                                   ___________

                                   No. 95-2634
                                   ___________


Freddie Mack,                           *
                                        *
           Appellant,                   *
                                        *   Appeal from the United States
     v.                                 *   District Court for the Eastern
                                        *   District of Missouri.
Paul D. Caspari,                        *
                                        *
           Appellee.                    *

                                   ___________

                   Submitted:      February 12, 1996

                          Filed:   August 8, 1996
                                   ___________


Before MAGILL, HEANEY, and MURPHY, Circuit Judges.

                                   ___________

MAGILL, Circuit Judge.


     Appellant Freddie Mack appeals the district court's1 denial of a writ
of habeas corpus under 28 U.S.C. § 2254.         Mack argues that the district
court erred in (1) failing to provide habeas relief on the ground that Mack
had been abandoned by state postconviction counsel, (2) denying habeas
relief on the merits of three alleged trial errors, and (3) failing to hold
an evidentiary hearing.    We affirm.




      1
      The Honorable George F. Gunn, United States District Judge
for the Eastern District of Missouri, adopting the report and
recommendation of the Honorable Lawrence O. Davis, United States
Magistrate Judge for the Eastern District of Missouri.
                                     I.


     In the early morning of July 9, 1985, Michael Tracy and Robert
Schaffner, both of whom had been drinking beer and taking amphetamines,
were in a car parked in the "Stroll" area of St. Louis, Missouri, which is
known for prostitution.   While speaking with several prostitutes, Tracy and
Schaffner were attacked and robbed by three men.       One of the robbers,
identified at trial as petitioner Mack, shot both Tracy and Schaffner in
the stomach.   On July 30, 1985, Mack was indicted in Missouri state court
on two counts of first degree assault, two counts of first degree robbery,
and one count of armed criminal action.


     Mack entered a plea of not guilty, and the case proceeded to trial
before a jury in January 1986.     Mack was subsequently convicted on all
counts.    He was sentenced to two consecutive terms of thirty years
imprisonment for assault, two concurrent terms of twenty years imprisonment
for robbery, and a consecutive term of life imprisonment for armed criminal
action.   Mack's convictions were affirmed on direct appeal.   See State v.
Mack, 725 S.W.2d 78 (Mo. App. 1987) (per curiam).


     On February 4, 1988, Mack filed a pro se motion for postconviction
relief pursuant to Missouri Rule 29.15, arguing that he had received
ineffective assistance of counsel for a variety of reasons.    On March 17,
1988, the state public defender's office was appointed to represent Mack
in his Rule 29.15 motion.     Mack retained private counsel to pursue the
motion, and the appointed counsel withdrew.   Because Rule 29.15(f) required
Mack's retained counsel to file an amended motion within thirty days of his
March 25, 1988, appearance, the Rule 29.15 court notified Mack on May 26,
1988, that no amended motion would be accepted.      On June 3, 1988, Mack
moved to dismiss his pro se motion without prejudice, but the Rule 29.15
court denied the motion.    On June 10, 1988, the Rule 29.15 court held a
hearing on the merits of Mack's pro se




                                    -2-
motion, and denied postconviction relief.               Mack's attorney filed a second
                           2
motion on June 29, 1988, and the Rule 29.15 court refused to consider the
untimely second motion.        The Missouri Court of Appeals affirmed both the
refusal to consider the second motion and the denial of postconviction
relief.      See Mack v. State, 775 S.W.2d 288, 290-92 (Mo. App. 1989).


     On January 31, 1994, Mack petitioned the Missouri Supreme Court for
a writ of habeas corpus, which was denied on February 22, 1994.                       Mack
brought the instant habeas petition before the district court on April 20,
1994, and the case was referred to a magistrate judge for a report and
recommendation.      Without specifically addressing Mack's claim that his
postconviction counsel had abandoned him, the magistrate judge recommended
that the habeas petition be denied.       Following consideration of objections,
the district court declined to hold an evidentiary hearing and adopted the
report and recommendation of the magistrate judge.3               Mack now appeals the
                                                    4
denial of his petition for habeas relief.


                                         II.


     Mack      contends   on   appeal   that   he       was   abandoned   by   his   state
postconviction counsel, and that the district court erred in not




     2
      The June 29 motion included additional allegations of Mack's
trial counsel's ineffectiveness. The most significant of these new
allegations was that Mack's trial attorney presented an alibi
defense using the wrong date.
     3
      The only change made by the district court to the report and
recommendation was to strike a reference to Abdullah v. Groose, 44
F.3d 692 (8th Cir. 1995), which had been vacated, pending rehearing
en banc by this Court in Abdullah v. Groose, 75 F.3d 408 (8th Cir.)
(en banc), cert. denied, 64 U.S.L.W. 3779 (May 20, 1996).
         4
       Mack also moves this Court to modify the record on appeal
pursuant to Federal Rule of Appellate Procedure 10(e) to include a
transcript of his June 10, 1988 Rule 29.15 hearing, his habeas
petition to the Missouri Supreme Court, and the Missouri Supreme
Court's order denying relief. This motion is granted.

