- Kidnapping - Rape
Number of victims: 1
Date of murder:
Date of arrest:
Date of birth:
Victim profile: Geneva Roling
Method of murder:
Shooting (.22 caliber
Location: Cole County, Missouri, USA
by lethal injection in Missouri on July 31,
State of Missouri v.
Emmett Clifton Nave
757 W. W. 2d 249
Emmett Clifton Nave was executed on July 31, 1996
On the morning of November 19, 1983, Nave threatened to kill his
wife if she didn’t drive him to the hospital and help him get some
drugs. Prior to going to the hospital, Nave told his wife that he
wanted to see his landlady Geneva Roling. When Mrs. Roling answered
the door, Nave shot her with a .22 caliber rifle. Nave and his wife
left the Roling residence to go to the hospital for drugs.
At 8:02 a.m., officers of the Jefferson City
Police Department responded to the Roling residence at 303 Marshall
for a shooting. At the scene, the officers found Mrs. Geneva Roling
laying dead on the floor with numerous gunshot wounds.
Shortly after their arrival, police learned that
an individual, later identified as Emmett Nave, had attempted to
obtain the drug Demoral from an emergency room employee at the Still
After he was refused the drug Nave flourished a
.22 caliber automatic rifle at the employee and demanded he be given
Valium and Demoral. The employee administered 100 ml. of Demoral and
Nave left the hospital taking five female hostages with him.
Nave took the hostages to a residence where he
forced them to have sex with him. During this time, three of the
hostages were able to escape. Nave then took a hostage to a shed
near Brazito, Missouri where he forced her to inject him with
Demoral and Valium whereupon he lost consciousness and was
11/20 - Nave was placed on five years probation for
Joyriding in Denver, Colorado.
06/24 - Nave was sentenced to 90 days in jail for Soliciting for an
Act of Prostitution in Denver, Colorado.
07/02 - Nave was sentenced to one year in jail for
Joyriding in Denver, Colorado.
07/05 - Nave was sentenced in Denver, Colorado for Simple
Robbery. He received an indeterminate sentence to the Colorado State
03/26 - Nave was sentenced to 120 days for Burglary in Los
07/16 - Nave was sentenced to two concurrent Life sentences
for Forcible Rape and Armed Robbery with a Dangerous and Deadly
Weapon in Liberty, Missouri.
March - Nave was sentenced to four years in California for
Burglary. Nave’s Missouri parole was revoked in November 1981
following his conviction in California.
03/14 - Nave was paroled --for a second time-- for his Missouri
conviction a second time.
11/19 – Geneva Roling, Emmett Nave’s upstairs neighbor and landlady,
was shot to death in Jefferson City.
2/7 – Emmett Nave was indicted in Cole County on charges of capital
murder for the shooting death of Geneva Roling.
6/18-21 – Nave was tried in the Circuit Court of St. Charles County
on a change of venue from Cole County and found guilty of Capital
murder. The jury recommended a sentence of death.
8/6 – A motion for a new trail was denied and Nave was sentenced to
death for killing Geneva Roling.
8/15 – A notice of appeal was filed.
8/7 – The Missouri Supreme Court affirmed Nave’s conviction and
3/31 – The United States Supreme Court denied certiorari.
5/19 – Nave filed a Rule 27.26 motion for post conviction relief in
the Circuit Court of St. Charles County.
10/6 – The Missouri court of Appeals, Eastern District remanded the
post conviction proceedings to the circuit court in order for the
motion court to enter findings and conclusions on all of the issues
raised in the motions for post conviction relief.
12/1 – The motion for post conviction relief was denied.
12/7 – A notice of appeal was filed.
7/19 – The Missouri court of Appeals, Eastern district affirmed the
denial of post conviction relief.
10/18 – Nave’s motion for transfer was denied by the Missouri
2/27 – The United States Supreme Court denied certiorari.
3/14 – Nave filed a petition for writ of habeas corpus in the United
States District court for the Eastern District of Missouri.
4/28 – An Evidentiary hearing was held on Nave’s federal habeas
6/17 – The petition for writ of habeas corpus was granted. The
conviction was affirmed, but the sentence was vacated.
7/1 – The State’s notice of appeal was field.
4/22 – The United States Court of Appeals for the Eighth Circuit
reversed the district court’s order to the extent that it granted
the petition for writ of habeas corpus.
7/13 – Rehearing was denied by the United States Court of Appeals
for the Eighth Circuit.
10/24 – The United States district Court entered an order and
judgment denying Nave’ petition for writ of habeas corpus.
12/14 – Nave filed a petition for writ of certiorari with the United
States Supreme Court.
2/12 – Nave’s petition for writ of certiorari was granted and the
case remanded to the Eighth Circuit.
8/7 – After further consideration the petition for writ of habeas
corpus was denied by the eighth circuit court of Appeals.
10/25 – Rehearing was denied by the United States Court of Appeals
for the Eighth Circuit.
3/23 – Nave filed a petition for writ of certiorari with the United
States Supreme Court.
5/20 – Nave’s petition for writ of certiorari was denied by the
United States Supreme Court.
5/23 – The Office of the State Attorney General applied to the
Missouri Supreme Court to set an execution date.
5/30 – Missouri Supreme Court sets execution date for July 31, 1996.
Missouri Executes Killer
The New York Times
August 1, 1996
killer who had also served time for rape and armed robbery was
executed by injection early today. The killer, Emmett C. Nave, 55,
was executed at the Potosi Correctional Center for the 1983 killing
of his landlady, Geneva Roling, whom he shot 10 times in her
Jefferson City apartment.
Mr. Nave had earlier confronted Ms. Roling about
parking problems, lack of heat in his apartment and problems with
his mail delivery, prosecutors said.
The judge said he sentenced Mr. Nave to death
because he was a repeat offender.
62 F.3d 1024
C. Nave, Petitioner-appellee,
Paul K. Delo, Respondent-appellant.
C. Nave, Petitioner-appellant,
Paul K. Delo, Respondent-appellee
United States Court of Appeals,
Submitted March 14, 1994.
Decided Aug. 7, 1995
Before BOWMAN, Circuit Judge,
FLOYD R. GIBSON, Senior Circuit Judge, and
MORRIS SHEPPARD ARNOLD, Circuit Judge.
FLOYD R. GIBSON, Senior
February 21, 1995, the United States Supreme
Court vacated our previous decision in this
case (reported at 22 F.3d 802) and remanded
for reconsideration in light of Schlup v.
