                    United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                              ___________

                              No. 99-3281
                              ___________

Kenneth Kenley,                    *
                                   *
           Appellee,               *
                                   *   Appeals from the United States
     v.                            *   District Court for the
                                   *   Eastern District of Missouri.
Michael Bowersox,                  *
                                   *
           Appellant.              *

                             ____________

                              No. 99-3440
                             ____________

Kenneth Kenley,                    *
                                   *
           Appellant,              *
                                   *
     v.                            *
                                   *
Michael Bowersox,                  *
                                   *
           Appellee.               *
                              ___________

                         Submitted: June 15, 2000
                             Filed: September 28, 2000
                              ___________
Before BOWMAN, FLOYD R. GIBSON,1 and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                         ___________

BOWMAN, Circuit Judge.

       Michael Bowersox, on behalf of the state of Missouri, appeals from the decision
of the District Court granting Kenneth Kenley's petition for a writ of habeas corpus, see
28 U.S.C. § 2254 (1994 & Supp. IV 1998), on the ground that Kenley was denied his
right to due process in a state post-conviction hearing, one of twelve claims he raised
in his § 2254 petition. The court dismissed two of Kenley's claims without prejudice
and without considering the merits, denied the remaining nine claims, and granted
Kenley a certificate of appealability (COA) for eight of his claims. Kenley cross
appeals four of the denied claims for which the COA was granted. We affirm in part,
reverse in part, vacate in part, and remand for further proceedings.

                                           I.

       Kenley was convicted of capital murder and sentenced to death in Missouri state
court for killing Ronald Felts in the course of what can only be described as a criminal
rampage through southern Missouri and northern Arkansas that began the night of
January 3, 1984, and ended early the next morning.2 See State v. Kenley, 693 S.W.2d
79 (Mo. 1985) (en banc) (describing Kenley's crimes), cert. denied, 475 U.S. 1098
(1986). After the capital murder conviction and death sentence were affirmed on direct


      1
       Complications from an automobile accident have prevented Judge Gibson from
reviewing this opinion prior to its being filed.
      2
       Besides murdering Felts, Kenley robbed several businesses; kidnapped two
women at gunpoint for sexual purposes; shot and wounded two persons, including one
of the women he kidnapped; and threatened numerous other persons. Kenley was
separately convicted on counts of robbery, kidnapping, assault, and stealing.
                                           -2-
appeal, see id., and state post-conviction relief was denied, see Kenley v. State, 759
S.W.2d 340 (Mo. Ct. App. 1988), Kenley filed his first § 2254 petition in federal court.
The district court denied relief. This Court affirmed the denial to the extent Kenley
challenged the guilt phase of his trial, but otherwise reversed, concluding that counsel
was constitutionally ineffective during the sentencing phase of Kenley's trial and that
the writ therefore should issue. See Kenley v. Armontrout, 937 F.2d 1298 (8th Cir.),
cert. denied, 502 U.S. 964 (1991). The Court remanded and instructed the district
court to grant the writ and to order the State either to resentence Kenley or to reduce
his sentence to life without parole.

       After a new penalty phase trial in 1994, the jury recommended capital
punishment and Kenley was again sentenced to death. Kenley sought state post-
conviction relief pursuant to Missouri Supreme Court Rule 29.15. On April 1 and 2,
1996, the state circuit court held a hearing, with Kenley represented by appointed
counsel. On April 8, 1996, the circuit court issued four pages of somewhat cursory
findings of fact and conclusions of law, and overruled Kenley's motion for relief. The
Missouri assistant attorney general was concerned that the findings and conclusions
would be inadequate for appellate review, so he wrote to Kenley's counsel to tell her
that he would be advising the court of his concerns and would submit proposed findings
and conclusions to the court. He suggested that she might want to do the same. Four
days later, the assistant attorney general did send a twenty-nine-page proposed
judgment to the court, and sent a copy to Kenley's counsel. Kenley did not object to
the State's proposal, nor did he submit his own proposed findings and conclusions or
give any indication to the court that he wished to do so. Four days after receiving the
assistant attorney general's document, the circuit court entered the State's proposed
findings and conclusions verbatim as the order of the court. Of course, the judgment
remained unchanged: the motion for relief was overruled.

