                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 97-3067WM
                                   _____________

James W. Chambers,                        *
                                          *
             Appellant,                   *
                                          * On Appeal from the United
      v.                                  * States District Court
                                          * for the Western District
                                          * of Missouri.
Michael Bowersox, Warden,                 *
                                          *
             Appellee.                    *
                                     ___________

                              Submitted: June 8, 1998
                                  Filed: September 23, 1998
                                   ___________

Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit
      Judges, and PANNER,1 District Judge.
                               ___________

RICHARD S. ARNOLD, Circuit Judge.

       James Wilson Chambers was convicted of capital murder and sentenced to death
for killing Jerry Oestricker. He appeals the District Court's2 denial of his petition for


      1
      The Hon. Owen M. Panner, United States District Judge for the District of
Oregon, sitting by designation.
      2
        The Hon. Howard F. Sachs, United States District Judge for the Western
District of Missouri.
writ of habeas corpus under 28 U.S.C. § 2254 (1994). We have reviewed the claims
that have been certified as appealable, and we now affirm.

                                           I.

       On May 29, 1982, Chambers and his family, celebrating the Memorial Day week
end, were camped near the Meramec River in Arnold, Missouri. Because Chambers's
two step-sons wanted to go out onto the river to fish, early that evening Chambers
sought to borrow a boat from friends, members of the Turner family. He set out to find
the Turners, accompanied by his cousin, Donny Chapman, and Chapman's girlfriend,
Eleanor Hotchkiss. After stopping by Chambers's home, the three went to the Country
Club Lounge, located on the other side of the river from their campsite. Earlier, at the
lounge, one of the Turners, Jack, had gotten into an argument with Jerry Oestricker
after Oestricker had walked past Jack and bumped his chair. The owner of the bar was
summoned from home, and he asked the Turners and Oestricker to leave. The Turners
eventually complied, although Oestricker did not. By the time Chambers arrived, the
Turners were gone, and Chambers left the bar without incident.

        Chambers, Chapman, and Hotchkiss then went to the Turners' nearby home.
There, Chambers asked about borrowing their boat and was told that the boat was dry-
docked, but that a neighbor had one that Chambers might be able to borrow. Jack
Turner got into the car with Chambers, Chapman, and Hotchkiss, and they returned to
the Country Club Lounge to find the neighbor. On the way to the bar, according to
Chapman, Turner discussed the earlier incident involving Oestricker. When they
arrived at the bar, Chambers and Turner went inside, leaving Chapman and Hotchkiss
in the car. Chambers had with him a .38-caliber pistol that he had gotten from his home
when he, Chapman, and Hotchkiss first left the campsite. Inside, Chambers
approached Oestricker, and asked Oestricker to buy him a drink. Oestricker said he
would not, and an argument ensued. The bar owner asked them either to stop arguing


                                          -2-
or leave, and Chambers walked to the door, saying, "Come on out, you motherfucker.
We'll settle this outside." Oestricker then followed Chambers out of the bar.

       What happened next is the subject of considerable dispute. According to the
State, Chambers fatally shot Oestricker as soon as Oestricker emerged from the bar.
A witness testified that Chambers said, "Take that," as he fired the gun at Oestricker.
He then repeatedly struck Oestricker on the face with the gun, and, as Oestricker fell,
said, "Lay there and die." Chambers then dragged Oestricker out of the doorway and
shouted into the bar, "The rest of you motherfuckers want some of this?" Chambers got
into the waiting car, and the car drove off. According to the defense theory, once
Chambers and Oestricker were outside, they faced each other briefly and exchanged
words. Oestricker then struck Chambers, knocking him back into a truck and onto the
ground. Oestricker moved toward Chambers, and Chambers shot him in self-defense.
The jury accepted the State’s version of the facts. No one claims that the evidence was
not sufficient to support this verdict.

                                          II.

