Newman v. Frey, No. 88-2155

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore FAGG and BEAM; FAGG
Citation873 F.2d 1092
PartiesJack Edward NEWMAN, Appellant, v. Gerald T. FREY, Appellee.
Decision Date28 April 1989
Docket NumberNo. 88-2155

Page 1092

873 F.2d 1092
Jack Edward NEWMAN, Appellant,
v.
Gerald T. FREY, Appellee.
No. 88-2155.
United States Court of Appeals,
Eighth Circuit.
Submitted March 14, 1989.
Decided April 28, 1989.

Page 1093

Daniel O. Herrington, Kansas City, Mo., for appellant.

Stephen D. Hawke, AAG, Jefferson City, Mo., for appellee.

Before FAGG and BEAM, Circuit Judges, and DUMBAULD, * Senior District Judge.

FAGG, Circuit Judge.

Jack Edward Newman, a state prisoner, appeals the district court's denial of his 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus. Newman seeks habeas corpus relief based on a claimed appearance of impropriety by one of the prosecutors at his trial. We affirm.

A Missouri jury convicted Newman of first-degree murder. See Mo.Rev.Stat. Sec. 565.003 (1978) (repealed 1984). One of the prosecutors who assisted at Newman's trial was a friend of the murder victim. This prosecutor had represented the victim's family and business in civil legal matters, but none of these matters involved Newman. On state law grounds, Newman moved to disqualify the prosecutor. The state trial court overruled the motion and, at the trial's conclusion, stated the prosecutor had done nothing to make Newman's trial unfair.

On direct appeal, the Missouri Supreme Court rejected Newman's argument that the trial court should have disqualified the prosecutor. State v. Newman, 605 S.W.2d 781, 787-88 (Mo.1980). Newman then filed a motion for postconviction relief. See Mo.Sup.Ct.R. 27.26 (repealed 1988). In the motion, Newman claimed the prosecutor's participation violated the fifth and fourteenth amendments. The court rejected this claim on the merits. Although Newman appealed other aspects of the postconviction decision, he failed to pursue this claim. See Newman v. State, 669 S.W.2d 617, 618-19 (Mo.Ct.App.1984). The federal district court later denied Newman's habeas corpus petition that raised the same claim.

On appeal, Newman argues the prosecutor's relationship with the victim created an appearance of impropriety in violation of due process. We believe Newman's failure to pursue this claim in the postconviction appeal creates a procedural bar to federal habeas corpus review. See Gilmore v. Armontrout, 861 F.2d 1061, 1065 & n. 9 (8th Cir.1988); Stokes v. Armontrout, 851 F.2d 1085, 1092 (8th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 823, 102 L.Ed.2d 812 (1989). But see Gilmore v. Armontrout, 867 F.2d 1179, 1180 n. 1 (8th Cir.1989) (Lay, C.J.,...

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11 practice notes
  • Franklin v. Warden, No. 2:05-cv-0304 KJM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 30, 2014
    ...the question also have said, however, that review of claimed due process violations in state court proceedings is narrow. Newman v. Frey, 873 F.2d 1092, 1093 (8th Cir.1989). A court may grant relief only if a prosecutor's misconduct affects the fairness of the trial. Gallego, 124 F.3d at 10......
  • Decisions And Orders:
    • United States
    • Federal Register April 07, 2011
    • April 7, 2011
    ...evidence'' does not limit the Deputy Administrator's ability to find facts on either side of the contested issues in the case, Shatz, 873 F.2d at 1092; Trawick, F.2d at 77, all ``important aspect[s] of the problem,'' such as a respondent's defense or explanation that runs counter to the Gov......
  • Decisions And Orders:
    • United States
    • Federal Register April 07, 2011
    • April 7, 2011
    ...evidence'' does not limit the Deputy Administrator's ability to find facts on either side of the contested issues in the case, Shatz, 873 F.2d at 1092; Trawick, F.2d at 77, all ``important aspect[s] of the problem,'' such as a respondent's defense or explanation that runs counter to the Gov......
  • Decisions And Orders:
    • United States
    • Federal Register April 07, 2011
    • April 7, 2011
    ...evidence'' does not limit the Deputy Administrator's ability to find facts on either side of the contested issues in the case, Shatz, 873 F.2d at 1092; Trawick, F.2d at 77, all ``important aspect[s] of the problem,'' such as a respondent's defense or explanation that runs counter to the Gov......
  • Request a trial to view additional results
3 cases
  • Franklin v. Warden, No. 2:05-cv-0304 KJM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 30, 2014
    ...the question also have said, however, that review of claimed due process violations in state court proceedings is narrow. Newman v. Frey, 873 F.2d 1092, 1093 (8th Cir.1989). A court may grant relief only if a prosecutor's misconduct affects the fairness of the trial. Gallego, 124 F.3d at 10......
  • Gallo v. Kernan, No. C-94-20603 RPA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • June 4, 1996
    ...F.2d 1244, 1247 (4th Cir.1985). However, review of claimed due process violations in a state court proceeding is narrow. Newman v. Frey, 873 F.2d 1092, 1093 (8th Cir. 1989). A court may only grant relief if a prosecutor's misconduct affects the fairness of the trial. Id. Gallo contends that......
  • Williamson v. Jones, No. 90-1093
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 5, 1991
    ...v. Armontrout, 893 F.2d 152, 155 (8th Cir.1989), stay denied, --- U.S. ----, 110 S.Ct. 1880, 109 L.Ed.2d 325 (1990); Newman v. Frey, 873 F.2d 1092, 1093 (8th Cir.1989); Byrd v. Armontrout, 686 F.Supp. 743, 753-54 (E.D.Mo.1988), aff'd, 880 F.2d 1 (8th Cir.1989), cert. denied, --- U.S. ----, ......

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