                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-1486
                                   ___________

James Eric Mansfield,                   *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
David Dormire,                          *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: September 15, 1999

                                  Filed: February 4, 2000
                                   ___________

Before BEAM, HEANEY, and FAGG, Circuit Judges.
                           ___________


BEAM, Circuit Judge.

      James Eric Mansfield appeals the denial of his petition for habeas corpus relief
under 28 U.S.C. § 2254. We affirm.

I.    BACKGROUND

      Mansfield was convicted in Missouri state court of first-degree murder and
armed criminal action for the stabbing death of Mark Trader. He was sentenced to two
concurrent terms of life imprisonment.
       Before trial, the state filed a motion in limine to exclude evidence that other
people had a motive and an opportunity to commit the murder. Because there was no
evidence directly linking the others to the crime, the trial court granted the motion. The
case then proceeded to trial before a jury.

       At trial, the state presented evidence showing that Mark Trader had been stabbed
to death outside his apartment after an evening of drinking. The evidence centered
around a group of regular patrons and employees of Papa Leone's Italian Deli and Bar
in Independence, Missouri ("the bar"). The state's principal witness was John Hertlein,
a friend of Mansfield, who testified to events that occurred on the night of the murder.



       Hertlein testified that he, Mansfield, and several others, including Mark Trader,
had been drinking at the bar. After the establishment closed, one of their party called
a cab for Mark Trader, who was too inebriated to drive. Mansfield assisted Trader into
the cab and gave the cabdriver Trader's address.

       At that point, Hertlein and Mansfield drove to Trader's apartment building in
Mansfield's car. On the way, Mansfield stated, "I'm going to Gerber him,"1 and then
pulled a knife from under the seat of the car. When they arrived at Trader's apartment,
Mansfield confronted Trader outside the apartment building. After arguing for a few
minutes, Trader and Mansfield walked to a place between the two apartment buildings
where Hertlein could no longer see them. Hertlein testified that he overheard Trader
say, "kill me" or "try and kill me," and then heard thumping and gurgling sounds.
Mansfield returned to the car with blood on his hands. Hertlein asked what had
happened and Mansfield replied, "the first shot he took was in the Adam's apple" and
admitted that he had stabbed Trader ten to twenty times.


      1
        The evidence shows that the term "Gerber" refers to a kind of knife. There was
also evidence that Mansfield owned such a "Gerber gator" knife and had been heard
to refer to the term "to Gerber" as meaning "to stab" or "to cut."

                                           -2-
      Hertlein then took the wheel and the two men returned to the bar, where they
encountered Jon David Couzens. After talking to Couzens for a few minutes, Hertlein
drove to a nearby gas station so that Mansfield could clean up. Because there were
people present at the station, the two decided not to use the station's restroom and
drove instead to the apartment of Hertlein's cousin, Angela Cascone, where Mansfield
washed and borrowed a clean shirt. Mansfield then drove Hertlein back to the deli.
Hertlein then went home.

       The next day, Hertlein contacted the police and was brought to the police station,
where he later gave a written statement and videotaped testimony outlining the night's
events. That same day, the police arrested Mansfield as he was leaving his home.
Hertlein agreed to assist police officers by audiotaping a conversation with Mansfield
in the hope that Mansfield would incriminate himself. Hertlein was placed in the cell
next to Mansfield with two other men. Hertlein told his cell mates that he had been
arrested for the murder of Mark Trader and stated that he had assisted in the murder.
Mansfield made no incriminating statements in response.

