                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-2259
                                    ___________

Darryl Burton,                      *
                                    *
          Appellant,                *    Appeal from the United States
                                    *    District Court for the
     v.                             *    Eastern District of Missouri.
                                    *
David Dormire, Jeremiah Nixon,      *   [TO BE PUBLISHED]
                                    *
          Appellees.                *
                               ___________

                              Submitted: May 16, 2002
                                 Filed: July 8, 2002
                                  ___________

Before BOWMAN, MAGILL and BYE, Circuit Judges.
                          ___________

BYE, Circuit Judge.

       The writ of habeas corpus balances the constitutional imperative of a fair
criminal trial with respect for state court judgments and the finality thereby achieved
for victims of crime and society at large. The writ serves as a “bulwark against
convictions that violate fundamental fairness,” Engle v. Isaac, 456 U.S. 107, 126
(1982) (quotation omitted), by providing “an additional safeguard against compelling
an innocent man to suffer an unconstitutional loss of liberty.” Stone v. Powell, 428
U.S. 465, 491 n.31 (1976). At the same time, however, “[l]iberal allowance of the
writ . . . degrades the prominence of the trial itself,” Engle, 456 U.S. at 127, and
complicates our unique system of federalism, Williams v. Taylor, 529 U.S. 420, 436-
37 (2000). Accommodating these frequently opposing principles has long produced
controversy.

       Debate has intensified in recent years as Congress and the federal courts have
limited access to the writ in reaction to increasing numbers of habeas petitions. The
limitations include a confounding array of procedural impediments that prevent
consideration of the merits of claims, as well as substantive barriers that establish
modes of review utterly inhospitable to prisoners. Many barriers and impediments
represent sound efforts to curb the groundswell of frivolous and duplicative habeas
petitions. But the writ of habeas corpus is not a one-way path designed to defeat
prisoners’ claims. Rather, our habeas jurisprudence is a balancing act requiring
careful attention to each of the important, yet often opposing, principles at stake.
Even as we screen meritless petitions, therefore, we must take care not to shut the
door to prisoners whose claims cause us to doubt the fairness of their convictions.

        The present case suggests we may not yet have achieved the optimal balance.
Darryl Burton’s habeas petition depicts a troubling scenario. One cannot read the
record in this case without developing a nagging suspicion that the wrong man may
have been convicted of capital murder and armed criminal action in a Missouri
courtroom. Burton was convicted on the strength of two eyewitness accounts. Since
his trial and imprisonment, new evidence has come to light that shakes the limbs of
the prosecution’s case. One eyewitness has recanted and admitted perjury. The other
eyewitness’s veracity has been questioned by a compatriot who avers it was
physically impossible for him to have seen the crime. A layperson would have little
trouble concluding Burton should be permitted to present his evidence of innocence
in some forum. Unfortunately, Burton’s claims and evidence run headlong into the
thicket of impediments erected by courts and by Congress. Burton’s legal claims
permit him no relief, even as the facts suggest he may well be innocent. Mindful of
our obligation to apply the law, but with no small degree of reluctance, we deny
Burton a writ.

                                        -2-
                                           I

       Donald Ball was murdered at an Amoco gas station in St. Louis on the night
of June 4, 1984. A gunman ran up to Ball as he filled his gas tank. The gunman
chased Ball across the station lot and shot him several times. Police eventually
arrested Burton and the state charged him with capital murder and armed criminal
action. The state was unable to procure physical evidence implicating Burton, but it
produced two eyewitnesses, Claudex Simmons and Eddie Walker, to testify that
Burton was the gunman.

       Simmons said he had been standing in line to buy cigarettes at the Amoco
station when the shooting took place. He told the jury he knew Burton and had seen
him shoot Ball. He also testified Burton ran north off the Amoco lot after the
shooting. But Simmons’s trial testimony was inconsistent with his statements to
police during the murder investigation. Simmons had initially told police he did not
see the shooter. And in one pretrial interview, Simmons told police he was exiting
a liquor store next to the Amoco station when he heard shots and saw the shooter.