Delo, --- U.S. ----, 115 S.Ct. 851, 130 L.Ed.2d
808 (1995). On reconsideration, we again
previous decision, we reversed the district
court's decision granting
Nave's petition for a writ of habeas
corpus based on ineffectiveness of trial
counsel and affirmed its decision denying
Nave's request for
relief based on additional alleged trial
errors. Although the Supreme Court's order
vacated our prior opinion as it related to
all of these issues, it remanded for
reconsideration in light of Schlup v. Delo.
Therefore, we revisit only Part II(A)(1)(b).
With regard to the other issues, our
decisions are the same as they were earlier.
Specifically, we hold that
Nave has failed to meet the actual
innocence standard outlined in Schlup v.
Delo and only restate our prior holdings
under the other sections.
than reformulate the facts of this case, we
set forth below the background substantially
as it was explicated in our prior opinion.
We summarize the facts outlined in the
Court's opinion affirming
Nave's conviction on direct appeal.
State v. Nave, 694
S.W.2d 729, 731-33 (Mo.1985) (en banc), cert.
denied, 475 U.S. 1098, 106 S.Ct. 1500, 89
L.Ed.2d 901 (1986).
In June of
1984, Nave was
convicted of one count of capital murder,
one count of first degree robbery, three
counts of sodomy and four counts of
kidnapping. The convictions stemmed from a
crime spree that took place on November 19,
1983, while he was on parole from two life
sentences for armed robbery and forcible
Nave had been
experiencing difficulties with his parole
officer because of his failure to stop
consuming alcoholic beverages and attend
Alcoholics Anonymous meetings, both of which
were conditions of his parole.
was upset about the instructions he received
from the drug abuse counselor at a nearby
hospital. Nave was
also having problems getting along with
Geneva Roling, a neighbor who was either the
owner or manager of the apartment house in
which Nave and his
night of November 18, Nave
told his wife that Roling and the drug abuse
counselor were trying to control his life
and expressed a fear that his parole would
be revoked. He also indicated that he was
going to "hurt" some people, including
picked up his .22 caliber semiautomatic
rifle and ordered his wife to drive him to
the hospital so he could get some drugs.
Before leaving, Nave
told his wife that he had to talk to Roling.
While his wife went to the car,
Nave knocked on
parking lot, Nave's
wife heard a number of shots, followed by
Roling's screams. Roling's body was later
discovered by her son; she had been shot ten
times, with the fatal bullet having been
fired into her skull at point-blank range.
Ballistics tests would later prove that the
bullets came from Nave's
Nave and his wife
drove to the hospital; upon arriving,
Nave went to the
emergency room and demanded some painkilling
drugs. His requests were denied, at which
time he returned to the car and told his
wife the drug counselor had prevented him
from obtaining drugs. Armed with his rifle,
Nave returned to
the hospital and searched for his drug
found her talking to a nurse. He pointed the
gun at the women and demanded a shot of
Demerol. He told them that he had already
killed two people1
and had nothing left to lose.
receiving an injection, he ordered the women
to place the contents of the narcotics
cabinet in a bag2
and accompany him to the car. As the trio
left the hospital, they encountered two more
female hospital employees.
Nave threatened to kill them if they
did not also accompany him to his car. Faced
with this threat, they also accompanied
Nave ordered the
women into his car; after questioning the
directed his wife to drive to one of the
During the trip, Nave
repeated his earlier statement that he had
already killed two people and had nothing to
lose by killing more people. Once
Nave, his wife, and
his hostages got into the house,
Nave ordered the
hostages to remove their clothes and perform
various sex acts with him, his wife, and
each other. Nave
was eventually captured after the drug
counselor injected him with a sufficiently
large dose of Demerol to cause him to pass
represented at trial by a member of the Cole
County Public Defender's Office.
Nave's defense was
diminished capacity due to drug and alcohol
use, which was supported by testimony from
his wife and a psychiatrist. The state
presented evidence that tended to prove that,
at the time of the crimes, "Nave
was not intoxicated, was alert, and spoke
clearly." Nave, 694
S.W.2d at 733.
addition to the hostages' testimony, the
state also demonstrated that
Nave's rifle was
the weapon used to kill Roling. The jury
convicted Nave on
all counts. After the penalty phase of the
trial, the jury recommended that
Nave be sentenced
to death for murdering Geneva Roling. The
trial court sentenced him to death for the
capital murder, to life imprisonment for the
robbery, to life imprisonment without the
possibility of parole for thirty years on
each sodomy charge and to thirty years'
imprisonment on each kidnapping charge.
indicated above, Nave's
convictions and sentences were affirmed on
direct appeal. During the direct appeal,
represented by the Boone County Public
1986, Nave filed a
pro se motion for relief under
Court Rule 27.26, seeking to set aside his
conviction for capital murder and the
sentence of death. The St. Charles County
Public Defender's Office was appointed to
After an evidentiary hearing was held,
relief in these collateral proceedings was
denied, and the denial of relief was
affirmed. Nave v.
State, 757 S.W.2d 249 (Mo.Ct.App.1988), cert.
denied, 489 U.S. 1059, 109 S.Ct. 1330, 103
L.Ed.2d 598 (1989).
of 1989, Nave
commenced this habeas proceeding in federal
district court. At some time between the
filing of the second amended petition and
the district court's ruling on that petition,4
Nave filed Motions
to Recall the Mandate in both the
Court and the Missouri
Court of Appeals. Both motions were
district court granted habeas relief for the
following ten alleged instances of
ineffective assistance of counsel:
to request a severance of the counts;
to secure or present evidence of
Nave's long history
of substance and alcohol abuse and his lack
of intent to commit the crimes with which he
to perform an adequate voir dire;
to advise Nave that,
under the then-existing
Missouri marital privilege, he could
bar his wife from testifying against him;
to present evidence of
Nave's prior substance and alcohol
abuse at the penalty phase of the trial;
to object to evidence about the impact of
Nave's crimes on
to object to the prosecutor's comments
regarding the possibility of parole;
to interview or prepare one of the defense
witnesses before calling him to the stand to
to present an adequate closing argument at
the end of the penalty phase; and
cumulative effect of all the above-mentioned
granting the writ, the court noted the
state's argument that it was procedurally
barred from reviewing many of these claims
because they had not been presented to the
state courts, but concluded the procedural
bar could be lifted because
Nave's claims were
contained in his motions to recall the
mandate and because Nave
was actually innocent of the death penalty.
also found, despite the lack of evidence in
the record, that the
Missouri Public Defender System is
understaffed and undertrained. The court's
order concluded by requiring the state "to
discharge the defendant on the capital
murder charge, or alternatively, to amend
his sentence in such a manner as to
eliminate the death penalty, or to grant him
a new trial on the capital murder charge
only." Nave v. Delo,
No. 89-0447-C(4), slip op. at 14 (E.D.Mo.