       Hertlein's version of the night's events was corroborated by several other
witnesses. Jon David Couzens testified that Mansfield asked "why don't I just go pop
him?" before leaving Papa Leone's with Hertlein and that Mansfield was holding a knife
and had blood on his hands when he returned. A bar patron, Katherine Halsey, testified
that she overheard Mansfield remark, "do you want me to pop him?" The cabdriver,
Scott Blanz, identified Mansfield as one of the two men arguing outside Trader's
apartment.2 An elderly resident of the apartment building testified that she heard raised
voices, followed by gurgling and then saw a male running from the scene. Jon David
Couzens also testified that Mansfield stated, "we have a bond between us and this is
to go no further, but Trader is dead, I killed him." Hertlein testified that he overheard
this remark. A gas station patron testified that he saw a car matching the description
of Mansfield's circling through the gas station. Hertlein's cousin, Angela Cascone,


      2
          Blanz had also identified Mansfield in a police photographic lineup.

                                           -3-
testified that Hertlein asked if a friend could use her bathroom to clean up and that she
later heard the water running. A police officer testified that physical evidence of blood
was later found in Cascone's sink. Another police officer substantiated Hertlein's
testimony that he had been placed in a cell next to Mansfield to entice Mansfield into
a confession.

      Mansfield presented an alibi defense. Mansfield's mother testified that he was
home by 2:20 a.m. on the night of the murder. An expert testified that it would have
been impossible for events to have occurred as Hertlein testified they did under the time
sequence that had been presented. Mansfield also testified in his own defense and
denied committing the murder.

       Mansfield was convicted of murder in the first degree and armed criminal action.
He filed a joint motion for a new trial and for post-conviction relief, which was denied
by the trial court. He then jointly appealed his conviction and filed for post-conviction
relief under Missouri Rule 29.15. The Missouri Court of Appeals affirmed his
conviction and denied post-conviction relief, finding that Mansfield had not properly
preserved his points for review. See State v. Mansfield, 891 S.W.2d 854, 855 (Mo.
App. 1995).

       Mansfield then filed for habeas corpus relief in federal district court under 28
U.S.C. § 2254. He alleged violations of his Sixth Amendment right to adequate
representation by counsel and violations of his Fifth Amendment right to due process
of law. The state argued that Mansfield's claims were procedurally barred. The district
court found the claims were not procedurally barred, but nevertheless denied relief
because it found that Mansfield had not shown that his counsel's representation fell
below an objective standard of reasonableness. The district court later denied
Mansfield's motion for a certificate of appealability, finding that Mansfield had made
no substantial showing of the denial of a constitutional right.




                                          -4-
        Mansfield moved for a certificate of appealability in this court. We found that
Mansfield had made a sufficient showing of the denial of his Sixth Amendment right
to effective assistance by counsel in the following particulars: (1) counsel's failure to
develop and present evidence showing others were responsible for the murder; (2)
counsel's failure to effectively impeach the state's chief witness with evidence that the
witness had earlier implicated himself in the murder; and (3) counsel's failure to object
to the state's cross-examination of defendant when the state asked defendant why the
state's witnesses were lying.

II.   DISCUSSION

        As a threshold matter, the state argues that Mansfield's ineffective assistance of
counsel claim is procedurally defaulted. It asserts that federal review is precluded
because Missouri state courts relied on an adequate and independent state ground for
its disposition of the case. Although we are inclined to agree with the district court that
our review is not barred in this case, we need not reach this difficult question. Since
we find that Mansfield cannot prevail on the merits, we see no need to belabor the
procedural bar issue. See Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999) (en
banc) (stating that judicial economy sometimes dictates reaching the merits if the merits
are easily resolvable against a petitioner and the procedural bar issues are complicated),
cert. denied, 120 S. Ct. 120 (1999).

      Mansfield's ineffective assistance claims center on his counsel's failure to present
evidence implicating Hertlein, Couzens, and another bar patron, J.R. Howerton, in the
murder. The record shows that Mansfield's counsel was prevented from presenting
such a defense by the trial court's ruling on the government's motion in limine.3 In


      3
        The court's ruling on this motion prevented Mansfield from presenting evidence
relating to certain events that preceded the murder. That evidence included testimony
that Trader had been drunk and obnoxious at the bar earlier on the night of the murder
and had been involved in a physical fight with Couzens and Howerton. Mansfield was
also barred from presenting evidence showing that Trader had been involved in a

                                           -5-
connection with that ruling, Mansfield contends that counsel was ineffective in failing
to present to the court a police report that stated that Hertlein had been overheard in jail
bragging that he was responsible for the murder. The record shows that the report was
obtained at the behest of Mansfield's counsel, who asked that the police interview the
prisoners who had shared a cell with Mansfield and Hertlein. Mansfield's counsel was
thus aware of the existence and contents of the report. Mansfield argues that, had this
evidence been presented, the trial court would not have prevented him from mounting
the defense that Couzens, Hertlein and Howerton were responsible for the murder.