        Kenley appealed his sentence and the denial of post-conviction relief, claiming
trial error and ineffective assistance of counsel at resentencing. See State v. Kenley,

                                          -3-
952 S.W.2d 250 (Mo. 1997) (en banc), cert. denied, 522 U.S. 1095 (1998). Kenley
further alleged that "the [Rule 29.15] motion court erred by adopting in whole the
prosecutor's proposed findings of fact and conclusions of law," contending that "the
court's findings were not supported by evidence and did not reflect an independent
judgment by the court." Id. at 260, 261. After a thorough review of the record, the
Missouri Supreme Court concluded otherwise.

       Kenley filed another petition for § 2254 relief in the District Court, raising twelve
claims related to the resentencing. Upon examining his Claim 3, in which Kenley
challenged the Rule 29.15 court's word-for-word adoption of the State's proposed
findings and conclusions, the District Court determined that Kenley "is not challenging
the verbatim adoption [by the state post-conviction court] of the State's proposed
findings of fact and conclusions of law, in and of itself. Rather, Petitioner challenges
the procedure under which these findings were adopted." Kenley v. Bowersox, No.
4:98CV48, Memorandum and Order at 11 (E.D. Mo. July 26, 1999). Based on that
distinction, the court decided that the claim was properly raised in a federal habeas
petition and proceeded to grant the writ.3

                                            II.

      Kenley filed his petition after 28 U.S.C. § 2254 was amended by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.


       3
        The court granted the writ but ordered that its execution be stayed "to permit the
Rule 29.15 Court to rehear the postconviction issues." Memorandum and Order at 64.
According to the District Court order, if the State should fail to provide a rehearing,
then "the writ shall issue, and Respondent shall release Petitioner from any
incarceration or other restraint." Id. That is incorrect, as Kenley's conviction for
capital murder long ago passed federal habeas review. See Kenley v. Armontrout, 937
F.2d 1298 (8th Cir.), cert. denied, 502 U.S. 964 (1991). All that is at issue now is the
death sentence imposed in 1994.
                                            -4-
1214 (AEDPA), so the amended version of § 2254 and the standards of review therein
apply. Under AEDPA, we are compelled to apply a rebuttable presumption of
correctness to any factual findings made by the Missouri courts. See 28 U.S.C.
§ 2254(e)(1). "Otherwise, we review the District Court's factual determinations for
clear error and its conclusions of law de novo." Whitmore v. Kemna, 213 F.3d 431,
432 (8th Cir. 2000). Upon de novo review of "any claim that was adjudicated on the
merits in State court proceedings," we are permitted to affirm the granting of the writ
only if

      the adjudication of the claim —
             (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or
             (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the State
      court proceeding.

28 U.S.C. § 2254(d). With these standards in mind, we consider the State's appeal.

                                         III.

                                          A.

       Initially, the State contends that the District Court should not even have
considered the issue upon which the court based its decision to grant the writ—failure
of notice and opportunity in the Rule 29.15 proceedings—because that issue was not
properly presented to the Missouri Supreme Court and was not raised in the District
Court. Indeed, it is apparent from the record that the focus of Kenley's arguments on
the due process question was the Rule 29.15 court's verbatim adoption of the State's
proposed findings and the state circuit judge's lack of independent judgment.
Recognizing that success on that claim was foreclosed by our opinion in Jolly v.