June 17, 1993).
Nave then requested
that the district court alter or amend its
judgment so as to address his remaining
grounds for relief and to clarify the
ambiguous remedy prescribed in the court's
earlier order. As to the former, the court
rejected the remaining claims of error. As
to the latter, the court concluded that "[t]he
state of Missouri
may impose a sentence of 50 years or more or,
in the alternative, grant the petitioner a
new trial of the punishment phase of the
murder case." Nave
v. Delo, No. 89-447-C(4), slip op. at 4 (E.D.Mo.
July 9, 1993).
appealed the court's decision to grant the
writ, and Nave
appeals the court's rejection of the
additional grounds offered in support of the
writ. Nave cross-appealed
the court's decision denying him relief
based on two additional allegations of trial
error. We reversed the district court's
decision to grant the writ and affirm the
decision with respect to the issues raised
cross-appeal. Following the subsequent
vacation and remand of that opinion, we
again reverse the decision of the district
court's decision to grant the writ and
affirm its decision regarding the issues
presented in Nave's
discussion of the ten alleged instances of
ineffective assistance of counsel will be
facilitated by dividing the claims into two
categories: those that are procedurally
barred and those that are not. The state
concedes that three of
Nave's claims were not procedurally
of the record reveals that, at the 27.26
alleged his trial attorney failed to
adequately develop his defense of diminished
capacity due to alcohol abuse, but this
issue was not raised in the appeal from the
27.26 hearing and thus was defaulted. See
Gilmore v. Armontrout, 861 F.2d 1061, 1065
(8th Cir.1988) (failure to raise claim in
appeal from 27.26 hearing constitutes
procedural default), cert. denied, 490 U.S.
1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037
remaining instances of attorney error were
not presented to the state courts in either
the direct appeal or the collateral
proceedings, and accordingly have been
defaulted. E.g., Smith v. Groose, 998 F.2d
1439, 1441 (8th Cir.1993) ("The failure to
satisfy state procedural requirements serves
as an adequate and independent state
procedural bar to review."). We must examine
whether these seven defaulted claims are
subject to the procedural bar and, if so,
whether there are any exceptions to the bar
that would permit us to review the claims.
habeas petitioner shows cause and prejudice,
a court may not reach the merits of ...
procedurally defaulted claims in which the
petitioner failed to follow applicable state
procedural rules in raising the claims."
Sawyer v. Whitley, 505 U.S. 333, 337-39, 112
S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992) (citations
and emphasis omitted). Additionally, a
prisoner who cannot meet the cause and
prejudice standard can obtain review if the
petitioner can demonstrate he "has a
colorable claim of factual innocence." Id.
at 337-40, 112 S.Ct. at 2518-19.
Nave first contends
that these seven claims are not defaulted
because the substance of these claims was
raised in his motions to recall the mandate.
He further argues that, even if the claims
were defaulted, the procedural bar can be
lifted because he is actually innocent of
the death penalty.
he claims that he has demonstrated cause and
prejudice sufficient to excuse his default.
Specifically, he contends the default can be
excused because his post-conviction counsel
was operating under a conflict of interest
and otherwise provided constitutionally
deficient representation. We reject
Motion to Recall the Mandate
Nave first contends
his claims are not defaulted because they
were raised in his motions to recall the
mandate filed with the
Missouri Supreme Court and the
Missouri Court of
Appeals. We reject his argument because a
motion to recall the mandate was an
inappropriate procedure for presenting the
claims at issue.
discussing the types of claims that may be
raised in a motion to recall the mandate
under Missouri law,
we do not write on a clean slate. In Kennedy
v. Delo, 959 F.2d 112 (8th Cir.), cert.
denied, --- U.S. ----, 113 S.Ct. 168, 121
L.Ed.2d 116 (1992), the petitioner alleged
that the state trial court "erred in failing
to instruct the jury that first degree
murder is a lesser included offense of
capital murder." Id. at 115. The petitioner
failed to raise this issue on direct appeal,
but alleged he had not defaulted the claim
because he raised it in a motion to recall
rejected this argument because we were not
convinced that the claim was "one of the
exceptional cases which the
Missouri Court of
Appeals would have considered outside of the
usual procedure for post-conviction review."
Id. at 116. We take this opportunity to
further clarify when the filing of a motion
to recall the mandate in
Missouri will preserve an issue for
consideration in a subsequent habeas
Missouri law, a
motion to recall the mandate is permissible
in only two circumstances. The first
circumstance is when the petitioner alleges
ineffective assistance of appellate counsel.
Motions under Rule 27.26 allow trial courts
in Missouri "to set
aside a judgment of conviction for
infirmities arising from trial proceedings
only," so the appropriate avenue for
alleging constitutional infirmities during
the direct appeal is the filing of a motion
to recall the mandate. Hemphill v. State,
566 S.W.2d 200, 208 (Mo.1978) (en banc).6
a motion to recall the mandate cannot be
used to allege ineffective assistance of
trial counsel. See State v. Zweifel, 615 S.W.2d
470, 473 (Mo.Ct.App.1981) (court reached
issue of ineffectiveness of appellate
counsel, but refusing to "reach those points
raised by defendant which deal with
ineffectiveness of counsel during trial....").
Nave relies on
Simpson v. Camper, 927 F.2d 392 (8th
Cir.1991), to argue that he could raise his
claims of ineffective assistance of trial
counsel in the motions to recall the
mandate. His reliance is misplaced because,
in Simpson, the petitioner claimed
ineffective assistance of counsel on direct
appeal. Id. at 393.
state's urging, we held the case in abeyance
to allow the petitioner to exhaust her state
remedies by filing a motion to recall the
mandate, which was granted by the
Missouri Court of
Appeals. State v. Simpson, 836 S.W.2d 75 (Mo.Ct.App.1992).
