                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-2215
                                   ___________

William A. Armstrong,                *
                                     *
          Petitioner/Appellant,      *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * Eastern District of Missouri.
Mike Kemna,                          *
                                     *
          Respondent/Appellee.       *
                                ___________

                             Submitted: September 9, 2003
                                Filed: April 12, 2004
                                 ___________

Before WOLLMAN, BOWMAN, and RILEY, Circuit Judges.
                        ___________

RILEY, Circuit Judge.

       William Armstrong (Armstrong) was convicted in a Missouri state court of first
degree murder, two counts of first degree assault, and three counts of armed criminal
action. He was sentenced to life imprisonment on the murder count and sixty years
imprisonment on the other counts. After failing to obtain relief from Missouri state
courts, Armstrong filed a federal habeas application under 28 U.S.C. § 2254. The
district court1 denied Armstrong’s application, but granted him a certificate of
appealability on all issues covered in the court’s order. We affirm, in part, but

      1
       The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
remand this case to the district court for the limited purpose of addressing two
unresolved issues.

I.    BACKGROUND
      On January 6, 1996, Armstrong and a few companions, including Armstrong’s
brother, Solomon Armstrong (Solomon), Charles Brown (Brown), and Antwon
Hamilton (Hamilton), traveled from Milwaukee, Wisconsin, to Hayti Heights,
Missouri. That evening, the group went to a bar. At the bar, Terrell McGee and
Diane Davis began arguing. As the argument escalated, McGee family members,
Davis family members, and Armstrong got involved. The bar owner ordered
everyone out of the bar, and the argument continued in the parking lot. As the crowd
made its way to the parking lot, shots were fired, killing Carlos McGee (McGee), and
wounding Yolanda Childress and Devonne Davis.

       Armstrong left the scene and went to the home where he was staying. Later
that evening, the police arrived and arrested Armstrong and his companions for the
shootings at the bar. While the police were arresting Armstrong, shots were fired
from outside the home, wounding a police officer. Emerson Branch, who was at the
bar earlier in the evening, was later convicted of shooting the officer. The bullet that
wounded the police officer was the same caliber as the bullets found at the bar and
on McGee’s hospital gurney.

       Armstrong was charged with and tried for murder in the first degree, two
counts of assault in the first degree, and three counts of armed criminal action. A
state public defender represented Armstrong. At trial, several witnesses, related to
the McGee family, testified Armstrong was the sole shooter. Armstrong testified
someone else did the shooting, but he did not identify the shooter. Having returned
to Milwaukee, Armstrong’s companions did not travel to Missouri to testify at
Armstrong’s trial. The reasons for these witnesses not testifying are at the heart of
this appeal.

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        Armstrong’s trial counsel (trial counsel) alerted the trial court to her inability
to subpoena the out-of-state witnesses (i.e., Solomon, Brown and Hamilton), because
the Wisconsin Attorney General’s Office informed her Wisconsin would not
recognize the subpoenas. Trial counsel also informed the court the Missouri Public
Defender’s Office does not advance funds to witnesses for transportation to trials.
Although trial counsel advised the court her office would have paid for bus tickets,
she failed to procure bus tickets for the witnesses. It was not until the last day of trial
that trial counsel sought a short continuance to allow the Milwaukee witnesses time
to travel to Missouri. During this discussion, Armstrong interrupted and told the trial
court the witnesses were not present because trial counsel failed to get them there,
even though he had prompted his trial counsel for months to secure the witnesses’
attendance at trial. Armstrong later told the trial court he was dissatisfied with his
trial counsel’s representation and had tried to remove her from his case. The trial
court, which was not provided the absent witnesses’ expected testimony, denied the
motion for a continuance. Armstrong’s companions did not testify at trial.
Armstrong was convicted.

      On direct appeal, Armstrong raised two issues: (1) the prosecutor’s closing
argument deprived Armstrong of due process and a fair trial; and (2) the trial court
abused its discretion in denying the motion for a continuance to secure the attendance
of Solomon and Hamilton. Armstrong did not contest the sufficiency of the evidence
against him. The Missouri Court of Appeals held the trial court (1) did not err in
allowing the closing argument, and (2) did not abuse its discretion in denying the
motion for a continuance. In deciding the continuance issue, the Missouri Court of
Appeals stated Armstrong’s argument did not yield “a clue about what these
witnesses would have testified to or how their testimony would have aided the
defense.” The Missouri Court of Appeals also concluded the trial record revealed
Armstrong could not have secured the presence of his witnesses “any time in the
reasonably foreseeable future.” Thus, the Missouri Court of Appeals affirmed the
judgment against Armstrong. Armstrong then sought post-conviction relief. Neither

                                           -3-
the state trial court nor the Missouri Court of Appeals considered the merits of the
claims, because Armstrong filed the post-conviction relief motion late.