                                          -5-
Gammon, 28 F.3d 51, 54 (8th Cir.), cert. denied, 513 U.S. 983 (1994), the District
Court seized upon Kenley's brief mention, in both his state appeal and in his § 2254
petition, of his due process rights to notice and an opportunity to be heard, and
essentially made the argument for him. The Missouri Supreme Court's failure to
address Kenley's due process argument in the context of notice and opportunity belies
Kenley's insistence that the issue was fairly presented to that court.4

       Nevertheless, because Kenley invoked the "notice and opportunity" language in
both the state court and the District Court, albeit fleetingly, we will give him the benefit
of the doubt and consider the due process question as it was discussed by the District
Court. As we explain below, we have other reasons for reversing the District Court's
decision.

                                            B.

        The State next argues that Kenley's claim based on a failure of due process in the
Rule 29.15 proceedings is not cognizable in a § 2254 petition. As we have said, the
District Court determined that Kenley was "not challenging the verbatim adoption of
the State's proposed findings of fact and conclusions of law," but instead was
challenging "the procedure under which these findings were adopted." Memorandum
and Order at 11. The court decided there was a distinction between a claim of
"infirmities" in the proceedings, which clearly is not cognizable in § 2254 proceedings
in this Circuit, and "a federal due process claim based on a state court's handling of a
claim on post-conviction review," which the District Court thought would be

       4
       The District Court was quite clear that it was applying the AEDPA amendments
to Kenley's claim: the court concluded that the Missouri Supreme Court's decision was
an unreasonable application of clearly established law. See 28 U.S.C. § 2254(d)(1).
The Missouri Supreme Court, however, never analyzed the notice and opportunity
given Kenley in the Rule 29.15 proceedings as a separate issue, so it is not at all clear
what "application" of law the District Court was reviewing.
                                            -6-
cognizable. Id. at 13. The court concluded that Kenley's claim "falls within the latter
category" and therefore was properly raised in his § 2254 petition. Id.

       This Court has said that, although there is no right to state post-conviction
proceedings under the United States Constitution, "once such a remedy is granted by
the state, its operation must conform to the due process requirements of the 14th
Amendment." Easter v. Endell, 37 F.3d 1343, 1345 (8th Cir. 1994) (noting that rule
only in a discussion of procedural bar; petitioner had not invoked § 2254 to challenge
process afforded him in state post-conviction proceedings); accord Mack v. Caspari,
92 F.3d 637, 640 (8th Cir. 1996) (noting that "a contention that a state court has
applied a procedural rule arbitrarily to a defendant's prejudice [in a state post-
conviction proceeding] may state a federal constitutional due process violation"), cert.
denied, 520 U.S. 1109 (1997). But the question remains: is a writ of habeas corpus
the remedy for a failure of due process in state post-conviction proceedings? We hold
that it is not.

       Under 28 U.S.C. § 2254, a federal court "shall entertain an application for a writ
of habeas corpus in behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the Constitution or laws
or treaties of the United States." Kenley's attack on the constitutionality of the
procedure employed in the state post-conviction proceedings does not test the legality
of his sentence. Kenley is not on death row because his due process rights were
violated in his Rule 29.15 proceedings; he is on death row because he was duly
sentenced to death at a criminal sentencing trial. He challenges only the procedure
employed in collateral civil proceedings that occurred after his direct criminal appeals
were exhausted, not the process afforded him at resentencing or on direct appeal (at
least not with this claim). On its face, then, a claim such as Kenley's is not a
constitutional challenge to state custody.




