                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-1668
                                    ___________

Kenneth Thomas Trimble,               *
                                      *
                   Appellant,         * Appeal from the United States
                                      * District Court for the Eastern
      v.                              * District of Arkansas.
                                      *
Larry Norris, Director, Arkansas      *      [UNPUBLISHED]
Department of Correction,             *
                                      *
                   Appellee.          *
                                 ___________

                              Submitted: September 10, 2002

                                   Filed: October 7, 2002
                                    ___________

Before MORRIS SHEPPARD ARNOLD, FAGG, and MELLOY, Circuit Judges.
                         ___________

PER CURIAM.

       Kenneth Thomas Trimble was convicted of capital murder and sentenced to life
in prison without the possibility of parole. Trimble asks this court to grant him
habeas relief under 28 U.S.C. § 2254, arguing he was deprived of due process when
the government relied on contradictory theories in his trial and in the trial of his co-
defendant. Specifically, Trimble asserts that during the government’s closing
argument in Trimble’s trial, the government accused Trimble of lying–but during the
trial of Trimble’s co-defendant, the government relied on Trimble’s testimony to
support the co-defendant’s conviction. Like the state courts that had reviewed and
rejected Trimble’s arguments on appeal, the district court* found no contradiction in
the government’s theories in these two trials. Having reviewed the district court’s
findings of fact for clear error and its conclusions of law de novo, we affirm.
Randolph v. Kemna, 276 F.3d 401, 403 (8th Cir. 2002) (standard of review).

       To obtain habeas relief, Trimble must show the state court’s adjudication of his
claim resulted in a decision that “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court,”
or “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d) (2000). In the report
and recommendation adopted by the district court, the magistrate reviewed the
relevant portions of trial transcripts as well as the Arkansas Supreme Court’s
decision. The magistrate found that in both trials, the government “accepted as true
the statement of Trimble that he and [his co-defendant] used an alias to register at a
local hotel, that they used a fake vehicle registration, and that they disposed of
evidence following the crime, in part by buying new clothes at a WalMart in Clinton,
Arkansas, and trashing the bloody clothes they were wearing.” Trimble v. Norris, No.
5:99CV00472, slip op. at 8-9 (E.D. Ark. Jan. 8, 2002). Further, the magistrate also
found that in both trials, the government questioned Trimble’s statement that he was
outside the building while his co-defendant committed the murder inside the building,
and the government consistently argued that both Trimble and his co-defendant
participated in the murder, with the co-defendant masterminding the crime. Id. at 9.
The district court adopted the magistrate’s conclusion that “the prosecutor may do
exactly as he did in this case: he may argue the petitioner was truthful on some
issue[s] and lied about others.” Id. at 8. Because we agree there is no error and thus
no deprivation of due process, we hold the district court properly denied Trimble’s
request for habeas relief under 28 U.S.C. § 2254. See 8th Cir. R. 47B.


      *
       The Honorable Stephen M. Reasoner, United States District Judge for the
Eastern District of Arkansas.

                                         -2-
MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring.

      I concur, even though I think that the prosecution did indeed pursue conflicting
theories in the relevant cases, because the district court's order was not contrary to,
or an unreasonable application of, any Supreme Court precedent. See 28 U.S.C.
§ 2254(d)(1).

      A true copy.

             Attest:

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




                                         -3-
