                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 99-3705
                                      ___________

Michael Collins,                        *
                                        *
           Petitioner - Appellant,      *
                                        * Appeal from the United States
           v.                           * District Court for the
                                        * Eastern District of Missouri.
Dave Dormire,                           *
                                        *
           Respondent - Appellee.       *
                                   ___________

                               Submitted: January 11, 2000
                                   Filed: February 15, 2001
                                    ___________

Before WOLLMAN, Chief Judge, HANSEN, and MURPHY, Circuit Judges.
                             ___________

MURPHY, Circuit Judge.

       Michael Collins who was convicted in Missouri of second degree robbery seeks
federal habeas relief on the grounds that he received ineffective assistance of counsel
on his direct appeal when his counsel failed to raise an identification issue. The district
court1 denied his petition, and he appeals. We affirm.

      Collins was charged with attempted kidnaping and second degree robbery after


      1
       The Honorable Lawrence O. Davis, United States Magistrate Judge for the
Eastern District of Missouri, presiding.
a woman was attacked outside a grocery store in Maplewood, Missouri and forced into
a car. As the victim left the store, she was approached by a man who put his arm
around her and began asking questions. The man then pressed something he said was
a knife against her back and forced her to walk across the street where he shoved her
into a car. She hit him on the head with a bottle and jumped out. Mike Schuessler,
who lived nearby, heard her screaming and ran to the scene where he saw the victim
standing on the sidewalk near a large car. Schuessler got a look at the man driving the
car, but he drove off before Schuessler could get the license number. Schuessler only
saw the man from the side and told police he would not be able to identify him. The
police made a composite sketch based on the victim's description of her assailant, and
an officer who saw the sketch thought it looked like Michael Collins and assembled a
photo spread of six persons, including Collins. The victim viewed the photo lineup four
days after the attack, and identified Collins as the man who had attacked her.

       At the beginning of trial, Collins moved to suppress any in-court identification
because of the identification procedures that had been used by the police. The court
denied the motion, but granted counsel a continuing objection. Collins was identified
during trial by both the victim and Schuessler. Collins' trial attorney learned through
cross examination of Schuessler that the day before trial he had met with the prosecutor
and the victim. At that meeting the prosecutor had shown Schuessler the photo lineup
previously displayed to the victim. After Schuessler tentatively identified Collins, the
prosecutor showed him several other photographs of Collins. Schuessler said he was
not sure Collins was the man in the car; none of the photographs showed his profile.
At trial Schuessler said he was sure about his identification of Collins because he had
been able to see him from the side in the courtroom. Collins did not object to
Schuessler's identification during his testimony, but he moved for a mistrial when it was
finished. The court denied the motion, finding that the state's failure to notify Collins
of the pretrial identification was improper, but that Schuessler's in-court identification
had not been tainted by the pretrial identification procedure.


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        The jury found Collins guilty of second degree robbery, but not guilty of
attempted kidnaping. The state trial court found that Collins was a prior and repeat
offender and sentenced him to twelve years. Collins moved for a new trial, arguing that
the court had erred by not granting a mistrial because of the improper pretrial
identification procedure. After an evidentiary hearing, the motion was denied and
Collins appealed. Collins' appellate attorney did not attack his conviction on the basis
an of improper pretrial identification procedure, but appealed a jury instruction, an issue
that trial counsel had not preserved by making a contemporaneous objection. The
Missouri Court of Appeals affirmed the conviction, see Missouri v. Collins, 920
S.W.2d 205 (Mo. Ct. App. 1996), and denied Collins' motion to recall the mandate.
In the motion to recall the mandate Collins' counsel had complained that his appellate
attorney rendered ineffective assistance of counsel by failing to argue that Schuessler's
in-court identification of Collins had been tainted by an impermissibly suggestive
pretrial identification procedure.

       Acting pro se, Collins filed this habeas corpus petition pursuant to 28 U.S.C. §
2254. He claimed that he was entitled to relief because his trial attorney was not
informed of Schuessler's pretrial identification, the in-court identification of Collins was
unreliable, there was insufficient evidence to support his conviction, and trial counsel
rendered ineffective assistance because the prosecutor had not given him adequate
information about the out-of-court identification procedure. He argued that the
ineffective assistance of his appellate counsel constituted cause and prejudice for the
default of his claims.

       The district court held that while ineffective assistance of appellate counsel may
have constituted cause sufficient to overcome procedural default of the improper
pretrial identification claim, the petitioner had not satisfied the prejudice element. It
rejected Collins' argument that ineffective assistance of appellate counsel constituted
cause for default of his remaining claims because those issues had not been raised in
his motion to recall the mandate, and it denied his petition. We granted Collins a

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certificate of appealability "on the single issue of ineffectiveness of appellate counsel
for failure to raise and brief the preserved identification issue."

