Full opinion text
MEMORANDUM NANGLE, Chief Judge. Index Page I. Introduction...................750 II. Petitioner’s Exhaustion of State Remedies..............751 III. Habeas Grounds B, M, and Q: Unexhausted or Exhausted But Subject to Procedural Default......................752 A. Unexhausted or Exhausted .......................753 B. Procedural Default.........753 IV. Habeas Grounds D and E.......755 A. Missouri State Court Remedies Available to a Criminal Defendant By Which He Can Seek a New Trial Based upon Newly Discovered Evidence When the New Evidence is Discovered After the Defendant’s Direct Appeal has been Completed...............756 Page B. Do Petitioner’s Failure to Raise His Claim of Newly Discovered Evidence in a Timely Filed Motion for New Trial in the Trial Court and Petitioner’s Failure to Apply to the Governor of Missouri for Executive Clemency or Pardon Create Any Procedural Bars to this Court Considering Petitioner’s Habeas Grounds D and E on their Merits?..... .759 C. Habeas Grounds D and E: Merits................ .760 1. Habeas Ground D ..760 2. Habeas Ground E ..762 V. Habeas Grounds A, C, F, G, H, I, J, K, L, N, O, P, R, and S: Merits........... ,.763 A. Habeas Grounds G, H, J, K, L, N, O, P, and S .763 1. Habeas Ground G .763 Habeas Ground H 2. .763 Habeas Ground I 3. .763 Habeas Ground J 4. .764 Habeas Ground K 5. .767 Habeas Ground L 6. .768 Habeas Ground N 7. .770 Habeas Ground 0 8. .773 Habeas Ground P 9. .774 Habeas Ground S 10. .776 Habeas Grounds A, C, and F............... B. .777 1. Habeas Ground A .778 2. Habeas Ground C .783 3. Habeas Ground F .784 Habeas Ground R...... C. .784 VI. Petitioner’s Motion for Discovery .................. .784 VII. Conclusion................. .785 I. Introduction. During the morning of October 23, 1980, four employees of Pope’s Cafeteria in the West County Shopping Mall in St. Louis County, Missouri, were shot to death during a burglary which netted the burglars at least $4,000 and possibly over $8800. An employee of Pope’s Cafeteria discovered the bodies at about 7:40 a.m. and the Police arrived on the scene at about 7:45 a.m. The State of Missouri charged petitioner Maurice Oscar Byrd with four counts of capital murder for his alleged participation in the murders. Petitioner maintains his innocence and denies any participation whatsoever in the events of October 23, 1980. Between August 9 and August 14, 1982, petitioner, represented by public defenders, was tried on the capital murder charges before a jury in the Circuit Court of St. Louis County. On August 14, 1982, the jury convicted petitioner of the. four counts of capital murder. On December 7, 1982, the Court sentenced petitioner to death on each count. On direct appeal, the Missouri Supreme Court, per Judge Gunn (now of the United States District Court for the Eastern District of Missouri), affirmed. State v. Byrd, 676 S.W.2d 494 (Mo. banc 1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1233, 84 L.Ed.2d 370 (1985). Petitioner filed a pro se post-conviction Missouri Rule 27.26 motion in the Circuit Court of St. Louis County. (Respondent’s Exhibit F pp. 27-36). After an evidentiary hearing, the Circuit Court denied petitioner’s Rule 27.26 motion. (Id. at pp. 16-23). On appeal, on November 12, 1986, the Missouri Court of Appeals affirmed. Byrd v. State, 723 S.W.2d 37 (Mo.App.1986), cert. denied, — U.S. -, 108 S.Ct. 203, 98 L.Ed.2d 155 (1987), reh’g denied, — U.S. -, 108 S.Ct. 360, 98 L.Ed.2d 385 (1987). On November 24, 1986, petitioner’s Rule 27.26 appellate attorney received a telephone call from a woman named “Anita” who purported to have personal knowledge of facts exculpating petitioner. (See Petitioner’s Exhibit D). Therefore, on Monday, December 1, 1986, petitioner filed with the Missouri Court of Appeals a “Motion to Remand to the Trial Court for Hearing on Motion for New Trial Due to Newly Discovered Evidence,” (Petitioner’s Exhibit E, pp. 111-125), together with a “Motion for Leave to File Appellant’s Exhibits and etc.” (Id. at pp. 126-128). These motions were filed within petitioner’s time to file with the Missouri Court of Appeals (and were filed contemporaneously with) petitioner’s motion for rehearing on the November 12, 1986, decision, and/or transfer to the Missouri Supreme Court. (Id. at pp. 89-101; see Mo.R.Civ.P. 83.02). On December 5, 1986, the Missouri Court of Appeals denied without prejudice petitioner’s “Motion to Remand and etc.” and “Motion for Leave to File Appellant’s Exhibits and etc.” (Petitioner’s Exhibit E, p. 110, first item). On December 30, 1986, petitioner then filed a “Petition in Mandamus” with the Missouri Supreme Court seeking to compel the Missouri Court of Appeals to issue a ruling on the merits of petitioner’s “Motion to Remand and etc.” (Id. at pp. 69-82). On February 17, 1987, the Missouri Supreme Court denied petitioner’s “Petition in Mandamus.” (Id. at p. 68). On May 18, 1987, petitioner filed a petition for certiorari with the United States Supreme Court. On October 5, 1987, the United States Supreme Court denied petitioner’s petition for certiorari. Byrd v. Missouri, — U.S.