                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-1844
                                     ___________

Michael A. Clark,                         *
                                          *
                   Appellant,             *
                                          * Appeal from the United States
             v.                           * District Court for the
                                          * Eastern District of Missouri.
Paul D. Caspari,                          *
                                          *
                   Appellee.              *
                                     ___________

                                Submitted: March 15, 2001

                                    Filed: November 28, 2001
                                     ___________

Before HANSEN and HEANEY, Circuit Judges, and BATTEY1, District Judge.
                          ___________

HEANEY, Circuit Judge.

     Michael A. Clark appeals the district court’s2 denial of his Petition for Writ of
Habeas Corpus. The primary question presented on appeal is whether the state trial


      1
       The Honorable Richard H. Battey, United States District Judge, for the District
of South Dakota, sitting by designation.

      2
       The Honorable Jean C. Hamilton, United States District Judge for the District
of Missouri.
court erred in failing to suppress eyewitness identification evidence that was the
product of a purportedly suggestive “show-up” procedure. The district court
answered that question in the negative, and we affirm.

I.    BACKGROUND

      On November 12, 1988, two African-American men entered Mack’s Package
Liquor Store in St. Louis County, Missouri. Store clerk Virginia Conner was the only
other person in the store. Conner testified that the men wanted to know where the
wine was located and that they both faced her as she directed them towards the wine.
The two men faced Conner another time to inquire about the price of various wine
products, and again when they approached the counter to pay for their purchases.
Conner testified that when she opened the cash register, the shorter of the two men
reached over the counter and removed some money. When she looked up, Conner
saw that the taller man was pointing a gun at her, and both men were smiling.

       After the two men removed the money from the cash register, they instructed
Conner to lie on the floor behind the counter. When Conner lied down, she was able
to activate the silent alarm. As the two men were leaving the store, a customer, John
Walker, was entering and had a brief verbal exchange with the taller of the two men
about some black gloves that the man had dropped. Specifically, Walker asked the
man whether he had dropped his gloves. The man took the gloves from Walker, said
“thank-you,” and left the store.

        After shopping for a short while, Walker approached the counter with his
merchandise, whereupon Conner told him that the store had just been robbed. Walker
testified that he ran outside and yelled at the two men to stop. He was able to observe
the two men when they stopped momentarily, and again a short time later.
Eventually, he went to a nearby restaurant to call the police. Walker testified that he
described the two men to the 911 operator as a short black man, about 5' 7", and a tall

                                          2
black man wearing a dark jacket and scarf on his head. Walker also testified that he
attempted to provide a similar description to a responding police officer, however, the
officer drove off as soon as Walker told him the direction that the two men were
walking.

       About fifteen minutes after the robbery, police officer Michael Doedli observed
two black men who matched the description that was provided by the police
dispatcher walking near railroad tracks located north of Mack’s Package Liquor
Store.3 The men fled after Doedli told them to stop. Fifteen minutes later, police
separately apprehended both of these men, who were later identified as Clark and
Paige Spears. At the time of his arrest, Clark was wearing jeans, a black corduroy
jacket, and a black silk scarf on his head. Spears was wearing a black silky jacket,
a blue beret-style hat, and dark pants. Police found a pair of black leather gloves and
a blue steel derringer near Clark.

       Following their arrest, Clark and Spears were taken to the driveway of a nearby
apartment complex, where they were forced to lie face down while handcuffed. A
white male police officer with a shotgun stood over them. Several minutes later,
Conner and Walker were taken to this location to identify Clark and Spears. When
they arrived, Conner and Walker saw Spears being hauled to his feet. Both men were
surrounded by white male police officers. Conner, who was visibly shaken by the
events, identified both Clark and Spears. Walker identified Clark, and indicated that
he was not sure about Spears.

      On February 9, 1989, Clark and Spears were charged with first degree robbery
and armed criminal action. They were tried together beginning on October 30, 1989.

      3
       The police dispatcher described the suspects as two black males, one wearing
a dark coat and white tennis shoes, and the other wearing a dark coat and a green
stocking cap. This description differs from the one provided by Walker, and its origin
is unknown.

                                          3
After the jury was unable to reach a verdict, the court declared a mistrial. Clark and
Spears were retried on December 12, 1989. This time, the jury found them guilty.

       The state trial court determined that Clark was a prior, persistent, and Class X
offender, and sentenced him to life in prison on the robbery count, and thirty years on
the armed criminal action count. Clark appealed this conviction and sentence to the
Missouri Court of Appeals on three grounds: (1) lack of jurisdiction, (2)
impermissible identification (show-up), and (3) improper closing argument. The
Missouri Court of Appeals affirmed. See State v. Clark, 809 S.W.2d 139 (Mo. Ct.
App. 1991). Clark did not file a motion to transfer the case to the Missouri Supreme
Court or a Rule 29.15 motion for post-conviction relief. Instead, he filed a petition
in federal court, seeking habeas corpus relief. See Title 28 U.S.C. § 2254.