       Obtaining no relief in Missouri state courts, Armstrong turned his attention to
the federal courts. Armstrong filed his application for a writ of habeas corpus under
28 U.S.C. § 2254 in federal court, raising numerous grounds for relief. In his habeas
application, Armstrong swore his “witnesses would have testified that I did not have
a weapon, nor was I arguing with anybody, and that someone else from the McGee
family were [sic] shooting at us. Someone who they were arguing with in the club.
My witnesses names are Antwon Hamilton, Solomon Armstrong, and Charles
Brown.”

       In a hearing on February 14, 2002, the district court secured the testimony of
trial counsel, who stated she or her investigator had spoken to all three out-of-state
witnesses. Trial counsel said Brown would have testified he did not witness the
shooting, but never saw Armstrong with a gun. Trial counsel also said Hamilton and
Solomon would have testified they could not identify the shooter, but that Armstrong
was not the shooter. Trial counsel considered two options to secure the attendance
of the witnesses at trial: send an unenforceable subpoena and expense money to the
witnesses; or send bus tickets to the witnesses with a promise to pay for their lodging
and meals. Trial counsel decided against the first option, because a subpoena was
unenforceable. Trial counsel testified that, although the out-of-state witnesses
indicated they would testify at Armstrong’s trial, the second option fell through,
because she could not contact the witnesses as planned. Trial counsel testified she
arranged a conference call with Solomon and Hamilton a week before trial to discuss
travel arrangements. When trial counsel initiated the call, Armstrong’s mother
answered and told trial counsel one of the witnesses was sleeping and the other
witness was not there. None of the out-of-state witnesses contacted trial counsel until
the first day of trial, when Solomon called trial counsel and told her he would travel



                                         -4-
by bus to Missouri that night to testify at his brother’s trial. Trial counsel arranged
for Solomon to call her when he arrived in Missouri, but Solomon never called.

       The district court found sufficient cause to excuse Armstrong’s procedural
default in state court, because a state-employed prison librarian gave Armstrong the
wrong deadline for filing his post-conviction relief motion. Thereafter, the district
court denied Armstrong’s habeas application. In denying habeas relief, the district
court discussed the critical issues surrounding Armstrong’s witnesses and the related
continuance issue. Specifically, the court discussed the trial court’s denial of the
continuance, as well as the ineffective assistance of counsel claims relating to trial
counsel’s failure to secure the attendance of Armstrong’s witnesses. The district
court also discussed the prosecutor’s closing argument and ineffective assistance of
appellate counsel claims. The district court granted a certificate of appealability on
all issues covered in its order.

      On appeal, Armstrong’s court-appointed attorney argues two points. First, he
contends the state court denied Armstrong a fair trial by denying a continuance to
secure the attendance of Armstrong’s out-of-state witnesses to testify at trial. Second,
he contends trial counsel was ineffective by failing to secure the attendance of
Armstrong’s out-of-state witnesses at trial. Armstrong individually submitted a
number of pro se briefs, which appear to raise actual innocence claims.

II.    DISCUSSION
       A.     Standard of Review
       Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
a federal court grants habeas relief if the state court’s adjudication “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,”
or “resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(1)-(2). When a state

                                          -5-
court has not addressed an issue, a federal court cannot apply the deferential AEDPA
standards. See Taylor v. Bowersox, 329 F.3d 963, 968 (8th Cir. 2003). We review
de novo the district court’s legal conclusions and its factual findings for clear error.
Id.

       B.      Denial of Motion to Continue
       Armstrong argues his due process rights were violated when the trial court
denied his motion for a continuance to secure the presence of the out-of-state
witnesses. For support, Armstrong contends Lee v. Kemna, 534 U.S. 362 (2002),
held “the denial of a continuance by a state court in a murder trial in order to secure
the presence of witnesses violated that Petitioner’s due process rights thereby
depriving him of a fair trial.” Armstrong misreads Lee. In Lee, the Supreme Court
did not reach the merits of the due process claim. Instead, the Court addressed
whether Lee’s due process claim was procedurally barred by the application of state
law independent of the federal question. Holding Lee was not procedurally barred
by the technical application of state law, the Supreme Court remanded Lee’s due
process claim so the district court could analyze the merits of the claim. Id. at 387-
88. Because we address the merits of this claim, Lee does not control the outcome
of this issue.