                                         -3-
granting habeas relief so that Mack could secure a second Rule 29.15
hearing in a Missouri state court.   In Luleff v. State, 807 S.W.2d 495 (Mo.
banc. 1991), the Missouri Supreme Court recognized a limited right to
effective assistance of counsel in postconviction hearings.        Where the
record of a postconviction proceeding "shows not mere ineffectiveness but
such a total default in carrying out the obligations imposed upon appointed
counsel by Rule 29.15(e) as to constitute abandonment," State v. Bradley,
811 S.W.2d 379, 384 (Mo. banc. 1991) (per curiam), new counsel should be
appointed and the petitioner allowed a new hearing.    Because the filing of
an amended petition out of time can constitute abandonment, see Sanders v.
State, 807 S.W.2d 493, 494-95 (Mo. banc. 1991), Mack argues that he was
denied due process of law and equal protection because he was not granted
a second hearing.


       Although Mack referred to abandonment by postconviction counsel in
both his petition for habeas relief, see Pet. at 5p, and in a memorandum
of law supporting the petition, see Mem. at 9 (April 20, 1994), the
district court did not construe Mack's petition as a claim of abandonment
by postconviction counsel.    Rather, the district court considered this as
a complaint that the state court erred in "summarily enter[ing] an order
denying petitioner the chance to amend his pro se Rule 29.15 motion or to
grant him a hearing without first notifying petitioner of its intent to do
so."    Report & Recommendation at 9.      The appellee argues that we are
precluded from considering this argument.    See, e.g., Mellott v. Purkett,
63 F.3d 781, 784 (8th Cir. 1995) (this Court may not "consider legal
arguments raised for the first time on appeal, except for plain error").
We disagree.     While we do not require a district court to read a "pro se
motion so clairvoyantly so as to recognize [an] unarticulated argument,"
id., neither is this rule "meant to trap a petitioner who has poor drafting
skills.      The stakes in habeas cases are too high for a game of legal
'gotcha.'"    Schneider v. Delo, 85 F.3d 335, 339 (8th Cir. 1996) (discussing
state exhaustion requirement).     While Mack could have,




                                     -4-
and in fairness to both the district court and the opposing party should
have, been clearer in his presentation of this issue in the district court,
we conclude that this issue was adequately raised in the district court to
allow review by this Court.   See Turner v. Armontrout, 922 F.2d 492, 493
n.1 (8th Cir. 1991) (pro se habeas petitions are construed liberally).


      Mack has failed to state a cognizable claim for habeas relief.      It
is well settled that "[t]here is no constitutional right to an attorney in
state post-conviction proceedings," Coleman v. Thompson, 501 U.S. 722, 752
(1991),   and   that   "[c]onsequently,    a   petitioner     cannot   claim
constitutionally ineffective assistance of counsel in such proceedings."
Id.   Mack is therefore left only with a claim that the state court erred
by incorrectly applying its own procedural rule in a postconviction
hearing--a consideration beyond this Court's review.        See Schleeper v.
Groose, 36 F.3d 735, 737 (8th Cir. 1994) ("A federal court may not re-
examine a state court's interpretation and application of state law.");
Smith v. Lockhart, 882 F.2d 331, 334 (8th Cir. 1989) (finding no due
process violation where there was only an "alleged violation of a state
rule concerning post-conviction proceedings, an area in which a defendant
is not necessarily afforded constitutional protections"), cert. denied, 493
U.S. 1028 (1990).


      While a contention that a state court has applied a procedural rule
arbitrarily to a defendant's prejudice may state a federal constitutional
due process violation, see, e.g., Evitts v. Lucey, 469 U.S. 387, 401 (1985)
("when a State opts to act in a field where its action has significant
discretionary elements, it must nonetheless act in accord with the dictates
of the Constitution--and, in particular, in accord with the Due Process
Clause"), such a contention could not be made under the facts of this case.
The rule allegedly violated by Mack's Rule 29.15 court did not even exist
until long after the decision had become final.       The Luleff opinion,
creating the abandonment rule, was filed on April 9, 1991,




                                   -5-
while Mack's unsuccessful appeal of the denial of his Rule 29.15 petition
was decided on June 27, 1989, almost two years earlier.       Mack's precise
argument, therefore, is not even that the state courts violated an existent
state procedural rule, but that in adhering to settled state law, the
courts deprived him of due process and equal protection by failing to
anticipate future state law developments.      We find this argument unsound.


     The dissent asserts that Missouri courts consistently applied the
abandonment rule prior to its creation in Luleff.      See Dissenting Op. at
14-19.   We disagree.   In Sanders, 807 S.W.2d at 494, filed the same day as
Luleff, the court stated:


     Until today this Court has not deviated from its firm position
     that failure to timely file a motion constitutes a complete bar
     to consideration of a movant's claims, even when the claims are
     attributable entirely to inaction of counsel. Our courts have
     traditionally held that postconviction proceedings may not
     under any circumstances be used to challenge the effectiveness
     of postconviction counsel.