-, 108 S.Ct. 203, 98 L.Ed.2d 155 (1987). On October 6, 1987, the Missouri Supreme Court issued a warrant of execution for petitioner directing that petitioner “suffer death by the administration of lethal gas” on October 27,1987. (See Attachments to Petitioner’s October 23, 1987, Application for Stay of Execution and etc. filed in this Court). On October 23, 1987, petitioner filed in this Court a partially completed pro se petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. This Court stayed petitioner’s execution pending further order of this Court and appointed counsel to represent petitioner in this federal habeas corpus proceeding. (See Orders, October 26, 1987, and November 30, 1987). On November 6, 1987, petitioner, through his appointed counsel, filed an Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus for a Person in State Custody. By his Amended Petition, together with a one-page amendment to the Amended Petition filed on December 7, 1987, petitioner raises nineteen grounds for federal habeas corpus relief denominated grounds (A) through (S). II. Petitioner’s Exhaustion of State Remedies. In his direct appeal to the Missouri Supreme Court, petitioner raised eight points of error denominated Points I through VIII. (Respondent’s Exhibit C). In his appeal to the Missouri Court of Appeals of the denial of his post-conviction Missouri Rule 27.26 motion, petitioner raised four points of error denominated Points I through IV. (Respondent’s Exhibit H-l). Petitioner raises those twelve points in his Amended Petition for Habeas Corpus as his Habeas Grounds A, C, F, G, H, I, J, K, L, N, O, and S. Petitioner’s Habeas Ground A (an ineffective assistance of trial counsel claim) contains two related points: first, petitioner’s trial counsel was ineffective because he called Oscar Ford as a witness, and, second, said ineffectiveness was compounded by the fact that Ford had undergone hypnosis prior to his trial testimony. Petitioner raised the first of these points in state court as his Rule 27.26 Point I. Petitioner did not raise the second of these points in state court. However, respondents’ Response to Order to Show Cause Why a Writ of Habeas Corpus Should Not Be Granted does not raise an exhaustion or procedural default objection to this second point. Rather, Respondents’ Response addresses this second point on its merits during the Respondent’s consideration of petitioner’s Habeas Ground N, which Habeas Ground also concerns post-hypnotic testimony. (See Response at p. 80). The Court concludes therefore that, for the second point raised in Habeas Ground A, respondents have waived the exhaustion requirement and have waived petitioner’s procedural default. Wade v. Armontrout, 798 F.2d 304, 306 n. 1 (8th Cir.1986); Purnell v. Missouri Department of Corrections, 753. F.2d 703, 708-10 (8th Cir.1985). Petitioner did not specifically raise his Habeas Ground P as a point relied upon in state court. However, the Missouri Supreme Court expressly considered and rejected this Habeas Ground. State v. Byrd, 676 S.W.2d at 503-504. Further, respondents’ Response does not raise an exhaustion or procedural default objection to this Habeas Ground. Rather, respondents’ Response addresses Habeas Ground P on the merits. (See Response at pp. 87-89). The Court therefore concludes that Habeas Ground P is exhausted or, alternatively, that, for Habeas Ground P, respondents have waived the exhaustion requirement and have waived any procedural default. Petitioner did not raise his Habeas Ground R in state court. However, respondents’ Response does not raise an exhaustion or procedural default objection to this Habeas Ground. Respondents’ Response addresses Habeas Ground R on the merits. (See Response at p. 92). The Court therefore concludes that, for Habeas Ground R, respondents have waived the exhaustion requirement and have waived petitioner’s procedural default. Based upon the above, the Court concludes that petitioner’s Habeas Grounds A, C, F, G, H, I, J, K, L, N, O, P, R, and S are exhausted and are not subject to any procedural bars. The Court will consider these fourteen Habeas Grounds on their merits in Section V below. Respondents’ Response states at page 3: “[Petitioner has exhausted state remedies for his present claims unless a reservation appears in the ‘Statement As To Merits’ section of this response.” In the “Statement As To Merits” section of the Response, respondents indicate that petitioner’s Habeas Grounds B, M, and Q have not been raised in state court, but are exhausted and subject to procedural default. (Response at pp. 20-21, p. 64 n. 7, and p. 89 n. 9). The Court will consider the effect of petitioner’s failure to raise these three Habeas Grounds in state court in the next following Section III. In the “Statement As To Merits” section of the