                                   ___________

                                   No. 95-2250
                                   ___________

Michael Wayne, also known as           *
Michael Wayne Fenney,                  *
                                       *
          Plaintiff - Appellant,       * Appeal from the United States
                                       * District Court for the
     v.                                * District of Minnesota.
                                       *
Dennis Benson, Warden,                 *
                                       *
          Defendant - Appellee.        *


                                   ___________

                      Submitted:   February 16, 1996

                          Filed:   July 12, 1996
                                   ___________

Before McMILLIAN, LAY, and JOHN R. GIBSON, Circuit Judges.

                                   ___________

JOHN R. GIBSON, Circuit Judge.


     Michael Wayne, also known as Michael Wayne Fenney, appeals from the
district court's1 denial of his petition for a writ of habeas corpus
brought under 28 U.S.C. § 2254 (1994).       Wayne is serving a term of life
imprisonment following his convictions for murder in Minnesota state court.
Wayne argues that he did not receive a fair trial because the State failed
to disclose two pieces of evidence favorable to him.      In addition, Wayne
makes seven other arguments in a pro se brief.     We affirm the judgment of
the district court.




     1
     The Honorable David S. Doty, United States District Judge for
the District of Minnesota.
        Mona Armendariz was murdered during the early morning of July 29,
1986 in her trailer home in the Janesville Trailer Court of Janesville,
Minnesota.     She was stabbed thirteen times and her throat was cut.    The
State charged Wayne with the murder and his defense at trial was that
someone else, possibly Steven Sack, committed the murder.    Wayne was found
guilty and was sentenced to life in prison.


        Some three and a half years after Wayne's trial, Carolann Eggert gave
a statement to an investigator that Steven Sack came to her home in
Janesville with Wade Abraham at two o'clock in the morning on July 29,
1986.     Eggert said Abraham "pound[ed] through [her] front door and went
directly to [her] son William's bedroom door and pounded on it."        When
Eggert confronted Abraham about coming into her home at two o'clock in the
morning, Abraham stated that "something terrible has happened."     Eggert's
son William got up and spoke to Abraham outside of Eggert's hearing.      At
this time Eggert saw Sack standing in her home, with blood on his shirt,
pants, and hands, holding a bloody butcher knife.       She stated that the
knife was eight to ten inches long and about one and a half inches wide.
Abraham and Sack wanted to use Eggert's washing machine to wash Sack's
bloody clothes.    Sack went into Eggert's kitchen and washed the blood off
of the knife in her kitchen sink.      Finally, Abraham and Sack left after
Eggert angrily confronted them and told them to go to Abraham's aunt's
house.    Eggert stated that this visit upset all of her children and that
she talked to her sons Scott, William, and Mark to settle them down.


        There is considerable dispute over when Eggert first told someone
else about Abraham and Sack's visit to her house.     Eggert claims that she
told Sheriff Edward Kubat her story when he came to serve a subpoena on her
son before Wayne's trial.    Kubat denies that Eggert ever told him anything
about Sack being at her home with a knife and blood on his clothes.   Eggert
also claims that before Wayne's trial she told a Janesville city police
officer




                                     -2-
about Sack's visit, but she cannot remember the police officer's name.
Wayne has produced no evidence as to the identity of the police officer.
Other than Sheriff Kubat and the city police officer, Eggert does not claim
to have told her story to anyone else before or during Wayne's trial.


      After his trial, Wayne also discovered that the Janesville police had
found a knife on the roof of Ann Armendariz's trailer home.            Ann Armendariz
is the sister-in-law of the murder victim and a resident of the Janesville
Trailer Court.     On September 3, 1986, approximately five weeks after Mona
Armendariz's murder, one of Ann's children found a knife on top of Ann's
trailer home.      Without disturbing the knife, Ann called the Janesville
police who sent an officer out to get the knife.           The officer took pictures
of   the   knife   and   measured   it   before   taking   it   back   to   the   police
department.


      The police officer described the knife as a common paring knife which
could be found in any kitchen.       He also stated that there was nothing about
the knife that would indicate its owner, where it came from, or how long
it had been on Ann Armendariz's roof.        The officer observed no blood on the
knife, nor any rust or dirt, even though it was exposed to the weather on
the roof.    The knife's blade was two and thirteen-sixteenths inches long.


