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                                 No. 95-4245EM
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Daniel J. Klueg,                          *
                                          *
           Appellant,                 *   On Appeal from the United
                                          *     States District Court
     v.                                   *     for the Eastern District
                                          *     of Missouri
Michael Groose,                       *
                                          *
           Appellee.                      *
                                          *
                                          *

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                          Submitted: November 19, 1996

                             Filed:   February 6, 1997

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Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and
LONGSTAFF,* District Judge.

                                ---------------

RONALD E. LONGSTAFF, District Judge.

     On August 6, 1987, Appellant Daniel J. Klueg was convicted by jury
in the Circuit Court of St. Louis County, Missouri on two charges of
burglary in the second degree and two charges of felony stealing.     He was
sentenced as a repeat offender to 45 years imprisonment.        The Missouri
Court of Appeals affirmed Klueg's conviction on direct appeal.      State v.
Klueg, 781 S.W.2d 133 (Mo. Ct. App. 1989).
       Klueg subsequently filed a petition for writ of habeas corpus in
federal district court.    Klueg's amended petition raised two constitutional
challenges to his state court conviction: ineffective assistance of counsel
and involuntariness of his
confession.   On March 15, 1995, a magistrate judge1 issued a report and
recommendation that the petition be denied.       Specifically, the magistrate
judge found Klueg had procedurally defaulted on his ineffective assistance
of counsel claim, and concluded Klueg's confession was voluntary.                The
district judge2 adopted the magistrate judge's report and recommendation.
     In the present appeal, Klueg focuses his argument on one central
issue:   whether   his   confession   was   involuntary   and   should   have   been
suppressed from evidence.     We affirm the decision of the district court.


                                       I.
     On December 15, 1986, the St. Louis Police Department learned through
a confidential informant that Klueg possessed certain stolen property,
including a video cassette recorder ("VCR").      The police gave the informant
currency that had been photocopied to make a controlled buy of the stolen
VCR, and followed the informant to Klueg's residence.           The informant and
Klueg then drove to another location, where police observed Klueg putting
on gloves and retrieving a VCR from a storage shed.
     At this point, Klueg and the informant drove to the residence of
Klueg's girl friend.     The informant left the residence with the VCR in his
trunk, and drove to the police station.        Officers took possession of the
VCR, and returned to the girl friend's residence.
     Police knocked on the front door, and were greeted by Klueg's 16
year-old girl friend, wearing only a negligee.      She told the officers that
Klueg was in the basement.     Although the officers did




     * The Honorable Ronald E. Longstaff, United States District
Judge for the Southern District of Iowa, sitting by designation.
     1
       The Honorable David D. Noce, United States Magistrate
Judge for the Eastern District of Missouri.
     2
       The Honorable Carol E. Jackson, United States District
Judge for the Eastern District of Missouri.

                                        2
not have a warrant, the girl friend agreed to allow the officers to enter
the house and speak with Klueg.             Officers found Klueg in the basement,
lying nude in his girl friend's bed.          He was then placed under arrest, and
a search of his pants pocket revealed the $150.00 given to the informant
by the police.
           The police subsequently obtained the girl friend's verbal and
written consent to search the premises, and uncovered property believed to
be stolen from two different residences.              Klueg was taken to the police
station for interrogation, and informed of his Miranda rights.                        He then
signed a Waiver of Rights Form.
      Initially,      Klueg    denied     knowledge   of    or    participation       in   any
burglaries.    The interrogating officer, Timothy Hagerty, showed Klueg all
of the property seized from the girl friend's residence, and told Klueg he
might also be facing a statutory rape charge, due to the fact he was found
naked in the home of a fifteen year old girl, clad only in a negligee.
Klueg then completed a written confession, which was admitted into evidence
at trial.