The dissent would have us ignore this clear statement of Missouri state law
by the highest Missouri state court.       See Dissenting Op. at 17-18.   This
we simply cannot do.    See Wainwright v. Goode, 464 U.S. 78, 84 (1983) (per
curiam) ("the views of the State's highest court with respect to state law
are binding on the federal courts").5



     5
      We note that the dissent relies on Easter v. Endell, 37 F.3d
1343 (8th Cir. 1994), for the proposition that "only a firmly
established and regularly followed state practice may be interposed
by a State to prevent subsequent review of a federal constitutional
claim." Dissenting Op. at 18 (quotations and ellipsis omitted).
While this is undoubtedly correct, it is also irrelevant under the
facts of this case. Unlike the defendant in Easter, Mack has not
sought to litigate the issue of whether his trial counsel was
ineffective, and therefore he has not had to show that an
intervening state procedural rule was inadequate to bar federal
consideration of the underlying claim. See Easter, 37 F.3d at 1345
(discussing bar of federal consideration of claim by independent
and adequate state grounds). Rather, Mack has argued that his Rule
29.15 hearing constitutes a violation of his federal constitutional
right to due process. See Appellant's Br. at 6 ("Mr. Mack was
deprived of his Fifth, Sixth, and Fourteenth Amendment rights when

                                     -6-
he was not granted a full and fair opportunity to pursue his state
collateral proceeding"). These are distinct claims, see, e.g.,
Easter, 37 F.3d at 1346 ("While Arkansas' post-conviction
procedures . . . are not in themselves constitutionally infirm, the
question is whether they are adequate to foreclose Easter's federal
habeas corpus petition."), and should be distinguished.

                               -7-
                                            III.
         Mack next challenges the district court's denial of habeas relief on
the basis of several trial errors.          Mack alleges that he received an unfair
trial because two members of the jury were biased, because a witness
identification of him as the gunman was improperly admitted, and because
the prosecutor improperly called him a killer during closing arguments.
We review the district court's conclusions of law de novo, see Dodd v. Nix,
48 F.3d 1071, 1073 (8th Cir. 1995), and its factual findings for clear
error.        See Fed. R. Civ. P. 52(a).     On collateral review of a state court
conviction, the findings of fact by the state court are generally presumed
correct, see 28 U.S.C. § 2254(d), unless not fairly supported by the record
as   a       whole.   Mack   failed   to   object   to   the   alleged   juror   bias   or
prosecutorial misconduct at trial, see Mack, 725 S.W.2d at 78, and our
review of these issues would usually be precluded due to procedural
default.        See, e.g., Jones v. Jerrison, 20 F.3d 849, 854 (8th Cir. 1994).
Because the Missouri Court of Appeals considered Mack's allegations for
plain error, however, see Mack, 725 S.W.2d at 78, this Court may also
review for plain error.        See Jones, 20 F.3d at 854.6        Under this standard,
we will grant




         6
      There appears to be a decisional 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. Compare Sidebottom v. Delo, 46 F.3d 744, 759
(8th Cir.) (applying plain error review), cert denied, 116 S. Ct.
144 (1995); Jones, 20 F.3d at 854 ("Because the state courts
reviewed [petitioner's] claim under a plain-error standard, we also
apply a plain-error standard on habeas review.") with 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").
We are "powerless to resolve this conflict in our decisions, as one
panel of this Court is not at liberty to overrule an opinion filed
by another panel. Only the Court en banc may take such a step."
Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1228 n.8 (8th
Cir. 1995) (quotations omitted).       "We are, however, free to
cho[o]se which line of cases to follow," id., and we choose to
review Mack's claims for plain error.

                                            -8-
habeas relief only if "manifest injustice resulted" from the alleged
errors.    Blackmon v. White, 825 F.2d 1263, 1266 (8th Cir. 1987).


A. Juror Bias


       During voir dire, venireperson Salsman stated that her sister-in-
law's mother had been shot and raped.         When asked whether this had any
effect on the venireperson's feelings about people who have been charged
with a crime, venireperson Salsman replied, "No, I think I could sit in
judgment."    Report & Recommendation at 3.   Venireperson Salsman also stated
that her cousin was a former police officer who had been shot in the line
of duty.     Venireperson Royer indicated that a friend's daughter had been
beaten to death five years before, and that the killer was on death row.
When asked whether this had "any effect on you now in how you see people
who are just even charged with crimes?", venireperson Royer responded, "I
don't know.    I couldn't really say for sure."    Report & Recommendation at
4.   The trial court did not sua sponte conduct any further investigation,
and Mack's attorney made no challenges against these venirepersons.      Both
Salsman and Royer served as jury members.     Mack contends that these jurors
harbored actual bias against him, depriving him of a fair trial.


