Full opinion text
ORDER DENYING PETITIONER’S REQUEST FOR A WRIT OF HABEAS CORPUS BARTLETT, District Judge. Petitioner Doyle J. Williams (“Williams”) was convicted of the capital murder of Kerry Brummett and sentenced to death in the Circuit Court of Clay County, Missouri, on November 13, 1981. On July 21, 1986, Williams filed pro se a “Petition for Writ of Habeas Corpus by a Person in State Custody.” Petitioner seeks a new trial or a discharge from his conviction. Petitioner moved for appointment of an attorney and a stay of execution. On August 4, 1986, Charles German was appointed to represent Williams. A stay of execution was entered on September 12, 1986. On September 17, 1986, the State responded to the order to show cause. Petitioner through his attorney filed his traverse on November 24, 1986. In addition to the claims presented by Williams in his petition and developed in the traverse prepared by counsel, Williams raised the following claims in his pro se petition filed on July 21, 1986: [A] Movant’s conviction was obtained in violation of the 5th and 14th Amendments of the United States Constitution when: 4. The trial Court failed and refused to instruct the jury as to consideration/weight the jury should give a drug addict’s testimony, to-wit: that the jury should take the testimony of an admitted drug addict’s testimony [sic] with caution and care. 6. The trial Court failed and refused to advise Movant that Movant had a Constitutional right to proceed Pro Se. 7. The Trial Court failed and refused to advise Movant that Movant had the right to testify and that if Movant decided to testify, that the jury could/should be instructed that Mov-ant’s past criminal convictions could not be considered as evidence of Mov-ant’s guilt in the crime charged. 8. The trial Court failed and refused to construe Missouri statute RSMo. 565.001 strickly [sic] against the State and liberally in favor of the Movant, in that when the evidence is viewed in the light most favorabl[e] to the State, said statute has not been violated. 9. The trial Court failed and refused to discharge Movant due to the fact that said Court lacked jurisdiction of Movant due to the State transporting illegally from the State of Missouri into the State of Illinois and then back to the State of Missouri before the trial but after the State of Missouri had taken temporary custody from the Federal Government under the Agreement on Interstate Detainers. On September 17, 1986, the State responded to these claims in its response to the order to show cause. However Williams did not provide any legal or factual support of the claims in his traverse or in briefs filed on November 24, 1986, January 9, 1987, and June 22, 1987. Therefore, I assume that petitioner has abandoned these claims. On February 19, 1987, oral argument was held on Williams’ petition; no evidence was received. On June 22, 1987, petitioner filed supplemental suggestions in response to arguments made by the State at the February 19, 1987, hearing. Additional authorities were provided by Williams and his counsel by letters dated September 23, 1987, November 12, 1987, December 1, 1987, December 2, 1987, December 17, 1987, and January 13, 1988. I. BACKGROUND In April 1980, Williams and John Morgan burglarized the medical offices of Dr. A.H. Domann in Auxvasse, Missouri, taking, among other things, blank prescription pads. Thereafter, Williams and Morgan went to Morgan’s trailer home. In the presence of Brummett, Williams and Morgan discussed ways to use the prescription pads. Brummett saw the prescription pads with Dr. Domann’s name on them. Later the same day, Williams was arrested while attempting to pass forged prescriptions in a Columbia drug store. Faced with the charge of attempting to obtain a controlled substance by fraud, Williams told Morgan that he could avoid conviction if Dr. Do-mann did not testify that he had not signed the prescriptions. On October 7, 1980, Williams told Morgan that he had killed Domann. Williams suggested to Morgan that Brummett should be killed for testifying for the State against Morgan and to prevent him testifying against Williams about the burglary of Domann’s office. Pursuant to a plan developed by Morgan, Betty Coleman (one of Williams’ girlfriends) and Williams, Coleman arranged a date with Brummett and drove him to a deserted area in Callaway County adjacent to the Missouri River. Williams and Morgan emerged from concealment and dragged Brummett from the automobile. Williams beat Brummett on the head with the barrel of his .357 Magnum. Using a pair of handcuffs Williams had borrowed from an Auxvasse police officer, Williams and Morgan bound Brum-mett’s hands behind his back and forced him into the trunk of the automobile Coleman had driven. Williams and Morgan took Brummett to another location near the Missouri River. After Brummett was removed from the trunk, Williams resumed beating him. Brummett ran toward the river while being pursued by Williams. Still handcuffed, Brummett ran into the river. When Brummett surfaced the second time, Williams ordered Morgan to shoot him. Morgan fired over Brummett’s head. Williams waded into the river to retrieve the handcuffs but Brummett had disappeared. Several days later, his body was found on a sandbar. The cause of Brummett’s death was drowning. His scalp had been lacerated by a blunt instrument. Brummett's gold chain, traces of blood, hairs from Brummett’s head and a pack of Brummett’s cigarettes were found in the car used to transport Brummett. Brum-mett’s glasses and his plastic name tag were found at the place where Brummett was placed in the trunk. On September 17, 1981, a jury found Williams guilty of capital murder and later that day recommended the death penalty. The aggravating circumstance designated by the jury was that Brummett was murdered for the purpose of preventing his testimony in a judicial proceeding. § 565.012.2(12) R.S.Mo. (repealed by L.1983, p. 923, S.B. No. 276, § 1, 1984). II. DISCUSSION A. Williams was not denied due process and equal protection of the law when the trial court refused to instruct on first degree murder (felony murder) Williams argues that he was denied due process and equal protection because the trial judge refused to instruct on felony murder and the Missouri Supreme Court applied different law to Williams’ case than to other similar cases. At trial, the jury was instructed on capital murder (the offense charged) and on the lesser included offenses of second degree murder and manslaughter. Respondent’s Exhibit A-3 at 93-95. Williams’ counsel and the State offered an instruction on first degree murder, i.e., killing committed while perpetrating or attempting to perpetrate kidnapping. R.S.Mo. § 565.003 (repealed by L.1983, p. 922, S.B. No. 276, § 1). Respondent’s Exhibit A-2 at 610-13; Respondent’s Exhibit A-3 at 112. The trial judge refused to give a first degree murder instruction because it was not supported by the evidence. Respondent’s Exhibit A-2 at 611-16, 754-56. The Court did that because the Court does not feel that there is evidence sufficient to submit