       Clark raised a variety of claims in his Petition for Writ of Habeas Corpus. The
district court dismissed Clark’s habeas corpus petition with prejudice, finding that all
of his claims, other than his claim of ineffective assistance of counsel on appeal, were
barred by procedural default because he failed to: (1) file a timely Rule 29.15 motion
in the Missouri state court, (2) raise the issues in his Motion for New Trial or on
direct appeal, and (3) seek transfer of his direct appeal to the Missouri Supreme
Court. See Hall v. Delo, 41 F.3d 1248, 1249 (8th Cir. 1994) (federal habeas review
is barred when a federal claim has not been “fairly presented” to the state court for
a determination on the merits) (citation omitted). Further, the district court found no
actual cause to excuse the procedural default with respect to Clark’s failure to file a
Rule 29.15 motion, or his failure to raise certain issues in his Motion for New Trial
or on direct appeal. See Wainwright v. Sykes, 433 U.S. 72, 90 (1977) (a procedural
bar exists to federal collateral review of the claims unless the petitioner can show
cause and prejudice for the failure). The district court did find cause to excuse his
failure to make a motion to transfer his direct appeal to the Missouri Supreme Court,
however, because at the time the Missouri Court of Appeals decided his direct appeal,
the prevailing law in this circuit was that a habeas petitioner did not have to make

                                           4
such a motion to transfer in order to satisfy the exhaustion requirement. See, e.g.,
Dolney v. Erickson, 32 F.3d 381, 383-84 (8th Cir. 1994). The district court found no
actual prejudice with respect to any of Clark’s grounds to excuse the procedural
default, but did discuss the show-up claim at some length. The district court then
granted a certificate of appealability on the question of whether the pretrial show-up
was impermissibly suggestive. See Title 28 U.S.C. § 2253. This appeal followed.



II.    DISCUSSION

       We first dispense with the State’s argument that the district court erred when
it found that Clark’s show-up claim was not procedurally barred for his failure to file
a motion to transfer his case to the Missouri Supreme Court. This issue is controlled
by Dixon v. Dormire, 263 F.3d 774 (8th Cir. 2001). See also Coleman v. Kemna, 263
F.3d 785 (8th Cir. 2001); Moore v. Luebbers, 262 F.3d 757 (8th Cir. 2001).

       After Clark filed his federal habeas petition, the United States Supreme Court
decided that the exhaustion doctrine requires a state prisoner to file for any available
discretionary review in the state's highest court prior to filing for federal habeas relief.
See O'Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999). In Coleman, and in Moore,
we stated as follows:

       In Dixon we concluded that the O'Sullivan opinion requires Missouri
       prisoners to seek a discretionary transfer to the Supreme Court of
       Missouri. Nevertheless, we did not allow the State to assert an
       exhaustion or procedural default defense in that case because, although
       the prisoners had failed to exhaust discretionary review, they had
       bypassed this available remedy before O'Sullivan was filed and in
       reliance on the State's prior and consistent position that such a transfer
       was not necessary to exhaustion and would not be asserted as a defense
       against claims brought in federal court. Id. Our reasoning was based on
       Ford v. Georgia, 498 U.S. 411, 423-24 (1991), where the Court stated

                                             5
      that only a “firmly established and regularly followed state practice” will
      bar federal court review. There was no firmly established state practice
      in Missouri of insisting on the exhaustion of discretionary review; to the
      contrary, the State had consistently asserted that the exhaustion of
      discretionary review was unnecessary.

Moore, 262 F.3d at 758; see also Coleman, 263 F.3d 785. For the reasons stated in
Dixon, we hold that O'Sullivan did not prohibit the district court from considering
Clark’s habeas petition in this instance “because the State has not previously ‘strictly
or regularly’ relied on the default of this state procedure to bar federal review.”
Moore, 262 F.3d at 758 (citation omitted). Accordingly, we turn to the merits of
Clark's show-up claim.

       Clark claims the trial court erred by rejecting his motion to suppress the
identification testimony of Conner and Walker. He contends that their identifications
were the result of an improperly suggestive procedure, and were unreliable. Under
Missouri law, “[i]dentification testimony is admissible unless the pretrial
identification procedure was unnecessarily suggestive and the suggestive procedure
made the identification unreliable.” State v. Middleton, 995 S.W.2d 443, 453 (Mo.
1999) (citations omitted); see also State v. Secrease, 859 S.W.2d 278, 279 (Mo. Ct.
App. 1993) (stating that under Missouri law, the test for whether identification
testimony is admissible depends on whether the identification was impermissibly
suggestive, and if so, whether this suggestiveness had an impact on the reliability of
the identification).