       Three separate juries have found Chambers guilty of capital murder, and he has
been sentenced to death after each trial. His first conviction was reversed by the
Missouri Supreme Court on the basis of the trial court's refusal to instruct the jury on
self-defense. State v. Chambers, 671 S.W.2d 781 (Mo. 1984) (en banc). Chambers's
second conviction was affirmed by the Missouri Supreme Court in State v. Chambers,
714 S.W.2d 527 (Mo. 1986) (en banc). He filed a Mo. Sup. Ct. R. 27.26
postconviction motion, which was denied by the circuit court. The Missouri Court of
Appeals affirmed. Chambers v. State, 745 S.W.2d 718 (Mo. App. 1987). Chambers
then sought habeas relief under 28 U.S.C. § 2254. His petition was denied by the
District Court. A panel of this Court reversed that judgment in Chambers v.
Armontrout, 885 F.2d 1318 (8th Cir. 1989), holding that Chambers's trial counsel
provided ineffective assistance when he failed to interview or call a witness who could

                                          -3-
have testified in support of Chambers's theory of self-defense. The State sought
rehearing en banc, which was granted. The full Court agreed with the panel and directed
the District Court to enter an order requiring that Chambers be retried or freed.
Chambers v. Armontrout, 907 F.2d 825 (8th Cir.) (en banc) (6-5 decision), cert. denied,
498 U.S. 950 (1990). Chambers was tried and convicted a third time, and again
sentenced to death in 1992. He filed a motion for postconviction relief under Mo. Sup.
Ct. R. 29.15, and the circuit court denied relief. His conviction, sentence, and the denial
of postconviction relief were all affirmed by the Missouri Supreme Court in State v.
Chambers, 891 S.W.2d 93 (Mo. 1994) (en banc). The petition for writ of habeas corpus
before us now was filed in 1995, and amended in 1996. The District Court denied relief
in 1997, and thereafter issued a certificate of appealability with respect to six of
petitioner’s claims.

                                           III.

        Chambers's first claim centers on testimony given by his probation officer during
the sentencing phase of the third trial. The officer testified that Chambers had told him
that one of the regrets of his life was not having had a chance to kill a police officer.
According to the probation officer's testimony, the statement came about in the following
way. The probation officer visited the Jefferson County jail, where Chambers was being
held, shortly after Chambers's first conviction. The officer did not go to the jail to see
Chambers, but to see another inmate, in the course of his official duties. The visit took
place sometime between December 16 and December 23, 1982. At that point, the
probation officer's written presentence investigation report had apparently already been
completed and submitted to the trial court. The report was submitted on December 16,
and petitioner's formal sentencing took place on December 23. At any rate, during the
visit, according to the probation officer's testimony, Chambers called the officer over to
his cell and engaged him in conversation. Chambers told the officer that he had some
regrets about his life. When the officer asked what they were, Chambers replied that he
regretted not having had a

                                            -4-
chance to kill a police officer. The official presentence investigation report does not
mention this statement, but the probation officer did inform the trial judge about it, orally.
In addition, the probation officer testified to this statement, without objection from
Chambers, during Chambers's second trial. Neither was there any objection to the
testimony about the statement during the penalty phase of the third trial.

      Chambers now argues that this testimony was inadmissible under Mo. Rev. Stat.
§ 217.780 (1982), recodified at Mo. Rev. Stat. § 559.125 (1990).3 This statute provided
that:

              Information and data obtained by a probation or parole officer
              shall be privileged information, and shall not be receivable in
              any court. Such information shall not be disclosed directly or
              indirectly to anyone other than the members of a parole board
              and the judge entitled to receive reports, except the court may
              in its discretion permit the inspection of the report, or parts
              thereof, by the defendant, or prisoner or his attorney, or other
              person having proper interests therein, whenever the best
              interest or welfare of a particular defendant or prisoner makes
              such action desirable or helpful.


       It is important to have in mind the procedural history of Chambers's objections to
this testimony. On direct appeal, Chambers argued that the evidence was irrelevant to
any aggravating circumstance submitted to the jury, and that it was "inadmissible
evidence of bad character and future dangerousness." State v. Chambers, 891 S.W. 2d
93, 106-07 (Mo. 1994) (en banc). The Missouri Supreme Court reviewed both of these
arguments on a plain-error basis, no objection to the testimony having been made at