      Mack had a constitutional right to an impartial jury.      See Irvin v.
Dowd, 366 U.S. 717, 722 (1961).       For Mack to "maintain a claim that a
biased juror prejudiced him, however, [he] must show




                                     -9-
that the juror was actually biased against him."          Goeders v. Hundley, 59
F.3d 73, 75 (8th Cir. 1995).    Whether a juror is biased "is a question of
fact, and we defer to a state court finding of juror bias if it is fairly
supported by the record."     Antwine v. Delo, 54 F.3d 1357, 1369 (8th Cir.
1995), cert. denied, 116 S. Ct. 753 (1996).


      In considering Mack's allegation of juror bias under review for plain
error, the Missouri Court of Appeals concluded that Mack suffered "no
manifest injustice nor miscarriage of justice."          Mack, 725 S.W.2d at 78.
We agree with the district court that this finding is fairly supported by
the record.    Venireperson Salsman indicated during voir dire that her
attitude towards those accused of crimes had not been affected by knowing
the victim of a crime, and venireperson Royer's response, while equivocal,
did not affirmatively state bias.    Because Mack has demonstrated no actual
juror bias, the district court properly denied habeas relief for this
claim.


B.   Witness Identification


      While recovering in the hospital immediately after the assault, Tracy
and Schaffner were shown mug shot books containing pictures of persons who
frequented the Stroll area.         Schaffner positively identified Mack's
photograph as his assailant, while Tracy was more tentative, stating that
he was "not a hundred percent sure" that it was his attacker.              Report &
Recommendation   at   7.    Mack   objected   to   the    admission   of    Tracy's
identification of Mack, which was overruled.        Both Tracy and Schaffner
identified Mack as the gunman at trial.     Mack contends that the trial court
erred in allowing Tracy's identification of Mack to be used as evidence,
depriving him of a fair trial.


      In Trevino v. Dahm, 2 F.3d 829, 833 (8th Cir. 1993), this Court
stated that




                                     -10-
     [a] conviction based on eyewitness identification at trial will
     be set aside only when pre-trial identification procedures were
     so impermissibly suggestive that they give rise to a very
     substantial likelihood of irreparable harm.        The central
     question is whether, under the totality of the circumstances,
     the identification was reliable despite any suggestive or
     inappropriate pre-trial identification techniques.      Neil v.
     Biggers, 409 U.S. 188 (1972).      The factors to consider in
     evaluating the likelihood of misidentification include: the
     opportunity a witness has to view the criminal at the time of
     the crime; the witness's degree of attention; the accuracy of
     the witness's prior description of the criminal; the level of
     certainty demonstrated by the witness at the confrontation; and
     the length of time between the crime and the confrontation.
     Id. at 199-200.


(note omitted; citations omitted).       Whether an identification was reliable
is a question of fact, id., and "federal courts must accord the state court
findings of fact a high measure of deference."         Id.


     It is true that the circumstances surrounding Tracy's identification
of Mack were not optimal: the assault occurred outside in the predawn
hours, Tracy had been drinking and using amphetamines, and he was not
absolutely certain that Mack's photograph was that of the gunman.                   The
state trial court, however, concluded that the use at trial of Tracy's
identification   of   Mack   was   not   improper,   see   Trial   Tr.   at   41,   80
(overruling Mack's motion in limine to out-of-court identification and
objection to in-court identification), and the trial court was affirmed on
appeal.   See Mack, 725 S.W.2d at 78 (holding that "no manifest injustice
nor miscarriage of justice" occurred during trial).          Under the totality of
circumstances, we conclude that the record supports these findings.            Tracy
had an opportunity to observe the gunman, who was only two feet away from
Tracy at one point.     There was nothing suggestive in the photo line-up
presented to Tracy a day after the shooting, and he confronted Mack at
trial only six months after the shooting.        While not absolutely certain,
Tracy was "almost sure"




                                         -11-
that Mack was the gunman.       Report & Recommendation at 7.       Under these
circumstances, "[a]ny remaining concerns about the suggestiveness of the
identification      procedure   or   the   reliability   of   the   out-of-court
identification were for the jury to resolve."       Dodd v. Nix, 48 F.3d 1071,
1075 (8th Cir. 1995).


C. Prosecutorial Misconduct


      During closing arguments, the prosecutor, referring to Mack, stated
that "that man is a killer.     He tried to kill and I'm sure he would do it
again given the opportunity."        Trial Tr. at 257.    The prosecutor later
argued that


     [e]veryone who swore and who testified said he's the killer,
     he's the man who shot, he's the man who tried to kill. . . . We
     are fortunate that we have an opportunity to remove from the
     community a killer, a killer who is just as frightening to the
     people who live in and about the Stroll as he should be to
     people who come down there who have no business there.


Trial Tr. at 270.    Mack did not object to the statements at trial, and now
contends that the statements "inflamed the jury with passion and prejudice
against Mr. Mack," Appellant's Br. at 13-14, thereby depriving him of a
fair trial.


