106 F.3d 253 (8th Cir. 1997), 96-2087, Hornbuckle v. Groose

Docket Nº:96-2087.
Citation:106 F.3d 253
Party Name:Sylvester HORNBUCKLE, Appellant, v. Michael GROOSE, Appellee.
Case Date:February 05, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 253

106 F.3d 253 (8th Cir. 1997)

Sylvester HORNBUCKLE, Appellant,

v.

Michael GROOSE, Appellee.

No. 96-2087.

United States Court of Appeals, Eighth Circuit.

February 5, 1997

Argued Dec. 13, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied March

10, 1997.

Page 254

Patricia M. Garvey, Webster Groves, MO, argued for appellant.

Michael Joseph Spillane, Assistant Attorney General, Jefferson City, MO, argued for appellee.

Before WOLLMAN and MURPHY, Circuit Judges, and TUNHEIM, 1 District Judge.

WOLLMAN, Circuit Judge.

Sylvester Hornbuckle appeals from the district court's 2 denial of his 28 U.S.C. § 2254 petition. We affirm.

Page 255

I.

On February 1, 1986, Hornbuckle attacked and robbed Robert and Emily Sudhoff in a parking lot in a St. Louis suburb. On May 14, 1987, Hornbuckle was convicted of two counts of first-degree robbery, four counts of armed criminal action, and two counts of kidnapping. The Missouri Court of Appeals reversed his convictions on April 26, 1988. The Missouri Supreme Court granted transfer and affirmed Hornbuckle's convictions on April 18, 1989. See State v. Hornbuckle, 769 S.W.2d 89 (Mo.1989) (en banc).

Hornbuckle filed a section 2254 petition in the district court, raising two issues: whether the trial court should have inquired into the prejudicial effect of an exhibit that, although properly admitted into evidence, mistakenly went to the jury; and whether Hornbuckle's due process and equal protection rights were violated when his conviction was based upon the visual identification testimony of Robert Sudhoff, who never saw his attacker. The district court rejected both of Hornbuckle's claims and his request for an evidentiary hearing.

On appeal, Hornbuckle argues four claims: that the district court erred in not holding an evidentiary hearing on the possible prejudicial effect of the exhibit mistakenly sent to the jury; that Hornbuckle was denied due process by Robert Sudhoff's identification testimony; and two ineffective assistance of trial counsel claims.

II.

Hornbuckle concedes that the two ineffective assistance claims he raises on appeal were not raised in state court and have been procedurally defaulted, because under Missouri law he should have raised these claims in a motion for post-conviction relief. Hornbuckle did not file a motion for post-conviction relief under Missouri Supreme Court Rule 27.26 (1987), which was in effect when he was convicted, or under Missouri Supreme Court Rule 29.15, which became effective on January 1, 1988. See Mo.Sup.Ct.R. 29.15 (1995). 3 Because Hornbuckle did not file a Rule 27.26 motion prior to January 1, 1988, he was subject to the provisions of Rule 29.15(m), which required persons convicted before January 1, 1988, to file a Rule 29.15 motion on or before June 30, 1988. The failure of such persons to timely file such a motion would be held to "constitute a complete waiver of the right to proceed under this Rule 29.15." Mo.Sup.Ct.R. 29.15(m) (1995).

Hornbuckle argues that Missouri's adoption of Rule 29.15 serves as cause excusing his procedural default. Hornbuckle points out that after the Missouri Court of Appeals reversed his conviction on April 26, 1988, he was no longer under a judgment of conviction and had no reason to file a Rule 29.15 motion prior to June 30, 1988. He claims that under the provisions of Rule 29.15(m), he would not have been allowed to file a Rule 29.15 motion after the Missouri Supreme Court reinstated his conviction in 1989, although he made no attempt to file such a motion. 4 Hornbuckle argues that because he had no opportunity to file a Rule 29.15 motion, the State's actions prevented him from...

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