None of the issues raised by
Nave in the motions
to recall the mandate (or, for that matter,
in this habeas proceeding) involve claims of
ineffective assistance of appellate counsel,
so this use of the motion is inapplicable in
instance in which a motion to recall the
mandate may be filed is "when the decision
of a lower appellate court directly
conflicts with a decision of the United
States Supreme Court upholding the rights of
the accused." State v. Thompson, 659 S.W.2d
766, 769 (Mo.1983) (en banc).
Nave reads this
description broadly to encompass any claim
that an appellate court's decision conflicts
with a Supreme Court decision interpreting
constitutional rights. We do not read
Thompson's language so broadly for two
reasons. First, to do so would be contrary
to common sense: Nave's
interpretation would create a never-ending
opportunity to file what amounts to a motion
for rehearing, which directly contravenes
the time limits for filing such motions. See
Mo.R.Civ.P. 84.17. Second, Thompson's
language is not so far-reaching that it
extends to any claim of constitutional
error; rather, it applies when an appellate
court's opinion "directly conflicts with a
decision of the United States Supreme Court
upholding the rights of the accused."
Thompson, 659 S.W.2d at 769 (emphasis added).
must be able to allege that the state court
reached a result contrary to a subsequent
decision from a higher tribunal; it is not
enough that the movant merely allege the
state court's decision misinterpreted or
misapplied existing case law. We arrive at
this understanding by examining the cases
Thompson relied on: State v. McReynolds, 581
S.W.2d 465 (Mo.Ct.App.1979) and State v.
Nevels, 581 S.W.2d 138 (Mo.Ct.App.1979).
cases, the Missouri
Court of Appeals relied on a
Court opinion, State v. Duren, 556 S.W.2d 11
(Mo.1977) (en banc), to reject challenges to
constitutional provisions allowing women to
opt not to sit on juries. The United States
Supreme Court reversed the
Missouri Supreme Court, Duren v.
Missouri, 439 U.S.
357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979),
and later decreed that its holding would be
applied retroactively to the date Taylor v.
Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42
L.Ed.2d 690 (1975), was decided (which was
January 21, 1975). Lee v.
Missouri, 439 U.S. 461, 462, 99 S.Ct.
710, 711, 58 L.Ed.2d 736 (1979) (per curiam).
Missouri Court of
Appeals recognized that its decisions in
McReynolds and Nevels could not stand in
light of the Supreme Court's decisions in
Duren and Lee, and therefore recalled the
mandate in both cases. McReynolds, 581 S.W.2d
at 466; Nevels, 581 S.W.2d at 139.
of these cases is clear: a motion to recall
the mandate is not a means by which a movant
can allege any sort of error in an appellate
court's opinion. Rather, Thompson was
describing a narrow circumstance in which an
appellate court's decision is contradicted
by subsequent developments in the law that
would be applicable in the movant's case.
Inasmuch as Nave
has failed to allege the sort of direct
conflict contemplated by Thompson, his
motions to recall the mandate were not the
proper methods for presenting his claims to
the Missouri Courts.
Nave makes two
separate claims under the heading of actual
innocence: one that he is factually innocent
of the underlying crime, and the other that
he is innocent of eligibility for the death
penalty. A habeas petitioner who has been
sentenced to death may avoid a procedural
bar to the consideration of the merits of
his constitutional claims under the actual
innocence exception by showing that it is
more likely than not that no reasonable
juror would have convicted him. Schlup v.
Delo, --- U.S. ----, ----, 115 S.Ct. 851,
867, 130 L.Ed.2d 808 (1995) (adopting the
Murray v. Carrier standard, 477 U.S. 478,
496, 106 S.Ct. 2639, 2649-50, 91 L.Ed.2d 397
v. Whitley standard remains the benchmark
for actual innocence claims involving
eligibility for the death penalty. Id. at
---- n. 44, 115 S.Ct. at 867 n. 44. Under
the Sawyer standard, Nave
must show by clear and convincing evidence
that but for the constitutional error, no
reasonable juror would have found him
eligible for the death penalty under
Missouri law. 505
U.S. at 350, 112 S.Ct. at 2525.
Carrier and the Sawyer actual innocence
standards must be applied "in light of all
the evidence, including that alleged to have
been illegally admitted (but with due regard
to any unreliability of it) and evidence
tenably claimed to have been wrongly
excluded or to have become available only
after the trial." Schlup, --- U.S. at ----,
115 S.Ct. at 867 (quotation omitted). Unlike
the Jackson v. Virginia standard governing
the review of claims of insufficiency of the
evidence, 443 U.S. 307, 324, 99 S.Ct. 2781,
2791-92, 61 L.Ed.2d 560 (1979), the actual
innocence determination requires the
reviewing court both to assess the
credibility of the newly-discovered evidence
and to make a "probabilistic inquiry" as to
what the trier of fact, based on the
totality of the evidence, would have done.
Schlup at ---- - ----, 115 S.Ct. at 868-69.
preliminary matter, we reject
that Schlup requires us to remand this case
to the district court for a determination of
innocence. The district court has already
conducted a full evidentiary hearing on this
matter in which Nave
presented the newly-discovered medical and
psychiatric records upon which he bases his
actual innocence claim.
decision of the Supreme Court to remand
Schlup to the district court was based on
the "fact-intensive nature" of that inquiry
and "the District Court's ability to take
testimony from a few key witnesses." ---
U.S. at ----, 115 S.Ct. at 869. Because the
record regarding Nave's
newly-discovered evidence has already been
fully developed, this Court is fully capable
of applying the Carrier standard to evaluate
innocence claim without remanding this issue
to the district court.
of Nave's alleged
errors--failure of counsel to present
adequate evidence of his lack of intent due
to alcohol and substance use--bears on his
factual innocence of the crime. However, he
has failed to persuade us that it is more
likely than not that no reasonable juror
would have convicted him, particularly in
light of the fact that
Nave's trial counsel did present
evidence that Nave
was intoxicated at the time of the murder.
To the contrary, there is abundant evidence
that Nave possessed
the requisite criminal intent at the time of
evidence consists of the testimony of his
victims (including a licensed practical
nurse in the detoxification unit of Still
Regional Hospital as well as a certified
abuse counselor, both of whom were well-acquainted
with the effects and indications of
intoxication) and the deliberateness of
prior to the murder (threatening the
victim's life the night before proceeding to
her home with a loaded semi-automatic
rifle). Based on the totality of the
evidence, we conclude that the jury would
probably have convicted
Nave of capital murder even if trial
counsel had introduced evidence that
criminal acts occurred while he was using
Nave alleges also
do not bear on his contention that the jury
would not have sentenced him to death.