                                           -7-
        Indeed, this Circuit has long recognized that truism, holding on several occasions
that a § 2254 court is not an appropriate forum for a prisoner who wishes to challenge
the process afforded him in state post-conviction proceedings. As we noted in
Williams v. State, 640 F.2d 140, 143-44 (8th Cir.), cert. denied, 451 U.S. 990 (1981),
"[I]nfirmities in the state's post-conviction remedy procedure cannot serve as a basis
for setting aside a valid original conviction. . . . Errors or defects in the state post-
conviction proceeding do not, ipso facto, render a prisoner's detention unlawful or raise
constitutional questions cognizable in habeas corpus proceedings." See also Williams-
Bey v. Trickey, 894 F.2d 314, 317 (8th Cir.) (holding that § 2254 petitioner's claim that
state post-conviction court's failure to make findings on allegation that prosecution
withheld discovery "is collateral to appellant's conviction and detention, and is
therefore not cognizable in a 28 U.S.C. § 2254 petition"), cert. denied, 495 U.S. 936
(1990); Smith v. Lockhart, 882 F.2d 331, 334 (8th Cir. 1989) (quoting Williams in
holding challenges to failure to hold state post-conviction hearing and to lack of written
findings were not cognizable), cert. denied, 493 U.S. 1028 (1990). This position is in
keeping with that of most of the other circuits that have had occasion to address the
issue. See, e.g., Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.) (citing Jolly and
denying COA on petitioner's claim that he was denied due process when state post-
conviction court adopted state's proposed findings and conclusions three hours after
they were filed with court, noting that claim provided no grounds for federal habeas
relief), cert. denied, 527 U.S. 1056 (1999); Gerlaugh v. Stewart, 129 F.3d 1027, 1045
(9th Cir. 1997) (noting established law that "errors concerning [the state post-
conviction] process are not cognizable in federal habeas proceedings"), cert. denied,
525 U.S. 903 (1998); Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (holding
that petitioner's challenge to state "post-conviction procedures on their face and as
applied to him would fail to state a federal constitutional claim cognizable in a federal
habeas proceeding"); Bryant v. Maryland, 848 F.2d 492, 492 (4th Cir. 1988) (following
courts that have determined "claims of error occurring in a state post-conviction
proceeding cannot serve as a basis for federal habeas corpus relief"); Spradley v.
Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987) (per curiam) (concluding § 2254 claim

                                           -8-
that petitioner's due process rights were violated when state post-conviction court held
no evidentiary hearing and failed to attach appropriate portions of record to its opinion
"goes to issues unrelated to the cause of petitioner's detention [and] does not state a
basis for habeas relief"); Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986) (holding
that § 2254 was not available to challenge "a denial of the sixth amendment right to
effective assistance of counsel, a denial of due process, and a denial of equal protection
in the State post-conviction proceedings—claims unrelated to his detention"). But see
Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir.) (per curiam) (noting that "errors"
in state post-conviction proceedings are not cognizable in § 2254 petition "[u]nless
state collateral review violates some independent constitutional right, such as the Equal
Protection Clause"), cert. denied, 519 U.S. 907 (1996); Dickerson v. Walsh, 750 F.2d
150, 153 (1st Cir. 1984) (noting position of other circuits on the question and
concluding that federal habeas was proper avenue for attacking state post-conviction
proceedings).

        Kenley's attempt to distinguish his claim—that he did not receive notice and an
opportunity to be heard—from a claim of "infirmities" in state post-conviction
proceedings is unavailing. A failure of notice and opportunity, as with those other
"infirmities" in state post-conviction proceedings that in fact deprive a petitioner of any
part of the process he is due, is subsumed in the overall right to fundamental fairness
that is central to procedural due process. Virtually all of the "infirmities" noted in the
cases that hold such claims are not cognizable in a § 2254 action represent due process
violations in varying degrees. The law is clear that such violations of due process
during state post-conviction proceedings are not remediable by federal habeas corpus.5
                                            C.

      5
       The State also argues that, were we to affirm the District Court's cognizability
holding, it nevertheless "could not be applied in this case because such an application
would violate the non-retroactivity principle announced in" Teague v. Lane, 489 U.S.
288 (1989). Brief of Bowersox at 43. Because we hold that Kenley's claim is not
cognizable in a § 2254 petition, we do not address the State's Teague argument.
                                            -9-
      Even assuming arguendo that Kenley's due process claim relating to his state
post-conviction proceeding is cognizable in a § 2254 petition, we reverse the District
Court's decision to grant the writ because we conclude that the record does not support
Kenley's allegation that he was denied notice and an opportunity to be heard in the Rule
29.15 proceedings.

