                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-4202
                                     ___________

Antoine L. Bracken,                       *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Eastern District of Missouri.
Dave Dormire,                             *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: November 14, 2000
                                  Filed: April 5, 2001
                                   ___________

Before McMILLIAN, RICHARD S. ARNOLD, and BOWMAN, Circuit Judges.
                           ___________

BOWMAN, Circuit Judge.

        Dave Dormire, Superintendent of the Jefferson City Correctional Center (the
State), appeals the District Court's conditional grant of habeas corpus relief to Antoine
Bracken, who was convicted in 1994 of second-degree murder and armed criminal
action and was sentenced to two concurrent terms of life imprisonment. The State's
appeal challenges the District Court's determination that Bracken's habeas petition
properly raised the claim upon which it granted relief—that the trial court did not
expressly find that Bracken's confession was voluntarily given before the court admitted
it into evidence. While Bracken presented a general argument in his petition that his
confession was "coerced," we find that he did not raise the voluntariness claim upon
which the District Court granted relief. The claim is procedurally defaulted and we
reverse the District Court.

                                           I.

       On December 28, 1992, a woman called the St. Louis Police Department to
report her belief that her two-year-old daughter had been sexually abused by a man
named Bryce Wade. An officer was dispatched to the residence and examined the girl
but could find no signs of abuse. The next day the young girl's mother brought the child
to the hospital for a more thorough examination, which proved inconclusive. Despite
the inconclusive examination, the child's father, Terrell Moore, threatened to kill Bryce
Wade for "raping" his daughter. Wade was last seen alive in late December 1992.

       On March 21, 1993, a burned body was discovered in an abandoned building.
The police analyzed the fingerprints from the body's unburned fingers and positively
identified the body as Bryce Wade. The fire investigator concluded that kerosene had
been poured on Wade and then was ignited, and the medical examiner determined that
Wade had been alive at the time he was burned.

       After receiving a tip from a relative of Terrell Moore that Antoine Bracken had
information regarding Wade's death, the police picked up Bracken for questioning.
Within three hours, Bracken had completed a videotaped confession in which he
admitted that he and Moore had encountered Wade, whom they overpowered and
dragged into an abandoned building. Bracken alleged that Moore struck Wade with a
board several times and then doused him with kerosene and lit him on fire. In addition,
detectives testified that Bracken took them to the abandoned building, re-enacted the
assault on Wade, and identified the kerosene heater containing the kerosene that Moore
had used in the assault.




                                           -2-
       The jury convicted Bracken, and the Circuit Court of the City of St. Louis
sentenced him to life imprisonment. Bracken sought post-conviction relief pro se under
Missouri Supreme Court Rule 29.15. Counsel was reappointed and filed an amended
Rule 29.15 motion on Bracken's behalf. The motion was denied and the Missouri
Court of Appeals summarily affirmed in a consolidated appeal. State v. Bracken, 916
S.W.2d 419, 420 (Mo. Ct. App. 1996) (per curiam). Bracken then filed a 28 U.S.C.
§ 2254 petition for habeas corpus relief. The District Court conditionally granted the
writ, and the State now appeals.

                                           II.

        The State argues that the District Court erred in granting relief because Bracken
did not include in his habeas petition the claim that the trial judge failed to expressly
rule on the voluntariness of his confession before admitting it into evidence as required
under Jackson v. Denno, 378 U.S. 368 (1964). In Sims v. Georgia, 385 U.S. 538, 544
(1967), the Supreme Court expounded on its holding in Jackson by stating that
"[a]lthough the judge need not make formal findings of fact or write an opinion, his
conclusion that the confession is voluntary must appear from the record with
unmistakable clarity." The State argues that Bracken's petition presented a substantive
claim that as a matter of law his confession was coerced and involuntary—a different
claim from the Jackson claim upon which the District Court granted conditional habeas
relief.

      Bracken first raised the general issue of the voluntariness of his confession
during the trial court's pre-trial suppression hearing. The court ultimately denied the
motion. The transcript of the suppression hearing is ambiguous, however, as to
whether the trial court denied the motion to suppress and admitted the contested
statements into evidence because it believed the statements were voluntary, or because
the court felt it was the province of the jury to decide whether the statements were


                                           -3-
voluntary.1 Despite the ambiguity, Bracken's trial counsel did not object to the court's
failure to find the voluntariness of the statements on the record with unmistakable
clarity as required under Jackson.

