the trial would not have been
affected by the evidence.   It stated:


     The result in the instant case was that the trial court was
     told of Griffin's [sic] family's opposition to the death
     penalty and reduced accordingly Petitioner's sentence for
     Griffith's death.    There is no indication that Griffith's
     family's views on the death penalty would have influenced the
     jury when determining Petitioner's fate for murdering Watson.


We agree with the district court.   Moreover, at least one circuit has held
that a petitioner is not entitled to present evidence that a victim's
relative is opposed to the death penalty.     See Robinson v. Maynard, 829
F.2d 1501, 1505 (10th Cir. 1987) (relevant mitigating evidence only
includes "that which applies to either the character or record of the
defendant or to any of the circumstances of the offense").




                                    -8-
                          IV.   Admission of Confession


       Reese argues that his constitutional rights were violated by the
improper admission of his confession.       He contends that his Fifth Amendment
rights were violated because both his confession and Miranda waivers were
involuntary.    In addition, he alleges that his Sixth Amendment right to
counsel was violated when police continued to question him after he filled
out an application requesting the public defender's services.          The Missouri
trial court found that Reese was fully aware of and understood his Miranda
rights, and that his waivers and confession were voluntary.


A.    Fifth Amendment


       We review questions of voluntariness de novo.        Starr v. Lockhart, 23
F.3d 1280, 1294 (8th Cir.), cert. denied, 115 S. Ct. 499 (1994).            A state
court's factual findings are entitled to a presumption of correctness.           28
U.S.C. § 2254(d).


       In determining whether a confession is voluntary, we consider the
totality of the circumstances.      Sumpter v. Nix, 863 F.2d 563, 565 (8th Cir.
1988).    To establish that his confession was involuntary, Reese had the
burden to show that his statements were the product of police coercion and
his   "`will   [was]    overborne   and   his   capacity   for   self-determination
critically impaired.'"     Id. (quoting Culombe v. Connecticut, 367 U.S. 568,
602 (1961)).


       Our review of the totality of the circumstances persuades us that
there was ample evidence to support the trial court's factual findings.
First, Reese was given his Miranda rights at least four times during the
course of the interviews with the officers.          The fact that such warnings
were given weighs in favor of a voluntariness finding.             United States v.
Mendoza, 85 F.3d 1347, 1350 (8th Cir. 1996) (citing Wayne R. LaFave &
Jerold H. Israel, Criminal Procedure 268 (1985)).




                                          -9-
     In rejecting Reese's claim that he did not voluntarily waive his
Fifth Amendment rights, the trial court pointed to Reese's receipt of
repeated Miranda warnings, his refusal of a police officer's offer to
telephone an attorney, and the lack of coercive police conduct.            In
addition, it relied on the fact that Reese was present at his arraignment
hearing and was aware of the seriousness of the charges filed against him.
The court also took into consideration that Reese was forty-three years
old, had a high school equivalency diploma, and was familiar with the
criminal justice system as he had been previously prosecuted for a felony.
See Reese, 798 S.W.2d at 83 (Appendix encompassing the trial court's
order).   Given these circumstances, we agree that Reese voluntarily and
knowingly waived his Miranda rights.


     Reese alleges that neither his Miranda waivers nor his confession was
voluntary because he was suffering from severe clinical depression, passive
dependency personality, and low intelligence.     He failed to present this
evidence in state court, however.    In any event, some mental impairments
alone do not render statements involuntary.     Jones v. Delo, 56 F.3d 878,
888 (8th Cir. 1995), cert. denied, 116 S. Ct. 1330 (1996).   There must also
be coercive police activity.   See LaRette v. Delo, 44 F.3d 681, 688-89 (8th
Cir.), cert. denied, 116 S. Ct. 246 (1995).


     We agree with the Missouri trial court that not only was there a lack
of coercion by the police, but "that the law enforcement authorities
displayed a painstaking regard for the defendant's rights from the time of
his arrest to his confession."    Reese, 795 S.W.2d at 84 (Appendix).     The
officers questioned Reese intermittently over a two-day period.           The
interviews were not excessive in length, and following each break in the
interrogation process, the officers informed Reese of his Miranda rights.
As the trial court found, "[Reese] was never deprived of food, drink or
toilet facilities.   He was never threatened or abused by the officers.    He
was allowed to visit with his family."




                                    -10-
      The trial court also rejected Reese's claim that the police coerced
him into making the confession by eliciting his wife's assistance in
obtaining the confession.    First, Reese's wife visited Reese at her own
request.    Second, she did not relay any statements made by Reese to the
police.    Third, Reese was aware that his wife had spoken to the police on
the matter because she told him that the police wanted her help in
obtaining his confession.   See Reese, 795 S.W.2d at 84 (Appendix).   Given
these circumstances, we agree with the Missouri trial court that Reese's
confession was voluntary.