       Kenley had ample notice of the post-conviction hearing—he is, in fact, the one
who sought it. He also had a full and fair opportunity to be heard and to present his
case to the court. The state court's failure to let Kenley know that the court would be
issuing amended findings and conclusions after the hearing had been held and the
judgment entered cannot be a failure of notice. Kenley knew that the court might
rethink its findings and conclusions based on the State's submissions, which also were
sent to Kenley's counsel. Moreover, the court did not reconsider or alter its judgment
denying Kenley's motion for post-conviction relief, but simply amended the findings
and conclusions supporting the judgment already entered. Likewise, the opportunity
to be heard (assuming there is such a post-conviction due process right after the
judgment of the court has issued) was Kenley's for the taking. He never indicated to
the court that he also wished to be heard on the subject, neither before nor after the
State proposed its findings. It is not clear what greater opportunity Kenley thought he
deserved. For these reasons, we reject Kenley's due process claim on the merits.

                                          IV.

       As we mentioned at the start of this opinion, the District Court granted Kenley
a certificate of appealability on eight of his twelve habeas claims, including the two
ineffective assistance claims that were dismissed without prejudice and his Claim 3 on




                                          -10-
which the court granted relief. Kenley cross appeals the denial of four of the remaining
claims.6 We consider each in turn.

                                           A.

       Kenley first argues that the resentencing court erred in allowing the prosecutor
to put on evidence of certain behavior in which Kenley engaged while incarcerated
following his 1984 convictions: stabbing another inmate, taking a prison librarian
hostage, and accruing forty-seven conduct violations between 1985 and June 1992.
The Missouri Supreme Court denied the point, quoting Wasman v. United States, 468
U.S. 559, 569-70 (1984): "Consideration of a criminal conviction obtained in the
interim between an original sentencing and a sentencing after retrial is manifestly
legitimate." The state court's application of Wasman to the facts of this case is not
contrary to existing law nor does it "contradict[] the governing law set forth in" any
Supreme Court case. Williams v. Taylor, 120 S. Ct. 1495, 1519 (2000) (O'Connor, J.,
for the Court). Further, we believe the application of Wasman is not "objectively
unreasonable," id. at 1521, and neither an unreasonable extension of a legal principle
already established nor an unreasonable refusal "to extend [a legal] principle to a new
context where it should apply," id. at 1520. Therefore, Kenley's attempt to distinguish
Wasman on the facts is futile.

                                           B.

       Kenley next claims that the evidence was insufficient to support the jury's finding
of a statutory aggravating factor, namely that Kenley, in murdering Felts, created a
great risk of death to more than one person. Kenley submits that because he fired only


      6
        Apparently Kenley has abandoned his challenge to Missouri's reasonable doubt
instruction, the remaining claim on which the District Court denied relief to Kenley and
granted a COA.
                                           -11-
one shot at Felts, and from twenty feet away, he could not have knowingly created a
great risk of death to more than one person. According to Kenley, the act of murder
could not have caused danger to anyone but Felts, notwithstanding that others were
present at the time of the murder and that Kenley ordered all to "hit the floor" (a
command that Felts either did not hear or did not obey quickly enough to suit Kenley).
The Missouri Supreme Court rejected Kenley's arguments, and he has not demonstrated
how that decision either is contrary to federal law or reflects an unreasonable
application of clearly established federal law. Moreover, Kenley does not challenge
the sufficiency of the evidence of the second statutory aggravating factor that the jury
found (not to mention the sufficiency of the evidence supporting the seven non-statutory
aggravating factors that jurors found), and proof of only one statutory aggravating
factor is needed to impose a sentence of death.

                                           C.

