Clay v. Gammon, No. 95-3789WM

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore FAGG, BOWMAN, and HANSEN; PER CURIAM
Citation89 F.3d 840
Docket NumberNo. 95-3789WM
Decision Date24 June 1996
PartiesNOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well. Arthur S. CLAY, Appellant, v. James Anthony (Tony) GAMMON, Superintendent, Farmington Correctional Center, Appellee.

Page 840

89 F.3d 840
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
Arthur S. CLAY, Appellant,
v.
James Anthony (Tony) GAMMON, Superintendent, Farmington
Correctional Center, Appellee.
No. 95-3789WM.
United States Court of Appeals, Eighth Circuit.
Submitted June 4, 1996.
Decided June 24, 1996.

Before FAGG, BOWMAN, and HANSEN, Circuit Judges.

PER CURIAM.

In 1989 a jury found Arthur S. Clay guilty of forcible rape. The Missouri Court of Appeals affirmed his conviction and sentence, and the denial of his motion for postconviction relief. State v. Clay, 812 S.W.2d 872, 876 (Mo.Ct.App.1991). In 1994 Clay filed his 28 U.S.C. § 2254 petition. Raising a due process violation for the first time, Clay argued he should have been sentenced by the jury instead of the trial court because his earlier conviction had been expunged in 1980. See Mo.Rev.Stat. §§ 557.036.4, 558.016.2 (1986). The district court denied relief.

Although the district court correctly denied Clay's petition on the merits, we conclude Clay's claim is procedurally barred. Having failed to present this federal claim in the state courts, Clay has shown neither cause to excuse his procedural default and actual prejudice resulting from the alleged denial of due process nor a fundamental miscarriage of justice. Clay's claim is thus barred from federal review. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

We affirm the district court.

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2 practice notes
  • Clay, v. Dormire
    • United States
    • United States State Supreme Court of Missouri
    • December 5, 2000
    ...Appeals for the Eighth Circuit, for the reason that relator was first required to request such relief in the state courts. Clay v. Gammon, 89 F.3d 840 (8th Cir. 1996). Finally, relator filed the petition for writs of habeas corpus and mandamus that is the subject of this The petition is bas......
  • Clay v. Dormire, WD56804
    • United States
    • Missouri Court of Appeals
    • November 23, 1999
    ...Appeals for the Eighth Circuit, on the basis that Mr. Clay was first required to request such relief in the state courts. Clay v. Gammon, 89 F.3d 840 (8th Cir. 1996). Mr. Clay then filed for relief in this Court. We appointed counsel. Finding that Mr. Clay had shown good cause for requestin......
2 cases
  • Clay, v. Dormire
    • United States
    • United States State Supreme Court of Missouri
    • December 5, 2000
    ...Appeals for the Eighth Circuit, for the reason that relator was first required to request such relief in the state courts. Clay v. Gammon, 89 F.3d 840 (8th Cir. 1996). Finally, relator filed the petition for writs of habeas corpus and mandamus that is the subject of this The petition is bas......
  • Clay v. Dormire, WD56804
    • United States
    • Missouri Court of Appeals
    • November 23, 1999
    ...Appeals for the Eighth Circuit, on the basis that Mr. Clay was first required to request such relief in the state courts. Clay v. Gammon, 89 F.3d 840 (8th Cir. 1996). Mr. Clay then filed for relief in this Court. We appointed counsel. Finding that Mr. Clay had shown good cause for requestin......

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