B.   Sixth Amendment


      We also agree with the Missouri Supreme Court's conclusion that
Reese's Sixth Amendment rights were not violated when the police questioned
him after he filled out a request for assistance from the public defender.
The court stated:


      Counsel had not been appointed. The defendant's eligibility
      for the public defender's services had not been determined.
      There was no request for counsel during interrogation. There
      was, by contrast, an explicit waiver. The authorities made it
      clear to the defendant, numerous times, that counsel would be
      available to him if he would only say the word.      The mere
      mention of counsel by the defendant is not sufficient to
      preclude further police questioning. There must be a request.



Reese, 795 S.W.2d at 73 (internal footnote omitted).   Reese's application,
at the most, amounted to a request for counsel at the preliminary hearing.
An examination of the surrounding circumstances makes it clear that he did
not request an attorney during the interrogation process.      In fact, he
unequivocally stated that he did not want an attorney on several occasions.
Thus, Reese's Sixth Amendment claim necessarily fails.




                                    -11-
                         V.   Fourth Amendment Claim


     Reese alleges that the district court erred in finding that his
Fourth Amendment illegal arrest claim was procedurally barred.   He contends
that he was arrested without a warrant and without probable cause, and that
the evidence seized on account thereof should have been suppressed.    Reese
waived this claim in the trial court and also failed to raise it on appeal.
Thus, we will only review the merits of this claim if Reese establishes
cause for his default and prejudice as a result thereof.         Krimmel v.
Hopkins, 56 F.3d 873, 876 (8th Cir.), cert. denied, 116 S. Ct. 578 (1995).
Reese argues that cause is shown by his trial counsel's waiver of the claim
and by his appellate counsel's failure to present the claim on appeal.


     Although an ineffective assistance of counsel claim can constitute
cause for a default, it must first be presented to the state court in a
procedurally correct manner.    Reynolds v. Caspari, 974 F.2d 946, 948 (8th
Cir. 1992).     Reese did not present his claim that trial counsel was
ineffective in his post-conviction relief proceeding.    Thus, the claim was
defaulted and cannot form the basis for cause.    Id.


     Reese did properly present his ineffective assistance of appellate
counsel claim in his motion to recall the mandate.      See Hall v. Delo, 41
F.3d 1248, 1250 (8th Cir. 1994) (motion to recall mandate is proper
procedure to bring allegations of ineffective assistance of appellate
counsel).   Thus, his ineffective assistance of appellate counsel claim must
be evaluated under the Strickland test.     Reese must overcome the strong
presumption that his attorney's performance was objectively reasonable.
See Strickland, 466 U.S. at 689.


     Appellate counsel does not have a duty to raise every nonfrivolous
claim on appeal.   Sidebottom v. Delo, 46 F.3d 744, 759




                                    -12-
(8th Cir.), cert. denied, 116 S. Ct. 144 (1995).      Moreover, counsel has
discretion to abandon losing issues on appeal.   Horne v. Trickey, 895 F.2d
497, 500 (8th Cir. 1990).     To show that his attorney was deficient in
failing to raise the claim on appeal, Reese must show a reasonable
likelihood that, but for his attorney's error, the result on appeal would
have been different.    Blackmon v. White, 825 F.2d 1263, 1265 (8th Cir.
1987).


     A review of the record reveals that counsel raised twelve claims on
appeal.   It is apparent that counsel was familiar with Reese's case and
with the legal issues relevant to the appeal.    At the outset, we note that
appellate counsel's effectiveness should be evaluated in light of the
circumstances.   To present this claim on appeal, appellate counsel would
have had to overcome the hurdle of trial counsel's waiver.     If the claim
had been brought on appeal, it would have only been reviewed at the court's
discretion and for plain error.    Mo. Sup. Ct. Rule 29.12(b); 30.20.     In
these circumstances, counsel's decision to forgo the claim on appeal was
entirely reasonable.   See Pollard v. Delo, 28 F.3d 887, 889-90 (8th Cir.),
cert. denied, 115 S. Ct. 518 (1994) (appellate counsel not ineffective for
failing to raise claim for first time on appeal).                     Even if
we assume, arguendo, that appellate counsel's performance was deficient in
not presenting the claim on appeal, Reese would still not prevail on his
illegal arrest claim, for there was ample evidence in the record to
establish probable cause for Reese's arrest.3