       Armstrong did not specifically inform the trial court when the absent witnesses
would arrive for trial, nor did Armstrong inform the trial court about the substance
of the absent witnesses’ testimony. In deciding the continuance issue, the Missouri
Court of Appeals stated Armstrong’s argument does not yield “a clue about what [his
out-of-state] witnesses would have testified to or how their testimony would have
aided the defense.” The Missouri Court of Appeals also concluded the trial record
revealed Armstrong could not have secured the presence of his witnesses “any time
in the reasonably foreseeable future.”




                                          -6-
       The district court concluded the trial court’s denial of Armstrong’s motion for
a continuance, and the Missouri Court of Appeals affirmance of that denial, was not
contrary to, or an unreasonable application of, clearly established Supreme Court law.
We agree. The Supreme Court has recognized “[t]rial judges necessarily require a
great deal of latitude in scheduling trials. Not the least of their problems is that of
assembling the witnesses, lawyers, and jurors at the same place at the same time, and
this burden counsels against continuances except for compelling reasons.” Morris v.
Slappy, 461 U.S. 1, 11 (1983). Consequently, a trial court has broad discretion to
grant or deny a motion for a continuance. Id. The trial court heard Armstrong’s
request for a continuance, but was not provided the expected testimony of the absent
witnesses nor was the court advised when these witnesses would be available to
testify. Without some basis to delay Armstrong’s murder trial to await the possible
arrival of absent witnesses with unknown testimony, the trial court denied the
continuance motion. Because we see no sign the trial court abused its broad
discretion in denying the continuance motion, we hold AEDPA’s standards for habeas
relief have not been met.

      C.      Ineffective Assistance of Counsel2
      Armstrong’s overriding complaint is his out-of-state witnesses did not testify
at his trial, but should have. Armstrong contends his trial counsel’s deficient
performance was of constitutional proportion. To prove his counsel rendered
ineffective assistance, Armstrong must satisfy the two-prong test enunciated in
Strickland v. Washington, 466 U.S. 668 (1984). First, Armstrong must show his
counsel’s performance was deficient, i.e., objectively unreasonable. Id. at 688.
Armstrong must overcome “a strong presumption that counsel’s conduct falls within

      2
        Because Armstrong filed his state post-conviction relief motion late, the state
courts did not review the ineffective assistance claims. However, the district court
found cause to avoid procedural default on these claims. Thus, the district court did
not review Armstrong’s claims under AEDPA’s standard of review. As we have no
state court decisions to review, we also do not use AEDPA’s standard of review.

                                         -7-
the wide range of reasonable professional assistance.” Id. at 689. Second, even if
Armstrong satisfies the first prong, he must show the deficient performance
prejudiced him with an unreliable or fundamentally unfair outcome. Id. at 692.

              1.     Failure to Secure Attendance of Witnesses
        Armstrong claims trial counsel’s “misconduct in fumbling the attendance of the
witnesses raises [sic] to a level near that of res ipsa loquiter [sic].” Armstrong
complains that “[b]ringing exculpatory witnesses to trial is clearly a reasonable
obligation of a trial attorney and the failure to do so cannot be defended as a sound
trial strategy.” Armstrong claims he suffered prejudice because he was forced to
endure a trial for his life based on shaky evidence, “state witnesses with an ax to
grind,” and without the assistance of favorable witnesses.3

      The testimony of Armstrong’s companions was obviously important in this
murder case. Trial counsel knew this and attempted to secure the attendance of these
witnesses at trial. The district court found trial counsel explored two options to
secure the attendance of Armstrong’s witnesses, and chose to implement one option.
Theorizing the failure of the witnesses to appear at trial may have been based on
“miscommunication or lack of initiative on the part of the witnesses,” the district
court concluded trial counsel’s efforts to get Armstrong’s out-of-state witnesses to
appear at trial were not objectively unreasonable.




      3
        We recognize Armstrong personally did little to secure the attendance of his
brother and traveling companions at trial. The record paints a picture of witnesses not
the least bit motivated to travel to Missouri to testify in this murder case. Regardless
of the amount or lack of assistance provided to trial counsel by Armstrong and his
witnesses, the proper focus is on trial counsel’s performance. Could trial counsel
have compelled the witnesses’ attendance? Was trial counsel’s performance
objectively unreasonable and prejudicial to Armstrong’s defense?