      To prevail on his ineffective assistance of counsel claim, Mansfield must first
show that his attorney's performance fell below an objective standard of reasonableness
and must further show that the deficient performance prejudiced his defense. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to attorney
performance, Mansfield must overcome the strong presumption that "the challenged
action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). To show prejudice, Mansfield must establish a
reasonable probability that he would have been acquitted absent the allegedly
unprofessional error. See Strickland, 466 U.S. at 694. We do not set aside a
conviction or sentence solely because the outcome would have been different but for
counsel's error, rather, the focus is on whether "counsel's deficient performance renders
the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v.
Fretwell, 506 U.S. 364, 372 (1993).


botched drug deal with Couzens and owed Couzens and Howerton money. However,
if Mansfield's counsel had been permitted to delve into these earlier events and the
relationships between the parties, the state could have presented evidence that
Mansfield had also been involved in physical altercations with Trader and had been
known to have violent outbursts. Additionally, evidence that Couzens, Hertlein, and
Howerton may have had a motive to kill Trader could have been equally damaging to
Mansfield in that the state sought to show that Mansfield was a "wise guy wanna be,"
who wanted to prove his toughness to the others and who had bragged about his violent
exploits. In light of the comment, "do you want me to pop him?" a jury could have
imputed the others' motive to Mansfield, with Mansfield in the role of a "hit man."

                                            -6-
       The trial court granted the government's motion in limine in reliance on State v.
Umfrees, 433 S.W.2d 284, 287-88 (Mo. 1968) (en banc).4 That case provides that
evidence that another person had an opportunity or motive for committing the crime for
which the defendant is being tried is not admissible "without proof that such other
person committed some act directly connecting him with the crime" and evidence that
clearly points to someone other than the accused as the guilty person. Id. at 288.
Mansfield asserts that the police report furnishes such direct proof of others'
involvement.5

      We question the value of Mansfield's purported evidence. In light of Hertlein's
testimony, corroborated by a police officer, that Hertlein had been "planted" in the cell


      4
       We address this issue of state law only as it relates to the issue of effectiveness
of counsel. Admission of evidence is generally a question of state law that will not
form the basis for habeas corpus relief. See Clark v. Groose, 16 F.3d 960, 963 (8th
Cir. 1994).
      5
        The parties debate whether the "Umfrees rule" requires only direct evidence that
links another to the crime or instead requires evidence that clearly exonerates the
accused. The district court found that Mansfield's purported evidence "did not tend
clearly to exonerate" him. Whatever the subtle distinctions between "evidence that
clearly exonerates," and "evidence that points to others as the guilty persons," the
import is the same—the evidence must tend to show that someone else did it. Such
evidence generally exonerates the accused. Mansfield's purported evidence, however,
while it may point to others, does not do so to the exclusion of Mansfield. Cases
allowing admission of evidence that another committed the crime involve direct
evidence that points to the others and excludes the accused. See, e.g., State v. Butler,
951 S.W.2d 600, 606-08 (Mo. 1997) (en banc) (involving evidence linking victim's
nephew, not husband, to the crime); State v. Woodworth, 941 S.W.2d 679, 692 (Mo.
App. 1997) (involving a prior statement by victim that another was his assailant); State
v. Wells, 804 S.W.2d 746, 748 (Mo. 1991) (en banc) (involving a letter from an
eyewitness clearly implicating another and exonerating the accused). See also State v.
Rousan, 961 S.W.2d 831, 848 (Mo. 1998) (en banc) (finding no direct evidence to
connect another to the crime but noting that evidence that another contracted for the
murder would inculpate rather that exculpate the accused), cert. denied, 118 S. Ct.
2387 (1998).