Nave can succeed on
this claim only "by showing no aggravating
circumstance existed, or by showing some
other condition of eligibility was not met.
Additional mitigating evidence does not
satisfy the standard." Shaw v. Delo, 971
F.2d 181, 186 (8th Cir.1992) (emphasis added)
(citing Sawyer, 505 U.S. at 344-45, 112 S.Ct.
at 2522), cert. denied, --- U.S. ----, 113
S.Ct. 1301, 122 L.Ed.2d 690 (1993). In
sentencing Nave to
death, the jury found one aggravating
circumstance: that he had a substantial
history of serious assaultive convictions.
See State v. Nave,
694 S.W.2d at 738; Mo.Rev.Stat. Sec.
the errors Nave
alleges were made by his attorney bear on
the existence of this aggravating factor or
on any other condition of eligibility for
the death penalty. As in Shaw,
do not affect his eligibility for the death
penalty because they relate to mitigating
rather than aggravating factors." 971 F.2d
without the deficiencies
Nave complains of, a reasonable jury
could have still found the aggravating
factor that made Nave
eligible for the death penalty. Cf. id.
Accordingly, we cannot excuse the procedural
default by finding that
Nave was actually innocent of any of
the aggravating factors that motivated this
jury to sentence him to death.
Ineffectiveness of Post-Conviction Counsel
In Coleman v. Thompson,
the Supreme Court held that because there
was no constitutional right to the
assistance of counsel in state post-conviction
proceedings, "a petitioner cannot claim
constitutionally ineffective assistance of
council in such proceedings." 501 U.S. 722,
752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640
(1991). Accordingly, ineffective assistance
of post-conviction counsel cannot be imputed
to the state and cannot constitute the cause
and prejudice necessary to excuse a
procedural default. Id. at 751-55, 111 S.Ct.
Nave argues that
Coleman should not apply in a situation
where, as is the case here, the state post-conviction
proceeding represented the first opportunity
to raise his ineffective assistance of trial
counsel claims. He correctly points out that
Coleman specifically declined to address
such a situation. However, in light of
Coleman, this court has held that even if
the state post-conviction proceeding
represents the first opportunity to raise a
claim, "counsel's failure to do so may not
excuse the procedural default." Nolan v.
Armontrout, 973 F.2d 615, 617 (8th Cir.1992)
(citing cases). Accordingly, assuming
counsel was ineffective in a constitutional
sense, his deficiency cannot serve as cause
and prejudice sufficient to lift the
Conflict of Interest
Nave contends his
post-conviction counsel had a conflict of
interest that prevented him from
investigating and raising all available
claims of ineffective assistance of counsel.
The conflict arose from the fact that his
post-conviction counsel was a member of the
St. Charles County Public Defender's Office
and his trial counsel was a member of the
Cole County Public Defender's office, and
both offices are part of the
Defender System established pursuant to
Chapter 600 of the Revised
argues that an actual conflict of interest
may constitute the cause and prejudice
necessary to excuse a procedural default.
E.g., Jennings v. Purkett, 7 F.3d 779, 782
(8th Cir.1993); Jamison v. Lockhart, 975
F.2d 1377, 1380 (8th Cir.1992).
he has failed to convince us that an actual
conflict of interest exists under the
circumstances present in this case. "In
order to prevail, [Nave]
must show that 'an actual conflict of
interest adversely affected his lawyer's
performance.' " Salam v. Lockhart, 874 F.2d
525, 527 (8th Cir.) (quoting Cuyler v.
Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708,
1718, 64 L.Ed.2d 333 (1980)), cert. denied,
493 U.S. 898, 110 S.Ct. 252, 107 L.Ed.2d 202
(1989). "[O]nce the defendant demonstrates
the existence of an actual conflict, he must
also show that the conflict had an adverse
effect on his attorney's performance." Id.
possible conflict, Cuyler, 446 U.S. at 350,
100 S.Ct. at 1719, nor the appearance of
impropriety, Pool v. Armontrout, 852 F.2d
372, 375 (8th Cir.1988), cert. denied, 489
U.S. 1023, 1033, 109 S.Ct. 1149, 1172, 103
L.Ed.2d 208, 230 (1989), are sufficient to
demonstrate the existence of an actual
conflict; the claimant must show "that his
counsel actively represented conflicting
interests." Cuyler, 446 U.S. at 350, 100
S.Ct. at 1719.
the habeas petitioner was represented by the
same public defender's office that
represented an initial suspect in the same
crimes for which Salam was convicted. Even
though his attorney had no personal
involvement in the prior representation,
Salam alleged that the office's prior
representation of a suspect in the very same
crime constituted a conflict of interest. We
assumed that "representation by one attorney
in the public defender's office may be
imputed to all attorneys in the office," and
went on to hold that there was no actual
conflict of interest. Salam, 874 F.2d at
Consequently, even if Nave
is correct in arguing that the Cole County
Public Defender's representation at trial
must be imputed to the St. Charles County
Public Defender's Office (an issue that, as
in Salam, we do not decide here), he is
incorrect in arguing that there is
automatically an actual conflict of interest.
It is also
important to note that in Salam, the two
public defenders involved in the alleged
conflict came from the same office; in the
case at bar, the two public defenders came
from different offices. Though the offices
are under the central control of the Public
Defender Commission, they are still
different offices, and the fact that a
member of one office must claim that a
member of another office provided
ineffective assistance of counsel does not
present a direct conflict of interest. See
State ex rel. Public Defender Comm'n v.
Bonacker, 706 S.W.2d 449, 451 (Mo.1986) (en
banc) (recognizing distinct nature of public
defender's office); People v. Banks, 121 Ill.2d
36, 117 Ill.Dec. 266, 268-69, 520 N.E.2d
617, 619-20 (1987) (same).
We do not
rule out the possibility that, in a given
case, additional facts might demonstrate the
existence of an actual conflict of interest.