on the felony murder theory. The reasoning behind that is that in this case the only evidence that I remember in this case is that the defendant, together with one John Morgan, set about with an intent and design to cause the death of the deceased in this case, Kerry Brummett. The plan was, that is the evidence indicates, if the jury believes it, that they set about to have the aid and assistance of a female, Betty Coleman. And with the eventual intent being that the deceased would be killed and his body thrown in the Missouri River. The Court feels that the kidnapping that took place later on in the evening was merely one link in the chain of events that had been planned by the defendant and John Morgan in committing the offense of murder. Now, what I’m saying, I’m talking about what the evidence shows. I’m not saying that’s my belief. That’s what the evidence in the case would tend to show if believed by the jury. Now, the Court feels that there is no evidence to the contrary. And the Court feels that there is no independent collateral felony to draw upon to create the crime of felony murder. And that if any, the kidnapping, would just be one of the circumstances planned by the two conspirators to cause the death of Kerry Brummett. Respondent’s Exhibit A-2 at 613-14. Later, in denying Williams’ motion for judgment of acquittal or for a new trial, the trial judge amplified his reason for refusing to give the first degree murder instruction: As I mentioned before, I have reviewed the motion before. And I have given further thought to the allegations of err number 1 regarding the court failing to instruct the jury on the lesser included offense of capital murder. And after further consideration the court came to the same conclusion that I arrived at previously in the case. And that is that there may have been a kidnapping, but the court feels that, again, that was just, as I said before, a link in the chain of the murder in this case. And if there was a kidnapping, the murder was not committed in the course of the commission of the crime of kidnapping. But, on the other hand, the crime of kidnapping was committed in the course of committing the crime of murder. Therefore, the court feels rather strongly that this is not a proper case of felony murder in the State of Missouri or common law or under the law of any state that I know. There is no separate underlying felony during the course of which the crime of murder was committed. And, therefore, the court must decline the acceptance of that allegation at this time. Respondent’s Exhibit A-2 at 754-55. In Sumner v. Mata, 449 U.S. 539, 540, 101 S.Ct. 764, 765, 66 L.Ed.2d 722 (1981), the Supreme Court held that 28 U.S.C. § 2254(d) “requires deference by federal courts to factual determinations of all state courts.” However, a federal court is not barred from reviewing on collateral attack “a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.” Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980); see also Eldridge v. Atkins, 665 F.2d 228, 236 n. 5 (8th Cir.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 168 (1982). “Therefore, the presumption of correctness accorded the factual determinations of the state court under 28 U.S.C. § 2254(d), ... applies only to the historical facts.” Kellogg v. Scurr, 741 F.2d 1099, 1101 (8th Cir.1984). Due process requires that every available lesser included offense instruction be given in a capital murder case. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). However, “due process requires that a lesser included offense instruction be given only when the evidence warrants an instruction.” Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 (1982) (emphasis in original). Thus, whether there was sufficient evidence to support an instruction on first degree murder is subject to review by this court on petitioner’s collateral attack of his conviction. Whether the evidence presented at trial was insufficient to support a first degree murder instruction is a conclusion of law. Zemina v. Solem, 438 F.Supp. 455, 467-68 (D.S.D.1977), aff'd 573 F.2d 1027 (8th Cir.1978); Means v. Solem, 480 F.Supp. 128, 135-46 (D.S.D.1979), aff'd, 646 F.2d 322 (8th Cir.1980). At the time of Williams’ trial, first degree murder in Missouri resembled common law felony murder. R.S.Mo. § 565.003 (repealed by L.1983, p. 922, S.B. No. 276, § 1) defined first degree murder as follows: Any person who unlawfully kills another human being without a premeditated intent to cause the death of a particular individual is guilty of the offense of first degree murder if the killing was committed in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary, or kidnapping. Petitioner argues that there was evidence from which the jury could have reasonably inferred that the victim’s death was not premeditated and that the death occurred in the course of a felonious kidnapping. Missouri defines kidnapping as follows: 1. A person commits the crime of kidnapping if he unlawfully removes another without his consent from the place where he is found or unlawfully confines another without his consent for a substantial period, for the purpose of (1) Holding that person for ransom or reward, or for any other act to be performed or not performed for the return or release of that person; or (2) Using the person as a shield or as a hostage; or (3) Interfering with the performance of any governmental or political function; or (4) Facilitating the commission of any felony or flight thereafter; or (5) Inflicting physical injury on or terrorizing the victim or another. 2. Kidnapping is a class A felony unless committed under subdivision (4) or (5) of subsection 1 in which case it is a class B felony. R.S.Mo. § 565.110. Under the law at the time of his trial, Williams would have been entitled to an instruction on first degree murder if there was evidence from which the jury could have concluded reasonably that each of the essential elements of the first degree murder statute were met. However, there was no evidence from which a jury could have concluded that Williams acted “without a premeditated intent to cause the death of a particular individual” as required by R.S.Mo. § 665.003. The theory of the defense was that Williams was not present and did not participate in the killing. Further, overwhelming evidence of premeditation was presented. For example, after admitting to John Morgan that he had killed Dr. Domann, Williams told Morgan on October 8 that “the same thing ought to happen to him [Brummett] that happened to Dr. Domann.” Respondent’s Exhibit A-l at 278. Williams told Morgan on October 9 to "have Nina Potts ... call Roger Hazlett and have his pistol brought up.” Id. at 276. Morgan testified that sometime after 9:00 p.m. on the 9th, Betty Coleman told him about her proposed “date” with Brummett, the purpose of which was to “get him out-of-town where me [Morgan] and Doyle could kill him.” Id. at 282. He further testified that during the trip to and from Brazito, he, Williams and Coleman agreed on the specific location where Coleman was to drive Brummett on the “date.” Id. at 