                                           -7-
next to Mansfield in order to obtain a taped confession, any admissions he made in the
jail cell can be explained as part of the scheme to trick Mansfield into confessing. The
report thus lacks any real probative value. In addition, we find the statements by the
other prisoners are equivocal and contradictory. One prisoner stated that Hertlein said
that "three of them" followed the cab and each one stabbed Trader. Another prisoner
stated that Hertlein said that he had stabbed the victim and the others watched.
Significantly, none of the statements exclude Mansfield as a perpetrator.

       Most importantly, the police report only substantiates evidence that the trial court
actually heard. Hertlein himself testified that he had made the admissions at the jail.
The trial court heard the substance of the evidence that supposedly incriminated others
and could have reversed its ruling on the motion in limine had it been inclined to do so.



      We are not convinced that the police report amounts to evidence that satisfies
the Umfrees standard. Mansfield's purported evidence would show only that he either
aided or was aided by others in the murder, or that he committed the murder at the
behest of others. It does not point to others as the guilty persons to the exclusion of
Mansfield. We thus find it doubtful that the presentation of this evidence would have
caused a contrary ruling by the trial court.

       Thus, we find Mansfield's counsel's failure to present this evidence to the court
was not objectively unreasonable. Counsel may have had compelling strategic reasons
for his failure to press the evidence upon the court. Counsel could have reasonably
assumed that the evidence was damaging to Mansfield's case, in that it undermined his
alibi defense. The statements also could have been viewed as damaging in that they
provided further corroboration of Hertlein's version of events. The evidence lacked any
real benefit to Mansfield because it was "explained away" by Hertlein's testimony that
the statements were part of a ruse to get Mansfield to confess.




                                           -8-
        Moreover, even if Mansfield were able to show that his counsel's actions were
objectively unreasonable, he is unable to show prejudice. Contrary to Mansfield's
assertions, the state's case against him was not weak.6 The damaging testimony by
Hertlein was corroborated by the testimony of several others, most importantly, the
cabdriver. Although the cabdriver later faltered in his identification of Mansfield by
testifying at trial that the perpetrator had a mustache, Mansfield's counsel pointed the
inconsistency out in closing argument. We have reviewed the record and find that
Mansfield has not shown that the result of his trial is unreliable or the proceeding was
fundamentally unfair. We have considered Mansfield's other arguments and find them
lacking in merit.

        To the extent that Mansfield contends he is actually innocent of this crime, we
add that a claim of "actual innocence" is not itself a constitutional claim, but instead
a gateway through which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits. See Herrera v. Collins, 506 U.S. 390,
404 (1993). "[T]he traditional remedy for claims of innocence based on new evidence,
discovered too late in the day to file a new trial motion, has been executive clemency."
Id. at 417.




      6
        In support of his contention that the case against him was weak, Mansfield
points to the lack of any apparent motive and to the state's inability to find evidence of
blood in his car through the use of Luminol. Neither of these undermine the state's case
to any significant degree. The lack of a motive was due, in part, to the exclusion of
evidence of Mansfield's propensity for violence and revenge. The absence of Luminol
evidence is not particularly probative because, although Mansfield had blood on his
hands and clothing, there was no showing that there was any abundance of blood
present in the car. In addition, both of these points were argued to the jury.

                                           -9-
III.   CONCLUSION

      The district court's denial of Mansfield's petition for a writ of habeas corpus is
affirmed.

HEANEY, Circuit Judge, dissenting.

       While in custody, Hertlein admitted to at least four people that he was an active
participant in the murder of Mark Trader. I cannot excuse counsel's failure to present
this evidence to the trial court as simply an acceptable trial strategy. Had this evidence
been presented, the trial court would have had reason to admit the evidence referred to
in footnote three of the majority's opinion--evidence that was consistent with
Mansfield's theory of defense.

