                                    ___________

                                    No. 95-3784
                                    ___________

Ronnie Parker,                           *
                                         *
              Appellant,                 *
                                         *    Appeal from the United States
     v.                                  *    District Court for the
                                         *    Eastern District of Missouri.
Michael S. Bowersox,                     *
Jeremiah W. Nixon,                       *
                                         *
              Appellees.                 *
                                    ___________

                     Submitted:     June 14, 1996

                           Filed:   August 26, 1996
                                    ___________

Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN, Circuit Judge, and
      KORNMANN,* District Judge.
                               ___________


WOLLMAN, Circuit Judge.


     Ronnie Parker appeals the denial of his 28 U.S.C. § 2254 petition,
arguing that his Fourteenth Amendment due process rights and his Sixth
Amendment right to effective assistance of counsel were violated during his
state court trial and appeal.       We affirm.


                                        I.


     At approximately 2:00 p.m. on February 6, 1989, Beverly Tate was shot
and killed.    Her neighbor, Johnetta Graham, testified that less than two
hours before Tate's death, she saw Parker, Tate's former boyfriend, sitting
on a stool outside the door of Tate's




     *The HONORABLE CHARLES B. KORNMANN, United States
     District Judge for the District of South Dakota, sitting
     by designation.
apartment.    Shortly thereafter, she heard Tate open her door, and she then
heard scuffling sounds, as if Tate were trying to close the door but could
not because someone was pushing it from the opposite side.                       As the
struggling parties entered the apartment, the noise escalated to screams,
and Graham heard punching sounds and then Tate's voice screaming, "Ronnie,
stop punching me, Ronnie, stop hitting me."              She then heard Parker respond,
"Where is my gun?         You are playing tricks, you bitch, you bitch."              The
sounds moved upstairs to where Tate's bedroom was located, and they were
subsequently drowned out by the noise of a television.


        Graham called the police, who arrived at approximately 12:50 p.m.
Two police officers knocked on Tate's door, but heard no answer.               The noise
quieted.     After waiting for approximately thirty minutes, the officers
left.    Approximately thirty minutes later they returned to Tate's apartment
after receiving a call from the apartment manager reporting the sound of
a gunshot.    They discovered Tate's body, naked on the floor of her bedroom,
with a fatal bullet wound to her head.


        Latez Strong, who was visiting his sister in the apartment to the
immediate left of Tate's, corroborated Graham's testimony, although he
testified that he did not know the identities of the male and female that
he heard fighting next door.            In addition to the sounds heard by Graham,
Strong testified that he heard a male voice say, "If [you are] going to act
like a dog, I'll treat you like a dog.             Get f--- naked."      Strong further
testified that after the police left the first time, he heard a gunshot.


        A criminalist with the St. Louis police department testified that the
results    from   tests    of   swabs    taken    from   Tate's   body   indicated   anal
intercourse.      The medical examiner testified that in addition to the
gunshot wound to Tate's head, her body contained some "irregular very thin
scratches and superficial punctures in the small area of the back and on
to the adjacent parts of the




                                            -2-
buttocks."


     Mildred Morgan, Tate's mother, testified, over Parker's objection,
that Parker and her daughter had fought on previous occasions and that
Parker had "blackened her eyes."     She also testified that her daughter
wished to discontinue her relationship with Parker and had made plans to
move to California.   Over Parker's objection, Morgan further testified that
her daughter did not want Parker around because she had recently completed
a drug treatment program.       Counsel moved for a mistrial after this
testimony, arguing that the implication that Parker was a drug user was
irrelevant and prejudicial.   The court denied the request for a mistrial,
but directed the jury to disregard the last statement.


     Following his conviction for murder, sodomy, and armed criminal
action, Parker filed a petition for state post-conviction relief, which was
denied.   After consolidating Parker's appeal from this ruling with his
direct appeal, the Missouri Court of Appeals affirmed both Parker's
conviction and the denial of his petition for post-conviction relief.
Parker then filed this petition for writ of habeas corpus, which the
district court1 denied.


                                    II.


     Parker first argues that his due process rights were violated by the
trial court's admission of Mildred Morgan's testimony referring to past
fights between Tate and Parker and implying that Parker was a drug user.
Parker attacks this testimony as improper evidence of prior bad acts and
as irrelevant.