Response, respondents indicate that petitioner’s Habeas Grounds D and E (which are closely connected to each other) are subject to various state procedural bars. (Id. at pp. 32-34 and p. 38). The Court will consider these Habeas Grounds together in Section IV below. III. Habeas Grounds B, M, and Q: Unexhausted or Exhausted But Subject to Procedural Default. As noted above, respondents have objected that petitioner did not raise his Habeas Grounds B, M, and Q in state court. If there is a state remedy available to petitioner for petitioner to raise these Habeas Grounds in state court, then these Habeas Grounds are not exhausted and petitioner’s Amended Petition would be a mixed petition containing both exhausted and unexhausted claims. In accordance with the dictates of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), such a mixed petition would have to be dismissed without prejudice unless petitioner (after being duly warned about the risk of forfeiting future consideration of deleted unexhausted claims in subequent federal habeas corpus petitions) opted to delete his unexhausted claims. Respondents assert that there is no state remedy available to petitioner for petitioner to raise these Habeas Grounds in state court. Specifically, respondents assert that a successive Rule 27.26 motion is not available for these Habeas Grounds because petitioner could have raised these Habeas Grounds in his prior Rule 27.26 motion and petitioner does not have good cause for his failure to raise these Habeas Grounds in that prior Rule 27.26 motion. In accordance with respondents’ view, petitioner’s Amended Petition is not a mixed petition because petitioner’s Habeas Grounds B, M, and Q are exhausted because there is no state remedy available to petitioner for petitioner to raise them in state court, and specifically because a successive Rule 27.26 motion is not available. However, respondents also assert that, because petitioner did fail to raise these Habeas Grounds in state court, petitioner has procedurally defaulted these Habeas Grounds, and said procedural default is a bar to this Court from considering these Habeas Grounds on their merits in this federal habeas corpus proceeding unless petitioner can show “cause” for his procedural default and “actual prejudice” resulting from the errors raised in these Habeas Grounds. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). A. Unexhausted or Exhausted. Rule 27.26(d) did permit successive post-conviction motions under certain circumstances. However, effective January 1, 1988, Missouri repealed Rule 27.26 and replaced it with Rules 24.035 and 29.15. Thus, because Rule 27.26 has been repealed, petitioner cannot now file a successive Rule 27.26 motion. Rule 29.15 applies to petitioner because he was convicted of a felony after a trial. (Rule 24.035 applies to persons convicted of a felony on a plea of guilty.) Petitioner was sentenced on December 7, 1982. Rule 29.15(m) permits a person sentenced prior to January 1, 1988, to file a Rule 29.15 motion only if the person has not filed a prior Rule 27.26 motion. Thus, because petitioner has filed a prior Rule 27.26 motion, petitioner cannot now file a Rule 29.15 motion. Rule 29.15 does not specifically provide that a person such as petitioner who was sentenced prior to January 1, 1988, and who has already completed one Rule 27.26 motion cannot now file any post-conviction motions. However, the Court does not believe that this omission creates any ambiguity in the application of Missouri’s new post-conviction remedy procedure. First, the plain operative effect of the repeal of Rule 27.26 combined with the fact that by its terms Rule 29.15 does not permit petitioner to file a Rule 29.15 motion is that petitioner cannot now file any post-conviction motions. Second, because petitioner has filed a prior Rule 27.26 motion, petitioner’s present inability to seek further post-conviction relief in Missouri state court is consistent with Rule 29.15(k) which expressly prohibits the filing of successive post-conviction motions. Compare Rule 29.15(k) and Rule 24.035(k) with Rule 27.-26(d). See also Morris, Postconviction Practice Under the “New 27.26”, 1987 J.Mo.Bar 435, 438. Petitioner cannot now raise his Habeas Grounds B, M, and Q in state court by way of a post-conviction motion. Therefore, there is no state remedy available for petitioner to exhaust with respect to these Habeas Grounds, these Habeas Grounds are exhausted, and thus petitioner’s Amended Petition is not a mixed petition. B. Procedural Default. Petitioner’s Habeas Grounds B, M, and Q are ineffective assistance of trial counsel claims. Habeas Ground B concerns petitioner’s trial counsel’s failure to present the exculpatory substance of the testimony of witness Oscar Ford by means other than calling Ford to testify. (Specifically, petitioner contends that his trial counsel should have presented the exculpatory substance of Ford’s testimony by means of a certain