     We agree with Mack that the prosecutor's comments were improper.        The
prosecutor should not have referred to Mack, on trial for assault, robbery,
and armed criminal action, as a "killer"; nor should the prosecutor have
referred to his own certainty of Mack's potential dangerousness.          In our
review, however, "it is not enough that the prosecutors' remarks were
undesirable or even universally condemned."      Darden v. Wainwright, 477 U.S.
168, 181 (1986) (quotations omitted).        Rather, the "relevant question is
whether the prosecutors' comments so infected the trial with unfairness as
to make the resulting conviction a denial of due process."      Id. (quotations
omitted).   Mack bears the




                                      -12-
heavy burden of showing


     that the alleged improprieties were so egregious that they
     fatally infected the proceedings and rendered his entire trial
     fundamentally unfair. Under this standard, a petitioner must
     show that there is a reasonable probability that the error
     complained of affected the outcome of the trial--i.e., that
     absent the alleged impropriety, the verdict probably would have
     been different.


Jones v. Jones, 938 F.2d 838, 844-45 (1991) (quoting Blair v. Armontrout,
916 F.2d 1310, 1324 (8th Cir. 1990), cert. denied, 502 U.S. 825 (1991))
(internal quotations omitted).


     Mack has not met this burden.       The prosecutor's statements "did not
manipulate    or   misstate   the   evidence    or   implicate   other   specific
constitutional rights of the accused such as the right to counsel or the
right to remain silent," Pickens v. Lockhart, 4 F.3d 1446, 1453 (8th Cir.
1993), cert. denied, 114 S. Ct. 1206 (1994), and Mack "has made no showing
that absent the alleged impropriety, the verdict probably would have been
different."    Jones, 938 F.2d at 845.         Mack made no objection to these
statements at trial, placing the trial court in the difficult position of
either sua sponte reprimanding the prosecutor and giving a corrective
instruction to the jury, thereby possibly interfering with Mack's own trial
strategy, cf. Darden, 477 U.S. at 183 n.14 (noting that counsel "made the
tactical decision not to object to the improper comments"), and perhaps
reinforcing the prosecutor's improper statements, or allowing these few
comments to go without remark.      The trial court chose the latter path, and
we perceive no manifest injustice arising from the trial court's decision.
The district court did not err in denying Mack habeas relief on this claim.


                                       IV.


     Finally, Mack contends that the district court erred in




                                       -13-
denying his petition without first granting him an evidentiary hearing.
While "[g]enerally, a habeas petitioner is entitled to an evidentiary
hearing in federal court if the petition alleges sufficient grounds for
release, relevant facts are in dispute, and the state courts did not hold
a full and fair evidentiary hearing," Toney v. Gammon, 79 F.3d 693, 697
(8th Cir. 1996) (quotations omitted), Mack's "petition may be summarily
dismissed if the record clearly indicates that [his] claims are either
barred from review or without merit."          Id.


         Summary dismissal of Mack's petition for habeas relief was proper,
and Mack was therefore not entitled to an evidentiary hearing in this
case.7       Under the clear record developed in the state trial court, none of
the alleged errors by Mack deprived him of a fundamentally fair trial, or
otherwise rendered his continued incarceration in a Missouri prison
violative "of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a).        The district court did not err in denying him an
evidentiary hearing.




         7
      Mack is correct that "the state courts did not hold a full
and fair evidentiary hearing" on several of his claims.
Appellant's Br. at 23. This, however, was not due to an error by
the state courts, but rather due to actions, or inactions, by Mack
himself.   As noted above, Mack failed to object to the alleged
juror bias or prosecutorial misconduct at trial, depriving the
state court of any opportunity to address those issues
contemporaneously with additional evidentiary proceedings. Mack
was denied an evidentiary hearing during his Rule 29.15 proceedings
because he failed to make a timely request for one, as required by
the state rule. See Mack, 775 S.W.2d at 291 ("Movant [Mack] failed
to request an evidentiary hearing within the time constraints of
Rule 29.15 (g), therefore the trial court correctly refused to hold
a hearing."). We do not require "a federal evidentiary hearing
solely on the basis of a habeas petitioner's negligent failure to
develop facts in state-court proceedings," Keeney v. Tamayo-Reyes,
504 U.S. 1, 8-9 (1992), unless the petitioner "can show cause for
his failure to develop the facts in state-court proceedings and
actual prejudice resulting from that failure." Id. at 11. We note
that Mack has shown neither cause nor prejudice.

                                        -14-
     Accordingly, we affirm the judgment of the district court.


HEANEY, Circuit Judge, dissenting.