However, Nave has
presented no facts to support his claim;
instead, he has relied solely on the
statutorily created relationship between the
public defender's offices in
relationship, standing alone, is
insufficient to demonstrate that an actual
conflict of interest existed.
conclusion, we hold that the seven claims
under discussion were defaulted because the
motions to recall the mandate were not a
proper procedure for presenting them to the
state courts. We also hold that
Nave has not
demonstrated the existence of cause and
prejudice or an actual conflict of interest,
nor has he demonstrated that, but for the
alleged errors, he probably would not have
been sentenced to the death penalty.
Accordingly, there is no basis for excusing
the procedural default, and we refuse to
consider these seven claims.
non-defaulted claims of ineffective
assistance of counsel are to be examined
under the familiar standard set forth in
Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). This
standard requires Nave
to show that his "trial counsel's
performance was so deficient as to fall
below an objective standard of reasonable
competence, and that the deficient
performance prejudiced his defense."
Lawrence v. Armontrout, 961 F.2d 113, 115
performance prong, the court must apply an
objective standard and "determine whether,
in light of all the circumstances, the
identified acts or omissions were outside
the wide range of professionally competent
assistance," Strickland, 466 U.S. at 690,
104 S.Ct. at 2066, while at the same time
refraining from engaging in hindsight or
second-guessing of trial counsel's strategic
decisions. Id. at 689, 104 S.Ct. at 2065.
the performance was deficient, the prejudice
prong "requires proof 'that there is a
reasonable probability that, but for a
counsel's unprofessional errors, the result
of the proceeding would have been different.'
" Lawrence, 961 F.2d at 115 (quoting
Strickland, 466 U.S. at 694, 104 S.Ct. at
Failure to Sever/Spousal Testimony
Nave contends his
counsel provided ineffective assistance when
he declined the trial court's offer to sever
the capital murder count from the counts
involving the other crimes. Had the capital
murder count been tried separately,
Nave could have
barred his wife from testifying under the
then-existing statute governing spousal
immunity. Mo.Rev.Stat. 546.260 (1978); State
v. Manning, 657 S.W.2d 301, 302 (Mo.Ct.App.1983).7
his wife was a victim of the kidnapping, so
failing to sever these counts destroyed
Nave's right to bar
her testimony. Nave
concedes his wife was called to support his
theory of defense, but alleges this decision
also demonstrates his attorney's
ineffectiveness because the effect of this
decision was to provide the state the
ability to present the only direct evidence
which was necessary to prove capital murder.
See Mo.Rev.Stat. Sec. 565.001 (1978).
sake of argument, we will accept as true
Nave's claim that,
had the crimes been tried separately, Sherry
Nave could have
been prevented from testifying at the
capital murder trial. However, it is
important to note that
Nave's counsel called Sherry
Nave as a witness
in her husband's defense. It is conceded
that trial counsel's strategy was to present
the defense of diminished capacity; to do
this, it was necessary to present evidence
that Nave had been
drinking and was intoxicated when he
committed the crimes. The only sources of
evidence that Nave
was intoxicated at the time the crimes were
committed were Nave
himself and Nave's
these alternatives, it was reasonable for
counsel to call Nave's
wife to testify in support of the defense
theory. Furthermore, as noted by the
Missouri Court of
Appeals, "[t]he more bizarre and out of
control [Nave] was
at the time of the crimes, the more it would
support [his] claim of blackout, psychosis,
and intoxication." Nave
v. State, 757 S.W.2d at 253. Thus, it is
clear that the decision to try the counts
together and call Sherry
Nave to the stand was a conscious,
declaring this decision to be
constitutionally deficient, we believe the
district court was tempted by a line of
analysis warned of by the Supreme Court. "It
is all too tempting for a defendant to
second-guess counsel's assistance after
conviction or adverse sentence, and it is
all too easy for a court, examining
counsel's defense after it has proved
unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable....
There are countless ways to provide
effective assistance in any given case."
Strickland, 466 U.S. at 689, 104 S.Ct. at
counsel's strategy in this case proven
effective, the jury might have acquitted
Nave of some of the
charges because it believed he lacked the
intent necessary to commit the crimes.
Hindsight now suggests that a different
strategy might have been more effective, but
this does not mean trial counsel was
ineffective. "Generally, an ineffective
assistance of counsel claim cannot be based
on a decision relating to a reasoned choice
of trial strategy, even when proved
improvident." Hayes v. Lockhart, 766 F.2d
1247, 1251 (8th Cir.), cert. denied, 474
U.S. 922, 106 S.Ct. 256, 88 L.Ed.2d 263
(1985); see also Strickland, 466 U.S. at
689, 104 S.Ct. at 2065 ("A fair assessment
of attorney performance requires that every
effort be made to eliminate the distorting
effects of hindsight....").
Nave's attorney was
not constitutionally deficient for employing
a strategy that was unsuccessful or that
might not have been adopted by a different
Failure to Object to Closing Argument
centers on the following portion of the
prosecutor's penalty phase closing argument:
necessarily think that the probation is bad
or that parole is bad, but there comes a
time when probation is expected, when mercy
is the rule and when mercy is the order of
the day and it's to be expected. Then it's
not mercy, it's not mercy any more, it's
just plain weakness and it's not a system of
justice, it's a system of injustice and it's
a fraud, a system right now where twenty-five
years doesn't mean twenty-five years; where
life doesn't mean life.
not going to have a chance to get up and
answer Mr. Ossman after he finishes speaking
to you. I expect Mr. Ossman is going to try
[to] tell you that in this instance that
life without eligibility for probation or
parole for fifty years will guarantee you
Nave never comes
out again, but there is no such guarantee.
added). The Missouri
Court of Appeals indicated that this
argument was improper under state law, but
that the above "brief" remarks, even if
objected to, did not constitute reversible
error, Nave v.
State, 757 S.W.2d at 254, and we must accept
its statement to that effect. But see
Gilmore v. Armontrout, 861 F.2d 1061, 1067
n. 12 (8th Cir.1988) (indicating that the
above type of argument, although improper in
the guilt phase, would not be inappropriate
in the penalty phase of a trial). However,
assuming defense counsel's failure to object
to this argument was objectively
unreasonable, we fail to discern any
prejudice stemming from this failure.
prosecutor's statements made clear that a
life sentence with the possibility of parole
in fifty years--the only alternative to the
death penalty, Mo.Rev.Stat. Sec. 565.008
(1978)--did not guarantee a life sentence.
Though this argument may be impermissible
under state law, it was not an inaccurate
statement. We also note that the statements
were brief and composed a small part of the
prosecutor's closing argument, which
differentiates this case from Newlon v.