        The circumstances surrounding Walker and Conner’s identifications indicate
that the procedures used were improperly suggestive. The record reveals that prior
to the identifications, Walker and Conner were asked to identify several suspects that
had been apprehended by the police. When they arrived on the scene, Walker and




                                           6
Conner saw only Clark and Spears.4 Both individuals were handcuffed, and were
surrounded by white police officers, one of whom was holding a shotgun. Under
these circumstances, Walker and Conner may have felt obligated to positively identify
Clark and Spears, so as not to disagree with the police, whose actions exhibited their
belief that they had apprehended the correct suspects. Essentially, Walker and
Conner were given a choice: identify the apprehended suspects, or nobody at all.
This coercive scenario increased the possibility of misidentification.

       Although the identification procedures used by the police in this case give
cause for concern, Walker and Conner’s identifications may nonetheless be
admissible, as long as they are reliable. Reliability “is the linchpin in determining the
admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114
(1977); see also Middleton, 995 SW.2d at 453 (citations omitted) (“The linchpin of
due process in identification procedures is reliability, not suggestiveness.”). In
determining the reliability of a witness's identification, Missouri courts consider: (1)
the witness’s opportunity to view the suspect at the time of the crime; (2) the
witness's degree of attention; (3) the accuracy of any prior description given by the
witness; (4) the level of certainty demonstrated by the witness in making the
identification; and (5) the length of time between the event and the identification. See
State v. Littleton, 649 S.W.2d 225, 227 (Mo. 1983) (en banc); see also Brodnicki v.
City of Omaha, 75 F.3d 1261 (8th Cir. 1996).

       There are several factors which demonstrate that Walker and Conner’s
identifications may have been unreliable. First, neither Walker nor Conner were able
to provide a detailed description to the police prior to the apprehension of Clark and
Spears. This makes it impossible to assess the reliability of their identifications based
on the accuracy of any prior descriptions, and leaves open the possibility that their


      4
        Neither Walker nor Conner was ever shown any other suspects, photographs,
or a lineup.

                                           7
later descriptions were tainted by their opportunity to view the suspects at the show-
up. Further, Conner and Walker’s trial testimony was inconsistent. Both witnesses
admitted that they had difficulty remembering certain details about the suspects at the
time of the robbery, and both gave conflicting testimony throughout the two trials.
These factors undercut the reliability of their testimony, and indicate that they may
have been inattentive at the time of the crime and uncertain at the time of the
identifications. Also, Walker testified that he spontaneously identified Clark before
Conner had a chance to voice her opinion. This outburst could have influenced
Conner’s subsequent identification of Clark.

       Despite these concerns, we do not believe the district court erred in affirming
the Missouri Court of Appeals. Three factors lead us to conclude that the witnesses’
identifications were reliable, despite the questionable circumstances surrounding the
identifications. First, both Walker and Conner had the opportunity to clearly view the
perpetrators at the time of the robbery. Conner viewed them face-to-face when they
asked for her help in finding wine, and also, when they were at the cash register.
Walker viewed them face-to-face when he passed them while entering the store, and
when he returned a pair of gloves to one of the perpetrators. Also, only thirty minutes
elapsed between the time of the crime and the show-up. This short time period
allowed Walker and Conner to make their identifications while their recollections
were still fresh. See State v. Pettit, 719 S.W.2d 474, 477 (Mo. Ct. App. 1986)
(finding that the reliability of identification is greatly enhanced by returning a freshly
apprehended suspect to the scene of an offense for prompt identification by
eyewitnesses). Finally, there is no evidence in the record to indicate that the police
prompted Conner or Walker to positively identify Clark and Spears. Although the
record reveals that the police may have made several inquires about the identity of the
suspects before receiving a positive identification, there is no evidence to suggest that
their questions were designed to elicit a particular response.




                                            8
III.   CONCLUSION

      The show-up procedures used in this case were suggestive, and there are
several reasons to question the reliability of the identifications. Nevertheless, for the
reasons discussed above, we affirm.

HANSEN, Circuit Judge, concurring.