     3
     The district court noted the following facts that were known
to the police officers at the time of the arrest:

     Petitioner was arrested when he refused to voluntarily
     accompany two law enforcement officers to the Squad
     headquarters to be fingerprinted and photographed. At
     that time, it was known that Petitioner had had a gun and
     ammunition similar to the kind used to kill four men, had
     recently used such ammunition, and smoked the same brand
     of   cigarettes   as   found   at   the   murder   scene.
     Additionally, several of his statements were inconsistent
with the facts. For example, he had recently purchased a car and
his explanation for the source of those funds, that he had been
paid early, was refuted by the foreman of his employer. He also
told the interviewing officers that he had sold his .30 caliber

                                   -13-
                         VI.    Instructional Error


     Reese presents two instances of instructional error.          First, he
contends that Missouri's reasonable doubt instruction violated his due
process rights because it allowed the jury to convict him based on a lower
burden of proof than that required by the Constitution.         We have held,
however, that such a challenge to Missouri's reasonable doubt instruction
is barred by Teague v. Lane, 489 U.S. 288 (1989).     Murray v. Delo, 34 F.3d
1367, 1382 (8th Cir. 1994), cert. denied, 115 S. Ct. 2567 (1995).


     Reese   also   argues     that   Missouri's   mitigating   circumstances
instruction violates Mills v. Maryland, 486 U.S. 367 (1988), and McCoy v.
North Carolina, 494 U.S. 433 (1990), in that it requires that a finding of
a mitigating circumstance must be unanimous.   This contention is meritless.
The Missouri Supreme Court has upheld the language of the mitigating
circumstances instruction as constitutional under Mills and McCoy.        See
State v. Petary, 781 S.W.2d 534, 542-44 (Mo. 1989) (en banc), vacated and
remanded, 494 U.S. 1075 (1990), reaff'd, 790 S.W.2d 243 (Mo.) (en banc),
cert. denied, 498 U.S. 973 (1990).       We have agreed with this holding.
Battle v. Delo, 19 F.3d 1547, 1562 (8th Cir. 1994), on reh'g, 64 F.3d 347
(8th Cir. 1995), cert. denied, 116 S Ct. 1881 (1996); Murray v. Delo, 34
F.3d at 1381.


     Reese further challenges the instruction on the ground that it states
that the jury "may also consider any [mitigating] circumstances," arguing
that the use of the permissive "may"




carbine to a stranger who approached him on the street outside a
thrift shop as he was unloading his guns from the trunk of his car.


                                      -14-
violates the holding of Hitchcock v. Dugger, 481 U.S. 393 (1987), that a
jury may not refuse to consider any relevant mitigating evidence.                      The
constitutional infirmity in the instruction in Hitchcock v. Dugger,
however, lay in the fact that it restricted the jury to considering only
the statutorily enumerated mitigating circumstances, in clear violation of
the Court's holdings in Skipper v. South Carolina, 476 U.S. 1 (1986);
Eddings v. Oklahoma, 455 U.S. 104 (1982); and Lockett v. Ohio, 438 U.S. 586
(1978).   We agree with the Missouri Supreme Court's holding in State v.
Petary,   781    S.W.2d   at    543,    that   no   such   infirmity   inheres   in   the
instruction challenged here, for there was no exclusion of any mitigating
evidence, and the jury was instructed that it must determine whether one
or more mitigating circumstances existed which outweighed the aggravating
circumstance      or   circumstances      found     to   exist.     Thus,   rather    than
foreclosing the jury from considering evidence of mitigating circumstances,
"`May consider' signifies that the jury is given discretion as to what
weight the mitigating evidence should receive."               Id.


                               VII.    Evidentiary Hearing


     Finally, Reese contends that the district court erred in refusing to
grant him an evidentiary hearing so that he could introduce evidence not
presented to the state court in support of the previous grounds raised in
this appeal.      A habeas petitioner who has failed to develop evidence in
state court is only entitled to an evidentiary hearing in federal court if
he can establish cause for his failure to do so and prejudice resulting
therefrom.      Sidebottom, 46 F.3d at 750; see also Keeney v. Tamayo-Reyes,
504 U.S. 1, 8-9 (1992).               No evidentiary hearing is warranted if the
petitioner's claims are procedurally barred or are without merit.                Wilson
v. Kemna, 12 F.3d 145, 146 (8th Cir. 1994).              Because all of Reese's claims
can be disposed of on the state record, the district court did not err in
its refusal to grant a hearing on the merits of the claims.




                                           -15-
                           VIII.   Conclusion


     The remaining issues that Reese presented to the district court have
either been abandoned on appeal or are without merit.


     The order denying the petition for writ of habeas corpus is affirmed.


     A true copy.


           Attest:


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




                                   -16-