       3
        The statute was amended by Laws 1995, H.B. No. 424, § A, and is now
codified as Mo. Rev. Stat. § 559.125.2. The amendment is not material to any of the
issues in this case.
                                             -5-
trial. The Court held that no plain error had occurred, because the evidence was
admissible. Any evidence regarding the defendant's character is admissible at the penalty
phase, including "[c]haracter and future dangerousness evidence . . .." Id. at 107. In
addition, the Court observed that evidence of the statement had been introduced at a
previous trial, so that "Chambers was clearly on notice that the State would introduce it."
Ibid. The probation-officer statute we have just quoted was not argued to the Missouri
Supreme Court, and the Court's opinion does not mention it. In fact, the statute was
never cited to any state court until after the present federal habeas corpus proceeding had
been commenced. At that point, Chambers filed a motion in the Missouri Supreme Court
for recall of that Court's mandate, arguing that his counsel on direct appeal had been
ineffective for not contending that the admission of the evidence in question was plain
error under the statute. The Missouri Supreme Court denied this motion without
comment.

        Chambers makes a number of arguments against the admission of this evidence:
(1) that admission of the evidence in violation of the state statute deprived him of his right
under the Due Process Clause of the Fourteenth Amendment to the proper application of
state law in capital proceedings; (2) that admission of the statement deprived him of his
right against self-incrimination (no Miranda warnings having been given) and of his right
to counsel (Chambers being represented by counsel at the time he made the statement);
(3) that the statement was so inflammatory and prejudicial that it violated his right to a
rational sentencing process under the Eighth Amendment; and (4) that his appellate
counsel was ineffective for not arguing to the Missouri Supreme Court that the statement
was inadmissible, as a matter of state law, under the probation-officer statute. We
address each of these arguments in turn.

       We discuss first what might be called petitioner's "pure" due process claim –
"pure" because it relies on the Due Process Clause of the Fourteenth Amendment
simpliciter, and not on that Clause's incorporation of any of the specific provisions of the
Bill of Rights. The argument is simply this: the testimony of probation officer

                                             -6-
Johnston was received in violation of the Missouri statute, petitioner had a right to expect
that the statute would be properly applied, and, since that did not occur, he has been
deprived of due process of law. Another way of putting it is to say that petitioner had a
"liberty interest" in the enforcement of the statute, which, in his view, mandated exclusion
of the evidence. We cannot accept this argument.4

        We have held many times that a mere violation of state law is not the automatic
equivalent of a violation of the federal Constitution. E.g., Meis v. Gunter, 906 F.2d 364,
369 (8th Cir. 1990) ("A violation of state law, without more, is not the equivalent of a
violation of the Fourteenth Amendment."). A long line of Supreme Court cases is to the
same effect. E.g., Snowden v. Hughes, 321 U.S. 1, 11 (1944). Hicks v. Oklahoma, 447
U.S. 343 (1980), the principal authority petitioner cites, must be read against this general
background. In Hicks, a jury, in accordance with the habitual-offender statute then in
effect in Oklahoma, had sentenced a defendant to a mandatory term of 40 years in prison.
While the case was on appeal, the habitual-offender statute was held unconstitutional in
another case. When Hicks's case came before the appellate court, however, his
conviction and sentence were nevertheless affirmed, the Court reasoning that the sentence
was, in any event, within the outer limit that the jury could have imposed. Our own case
of Rust v. Hopkins, 984 F.2d 1486, 1492-95 (8th Cir. 1993), perhaps expands Hicks
somewhat, but not enough to reach the circumstances presented in Chambers's case. In
Rust, a three-judge sentencing panel had imposed a sentence of death without finding
aggravating circumstances beyond a reasonable doubt, as required by state law. We held
that the error had not been cured


      4
        The State argues that the point is procedurally barred for a number of reasons,
and it may be right. In this instance, as in the case of some of the other arguments
advanced by petitioner, the law of procedural bar is a great deal more complicated than
the law governing the merits of petitioner's point. Since petitioner cannot prevail on the
merits in any event, we see no reason to ring the changes of the various formulas used
in determining the issue of procedural bar. The simplest way to decide a case is often
the best.
                                            -7-
by the Nebraska Supreme Court, and that to execute Rust under those circumstances
would be to deprive him of his life without due process. These cases, it seems to us,
represent a rather narrow rule: some aspects of the sentencing process, created by state
law, are so fundamental that the state must adhere to them in order to impose a valid
sentence. We reject the notion that every trial error, even every trial error occurring
during the sentencing phase of a capital case, gives rise to a claim under the Due Process
Clause of the Fourteenth Amendment. What happened to petitioner here may have been
wrong (more about this later), but the mistake, if there was one, was not so central as to
be like the errors found in Hicks and Rust.