       The state had obtained Simmons’s testimony at trial by reaching a plea bargain
with him on an attempted robbery charge. Simmons told the jury he would receive
a one-year sentence on the robbery charge if he testified truthfully at Burton’s trial,
and a three-year sentence if he lied or refused to testify. Burton alleges Simmons also
received a second plea bargain for an unrelated stealing felony, but told neither the
jury nor Burton the terms of that deal. Burton claims the second plea bargain was
entered to secure Simmons’s testimony against him at trial, though there is scant
evidence in the record to confirm Burton’s suspicions.

       The second eyewitness was Eddie Walker. After the shooting, Walker told
officers he was standing on the Amoco lot when Ball drove up to buy gas. He saw
a gunman walk onto the station lot from the south side and shoot Ball. Walker also

                                         -3-
told police the gunman ran south after shooting Ball (not north, as Simmons stated)
and sped away in a blue Buick. Walker said he had known both Burton and Ball for
roughly ten years and could identify Burton as the gunman from photographs.

        Walker told the jury a different story than he told officers, however. Walker
testified he had never seen Ball drive up to the Amoco station in the first place.
Likewise, he did not see the gunman approach, because he had been drinking from
a half-pint of gin or vodka with friends next to the side of the nearby liquor store
when the first shot rang out. Hearing that shot, Walker claimed he turned and saw
Burton shoot Ball again, then run east across the street, before circling back and
ending up on the south side of the Amoco lot. Walker also testified Burton had not
sped from the scene in a Buick.

       The state’s only significant evidence of Burton’s guilt was the eyewitness
testimony of Simmons and Walker, though the state offered some proof of motive.
Ball’s first cousin, Cynthia Whitfield, told a police officer after the shooting that Ball
and Burton had been feuding before the murder. According to Whitfield, Ball’s
girlfriend (who was apparently a prostitute) had left him and taken up with Burton.
Whitfield’s account was undermined, however, because she identified a third man as
her cousin’s murderer, and because Ball’s girlfriend later denied any feud between
Ball and Burton.

      A jury convicted Burton of capital murder and armed criminal action in March
1985. A Missouri circuit judge then imposed consecutive sentences of 25 and 50
years without the possibility of parole. After Burton had been convicted and
imprisoned, new counsel reinvestigated the crime scene and the eyewitnesses with the
help of investigators. They obtained a variety of affidavits that undercut the force of
Simmons’s and Walker’s eyewitness testimony.




                                           -4-
        Five months after trial, while serving his own prison sentence, Simmons
recanted his testimony implicating Burton in the murder: “I submitted perjury
testimony [sic] to gain immunity, from the herein-mentioned murder of one Donald
Ball.” App. 646. Burton later obtained several affidavits from Simmons’s
acquaintances asserting Simmons had admitted his perjury to them, or had expressed
ill feelings toward Burton.

       Investigators could not interview Walker, who died in November 1996, but
Burton’s investigators tracked down one of Walker’s friends, Daniel Pennington.
Pennington said he had been drinking with Walker outside another friend’s house
near the Amoco station at the time of Ball’s murder.

      If Eddie Walker said that he saw the shooting and could identify the
      shooter that night, he was lying. It is physically impossible for any of
      us to see the [Amoco] lot and the area of the shooting from where we
      were standing.

App. 82. Pennington and other affiants claimed Walker was a notorious liar. And
one woman even asserted Walker had poor eyesight and never wore his glasses while
drinking.

       Apart from building a case against the two eyewitnesses, Burton’s investigators
also attempted to exonerate Burton directly. Investigators located Jennifer Shaw, a
woman present at the Amoco station when the shooting occurred. Shaw told
investigators she knew Burton and had seen the shooting, but she did not know the
identity of the shooter. Shaw said she would have testified at trial if she had been
contacted. Investigators also developed evidence suggesting the gunman was a man
named Jesse Watson, who is now deceased. Watson had allegedly been feuding with
Ball and had vowed to kill him.