284. Morgan testified that while at the trailer in Brazito, Williams changed clothes (id. at 286), found and cut a length of rope (id.) and looked for concrete blocks (id.). Williams offered no evidence to the contrary. “The evidence in this case not only supported the claim that [defendant] intended to kill the victim, but affirmatively negated any claim that he did not intend to kill the victim.” Hopper v. Evans, 456 U.S. 605, 613, 102 S.Ct. 2049, 2054, 72 L.Ed. 2d 367 (1982). There was no evidence from which a reasonable jury could have concluded that one of the essential elements of first degree murder, i.e., lack of premeditation, was present. Accordingly, Williams was not deprived of due process when the trial judge refused to give a first degree murder instruction. B. The trial court’s admission of evidence of other crimes and its failure to give a limiting instruction on use of such evidence did not violate Williams’ due process right under the Fourteenth Amendment. In his petition Williams asserts that the trial court’s decision to admit evidence of other crimes and bad acts was so prejudicial as to amount to a denial of due process. Additionally, Williams argues that the error in admitting the evidence of other crimes was compounded by the trial judge’s failure to give an instruction that the jury could not consider the “other crime” evidence in determining defendant’s guilt. The State contends that federal habeas corpus relief on this claim is barred because petitioner abandoned these claims in his appeal from his Rule 27.26 hearing and has thereby “deliberately bypassed” available state remedies. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Petitioner responds that he properly presented this claim in his 27.26 appeal. Although Williams was represented by counsel during his state court trial, his direct appeal and the hearing on his Rule 27.26 motion, he represented himself in the appeal from the trial court’s denial of his motion for post-conviction relief under Rule 27.26. Where an alleged procedural bypass is the result of the habeas corpus petitioner’s own decision, the standard enunciated in Fay v. Noia applies. Graham v. Mabry, 645 F.2d 603, 606 (8th Cir.1981). In Fay, the Supreme Court stated: If a habeas applicant ... understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate bypassing of state procedures, then it is open, to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits. Fay, 372 U.S. at 439, 83 S.Ct. at 849. Petitioner’s attorney on the direct appeal of his conviction raised the claim that the trial court erred in allowing admission of other crimes evidence. Respondent’s Exhibit B-l at 44-49. However, the federal constitutional issues implicated by the claim were not presented to the state court. Petitioner claimed in his “First Pro Se Amended Petition” for relief under Rule 27.26 that the trial court’s failure to instruct the jury on the limited use of other crime evidence and the trial court’s admission of other crime evidence violated his due process right under the Fourteenth Amendment. Respondent’s Exhibit F-3 at 112. (Williams also raised these claims as examples of ineffective assistance of counsel. Respondent’s Exhibit F-3 at 109.) After the trial court denied these claims, petitioner appealed to the Missouri Court of Appeals. In his pro se brief on appeal, petitioner raised both claims as part of his claim of ineffective assistance of counsel at his trial. Respondent’s Exhibit G-l at 21-23, 46. In its response, the State cautioned: To the extent that some of the appellant’s numerous claims in his Rule 27.26 motions have been abandoned on this appeal, respondent notes that such claims have been “deliberately bypassed” under Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 F.2d 837 (1963) and, if this appeal is affirmed, cannot be raised in any subsequent federal habeas corpus proceeding. Respondent’s Exhibit H at 4, n. 3. In his reply brief, Williams did not attempt to clarify the claim that he was asserting except to state in a footnote: [A]ppellant hereby gives notice to this court and respondent, that failure of appellant to include in this appeal any point of error pleaded to the circuit court should not be considered abandoned, and appellant hereby moves this court to take judicial notice of the points presented to the circuit court and to rule upon the merits of each. Respondent’s Exhibit G-2 at 10. Williams argues that this reference presented the due process issue to the Missouri courts. The State responds that the presentation of a particular complaint as a basis for ineffective assistance of counsel does not fairly present to the state court the substantive contention itself, citing this Court’s earlier consideration of a writ of habeas corpus filed by petitioner. Williams v. Wyrick, No. 83-0915-CV-W-9, slip op. at 6 (W.D.Mo. Mar. 2, 1984) (citing Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). Therefore, the State contends that by failing to present on appeal the substantive constitutional claim regarding the other crime evidence and the failure to give a limiting instruction, petitioner has deliberately bypassed available state review procedures. After reviewing petitioner’s briefs on appeal from the denial of his Rule 27.26 motion, (including the incorporated portion from the brief on direct appeal) and giving his briefs the benefit of liberal construction afforded pro se litigants, Arnold v. Wyrick, 646 F.2d 1225, 1227 n. 7 (8th Cir.1981), I conclude that petitioner did not “fairly present” to the Missouri Court of Appeals the claims that federal due process was violated by admission of other crimes evidence or by the trial judge’s failure to give a limiting instruction. Williams’ reply complained to the Missouri Court of Appeals that these two alleged errors were examples of his failure to receive effective assistance of counsel. For instance, in the brief on appeal from the denial of his Rule 27.26 motion, reference is made to these two alleged errors by the trial judge under the following heading: Argument, Point Relied Upon, -A- The trial court erred in it’s [sic] findings that movant’s rights to due process and equal protection of the law and to effective assistance of counsel as protected by the 5th, 6th, and 14th amendments to the United States Constitution and Article (1), Section (10), and (18a) of the Missouri Constitution, in that movant was denied effective assistance of counsel for at least the following reasons: Respondent’s Exhibit G-l at 20. In two subsections under this heading, Williams complained about “(1) Counsel’s failure to request the jury to be fully and correctly instructed, ... Subsection -B-: Evidence of other crimes” and “(5) Failure to properly object to the admission of evidence of other crimes movant was allegedly involved in.” Id. at 20, 21, 46. The Court of Appeals reasonably considered these alleged errors only as examples of how Williams was allegedly denied effective assistance of counsel. Therefore, the manner in which Williams advanced these issues on appeal failed to “provide the state courts