Armontrout, 885 F.2d 1328, 1337 (8th
Cir.1989) ("As is apparent in reviewing the
transcript of the prosecutor's argument, the
argument is filled with improper statements."
(footnote omitted)), cert. denied, 497 U.S.
1038, 110 S.Ct. 3301, 111 L.Ed.2d 810
conclude that trial counsel's failure to
object to these isolated comments did not
have an effect on the jury's sentencing
determination, so no prejudice resulted from
counsel's failure to object.
Failure to Prepare a Defense Witness
to Nave, Richard
Beeman was able to testify that
intoxicated the night before he committed
the crimes with which he was charged.
Nave contends his
attorney was ineffective for failing to
interview and properly prepare Richard
Beeman prior to calling him to the stand to
result, when asked about his recollections
of the evening of November 18 (the night
before the murder), Beeman could not
positively say that he saw
Nave in an intoxicated state. At the
27.26 hearing, Beeman was asked if he
remembered an incident "wherein a woman was
killed and [Nave]
was charged with taking some hostages."
Nave v. State, 757
S.W.2d at 252. Beeman responded that he did
remember this incident and that he saw
Nave in an
intoxicated state the evening before the
court conclusion that counsel rendered
effective assistance is not a finding of
fact binding on the federal court to the
extent stated by 28 U.S.C. Sec. 2254(d)."
Strickland, 466 U.S. at 698, 104 S.Ct. at
2065. However, the findings made by the
state court in deciding the claim are
subject to the deference required by that
are required to defer to the
Missouri Court of
Appeals' finding that Nave's
trial counsel did not fail to interview
Beeman prior to calling him to the stand.
Nave v. State, 757
S.W.2d at 252. Nave
contends the presumption of correctness
should not apply because the finding is not
supported by the record, see 28 U.S.C. Sec.
2254(d)(8) (1988), but his assertion is
simply incorrect; there is ample evidence to
support the state court's finding.
suggestion that his counsel was deficient
for failing to rephrase the questions he
posed to Beeman and concur in the
legal conclusion that "[t]he problem was not
trial counsel's question; the problem was
Beeman's memory or credibility. Defense
counsel cannot be held ineffective merely
because different counsel, three years later,
was able to formulate a question which
elicited the desired response from Beeman."
Nave v. State, 757
S.W.2d at 252.
even if Nave has
satisfied his burden under Strickland's
performance prong, he has failed to
demonstrate any prejudice stemming from his
counsel's deficiency. Evidence was presented
that indicated Nave
was intoxicated when the crimes were
committed, and the jury obviously did not
credit this testimony. We do not believe
that the jury would have been more likely to
credit this testimony if it knew that
intoxicated the night before the crimes were
committed. As aptly stated by the state
court, "evidence that [Nave]
was intoxicated the night before the crime
does not mean he was intoxicated the morning
of the murder, approximately 11 hours later."
Id. For these reasons, we conclude
Nave has not
satisfied either of Strickland's prongs with
regard to his attorney's handling of Richard
argument closely related to the one
presented in Part II(A)(2)(b), above,
contends that, independent of his attorney's
failure to object, the prosecutor's
references to the possibility of parole
constitute a separate constitutional
violation. We disagree.
Nave relies on
Caldwell v. Mississippi, 472 U.S. 320, 105
S.Ct. 2633, 86 L.Ed.2d 231 (1985). In
Caldwell, the prosecutor told the jury that
it would not be responsible for the
defendant's execution because the jury's
sentencing determination would be reviewed
by the state supreme court. Id. at 325-26,
105 S.Ct. at 2637-38.
Supreme Court held "that it is
constitutionally impermissible to rest a
death sentence on a determination made by a
sentencer who has been led to believe that
the responsibility for determining the
appropriateness of the defendant's death
rests elsewhere." Id. at 328-29, 105 S.Ct.
at 2639. "Caldwell is relevant only to
certain types of comment--those that mislead
the jury as to its role in the sentencing
process in a way that allows the jury to
feel less responsible than it should for the
sentencing decision." Darden v. Wainwright,
477 U.S. 168, 184 n. 15, 106 S.Ct. 2464,
2473 n. 15, 91 L.Ed.2d 144 (1986). The
challenged portions of the prosecutor's
argument are not the type prohibited by
Caldwell, so Nave's
argument must fail.
remaining claim presented in
alleges that the instruction on mitigating
violated the Supreme Court's decisions in
Mills v. Maryland, 486 U.S. 367, 108 S.Ct.
1860, 100 L.Ed.2d 384 (1988) and McKoy v.
North Carolina, 494 U.S. 433, 110 S.Ct.
1227, 108 L.Ed.2d 369 (1990) because the
instruction indicated the jurors had to
unanimously agree that a mitigating
circumstance existed. We decline to reach
the merits of this argument because
procedurally barred from presenting this
Nave failed to
raise this issue in his direct appeal,
thereby placing this issue in the same
situation as the defaulted claims discussed
in Part II(A)(1), above.
Nave presents the same argument he
did with regard to the effect of his motions
to recall the mandate. For the reasons
expressed in Part II(A)(1)(a)12
we reject this contention.
Nave also contends
his trial counsel was ineffective for
failing to object to the instruction,
thereby creating cause and prejudice
excusing the procedural default. We have
previously held that counsel's failure to
raise a Mills challenge to this instruction
is not ineffective assistance of counsel.
Grubbs v. Delo, 948 F.2d 1459, 1471 (8th
Cir.1991), cert. denied, --- U.S. ----, 113
S.Ct. 109, 121 L.Ed.2d 67 (1992).
reply brief, Nave
argues for the first time that
requiring mandatory review of capital cases
excuses the default. We are normally
unwilling to address arguments that are
initially raised in reply briefs, e.g.,
Allen v. Purkett, 5 F.3d 1151, 1153 (8th
Cir.1993) (per curiam); however, we exercise
our discretion to discuss
relies on the fact that the
Court is required to review all cases in
which the death penalty is imposed.
Mo.Rev.Stat. Sec. 565.014 (1978), recodified,
Mo.Rev.Stat. Sec. 565.035 (1986). In Ake v.
Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84
L.Ed.2d 53 (1985), the Supreme Court held
that Oklahoma's waiver rule did not apply to
federal constitutional claims because
Oklahoma courts had previously held that the
waiver rule did not apply to "fundamental
trial error," and constitutional errors were
fundamental trial errors. Id. at 74-75, 105
S.Ct. at 1091-92.