                                         -5-
       Much of this evidence was developed during, or after, Burton exhausted his
state-law remedies in preparation for seeking a writ of habeas corpus in federal court.
Some of Burton’s arguments were therefore defaulted because he failed to raise them
in timely fashion. It must also be acknowledged that some portion of this evidence
is likely inadmissible hearsay.

       Burton filed a habeas petition raising 16 claims in federal court in April 1997.
The district court1 considered the variety of different claims and denied every one of
them on three separate occasions: once in the original petition, again in a Fed. R. Civ.
P. 59(e) motion, and finally in a Fed. R. Civ. P. 60(b) motion. Despite rejecting
Burton’s claims, the district court was eventually persuaded to grant Burton a
certificate of appealability on four issues, and an administrative panel of our court
later expanded that certificate by two issues. See 28 U.S.C. § 2253(c).

                                           II

      We turn now to a discussion of these six issues, bearing in mind that we may
not grant a writ unless the state court’s decision is “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).

      Each of the issues certified for our review presents a question arising under the
“unreasonable application” clause, rather than the “contrary to” clause, so we must
determine whether the state court unreasonably applied governing legal principles
from Supreme Court cases. Williams v. Taylor, 529 U.S. 362, 407-411 (2000)
(O’Connor, J., writing for the Court). The Court “stressed in Williams that an
unreasonable application is different from an incorrect one.” Bell v. Cone, 122 S. Ct.


      1
       The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.

                                          -6-
1843, 1850 (2002). For this reason, “[w]e must deny a writ—even if we disagree
with the state court’s decision—so long as that decision is reasonable in view of all
the circumstances.” May v. Iowa, 251 F.3d 713, 716 (8th Cir. 2001).

                                           A

        Burton contends his trial lawyer violated his Sixth Amendment rights by
rendering ineffective assistance of counsel. Specifically, Burton attributes fault to his
trial lawyer for failing to call as witnesses Elijah Horne, Jennifer Shaw, Darryl Miller
and Kenneth Bonner. Horne would have testified Simmons told police nearly
anything they wanted to hear in exchange for a reduced sentence in his pending
robbery case. Shaw, an eyewitness, would have testified Burton did not shoot Ball
at the Amoco station. Miller and Bonner had heard Simmons insult Burton in the
past, and their testimony would have further undercut Simmons’s credibility. In sum,
Burton claims his trial lawyer should have called each of these four witnesses to
testify in his defense at trial.

       Burton raised this claim as part of his post-conviction motion, but the claim
was rejected. The Missouri Court of Appeals stated “there is no evidence [Burton’s]
lawyer was aware of the existence of any of these witnesses except Elijah Horne.”
Burton v. State, 817 S.W.2d 928, 929 (Mo. Ct. App. 1991). As to Horne, “[t]he
motion court found [Burton] had presented no evidence that his attorney was aware
prior to trial that Horne possessed any useful information.” Id. The Missouri Court
of Appeals therefore concluded Burton’s lawyer “cannot be held ineffective for
failing to call witnesses about whom he or she has had little or no notice.” Id. at 929-
930.

      We must determine whether the Missouri courts’ decision was a reasonable
application of Strickland v. Washington, 466 U.S. 668 (1984). Our “scrutiny of
counsel’s performance must be highly deferential,” and we “must indulge a strong

                                          -7-
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. Of course, “counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary,” id. at 691, but “strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable,” id. at 690-91. Burton therefore has the obligation to “identify the
acts or omissions of counsel that are alleged not to have been the result of reasonable
professional judgment.” Id. at 690.

       The Missouri Court of Appeals decided Burton failed to carry that burden
because Burton’s trial lawyer was unable to learn of the existence of three of the four
witnesses, and was unable to discern any helpful testimony that a fourth witness could
provide at trial. These factual determinations are presumptively accurate, 28 U.S.C.
§ 2254(e)(1), and they demonstrate that Burton’s trial lawyer—while perhaps neither
as dogged nor successful as Burton’s habeas investigators have been—did not act
“outside the wide range of professionally competent assistance.” Strickland, 466 U.S.
at 690. We find it noteworthy that Burton called none of these witnesses to the stand
during the post-conviction hearing in the Missouri trial court, the very proceeding in
which the trial lawyer’s competence was contested. In these circumstances, we
cannot conclude the Missouri Court of Appeals’s decision unreasonably applied
Strickland. See 28 U.S.C. § 2254(d)(1).