        Petitioner's next argument is that the statement introduced against him was
obtained in violation of his Fifth Amendment right against self-incrimination and his Sixth
Amendment right to counsel. Again, we do not agree. The statement was not the product
of interrogation by Officer Johnston. The conversation was initiated by petitioner, at a
time when Officer Johnston was at the jail on other business. Petitioner began by stating
that there were things about his life he regretted. Officer Johnston, it is true, pursued the
matter, in a sense, by asking what those things were, but this inquiry by the officer was
instigated and invited by Chambers himself. Immediately thereafter, Chambers made the
statement (assuming one believes Johnston's testimony) introduced against him at two of
his trials. There is no indication whatever that the statement was not voluntary. We do
not think that the law protects petitioner, in these circumstances, against the
consequences of a statement that he clearly wanted to make.

      The Eighth Amendment argument – that the statement was so inflammatory and
emotional as to encourage an irrational response by the jury – may also be disposed of
quickly. The Supreme Court of Missouri, in rejecting this argument, cited Simmons v.
South Carolina, 512 U.S. 154, 162 (1994), and we believe the citation was apt. The
plurality opinion in Simmons, written by Justice Blackmun, clearly states that "a
defendant's future dangerousness bears on all sentencing determinations made in our
criminal justice system." And this is true even when the state statute laying out a

                                             -8-
capital sentencing procedure does not mandate consideration of a defendant's future
dangerousness. "[T]he State's evidence in aggravation is not limited to evidence relating
to statutory aggravating circumstances." Ibid. Once a state has proved at least one
statutory aggravating circumstance – and there is no doubt that this occurred in the
present case – a jury, in deciding what sentence actually to impose, may consider many
factors, including future dangerousness.

       We turn, finally, to the argument that is probably petitioner's strongest, and to
which we have given the most thought. Petitioner contends that his counsel on direct
appeal was ineffective in the constitutional sense because he did not argue that the trial
court had committed plain error by admitting Officer Johnston's statement in violation of
the Missouri statute. This argument is not procedurally barred. Chambers raised the
claim in his motion to the Supreme Court of Missouri for recall of that Court's mandate.
At the time Chambers filed his motion, claims of ineffective assistance of appellate
counsel were properly raised in a motion to recall the mandate, and there was no time
limit on the filing of such motions.5 Clemmons v. Delo, 124 F.3d 944, 953-54 (8th Cir.
1997), cert. denied, 118 S. Ct. 1548 (1998). Because the Missouri Supreme Court
denied Chambers's motion to recall the mandate without explanation, the Court's action
is presumed to be on the merits. See Harris v. Reed, 489 U.S. 255 (1989). Accordingly,
the issue is open for review on federal habeas.6

      5
       The rule has since been changed. See Mo. Sup. Ct. R. 29.15, as amended on
June 20, 1995. Effective January 1, 1996, claims of ineffective assistance of appellate
counsel must be raised in the sentencing court, and must be raised within 90 days after
the mandate of the appellate court is issued. See generally State v. Kelly, 966 S.W.2d
382 (Mo. App. 1998).
      6
        It might also be argued that trial counsel was ineffective for failing to object to
the evidence when it was offered. Such a claim would be procedurally barred. The
place to raise such a claim, under Missouri procedural law, is in a postconviction
proceeding under Mo. Sup. Ct. R. 29.15, and the claim was not raised there.
Ineffectiveness or neglect on the part of postconviction counsel cannot be "cause" for
purposes of excusing a procedural default. Clemmons, supra, 124 F.3d at 947-48.
                                             -9-
        A claim of ineffective assistance of appellate counsel is reviewed under Strickland
v. Washington, 466 U.S. 668 (1984). A petitioner must show that counsel's performance
was objectively unreasonable, and that there is a reasonable probability that the outcome
of his appeal would have been different if counsel had raised the claim. We assume, as
did the District Court, that a reasonably competent appellate counsel would have made
this argument. The question then becomes whether there is a reasonable probability that
the result of the direct appeal would have been different if the argument had been made.
On this issue, the burden of proof is on Chambers. He must show not only that the
Missouri Supreme Court would have thought that an error had been made, but also,
because no objection was made at trial, that the error was "plain."