       At trial, the videotaped confession was admitted into evidence and played for the
jury. Bracken's trial counsel renewed his earlier, general argument that the statements
were involuntary, but did not argue that the trial court failed to find the voluntariness
of those statements on the record with unmistakable clarity.

       After Bracken was convicted, he filed a motion for a new trial. Again, Bracken
did not argue that the trial court failed to find the voluntariness of his statements on the
record with unmistakable clarity. The trial court denied the motion. Bracken's next
pleading—a consolidated appeal to the Missouri Court of Appeals—squarely raised the
procedural-voluntariness Jackson claim for the first and only time. The State opposed
the Jackson claim on the grounds that it was procedurally defaulted and meritless. The
Missouri Court of Appeals summarily denied Bracken's appeal.

     After his unsuccessful consolidated appeal to the Missouri Court of Appeals,
Bracken filed a 28 U.S.C. § 2254 habeas corpus petition with the District Court.


       1
           At the conclusion of the suppression hearing, the trial court stated:

       I think some of this has got to be a jury decision, the police officer came
       in and testified one way, and Mr. Bracken testified another way, and I
       wouldn't say Mr. Bracken or the police officer is lying but th[is] seems
       without something a little clearer I think it really gets down to a jury
       question, and the jury will have ample opportunity to hear from both sides
       . . . so I will probably overrule the Motion to Suppress Evidence
       Identification and at the same time we will let the jury make the
       determination.

Tr. at 100.
                                              -4-
Bracken's habeas petition abandoned the procedural-voluntariness Jackson claim
articulated in his consolidated appeal brief and returned to the general "coercion"
argument found in his initial motions and Rule 29.15 motion. The District Court
granted conditional relief on the Jackson claim and remanded to the trial court for a
post-hoc finding on voluntariness.

        The District Court relied on Ground Seven of Bracken's habeas petition to grant
relief on the Jackson claim. Mem. and Order at 10-14. Ground Seven states:

      Ground Seven (7):
      Petitioner's conviction and sentence was [sic] obtained in violation of
      petitioner's rights guaranteed by the United States Constitution as well as
      petitioner's rights guaranteed by the Missouri Constitution in that the trial
      court erred to the prejudice of petitioner by overruling petitioner's timely
      objection [to the] admission of State's exhibit No. 30, a video taped [sic]
      confession of petitioner. This confession was coerced by the police
      through physical abuse of petitioner and it was the fruit of [the] poisonous
      tree, being the result of an illegal arrest of petitioner. By so ruling, the
      court denied petitioner his right to a fair and impartial jury trial pursuant
      to the Sixth and Fourteenth Amendments of the United States Constitution
      and Articles I, Section 10, 18(a) and 22(a) of the Missouri Constitution.

      Exhaustion and Review: This issue was first presented to the Missouri
      Court of Appeals before bring [sic] it before this court, and the state
      courts have failed to address this issue under the proper standard of
      review, therefore, the presumption of correctness should not be afforded
      to the state court[] findings.

       After considering the words and meaning of Ground Seven, the District Court
concluded that the "sole claim" that was properly before it with respect to Ground
Seven was Bracken's "assertion that the trial court failed to make a specific finding
regarding the voluntariness of his confession, in violation of his due process rights
under the fourteenth amendment." Mem. and Order at 10. The District Court does not

                                           -5-
explain how it arrived at the conclusion that the Jackson claim was the "sole claim"
properly before it.

                                          III.

       We begin with a look at the plain language of Ground Seven. Ground Seven
claims that the "error" occurred when the trial court "overrul[ed] petitioner's . . .
objection [to the] admission of [the] . . . video taped [sic] confession." The objection
referred to in Ground Seven was the objection by Bracken's trial counsel originally
made at the close of the suppression hearing and renewed immediately before the
videotape was played for the jury. Bracken's trial counsel stated that "[m]y object[ion]
is based on my pretrial Motion [and] shall be continued through the actual trial." Tr.
at 100. The pretrial motion was written and submitted to the trial court before the court
denied Bracken's motion to suppress. It necessarily follows that the alleged Jackson
error could not be raised or preserved by way of reference to the pretrial motion, as the
alleged error had not yet occurred when the motion was submitted. Trial counsel failed
to supplement his general objection that relied on the pretrial motion with a specific
objection that alleged Jackson error. Ground Seven, therefore, does not reference the
Jackson issue.