       Wayne filed a petition for post-conviction relief in Minnesota state
court based on newly discovered evidence including Eggert's statement.               The
trial court denied Wayne's petition and he appealed.            The Minnesota Supreme
Court affirmed the trial court's denial of Wayne's petition.                  Wayne v.
State, 498 N.W.2d 446 (Minn. 1993).


      In affirming the denial of Wayne's petition for post-conviction
relief, the Minnesota Supreme Court referred to the questionable nature of
the Eggert testimony, analyzing its




                                          -3-
credibility in detail, and stated that Eggert's statement was doubtful.
Id. at 448.   First, the court stated that Eggert's story conflicted with
those of her sons.     Eggert's sons William and Mark both testified that
while Abraham and Sack visited their home the night of the murder, their
mother was asleep during the visit.       Id.    The sons never mentioned any
blood on Sack in their testimony.     Id.       Second, the court stated that
Eggert's story was less credible because she failed to come forward with
it earlier.   Id.    The court pointed out that Eggert did not reveal her
story about Sack, even though she kept up with Wayne's trial.               Id.
Finally, even assuming Eggert's story to be true, the court stated that it
was highly unlikely that the eight-inch-long butcher knife, which Eggert
saw in Sack's possession, was the murder weapon.       Id.   At Wayne's trial,
a forensic pathologist testified that the murder weapon probably had a
blade about one and a half inches long and one-half inch wide.        Id.    In
light of these contradictions, the Minnesota Supreme Court concluded that
"Eggert's testimony would almost certainly not change the verdict" of
Wayne's trial, and that "the trial court did not abuse its discretion in
deciding that [her testimony] would not produce a different and more
favorable result at a new trial."   Id.


     After his unsuccessful appeal to the Minnesota Supreme Court, Wayne
filed this petition for a writ of habeas corpus in the district court.      His
petition was referred to a magistrate judge2 who prepared a report and
recommendation.     The magistrate judge found that Eggert never told her
story to Sheriff Kubat, a Janesville police officer, or anyone else
connected with the State before the end of Wayne's trial.           The judge
concluded that even if Eggert's statement had been presented at Wayne's
trial, there was no reasonable probability that there would have been a
different result.    The judge stated that the credibility of Eggert's




     2
     The Honorable Floyd E. Boline, United States Magistrate Judge
for the District of Minnesota.

                                    -4-
statement was diminished by the passage of time, her history of mental
illness, and the obvious inconsistencies between her story and the other
evidence in the case.    Finally, the judge concluded that there was nothing
about the paring knife which would have helped prove Wayne's guilt or
innocence and, therefore, its disclosure would not have changed the result
of Wayne's trial.   The magistrate judge recommended that the district court
deny Wayne's petition.    The district court adopted the magistrate judge's
report and recommendation, and Wayne appeals.


                                      I.


     Wayne argues that the State violated his right to due process by
failing to disclose Eggert's statement to him before his trial.   He asserts
that the State knew about Eggert's statement before his trial and that the
statement would have helped him prove his innocence at trial.


     Under the Due Process Clause of the Fourteenth Amendment, the State
has a duty to disclose evidence which is favorable to Wayne and material
to the issue of his guilt.   Brady v. Maryland, 373 U.S. 83, 87 (1963).   To
prove a violation of this duty, Wayne must show that: (1) the State
suppressed evidence; (2) the evidence was favorable to him; and (3) the
evidence was material to the issue of his guilt.   United States v. Thomas,
940 F.2d 391, 392 (8th Cir. 1991).    Favorable evidence is material to the
issue of Wayne's guilt if there is a reasonable probability that, had the
evidence been disclosed to him, the result of his trial would have been
different.   Kyles v. Whitley, 115 S. Ct. 1555, 1565 (1995) (quoting United
States v. Bagley, 473 U.S. 667 (1985)).    There is a reasonable probability
of a different result if the State's suppression of the favorable evidence
undermines our confidence in the outcome of Wayne's trial.     Id. at 1566.




                                     -5-
                                     A.


