110 F.3d 1346 (8th Cir. 1997), 96-2668, Gee v. Groose

Docket Nº:96-2668.
Citation:110 F.3d 1346
Party Name:Terry GEE, Appellant, v. Michael GROOSE, et al., Appellees.
Case Date:April 11, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1346

110 F.3d 1346 (8th Cir. 1997)

Terry GEE, Appellant,

v.

Michael GROOSE, et al., Appellees.

No. 96-2668.

United States Court of Appeals,Eighth Circuit.

April 11, 1997

Submitted Jan. 17, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied May 29, 1997.

Page 1347

Julia J. Lilly, argued, St. Louis, MO, for appellant.

Stephen Hawke, argued, Jefferson City, MO (Michael J. Spillane, on the brief), for appellees.

Before MURPHY, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and KYLE, 1 District Judge.

Page 1348

KYLE, District Judge.

Terry Gee ("Gee") appeals the District Court's 2 denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.

Background

On April 18, 1990, Gee was convicted by a jury in Missouri Circuit Court of three counts of first degree robbery and three counts of armed criminal action. The trial court denied Gee's motion for a new trial, finding that there was no probable cause to believe that his trial counsel had been ineffective. Gee then filed a timely notice of appeal; in addition, he filed an motion for postconviction relief under Missouri Supreme Court Rule 29.15, which was denied because of its untimely filing.

His consolidated appeal challenged his conviction, sentence, and the denial of his Rule 29.15 motion. The Missouri Court of Appeals affirmed the conviction and the denial of his Rule 29.15 motion, but remanded for a correction of sentence.

Gee then filed state habeas corpus petitions in the Circuit Court of Cole County, the Missouri Court of Appeals, and the Missouri Supreme Court. Each was denied. He subsequently filed a federal habeas petition which was dismissed except as to the Batson issue, 3 which was referred to a magistrate judge for a Report and Recommendation ("R & R").

The Magistrate Judge 4 held an evidentiary hearing on the Batson claim and issued his R & R recommending that the claim be denied. The District Court adopted the R & R, and dismissed the case with prejudice. This appeal followed.

Discussion

In support of his appeal, Gee alleges the following: 1) he was denied his Sixth Amendment right to confrontation and cross-examination, as well as his due process right to a fair trial when the trial court received a detective's hearsay testimony connecting him to the crimes being tried; 2) he was denied his right to equal protection when the trial court over-ruled his Batson challenges; 3) he was denied his right to equal protection and due process when the trial court dismissed his Rule 29.15 motion as untimely; and 4) he was denied his right to effective assistance of counsel.

The Applicable Law of Habeas

Before turning to Gee's arguments, we must first address the issue of the substantive law applicable to our review. On April 24, 1996, 28 U.S.C. § 2254 ("the Act") was amended by the Antiterrorism and Effective Death Penalty Act of 1996. Pub.L.No. 104-132, 110 Stat. 1214. 5 Gee's appeal was pending at the time of the modification. The parties disagree as to which version of the Act applies. The Government seeks application of the amended version of the Act, while Gee maintains the amendment should not be applied.

Our Circuit has not yet decided the issue of the applicability of the new Act to cases pending on appeal at the time of its enactment. See, e.g., Preston v. Delo, 100 F.3d 596, 599 n. 4 (8th Cir.1996) ("We have not yet taken a position on whether the amendments to section 2254 apply to cases that were pending on April 24, 1996."), Oliver v. Wood, 96 F.3d 1106, 1108 n. 2 (8th Cir.1996), Cert.

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denied, --- U.S. ----, 117 S.Ct. 992, 136 L.Ed.2d 872 (1997) ("We have not yet determined to what extent the new Act applies to noncapital cases pending on appeal."). Instead, we have been faced with cases in which the claims presented were "either procedurally barred or fail[ed] under the more lenient provisions of the old law." Preston, 100 F.3d at 599 n. 4; see also Bannister v. Delo, 100 F.3d 610, 612 (8th Cir.1996) ("Because we hold that Bannister is not entitled to relief under the prior more lenient habeas law, we do not address the state's contention that the [new] Act is applicable to this appeal and precludes relief.")

The case at bar is no different. We find that here, too, Gee's claims fail under even the less restrictive provisions of the Act prior to its 1996 amendments. Therefore, we need not reach the issue of the amended Act's applicability to cases pending on appeal. We will assess Gee's arguments under the old Act.

Hearsay Statements

Gee's first argument concerns the admissibility of Detective Lewis Clayton's ("Clayton") testimony. Clayton testified that he received a dispatch informing him of the robberies and stating that a brown Cadillac with Nebraska license plates had been used. He canvassed the area where the robberies had occurred, noticed a brown Cadillac, and knocked on the doors of homes near the Cadillac. He spoke with an unidentified woman who told him that someone had parked the Cadillac around 1:00 am and then had walked toward a neighboring building. She also stated that a man named Ralph Jordan ("Jordan") lived in that building. Clayton returned to the building the next day and questioned Jordan.

In court, Clayton identified a photo of the Cadillac as "the car that I observed parked ... that was found to have been stolen and used in the three robberies." He also testified that Jordan told him that Gee, a friend of his, had committed...

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