                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-1901
                                    ___________

 Zachary Smith,                       *
                                      * Appeal from the United States
            Plaintiff-Appellant,      * District Court for the
                                      * Western District of Missouri
      v.                              *
                                      *    [UNPUBLISHED]
 Mike Kemna, Superintendent,          *
 Crossroads Correctional Center,      *
                                      *
            Defendants-Appellees.     *
                                 ___________

                              Submitted: December 9, 2008
                                  Filed: February 2, 2009
                                  ___________

Before MELLOY, and BENTON, Circuit Judges, and DOTY,1 District Judge.
                           ___________

PER CURIAM.

      Zachary Smith appeals from the district court’s2 denial of his petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.




      1
      The Honorable David S. Doty, United States District Court for the District of
Minnesota, sitting by designation.
      2
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
                                           I.

      A jury in Missouri state court convicted Smith of first degree murder and armed
criminal action, and he was sentenced to concurrent terms of imprisonment of life
without the possibility of parole and ninety-nine years.3 Smith’s conviction and
sentence were affirmed on appeal. See State v. Smith, 90 S.W.3d 132, 142 (Mo. Ct.
App. 2002). Smith timely petitioned for state post-conviction relief, which the district
court denied after an evidentiary hearing. The Missouri court of appeals affirmed.
See Smith v. State, 207 S.W.3d 135, 135 (Mo. Ct. App. 2006) (per curiam).
Thereafter, Smith filed this § 2254 petition, asserting eight grounds for relief and
requesting an evidentiary hearing. The district court denied the petition and request
for hearing but granted a certificate of appealability on Smith’s claim that his trial
counsel was ineffective for failing to interview and call Alvino Carrillo as a witness.

                                          II.

      We state the facts as recited by the Missouri court of appeals on direct appeal
from Smith’s conviction. See Chavez v. Weber, 497 F.3d 796, 799 (8th Cir. 2007).

             On June 23, 1995, at around 10:00 p.m., Zachary Smith left his
      father's home in Kansas City and started driving around in a borrowed,
      maroon Buick with Kevin Glavin and Jose Sosa. Smith was armed with
      a black .45-caliber handgun. The men stopped at a gas station to buy
      some cigarettes. While they were there, Derek Hoskins rode up on his
      bicycle. Several weeks earlier, Hoskins had confessed to stealing Smith's
      lawn mower. Hoskins had promised to pay Smith back for the lawn
      mower, but never did. About a week earlier, Smith had shown Hoskins
      a pistol he was carrying and warned him, “You better get my money.”


      3
        Smith’s conviction followed two prior trials. The jury was unable to reach
a verdict in the first proceeding and Smith’s conviction in the second trial was
reversed on appeal. See State v. Smith, 966 S.W.2d 1, 9 (Mo. Ct. App. 1997).

                                          -2-
When Hoskins rode up to the gas station on his bicycle, Smith asked if
he had the money he owed him. Hoskins said he did not have the money
he owed him, but the money was at his house and he would go and get
it. When Hoskins suggested that they follow him to his cousin Tyrone
Morgan's house, Smith insisted they put the bike in the trunk and that
Hoskins ride with them in the car. During this incident, a witness heard
what sounded like two guns being cocked. After placing Hoskins' bicycle
in the trunk of the car, they drove to Morgan's home, where Tyrone's
younger brother told Hoskins that Tyrone was not home.

After Hoskins got back in the Buick, Smith told him that he could work
off the debt by burglarizing a house. Hoskins agreed. Smith took
Hoskins' bicycle from the trunk and put it in a field near Smith's house.
Smith next drove the group to a house, where Hoskins and Glavin got
out of the car. Hoskins knocked on the door, and when nobody
answered, he kicked in the door and stole a television set and a stereo,
both of which he placed in the trunk of the Buick. The men returned to
Smith's house and dropped off the television and the stereo. Smith then
informed Hoskins that he would have to commit another burglary to
fully repay the debt.

Smith drove the group to the northeast part of the city, where they
stopped to buy some beer. After driving around for about half an hour,
Glavin told Smith he needed to urinate. They were in an area called Cliff
Drive at the time. Smith stopped the car under a streetlight, but then
backed the car out of the light, even though the street was deserted.
When Hoskins asked if he could get out of the car to urinate, Glavin told
him to remain in the vehicle because “something did not feel right.”
Hoskins told Glavin, “I got to go pee,” and got out of the car anyway.