videotape or by means of the testimony of the investigating officer on the day of the murders.) Habeas Ground M concerns petitioner’s trial counsel’s failure to investigate the whereabouts of petitioner’s first wife and thereafter to interview her so as to be able to establish the validity of petitioner’s marriage to his second wife so that the trial court would have sustained petitioner’s claim of marital privilege regarding the testimony of his second wife and so that the trial court would not have permitted his second wife to testify against him. Habeas Ground Q concerns petitioner’s trial counsel’s failure to cross-examine six witnesses regarding the $20,000 reward offered by Pope’s Cafeteria for information regarding the murders. As noted above, petitioner did not raise these three Habeas Grounds in state court and petitioner cannot now raise these three Habeas Grounds in state court. However, petitioner could have raised these three ineffective assistance of trial counsel claims in his Rule 27.26 motion. Therefore, petitioner has committed a state procedural default. That state procedural default is a bar to this Court considering petitioner’s Habeas Grounds B, M, and Q on their merits in this federal habeas corpus proceedings unless petitioner can (1) show adequate “cause” explaining why he did not raise the claims in state court, and (2) “actual prejudice” resulting from the alleged constitutional violations. Leggins v. Lockhart, 822 F.2d 764, 766 (8th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1080, 99 L.Ed.2d 239 (1988); Worthan v. Wyrick, 805 F.2d 303, 305 (8th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1901, 95 L.Ed.2d 507 (1987). See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed. 2d 594 (1977). The “cause” required by Wainwright v. Sykes is not established by “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it.” Murray v. Carrier, 477 U.S. 478, 486, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). Rather, “the 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.” Id. at 488, 106 S.Ct. at 2645. Further, “cause” is not established by ineffective assistance of Rule 27.26 counsel. See Williams v. State of Missouri, 640 F.2d 140, 143-144 (8th Cir.), cert. denied, 451 U.S. 990, 101 S.Ct. 2328, 68 L.Ed.2d 849 (1981). Petitioner has presented no reasons whatsoever for his failure to raise in his Rule 27.26 motion the ineffective assistance of trial counsel claims contained in his Habeas Grounds B, M, and Q. Further, it is clear that, at the time he filed his Rule 27.26 motion, petitioner was thoroughly familiar with the circumstances surrounding his trial counsel’s decision to call Ford as a witness. (See Respondent’s Exhibit F, p. 30; Respondent’s Exhibit H-l, Point I). Likewise, it is clear that, at the time he filed his Rule 27.26 motion, petitioner was thoroughly familiar with the circumstances surrounding the testimony of his second wife. (See Respondent’s Exhibit C, Points III, IV, and V; see also State v. Byrd, 676 S.W.2d at 500-504). In addition, there is no indication that petitioner was not aware, at the time he filed his Rule 27.26 motion, that his trial counsel had failed to cross-examine witnesses regarding the reward money. Finally, the mere fact that petitioner’s Rule 27.26 motion was drafted and filed pro se does not in and of itself constitute “cause” for failure to include a ground therein. Smittie v. Lockhart, 843 F.2d 295, 298 (8th Cir.1988). Based upon the foregoing, the Court concludes that petitioner has failed to establish “cause” for his failure to raise his Habeas Grounds B, M, and Q in state court in his Rule 27.26 motion. Because petitioner has not established “cause,” the Court does not need to examine whether petitioner suffered “actual prejudice.” Engle v. Isaac, 456 U.S. 107, 134 n. 43, 102 S.Ct. 1558, 1575 n. 43, 71 L.Ed.2d 783 (1982); Leggins v. Lockhart, 822 F.2d 764, 768 (8th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1080, 99 L.Ed.2d 239 (1988). For the foregoing reasons, the Court concludes that procedural default is a bar to this Court considering petitioner’s Habeas Grounds B, M, and Q on their merits in this federal habeas corpus proceeding. Therefore, petitioner’s Amended Petition Habeas Grounds B, M, and Q are denied on the basis of procedural default. IV. Habeas Grounds D and E. As noted above in Section I, on November 24, 1986, over four years after the jury verdict, and after petitioner had completed his direct appeal, and after the Missouri Court of Appeals had rendered its decision in petitioner’s appeal of his Rule 27.26 motion, petitioner’s appellate attorney received a telephone call from a woman named “Anita” who purported to have personal knowledge of facts exculpating petitioner. (See Petitioner’s Exhibit D). Petitioner sought relief in Missouri state court on the basis of “Anita’s” proposed testimony by filing in the Missouri Court of Appeals a “Motion to Remand to the Trial Court for Hearing