       In assessing the probability that such an argument would have succeeded, we of
course apply Missouri procedural law. Under Mo. Sup. Ct. R. 29.12(b), "[p]lain errors
affecting substantial rights may be considered in the discretion of the court when the
court finds that manifest injustice or miscarriage of justice has resulted therefrom." And
under Rule 30.20, "[a]llegations of error that are not briefed or are not properly briefed
on appeal shall not be considered by the appellate court except errors respecting the
sufficiency of the information or indictment, verdict, judgment, or sentence. Whether
briefed or not, plain errors affecting substantial rights may be considered in the discretion
of the court when the court finds that manifest injustice or miscarriage of justice has
resulted therefrom." The Missouri courts appear to consider, first, whether an error
occurred, then whether that error was "plain," and, finally, whether the error would
produce a manifest injustice or miscarriage of justice if it were overlooked. See State v.
Bailey, 839 S.W.2d 657, 661 (Mo. App. 1992), requiring that the error be evident,
obvious, and clear. Most Missouri cases lay emphasis on the question whether a
miscarriage of justice has occurred. See State v. Hall, 955 S.W.2d 198 (Mo. 1997) (en
banc). In State v. Hornbuckle, 769 S.W.2d 89, 92-93 (Mo. 1989) (en banc), the Supreme
Court wrote that, under plain error review,




                                            -10-
              [The] appellant bears the burden of demonstrating that the
              action of the trial court was not only erroneous, but that the
              error so substantially impacted upon his rights that manifest
              injustice or a miscarriage of justice will result if the error is
              left uncorrected. . . . Relief under plain error, therefore,
              requires that appellant go beyond a mere showing of
              demonstrable prejudice to show manifest prejudice affecting
              his substantial rights.


(Citations omitted.)

       As we have noted, the probation officer testified that he visited the Jefferson
County Jail, where Chambers was being held, shortly after Chambers's first conviction.
The officer testified that he had gone there to conduct a presentence investigation in
another case, and that he was summoned by Chambers to his cell. According to the
officer, Chambers "instigated" the conversation. The District Court held that no error
was committed, principally on the ground that the statement was not "obtained" by the
officer, because Chambers volunteered it. The District Court also noted there was no
evidence that the jail-house conversation "was or became part" of Chambers's
presentence report, which did not mention the conversation and which appears to have
been prepared before the conversation occurred.

       The District Court's interpretation of the statute is plausible, and certainly there is
no authority from the Missouri courts that is contrary to that interpretation. Only one
appellate court in Missouri has interpreted this statute. In State v. Dale, 874 S.W.2d 446
(Mo. App. 1994), the Court of Appeals assumed that the privilege applied to the facts in
that case, although the Court did not decide the issue. We think Dale can be
distinguished, however, because the testimony in that case came from officers who were
supervising a defendant while she was on parole, and the statements testified to were
made during the officers' probation-assessment interviews with the defendant. Here, the
officer was at the jail on another assignment, and Chambers called him over



                                             -11-
and volunteered the information. The privilege may well not apply unless the officer
solicits the information for the purpose of reporting it to the sentencing judge. Thus, the
error of admitting this testimony, if there was one, was not "plain."

       We also believe the facts do not show any manifest injustice, as required by
Missouri's plain-error standard. Chambers does not claim that he was aware of the
statute when he made the statement, or that he believed that the statement would be kept
confidential, or that he relied on the statute in any way.

       Two other factors are important to us in determining whether a miscarriage of
justice, going beyond a mere showing of demonstrable prejudice, occurred here. First,
the information was already "out," Officer Johnston having testified without objection at
the guilt phase of Chambers's second trial. At the time of the third trial, the information
was no longer confidential, and had not been for some time. Whether or not this
circumstance amounts to a waiver of the privilege, we think it reduces the injustice, if
any, that occurred here. And finally, we are mindful that privileges are not much in
vogue these days. They have the effect of keeping from the trier of fact relevant evidence
of what actually happened, or, as here, what was actually said. The adverse effect on
Chambers's case, if there was one, was the product of his own voluntary act. On balance,
we think it unlikely that the Supreme Court of Missouri, if it had undertaken plain-error
review on this point, would have reversed the sentence.

