                                  ___________

                                  No. 95-1941
                                  ___________

Michael Jenner,                       *
                                      *
                       Appellant,     *
                                      *
     v.                               *   Appeal from the United States
                                      *   District Court for the
Joe Class, Warden, South Dakota       *   District of South Dakota.
State Penitentiary; Mark W.           *
Barnett, South Dakota Attorney        *
General,                              *
                                      *
                       Appellees.     *



                                  ___________

                     Submitted:   November 16, 1995

                         Filed:   April 1, 1996
                                  ___________

Before HANSEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

                                  ___________

JOHN R. GIBSON, Circuit Judge.


     Michael Jenner was found guilty by a South Dakota state court jury
of premeditated murder, conspiracy to commit murder, and accessory to
murder.    His convictions were affirmed on all direct appeals.   He filed a
                                                              1
petition for writ of habeas corpus, which the district court denied.      On
appeal, Jenner contends that he was provided ineffective assistance of
counsel and his trial was fundamentally unfair because of the trial court's
refusal to sever his trial from that of his co-defendant.    He also argues
that the




     1
     The Honorable Richard H. Battey, United States District Judge
for the District of South Dakota.
evidence was insufficient to convict him and he was denied due process
because of excessive and prejudicial trial security.             We affirm.


     The facts of this case are set forth in the South Dakota Supreme
Court opinion, State v. Jenner, 434 N.W.2d 76, 77-79 (S.D. 1988).             We will
not restate the facts in detail, but will discuss those facts relevant to
the issues raised by Jenner.


     Jenner's convictions arose from the execution-style murder of Jackie
Sjong, a prospective witness in a California murder prosecution.               Ricky
Fenstermaker, a member of the Vagos motorcycle club, stabbed a hitchhiker
to death on a California highway.      Sjong, Fenstermaker's cousin, witnessed
the stabbing.    Jenner, the president of the Los Angeles chapter of the
Vagos, along with co-defendant Richard Elliott, shot Sjong near the KOA
campground in Sturgis, South Dakota, while the group was attending the
annual Black Hills motorcycle rally.      Jenner was convicted of first degree
murder, conspiracy to commit murder, and accessory after the fact to
murder.   After Jenner exhausted his state appeals, he petitioned for habeas
corpus relief.    The district court denied the writ, and Jenner appeals.


                                         I.


     Jenner raises several claims of ineffective assistance of counsel.
He claims his trial counsel was ineffective on several grounds, including
counsel's:    (1) failure to object to alleged vouching for prosecution
witness Fenstermaker; (2) failure to explain the presence of a Fenstermaker
family    photograph   in   Jenner's   wallet;   (3)   failure   to   fully   impeach
Fenstermaker; (4) failure to object to testimony that Jenner had been
previously incarcerated; (5) failure to propose an accomplice instruction;
(6) failure to object to an attack on defense counsel; (7) failure to
introduce evidence that Jenner does not smoke; (8) failure to




                                        -2-
object to the prosecution's questioning of Jenner about not calling alibi
witnesses; and (9) failure to object to the prosecution's questioning
Jenner whether certain witnesses were lying.


        Our review of counsel's representation is "highly deferential."
Strickland      v.   Washington,   466   U.S.   668,   689   (1984).   To   establish
ineffective assistance of counsel, Jenner must show that trial counsel's
performance was deficient and that Jenner was prejudiced.               Id. at 687;
Flieger v. Delo, 16 F.3d 878, 886 (8th Cir.), cert. denied, 115 S. Ct. 355
(1994).       Counsel's representation is deficient if it falls "below an
objective standard of reasonableness."             Strickland, 466 U.S. at 688.
Counsel's decisions are presumed reasonable and "strategic choices made
after       thorough investigation of law and facts . . . are virtually
unchallengeable . . . ."       Id. at 690.      Strickland explained that to show
prejudice, the petitioner "must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding
would have been different."        Id. at 694.     The Court subsequently refined
the prejudice inquiry, explaining that the test for demonstrating prejudice
is not solely a matter of outcome determination, but rather, whether the
trial was fundamentally unfair or unreliable.            Lockhart v. Fretwell, 506
U.S. 364, 369-71 (1993); Battle v. Delo, 19 F.3d 1547, 1554 (8th Cir.
1994).


        Jenner first claims that his counsel was ineffective in failing to
object to the prosecution's alleged vouching for Fenstermaker.2               During
Fenstermaker's direct examination, the prosecutor asked Fenstermaker if he
was required to testify truthfully as a condition of his grant of immunity,
and "that the only way that [he] could get in trouble testifying here in
this




        2
      Jenner also argues he was denied due process because of the
prosecution's vouching for Fenstermaker. Because we conclude no
improper vouching took place, we reject Jenner's due process
argument.