                                          -8-
       For reasons unknown to us, the record does not reference two statutes which
are critical to disposing of Armstrong’s ineffective assistance claims. Both Missouri
and Wisconsin previously adopted the Uniform Act to Secure the Attendance of
Witnesses From Without the State in Criminal Proceedings (Uniform Act). See, e.g.,
Mo. Rev. Stat. § 491.420 (witnesses from another state summoned to testify in this
state); Wis. Stat. § 976.02 (uniform act for the extradition of witnesses in criminal
actions). Trial counsel could have secured the attendance of the out-of-state
witnesses at trial had she availed herself of these statutes. However, the record does
not mention these statutes or whether trial counsel, or the various courts, considered
these statutes. Therefore, we remand this issue to the district court to review
Armstrong’s ineffective assistance claim in light of these statutes. If the district court
believes an evidentiary hearing is necessary, it shall conduct one and make findings
of fact. When analyzing the impact of these statutes on the ineffective assistance
claim, the district court should address both prongs of the Strickland analysis,
providing the court’s findings of fact and conclusions of law. See, e.g., Garton v.
Swenson, 497 F.2d 1137, 1140 (8th Cir. 1974), remanded to 417 F. Supp. 697 (W.D.
Mo. 1976); see also Scott v. Roberts, 777 F. Supp. 897, 898 (D. Kan. 1991); Davis
v. Coiner, 356 F. Supp. 695, 698 (N.D. W. Va. 1973).

             2.      Failure to Secure Continuance
       Missouri has detailed procedural rules to secure trial continuances. See Mo.
Sup. Ct. R. 24.09, 24.10. Armstrong’s trial counsel failed to follow these procedural
rules when requesting a continuance, and the trial court did not mention the rules in
denying the continuance. The district court concluded trial counsel’s failure to
comply with the continuance rules or to secure a continuance did not constitute
ineffective assistance of counsel. Armstrong has not raised, briefed, or argued this
issue. Instead, Armstrong focuses on trial counsel’s failure to secure the attendance
of the witnesses at trial. We believe the resolution of the unresolved issue discussed
above may impact the resolution of this issue as well. Thus, we also remand this



                                           -9-
issue to the district court to analyze the Uniform Act’s impact, if any, on the
ineffective assistance claim regarding trial counsel’s failure to secure a continuance.

              3.    Failure to Object to Prosecutor’s Closing Argument
        In concluding his rebuttal argument, the prosecutor made the following
statement: “We’ve got a danger in our society today. The danger is not of convicting
innocent people, the danger is letting the guilty people like this Defendant go. We’ve
got an epidemic of crime. We’ve got to do something and this is your chance. The
officers have done all they can. The witnesses have done all they can. In a second
I’ll sit down and I’ve done all I can do and then the only thing you can, the only
person that can do anything about it is you. You stand between this Defendant, this
murderer, and the front door of this courthouse. Please do not let him get by.”
Armstrong’s trial counsel moved in limine to exclude argument about not convicting
innocent people, but the trial court denied that motion. Trial counsel renewed her
objection after the prosecutor’s closing argument, and the trial court stated it had
already denied the motion. On direct appeal, Armstrong’s appellate counsel argued
the prosecutor’s closing argument deprived Armstrong of a fair trial. The Missouri
Court of Appeals rejected this argument, holding the trial court did not err in allowing
the argument.

        Armstrong listed his trial counsel’s failure to object to closing argument as one
of his numerous ineffective assistance claims. The district court thoroughly discussed
this ineffective assistance claim, including a discussion to determine whether the
closing argument prejudiced Armstrong. The district court denied habeas relief on
these grounds, and, quoting Sublett v. Dormire, 217 F.3d 598, 600 (8th Cir. 2000),
noted “the combination of the strict due process standard of constitutional review, the
deferential review mandated by the AEDPA, and our less reliable vantage point for
gauging the impact of closing argument on the overall fairness of a trial results in an
exceptionally limited review.” The district court concluded the state court decisions
allowing the argument did not violate clearly established federal law, because the

                                          -10-
arguments were not unconstitutionally prejudicial. Quoting Sublett, 217 F.3d at 601,
the district court recognized “a jury’s common sense ability to put aside a particular
type of overzealous advocacy with the help of the court’s standard instruction that the
arguments of counsel are not evidence.” The district court decided trial counsel’s
failure to object was not objectively unreasonable, because she filed a motion in
limine and renewed her objection after the closing argument. We agree.