     I respectfully dissent.      After Mack filed his pro se motion in the
Missouri circuit court, he was appointed post-conviction counsel.    Mack's
counsel, however, promptly abandoned him by failing to file a timely
amended motion as required under Rule 29.15.1     The state court's failure
to appoint new post-conviction counsel for Mack violated his constitutional
right to due process under the established state law.   Accordingly, I would
remand this case to the Missouri state courts so that newly-appointed
counsel can raise all of Mack's claims for full consideration by the
circuit court.    Alternatively, in reaching the merits of Mack's pro se
29.15 motion on this appeal, I believe Mack was denied a fair trial because
of juror bias and prosecutorial misconduct.2     Based on these grave trial
errors, Mack's convictions cannot stand.    The state should either release
Mack within a reasonable period of time or grant him a new trial.


                             I.    ABANDONMENT


     Beginning with Fields v. State, 572 S.W.2d 477 (Mo. 1978) (en banc),
the Missouri Supreme Court has recognized that a pro se movant for habeas
corpus    relief is entitled to appointed counsel and that counsel is
obligated to file a timely amended motion




           1
         In the untimely, amended motion, the movant claimed,
generally, that his trial counsel was ineffective for failing to
interview the movant; assigning an inexperienced assistant to
represent movant at the hearing; and failing to interview
witnesses, at least one of whom would have testified that the
movant could not possibly have committed the crime charged. (Legal
File at 13-20.)
      2
      I agree with the majority opinion insofar as it holds that
Mack's convictions were not the result of unreliable identification
by witnesses.

                                    -15-
incorporating all of the movant's claims.            Id. at 482.        In Fields, the
Missouri Supreme Court, considering the predecessor to Rule 29.15, stated
that it was



        designed to discover and adjudicate all claims for relief in
        one application and avoid successive motions by requiring
        motions to be in questionnaire form and by providing for the
        appointment of counsel if the motion presents questions of law
        or issues of fact and the movant is shown to be indigent.

Id. at 480 (emphasis added).         By adopting this rule, the state "'assumed
complete responsibility for protecting constitutional rights in accordance
with federal principles.'"        Id. at 481 (quoting Anderson, Post-Conviction
Relief in Missouri--Five Years Under Amended Rule 27.26, 38 Mo. L. Rev. 21,
43 (1973)).    While praising the new rule, the court observed that

        delay and confusion rather than speed and finality had been
        occasioned . . . and an excessive number of appeals have
        resulted from summary denials of pro se motions to vacate
        sentence or judgment without the appointment of counsel,
        evidentiary hearings or specific findings of fact or
        conclusions of law.

Id. at 482.


        The court then adopted a three-step process to be followed for all
motions under 27.26: (1) the court must appoint counsel for all indigent
movants; (2) appointed counsel will have the opportunity and the obligation
to amend the motion and to state factually, "in a lawyerlike fashion," all
of the movant's claims for relief under Rule 27.26; and (3) based on the
amended motion, the trial court shall make findings of fact and conclusions
of law on all issues presented.        Id. at 483.       Thus, the Missouri Supreme
Court    determined   that   to   ensure    protection    of   an    indigent   movant's
constitutional rights, counsel must be appointed and must submit an amended
motion incorporating all of the movant's claims.               The




                                           -16-
burden was no longer to be solely on the movant, but on appointed counsel.
The failure of appointed counsel to file an amended motion would no longer
prejudice the movant.   In the words of Judge Satz of the Missouri Court of
Appeals:

     It [would be] incongruous, to say the least, to choose counsel
     for movant and then penalize the movant because counsel did not
     fulfill the duty she was chosen for.       In effect, movant's
     rights [would be] extinguished without meaningful consideration
     because of the court's choice and not due to any apparent fault
     of movant.

Young v. State, 724 S.W.2d 326, 328 (Mo. Ct. App. 1987).


     The successor to Rule 27.26, Rule 29.15, was adopted January 1, 1988.
Mack filed a pro se, post-conviction motion on February 4, 1988.   A public
defender was appointed to represent him on March 17, 1988.      Had Mack's
motion been filed thirty-four days earlier, his case would have been
decided under Rule 27.26 and Fields, and he no doubt would have been
entitled to have newly-appointed counsel file an amended motion detailing
all of his claims.   As it was, the Missouri courts determined that Mack's
motion would be decided under the new rule.    Although one might question
this decision because Mack had been convicted while Rule 27.26 was in
effect, I accept the state court's decision for purposes of this appeal.



     Nevertheless, Mack is entitled to the same relief under Rule 29.15
as he would have been under the former rule.      Rule 29.15 continues to
require appointed counsel to interview the movant and to file a timely
amended motion.   The rule provides:

     Counsel shall ascertain whether sufficient facts support the
     grounds asserted in the motion and whether the movant has
     included all grounds known to him. . . . If the motion does
     not assert sufficient facts, or include all grounds known to
     movant, counsel shall file an amended motion that sufficiently
     alleges the additional facts and grounds.




                                   -17-
Rule 29.15(e) (emphasis added).   The only change in the rule, significant
to this case, is the length of time during which counsel must take action.
Nothing in Rule 29.15 changes counsel's obligations.       As the Missouri
Supreme Court, sitting en banc, confirmed in Luleff v. State, 807 S.W.2d
495 (Mo. 1991) (en banc), an indigent movant is entitled to appointment of
new counsel to file an amended 29.15 motion if originally appointed counsel
abandons his or her duty.    Id. at 498.