                                          B

      Burton next claims his lawyer on direct appeal was ineffective in failing to seek
a new trial based upon the newly-discovered evidence of Simmons’s jailhouse-
recantation. We are unable to attribute fault to Burton’s appellate lawyer, however,
because there was no available procedure by which he could have raised Simmons’s
recantation to benefit Burton.



                                         -8-
       “Missouri procedures do not provide a means for a criminal defendant to
present claims of newly discovered evidence to the judiciary after the time to file a
Rule 29.11 motion for a new trial have [sic] expired.” State v. Garner, 976 S.W.2d
57, 60 (Mo. Ct. App. 1998); see also State v. Mucie, 448 S.W.2d 879, 890 (Mo.
1970). The Missouri Court of Appeals has crafted a narrow exception to this doctrine
to permit consideration of newly discovered evidence that completely exonerates a
defendant. But Missouri courts regularly refuse to apply this exception to newly
discovered evidence that merely impeaches inculpatory evidence offered at trial.
E.g., State v. Bransford, 920 S.W.2d 937, 949 (Mo. Ct. App. 1996); State v. Hill, 884
S.W.2d 69, 76 (Mo. Ct. App. 1994).

       Simmons’s affidavit would not fully have exonerated Burton, and thus Burton’s
claim does not fit the narrow exception crafted by Missouri courts. Simmons’s
recantation would not exonerate Burton because the affidavit does nothing to
discredit Eddie Walker’s independent eyewitness testimony. (There are, perhaps,
other reasons to discredit Walker’s eyewitness testimony, but those reasons had not
been developed at the time of Burton’s direct appeal.) Simmons’s recanting affidavit
is impeachment evidence because it undercuts his own inculpatory eyewitness
testimony at trial. But the jury was still presented some evidence, Walker’s
testimony, from which it could deduce Burton’s guilt. Accordingly, under Strickland,
we cannot fault Burton’s appellate lawyer in failing to raise Simmons’s recantation
because Burton could not possibly have obtained any relief if the issue had been
raised. 466 U.S. at 692 (“[D]eficiencies in counsel’s performance must be prejudicial
to the defense in order to constitute ineffective assistance under the Constitution.”).

                                          C

        Burton contends the state violated Brady v. Maryland, 373 U.S. 83 (1963), by
failing to disclose a “secret deal” with Simmons to testify against Burton in exchange
for a lesser sentence on the stealing charge. Burton defaulted this argument by failing

                                         -9-
to raise it during the Missouri post-conviction proceedings. He now seeks to excuse
his default by showing his “actual innocence”—what has come to be called the
“Schlup gateway” in the awkward lexicon of our habeas jurisprudence. In Schlup v.
Delo, the Supreme Court held that a federal habeas court could address the merits of
defaulted claims if a prisoner first proved he was actually innocent of the charged
crime or crimes. 513 U.S. 298, 314-16 (1995). Framing the question in terms of our
case, Burton must prove “it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence” before we may review the merits
of his Brady claim. Id. at 327.

      Burton’s Schlup gateway argument is compelling because the new evidence he
has gathered casts considerable doubt upon the eyewitness recollections of Simmons
and Walker, the only evidence of Burton’s guilt proffered at trial. Because the state
produced no physical evidence linking Burton to Ball’s shooting, and because some
of the eyewitness testimony adduced at trial looks increasingly like perjured
testimony, Burton may well be able to pass through the Schlup gateway to obtain
review of the merits of his Brady claim. We decline to resolve the Schlup gateway
question, however, because even if Burton satisfies its exacting standard, his Brady
claim cannot carry the day on the merits.