       Collins claims that his appellate attorney was ineffective because he did not raise
the pretrial identification issue on direct appeal. The state claims that Collins did not
preserve this issue by objecting at trial or by raising the precise issue in his pretrial
motion for suppression or in his motion for a new trial. The state argues that since
Collins has procedurally defaulted the claim and not shown cause and prejudice, his
petition should be denied. Collins raised ineffective assistance of appellate counsel in
his motion to recall the mandate. That appears under Missouri law to be a way to
preserve the issue so that our review would not be procedurally barred, see Roe v.
Delo, 160 F.3d 416, 418 (8th Cir. 1998), and at this point we will proceed to consider
the issue certified for appeal.

       An ineffective assistance of counsel claim involves a mixed question of fact and
law. See Dodd v. Nix, 48 F.3d 1071, 1073 (8th Cir. 1995). We review the district
court's findings of fact for clear error and its legal conclusions de novo. See id. The
petition can only be granted if the state court adjudicated Collins' claims in a way that
was "contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court," 28 U.S.C. § 2254(d)(1), and a
presumption of correctness is applied to state court findings of fact. See id. at §
2254(e)(1).

       To prevail on a claim of ineffective assistance petitioner must show that counsel's
performance was deficient and that it prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). In determining whether counsel's performance
was deficient, the court should "indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance . . . " Id. at 689. To
overcome this presumption, the petitioner must present evidence that "appellate
counsel's failure to raise a claim was [not] an exercise of 'sound appellate strategy.'"

                                           -4-
Roe, 160 F.3d at 418 (quoting Sidebottom v. Delo, 46 F.3d 744, 759 (8th Cir. 1995)).
To establish prejudice Collins must show "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694.

       Collins argues that Schuessler's identification was unreliable because over two
years had passed between the time Schuessler saw the man in the car and his
identification at trial and he had told police at the time of the crime that he could not
identify the driver. If the issue had been raised on direct appeal, the Missouri Appellate
Court would have reviewed fact findings "in [the] light most favorable to the trial
court's ruling." Missouri v. Glover, 951 S.W.2d 359, 362 (Mo. Ct. App. 1997)
(quotation marks and citation omitted, modification in the original).2 The trial court
found that Schuessler's in-court identification of Collins was reliable because his
identification the day before had been tentative and only after he saw Collins' profile
was he able to identify him as the man he had seen at the scene of the crime. The court
further found that because Schuessler's in-court identification of Collins was
independent of his pretrial identification, it was untainted by any impermissible
suggestiveness that may have occurred.

      We apply a presumption of correctness to the state court's finding that



      2
        The reliability of a witness' in-court identification is determined by considering
five factors:

      (1) The opportunity of the witness to view the criminal at the time of the
      crime; (2) the witness' degree of attention; (3) the accuracy of the witness'
      prior description of the criminal; (4) the level of certainty demonstrated by
      the witness at the confrontation, and (5) the length of time between the
      crime and the confrontation.

Glover, 951 S.W.2d at 363.

                                           -5-
Schuessler's in court identification was reliable and not tainted by the procedures
employed by the court. See 28 U.S.C. § 2254(e)(1). The record also shows that
Schuessler testified at trial that he stood five to six feet away from the man in the car
and was able to view him for "a few minutes." As the car drove away, he tried to read
its license plate number. Given Schuessler's opportunity to view the attacker at the
time of the crime, the degree of attention to which he gave the man in the car, and the
certainty of his identification at trial, it is unlikely that the Missouri appellate court
would have found error in the trial court's determination that his identification of Collins
was reliable. Even if admission of Schuessler's testimony was found to be improper,
it would not have necessitated a mistrial because of the strength of the victim's
identification of Collins. She described Collins in detail immediately after her attack,
provided the police a basis for a composite sketch from which a police officer
recognized Collins, and identified Collins shortly after the attack and in court.3 Given
the evidence against Collins, Schuessler's identification would have been at most
harmless error. See Missouri v. Williams, 717 S.W.2d 561, 566 (Mo. Ct. App. 1986).
On this record Collins has not shown that he was prejudiced by any deficient
performance of his appellate counsel.

       Since Collins has not shown he was prejudiced by the failure of his appellate
counsel to raise the issue of the pretrial identification procedure on his direct appeal,
he cannot prevail on the issue certified on appeal and we affirm the district court's
denial of his petition for habeas relief.


       3
        Collins argues that this court should find the victim's identification unreliable
because of certain inconsistencies between her trial testimony and the account in her
deposition a year earlier. Inconsistencies in witness testimony go to the issue of
credibility and are to be considered by the jury. See Missouri v. Vaughn, 32 S.W.3d
798, 799 (Mo. Ct. App. 2000). Here, the jury found the victim's testimony credible and
that finding is entitled to deference. See id.



                                            -6-
A true copy.

               Attest:

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




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