       I agree with the result reached by the court but write separately to emphasize
the restricted nature of our habeas review and to point out the appropriate level of
deference that must be afforded the Missouri Court of Appeals' decision. Following
the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.
1214, federal courts may grant a state prisoner's petition for writ of habeas corpus in
three limited situations: (1) when the state court decision was contrary to clearly
established federal law, 28 U.S.C. § 2254(d)(1) (Supp. IV 1998); (2) when the state
court decision involved an unreasonable application of clearly established federal
law, id.; or (3) when the state court decision "was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding," id. § 2254(d)(2). Under the first two scenarios, we may look only to the
Supreme Court's jurisprudence on a particular issue for purposes of defining what
constitutes clearly established federal law. Williams v. Taylor, 529 U.S. 362, 412-13
(2000).

       The Missouri Court of Appeals stated in deciding Clark's appeal that Missouri
courts employ a two-pronged test to determine the admissibility of identification
testimony: "(1) Was the pretrial identification procedure impermissibly suggestive;
and (2) if so, what impact did the pretrial identification have upon the reliability of
the witness' identification." Clark, 809 S.W.2d at 142 (citing Missouri v. Hornbuckle,
769 S.W.2d 89, 93 (Mo. 1989) (en banc)). The state court went on to conclude that
the officers' "show-up" procedure was not impermissibly suggestive and that the

                                           9
nature of the preidentification encounter did not render the subsequent identifications
unreliable. Id. at 142-43.

       The analysis undertaken by the state court is entirely consistent with the two-
part test announced by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98
(1977), although Manson's facts are distinguishable from those present here. In
Manson, the Supreme Court stated that in evaluating identification testimony, a court
must consider: (1) whether the identification procedures were impermissibly
suggestive; and (2) if they were impermissibly suggestive, whether under the totality
of the circumstances "the suggestive procedures created a 'very substantial likelihood
of irreparable misidentification.'" Manson, 432 U.S. at 116-17; see also United States
v. Fields, 167 F.3d 1189, 1190 (8th Cir.) (describing the analysis required under
Manson), cert. denied, 526 U.S. 1140 (1999). The Supreme Court also reiterated in
Manson the same five factors to guide courts in assessing the reliability of a pretrial
identification that the Court previously identified in Neil v. Biggers, 409 U.S. 188
(1972). See Manson, 432 U.S. at 114-16. The Supreme Court of Missouri's
development of the proper analysis to be undertaken when identification procedures
are challenged can be traced directly to the Supreme Court's decisions in Manson and
Biggers. See Missouri v. Higgins, 592 S.W.2d 151, 160 (Mo. 1979) (quoted in
Hornbuckle, 769 S.W.2d at 93), overruled on other grounds by Kuyper v. Stone
County Comm'n, 838 S.W.2d 436 (Mo. 1992).

       While I too am concerned that the identification procedures employed by the
police officers were suggestive, the resolution of Clark's appeal turns not on whether
they were or were not, but on whether the state court's decision involved an
unreasonable application of federal law in determining that the identifications
themselves were reliable. This is so because, as our court notes in its opinion,
reliability is the analytical "linchpin" to determining the admissibility of identification
evidence. The Supreme Court explained in Williams v. Taylor, as relevant here, that
a state court decision involves an "unreasonable application of" federal law "if the

                                            10
state court identifies the correct governing legal rule . . . but unreasonably applies it
to the facts of the particular state prisoner's case." 529 U.S. at 407. Our task then is
not to examine the case as if it were on direct review, applying our independent
judgment to determine whether the state court was correct in its decision, but rather
we are to determine whether the state court's application of the clearly established
federal law (even if erroneous) was objectively reasonable. See Carter v. Bowersox,
265 F.3d 705, 713 (8th Cir. 2001).

       The Missouri Court of Appeals in Clark's case applied the appropriate legal
framework in making its decision, and it identified and discussed the relevant facts
surrounding the identification procedures. Although the state court did not refer
specifically to the Biggers factors, it looked to the facts that touch on the Biggers
considerations, factors which our court discusses in independent detail in today's
decision. Specifically, the state court determined that both Conner and Walker had
a clear view of the robbers, that Conner viewed Clark face-to-face for three to four
minutes, that both Conner's and Walker's descriptions were "fairly" accurate, that
there was a minimal delay between the robbery and the identifications, and that
Conner expressed no difficulty in making a positive identification. Clark, 809
S.W.2d at 142-43. Clark presents no evidence now to suggest that the state court's
view of the facts was unreasonable based on the evidence presented, and the state
court's reliability conclusion is not unreasonable in light of the indicia of reliability
upon which it based its decision. Because the Missouri Court of Appeals' decision
in Clark's case cannot be labeled as an unreasonable application of the principles
enunciated by the Supreme Court in Manson, I concur in our court's affirmance of the
district court's judgment.




                                           11
A true copy.

      Attest:

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




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