735 S.W.2d 345 (Mo.banc 1987)
the morning of December 12, 1985, Pollard had decided to visit relatives
in Arkansas. Pollard, accompanied by Maurice Alexander, Michael Hammon,
and Robert Sands drove south from St. Louis on Interstate 55 in Pollards
While driving, the
battery went dead. Pollard removed a .22 caliber automatic rifle from
his truck and loaded it with ammunition. Pollard brought the loaded
rifle with him while he and Hammon sought another battery. They found a
battery in a car at a nearby farm. They got the battery and brought it
back to his car.
Pollard returned the
rifle to his car and they took off down Interstate 55 again. Later, one
of the tires went flat and he exited the highway at the rest area near
Steele, Missouri. Having no spare tire, Alexander and Hammom went with
Howard Henry, the rest area maintenance person, to a nearby service
station to purchase a new tire.
Shortly after Alexander
and Hammon left for a new tire, the victim, Richard Alford, drove into
the rest area in his new 1984 Pontiac Bonneville and parked on one spot
away from Pollardís car. Pollard told Sands that he wanted that car and
he was going to get it.
Pollard removed the
loaded rifle from the car and waited for Alford to return to his car.
Pollard stood in the space between the two cars and shot Alford through
the window, turned and looked at Sands, then turned back and shot Alford
two more times.
Pollard moved Alfordís
body from the driverís seat, got into the car, and drove off with the
body. Twelve to thirteen minutes later, Pollard returned to see if his
friends had made it back with the new tire. They had not, so Pollard
left again in Alfordís car and left it at the rest area on the
northbound side of Interstate 55.
Pollard and his friends
left and stopped in Blytheville, Arkansas to spend the night. Pollard
had stolen a ring from the victims finger and was wiping the blood from
it. He later sold it in a pawn shop. The body of Alford was found near
the rest area in a drainage ditch under an Interstate 55 overpass.
28 F.3d 887
Paul DELO, Respondent-Appellee.
United States Court of Appeals,
Submitted April 11, 1994.
Decided July 7, 1994.
Rehearing and Suggestion for Rehearing En Banc Denied Aug.
Before FAGG, HANSEN and MORRIS SHEPPARD ARNOLD, Circuit Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Roosevelt Pollard was convicted and
sentenced to death for the 1983 murder of Blytheville, Arkansas
businessman Richard E. Alford. He appealed directly to the Missouri
Supreme Court, which affirmed his conviction. The Supreme Court of the
United States denied certiorari. Mr. Pollard then filed a motion for
state post-conviction relief, for which the motion court appointed
counsel. After being denied state post-conviction relief, Mr. Pollard
again appealed to the Missouri Supreme Court, which affirmed the motion
court's denial of relief. Again, the Supreme Court of the United States
Mr. Pollard next filed a petition for
a writ of habeas corpus in the Missouri Supreme Court. When the Missouri
Supreme Court denied relief, he filed the present petition for federal
habeas corpus relief. The United States District Court for the Western
District of Missouri denied his petition for habeas corpus, and this
In his amended petition for a writ of
habeas corpus, Mr. Pollard articulated over sixty claims. The first
issue he raises on appeal is whether the district court erred in
dismissing the first ten and the thirteenth of these claims as having
been procedurally defaulted. Mr. Pollard does not dispute that he failed
to assert nine of the ten claims in his state post-conviction relief
proceeding. He asserts, however, that this failure was due to the
ineffective assistance rendered by his post-conviction counsel, and that
this ineffectiveness amounts to cause excusing the procedural default of
Federal courts will consider on habeas review procedurally defaulted
claims only on a showing of cause for the procedural default and "actual
prejudice resulting from the alleged constitutional violation,"
Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d
594 (1977), or by proving that the petitioner was "probably actually
innocent" of the underlying offense or the death sentence imposed for it.
Sawyer v. Whitley, --- U.S. ----, ---- n. 6, 112 S.Ct. 2514, 2519 n. 6,
120 L.Ed.2d 269 (1992). While Mr. Pollard makes no attempt to prove that
he was "probably actually innocent" of murdering Mr. Alford, he does
assert that his post-conviction counsel rendered ineffective assistance
which caused the procedural default of the claims in question, and that
this constitutes cause for considering these claims.