As Hoskins and Glavin stood by the curb urinating, Smith got out of the
car and stood behind and in between the two. Glavin then heard a
gunshot, looked up, and saw a bright flash. He saw Smith holding a
pistol about one to two feet away from Hoskins. Hoskins went limp and
fell to the ground. After Smith and Glavin got back in the car, Smith

                                  -3-
muttered something about “good measure” and fired another shot out the
window at Hoskins.

About sunrise the next day, the three men went to the house of Sosa's
girlfriend, Rose Marie Sanchez. Sanchez later told the police that Smith
had arrived in a newer, four-door burgundy or red car and had a gun
tucked into his waistband. Later that morning, Catherine Stone looked
out her window and saw Smith standing next to the maroon car.

Smith then drove back to his father's house, where he and his girlfriend,
Cynthia Frost, had been living for about a month. Smith handed his gun
to Frost and told her to put it up.

The following day, Smith took Glavin to his bedroom and showed him
Hoskins' bicycle, which was now covered in black tape. Smith told
Glavin that he was going to give the bicycle to a little kid. Smith later
gave the bicycle to a boy who was visiting Smith's father's house.

Smith sought Glavin's help in disposing of the murder weapon. He
wanted Glavin to accompany him while he drove across the Chouteau
Bridge and threw it in the river. Glavin asked Smith whether Sosa was
in on the plan to kill Hoskins. Smith told him that Sosa did not know
anything about it, and that he (Smith) was the “master mind.” Smith told
Glavin that the last words Hoskins said were “I got to go pee” and that
Hoskins “had it coming for stealing from him.”

Between 3:00 and 4:00 a.m. on June 24, 1995, two security officers
patrolling the Cliff Drive area heard gunshots. Later, a man reported that
he had seen someone lying in the street who appeared to be seriously
injured. The security officers went to the scene, where they found
Hoskins' body. When Detective Ron Payne, a crime scene technician,
arrived several hours later, he found Hoskins' body lying in the street
with his head facing south and the snap of his shorts unfastened. On the
ground, Payne found two spent bullets and two shell casings. . . . Police
confiscated the bicycle that had belonged to Hoskins.



                                   -4-
A police officer spoke with Lori Stone, who lived next door to Smith's
father's house. She told the officer that two weeks before Hoskins' death,
she had seen Smith fire a black .45-caliber handgun into the air twice.
Catherine Stone, Lori's sister, later told officers that she had also seen
Smith shoot his gun in the air near his father's house.

Police detectives Roger Lewis and Mark Heimer spoke with Cynthia
Frost. Frost told the detectives that she co-owned a house with Smith. On
June 27, 1995, detectives asked Frost to sign a consent to search form for
Smith's house, and she complied. Frost accompanied the detectives to the
house. In one of the bedrooms, the detectives found Smith's driver's
license and some personal papers. They also found a locked safe in the
bedroom. Frost told the police that the safe was “her and Zach's” and
authorized them to open it. One of the detectives quoted Frost as stating
that “it was her safe and that we could open it.”

The detectives carried the safe out to the front porch, where they forced
it open using a hammer, a crowbar, and a heavy-duty screwdriver. Inside
the safe, the detectives found a purple Crown Royal bag containing
several live .45 rounds and an empty box of .45-caliber ammunition. The
safe also contained a Missouri inmate card in the name of Jose Sosa and
a Missouri identification card in the name of Zachary Smith.

On June 29, 1995, the police found Smith hiding underneath a bed at
2000 Oakley and arrested him. After receiving and waiving his Miranda
rights, Smith told the police that on the evening of June 24, 1995, he had
gone bowling with several friends. He said that he and his friends had
then gone to his father's house, where they remained until 11:00 a.m. the
next morning. Smith denied owning a gun, claimed not to know Glavin,




                                   -5-
      and stated that he had not seen Hoskins for a month. He also told police
      that he did not have Hoskins' bicycle, he had not been in a maroon car,
      and he had not been to Cliff Drive in at least three to four months.

      On June 30, 1995, the police examined the Buick for fingerprints. A
      print taken from the interior of the driver's side door matched Smith's left
      middle finger. In addition, William Newhouse, a firearms and tool mark
      examiner with the Kansas City Regional Crime Laboratory, examined
      the shell casings and bullets collected during the investigation of
      Hoskins' death. After examining the two shell casings found at the crime
      scene, the two casings found at Smith's house, and the two casings found
      at Smith's father's house, Newhouse determined that all six casings had
      been fired from the same .45-caliber pistol. Newhouse also determined
      that the bullets recovered from the crime scene were fired from the same
      pistol.