      Chambers has not persuaded us that there is a reasonable probability that he would
have won his direct appeal if counsel had made the argument in question. We agree with
the District Court that no prejudice in the Strickland sense occurred as a result of
appellate counsel's failure to seek review of the statutory issue.




                                           -12-
                                           IV.

      Chambers next argues that his trial counsel was ineffective in failing to interview
and present the testimony of Dr. S. D. Parwatikar. We believe this claim was adequately
reviewed by the District Court, and we find no error.

        Dr. Parwatikar performed a court-ordered mental evaluation of Chambers prior to
his first trial, and concluded that he suffered from situational depression and may have
acted impulsively, rather than deliberately, following provocation by the victim. Dr.
Parwatikar testified to these conclusions during the penalty phase of the first trial,
although he acknowledged that Chambers was mentally able to conform his conduct to
the law. The doctor’s report also recounted that Chambers had suffered a head trauma
as a child, and had been diagnosed as borderline mentally retarded. Chambers argues this
testimony should have been presented during the guilt phase of the third trial, because it
would have negated the State's claim that he acted after deliberation, leading the jury to
convict Chambers of a lesser-included offense. Or, Chambers argues, the testimony
would have altered the balance between the aggravating and mitigating circumstances
presented during the penalty phase, and the jury might have decided to sentence him to
life imprisonment instead of death.

        The State argues that Chambers's counsel made a strategic decision, after
investigation, not to call Dr. Parwatikar. Trial counsel explained during the
postconviction hearing that she had reviewed Dr. Parwatikar's testimony from the first
trial and determined that he did not stand up well under cross-examination. The District
Court also noted evidence that likely would have come out on cross-examination. There
were psychological evaluations contrary to Dr. Parwatikar's, and his own report
contained statements attributed to Chambers that he knew that Oestricker had been
"obnoxious" and had "assaulted" his friend Jack Turner, and that Chambers had "decided
to meet" Oestricker because he "wanted to make peace" between Turner and Oestricker.
This explanation would have conflicted with Chapman's testimony that



                                           -13-
Chambers was simply looking for a boat, and that there had been no plan to confront
Oestricker. In addition, as the Missouri Supreme Court pointed out, Dr. Parwatikar's
testimony did not prevent the jury in the first trial from imposing the death penalty, and
none of Chambers's counsel in three trials had presented the doctor's testimony during the
guilt phase.

      Having reviewed the evidence, we believe the District Court correctly held that
Chambers's trial counsel was not ineffective in failing to present Dr. Parwatikar's
testimony.

                                            V.

       Chambers also complains that his counsel ineffectively impeached Fred Ieppert,
a witness for the State who provided some of the most damaging testimony against
Chambers. Ieppert testified, inter alia, that Chambers, after challenging Oestricker to join
him in settling their dispute outside, stopped and "checked" his gun to make sure it was
loaded, suggesting premeditation. Ieppert had not previously testified to this, despite
having given a statement to the police after the murder, and having testified during both
previous trials and a preliminary hearing. There were other variations between Ieppert's
testimony at the third trial and his earlier testimony, including how much time passed
between Chambers's departure from the bar and the firing of the gun. As the Missouri
Supreme Court noted, Ieppert was a difficult witness because of his age and hearing
problems, and care had to be taken not to alienate the jury with an overly aggressive
cross-examination. The District Court held there was no prejudice, and we agree. Any
possibility that a few more questions asked of Ieppert would have produced a different
result is remote.




                                            -14-
                                            VI.

       Justice Stevens, in a memorandum opinion respecting the denial of certiorari in
Lackey v. Texas, 514 U.S. 1045 (1995), questioned whether executing a prisoner who
has spent many years on death row constitutes cruel and unusual punishment prohibited
by the Eighth Amendment. Chambers, with 15 years on death row, argues that it does,
and that his is an appropriate case in which to examine the issue.