There is, however, no right to counsel in either state or federal post-conviction
relief proceedings. Coleman v. Thompson, 501 U.S. 722, 752-53, 111 S.Ct.
2546, 2566, 115 L.Ed.2d 640 (1991) (no right to counsel in state habeas
corpus proceedings); McClesky v. Zant, 499 U.S. 467, 494, 111 S.Ct.
1454, 1471, 113 L.Ed.2d 517 (1991) (no right to counsel in federal
habeas corpus proceedings). Where there is no constitutional right to
counsel there can be no right to effective assistance of counsel.
Wainright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982).
Since there is no right to effective assistance of counsel in state
post-conviction proceedings, ineffective assistance of counsel cannot
serve as cause for a petitioner's default. Coleman, 501 U.S. at 753-55,
111 S.Ct. at 2567. Accordingly, we hold that the district court did not
err in denying Mr. Pollard an evidentiary hearing on those claims that
were procedurally defaulted due to an alleged shortcoming of his post-conviction
There is one claim among the first ten that Mr. Pollard advanced in his
amended petition for habeas corpus that he does not concede was
procedurally defaulted. That claim is that his trial counsel provided
him ineffective assistance by failing to request an instruction at the
penalty phase of his trial concerning the fact that he was 19 years of
age when he committed the underlying offense. The district court
concluded that this claim was defaulted because the Missouri Supreme
Court found that this issue, among others, was procedurally barred under
state law because it was not raised in the appeal on the merits. See
Pollard v. State, 807 S.W.2d 498, 501 (Mo.1991) (en banc).
We believe that the district court correctly concluded that it was not
at liberty to consider this claim. A federal court may address a habeas
petition only where "the decision of the last state court to which the
petitioner presented his federal claims fairly appeared to rest
primarily on resolution of those claims, or to be interwoven with those
claims, and did not clearly and expressly rely on an independent and
adequate state ground." Coleman, 501 U.S. at 733, 111 S.Ct. at 2556. The
Missouri Supreme Court did consider the merits of this claim, but only
"as a matter of grace." Pollard, 807 S.W.2d at 502. The consideration
and rejection of the claim on the merits, however, does not erase the
fact that the court specifically and clearly found that the claim was
procedurally barred by Mr. Pollard's failure to comply with the
procedural requirement of alleging specific facts concerning this claim
in his Missouri Rule 29.15 motion for post-conviction relief. As a
result, this court cannot consider Mr. Pollard's seventh claim, and we
affirm the district court's denial of relief upon it.
One claim that we may consider is Mr. Pollard's twelfth claim, namely,
that his appellate counsel was constitutionally ineffective for omitting
from his brief on direct appeal objections concerning the prosecutor's
closing argument at trial. Mr. Pollard cites three statements made by
the prosecutor that were not objected to contemporaneously by his trial
counsel and not addressed by his appellate counsel. On this claim, Mr.
Pollard filed a motion to recall the mandate. The Supreme Court of
Missouri denied this motion, but did not provide reasons for its
decision. Since we can discern no independent and adequate state law
basis for the denial, we are not barred from considering the merits of
The effectiveness of Mr. Pollard's appeals counsel must be evaluated in
light of the circumstances in which he was called on to perform. These
include the fact that Mr. Pollard's trial counsel failed to object
contemporaneously to the statements now complained of. On appeal,
therefore, Mr. Pollard's appeals counsel could have sought review of
these issues only under a plain error standard. Mo.S.Ct.R. 29.12(b) &
30.20. Furthermore, we must "indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance." Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct.
2052, 2065, 80 L.Ed.2d 674 (1984). Since "winnowing of the issues to
eliminate a sure loser is the kind of performance that courts expect
from competent counsel," Horne v. Trickey, 895 F.2d 497, 500 (8th
Cir.1990), Mr. Pollard must overcome the Strickland presumption by
showing that reasonable professional performance could not have omitted
the prosecutor's statements from review under a plain error standard.
Notwithstanding the view of the respondent-appellee, the district
court's determination of how the prosecutor's statements may be
characterized is a mixed question of law and fact, which we review under
a de novo standard. This question may be distinguished from the one of
exactly what it was that the prosecutor said, which is one of fact.