        Earlier cases have made clear that "we will not consider issues or grounds for
relief that were not alleged in a prisoner's habeas petition." Frey v. Schuetzle, 78 F.3d
359, 360 (8th Cir. 1996) (citing Williams v. Lockhart, 849 F.2d 1134, 1139 (8th Cir.
1988)). Similarly, district courts must be as mindful as the appellate courts to
adjudicate on the merits only those claims that the prisoner properly raises and to avoid
those issues that have not been properly raised. After careful review of the entire
record, we find that the words and meaning of Ground Seven cannot support the
District Court's holding; the Jackson argument is simply not found anywhere in
Bracken's petition. While it is our longstanding practice to construe pro se pleadings
liberally, Jones v. Jerrison, 20 F.3d 849, 853 (8th Cir. 1994), we cross the permissible

                                           -6-
boundary when, as here, the petition cannot reasonably be construed as raising the
claim upon which the District Court granted relief.

       This is not a case where the petitioner inartfully raised factual issues that
implicated legal propositions that he could not reasonably be held responsible for
articulating. See White v. Wyrick, 530 F.2d 818, 819 (8th Cir. 1976) (per curiam)
(finding pro se petition should be "interpreted liberally and . . . should be construed to
encompass any allegation stating federal relief"). Not only is the applicable law not set
forth in Bracken's petition to the District Court, but more importantly, none of the facts
supporting the Jackson claim is set forth. This is noteworthy because the record shows
that not only was Bracken aware of the Jackson argument at the time that he filed his
§ 2254 petition, but he also had a pre-written Jackson argument at his disposal, i.e., the
Jackson claim was previously articulated in his consolidated appeal to the Missouri
Court of Appeals.

       We are also more apt to deem a claim preserved if the claim actually raised in
the habeas petition shares the same legal analysis and standards as the different claim
relied upon by the District Court, as here, or in the appeal. See Frey, 78 F.3d at 361
("[F]ederal courts should not grant habeas relief to a petitioner based upon a legal
theory that involves an entirely different analysis and legal standards than the theory
actually alleged by the petitioner."). Here, Bracken's claim that his confession was
coerced as set forth in Ground Seven is a different issue, governed by different
standards, from the procedural Jackson claim. Compare Jackson, 378 U.S. at 394
(holding that trial court must determine whether the confession was voluntary before
admitting it into evidence), and Sims, 385 U.S. at 544 ("[The judge's] conclusion that
the confession is voluntary must appear from the record with unmistakable clarity."),
with Reese v. Delo, 94 F.3d 1177, 1183 (8th Cir. 1996) ("In determining whether a
confession is voluntary, we consider the totality of the circumstances."), cert. denied,




                                           -7-
520 U.S. 1257 (1997), and Hall v. Wolff, 539 F.2d 1146, 1150-51 (8th Cir. 1976)
(citing expansive list of factors to be considered in evaluating voluntariness).2

                                           IV.

      We conclude that Bracken failed to raise the Jackson claim in his habeas petition
and that the District Court therefore lacked a proper basis for granting relief on that
claim. We therefore reverse.

RICHARD S. ARNOLD, Circuit Judge, dissenting.

       Mr. Bracken is in custody pursuant to a state trial that did not satisfy the
Constitution. There can be little argument on that point. Well-settled Supreme Court
precedent establishes that a defendant is entitled to have the trial court make a finding
of voluntariness with "unmistakable clarity," Sims v. Georgia, 385 U.S. 538, 544
(1967), before admitting his confession into evidence. Here, the trial judge left it
"ambiguous," ante at 3, whether such a finding was made. The Court does not even
discuss, much less accept, the State's position that the finding of voluntariness was
constitutionally sufficient. It holds instead that, under the circumstances, the District
Court had no authority to order the error corrected. I respectfully disagree.

                                            I.