on Motion for New Trial Due to Newly Discovered Evidence” (Petitioner’s Exhibit E, pp. 111-125) and a “Motion for Leave to File Appellant’s Exhibits and etc.” (Id. at pp. 126-128). Petitioner also sought mandamus relief in the Missouri Supreme Court. (Id. at pp. 69-82). In Habeas Grounds D and E, petitioner contends that “Anita’s” proposed testimony is newly discovered evidence. In Habeas Ground D, petitioner contends that due process mandates that he be granted a new trial based upon this newly discovered evidence. In Habeas Ground E, petitioner contends that his Eighth Amendment rights have been violated because Missouri does not have a post-conviction court procedure by which he can file a motion in the nature of a motion for new trial based upon newly discovered evidence when the new evidence is discovered after the direct appeal process has been completed. Respondents contend that petitioner’s Habeas Ground D is subject to two separate procedural bars: first, petitioner failed to raise this claim in a timely filed motion for new trial in the trial court, and, second, petitioner has deliberately bypassed an available state remedy by which he can assert his entitlement to a new trial based upon the newly discovered evidence, that is, petitioner has failed to apply to the Governor of Missouri for executive clemency or pardon pursuant to the Missouri Constitution Article IV, § 7. (Respondents’ Response at pp. 32-34). Respondents contend that petitioner’s Habeas Ground E also is subject to a procedural bar because he has failed to apply to the Governor for executive clemency or pardon. (Id. at p. 38). Respondents also contend that these two Habeas Grounds fail on their merits. (Id. at pp. 34-38). A. Missouri State Court Remedies Available to a Criminal Defendant By Which He Can Seek a New Trial Based upon Newly Discovered Evidence When the New Evidence is Discovered After the Defendant’s Direct Appeal has been Completed. In Missouri, a criminal defendant must file a motion for new trial based upon newly discovered evidence with the trial court “within fifteen days after the return of the verdict.” Mo.R.Crim.P. 29.11(b). The trial court may extend the time for filing such a motion for “one additional period not to exceed ten days” if the defendant so requests “within fifteen days after the return of the verdict.” Id. The time restrictions in Rule 29.11(b) must be strictly complied with and the trial court, without an order from an appellate court, cannot entertain a motion for new trial based upon newly discovered evidence filed outside those time restrictions even if the new evidence is discovered outside those time restrictions. The Missouri Rules of Criminal Procedure simply do not contain a vehicle by which a criminal defendant can file a motion for new trial based upon newly discovered evidence when the new evidence is discovered after the time period contained in Rule 29.11(b) has already expired. State v. Hamilton, 732 S.W.2d 553, 555 (Mo.App.1987). The time period for petitioner to file a Rule 29.11 motion for new trial based upon newly discovered evidence expired at the latest 25 days after August 16,1982, the date the jury rendered its verdict against petitioner in the sentencing phase of petitioner’s trial. Petitioner did not discover his new evidence until 1986. Thus, Rule 29.11 does not provide petitioner with a state remedy by which he can seek a new trial based upon his newly discovered evidence. In Missouri, post-conviction relief on the basis of newly discovered evidence was not available pursuant to a Rule 27.26 motion (prior to the repeal of Rule 27.26). State v. Mims, 674 S.W.2d 536, 538 (Mo. banc 1984); Westmoreland v. State, 594 S.W.2d 596, 598 (Mo. banc 1980); Turnbough v. State, 574 S.W.2d 400, 404 (Mo. banc 1978); Beishir v. State, 480 S.W.2d 883 (Mo.1972); Hatfield v. State, 529 S.W.2d 180, 181-182 (Mo.App.1975). Therefore, in November, 1986, prior to the repeal of Rule 27.26, petitioner could not obtain relief based upon his newly discovered evidence through a successive Rule 27.26 motion pursuant to Rule 27.26(d). Thus, Rule 27.-26 did not provide petitioner with a state remedy by which he could seek post-conviction relief based upon his newly discovered evidence. Further, petitioner cannot file a Rule 29.15 motion because he has filed a prior Rule 27.26 motion. See Rule 29.