                                          -3-
case . . . would be if [he] would come in and not tell the truth."        In
closing argument, the prosecutor also stated that Fenstermaker had no
motive to lie, because if he did lie, his immunity would be cancelled.
Jenner contends these two instances amounted to improper vouching.


     The South Dakota Supreme Court rejected this argument in Jenner's
state habeas appeal, concluding there was no improper vouching.   Jenner v.
Leapley, 521 N.W.2d 422, 427-28 (S.D. 1994).         We have reviewed the
testimony and argument and hold no improper vouching occurred.           The
prosecutor did not place the prestige of the government behind the witness,
suggesting that the prosecutor had some special knowledge, not known to the
jury, that the witness was testifying truthfully.     See United States v.
Magee, 19 F.3d 417, 421 (8th Cir.) (similar statements held not to be
improper vouching), cert. denied, 115 S. Ct. 343 (1994).      The prosecutor
simply relayed the terms of Fenstermaker's immunity agreement.      See Id.
Thus, trial counsel's failure to object to the questioning and statements
was well within the range of professionally reasonable judgment and does
not constitute ineffective assistance of counsel.
     Jenner next contends that his trial attorney was ineffective for
failing to present certain evidence.   During the state's rebuttal argument,
the prosecutor raised the question of how Jenner obtained a photograph of
Fenstermaker's child and former girl-friend, implying that Jenner got the
photograph from Sjong after he killed him.       Jenner contends his trial
counsel was ineffective for failing to explain that he actually got the
photograph from Fenstermaker's former girlfriend.     Jenner also complains
about counsel's failure to establish that he did not smoke.   Two cigarette
butts were found at the murder scene.    There was testimony at trial that
someone with the same blood type as Sjong smoked one of the cigarettes, and
that Elliott did not smoke.


     The South Dakota Supreme Court rejected these arguments.      The




                                   -4-
court ruled that the prosecution improperly argued in rebuttal that Jenner
may have obtained the family photograph from Sjong's body after killing him
because these comments went beyond the scope of issues raised by Jenner's
closing argument.      521 N.W.2d at 429.     Nevertheless, the court found no
prejudice.   Id.    Similarly, the court concluded that counsel's failure to
introduce evidence that Jenner did not smoke did not constitute deficient
performance or prejudicial error.        Id. at 430.


     Jenner did not receive ineffective assistance of counsel for failure
to present evidence.       First, a prosecutor's presentation of
new argument during rebuttal is an error of state law, and does not rise
to the level of a constitutional violation.        See Whitmore v. Lockhart, 8
F.3d 614, 625 (8th Cir. 1993);       Berrisford v. Wood, 826 F.2d 747, 749 (8th
Cir. 1987), cert. denied, 484 U.S. 1016 (1988).         Second, counsel's failure
to present evidence that Jenner received the photograph from Fenstermaker's
girlfriend was not prejudicial.         The prosecutor did not emphasize the
photograph and did not misstate the evidence.           Jenner had the photograph
in his wallet when he was arrested.       See United States v. Felix, 867 F.2d
1068, 1075 (8th Cir. 1989).


     Similarly, Jenner was not prejudiced by trial counsel's failure to
establish that he did not smoke.           There was no evidence linking the
cigarette to Jenner, only evidence that one of the cigarettes could have
been Sjong's.      Evidence that Jenner did not smoke would not have changed
the outcome at trial.


     Jenner next argues that his trial counsel was ineffective for failing
to impeach Fenstermaker with Fenstermaker's four prior felony convictions
for burglary and receiving stolen goods.


     Jenner's      trial   counsel   explained   that    he   did     not   use   these
convictions to impeach Fenstermaker because the jury was informed of the
details of Fenstermaker's manslaughter conviction.            Trial




                                        -5-
counsel reasoned that the burglary and stolen goods convictions were less
serious than the evidence that Fenstermaker stabbed someone to death for
making an obscene gesture at him.         This reasoning is objectively reasonable
and counsel was not deficient. See English v. United States, 998 F.2d 609,
613 (8th Cir.) (ineffective assistance of counsel not demonstrated by
attorney's failure to call a witness to impeach another witness), cert.
denied, 114 S. Ct. 573 (1993).


        Jenner further argues that his counsel was ineffective for not
objecting to testimony that Jenner had been in prison.                  Jenner's counsel
did not object to co-defendant Elliott's testimony that he only talked to
Jenner "a couple times because [Jenner] was in the joint most of the time."
Trial counsel explained that he did not object because he did not want to
further emphasize Jenner's incarceration.                 Counsel's failure to object
amounts to a reasonable trial strategy.               See Whitmore, 8 F.3d at 624
(reasonable tactical decision not to object to evidence about a prior
conviction).