Smith, 90 S.W.3d at 135-38.

                                           III.

       Section 2254 provides for habeas relief from a state court judgment if a
petitioner establishes that the state court’s adjudication “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.” 28 U.S.C. §
2254(d)(1); see also Williams v. Taylor, 529 U.S. 362, 402-3 (2000). A decision is
contrary to clearly established federal law if it applies a rule that contradicts Supreme
Court precedent. Brown v. Payton, 544 U.S. 133, 141 (2005); Swartz v. Burger, 412
F.3d 1008, 1009-10 (8th Cir. 2005). An unreasonable application of federal law
occurs when a state court applies Supreme Court precedent in an “objectively
unreasonable manner.” Brown, 544 U.S. at 141; Swartz, 412 F.3d at 1009-10.
Habeas relief is not warranted when a federal court concludes that a state court
erroneously applied federal law. Davis v. Norris, 423 F.3d 868, 875 (8th Cir. 2005)
(citing Williams, 529 U.S. at 411). Rather, “the test is whether the state court’s

                                           -6-
application of the law was unreasonable.” Id. We review the district court’s findings
of fact for clear error and its conclusions of law de novo. Richardson v. Bowersox,
188 F.3d 973, 977 (8th Cir. 1999).

                                         IV .

       To prevail on his ineffective assistance of counsel claim, Smith must show that
counsel’s performance was deficient and that he was prejudiced by that deficient
performance. Strickland v. Washington, 466 U.S. 688, 687 (1984). Our review of
counsel’s efforts is “highly deferential,” and “counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Id. at 689-90. Under Strickland’s performance
prong, we apply an objective standard and “determine whether, in light of all the
circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance.” Id. at 690. Strickland’s prejudice prong
“requires proof ‘that there is a reasonable probability that, but for a counsel’s
unprofessional errors, the result of the proceeding would have been different.’”
Lawrence v. Armontrout, 31 F.3d 662, 666 (8th Cir. 1994) (quoting Strickland, 466
U.S. at 694). A reasonable probability is a probability sufficient to undermine
confidence in the outcome. See id. In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the evidence before the jury. Id.
Failure to satisfy both prongs is fatal to the claim. See Pryor v. Norris, 103 F.3d 710,
713 (8th Cir. 1997) (no need to reach performance prong if defendant suffered no
prejudice from alleged ineffectiveness). An ineffective assistance of counsel claim
is a mixed question of law and fact. Parkus v. Bowersox, 157 F.3d 1136, 1138 (8th
Cir. 1998).

       The Missouri courts concluded that Smith was not prejudiced by his counsel’s
failure to interview or call Carrillo. Smith argues that this was an unreasonable
application of Strickland. Specifically, Smith maintains that Carrillo would have

                                          -7-
testified that he was present during the incident at Smith’s father’s residence and that
Smith never fired a gun. Smith argues that this testimony would have undermined
Glavin’s identification of Smith as the murderer by disproving the link between
Smith, the bullets fired at his father’s residence and the bullets that killed Hoskins.
Moreover, Smith argues that he would have testified if Carrillo had testified.
According to Smith, he would have told the jury that Glavin killed Hoskins and that
Sosa fired the shots outside of Smith’s father’s residence. Smith also would have
accounted for his fingerprints in the Buick by testifying that he had ridden in the
backseat of the car on another occasion.

        Even if Carrillo and Smith had testified, there is no reasonable probability that
the result of the trial would have been different. Carrillo would have lacked
credibility as Smith’s longtime friend and a convicted drug dealer who was
incarcerated at the time of trial. Further, Carrillo would have testified only to matters
collateral to the events on the night of the killing. Moreover, Smith’s testimony would
not have explained how shell casings matching those found at the murder scene were
located inside his house in a locked safe. Nor would Smith’s alleged testimony have
refuted the testimony of witnesses who saw him with a gun and the victim’s property
shortly after the murder. Based on the substantial inculpatory evidence presented at
trial, we determine that Smith was not prejudiced by his trial counsel’s failure to call
and interview Carrillo. Accordingly, the Missouri state courts did not unreasonably
apply Strickland.

      The judgment is affirmed.
                      ______________________________




                                          -8-