-15(m); see also Section III.A. above. In addition, based upon the Missouri law under Rule 27.26, the Court concludes that post-conviction relief on the basis of newly discovered evidence is not available pursuant to a Rule 29.15 motion. Thus, for these two reasons, Rule 29.15 does not provide petitioner with a state remedy by which he can seek post-conviction relief based upon his newly discovered evidence. In Missouri, the Writ of Error Coram Nobis is not available to persons who have not completed their sentences. State v. Mims, 674 S.W.2d 536, 538 (Mo. banc 1984). Therefore, persons who have not completed their sentences may not obtain relief on the basis of newly discovered evidence through the Writ of Error Coram Nobis. State v. Mooney, 670 S.W.2d 510, 515 (Mo.App.1984); State v. Coffman, 647 S.W.2d 849, 852 (Mo.App.1983); Hatfield v. State, 529 S.W.2d 180, 181-182 (Mo.App.1975). Thus, the Writ of Error Coram Nobis does not provide petitioner, a person who has not completed his sentence, with a state remedy by which he can seek post-conviction relief based upon his newly discovered evidence. Similarly, the Missouri state Writ of Habeas Corpus is not available for claims of newly discovered evidence. State v. Cerny, 365 Mo. 732, 286 S.W.2d 804, 806-808 (1956). The Missouri Court of Appeals has recognized that, because Rule 27.26, the Writ of Error Coram Nobis, and the Missouri Writ of Habeas Corpus do not provide relief for claims of newly discovered evidence, there is no express Missouri procedure by which criminal defendants may present claims of newly discovered evidence to the Missouri courts when the new evidence is discovered after the time to file a Rule 29.11 motion has expired. State v. Hamilton, 732 S.W.2d 553, 555 (Mo.App.1987); State v. Mooney, 670 S.W.2d 510, 513-515 (Mo.App.1984). The Missouri Court of Appeals has recognized that the only express means by which a criminal defendant can seek relief based on such newly discovered evidence is by an application to the Governor of Missouri for executive clemency or pardon pursuant to the Missouri Constitution Article IV, § 7. Hamilton, 732 S.W.2d at 555 n. 2; Mooney, 670 S.W.2d at 513. See Whitaker v. State, 451 S.W.2d 11, 15 (Mo.1970); State v. Johnson, 286 S.W.2d 787, 796 (Mo.1956). In light of the above, the Missouri Court of Appeals has determined that, when a criminal defendant’s conviction is on direct appeal and when a criminal defendant has discovered new evidence after the time to file a Rule 29.11 motion has expired, the Missouri Court of Appeals may, either under the plain error doctrine or pursuant to its inherent power, remand the case to the trial court in order to permit the criminal defendant to file a new trial motion based upon the newly discovered evidence. Hamilton, 732 S.W.2d at 555; Mooney, 670 S.W.2d at 515. To date, the Missouri Court of Appeals has exercised this power to remand on the basis of newly discovered evidence only in cases which were on direct appeal of the criminal defendant’s conviction. The Missouri Court of Appeals never exercised this power to remand on the basis of newly discovered evidence in Rule 27.26 post-conviction proceedings (which, of course, occurred after the direct appeal had been completed). This Court concludes that, because Rule 27.26 was not available to obtain relief on the basis of newly discovered evidence, see Westmoreland v. State, 594 S.W.2d 596, 598 (Mo. banc 1980), the Missouri Court of Appeals would have concluded that, in a Rule 27.26 proceeding on appeal to the Missouri Court of Appeals, it did not have the power to remand the case to the trial court to permit the filing of a motion for new trial based upon new evidence discovered after the criminal defendant’s direct appeal had been completed (and, of course, after the time to file a Rule 29.11 new trial motion had expired). Because petitioner discovered his new evidence on November 24, 1986, during the course of his Rule 27.26 appeal and after his direct appeal had been completed, the Missouri Court of Appeals did not have the power to remand petitioner’s case to the trial court to permit petitioner to file a new trial motion on the basis of his newly discovered evidence. Thus, the Missouri Court of Appeals’ power to remand a case on direct appeal to the trial court to permit the filing of a new trial motion did not provide petitioner with a state remedy by which he could seek post-conviction relief on the basis of his new evidence discovered after his direct appeal was completed and during the course of his Rule 27.26 appeal. Based upon the foregoing, this Court concludes that, because petitioner discovered his new evidence after his direct appeal was completed, there are no Missouri state court procedures by which petitioner can present or could have presented his Habeas Ground D claim based upon newly discovered evidence to the Missouri courts and by which petitioner can seek or could have sought a new trial from the Missouri courts based upon his newly discovered evidence. Petitioner’s Habeas Ground D claim based upon newly discovered evidence thus presents the unusual situation where there is “an absence of available State [court] corrective process” for the claim. 