with a ‘fair opportunity’ to apply controlling legal principles to the facts bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982). See Martin v. Solem, 801 F.2d 324, 330 (8th Cir.1986). Petitioner may be barred from federal relief on these claims if his failure to raise them in his Rule 27.26 appeal was a deliberate bypass of state procedures. Under Missouri law, by not including claims made in a 27.26 motion in the brief on appeal, the movant abandons them. See Herron v. State, 498 S.W.2d 530, 531 (Mo.1973) and Daly v. State, 639 S.W.2d 211, 212 n. 1 (Mo.App.1982). Although petitioner represented himself in appealing the denial of his Rule 27.26 motion, he is fully familiar with (if not an “expert” in) Missouri post conviction, appellate and federal habeas corpus procedures as demonstrated by the numerous pleadings filed by him and on his behalf in this and other cases. Also, petitioner filed numerous pleadings in the Rule 27.26 proceeding including two or three “addendums” to his first amended petition for relief and various discovery motions. Williams knows how to present a claim. Furthermore, Williams knew about the alleged errors in admitting other crimes evidence and in failing to give a limiting instruction. In fact, he knew that these alleged errors could be presented as violations of his due process rights because he did so in his “First Pro Se Amended Petition” filed with the trial court on April 17, 1984. Accordingly, petitioner was aware of these particular claims and he has not presented good cause for his failure to raise them on appeal. See Wayne v. White, 735 F.2d 324, 325 (8th Cir.1984). In light of his wealth of experience in and familiarity with appellate and post conviction procedures, the presentation of these claims to the Rule 27.26 court and the warning by the State that failure to raise a claim on appeal precludes federal review, I conclude that petitioner made a voluntary and reasoned decision not to present these claims in his Rule 27.26 appeal. Therefore, petitioner deliberately bypassed available and effective state procedures and cannot present these claims in this case. Even if petitioner had not deliberately bypassed state procedures, these two claims are without merit. Admissibility of evidence is a matter of state law and does not usually form the basis of habeas corpus relief unless the error is so great that it is a denial of due process. Maggitt v. Wyrick, 533 F.2d 383, 385-86 (8th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976); see also Ruff v. Wyrick, 709 F.2d 1219, 1220 (8th Cir.1983). Under Missouri law, evidence of other crimes is admissible “where it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other, or the identity of the person charged with the commission of the crime on trial.” State v. Trimble, 638 S.W.2d 726, 732 (Mo. banc 1982); see also State v. Shaw, 636 S.W.2d 667, 671-72 (Mo. banc), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982). Rule 404(b), Federal Rules of Evidence, is similar. Therefore, the “predicate” for successfully asserting that Williams was denied a fair trial because of the admission of other crimes evidence “is a showing of gross or conspicuous prejudice.” Britton v. Rogers, 631 F.2d 572, 575 (8th Cir.1980), cert. denied, 451 U.S. 939, 101 S.Ct. 2021, 68 L.Ed.2d 327 (1981). The trial court admitted evidence that petitioner and witness John Morgan burglarized Dr. Domann’s office; that petitioner attempted to obtain controlled substances with forged prescription pads taken in the burglary; and that petitioner admitted murdering Dr. Domann. The trial judge properly admitted this evidence because it was relevant to establishing a motive for the murder of Brummett. According to Morgan’s testimony, Brummett was present when petitioner and Morgan discussed the robbery and how to use the stolen prescription blanks to obtain drugs. Morgan testified that Williams said that “the same thing ought to happen to [Brum-mett] that happened to Dr. Domann.” The evidence of these other crimes or bad acts was not tenuously connected with the killing of Brummett but rather was highly relevant to establishing motive and plan. Williams has failed to demonstrate that the admission of the evidence for these legitimate purposes was grossly prejudicial. Therefore, his right to a fair trial was not violated. Petitioner contends that the trial court’s failure to instruct the jury as to the limited purposes for which they could consider the other crimes evidence “effectively invited the jury to convict Williams based on acts for which he was not then on trial.” This failure, petitioner argues, denied him a fair trial in violation of his due process rights under the Fourteenth Amendment. Williams could have requested an instruction that the jury should not consider evidence that the defendant committed other crimes in determining guilt but only for such purpose as motive, intent, identity or his credibility as a witness. MAI-CR2d 3.60. At trial, petitioner’s counsel chose not to request such an instruction. Petitioner has failed to carry his burden of demonstrating that the failure by the trial court to sua sponte give a limiting instruction on the other crimes evidence so “infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); see also Williams v. Lockhart, 736 F.2d 1264, 1267 (8th Cir.1984). C. The trial court did not lower the required legal standard for capital murder in the jury instructions and there was sufficient evidence from which a reasonable jury could have found Williams guilty of capital murder Petitioner contends that 1) the jury instruction on capital murder stated a lower standard of proof than required by state law; and 2) even if the instruction was consistent with state law, there was insufficient evidence to support the jury’s verdict. “Capital murder” at the time of petitioner’s trial was defined as follows: “Any person who unlawfully, willfully, knowingly, deliberately and with premeditation kills or causes the killing of another human being is guilty of the offense of capital murder.” R.S.Mo. § 666.001. The jury was instructed in part that they were to determine whether Williams “caused the death of Kerry Brummett by beating him and drowning him.” Respondent’s Exhibit A-3 at 93. Petitioner contends that “caused the death” is a lesser standard than “kills or causes the killing.” Generally, jury instructions do not present a basis for habeas corpus relief. Williams v. Lockhart, 736 F.2d 1264, 1267 (8th Cir.1984). “However, when the petitioner establishes that an improper instruction results in ‘a fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudamentary demands of fair procedure,’ habeas corpus relief is avail-able_” Brouillette v. Wood, 636 F.2d 215, 218 (8th Cir.1980), cert. denied, 450 U.S. 1044, 101 S.Ct. 1766, 68 L.Ed.2d 243 (1981). quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). “Caused the death” is used in Missouri’s recommended instruction on capital murder, MAI-CR.2d 15.02. In State v. Williams, 652 S.W.2d 102, 115 (Mo. banc 1983), the Missouri Supreme Court concluded that “[t]he submitted