       The State has a preliminary argument, however: that the Lackey claim is
procedurally barred because it was never raised properly in the state courts. We agree
with this argument. Nothing resembling the Lackey claim was made at trial, on direct
appeal, or in postconviction proceedings following Chambers's third trial and conviction.
The claim was included in petitioner's motion to recall the mandate of the Missouri
Supreme Court on direct appeal, but we do not think that such a motion is a proper
vehicle, under Missouri law, for raising this sort of claim. "Such a motion may . . . be
employed when the decision of a lower appellate court directly conflicts with a decision
of the United States Supreme Court upholding the rights of the accused." State v.
Thompson, 659 S.W.2d 766, 769 (Mo. 1983) (en banc). But there of course is no
decision of the Supreme Court of the United States holding that delay in execution
violates the Eighth Amendment. There is only an opinion by one Justice indicating that
the issue deserves consideration, plus a notation by another Justice that the issue is
important and undecided. We hold that Chambers's Lackey claim is procedurally barred.
Petitioner suggests that the argument was novel, which might amount to cause for his not
having made it earlier, but this argument cannot stand. Prisoners have been making the
delay argument for years, always without success.

       Notwithstanding this clear obstacle, which is sufficient to dispose of this argument,
we deem it appropriate to add a few words with respect to the substance of the Lackey
point in this case. We do so because of the respect that we owe to the




                                            -15-
foreign courts that have accepted this argument, or some variation of it, under their own
legal systems.

       The argument has met with some success, especially in the British courts, where
the issue arises principally because the Judicial Committee of the Privy Council is still
the highest court of appeal for many Commonwealth countries. See generally William
A. Schabas, "The Death Row Phenomenon," pp. 96-156, The Death Penalty as Cruel
Treatment and Torture: Capital Punishment Challenged in the World's Courts (1996). In
a 1993 case, the Privy Council recommended to the Crown that the death sentences of
two appellants be commuted to life imprisonment, concluding that executing them after
almost 14 years on death row would violate the Jamaican Constitution. Pratt v. Attorney
General of Jamaica, [1994] 2 App. Cas. 1, [1993] 4 All E.R. 769 (P.C. 1993). Regarding
other prisoners who were then awaiting execution in Jamaica, their Lordships said that
"in any case in which execution is to take place more than five years after sentence there
will be strong grounds for believing that the delay is such as to constitute 'inhuman or
degrading punishment or other treatment.' "7 [1994] 2 App. Cas. at 35, [1993] 4 All E.R.
at 788-89 (P.C. 1993).

       The Privy Council in Pratt overruled its earlier judgment in Riley v. Attorney-
General of Jamaica, [1983] 1 App. Cas. 719, [1982] 3 All E.R. 469, 35 W.L.R. 279 (P.C.
1982). The dissent in Riley had written that "there is a formidable case for suggesting
that execution after inordinate delay would have infringed the prohibition against cruel
and unusual punishments to be found in section 10 of the Bill of Rights [Act of] 1689."
[1983] 1 App. Cas. at 734, [1982] 3 All E.R. at 478 (P.C. 1982) (Lord Scarman,
dissenting, joined by Lord Brightman). That section of the English Bill of Rights is
"undoubtedly the precursor of our own Eighth Amendment," Lackey v. Texas,




      7
       Section 17(1) of the Jamaican Constitution provides that "[n]o person shall be
subjected to torture or to inhuman or degrading punishment or other treatment."
                                           -16-
514 U.S. at 1047 (1995) (opinion of Stevens, J.), though delay in the execution of
sentences was hardly a problem in 1689.

       The ruling in Pratt was followed by similar rulings. In a case arising in Belize, the
Privy Council recommended that the death sentence of an appellant be quashed, and the
case remitted to the Court of Appeal of Belize for sentencing on the substituted charge
of manslaughter, at least in part because the appellant had already served three years on
death row. Logan v. The Queen, [1996] App. Cas. 871, [1996] 4 All E.R. 190, [1996]
2 W.L.R. 711 (P.C. 1996). And in Henfield v. Attorney-General of Bahamas, [1997]
App. Cas. 413, [1996] 3 W.L.R. 1079 (P.C. 1996), overruled in part by Fisher v.
Minister of Public Safety and Immigration, [1998] 3 W.L.R. 201 (P.C. 1997), the Privy
Council recommended the commutation of death sentences for two other appellants, one
of whom had served almost seven years on death row. Lord Goff of Chieveley wrote that

             "their Lordships have had to form a judgment as to the period
             which should be held to constitute [an average period of
             acceptable delay between sentence and execution] and, having
             given the matter careful consideration, have concluded, taking
             into account an appropriate period of time for the domestic
             appeals available to condemned men in their own interest, that
             a period of [three and a half years] in prison awaiting
             execution, with all the agony of mind which that entails, would
             in all the circumstances be so prolonged a time as to render
             execution cruel or inhuman punishment."


