                                    ___________

                                    No. 96-1718
                                    ___________

Laird K. Mitchell,                       *
                                         *
                Appellant,               *
                                         *   Appeal from the United States
        v.                               *   District Court for the
                                         *   Eastern District of Missouri.
Mike Kemna,                              *
                                         *
                Appellee.                *


                                    ___________

                         Submitted: November 19, 1996

                             Filed: March 26, 1997
                                     ___________

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS
      SHEPPARD ARNOLD, Circuit Judge.

                                    ___________

HENLEY, Senior Circuit Judge.



    Laird K. Mitchell appeals from a judgment of the district court1
denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254.       We affirm.
    Mitchell was convicted of second-degree robbery.            At trial, the
victim, Ada Wise, testified that after she had opened the door to her
apartment, Mitchell, who was a former resident of the apartment complex,
put his hand over her mouth, forced her inside the




        1
      The Honorable Carol E. Jackson, United States District Judge
for the Eastern District of Missouri, adopting the Report and
Recommendation of United States Magistrate Judge Frederick R.
Buckles.
apartment, and, with the help of an accomplice, took her television set and
other items.     Fred Green, who lived across the hall from Wise, testified
that after he heard a scream he looked through his peephole and saw
Mitchell force Wise into her apartment.             After he telephoned the police,
Green saw Mitchell leave Wise’s apartment with a television set.


       On appeal, Mitchell first argues that his counsel was ineffective for
failing to investigate or challenge the mental competency of Wise and
Green.    See Strickland v. Washington, 466 U.S. 668 (1983).            He asserts that
counsel’s performance was deficient because counsel should have been aware
that the witnesses were mentally ill.         Mitchell notes that Green testified
that he was fifty-four years old and that the residents of the apartment
complex were either senior citizens or mentally ill and that the trial
court observed that Wise had made facial expressions and mannerisms that
suggested that she suffered from a physical disability.             Mitchell further
asserts that he was prejudiced by the deficient performance.                 He reasons
that had counsel investigated and challenged the witnesses’ competency, the
trial    court   would   have      found   them    incompetent,   and   without   their
testimony, the state would not have had a case.
       Mitchell’s   claims   are    without   merit.       Even   assuming   counsel’s
performance was deficient, Mitchell has failed to establish prejudice.
Although Mo. Rev. Stat. § 491.060(1) provides that “[a] person who is
mentally incapacitated at the time of his production for examination” is
incompetent to testify, it does not provide that a “mentally ill” person
is incompetent to testify.          Rather, “[t]he      effect of the statute is to
create the prima facie presumption that a person confined to a mental
institution under lawful process or adjudicated as mentally ill is []
incompetent as a witness.”          State v. Beine, 730 S.W.2d 304, 307 (Mo. Ct.
App.




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1987) (internal quotation omitted).      Other persons, including ”mentally
ill” persons, are presumed competent to testify.         Id. (witness who had
“[t]reatment at a mental hospital in the past and monthly outpatient
treatment” presumed competent to testify) (internal quotation omitted).
To overcome the presumption of competency, a party must demonstrate that
a witness does not “understand[] the nature of an oath” and does not
“demonstrate[] a mental capacity sufficient to observe, recollect and
narrate the things heard and seen.”    State v. Johnson, 714 S.W.2d 752, 758
(Mo. Ct. App. 1986).    In this case, as the state post-conviction motion
court held, Mitchell failed to present sufficient evidence to overcome the
presumption that Wise and Green were competent to testify.2          Cf. United
States v. Skorniak, 59 F.3d 750, 755 (8th Cir.) (defendant’s assertion that
witness was incompetent “to testify due to his mental state” insufficient
to overcome presumption of competency) (internal quotation omitted), cert.
denied, 116 S. Ct. 487 (1995).      In addition, counsel was not ineffective
for failing to submit Mitchell’s pro se motion for mental examinations of
Wise and Green.   In State v. Robinson, 835 S.W.2d 303, 307 (Mo. 1992) (en
banc), the Missouri supreme court held that “trial courts are without
authority to order witnesses to submit to psychiatric examinations.”


    Also   without   merit   is   Mitchell’s   claim   that   his   counsel   was
ineffective for failing to join the state’s motion to remove a juror who
allegedly was sleeping during portions of the state’s direct examination
and Mitchell’s cross-examination.      The state court found that counsel’s
decision to oppose the motion was a




     2
      We note that even “a prior adjudication of mental
incompetence or a record of confinement in a mental hospital is not
conclusive; a witness must exhibit some mental infirmity and fail
to meet the traditional criteria for witness competence.” Beine,
730 S.W.2d at 307-08 (footnote omitted).

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matter of reasonable trial strategy.        See Strickland, 466 U.S. at 690.     In
particular, the court noted that the state vigorously sought removal and
counsel strongly differed, stating “I don’t feel my client suffered any
prejudice from [the juror’s] presence on the jury.”          “‘[W]e accord this
finding a presumption of correctness under 28 U.S.C. § 2254(d), and we
decline     to   second-guess   counsel’s   strategic   decision   on   collateral
review.’”    Nielsen v. Hopkins, 58 F.3d 1331, 1337 (8th Cir. 1995) (quoting
Dodd v. Nix, 48 F.3d 1071, 1075 (8th Cir. 1995)).
    Mitchell also argues that his constitutional rights were violated when
the prosecutor stated in closing argument that Mitchell preyed on old and
weak people.      The district court refused to review the claim, holding it
was procedurally barred.        Mitchell asserts that the claim is not barred
because on direct appeal the appellate court reviewed it for plain error.
See Jones v. Jerrison, 20 F.3d 849, 854 (8th Cir. 1994) (“[b]ecause the
state courts reviewed [petitioner’s] claim under a plain-error standard,
we also apply a plain-error standard on habeas review”).                The   state
responds that the district court did not err in holding that the claim was
barred.   See Toney v. Gammon, 79 F.3d 693, 699 (8th Cir. 1996) (“a properly
limited plain error review by a state court does not cure procedural
default”).       Mitchell and the state are both correct.     We recently noted
that there is a “split within our Circuit on whether plain-error review by
a state appellate court waives a procedural default by a habeas petitioner,
allowing collateral review by this court.”       Hornbuckle v. Groose, 106 F.3d
253, 257 (8th Cir. 1997) (internal quotation omitted).       Although as a panel
“we cannot resolve this divergence in our holdings, we may choose which
line of cases to follow.”       Id.   Here, we need not choose because we affirm
no matter which line of cases we follow.        Under Toney, the district court
did not err in refusing to review the claim.        Under Jones and Hornbuckle,
“we find no plain error




                                       - 4 -
resulting in manifest injustice.”    Hornbuckle, 106 F.3d at 257.


    Accordingly, the judgment is affirmed.



    A true copy.


          Attest:


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




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