      2
        The record shows that both parties framed the Ground Seven claim to the
District Court as the reasonableness of the trial court's voluntariness finding, not as the
Jackson claim upon which the District Court ultimately granted relief. There is no
indication that the District Court apprised the State that it was considering granting
relief on a basis not independently set forth in Bracken's petition, and the State was
therefore deprived of the opportunity to brief the Jackson issue or the attendant
procedural default issues.
                                            -8-
       The Court argues that the Jackson claim was outside the scope of Mr. Bracken's
habeas petition. Two different standards may govern this question. Where a petition
is prepared by counsel, a court "should only adjudicate those grounds upon which
habeas relief [is] actually sought." Frey v. Scheutzle, 78 F.3d 359, 361 n.2 (8th Cir.
1996). Relief is "actually sought" upon a given theory only if that theory is "explicitly
pled . . . as a separate ground for relief in . . . [the] petition." Id. at 361. While there
is no strict requirement that the legal basis of relief be articulated, we have endorsed
the view that petitions prepared by counsel "should" make that basis clear. See Frey
at 361; Jones v. Jerrison, 20 F.3d 849, 853 (8th Cir. 1994). But where a petitioner
without legal expertise prepares his own pleading, we must construe it "in a broad and
remedial manner." Crooks v. Nix, 872 F.2d 800, 804 (8th Cir. 1989). A pro se petition
should be “interpreted liberally and . . . should be construed to encompass any
allegation stating federal relief.” White v. Wyrick, 530 F.2d 818, 819 (8th Cir. 1976).
As the Tenth Circuit has said,

       [I]f the court can reasonably read the pleadings to state a valid claim on
       which the plaintiff could prevail, it should do so despite the plaintiff's
       failure to cite proper legal authority, his confusion of various legal
       theories, his poor syntax and sentence construction, or his unfamiliarity
       with pleading requirements.


Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Sanders v. United
States, 373 U.S. 1, 22-23 (1963) (Brennan, J.) (“The judge is not required to limit his
decision on the . . . [habeas] motion to the grounds narrowly alleged, or to deny the
motion out of hand because the allegations are vague, conclusional, or inartistically
expressed. He is free to adopt any appropriate means for inquiry into the legality of the
prisoner’s detention in order to ascertain all possible grounds upon which the prisoner
might claim to be entitled to relief.”).



                                            -9-
       A remedial interpretation of this kind often involves supplying legal or factual
statements that the petition should contain, or relaxing the rule that requires such
statements, where it reasonably appears that they were omitted merely for lack of legal
know-how. This follows naturally from the Supreme Court's statement in Haines v.
Kerner that a pro se habeas petition should be held to "less stringent standards than
formal pleadings drafted by lawyers . . .." 404 U.S. 519, 520 (1972). Although in
Haines it was the petitioner’s factual allegations that fell short of normal standards of
pleading, the interpretive principle invoked there applies as well to cases in which a pro
se litigant fails to make clear the legal theory under which relief is sought. For
example, in Hughes v. Rowe, 449 U.S. 5 (1980), the petitioner did not make explicit
whether he sought relief under the Eighth Amendment or under the Due Process
Clause, but he did allege, inter alia, that he had been placed in solitary confinement and
that he had been given no hearing on the disciplinary charges for which he received that
punishment. See 449 U.S. at 10 n.8. The Supreme Court reversed the dismissal of his
petition. See 449 U.S. at 10.

       A similar situation is presented when a misunderstanding of the law causes a pro
se petitioner to advance a claim upon which no relief can be granted, instead of a
closely related claim that has a possibility of success. White v. Wyrick, supra, is a
good example.3 In White, the petitioner requested relief on a basis not then cognizable
in federal habeas proceedings, namely that the evidence against him was insufficient
to support a verdict as a matter of state law. Applying the liberal-construction rule, we
instructed the District Court to treat that part of the petition as stating the federal due-



       1
        Contrary to the Court's view, ante at 7, there is no indication that White was a
case in which a petitioner's factual allegations needed only to be fitted out with a
federal legal theory. See White, 530 F.2d at 819-20 (Webster, J., dissenting) ("The
factual allegations contained in petitioner's section 2254 petition state no more than that
Judge Statler, the state trial judge, would support by opinion testimony his belief that
there was insufficient evidence to support the conviction.").
                                            -10-
process claim that the record contained no credible evidence to support the conviction.
See 530 F.2d at 819.