        Jenner   also   cites    counsel's      failure    to   propose     an   accomplice
instruction as an example of ineffective assistance of counsel.                     He says
his trial counsel should have proposed an instruction informing the jury
that Fenstermaker was an accomplice to the Sjong murder and the jury should
view Fenstermaker's testimony cautiously.


        The South Dakota Supreme Court held that Jenner was not entitled to
an accomplice instruction because Fenstermaker was not an accomplice under
state law.       Given the South Dakota Supreme Court's ruling, there is no
basis    for   ruling   that    counsel   was    deficient      for   not   proposing   the
instruction. See Berrisford, 826 F.2d at 752-53.


        Jenner next contends that his trial counsel's failure to




                                          -6-
withdraw his notice of alibi amounted to ineffective assistance of counsel.


     Before trial, Jenner's counsel filed a notice of alibi defense,
listing six witnesses, as required by S. D. Codified Laws Ann. § 23A-9-1
(1988).     Jenner's attorney subpoenaed and called only one of these
witnesses because he was unable to locate the other witnesses.          During the
prosecutor's cross-examination of Jenner, the prosecutor brought out
Jenner's failure to call the alibi witnesses.        Jenner now argues his trial
counsel was ineffective for failing to object to this questioning and for
failing to withdraw the notice.


     The South Dakota Supreme Court found no error in trial counsel's
failure   to   object   because   counsel    never   withdrew   the   notice,   and,
therefore, the prosecution's inquiry was proper under section 23A-9-6.           The
court further reasoned that even if counsel erred in failing to withdraw
the notice, there was no prejudice, as the prosecution could still refer
to the lack of alibi witnesses under South Dakota case law.                 We are
satisfied that the prosecutor directed his comments at Jenner's failure to
call alibi witnesses, which is not a basis for an ineffective assistance
claim.    See Epps v. Iowa, 901 F.2d 1481, 1483 (8th Cir. 1990).


     Jenner also claims his counsel was ineffective for failing to object
to the prosecution's questioning of Jenner and closing argument.            During
Jenner's cross-examination, the prosecutor asked Jenner whether other
witnesses were lying.      The South Dakota Supreme Court ruled that it was
"probably improper" to ask whether other witnesses were lying, but it was
not prejudicial.        521 N.W.2d at 432.       After careful review of the
questioning, we conclude that the references were isolated and directed to
contradictions in witness' testimony.        No prejudice occurred.     See United
States v. Williams, 897 F.2d 1430, 1432-33 (8th Cir. 1990).




                                       -7-
        Jenner also argues ineffective assistance based on his attorney's
failure to object to an attack on counsel's integrity. The prosector stated
in his closing argument:


        You see, they had this kind of a meeting. They had this idea.
        `Hey, we can both get out of this deal together if we stick
        together. We can both get out.' But you know what? You've
        heard it said before, there is no honor among thieves. There
        certainly isn't honor among murderers. When it came down to
        it, it was each man for himself. They pointed the finger at
        each other and the very least, ladies and gentlemen, you can't
        walk out of that jury room without at least finding one of them
        guilty, because the evidence is there.


        Jenner's trial counsel had met with Elliott before Elliott testified
at trial.            At trial, Elliott changed his story, and Jenner's counsel
impeached him.3         Jenner contends that the prosecutor's statement directly
attacked the truthfulness of his attorney, accusing him of concocting a
story.


        A fair interpretation of the prosecutor's argument, however, is that
the prosecutor accused Jenner, not his attorney, of fabricating a defense.
Thus,        trial    counsel's   failure   to   object   was   neither   deficient   nor
prejudicial.          See United States v. Fuller, 887 F.2d 144, 147-48 (8th Cir.
1989), cert. denied, 496 U.S. 908 (1990).




         3
      Jenner also argues that the trial court erred in admitting
testimony of a witness that Elliott asked the witness to retrieve
Elliott's gun from the trash and to get a shovel to bury the body.
Jenner does not develop this argument in detail and fails to
specify any constitutional violation or even trial error.      See
Jenner, 434 N.W. 2d at 82 (testimony admissible under co-
conspirator exception to hearsay rule).

                                             -8-
                                         II.


      Jenner next claims his trial was fundamentally unfair because the
trial court refused to sever his trial from that of co-defendant Elliott.
Jenner claims his trial was fundamentally unfair because the jury could not
compartmentalize the evidence as it related to the separate defendants and
the separate counts.    Jenner also claims that his defense was antagonistic
and mutually exclusive to Elliott's, and Elliott's unexpected change of
story at trial made it impossible for him to receive a fair trial.