Ake, the Ninth Circuit held that the state
court had a statutory obligation to "consider
possible errors in sentencing that are not
raised by the defendant or were not objected
to at his trial," Beam v. Paskett, 3 F.3d
1301, 1306 (9th Cir.1993), cert. denied, ---
U.S. ----, 114 S.Ct. 163, 128 L.Ed.2d 354
(1995), habeas claims predicated on such
arguments could not be procedurally
defaulted. Id. at 1307.
Nave seeks to apply
the Ninth Circuit's reasoning to this case.
The flaw in his argument is that the
Court is not required to review death
sentences for instructional or
constitutional error. In addition to "any
errors enumerated by way of appeal,"
Mo.Rev.Stat. Sec. 565.035.3 (1986),13
Supreme Court is required to consider only
three specific types of claims:
Whether the sentence of death was imposed
under the influence of passion, prejudice,
or any other arbitrary factor;
(2) Whether the evidence
supports the jury's or judge's finding of a
statutory aggravating circumstance....;
(3) Whether the sentence
of death is excessive or disproportionate to
the penalty imposed in similar cases,
considering both the crime, the strength of
the evidence and the defendant.
565.035.3. Clearly, the second and third
claims are inapplicable in this case.
Nave argues that
use of an unconstitutional instruction
constitutes an "arbitrary factor," so the
supreme court was required to review for
this error and he therefore cannot be deemed
to have defaulted this claim. We do not read
the phrase "arbitrary factor" so broadly.
The phrase, in context, is a catch-all that
is intended to describe possible improper
bases for the imposition of the death
inquiry requires the court to ensure that
the aggravating factors relied upon by the
jury constitute permissible grounds under
state law for imposing the death penalty.
See State v. Kilgore, 771 S.W.2d 57, 68
(Mo.) (en banc) ("no evidence that the death
sentence was imposed under the influence of
passion, prejudice, or other arbitrary
factors." (emphasis added)), cert. denied,
493 U.S. 874, 110 S.Ct. 211, 107 L.Ed.2d 164
(1989); see also Jones v. State, 767 S.W.2d
41, 45 (Mo.) (en banc), cert. denied, 493
U.S. 874, 110 S.Ct. 207, 107 L.Ed.2d 160
of the state court's mandatory review is,
ultimately, a question of state law. We do
not believe state law requires the
Court to review death penalty cases sua
sponte for constitutional or instructional
errors that are not specified in the direct
appeal. Issues falling outside the limited
bases of mandatory review cannot be deemed
to have been submitted to the state court,
so Nave's claim of
instructional error has been procedurally
defaulted and is beyond our ability to
district court erroneously granted
Nave's petition for
habeas corpus because seven of the claims
were procedurally barred and the remaining
three claims lack merit. The district court
properly denied relief on
Nave's claim that the prosecutor's
closing argument was improper. Finally,
about the jury instructions were
procedurally barred. Accordingly, we reverse
the lower court insofar as it granted the
writ and affirm insofar as it denied the
Despite this statement,
there is no indication that
Nave killed anyone
other than Roling
The theft of the
narcotics formed the basis for the robbery
These abductions formed
the basis for the kidnapping charges
The record contains
copies of the motions, but they are not
dated. The record also contains copies of
the orders from both courts, which indicated
Supreme Court denied the motion on July 21,
1992, and the Missouri
Court of Appeals denied the motion on July
14, 1992. From this, we conclude motions
were filed in both courts and that they were
filed within the time frame described in our
These claims are failure
to move for a severance, failure to object
to the references to the possibility of
parole, and failure to prepare a defense
witness. (Grounds one, seven, and eight)
Rule 27.26 was repealed
effective January 1, 1988, and defendants
found guilty after a trial must pursue post-conviction
proceedings under Rule 29.15.
Notwithstanding this change, we believe a
motion to recall the mandate is still a
viable avenue to raise ineffectiveness of
appellate counsel because, like its
predecessor, Rule 29.15 may only be used to
allege trial errors
The statute has since
been amended, and now makes clear that the
privilege lies with the testifying spouse
and not the defendant. Mo.Rev.Stat. Sec.
suggestion that his wife's testimony was the
only evidence of premeditation is incorrect
because "deliberation may be inferred and
established circumstantially or, as
sometimes put, 'from the circumstances of
the homicide.' " State v. Davis, 472 S.W.2d
389, 390 (Mo.1971)
As discussed in Part II(A)(2)(c),
infra, Richard Beeman could not testify as
to Nave's condition
at the time the crimes were committed
violates Mills reads as follows:
If you unanimously decide
that a sufficient mitigating circumstance or
circumstances exist which outweigh the
aggravating circumstance or circumstances
found by you to exist, then you must return
a verdict fixing defendant's punishment at
imprisonment for life by the Division of
Corrections without eligibility for
probation or parole until he has served a
minimum of fifty years of his sentence.
The state also alleges
conviction was final before Mills and McKoy
were decided, so application of those cases
would violate the non-retroactivity
principles enunciated in Teague v. Lane, 489
U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334
(1989) (plurality opinion).
Nave contends the
rule he seeks to apply is not new within the
meaning of Teague and, even if it is, an
exception to the Teague bar exists. Other
than noting that other circuits have
differed on this issue, compare Williams v.
Dixon, 961 F.2d 448, 459 (4th Cir.) (rules
announced in Mills and McKoy "are bedrock
procedural rules falling within the second
exception to the Teague rule"), cert. denied,
--- U.S. ----, 113 S.Ct. 510, 121 L.Ed.2d
445 (1992) with Wilcher v. Hargett, 978 F.2d
872, 878 (5th Cir.1992) (holding none of the
exceptions to the Teague bar apply), cert.
denied, --- U.S. ----, 114 S.Ct. 96, 126
L.Ed.2d 63 (1993), we decline to address
claims he raised this issue in his motion to
recall the mandate, which is true. However,
as noted in our earlier discussion, this was
not the type of claim that could be raised
in a motion to recall the mandate.
Nave further claims
his motion to recall the mandate raised the
issue of counsel's ineffectiveness for
failing to raise this issue on direct
appeal; our review of the motions reveals
that this assertion is incorrect
For ease of discussion,
the 1986 version of the statute (which is
identical to the 1978 version in all
important respects) shall be referenced