instruction comported] with the requirements of § 565.001 and did not misdirect the jury.” The difference in meaning between “caused the death” and “caused the killing” is not a fundamental defect that inherently resulted in a complete miscarriage of justice. Petitioner also argues that a rational jury could not have concluded beyond a reasonable doubt that Williams caused the death of Brummett “by beating him and drowning him” because the only evidence on the cause of Brummett’s death was that he died by drowning. The standard for evaluating a claim that the evidence was insufficient is set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), reh. denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979). [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We hold that in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Id. 443 U.S. at 319, 324, 99 S.Ct. at 2789, 2791-92 (footnote omitted) (emphasis in original). In applying the standard, if the record supports conflicting inferences this Court “must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. 443 U.S. at 326, 99 S.Ct. at 2793. The judgment of a state appellate court rejecting a challenge to evidentiary sufficiency is entitled to great weight if the state court invokes the proper standard. Lenza v. Wyrick, 665 F.2d 804, 812 (8th Cir.1981). However, this Court must still determine whether the state conviction was secured in accord with federal constitutional law. Jackson, 443 U.S. at 323, 99 S.Ct. at 2791. Considering all of the evidence in the light most favorable to the prosecution, a rational jury could reasonably have concluded that petitioner “caused the death of Brummett by beating him and drowning him....” For instance, Morgan testified that Williams hit Brummett on the head with his gun and then chased the handcuffed Brummett into the river. Respondent’s Exhibit A-l at 290, 293-95. The medical examiner testified that Brummett’s scalp had been lacerated “due to a blunt impact injury.” Respondent’s Exhibit A-l at 230-31, 238, 240. Therefore, petitioner is not entitled to habeas relief on his insufficiency of the evidence claim. D. The State Did Not Violate Williams’ Due Process Rights by the Knomng Use of False Testimony and by Failing to Disclose Evidence Favorable to the Defense Williams asserts that the prosecution knowingly used false testimony during his trial and failed to disclose evidence favorable to his defense. Williams argues that this prosecutorial misconduct violated his due process rights under the Fourteenth Amendment. Relying on Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) and Booth v. Maryland, — U.S. -, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), Williams contends that “capital cases require application of a higher standard for evaluating prosecutorial misconduct.” However, both Gardner and Booth focused on the sentencing phase of capital murder trials. In Gardner, confidential information was presented to the sentencing judge that was not disclosed to the defendant. The Supreme Court found that the defendant had been denied due process when the death sentence was imposed on the basis of information which he had no opportunity to deny or explain. Gardner, 430 U.S. at 362, 97 S.Ct. at 1207. The Supreme Court in Booth concluded that the formal presentation of a victim impact statement containing “emotionally-charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases.” Booth, 107 S.Ct. at 2536 (footnote omitted). In the instant case, petitioner is asserting errors during the trial, not during the sentencing process. Naturally, the trial must satisfy the requirements of the Due Process Clause. Gardner, 430 U.S. at 358, 97 S.Ct. at 1204. Williams has failed to establish that a higher standard governs habeas review of his trial. However, the seriousness of the crime charged and the sentence imposed assure petitioner that his claims will receive careful consideration and a reasoned decision. “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). In order to establish a violation of Brady, an accused must show: “the suppression of evidence, the evidence’s favorable character to the accused, and the evidence’s materiality.” United States v. Smith, 538 F.2d 1332, 1334 (8th Cir.1976), citing, Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 reh. denied, 409 U.S. 897, 93 S.Ct. 87, 34 L.Ed.2d 155 (1972); see also Reese v. Frey, 801 F.2d 348, 350-51 (8th Cir.1986). In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481 (1985), the materiality component of Brady was reformulated as follows: “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Additionally, “[d]eliberate deception of a court and jurors by the presentation of known false evidence is incompatible with ‘rudimentary demands of justice.’” Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972), citing, Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935). “When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within [the Brady ] rule.” Id., quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). The habeas corpus petitioner must establish that the false testimony was presented by the State and that the prosecutor knew that the testimony was false. Napue, 360 U.S. at 269, 79 S.Ct. at 1177. Further, the false testimony must have been material i.e., there must be “a reasonable probability” that if the false testimony had been disclosed to the defense, the result would have been different. Giglio, 405 U.S. at 154, 92 S.Ct. at 766; Bagley, 105 S.Ct. at 3384. 1. Williams’ claims that the state failed to disclose the scope of Morgan’s immunity agreement and used false testimony about the immunity agreement Petitioner contends that the State misled defendant’s counsel about the scope of John Morgan’s immunity agreement with the State and allowed Morgan to testify falsely about his immunity agreement. Procedural Default Initially, the State argues that review of these claims is barred by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed. 2d 594, reh. denied, 434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 163 (1977) because Williams failed to present these claims in accordance with state procedural rules. Williams attempted to present these claims to the state trial court in a “Fourth Amended Petition under Rule 27.