                                           II.
      Klueg   first    contends     the    district     court     failed     to    apply   the
appropriate    legal    standard    in     evaluating      the    voluntariness       of   his
confession.    We disagree.
      Under federal habeas law, a reviewing court must evaluate de novo the
ultimate determination as to whether a confession was voluntary, giving
substantial deference to the state court's finding of facts.                      Williams v.
Clarke, 40 F.3d 1529, 1543 (8th Cir. 1994) (citing Miller v. Fenton, 474
U.S. 104, 117 (1985)).        The legal test for evaluating whether a confession
was coerced is "'whether, in light of the totality of the circumstances,
pressures exerted upon the suspect have overborne his will.'"                          United
States v. Jones, 23 F.3d 1307, 1313 (8th Cir. 1994) (quoting United States
v. Jorgensen, 871 F.2d 725, 729 (8th Cir. 1989)).
      In the present case, the district court gave appropriate deference
to   the   Missouri    appellate    court's      depiction       of   the   factual    events
surrounding Klueg's interrogation.           It then




                                             3
correctly noted that the voluntariness of a confession was a legal issue,
and conducted an independent review before reaching its conclusion.                        See
Klueg v. Groose, No. 4:92 CV 754 CEJ, slip op. at 3-4 (E.D. Mo. Mar. 15,
1995).
            We further agree with the district court's conclusion that, in light
of the totality of the circumstances, Klueg's claim of a coerced confession
is without merit.          It was not unlawful for Detective Hagerty to inform
Klueg he could be charged as a result of having sexual intercourse with a
16 year-old girl.3       United States v. Jorgensen, 871 F.2d 725, 730 (8th Cir.
1989)       (creating   fear    of    imminent       arrest   did   not   render    confession
involuntary);
Under Missouri law in effect at the time, it would have been possible to
charge Klueg with second degree sexual assault if he indeed had sexual
intercourse with a 16 year-old, regardless of whether she had given her
consent.4       Although describing the charge as "statutory rape" might have
been misleading, we find that the prospect of being charged with one more
crime was not sufficient to induce a confession.                    Klueg had five previous
felony       convictions   at   the    time   of      his   interrogation,    and    was   well
acquainted with the criminal justice system.                  See United States v. Jones,
23 F.3d 1307, 1313 (8th Cir. 1994); United States v. Barahona, 990 F.2d
412, 418 (8th Cir. 1993) ("totality of circumstances" may include such



        3
       In actuality, the detective told Klueg he could be charged
for raping a 15 year-old girl, even though Klueg's girl friend was
16 years-old at the time. State v. Klueg, 781 S.W.2d at 135. It
is not clear why the detective made this error, but we do not find
it to be constitutionally significant.
        4
            In 1986, Missouri Revised Statute § 566.050 provided in
part:

          1.   A person commits the crime of sexual assault in
the second degree if, being seventeen years old or more, he has
sexual intercourse with another person to whom he is not married
who is sixteen years old.

Mo. Rev. Stat. § 566.050 (1986) (repealed 1995).

     It is undisputed Klueg was 22 years-old on the day of his
arrest.

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factors as defendant's prior experience with criminal proceedings).                   In
light of the totality of the circumstances, we find no evidence that
"'pressures exerted upon the suspect [had] overborne his will.'"                  United
States v. Jones, 23 F.3d at 1313 (quoting United States v. Jorgensen, 871
F.2d at 729.
      Klueg also claims the district court erred in failing to give him an
evidentiary hearing on the issue of voluntariness.               Again, we disagree.
Klueg argues the record is inadequate due to the fact Sergeant Michael
Panneri, who allegedly was present during            Klueg's confession, failed to
testify.     Klueg claims Sergeant Panneri's testimony is necessary to develop
the record regarding alleged statements made by Detective Hagerty during
the interrogation.
      We have previously held that when a petitioner claims the facts have
been inadequately developed in the state court, a petitioner is not
entitled to an evidentiary hearing unless "'he can show cause for his
failure    to    develop    the   facts   in   state-court   proceedings    and   actual
prejudice resulting from that failure.'"           Stewart v. Nix, 31 F.3d 741, 743
(8th Cir. 1994) (quoting Keeney v. Tamayo-Reyes, 504 U.S. 1, 11, (1992)).
As   noted   in    the    respondent-appellee's     brief,   Klueg   has   provided   no
justification for his own failure to present Sergeant Panneri's              testimony
during state court pre- or post-conviction proceedings.              Even assuming he
could establish cause, Klueg has failed to establish actual prejudice from
Panneri's failure to testify.              With or without admission of Klueg's
confession, there is ample evidence in the record to support Klueg's
conviction.      See e.g. Parkus v. Delo, 33 F.3d 933, 938-940 (8th Cir. 1994)
(actual prejudice shown if petitioner can show "reasonable probability"
that but for the errors, result of proceeding would have been different).
      Klueg's remaining arguments are without merit.
      The judgment of the district court is affirmed.

      A true copy.

                Attest:

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




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