       To establish a Brady violation, Burton must first prove the state withheld
evidence tending to exculpate him. Second, Burton must demonstrate that the
evidence withheld was “material”—that if the evidence had been disclosed, the
outcome of the trial would (to a reasonable probability) have been different.
Anderson v. Bowersox, 262 F.3d 839, 842 (8th Cir. 2001). A prisoner need not prove
he would have been acquitted in order to demonstrate materiality. The second
“question is not whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley,
514 U.S. 419, 434 (1995).

                                          -10-
       Simmons allegedly struck two separate deals. The first deal procured
Simmons’s testimony against Burton at trial in exchange for a reduced sentence on
a robbery charge. The state disclosed to the jury the existence of this deal with
Simmons. The second deal allegedly procured (or perhaps maintained) Simmons’s
testimony against Burton in exchange for a reduced sentence on a separate stealing
charge. The state never disclosed a second deal to Burton or to the jury, and the state
has consistently disputed the very existence of a second plea bargain. Burton
believes there was a second deal between Simmons and prosecutors, largely because
of a temporal connection: Simmons was charged with stealing before Burton’s trial,
yet did not plead guilty until after Burton’s trial.

        Having carefully considered this issue, we do not believe the state’s purported
withholding of information about Simmons’s second, “secret deal” was material.
“[P]etitioner’s burden is to establish a reasonable probability of a different result,”
Strickler v. Greene, 527 U.S. 263, 291 (1999) (emphasis in original), and we find it
improbable that the “favorable evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the verdict,” Kyles, 514
U.S. at 435. The jury already knew the state had obtained Simmons’s testimony via
a favorable plea bargain. This knowledge likely swayed the jury’s impression of
Simmons somewhat, in which case the state’s revelation of a second plea agreement
would have worsened the jury’s already dim impression of Simmons only marginally,
if at all.

      Even if the first plea agreement made no impact on the jury, however, it is
improbable to imagine that news of a second plea agreement would have tipped the
balance against Simmons’s credibility in a manner that disclosure of the first deal did
not. In other words, whether a witness’ testimony is compelled by one, or by two,
plea agreements does not seem material to us. Cf. Brewer v. Nix, 963 F.2d 1111,
1113 (8th Cir. 1992) (finding no Brady violation where prosecutor disclosed plea
agreement, but not immunity deal). Evidence of a second plea agreement is purely

                                         -11-
cumulative for impeachment purposes, and “when the [state] does not disclose a
potential source of evidence but the evidence available from that source is cumulative
of evidence already available to the defendant, it has committed no Brady violation.”
United States v. Zuazo, 243 F.3d 428, 431 (8th Cir. 2001) (citing United States v.
Quintanilla, 25 F.3d 694, 699 (8th Cir. 1994)). In either situation, whether the jury
knows of one or both plea agreements, the jury is sufficiently apprised of the potential
taint on the witness’ credibility to ensure a fair trial, and that is the touchstone of the
Supreme Court’s cases. See Kyles, 514 U.S. at 421 (considering the “net effect of the
evidence withheld by the State”).

      Burton’s trial was not rendered fundamentally unfair by the state’s non-
disclosure of an alleged second plea agreement, hence we hold Burton suffered no
prejudice on account of the prosecutors’ conduct. We do not believe it reasonably
probable that the state’s wrongful non-disclosure, if such it was, impacted the
outcome at trial.

                                            D

      Burton also asserts the prosecutor’s closing argument deprived him of due
process by rendering the entire trial fundamentally unfair. The prosecutor’s closing
argument reminded the jury that Burton had not uncovered any alibi witnesses despite
having more than six months to investigate the matter before trial. Burton’s trial
lawyer objected that the prosecutor had requested the jury to accept an improper
inference, but the trial court overruled the objection.

      The Missouri Court of Appeals also rejected Burton’s argument because the
prosecutor did not mention any specific witnesses who might have been called, and
because it is appropriate for a prosecutor to comment on a defendant’s failure to offer
evidence in his own behalf. State v. Burton, 710 S.W.2d 306, 309 (Mo. Ct. App.