     A state court's evidentiary rulings can form the basis for federal
habeas relief under the due process clause only when they




     1
      The Honorable Donald J. Stohr, United States District Judge
for the Eastern District of Missouri.

                                    -3-
were so conspicuously prejudicial or of such magnitude as to fatally infect
the trial and deprive the defendant of due process.     Troupe v. Groose, 72
F.3d 75, 76 (8th Cir. 1995); Bennett v. Lockhart, 39 F.3d 848, 856 (8th
Cir. 1994), cert. denied, 115 S. Ct. 1363 (1995).    We find that the errors
alleged by Parker were not of such magnitude as to support a due process
claim.   The jury was instructed to disregard the comment implying that
Parker was a drug user, and we presume that it did so.     See United States
v. Koskela, 86 F.3d 122, 125 (8th Cir. 1996).       Moreover, in light of the
abundant testimony that Parker was in the apartment threatening and hitting
Tate shortly before her death, the evidence that on one or two prior
occasions Parker blackened Tate's eyes was not sufficiently prejudicial to
fatally infect the trial.


                                    III.


     Parker next argues that he received ineffective assistance of both
trial and appellate counsel.     As it pertains to trial counsel, this
argument is based on counsel's failure to object to testimony that Parker
characterizes as inadmissible hearsay and his failure to call a certain
witness in Parker's defense.   Parker contends that his appellate counsel
failed to appeal the admission of allegedly prejudicial evidence of witness
threats and that he failed to appeal the sufficiency of the evidence
supporting the murder conviction.


     To obtain relief for a claim of ineffective assistance of either
trial or appellate counsel, a defendant must show both that his attorney's
performance fell below an objective standard of reasonableness and that he
was prejudiced by that deficient performance.    Strickland v. Washington,
466 U.S. 668, 687-688 (1984); Harris v. State, 960 F.2d 738, 740 (8th Cir.
1992) (applying Strickland analysis to appellate counsel), cert. denied,
506 U.S. 921 (1992).




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                                A.   Trial Counsel


     Without   objection   by    trial   counsel,    Morgan   testified   that   her
daughter told her that she did not wish to continue her relationship with
Parker.   The district court characterized this testimony as fitting into
the state-of-mind exception to the hearsay rule under Missouri law.              See
State v. Post, 901 S.W.2d 231, 235 (Mo. App. Ct. 1995).         We need not delve
into the intricacies of Missouri evidentiary law to determine whether this
characterization was correct, because we find that even if counsel erred
in failing to object to this testimony, the omission was not sufficiently
prejudicial to warrant habeas relief.      In light of the strong evidence that
Tate wished to keep Parker out of her apartment on that day and that once
he entered a vicious struggle ensued, the jury could have reasonably
inferred (indeed, could hardly have done otherwise) that Tate wished to end
her relationship with Parker even without this evidence.          Moreover, given
the strong evidence of guilt, Parker has failed to show that there is a
reasonable probability that, but for counsel's failure to object to this
evidence, the result of the trial would have been different.                     See
Strickland 466 U.S. at 694.


     Parker next attacks his trial counsel's failure to call Donald Cohen
as a witness in his defense.     Cohen allegedly would have testified that he
saw a man leaving Tate's apartment building around the time of the killing.
Cohen's description of this man is inconsistent with Parker's appearance.
This claim was first addressed to the state court at Parker's sentencing
hearing, during which his trial counsel stated that he had spoken with
Cohen, but that Cohen refused to give him an address or phone number at
which he could be contacted.         Counsel further stated that he and his
investigator set up a meeting with Cohen but that Cohen did not show up for
the arranged meeting.      According to counsel, he and his investigator
perceived that Cohen was extremely reluctant to get involved and that "as
a matter of trial strategy [they] felt there




                                         -5-
was nothing to do."


     Parker again raised this claim in his Rule 29.15 motion for post-
conviction relief.      The Rule 29.15 court, pointing to trial counsel's
explanation of his actions, found the claim to be without merit.          Several
months after this hearing, Parker obtained an affidavit in which Cohen
stated that he had been willing to testify at trial but that he was not
called by anyone to do so.        In addition, more than three years after
obtaining Cohen's affidavit, Parker obtained an affidavit from his brother,
Aaron Parker, stating that Aaron had met with trial counsel prior to
Parker's trial and gave him Cohen's address and phone number.           As these
affidavits    were   prepared   after   the   conclusion   of   the   state-court
proceedings, the district court was apparently the first court to consider
this new evidence.      The district court determined that an evidentiary
hearing on this issue was not warranted, and we agree.


     We must evaluate counsel's decision not to interview or call a
particular witness from the perspective of counsel at the time the decision
was made.    See Whitmore v. Lockhart, 8 F.3d 614, 619 (8th Cir. 1993).      When
evaluated in this light, trial counsel's performance did not fall outside
the wide range of professionally reasonable performance.        See Strickland,
466 U.S. at 687.