In the first of these statements, the prosecutor argued that "deep down
inside, even this defendant couldn't say that your decision [to impose
the death penalty] was unfair." Mr. Pollard claims that this statement
was an impermissible reference to the fact that he did not testify
during the penalty phase of his trial.
Direct comments by a prosecutor on a defendant's failure to testify
violates the Fifth Amendment's privilege against self-incrimination.
Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d
106 (1965). Indirect references are also forbidden if they either "(1)
manifest the prosecutor's intention to call attention to the defendant's
failure to testify, or (2) are such that the jury would naturally take
them as a comment on the defendant's failure to testify." Horne v.
Trickey, 895 F.2d 497, 500 (8th Cir.1990).
We find it difficult to believe, however, that the statement in question
could be characterized as a commentary on the defendant's failure to
testify. First, the statement was clearly not a direct reference to Mr.
Pollard's failure to testify. We also are not persuaded that it
manifests any intention on the part of the prosecutor to call attention
to the fact that Mr. Pollard did not testify. Finally, we frankly cannot
see how anyone could naturally take this statement to be a comment on Mr.
Pollards failure to testify. Rather than an impermissible reference to
Mr. Pollard's failure to testify, we are quite persuaded that the
prosecutor was attempting to argue that even by the defendant's lights
the death penalty was an appropriate penalty for the crime. Accordingly,
we are unpersuaded that his appellate counsel was constitutionally
ineffective for failing to raise an objection to this statement for the
first time on appeal.
Mr. Pollard also claims that his appellate counsel was constitutionally
ineffective for failing to cite the prosecutor's use of the term "predator"
in reference to him during oral argument. During closing argument, the
prosecutor argued that "the defendant, being a predator, ... saw
something he wanted, [and] took it." The prosecutor made a second
reference to "people out there, predators, like this defendant, ..., who
are ready to prey on the weak...." Mr. Pollard asserts that the "predator"
epithet was intended to engender fear in the jurors that he posed a
threat to themselves, their property, and their children, and was so
improper as to deny him a fair trial as guaranteed him under the Due
It appears that Mr. Pollard's objection to the term predator rests in an
unspoken inference that predators are animals. While we cannot say for
certain that he believes this inference was made, we can say for certain
that a reference to a defendant in a capital murder case as an "animal
... [that] shouldn't be out of his cell unless he has a leash on him"
has been determined not so prejudicial as to deny a defendant a fair
trial within the requirements of the Due Process Clause. Darden v.
Wainwright, 477 U.S. 168, 180 nn. 11-12, 106 S.Ct. 2464, 2471 nn. 11-12,
91 L.Ed.2d 144 (1986). While the Court in Darden condemned the
prosecutor's statements, it held that "it is not enough that the
prosecutors' remarks were undesirable or even universally condemned,"
but rather, "[t]he relevant question is whether the prosecutors'
comments 'so infected the trial with unfairness as to make the resulting
conviction a denial of due process.' " Id. at 181, 106 S.Ct. at 2471.
When considered under "the narrow [standard] of due process, and not the
broad exercise of supervisory power," Id., we are not persuaded that it
was plain error for the trial court to allow the word "predator" to be
used in reference to him. Nor do we think such a reference rendered the
results of his trial unreliable. We are therefore unpersuaded that Mr.
Pollard's appellate counsel was constitutionally ineffective for failing
to advance this claim on appeal.
Finally, Mr. Pollard maintains that his direct appeal counsel was
ineffective for failing to raise the objection that the prosecutor
impermissibly personalized his argument to the jury, thus violating
petitioner's due process rights. During his argument, the prosecutor
said:I remember when I was a child that in the summertime we'd leave the
front door open, ... people used to leave their keys in their car. We
don't have that anymore. We've got to keep our doors locked, got to keep
our cars locked, ... [c]an't let your kids walk home from the show at
night anymore without worrying about them. Why is that? The reason is
because of people like this man here...
We are not persuaded that these comments "so infected the trial with
unfairness as to make the resulting conviction a denial of due process."
Darden at 181, 106 S.Ct. at 2471. Accordingly, we are unable to say that
Mr. Pollard's appellate counsel was constitutionally ineffective.
For the foregoing reasons, we affirm the decision of the district court
and dismiss the petition.