                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1864
                                   ___________

Daniel Oglesby,                        *
                                       *
          Petitioner - Appellant,      *
                                       * Appeal from the United States
v.                                     * District Court for the Eastern
                                       * District of Missouri.
Michael Bowersox,                      *
                                       *
          Respondent - Appellee.       *
                                  ___________

                             Submitted: December 18, 2009
                                Filed: January 29, 2010
                                 ___________

Before LOKEN, Chief Judge, BENTON, Circuit Judge, and VIKEN,1 District Judge.
                              ___________

BENTON, Circuit Judge.

       Daniel K. Oglesby moved for habeas relief under 28 U.S.C. § 2254. The
district court2 denied relief. Oglesby appeals. Having jurisdiction under 28 U.S.C.
§§ 1291 and 2253, this court affirms.



      1
       The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota, sitting by designation.
      2
        The Honorable Audrey H. Fleissig, United States Magistrate Judge for the
Eastern District of Missouri, sitting with the consent of the parties pursuant to 28
U.S.C. § 636(c).
                                          I.

      A Missouri jury convicted Oglesby of attempting to produce or manufacture a
controlled substance. Oglesby cultivated a large amount of marijuana at the residence
he shared with his wife, Jennifer. Jennifer was charged separately and represented by
the same public defender as Oglesby. Oglesby was sentenced to 12 years’
imprisonment. His conviction and sentence were affirmed on direct appeal. See State
v. Oglesby, 103 S.W.3d 890 (Mo. App. 2003).

        On May 23, 2003, Oglesby moved pro se for postconviction relief under
Missouri Supreme Court Rule 29.15. Among other things, he claimed ineffective
assistance of counsel due to a conflict-of-interest from the attorney’s dual
representation of himself and his wife in their separate proceedings. On June 6,
postconviction counsel was appointed to represent Oglesby. On September 4, this
counsel filed an amended motion for postconviction relief that did not include the
conflict-of-interest claim.

       On June 1, 2004, a hearing was held on Oglesby’s 29.15 motion. At the start
of the hearing, the court noted the absence of the conflict-of-interest claim from the
amended motion. Oglesby’s counsel stated that “we really didn’t have a record that
a conflict of interest existed.” His counsel then asked the court to allow him to amend
the motion if the evidence at the hearing showed a conflict of interest. Following the
testimony of Oglesby’s trial counsel, postconviction counsel asked the court to amend
the amended postconviction motion to include the conflict-of-interest claim. The
court asked if it had authority to allow an amendment at that stage of the proceedings.
The prosecutor responded that he believed the court did have that authority. The court
allowed the amendment.

       The postconviction court rejected, on the merits, Oglesby’s claim of ineffective
assistance of counsel based on a conflict-of-interest. On appeal, the Missouri Court


                                         -2-
of Appeals held that the postconviction court erred in allowing Oglesby to amend his
motion at the hearing, as it was beyond the 90-day time limit under Rule 29.15(g) for
appointed counsel to file an amended motion. See State v. Oglesby, 168 S.W.3d 605
(Mo. App. 2005). The court of appeals held that the postconviction court did not have
jurisdiction to consider the claim, and thus it also had no jurisdiction over the claim.
On habeas review, the district court denied Oglesby’s petition, holding that the
conflict-of-interest claim was procedurally defaulted in state court. See Oglesby v.
Bowersox, No. 06-0126, 2009 WL 981235 (E.D. Mo. April 9, 2009).

                                           II.

       This court reviews the factual findings of the district court for clear error,
Kinder v. Bowersox, 272 F.3d 532, 538 (8th Cir. 2001), and reviews a finding of
procedural default de novo. Kerns v. Ault, 408 F.3d 447, 449 (8th Cir. 2005). “In all
cases in which a state prisoner has defaulted his federal claims in state court pursuant
to an independent and adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental miscarriage of justice.” Coleman
v. Thompson, 501 U.S. 722, 750 (1991). If “the last state court rendering a judgment
in the case ‘clearly and expressly’ states that its judgment rests on a state procedural
bar,” a federal habeas court is precluded from reviewing the claim. Harris v. Reed,
489 U.S. 255, 263 (1989), quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985).
“[O]nly a ‘firmly established and regularly followed state practice’ may be interposed
by a State to prevent subsequent review by [a federal court] of a federal constitutional
claim.” Ford v. Georgia, 498 U.S. 411, 423-24 (1991), quoting James v. Kentucky,
466 U.S. 341, 348 (1984).

       The Missouri Court of Appeals was “the last state court rendering a judgment
in the case.” Its ruling denying the conflict-of-interest claim rested solely on a state

                                           -3-
procedural bar. The court of appeals stated that Oglesby’s claim was not asserted until
the hearing, nine months after the amended motion was filed. The court then recited
Rule 29.15(g)’s 90-day limit for filing an amended motion. The court stated that the
postconviction court had no authority to allow an amended postconviction motion
after the time in Rule 29.15 expired, citing Edgington v. State, 869 S.W.2d 266, 269
(Mo. App. 1994). Because the postconviction court did not have jurisdiction to
review Oglesby’s untimely conflict-of-interest claim, the court of appeals held it had
no jurisdiction to review the claim on the merits. The court of appeals thus did not
address the merits of the claim, “clearly and expressly” basing its decision on the
procedural bar.