      "In challenging the trial court's failure to sever his trial from
that of his codefendant, [Jenner] bears a heavy burden."               Hollins v.
Department of Corrections, 969 F.2d 606, 608 (8th Cir. 1992).          This court
will not grant habeas relief unless Jenner can establish that the failure
to grant severance rendered his trial fundamentally unfair.           Id.


      In affirming Jenner's convictions, the South Dakota Supreme Court
rejected Jenner's severance argument, finding that Jenner "failed to make
the requisite showing that his defense and that of Elliott were so
irreconcilable that severance was required."       434 N.W.2d at 81.    The court
reasoned that the conflict between the codefendants did not compel the jury
to believe Elliott's story to the exclusion of Jenner's.


      Following   the   South   Dakota    court   decision,   the   Supreme   Court
explained that the joint trial of defendants with mutually antagonistic or
irreconcilable defenses is not prejudicial per se, so as to require the
trial court to sever the trial of codefendants.        Zafiro v. United States,
506   U.S.   534, 538 (1993).     Hostility or finger pointing among the
defendants is not enough to require separate trials.            See id. at 540.
Severance is required only when "there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants, or




                                         -9-
prevent the jury from making a reliable judgment about guilt or innocence."
Id. at 539.    Jenner fails to articulate any trial right compromised by the
joint trial or explain how the joint trial prevented the jury from making
a reliable judgment.    Id.


     We are similarly unpersuaded that the number of charges and number
of defendants mandated severing the trials.       Jenner does not explain why
the jury could not compartmentalize the evidence of the three charges
against the two defendants.   See United States v. Lucht, 18 F.3d 541, 553-
54 (8th Cir. 1994), cert. denied, 115 S. Ct. 363 (1994); United States v.
O'Connell, 841 F.2d 1408, 1431-33 (8th      Cir. 1988), cert. denied, 488 U.S.
1011 (1989).    Jenner has not shown fundamental unfairness.


                                     III.


     Jenner next argues that there is insufficient evidence to support his
convictions.   We will grant relief for insufficient evidence only when the
evidence at trial is such that no rational trier of fact could have found
guilt beyond a reasonable doubt.     Jackson v. Virginia, 443 U.S. 307, 319
(1979).   The evidence is considered in the light most favorable to the
prosecution.    Id.


     Jenner argues that the photograph was the only physical evidence
linking him to the Sjong murder, and absent his counsel's mistakes, the
prosecution could not have used this evidence to gain a conviction.
Besides   Elliott's   testimony   identifying    Jenner   as   the   murderer,   a
significant amount of additional evidence pointed towards Jenner's guilt.
There was evidence that Jenner was a member of the Vagos, and that the
Vagos had a policy of killing "snitches."       Indeed, Fenstermaker testified
that he thought Sjong was killed because he was a snitch.            Fenstermaker
testified that following his arrest in California he telephoned Jenner, and
Jenner told him not to "worry about it," he would "take care of it."
Jenner told Fenstermaker not to call him or any other Vago until he




                                     -10-
heard from somebody.   After Sjong's death, another witness testified that
he overheard Jenner say that "the witness has been taken care of. . . ."
Finally, there was evidence linking Jenner to the murder scene and one of
the murder weapons.    Ample evidence existed for a rational trier of fact
to have found guilt beyond a reasonable doubt.


                                    IV.


     Finally, Jenner contends that his due process rights were violated
because of security measures taken at trial.


     There is no record evidence, however, to tell us what security
measures Jenner endured at his trial.   Jenner states that there were armed
federal marshals in the courtroom and throughout the courthouse.4       He
states that all spectators had to pass through a metal detector and
spectators were not allowed to stay when the defendants entered or left the
courthouse.   He states that certain floors of the courthouse were closed,
and restrictions were placed on who he could speak with in the courthouse.



     Jenner says that the security measures, especially when coupled with
the other trial errors, gave the jury the impression that Jenner was
extremely dangerous and guilty, and this violates his due process rights.


     Even assuming we have an adequate record to review Jenner's claim,
we cannot conclude the security measures identified by Jenner were so
prejudicial that Jenner was denied a fair trial.    Holbrook v. Flynn, 475
U.S. 560, 568-70 (1986) (identifiable courtroom guards are not a per se
constitutional violation); Hellum




      4
       Jenner directs us to newspaper article written during his
trial which described the courthouse as "a modern-day Alamo before
the attack."

                                    -11-
v. Warden, 28 F.3d 903, 907 (8th   Cir. 1994) (additional security personnel
and use of metal detectors are less prejudicial than physical restraints
because of wider range of inferences that juror might reasonably draw from
their use).


     We affirm the district court's denial of the writ of habeas corpus.


     A true copy.


              Attest:


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




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