28 U.S.C. § 2254(b). The only means by which petitioner could seek relief based upon his newly discovered evidence was by an application to the Governor of Missouri for executive clemency or pardon pursuant to the Missouri Constitution Article IV, § 7. Whitaker v. State, 451 S.W.2d 11, 14 (Mo.1970); State v. Mooney, 670 S.W.2d 510, 513 (Mo.App.1984). B. Do Petitioner’s Failure to Raise His Claim of Newly Discovered Evidence in a Timely Filed Motion for New Trial in the Trial Court and Petitioner’s Failure to Apply to the Governor of Missouri for Executive Clemency or Pardon Create Any Procedural Bars to this Court Considering Petitioner’s Habeas Grounds D and E on their Merits? First, petitioner discovered his new evidence after the time within which he could file a timely Rule 29.11 motion for new trial based upon newly discovered evidence had already expired. Therefore, as discussed in Section IV.A. above, Rule 29.-11 was not available to petitioner for him to file a new trial motion based upon his newly discovered evidence. Thus, petitioner’s failure to file in the trial court a timely motion for new trial based upon newly discovered evidence does not create any procedural bar to this Court considering petitioner’s Habeas Ground D on its merits. Second, in order for a federal court to consider on its merits a federal habeas corpus petitioner’s claim for relief, the habeas petitioner must first pursue and exhaust the state court remedies that are available to him for him to present the claim to the state courts. . 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 515-20, 102 S.Ct. 1198, 1201-04, 71 L.Ed.2d 379 (1982); Ex Parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886). It is clear from the language of § 2254(b) and from Rose v. Lundy that this exhaustion requirement requires exhaustion only of state court remedies. The exhaustion doctrine simply has no application whatsoever to, and does not require pursuit or exhaustion of, state executive clemency or pardon procedures. Thus, petitioner’s failure to apply to the Governor of Missouri for executive clemency or pardon does not render petitioner’s Habeas Grounds D and E unexhausted and does not make petitioner’s Amended Petition a mixed petition. See Smith v. State of Mississippi, 478 F.2d 88, 92 n. 6 (5th Cir.), cert. denied, 414 U.S. 1113, 94 S.Ct. 844, 38 L.Ed.2d 740 (1973). Third, a federal habeas corpus petitioner’s failure to properly pursue the state court remedies that were available for him to present his claim to the state courts (and which state court remedies he must exhaust because of the exhaustion doctrine) may result in a state procedural default which bars future state court consideration of the claim on its merits. Such a state procedural default may result in an adequate and independent state procedural ground barring federal court consideration of the claim on its merits. Wainwright v. Sykes, 433 U.S. 72, 80-83, 97 S.Ct. 2497, 2503-2504, 53 L.Ed.2d 594 (1977); Fay v. Noia, 372 U.S. 391, 399, 83 S.Ct. 822, 827, 9 L.Ed.2d 837 (1963). It is clear from Wainwright v. Sykes and Fay v. Noia that only a procedural default in a state court remedy can result in a procedural bar to federal court consideration of a habeas claim on its merits. The failure to pursue state executive clemency or pardon procedures cannot result in a procedural bar to federal court consideration of a habeas claim on its merits. Thus, petitioner’s failure to apply to the Governor of Missouri for executive clemency or pardon does not create any procedural bar to this Court considering petitioner’s Habeas Grounds D and E on their merits. Cf. Smith v. State of Mississippi, 478 F.2d 88, 92 n. 6 (5th Cir.), cert. denied, 414 U.S. 1113, 94 S.Ct. 844, 38 L.Ed.2d 740 (1973). Fourth, if this Court is incorrect in its conclusion in Section IV.A. above that the Missouri Court of Appeals did not have the power to remand petitioner’s case to the trial court in order to permit him to file a new trial motion based upon his newly discovered evidence, and if the Missouri Court of Appeals does in fact have that power such that a motion to remand directed to the Missouri Court of Appeals was a state remedy available to petitioner for him to present his claim based upon newly discovered evidence to the state courts, then petitioner clearly has exhausted Habeas Ground D by pursuing that available remedy by filing: his “Motion to Remand and etc.,” his “Motion for Leave to File Appellant’s Exhibits and etc.,” and his “Petition in Mandamus,” and petitioner clearly is not subject to any procedural bar with respect to that remedy. For the foregoing reasons, this Court concludes that there are no procedural bars to this Court considering petitioner’s Habeas Grounds D and E on their merits. C. Habeas Grounds D and E: Merits. 