     In any event, we find that Parker was not prejudiced by counsel's
failure to call Cohen as a witness.            The jury heard uncontroverted
testimony that Parker was sitting outside Tate's apartment less than two
hours before the murder and that a person, whom Tate was calling "Ronnie"
and whose voice Graham testified sounded like Parker's, was in Tate's
apartment punching her and shouting "Where is my gun?" less than an hour
before Tate was shot.    In light of this testimony, we conclude that there
is no reasonable likelihood that the outcome of the trial would have been
different had the jury heard testimony that a man who did not fit Parker's
description was seen leaving the building around the time of the




                                        -6-
murder.    See Strickland, 466 U.S. at 694.


                                   B.    Appellate Counsel


       Parker argues that his appellate counsel was ineffective for failing
to raise two issues on appeal:            1) the trial court's admission of evidence
of    threats    allegedly   received       by   prosecution   witnesses;   and   2)   the
sufficiency of the evidence supporting the murder conviction.


       We find that counsel's failure to raise these issues on appeal did
not    rise     to   the   level    of     constitutionally    deficient    performance.
Reasonable appellate strategy requires an attorney to limit the appeal to
those issues which he determines to have the highest likelihood of success.
To perform competently under the Sixth Amendment, counsel is neither
required nor even advised to raise every conceivable issue on appeal.                  See
Ruff v. Armontrout, 77 F.3d 265, 268 (8th Cir. 1996).


       Evidence that witness Strong had received threats that led to his
reluctance to testify against Parker arose because of a strategy followed
by Parker's trial counsel.              Strong's testimony before the grand jury was
highly favorable to the state.            At a pre-trial hearing, however, he became
a much less cooperative witness.                 In fact, he initially attempted to
exercise his perceived Fifth Amendment right against self-incrimination.
When the prosecuting attorney met with him and ostensibly explained that
he was in no danger of incriminating himself and therefore had no Fifth
Amendment right not to testify, Strong reluctantly testified against
Parker, both at the hearing and at trial.             On cross examination at trial,
defense counsel asked Strong if he remembered taking the Fifth Amendment
at the pre-trial hearing.          The state objected on relevancy grounds, but the
court allowed the testimony, giving the state permission to question Strong
on this point during re-direct examination.            On re-direct, the prosecuting
attorney




                                              -7-
elicited an explanation from Strong that his attempt to invoke the Fifth
Amendment was prompted by his fear that his family would be harmed if he
testified.


     Having opened the door to this testimony, Parker may not now argue
that the court erred in allowing the state to obtain an explanation for
Strong's reluctance to testify.    Accordingly, appellate counsel's failure
to raise this issue on appeal was not only reasonable, but prudent.


     Parker next attacks his appellate counsel's choice to appeal the
sufficiency of the evidence supporting the sodomy conviction but not of
that supporting the murder conviction.      In light of the ample evidence
supporting the murder conviction, we find this decision to be well within
the bounds of competent appellate assistance.


                    C.    State Post-Conviction Counsel


     The basis of Parker's final ineffective assistance claim is that
potential jurors at his trial were challenged solely on the account of
their race in violation of Batson v. Kentucky, 476 U.S. 79 (1986).     This
claim comes to us in a rather convoluted posture.    Parker claims that his
trial counsel was ineffective for failing to raise a Batson challenge
during the voir dire.    Because this claim was considered by the Rule 29.15
court, Parker is confined to an argument that his state post-conviction
appellate counsel was ineffective for failing to appeal the Rule 29.15
court's denial of this claim.     Because a defendant has no constitutional
right to effective assistance of counsel on the appeal of a Rule 29.15
motion, ineffective assistance claims such as this one are not cognizable.
Lowe-Bey v. Groose, 28 F.3d 816, 820 (8th Cir.), cert. denied, 115 S. Ct.
674 (1994).




                                     -8-
                                    IV.


     Parker next argues that he was denied due process because the
evidence was insufficient to support his sodomy conviction.        A sodomy
conviction under Missouri law requires proof that defendant "has deviate
sexual intercourse with another person to whom he is not married, without
that person's consent by the use of forcible compulsion."   Mo. Rev. Stat.
§ 566.060.


     We conclude that Parker's challenge to the sufficiency of the
evidence is without merit.   Tate's mother testified that her daughter and
Parker were not married.     The medical examiner found numerous sperm in
Tate's rectal cavity, which implied that Tate had engaged in anal sex.
Strong testified that he heard a male named "Ronnie" state to a female, who
could hardly have been anyone other than Tate, "If [you are] going to act
like a dog, I'll treat you like a dog," and "Get f--- naked."      Moreover,
the jury heard evidence of possible coercion with a gun and evidence of
scratches and punctures on Tate's back and buttocks.   Viewed in the light
most favorable to the verdict, this circumstantial evidence was sufficient
to allow a reasonable jury to infer that Tate was forced to submit to anal
intercourse and that Parker was the perpetrator.


     The judgment is affirmed.


     A true copy.


             Attest:


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




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