                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 02-1833
                                     ___________

Dennis Williams,                          *
                                          *
      Petitioner - Appellant,             *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Eastern District of Missouri.
Mike Kemna,                               *
                                          *
      Respondent - Appellee.              *
                                     ___________

                                Submitted: September 13, 2002

                                    Filed: November 26, 2002
                                     ___________

Before LOKEN, RILEY, and SMITH, Circuit Judges.
                            ___________

LOKEN, Circuit Judge.

        A jury convicted Missouri inmate Dennis Williams of robbery. The Missouri
Court of Appeals affirmed and then summarily denied Williams’s motion to recall the
appellate mandate based upon the alleged ineffective assistance of appellate counsel
in failing to argue various issues on direct appeal. Williams then filed this petition
for a writ of habeas corpus under 28 U.S.C. § 2254, asserting numerous claims. The
district court1 denied the petition but granted a certificate of appealability on the

      1
       The HONORABLE CAROL E. JACKSON, Chief Judge of the United States
District Court for the Eastern District of Missouri.
claim that the trial court committed constitutional error by permitting counsel to
exercise peremptory strikes and by seating the jury in Williams’s absence. Williams
procedurally defaulted this claim in the state courts. We conclude his default is not
excused by ineffective assistance of appellate counsel in failing to raise the claim on
direct appeal. Accordingly, the claim is procedurally barred, and we affirm.

        At trial, Williams was present during the voir dire of the jury panel, and he
consulted with trial counsel regarding the exercise of peremptory strikes. He was not
present, however, when counsel exercised the strikes in chambers, and he did not
return to the courtroom until after the selected jurors were seated. At that time, the
trial court asked the parties if the seated jurors comported with their strikes. Neither
Williams nor his counsel objected. The jury was then sworn and the remainder of the
venire panel excused.

       Williams argues that this procedure violated his constitutional right “to be
present at all stages of the trial where his absence might frustrate the fairness of the
proceedings.” Faretta v. California, 422 U.S. 806, 819 n.15 (1975). Although he
argues the merits of this constitutional claim as though he were appealing a federal
conviction, he is instead a state inmate seeking federal habeas relief. Therefore, the
first question is whether he has preserved the claim for federal habeas review.

       As Williams never raised this claim to the state courts, it is procedurally
defaulted, and he must show cause and prejudice excusing the default to obtain
federal habeas review. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Ineffective assistance of trial or appellate counsel may be cause excusing a procedural
default. See Murray v. Carrier, 477 U.S. 478, 491-92 (1986). However, in order to
urge ineffective assistance as cause excusing a procedural default, the federal habeas
petitioner must have properly raised the ineffectiveness claim in state court. See
Edwards v. Carpenter, 529 U.S. 446, 450-53 (2000); Tokar v. Bowersox, 198 F.3d
1039, 1051 n.13 (8th Cir. 1999), cert. denied, 531 U.S. 886 (2000).

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       In this case, Williams argued to the district court that both trial and appellate
counsel were ineffective in failing to raise the lack-of-presence claim in state court.
But he did not preserve the claim of trial counsel ineffectiveness by presenting it to
the state courts, so this claim may not excuse the procedural default at issue.
Williams did argue in a motion to recall the Missouri Court of Appeals mandate that
appellate counsel was ineffective in failing to argue on direct appeal that the trial
court erred “when it allowed trial counsel to proceed during one of the most crucial
stages of the trial without the defendant being present.” For petitioners such as
Williams who were sentenced prior to January 1, 1996, this was the proper way to
raise a claim of ineffective assistance of appellate counsel under Missouri law. See
Chambers v. Bowersox, 157 F.3d 560, 565-66 & n.5 (8th Cir. 1998), cert. denied, 527
U.S. 1029 (1999). Thus, Williams preserved his ability to argue ineffective assistance
of appellate counsel as cause excusing his procedural default.