                                           -12-
1986). The Missouri Court of Appeals’s decision applies the rules of closing
argument under state law, a decision we cannot review. See May, 251 F.3d at 717.

       Burton attempts to steer the discussion clear of state law violations by calling
the prosecutor’s closing argument a violation of due process that fatally infected the
entire trial process. But Burton’s effort to cast the closing argument issue as a
question of federal law is unavailing. A state prosecutor may remind the jury that no
alibi witnesses testified to the defendant’s account of the events. Yancey v.
Housewright, 664 F.2d 187, 190 (8th Cir. 1981) (“The prosecutor merely stated the
obvious. . . . he simply noted that in fact no such witnesses were in existence.”). This
appears to be precisely what happened in Burton’s case. “[T]he prosecutor referred
to defendant’s failure to present evidence of his whereabouts on the night of the
shooting. No particular or named witness who might have been called was
mentioned.” Burton, 710 S.W.2d at 309. “Even if [Burton] had not taken the witness
stand, the comment by the prosecutor which merely drew the jury’s attention to
[Burton’s] failure to present alibi witnesses would have been fair comment on the
weakness of the defense and was not a violation of [his] right to remain silent.”
United States v. Higginbotham, 539 F.2d 17, 25 (9th Cir. 1976) (collecting cases); see
Moore v. Wyrick, 760 F.2d 884, 886-87 & n.2 (8th Cir. 1985) (per curiam). We
therefore believe the Missouri Court of Appeals’s resolution of this claim was not
unreasonable. See 28 U.S.C. § 2254(d)(1).

                                           E

       Marshaling the many affidavits casting doubt upon his guilt, Burton asserts he
is entitled to a writ of habeas corpus because new evidence establishes his factual
innocence. Burton’s assertion has considerable intuitive appeal, for, to some extent,
the very purpose of a writ of habeas corpus is to forestall the unjustified punishment
of an innocent prisoner.



                                         -13-
       Nevertheless, we have squarely rejected the notion that a prisoner may receive
a writ simply because he claims he is innocent. “[C]laims of actual innocence based
on newly discovered evidence have never been held to state a ground for federal
habeas relief absent an independent constitutional violation occurring in the
underlying state criminal proceeding.” Meadows v. Delo, 99 F.3d 280, 283 (8th Cir.
1996) (quoting Herrera v. Collins, 506 U.S. 390, 400 (1993)). It is a foregone
conclusion we must apply our earlier precedent, see United States v. Franklin, 250
F.3d 653, 665 (8th Cir. 2001), thus Burton’s claim of innocence does not entitle him
to a writ.

                                          F

       Finally, Burton argues the district court erred in denying him an evidentiary
hearing to develop his Schlup gateway argument, as well as the constitutional claims
raised in this appeal. We respectfully disagree.

       “No evidentiary hearing is warranted if the petitioner’s claims are procedurally
barred or are without merit.” Reese v. Delo, 94 F.3d 1177, 1186 (8th Cir. 1996)
(citing Wilson v. Kemna, 12 F.3d 145, 146-47 (8th Cir. 1994)). Our opinion explains
that Burton’s legal arguments lack merit, thus an evidentiary hearing would not assist
Burton in obtaining a writ. A hearing would no doubt cast further attention on
Burton’s factual claim of innocence, but it is legally unnecessary, and we therefore
decline to remand the case for a hearing as Burton suggests.

                                          III

       Burton’s habeas petition troubles us because his legal claims do not provide
him an adequate foundation upon which to present his considerable claims of factual
innocence. Though our jurisprudence offers Burton no relief, we express the hope
that the state of Missouri may provide a forum (either judicial or executive) in which

                                         -14-
to consider the mounting evidence that Burton’s conviction was procured by perjured
or flawed eyewitness testimony. In the final analysis, Burton may well be guilty, but
the new evidence he has unearthed suggests his case at least deserves a second look.

       We affirm the judgment of the district court. We also thank counsel for their
particularly capable briefs and arguments.

      A true copy.

             Attest:

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




                                        -15-