-26” offered on the last day of petitioner’s Rule 27.26 hearing after the evidence had been closed except for a couple of matters Williams had received permission to present. Respondent’s Exhibit F-3 at 72-74; Respondent’s Exhibit F-2 at 344-53. The state trial judge ruled that the new arguments raised in Williams’ fourth amended motion were based on facts that were fully known to him long before the Rule 27.26 action was filed. Therefore, the Court concluded that there was no good cause for the untimely amendment and Williams was denied leave to file the amended complaint pursuant to Missouri Supreme Court Rule 55.33(a). Respondent’s Exhibit F-2 at pp. 347-53. Williams did not challenge this ruling on appeal. The Missouri Court of Appeals refused to review petitioner’s claims that the State misled the defense regarding the Morgan immunity agreement and that the State allowed Morgan to testify falsely about the immunity agreement because they were not presented to the trial court in the 27.26 motion. Williams v. State, 712 S.W.2d 404, 411 (Mo.App.1986). Therefore, petitioner failed to properly raise these issues in state court. Petitioner responds that he did present the claims to the state court even though the court refused to consider them. Further, petitioner argues that even if he has procedurally defaulted, he had sufficient cause for not presenting the claim earlier because he had ineffective assistance of counsel; there was interference by officials, and the factual and legal bases for his claim were not reasonably available earlier. Because Williams was represented by counsel in presenting his Rule 27.26 motion to the trial court, he must show cause for not properly presenting these arguments to a state court and resulting prejudice in order to obtain habeas corpus review. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594, reh. denied, 434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 163 (1977). “[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986). An objective impediment would include a “showing that the factual or legal basis for a claim was not reasonably available to counsel ... or that ‘some interference by officials,’ made compliance impracticable.” Id. (citations omitted). Additionally, ineffective assistance of counsel constitutes cause for a procedural default. Murray, 106 S.Ct. at 2646. Generally, a claim for ineffective assistance of counsel resulting in a procedural default must be presented to the state court as an independent claim before it can be used to establish cause for a procedural default. Id. (citing Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982)). Williams asserts that he did not know about the problems with the immunity agreement until the Rule 27.26 hearing in the Domann case when he learned that the prosecutor in Callaway County had not secured immunity agreements from the prosecutors in other counties where Morgan allegedly committed crimes. Prosecutor Garber testified at that hearing that she believed Morgan had immunity for a burglary in Cole County even though she knew the Callaway County prosecutor could not promise immunity for crimes committed in other counties. Garber believed that her predecessor in office had obtained an agreement from the Cole County prosecutor not to prosecute Morgan for the burglary. The state trial judge in denying Williams’ request for post-conviction relief in the Domann case stated: Movant makes accusations that state personnel performed acts of misconduct to his detriment. The first such alleged act is that prosecutors falsely promised mov-ant’s counsel that witness John Morgan had been granted immunity from prosecution for crimes which occurred outside Callaway County. The convoluted logic advanced by movant on this point cannot seriously be accepted. There was no statutory provision existing to grant a witness immunity from prosecution at or prior to the time movant was tried. It is the practice of prosecutors to form agreements among themselves concerning whether a person or persons might be prosecuted pending other activity in other counties, but the procedure is not formalized by statutory authority. Assuming for the purposes of movant’s argument that the prosecutor of Callaway County did in fact enter into an informal agreement with another prosecutor or prosecutors, there is no proscription against such conduct, and no authority prohibiting the same is advanced. Mov-ant makes a premise that in fact no immunity was granted; then he jumps to an assumption that the state “lied” about a “deal” it made with John Morgan “to testify falsely to a jury.” This is an assumption with not the slightest basis in fact. A prosecutor may offer assurances based upon that person’s statement that he or she will not prosecute an individual for a particular offense or offenses, and prosecutors may between or among themselves make representations that charges may or may not be filed against an individual, but there was not at the time of movant’s trial any formal procedure to grant immunity to John Morgan. Prosecutor Garber had no authority or capacity to guarantee that John Morgan would not be prosecuted outside of Calla-way County, although nothing precluded her from conversing with other prosecutors for the purpose of attempting to gain assurance that John Morgan would not be prosecuted in other counties, and she did in fact pursue those assurances. Movant attempts to set up a hypothesis based upon false premises. He charges that had his counsel known that John Morgan had no immunity, and had John Morgan known that he had no immunity, things would have transpired differently, and therefore, when such possibilities exist, he should have the benefit of pursuing those. The equation proposed can never balance, because it is based upon false assumptions. John Morgan was never entitled to a grant of immunity because that is beyond the limits of the prosecutor to grant. The record does not disclose, in any event, that John Morgan was misled in any way by anyone as to his status under the law for exposure to prosecution. Contrary to movant’s statements, there is no showing that the prosecutor in this case made false representations regarding immunity granted to John Morgan. Movant hypothesises that since there were false representations, speculation as to what might have happened should be resolved in his favor, as he sets up a number of scenarios about what might have happened if false representations had not been made. Neither the facts nor the law supports movant. There was no statutory authorization for immunity when movant’s case was tried. His counsel did not have the right to expect that any witness had been granted immunity which was enforceable, and therefore counsel could not have been put to any disadvantage by the facts as they transpired in this case. There was no impropriety by the prosecutor. This point is meritless. Respondent’s Exhibit M, pp. 77-79. Section 2254(d) requires deference by federal courts to factual determinations of all state courts unless one of seven conditions specifically set forth in § 2254(d) was found to exist by the federal habeas court. If none of those seven conditions were found to exist, or unless the habeas court concludes that the relevant state-court determination is not ‘fairly supported by the record,’ ‘the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.’ [Emphasis supplied.] Sumner v. Mata, 449 U.S. 539, 547, 550, 101 S.Ct. 764, 769, 771, 66 L.Ed.2d 722 (1981) (footnote omitted). After examining the transcript of the state court proceedings in petitioner’s Rule 27.26 motion in the Domann case, I conclude that Williams has failed to show by convincing evidence that these factual conclusions were erroneous. Finally, petitioner has not asserted in any state proceeding that he received ineffective assistance of counsel because his attorney did not discover the scope of the state’s immunity agreement with Morgan. Therefore, ineffective assistance of counsel cannot be used to establish cause for petitioner’s procedural default in this proceeding. Murray, 106 S.Ct. at 2646. Accordingly, Williams has failed to establish cause for failing properly to present these claims to a state court. Even if Williams could show cause, he must also demonstrate actual prejudice. Murray, 106 S.Ct. at 2649. The habeas petitioner must show ‘not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’ ... Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness’ at trial. Id. (citation omitted). Williams has failed to establish that he was denied fundamental fairness at trial. See Respondent’s Exhibit M, pp. 77-79. As soon as Williams’ counsel learned about Morgan’s view of the immunity agreement, they had the factual and legal basis for any attack they desired to make. In fact, the more extensive the immunity agreement claimed by a witness, the better for the cross-examiner because the witness’s reward for testifying is greater. Therefore, defense counsel were better off with an overstated immunity agreement than they would have been had it been accurately presented. Furthermore, conjecture is that maybe Morgan would not have agreed to testify if he had known that he did not have immunity from all crimes he may have committed. A reading of Morgan’s testimony reveals that immunity for the Brummett murder was the determining factor in Morgan’s willingness to testify. 2. Williams’ claim that the State failed to disclose reports of interviews with Larry Pimer and Pamela Mealey a. Larry Pimer Williams contends that Larry Pir-ner, a night manager at the Mark Twain Restaurant, was interviewed by the police after Brummett’s disappearance but that police reports concerning witness Pirner were not disclosed to the defense. Pimer testified at petitioner’s Rule 27.26 hearing that he was interviewed by police and that he told them that Brummett did not leave the restaurant with Betty Coleman. Pir-ner’s testimony conflicted with the testimony of two witnesses who testified at trial that Betty Coleman and Kerry Brummett left the restaurant together the night of Brummett’s murder. Petitioner argues that it is not reasonable that the police would have interviewed the two waitresses and not Pirner, the night manager. The State responds that prosecutor Gar-ber testified during the Rule 27.26 hearing that she did not have in her files a report of an interview with Pirner and that she had not heard of Pimer until after the trial. Respondent’s Exhibit F-2 at 185-86, 191, 205-06. The State trial judge in denying petitioner’s Rule 27.26 motion concluded that Pir-ner’s testimony that he saw Brummett at the restaurant with a woman who was not Betty Coleman and that he made a report to that effect to the law enforcement authorities was not credible. Respondent’s Exhibit F-3 at 31. The state trial court also found that there was no credible evidence that “Pirner made any report to po-lice_” Respondent’s Exhibit F-3 at 39. The state court’s factual finding that there is no credible evidence that Pirner made any report to the police is fairly supported by the record. Petitioner has failed 1) to establish any of the seven reasons for disregarding state court factual findings or 2) to establish “by convincing evidence” that the state’s conclusion that a police report of Pimer’s statement does not exist is erroneous. Therefore, the state court’s factual finding is presumed correct. Sumner v. Mata, 449 U.S. at 550, 101 S.Ct. at 771. Accordingly, petitioner has failed to establish the first prong of the Brady test — that the state suppressed any evidence because the state cannot suppress evidence which it does not possess. However, even if petitioner established that the state withheld a report of an interview with Pirner and even if it were assumed that the report was favorable to the defendant, the report does not meet Brady’s materiality test. Pirner was an acquaintance of Betty Coleman, and a convicted felon. His testimony about what he saw was contradicted by the unimpeached testimony of two waitresses who worked at the same restaurant. There is no reasonable probability that had the Pirner report (assuming one existed) been disclosed to Williams the result of the trial would have been different. Therefore, Williams has not established a Brady violation. b. Pamela Mealey Arguments similar to those about Pirner are made about an alleged police report of an interview with Pamela Mealey, a customer at the Mark Twain Restaurant in the early morning hours of October 10, 1980. Mealey testified at the hearing on petitioner’s motion for a new trial that she told an unknown officer in the Callaway County sheriffs department that she saw Brum-mett leave the restaurant with a woman. Although she testified at the hearing that the woman Brummett left with was not Betty Coleman, she testified that she only told authorities that she did not know the woman. She testified that there was no reference to Betty Coleman in the discussion with the officer. Petitioner submitted in this case the affidavit of Charles G. Hyler, petitioner’s attorney at his trial and at the hearing on petitioner’s motion for a new trial, and the affidavit of Karl Madden, the attorney who represented Betty Coleman in her capital murder trial. Both attorneys state that at some time during their representation, Diane Garber furnished them with a list of people interviewed by the state and that Pamela Mea-ley’s name was on the list. During the hearing on the motion for a new trial, Hy-ler stated to the Court that he had not been told anything about Pamela Mealey prior to the hearing. At the hearing on the motion for new trial, Diane Garber, Callaway County prosecutor, stated that she thought she had a statement from Pamela Mealey but she was not absolutely sure. Further, she testified that if she had a statement it was for a witness the State did not intend to call and therefore the State was not required to supply the statement to the defense. Respondent’s Exhibit A-2 at 752-53. However, at the 27.26 hearing, more than two years later, Garber testified that after her testimony at the hearing on the new trial motion, she reviewed her records and found no reference to a Pamela Mealey although one of the photographs shown to certain witnesses was of a Lisa Mealey. Respondent’s Exhibit F-2 at 184-85. Garber had not heard of Pamela Mealey before trial. Id. at 210. Garber also testified that she did find the name “Pam Neely” mentioned in connection with a drug ring. Id. at 205, 210. The trial court after hearing Mealey’s testimony at the hearing on the motion for new trial concluded that the testimony was not credible. Respondent’s Exhibit A-2 at 756. The Supreme Court of Missouri affirmed this credibility finding. State v. Williams, 652 S.W.2d 102, 117 (en banc 1983). After the hearing on petitioner’s Rule 27.26 motion in the Brummett case, the trial judge concluded: “That, as ruled by the trial court, the testimony after trial of Pamela Mealey that she saw the victim at the Mark Twain Restaurant