[1997] App. Cas. at 429, [1996] 3 W.L.R. at 1092 (P.C. 1996).

      In Soering v. United Kingdom (App. no. 14038/88), Series A, Vol. 161, p. 54, the
European Court of Human Rights cited delay as the principal ground for its decision that
allowing the extradition to the United States of a German citizen, arrested in




                                            -17-
England and charged with capital murder in Virginia, would violate the European
Convention on Human Rights. The Court found that it was likely that Soering, if
extradited, would be sentenced to death, and held that the six to eight years a Virginia
inmate must spend on death row before being executed would violate Article 3 of the
Convention, which provides that "[n]o one shall be subjected to torture or to inhuman or
degrading treatment or punishment."

       The essential point for our purposes, of course, is whether or not the Eighth
Amendment is being violated. We believe that delay in capital cases is too long.8 But
delay, in large part, is a function of the desire of our courts, state and federal, to get it
right, to explore exhaustively, or at least sufficiently, any argument that might save
someone's life. Chambers's strongest argument is that the State has had to try him three
times before getting it right. That is true, but there is no evidence, not even a claim, that
the State has deliberately sought to convict Chambers invalidly in order to prolong the
time before it could secure a valid conviction and execute him. We believe the State has
been attempting in good faith to enforce its laws. Delay has come about because
Chambers, of course with justification, has contested the judgments against him, and, on
two occasions, has done so successfully. If it is not cruel and unusual punishment to
execute someone after the electric chair malfunctioned the first time, see Louisiana ex rel.
Francis v. Resweber, 329 U.S. 459 (1947), we do not see how the present situation even
begins to approach a constitutional violation. Petitioner's argument is without merit.




      8
        The average length of time served between sentence and execution for the 45
persons executed in the United States in 1996 was ten and a half years. See Bureau of
Justice Statistics, Capital Punishment, 1996, Time Under Sentence of Death Sentence
and Execution, by Race, 1977-96, p. 12, Table 12.
                                            -18-
                                            VII.

       Chambers argues that the Missouri Supreme Court failed to conduct an adequate
proportionality review of his sentence as required by Missouri law, and that the Court has
failed to maintain the data necessary to conduct a meaningful review. See Mo. Rev.
Stat. § 565.014 (1978), amended and recodified at § 565.035 (1984). Our Court has
repeatedly rejected this kind of argument. See Kilgore v. Bowersox, 124 F.3d 985 (8th
Cir. 1997), cert. denied, 118 S. Ct. 2352 (1998); Bannister v. Delo, 100 F.3d 610 (8th
Cir. 1996), cert. denied, 117 S. Ct. 2526 (1997). The Missouri Supreme Court did
review Chambers's sentence, and concluded that it was proportionate, State v. Chambers,
891 S.W.2d at 113-14, and we cannot look behind that determination.

                                           VIII.

        Chambers's final argument is that he should have been allowed to present other
claims in this appeal without having first obtained a certificate of appealability. The basis
for this argument is the Supreme Court's recent decision in Lindh v. Murphy, 117 S. Ct.
2059 (1997). In Lindh, the Court held that certain provisions of the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, do not apply
to habeas petitioners whose petitions were filed before April 24, 1996, the effective date
of the Act. Chambers's petition was filed on April 21, 1995, and was denied by the
District Court on March 12, 1997. He filed a notice of appeal on July 16, 1997. He
argues that the Act does not apply to him because his petition was filed before the
effective date of the Act. This argument is foreclosed by our recent opinion in Tiedeman
v. Benson, 122 F.3d 518 (8th Cir. 1997). In Tiedeman, we held that the certificate-of-
appealability requirement does apply to cases in which a petitioner's notice of appeal was
filed after April 24, 1996. Chambers's petition, therefore, must comply with the
certificate-of-appealability requirements of the Act, and he may not raise claims on
appeal for which a certificate has not been issued. In




                                            -19-
addition, Chambers's brief does not explain why any of the additional arguments he seeks
to raise would have merit.

                                          IX.

      For the foregoing reasons, the District Court's denial of the petition for writ of
habeas corpus is

      Affirmed.

      A true copy.

             Attest:

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




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