     The State argues that it did not violate its duty to disclose
Eggert's statement because it did not know about her statement until after
Wayne's trial.    The district court adopted the magistrate judge's factual
finding that the State did not know about Eggert's statement until after
Wayne's trial.    We must accept this factual finding unless it is clearly
erroneous.   Fed. R. Civ. P. 52(a); Anderson v. City of Bessemer City, 470
U.S. 564, 573-74 (1985).


     Eggert claims that she told her story about Sack to Sheriff Kubat and
an unnamed Janesville police officer before Wayne's trial.     Sheriff Kubat
denies that Eggert told him anything relating to Mona Armendariz's murder.
Eggert has also failed to identify the Janesville police officer she told
her story to, and Wayne has produced no evidence as to the identity of the
police officer.   Eggert has never claimed to have told her story to anyone
else connected with the State before Wayne's trial.    On this evidence, the
district court's factual finding that the State was not aware of Eggert's
statement before the end of Wayne's trial is not clearly erroneous.
Therefore, the State did not violate its duty to disclose Eggert's
statement.


     In addition to the district court's factual finding, the state trial
court also concluded that Eggert lacked credibility with respect to her
assertion that she told Sheriff Kubat and a Janesville police officer about
Sack's visit before Wayne's trial.         We must give state court factual
findings a presumption of correctness on federal habeas review.    28 U.S.C.
§ 2254(d) (1994); Prewitt v. Goeke, 978 F.2d 1073, 1076 (8th Cir. 1992).
The district court could well have rested its analysis on the state court's
finding, as Wayne has established none of the circumstances enumerated in
section 2254(d) that overcome the presumption of correctness, nor has he
produced convincing evidence that the state




                                     -6-
court's factual determination was erroneous.     28 U.S.C. § 2254(d).


                                      B.


        Even assuming that the State knew of Eggert's statement before
Wayne's trial, failure to disclose her statement does not undermine our
confidence in the outcome of Wayne's trial.          Eggert's statement is
substantially contradicted by evidence presented at Wayne's trial or
available at the time of his trial.


        Eggert's son Mark testified at the grand jury hearing conducted
before Wayne's trial.   Mark, who lived with his mother, testified that Sack
arrived at their house alone just after midnight in the early morning of
July 29, 1986, and that Sack stayed and watched television with him until
five o'clock in the morning.    Mark further testified that Abraham came to
the house about a half-hour to an hour after Sack and that Abraham stayed
and slept in the house until at least five o'clock when Mark went to bed.
When asked about his mother, Mark stated that she went to bed around nine
o'clock and was asleep when Abraham and Sack came to the house.   Mark never
mentioned any blood on Sack or that Sack was holding a butcher knife.


        Eggert's son Scott also testified before the grand jury.        Scott
stated that he went to bed around 11:30 P.M. on July 28, 1986, and that he
never saw Sack at the house.


        Eggert's son William testified at the grand jury hearing and at
Wayne's trial.    At the grand jury hearing William testified that he spoke
for ten minutes with Abraham sometime late during the night of July 28,
1986.    He stated that Abraham spoke for five minutes with Sack, after which
William went back to his bedroom.       William did not mention seeing his
mother awake when he saw Abraham and Sack at their house, nor did he
mention a knife or any blood on Sack.




                                     -7-
        At Wayne's trial, William testified that sometime during the early
morning of July 29, 1986 Abraham came over to his house to talk to him and
that Sack arrived at his house sometime after Abraham.             William testified
that Sack appeared "pitch white" and "really scared," and that Sack began
to sharpen a knife.          William stated that Sack wanted to wash his clothes
because Sack said that there was "mud on them or something."                  Finally,
William testified that Abraham and Sack slept overnight at his house and
that Abraham left at seven or eight o'clock in the morning, while Sack left
at five or six in the morning.3