with a woman who was not Betty Coleman, and that she made a report to this effect to law enforcement authorities, is not credible.” Respondent’s Exhibit F-3 at 31. Further, the Court found that “there is no credible evidence that Mealey ... made any report to the police_” Id. at 39. Petitioner has failed to establish by convincing evidence that these state court findings were erroneous. Accordingly, these factual findings are presumed correct. Sumner v. Mata, 449 U.S. at 550, 101 S.Ct. at 771. The State cannot suppress evidence which it does not possess. Additionally, even if Williams had established that Mealey made a report to the Callaway County Sheriff, there is a serious question whether the report would have been favorable to Williams. Mealey testified that she did not tell the sheriff’s office that the woman she saw with Brummett was not Betty Coleman. She testified that she told the sheriff’s office that she did not recognize the woman. Respondent’s Exhibit A-2 at 719. Nevertheless, an argument can be made that had the statement been revealed, it might have been helpful to Williams. Mealey might have said that because she had met Coleman five or six times she would have recognized her if she had been the woman with Brummett. Assuming that the report existed and assuming that it was favorable to petitioner, information about the Mealey report (assuming it existed) does not meet the Brady materiality test. Mealey testified that she was a friend of Williams. Two unimpeached witnesses testified at trial that they saw Brummett leave with Betty Coleman. There is no reasonable probability that had the Mealey report been disclosed to Williams the result of the trial would have been different. See State v. Williams, 652 S.W.2d at 117. Therefore, Williams has not established a Brady violation. 3. Williams’ claim that the State failed to disclose Lepley deal Williams argues that the prosecution failed to disclose an agreement not to prosecute Audrey Lepley for receiving stolen property in exchange for Lepley’s testimony at petitioner’s trial. Even though the prosecutor testified at the Rule 27.26 hearing in the Brummett case that there was no immunity agreement with Lepley, Williams argues that Lepley may have believed that there was one and, therefore, the agreement should have been disclosed. The State responds that prosecutor Gar-ber testified that she made no immunity agreement with Lepley (Respondent’s Exhibit F-2 at 188-89, 203-05) and that Lep-ley also testified at the Rule 27.26 hearing that no agreement existed. Respondent’s Exhibit F-2 at 243, 246-47. The prosecutor also testified that before the trial: when Mr. Hiler [sic] in the presence of Mr. Marshall asked me if there was a deal between the State and Kay Lepley. And I told him that I wasn’t sure if there was or not. But I thought that Kay was under the impression that she would not be charged for receiving stolen property if she testified truthfully to the State; and that he should ask Mr. Hamilton. And he subsequently took Mr. Hamilton’s deposition. Respondent’s Exhibit F-2 at 188-89. The state trial judge concluded after the Rule 27.26 hearing that Williams “failed to bear his burden of proof ... that Lepley received immunity from prosecution in another case in exchange for her testimo-ny_” Respondent’s Exhibit F-3 at 28. These factual findings are presumed correct because Williams has not established that one of the seven conditions set forth in § 2254(d) exists or that these findings are not fairly supported by the record or that these findings are erroneous. Lepley testified that she did not have an agreement that she would not be prosecuted for other crimes if she testified for the prosecution. Prosecutor Garber told Williams’ trial attorney what she knew about a Lepley agreement before trial and referred counsel to her predecessor for more information. Therefore, Williams has not established that the State suppressed any information about an immunity agreement with Lepley. Even if Williams had established that information about an agreement had been suppressed, there is no reasonable probability that had the information been furnished it would have made a difference in the result of the trial. Lepley testified at the trial that she had seen handcuffs in Williams’ possession prior to Brummett’s murder. Another witness also testified he had seen handcuffs in Williams’ possession prior to Brummett’s murder. Therefore, Lepley’s testimony was cumulative. 4. Williams’ claim that the prosecution concealed statements by John Morgan Williams states that during discovery in the Rule 27.26 proceedings in the Domann case, the State produced “two police reports of statements by John Morgan which had never been previously disclosed.” Traverse at 75. Williams argues that under Brady, defense counsel should have been given access to these reports. The two documents dated October 12, 1980, and October 13, 1980, contain statements by Morgan that he denied any knowledge of the murder and that he did not remember where he was between October 6, 1980 (date of the Domann murder), and October 10, 1980 (date of the Brum-mett murder), and that he did not remember talking to Williams during that period of time. Respondent’s Exhibit J. This claim was not presented to the state court in the Brummett case until one month after the judge denied Williams’ Rule 27.26 motion. On April 22, 1985, Williams requested that the trial court set aside the order denying Rule 27.26 relief relying in part on this allegedly newly disclosed evidence. On April 24, 1985, the motion was denied. The Missouri Court of Appeals rejected the claim because Morgan’s statement that he had no knowledge of the murder had been brought out at trial. Williams v. State, 712 S.W.2d at 411. Furthermore, the claim was not reviewable because it had not been presented to the trial court in the Rule 27.26 motion. Id. Therefore, the State contends that petitioner has procedurally defaulted by bypassing state procedures for considering these claims. Williams argues that he did not learn of the existence of these statements until discovery during the Rule 27.26 proceeding in the Domann case. Therefore, he presented them to the state court in the Brummett case at the earliest possible time. The trial judge in deciding Williams’ Rule 27.26 motion in the Do-mann case concluded: That movant has failed to carry his burden of establishing that the State did not disclose during discovery movant’s Exhibits 16 and 17, two statements made by John Morgan to police. That attorney Marshall received, and was familiar with, movant’s Exhibits 15 and 18. Said exhibits contain some of the same information as that in movant’s Exhibits 16 and 17. Notwithstanding the failure to carry the burden of proof, movant acknowledged at the hearing that he had the information contained in these exhibits on other exhibits, so the movant is in no position to claim any harm, even if Exhibits 16 and 17 were not produced. Furthermore, the evidence is clear and convincing that Mr. Marshall’s trial strategy was not to risk admission of movant’s extens