        As explained by the majority, Mansfield presented an alibi defense at trial.
Clearly in such a defense, evidence of another's motive and opportunity to commit the
crime is of great importance, for it provides the jury with an explanation of who, if not
the defendant, may be guilty. However, under Missouri law at the time of Mansfield's
trial, he was prohibited from presenting evidence of another's motive and opportunity
to commit the crime unless he could provide the trial court with some direct link
connecting the alleged perpetrators to the crime. See State v. Umfrees, 433 S.W.2d
284, 287-88 (Mo. 1968) (en banc).

       Mansfield had an abundance of evidence which tended to prove that Hertlein,
Couzens, and Howerton had both a motive to commit the murder and the opportunity
to do so. However, as stated above, under Missouri law this evidence was inadmissible
without some other evidence directly linking them to the crime.

      Such evidence was available in this case, but Mansfield's counsel failed to
present it. Officer Cavanah's police report details his interviews with four inmates,
Joseph Snodgrass, Leonard Berryman, Nick Nichols, and Jessie Kessler, each of whom

                                          -10-
indicated to him that Hertlein admitted involvement in the murder while in jail with
them. According to Cavanah,

      Snodgrass stated that the other person who was talking believed to [be]
      Hertl[ei]n made many statements about the homicide as if he knew about
      it. He made the statement that the suspect [sic] had been stabbed 21
      times. It was obvious to him that Hertl[ei]n knew about the murder as if
      he were there.

             Berryman stated something about putting the dude in a cab and
      three of them followed him to his house. Hertl[ei]n stated that all 3 of
      them got out and each one stabbed him. He stated that [Mansfield]
      played dumb as if he did not know what was going on. He stated that he
      told [Mansfield] that [Hertlein] was involved by the way he was talking.

             Nichols stated that Hertl[ei]n stated that we all stabbed him. He
      stated that [Hertlein] stated that he was involved and that he and two
      others stabbed the victim. . . .

            Kessler stated that he heard Hertl[ei]n say that he stabbed him 9
      times and that a couple other people helped him watch.

(Appellant's Add. at 39-40.)

       To consider these statements equivocal and contradictory requires an overly
critical reading of the statements. All of the inmates agreed that Hertlein's statements
made it clear that he was involved; three of the inmates noted that Hertlein was
bragging about personally stabbing the victim. Although there are inconsistencies
among the statements, one would expect such an outcome from different witnesses,
each relating his recollection of the events. Moreover, despite their minor differences,
all the statements have a common thread: all directly link Hertlein to the crime,
meeting Missouri's threshold evidentiary requirement. In such a context, it is
indisputable that not presenting the police report in question to the trial court was
deficient conduct by counsel.



                                         -11-
        The majority regards these confessions by Hertlein to be of little probative value,
in part because Hertlein testified about them at trial. I disagree. During his trial
testimony, Hertlein admitted that he told his fellow inmates that he was being held for
first degree murder, but claimed he was doing so as part of a plan to elicit a confession
from Mansfield. Standing alone, this would likely not satisfy the Umfrees standard.
However, Hertlein's statements in the police report contain a disturbing amount of detail
of the crime, calling into question Hertlein's professed innocence, and at the very least
directly linking him to the crime. Thus, had the police report been presented to the trial
court, it would have provided a sufficient link between Hertlein and the crime for the
trial court to have then properly admitted motive and opportunity evidence.

       Failing to present the police report to the trial court was deficient performance
under the familiar test of Strickland v. Washington, 466 U.S.668, 687 (1984). Because
I believe that counsel's failure to present this evidence produced an unreliable result,
Mansfield's petition should be granted.7

      A true copy.

             Attest:

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




      7
       The other evidence introduced against Mansfield was weak. Most of the
incriminating evidence was provided by Hertlein, Howerton, and Couzens, the same
three individuals whom Mansfield claimed were the true perpetrators. Thus, had
evidence of their motive and opportunity to commit the murder been admitted, the jury
may well have discredited their testimony as self-serving. That being the case, the most
damaging independent testimony against Mansfield would have been the cabdriver's
eyewitness identification, which was impugnable because it was inaccurate.

                                           -12-