        In rebuttal, the prosecutor also referenced the absent out-of-state witnesses:
“All the witnesses [who testified] said that [Armstrong killed McGee and shot two
girls]. But there’s some other witnesses you didn’t hear from them. His four buddies.
If what [Armstrong]’s saying is true, don’t you think they’d be here backing him up?
They ain’t here.” Trial counsel did not object to this argument. The district court
found this argument did not violate Armstrong’s right to a fair trial, whether analyzed
as an ineffective assistance claim or independently as a due process claim, because
the argument was made during rebuttal, after Armstrong’s trial counsel had already
offered personal opinions about the case. Citing United States v. Young, 470 U.S.
1 (1985), the district court concluded any potential harm resulting from the closing
argument “was mitigated by the jury’s probable understanding that the prosecutor was
countering defense counsel’s remarks as well as the overwhelming evidence of the
defendant’s guilt.”

      Because the failure to object to closing argument was not raised, briefed, or
argued on appeal, we will not address it further. Agreeing with the district court, we
conclude the prosecutor’s closing argument does not necessitate habeas relief.

               4.    Appellate Counsel’s Alleged Deficiencies
       In his habeas application, Armstrong faults his appellate counsel for failing to
raise ballistic issues on appeal, failing to raise the issue of sleeping jurors, failing to
raise ineffective assistance claims, and failing to adequately argue the continuance
issue. On appeal, Armstrong has not raised, briefed, or argued the ineffective

                                           -11-
assistance of appellate counsel claims. Regardless, we conclude the district court
appropriately denied habeas relief on these grounds. See 8th Cir. R. 47B.

       D.     Actual Innocence Claim
       Armstrong submitted numerous handwritten, pro se briefs to us. On the one
hand, Armstrong claims he was wrongfully convicted and has “new evidence because
it was never submitted as evidence and exhibits for the juries [sic] review.” On the
other hand, Armstrong acknowledges “[t]here is no newly discovered evidence.” In
essence, Armstrong attacks the prosecutor for prosecuting him knowing Armstrong
is innocent, and also condemns his trial counsel for failing to adequately defend him.
Claiming he was wrongfully convicted of crimes he did not commit, Armstrong asks
us to grant him an evidentiary hearing so he can explain to the district court why he
is innocent. In the alternative, Armstrong asks us to discharge him from prison for
being wrongly convicted. In essence, Armstrong contends he is innocent of the
crimes for which he was convicted, and asks this court to avoid a fundamental
miscarriage of justice by applying the principles enunciated in Schlup v. Delo, 513
U.S. 298 (1995). The district court did not specifically address these arguments. Out
of an abundance of caution, we have reviewed Armstrong’s pro se arguments and the
record, and we find no new evidence supporting Armstrong’s innocence claim. See
Jones v. Jerrison, 20 F.3d 849, 856 (8th Cir. 1994) (considering pro se arguments on
appeal for first time “out of an abundance of caution and without establishing any rule
for doing so in future cases”). The testimony of the out-of-state witnesses was
certainly available at the time of trial. Thus, we reject Armstrong’s pro se actual
innocence claim. However, as discussed above, Armstrong will have the opportunity
to re-address the issue of whether his trial counsel’s failure to secure the attendance
of the out-of-state witnesses constituted ineffective assistance.




                                         -12-
      E.     Remaining Claims
      The district court summarily rejected Armstrong’s remaining claims as “either
not cognizable, procedurally defaulted, or without merit.” We agree and do the same.
See 8th Cir. R. 47B.

III.  CONCLUSION
      We neither reverse the district court nor grant the application for a writ of
habeas corpus. Instead, we affirm the district court on all claims except the two
ineffective assistance of counsel claims discussed above. On these two claims only,
we remand the case to the district court for the limited purpose of considering
whether trial counsel’s failure to secure the attendance of the out-of-state witnesses
or a continuance in light of the Uniform Act constituted ineffective assistance of
counsel under Strickland. If necessary, the district court shall conduct an evidentiary
hearing on these issues only. We affirm all other issues in the certificate of
appealability.

WOLLMAN, Circuit Judge, concurring.

       I concur in that portion of the opinion which remands the case to the district
court for a determination of whether counsel’s failure to secure the attendance of the
out-of-state witnesses constituted ineffective assistance.

      Because they may well be rendered moot by our ultimate holding on the
ineffective assistance claim, I would reserve ruling on the remaining issues presented
by the appeal until such time as it is necessary to do so.
                        ______________________________




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