        The   grand   jury    testimony   of   Eggert's   three   sons   substantially
contradicts her testimony.         Mark told the grand jury that his mother was
asleep when Abraham and Sack visited their house in the early morning of
July 29, 1986.        William never mentioned his mother when he described
Abraham and Sack's visit, even when he was asked specifically about his
mother.       None of Eggert's sons mentioned Sack being covered in blood or
possessing a knife.      Eggert testified that the commotion surrounding Sack's
bloody visit woke up everyone in the house.                 However, her son Scott
testified that he went to bed at 11:30 P.M. on July 28, 1986 and that he
never saw Sack at the house.        While Eggert testified that she told Abraham
and Sack to leave and that they did as she asked, Mark told the grand jury
that Sack sat up and watched television with him until five o'clock in the
morning and that Abraham slept at the house until at least five o'clock in
the morning.     Eggert's testimony about her angry confrontation with Abraham
and Sack is flatly contradicted by the grand jury testimony of her three
sons.




        3
      Wayne called William to testify at his trial. The prosecutor
thoroughly cross-examined William over the differences between his
testimony before the grand jury and at Wayne's trial.       William
could not explain the differences and admitted at the trial that he
was having "a lot of difficulty with his memory" and that his
memory was probably better earlier than it was at trial.

                                           -8-
        William's      trial     testimony      also    largely    contradicts     Eggert's
testimony.       While William did testify that Sack had a knife and that he
wanted to wash his clothes, William never mentioned the presence of his
mother, much less an angry confrontation between his mother and Sack and
Abraham, or blood on Sack's clothes.


        In addition to the contradictory testimony of Eggert's three sons,
the trial testimony of Doctor Lindsey Thomas also contradicts Eggert's
story.    Dr. Thomas, a forensic pathologist, conducted the autopsy of Mona
Armendariz.      Dr. Thomas testified that the stab wounds on Mona Armendariz's
body were consistently about one-half inch in width and one and a half
inches in depth and that a knife with a blade approximately one and a half
inches long and one-half inch wide probably made all of the stab wounds.
Dr. Thomas testified that a larger knife could have produced the stab
wounds, but that it was unlikely that someone could make so many wounds
that are consistently the same depth with a larger knife.                  Thus, even if
Eggert saw Sack with a bloody butcher knife with a blade eight to ten
inches long and one and a half inches wide, Dr. Thomas testified that it
was unlikely that such a large knife could have been the one used to kill
Mona Armendariz.        In light of all of this contrary testimony, we conclude
that Eggert's testimony, even if suppressed, does not undermine our
confidence in the outcome of Wayne's trial.


                                             II.


        Wayne    argues   that    the   State    should   have    disclosed   to   him    its
discovery of the knife found on top of Ann Armendariz's trailer home.
There    is     no   evidence,    however,      which   connects    the   knife    to    Mona
Armendariz's murder.           First, the knife was discovered approximately five
weeks after the murder, and there was no indication how long it had been
on the roof.         Second, there was nothing about the knife indicating where
it came from or who owned it.           Third, while there was no evidence linking
the knife to any




                                             -9-
murder, there was evidence that it could not have been the knife used in
Mona Armendariz's murder.    Dr. Thomas testified that it was unlikely that
a knife with a blade longer than an inch and a half was used to murder Mona
Armendariz.   The knife's blade was almost three inches long, making it
unlikely that it was the murder weapon.     The State's failure to disclose
its discovery of this knife does not undermine our confidence in the
outcome of Wayne's trial.4


                                     III.


     Wayne also submitted a pro se brief along with the brief submitted
by his appointed counsel in his appeal to this court.    This court granted
leave to file this brief, although generally we do not consider pro se
briefs when a party is represented by counsel.   Hoggard v. Purkett, 29 F.3d
469, 472 (8th Cir. 1994).    We have considered the arguments in Wayne's pro
se brief and they are without merit.


     Accordingly, we affirm the judgment of the district court denying
Wayne's petition for a writ of habeas corpus.


     A true copy.


            Attest:


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




        4
        Kyles requires us to consider collectively all of the
evidence that the State failed to disclose to Wayne when we
determine whether the undisclosed evidence undermines our
confidence in the outcome of Wayne's trial. 115 S. Ct. at 1567.
While the district court found that the State did not know about
Eggert's statement before Wayne's trial, and that finding is not
clearly erroneous, we hold that the State's failure to disclose
both Eggert's statement and the knife does not undermine our
confidence in the outcome of Wayne's trial.

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