       Of course, a pro se pleading is not a magic hat out of which a court may pull any
claim it thinks should have been advanced. As the Tenth Circuit cautions, it is not the
place of a district court to act as the petitioner's advocate. See Hall, supra, at 1110.
We have adopted a somewhat more specific restriction, holding that “federal courts
should not grant habeas relief to a petitioner based upon a legal theory that involves an
entirely different analysis and legal standards than the theory actually alleged by the
petitioner.” Frey, 78 F.3d at 361. Yet while this general rule does set a limit to liberal
construction of the kind found in White, that limit dictates a reversal only where the
claim on which relief is granted shares no legal elements with any claim actually
alleged in the petition. In a pro se case presenting such a claim, the favored course is
to allow an amendment. Compare Frey, 78 F.3d at 361 ("On remand, Frey of course
may seek permission from the district court to amend his petition . . .."), with Sanders,
373 U.S. at 19 (prior to Haines; stating that a court had the power to deny a habeas
motion for conclusory allegations, but that "the better course might have been to direct
petitioner to amend his motion . . .."); Platsky v. C.I.A., 953 F.2d 26, 28 (2d Cir. 1991)
(In light of Haines, "[i]nstead of simply dismissing the complaints for naming federal
agencies as the defendants, it would have been appropriate for the district judge to
explain the correct form to the pro se plaintiff so that Platsky could have amended his
pleadings accordingly."); Rotolo v. Borough of Charleroi, 532 F.2d 920, 923 (3d Cir.
1976) (discussing application of Haines standard to pro se civil rights complaint;
holding that, while District Court correctly held that the complaint failed to state a
claim, plaintiff should have been allowed an opportunity for amendment).

        What the District Court did here is like what we did in White. Although Mr.
Bracken's Ground Seven did not clearly set forth the claim on which he was ultimately
granted relief, it did clearly allege a violation of his right against self-incrimination, and
it did the job of getting the District Court to examine whether that right was violated

                                            -11-
in the part of the trial in which the confession was admitted. Upon looking there, the
District Court found an error of that very kind, and construed the petition's allegations
as encompassing that error. This was within the rule of Frey, because the claim
actually pleaded was not "entirely different" from the claim on which relief was
granted. See 78 F.3d at 361. Although there is a clear distinction between a coerced-
confession claim and a procedural-right claim grounded in Jackson and Sims, the two
claims do share a common root in the Constitution's guarantee against coerced self-
incrimination. While a grant of leave to amend would also have been reasonable, I do
not believe that the District Court erred in taking the course that it did.

       Neither White nor Frey holds that a District Court may always grant relief on any
ground that shares some legal element in common with a claim actually asserted in the
petition. But although a narrower restriction may be appropriate in some cases, it is not
appropriate here. Like the right to counsel at the stages of trial and direct appeal, our
duty of liberally interpreting pro se habeas pleadings is founded on the concern that a
layman may have legal rights that he is not reasonably able to discover and defend, or
even to understand, without professional guidance. "That which is simple, orderly and
necessary to the lawyer, to the untrained layman may appear intricate, complex and
mysterious." Johnson v. Zerbst, 304 U.S. 458, 463 (1938). This concern has particular
force when, as here, the understanding of a right requires a layman to grasp a somewhat
technical point about the criminal trial process. If it were proved that Mr. Bracken
understood his Jackson claim, but deliberately abandoned it, the equities would be
different. See, e.g., Wong Doo v. United States, 265 U.S. 239 (1924). But that
inference is not sufficiently supported by the fact that he failed to copy the argument
from his former lawyer's brief.

        It appears unlikely that pro se litigants will be more careful in their pleadings
because of the Court's holding today, because as a class they are generally untrained
in the law. If, on the other hand, we affirmed the District Court, the State would merely
bear the expense of correcting a clear constitutional error. That is part of the cost a

                                          -12-
state undertakes in operating a system of courts. Under circumstances such as these,
if we find the case a close one, the weight that tips the scales should be our solicitude
to uphold the Constitution.

                                           II.

       I believe that the District Court was authorized to reach the Jackson claim. In
holding to the contrary, the Court adopts an overly narrow interpretation of a court's
duty liberally to construe pro se habeas petitions. I therefore respectfully dissent.

      A true copy.

             Attest:

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




                                          -13-