     In Luleff, after the movant filed a pro se motion for post-conviction
relief, the circuit court appointed counsel to represent Luleff.       Counsel
failed to file an amended motion under Rule 29.15(e) within the appropriate
time frame.   Reviewing the conduct of appointed counsel, the court remanded
the case to the motion court for:

     determination of whether appointed counsel acted to ascertain
     whether sufficient facts are asserted in the pro se motion and
     whether the movant included all grounds known to him.       The
     motion court shall make findings on this point. If the court
     finds that appointed counsel has not performed as required by
     Rule 29.15(e), and the lack of performance is not the result of
     movant's action or inaction, the court shall appoint new
     counsel allowing time, if necessary, to amend the pro se motion
     as permitted under Rule 29.15(f), and the cause shall proceed
     anew according to the provisions of the rule.

Id. at 497-98.


     In a companion opinion issued the same day as Luleff, the Missouri
Supreme court reached the same result and prescribed the same remedy.     See
Sanders v. State, 807 S.W.2d 493, 495 (Mo. 1991) (en banc).        The Sanders
court unfortunately confused matters, however, by stating that Luleff
marked a change in course for the Missouri courts, id. at 494, and the
majority cites Sanders as support for that proposition.      See    Maj. Op.,
supra at 6.    With all due respect to the Missouri Supreme Court, which
certainly reached a correct result in Fields, Luleff, and Sanders, three
of the four




                                    -18-
cases cited in Sanders do not even involve abandonment.        See Young v.
State, 770 S.W.2d 243, 244-5 (Mo. 1989) (en banc) (relief denied because
post-conviction counsel filed timely amended post-conviction motion as
minimally required under 29.15); Lingar v. State, 766 S.W.2d 640, 641 (Mo.
1989) (en banc) (same); Sloan v. State, 779 S.W.2d 580, 583 (Mo.) (en banc)
(same), cert. denied, 489 U.S. 1040 (1980).    Those cases merely state the
general rule that a post-conviction proceeding cannot be used to challenge
the effectiveness of counsel in the post-conviction proceeding.       They do
not address the situation in which appointed post-conviction counsel
entirely abandons his or her duty to timely file an amended motion.    In the
only relevant cited case, State v. Sweet, 796 S.W.2d 607 (Mo. 1990) (en
banc), the court considered the issues raised in a late amended motion "ex
gratia," obviating any need for a remand.    Id. at 615.   Thus, Luleff does
not mark a change in Missouri's recognition and redress of abandonment by
post-conviction counsel.   Mack is entitled to nothing more and nothing less
than Luleff.   He is entitled, according to the Missouri Supreme Court, to
have this matter remanded to the circuit court to make the required
findings.


     The majority states that a convicted indigent has no constitutional
right to an attorney in a post-conviction proceeding.      I do not dispute
that as a general statement of the law.     As Judge Wollman pointed out in
Easter v. Endell, 37 F.3d 1343 (8th Cir. 1994), however, "once such a
remedy is granted by the state, its operation must conform to the due
process requirements of the 14th Amendment."     Id. at 1345 (citing Evitts
v. Lucey, 469 U.S. 387, 400-01 (1985)).    Thus, "'only a firmly established
and regularly followed state practice' may be interposed by a State to
prevent subsequent review . . . of a federal constitutional claim."      Id.
(quoting James v. Kentucky, 466 U.S. 341, 348-51 (1984)).      As discussed
above, the Missouri Supreme Court en banc has consistently applied rules
27.26 and 29.15 to require that appointed, post-conviction counsel file a
timely




                                    -19-
amended motion, and if post-conviction counsel fails to do so, a movant is
entitled to have new counsel appointed.


     The majority contends that if a state incorrectly applies its own
procedural rules, as it has clearly done in this case, a movant is not
entitled to relief.     In other words, if a particular movant is unfortunate
enough to have his case presented to a court that disregards established
law, he is not entitled to relief.     But our court, as indicated by Easter,
holds to the contrary.    This case presents even a stronger case than Easter
because here, the Missouri Supreme Court has not inconsistently applied
Rule 29.15; rather when a post-conviction counsel has abandoned his client,
the court has consistently appointed new post-conviction counsel.


     I do not believe that we have any alternative but to remand to the
district court with directions to remand to the state court to permit
newly-appointed counsel to file an amended 29.15 motion within thirty days
of the appointment.


                               II.   TRIAL ERRORS


     The state courts and the federal district court did not address
Mack's abandonment argument.    Rather, they considered--and rejected--Mack's
claims as raised in his original, pro se motion, including that (1) two
biased persons were permitted to sit on the jury, and (2) the prosecuting
attorney improperly commented that Mack was a "killer" who needed to be
convicted in order to prevent him from killing again.    The majority agreed
with the state and federal courts and determined that these claims lack
merit.    I disagree.