       To prove ineffective assistance of appellate counsel, Williams must show that
counsel’s performance fell below an objective standard of reasonableness and that the
deficient performance prejudiced his appeal. See Tokar, 198 F.3d at 1051-52.
Because Williams did not raise the lack-of-presence issue in the Missouri trial court,
it was subject to plain error review on direct appeal.2 To establish plain error under
Missouri law, an appellant must “show that the trial court’s error so substantially
violated his rights that manifest injustice or a miscarriage of justice results if the error
is not corrected.” State v. Cole, 71 S.W.3d 163, 170 (Mo. banc 2002) (quotation
omitted). Given this narrow standard of review, it is difficult to prove ineffective
assistance based upon appellate counsel’s failure to raise an issue that, if raised,
would have been subject to plain error review:

       2
        As respondent does not argue to the contrary, we assume that the trial court’s
failure to have Williams present when counsel exercised their peremptory strikes is
an issue subject to discretionary plain error review by the Missouri appellate courts.
See Mo. Sup. Ct. R. 30.20; State v. Johnson, 968 S.W.2d 686, 691 (Mo. banc 1998).


                                            -3-
      [T]he Sixth Amendment does not require that appellate counsel raise
      every colorable or non-frivolous issue on appeal. . . . The decision to
      forgo a plain error claim is usually the result of a reasonable winnowing
      of weaker appellate claims. Therefore, we rarely conclude that an
      appellate attorney’s performance was constitutionally deficient for not
      raising such a claim.

Roe v. Delo, 160 F.3d 416, 418 (8th Cir. 1998) (citations omitted); accord Roberts
v. Delo, 205 F.3d 349, 352 (8th Cir. 2000).

       In considering whether appellate counsel’s failure to raise the lack-of-presence
claim was ineffective assistance, we must also take into account the fact that Williams
had no absolute due process right to be present during a specific portion of jury
selection. A defendant has a constitutional right to be present “to the extent that a fair
and just hearing would be thwarted by his absence, and to that extent only.” United
States v. Gagnon, 470 U.S. 522, 526 (1985) (quotation omitted). Applying this
limited standard in a state habeas case, the Second Circuit concluded that the
defendant had no constitutional right to be present during the exercise of peremptory
strikes in the trial court’s chambers because he was present during questioning of the
prospective jurors, had an opportunity to register his opinions with counsel after juror
questioning, and was present when the strikes were “given formal effect.” Cohen v.
Senkowski, 290 F.3d 485, 490 (2d Cir. 2002). Similarly, in United States v. Chrisco,
493 F.2d 232, 236-37 (8th Cir.), cert. denied, 419 U.S. 847 (1974), and in United
States v. Gayles, 1 F.3d 735, 738 (8th Cir. 1993), we concluded that the defendant’s
constitutional right was not violated when he was not present while counsel exercised
peremptory strikes over the noon recess because the defendant was present during
voir dire and when the strikes were given effect.

      Surveying Chrisco and Gayles (Cohen was a later decision), and the absence
of favorable Missouri precedent, Williams’s appellate counsel could reasonably
conclude it was highly unlikely the Missouri Court of Appeals would find plain error

                                           -4-
in the trial court’s failure to insist that Williams be present during trial counsel’s
exercise of peremptory strikes and the seating of the chosen jurors. Williams argues
that Chrisco is distinguishable because his jurors were already seated when he
returned to the courtroom. But Williams’s absence at that point of the proceedings
did not thwart his right to a fair hearing because he had observed the potential jurors
during voir dire, had ample opportunity to discuss who to strike before counsel
exercised the strikes, and had an opportunity to object to the seated jurors before they
were sworn. Moreover, Williams has presented no evidence that any seated juror was
biased or otherwise unqualified, which is surely an essential showing under a plain
error standard requiring proof of a violation that resulted in manifest injustice or a
miscarriage of justice.

       In these circumstances, we conclude that Williams has proved neither
constitutionally deficient performance by his appellate counsel nor prejudice, that is,
a reasonable probability that, but for counsel’s deficient performance, the result of his
direct appeal would have been different. Therefore, Williams has failed to establish
cause excusing his procedural default in the state courts, and his constitutional lack-
of-presence claim is procedurally barred.

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

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




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