       Kenley further argues that the District Court should have granted the writ based
on the fact that the resentencing court erred in permitting the prosecutor to make a
rebuttal closing argument, that he was thereby prejudiced, and that the error was not
harmless. The State concedes that, under the rule that applied at the time of Kenley's
resentencing, it was error not to allow the defense to close the argument. Nevertheless,
the Missouri Supreme Court concluded that Kenley's challenge raised no federal due
process issues, noting that under current Missouri law the prosecutor now is permitted
to close such arguments. The court further found that Kenley was unable to identify
any prejudice to him or to his rights, pointing out that arguments are not evidence.
Kenley parses the rebuttal argument in an effort to make the case for prejudice in this
Court. Again, however, to the extent the decision is based on factual findings, we see
no "unreasonable determination" by the state court; to the extent it is an application of
federal law, we likewise see neither a contrary nor an unreasonable application here.

                                           D.

                                          -12-
       Finally, Kenley challenges the resentencing court's decisions regarding a number
of statements made by the prosecutor in his closing argument, alleging that those
statements: suggested the value of Kenley's life should be weighed against the value
of Felts's life; "call[ed] for the jury to apply irrelevant issues, composed mostly of the
elements of fear, passion and prejudice," Brief of Kenley at 73-74; expressed personal
opinions or argued facts outside the record; reflected an attempt to change the State's
burden of proof; and referenced the seven life sentences he received as the result of his
1984 crime spree, apart from the sentence he would receive for the murder, in an
improper way.

        Contrary to Kenley's pejorative opinion of the Missouri Supreme Court's review
of the allegations, see id. at 70 ("The Missouri Supreme Court, in a seemingly tireless
effort, defended this rogue prosecutor at every turn."), we find that court's consideration
of Kenley's claims of error to be thorough and objective. The state court either found
the argument was not improper or, to the extent the remarks were improper, found that
they were not objected to as a matter of trial strategy or they were not prejudicial to
Kenley. Again, we conclude that the Missouri Supreme Court's decisions on these
issues are not contrary to, nor do they result from an unreasonable application of,
clearly established federal law, and they do not reflect an unreasonable determination
of the facts. Once again, and considering our deferential review of state court
proceedings since the enactment of AEDPA, we must affirm the District Court's denial
of these claims.

                                            V.

      We are left only to decide what to do about Kenley's Claims 1 and 2, that his
counsel was ineffective at resentencing for failing to investigate or present evidence of
his alleged intoxication the night of the murder and his general mental condition. The
District Court dismissed these claims without prejudice "given the constitutional

                                           -13-
infirmities in the post-conviction court's review of them," Memorandum and Order at
26, but then went on to grant a COA on the claims finding "that the issues
raised . . . deserve further proceedings." Id. at 64. The issues raised by the claims
were not briefed by either party in this appeal. Given our resolution of this appeal, in
which we have rejected Kenley's other claims, if we were to affirm the District Court's
ruling with respect to these two claims, Kenley presumably would be free to file
another § 2254 petition alleging them, since the District Court dismissed them without
prejudice.

       We believe, however, that in fairness to all concerned it is preferable that we
vacate the District Court's decision dismissing Kenley's § 2254 Claims 1 and 2
(ineffective assistance as to evidentiary issues) and remand with instructions for the
District Court to consider the merits of those claims. In light of the Missouri Supreme
Court's thorough discussion of these issues, we suspect that the District Court will be
able to make short work of its review.

                                          VI.

       The judgment of the District Court granting habeas relief to Kenley on Claim 3
of his petition is reversed. The District Court's dismissal without prejudice of Kenley's
Claims 1 and 2 is vacated and the case is remanded for further proceedings. The denial
of Kenley's remaining claims is affirmed in all respects. We retain jurisdiction over the
case pending the District Court's adjudication of Kenley's Claims 1 and 2. The District
Court shall adjudicate Claims 1 and 2, and shall certify its decision to us, within sixty
days from the date of this opinion.




                                          -14-
A true copy.

      Attest:

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




                           -15-