        Missouri courts consistently hold that the time limits in Rule 29.15(g) are valid
and mandatory. See, e.g., Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989);
Rutherford v. State, 192 S.W.3d 746, 748 (Mo. App. 2006); Norville v. State, 83
S.W.3d 112, 114 & n.1 (Mo. App. 2002). See also Francis v. Miller, 557 F.3d 894,
899 (8th Cir. 2009) (stating Rule 29.15 is a “firmly established and regularly
followed” state procedural rule that provides “substantive, well-established procedures
that movants are required to follow in order to have their claims considered post-
trial.”). Oglesby contends that the postconviction rules in Missouri are not uniform
and regular, suggesting as an example the change to Rule 29.15 that eliminated the
requirement that a movant sign a motion amended by postconviction counsel. Mo.
Sup. Ct. R. 29.15(g) (amended Jan. 1, 1996). This change, however, was not the
basis for the court of appeals’ ruling. Oglesby does not argue that the Rule 29.15(g)’s
time limits are not firmly established and regularly followed.

       Oglesby cites Clemmons v. Delo, 124 F.3d 944, 948 (8th Cir. 1997), as support
that his claim was not defaulted. In Clemmons, this court held that a postconviction
claim not pursued on state appeal was not procedurally defaulted. Clemmons’
postconviction counsel filed a brief with the Missouri Supreme Court that omitted a
claim presented to the postconviction court. Clemmons instructed his counsel to file

                                          -4-
a supplemental brief including the omitted claim, but counsel refused. Clemmons then
sought to file a supplemental brief pro se, but leave was denied. Noting the “unique
circumstances,” this court held that the Missouri Supreme Court had no established
rule barring pro se briefs, and therefore, federal review of the claim was not precluded.
Id. Clemmons does not apply in this case, because here the procedural rule invoked
by the court of appeals was the regularly-applied time limits in Rule 29.15(g).
Oglesby’s claim was defaulted pursuant to an independent and adequate state
procedural rule that is firmly established and regularly followed by the Missouri
courts.

       Oglesby argues that even if Rule 29.15(g) was firmly established and regularly
followed, this court should review his claim because this is an “exceptional” case. See
Lee v. Kemna, 534 U.S. 362, 376 (2002) (stating that “exceptional cases [exist] in
which exorbitant application of a generally sound rule renders the state ground
inadequate to stop consideration of a federal question” in a habeas proceeding.).
Oglesby contends this is an exceptional case because the state agreed to the untimely
amendment at the postconviction hearing. To the contrary, the Missouri Court of
Appeals held that the valid and mandatory time limits in Rule 29.15 are not extended
by the state’s failure to challenge the timeliness of the claim. This is not an exorbitant
application of the rule. See Suman v. State, 783 S.W.2d 525, 525-26 (Mo. App.
1990); King v. State, 772 S.W.2d 18, 19 (Mo. App. 1989).

       Oglesby has not established cause to excuse the procedural default. The basis
for his claim was available to counsel, and ineffective assistance of postconviction
counsel is not a cause for procedural default. Interiano v. Dormire, 471 F.3d 854,
857 (8th Cir. 2006) (default not excused when postconviction counsel failed to raise
a claim in amended 29.15 motion, or on appeal from the denial of that motion, which
had been included in petitioner’s pro se postconviction motion). “[T]he mere fact that
counsel failed to recognize the factual or legal basis for a claim, or failed to raise the
claim despite recognizing it, does not constitute cause for procedural default.”

                                           -5-
Murray v. Carrier, 477 U.S. 478, 486 (1986); see also Zeitvogel v. Delo, 84 F.3d 276,
279 (8th Cir. 1996) (“To establish cause, [petitioner] must show something beyond
the control of postconviction counsel, like State interference, actually prevented
postconviction counsel from raising the claims and presenting the evidence in state
court.”). Because Oglesby has not established cause for the default, the question of
prejudice need not be reached. See Oxford v. Delo, 59 F.3d 741, 748 (8th Cir. 1995).

       Oglesby also cannot demonstrate a fundamental miscarriage of justice from a
failure to consider his claim. To meet this exception, “a habeas petitioner [must]
present new evidence that affirmatively demonstrates that he is innocent of the crime
for which he was convicted.” Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006).
Oglesby makes no claim of actual innocence. The district court did not err in holding
that Oglesby’s conflict-of-interest claim was procedurally defaulted and that no cause
to excuse the default or a miscarriage of justice has been demonstrated.

                                         III.

      The judgment of the district court is affirmed.
                     ______________________________




                                         -6-