     A.      Juror Bias


     The majority recognizes that Mack has a constitutional right to an
impartial jury.    They also accurately characterize the record




                                      -20-
with respect to the two jurors whom Mack's trial counsel failed to strike
for bias.   Conceding that whether the two jurors were biased against Mack
is a question of fact, I am unable to agree with the majority that the
state court's finding of no bias was fairly supported by the record.


       When venireperson Royer stated that a friend's daughter had been
beaten to death five years earlier, she was asked whether this event would
have any effect on her view of people who are charged with crimes.       She
answered, "I don't know.   I really couldn't say for sure."     (Trial Tr. at
33.)   At this point, neither Mack's counsel nor the court made further
inquiry.    Forgetting for a moment that further inquiry should have been
made, the venireperson's answer alone indicated that she was not sure in
her own mind whether she could be fair.     Her expressed uncertainty as to
her impartiality, without additional comment, constituted a sufficient
basis for her disqualification from the jury.       Similarly, venireperson
Salsman informed counsel that her sister-in-law's mother had been shot and
raped and that her cousin, a former police officer, had been shot in the
line of duty.     (Id. at 31, 35.)    Salsman expressed doubt that these
experiences would affect her ability to serve on the jury, stating, "I
think I could sit in judgment."   (Id. at 31.)    Yet her bias, based on the
experiences alone, was evident from the record.


       The majority concludes that Mack has not demonstrated actual bias.
Not only do I disagree with their conclusion, but I question how or when
Mack could have attempted to further demonstrate the jurors' bias.       The
remedy for allegations of juror partiality is an evidentiary hearing at
which a defendant has an opportunity to show actual bias.           Smith v.
Phillips, 455 U.S. 209, 215 (1981).   The majority concedes that Mack was
never given such a hearing.    See Maj. Op., supra at 13 n.7.    They argue,
however, that it was Mack's failure to make a timely request that prevented
him from a hearing in the state court.    Id.   As discussed above, Mack was
abandoned by




                                   -21-
his post-conviction counsel.   At a minimum, we should remand this matter
to the state courts for an appropriate evidentiary hearing on juror bias.


     B.   Prosecutorial Misconduct


     I agree with the majority that the comments made by the prosecutor
during closing arguments were clearly improper.    Referring to Mack, the
prosecutor stated:

     [T]hat man is a killer. He tried to kill and I'm sure he would
     do it again given the opportunity. . . . Everyone who swore and
     who testified said he's the killer, he's the man who shot, he's
     the man who tried to kill. . . . We are fortunate that we have
     an opportunity to remove from the community a killer, a killer
     who is just as frightening to the people who live in and about
     the Stroll as he should be to people who come down there who
     have no business there.

(Trial Tr. at 257, 270.)   In my view, however, these comments so infected
the trial with unfairness as to make the resulting conviction a denial of
due process.


     The prosecutor made repeated references to Mack as a "killer,"
despite the fact that Mack was not on trial for murder or attempted murder.
In addition to the inappropriate characterizations of Mack as a "killer,"
the prosecutor improperly injected fear into the jurors' minds, urging them
that if they did not take advantage of the opportunity to lock up the
"frightening" Mack, there is no telling who may be his next victim.     The
prosecutor even buttressed this general fear of Mack with the explicit
statement, "I'm sure [Mack would kill] again given the opportunity."   Such
personal opinions by a prosecutor about a defendant's future criminal
proclivity cannot be tolerated.   See United States v. Young, 470 U.S. 1,
8 (1985) (prosecutor must refrain from interjecting personal beliefs into
the presentation).




                                     -22-
     Not only were these comments improper and prejudicial to Mack's case,
but nothing was done by either counsel or the court to minimize their
prejudicial effect.3   See Miller v. Lockhart, 65 F.3d 676, 683-684 (8th
Cir. 1995) (in determining whether a prosecutor's improper closing argument
rises to the level of a due-process violation, we must consider whether
counsel or the court cured the erroneous arguments).   Without any curative
measures taken by the court or counsel, I cannot believe that the egregious
statements made by the prosecutor did not affect the outcome of the trial.



                                CONCLUSION


     For the above-stated reasons, I dissent from the majority opinion.
Mack clearly was abandoned by his post-conviction counsel and, at minimum,
I would remand this case to the state courts for appointment of new
counsel.   Alternatively, I would vacate Mack's convictions because the
biased jury and the prosecutor's improper statements violated Mack's
constitutional right to a fair trial.


     A true copy.


           Attest:


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




     3
      The majority suggests that Mack's trial counsel's failure to
object to the prosecutor's comments may have been a trial strategy
with which the court may not have wanted to interfere. See infra
at 12. I cannot accept the majority's suggestion. In any event,
these arguments, again, could have been explored in the context of
an evidentiary hearing--a hearing Mack was never given.


                                   -23-