1. Habeas Ground D. Petitioner contends that due process mandates that he be granted a new trial based upon his newly discovered evidence, “Anita’s” proposed testimony. No Missouri court with the power to grant petitioner a new trial has considered petitioner’s argument. (See Section IV.A. above; but cf. Petitioner’s Exhibit E, pp. 111-125, pp. 126-128, p. 110, first item, pp. 69-82, and p. 68). In Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963), the Supreme Court stated that “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” The Eighth Circuit consistently has interpreted this statement to mean that newly discovered evidence generally is not a basis for federal habeas corpus relief, and that, for newly discovered evidence to warrant federal habeas corpus relief in the form of a new trial, the new evidence must be such that the new evidence “would probably produce an acquittal on retrial.” Mastrian v. McManus, 554 F.2d 813, 822-823 (8th Cir.), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977); accord Hall v. Lockhart, 806 F.2d 165, 168 (8th Cir.1986); Drake v. Wyrick, 640 F.2d 912, 913-914 (8th Cir.1981); Pruitt v. Housewright, 624 F.2d 851, 852 (8th Cir.1980). Cf. Walker v. Lockhart, 763 F.2d 942 (8th Cir. en banc 1985), cert. denied, — U.S. -, 106 S.Ct. 3332, 92 L.Ed.2d 738 (1986); but cf. id. at 962 (dissent). Likewise, because an evidentiary hearing is required in a federal habeas corpus proceeding only if “the petitioner’s allegations, if proven, would establish the right to his release,” Jensen v. Satran, 651 F.2d 605, 608 (8th Cir.1981), cert. denied, 460 U.S. 1007, 103 S.Ct. 1244, 75 L.Ed.2d 475 (1983), accord Edgemon v. Lockhart, 768 F.2d 252, 255 (8th Cir.1985), an evidentiary hearing on petitioner’s claim for relief based upon his newly discovered evidence is required only if petitioner’s newly discovered evidence, if proven, would “probably produce an acquittal on retrial.” Hall, 806 F.2d at 168; Pruitt, 624 F.2d at 852. Petitioner’s newly discovered evidence is the following: “Anita,” a 54 year old housewife from suburban St. Louis County who describes herself as a daily shopper at the West County Shopping Mall, arrived at the Mall early on the morning of October 23, 1980 (the day of the Pope’s Cafeteria murders), before the Mall opened, to return some shoes she had purchased the night before. She parked facing the Mall exit near Pope’s Cafeteria. She observed a whitewashed panel truck parked nearby. She observed two black men exit the Mall from the Mall exit near Pope’s Cafeteria. These men wore white coverall jumpsuits. The men appeared to be just finishing putting on the jumpsuits. One of the men carried a white sack. “Anita” spoke to the two men. The men identified themselves as painters and informed “Anita” that the Mall was closed. One of the men offered to let “Anita” into the Mall, but the other man indicated that they had to go. The two men drove away in the whitewashed panel truck. “Anita” has seen a picture of petitioner and can positively testify that petitioner was not one of the two men whom she encountered on the parking lot of the West County Shopping Mall early on the morning of October 23, 1980. (In addition, “Anita” is familiar with petitioner’s face because she saw him working at the Mall several weeks prior to the murders and had exchanged greetings with him at that time.) (See Petitioner’s Exhibit D; see also Petitioner’s Amended Petition Habeas Ground D at pp. 11-12; Petitioner’s Reply to Respondent’s Response at pp. 26-28). “Anita” has an explanation for the fact that she did not come forward with her evidence for six years. On November 24, 1986, “Anita” telephoned petitioner’s Rule 27.26 appellate attorney and gave the above account. (Id.) Petitioner contends that “Anita’s” proposed testimony entitles him to a new trial because her proposed testimony, based upon her own personal knowledge, exculpates petitioner and, if believed by a jury, “would probably produce an acquittal on retrial.” Mastrian, 554 F.2d at 823. Assuming that the events described by “Anita” occurred before 7:45 a.m., and assuming that a jury would find “Anita’s” proposed testimony to be credible and true despite the fact that she did not come forward with her evidence for six years, the Court concludes that “Anita’s” proposed testimony, when viewed in the context of the state’s evidence inculpating petitioner, would not “probably produce an acquittal on retrial.” Mastrian, 554 F.2d at 823. “Anita’s” proposed testimony does not conflict with the inculpatory evidence against petitioner. The truth of her proposed testimony is not inconsistent with the truth of the inculpatory evidence against petitioner or with petitioner’s guilt. The fact that petitioner was not one of two men dressed as painters leaving the Mall exit near Pope’s Cafeteria before 7:45 a.m. on October 23, 1980, does not mean that petitioner did not commit the robbery and murders at Pope’s Cafeteria that morning. Further, “Anita’s” proposed testimony that these two men left the Mall from the exit near Pope’s Cafeteria does not establish that these two men were in Pope’s Cafeteria or were involved in the murders. In addition, “Anita’s” proposed testimony does not establish that petitioner did not commit the murders at Pope’s Cafeteria either before or after the time that “Anita” was at the West County Shopping Mall. In sum, “Anita’s” proposed testimony does not appreciably undermine the probative strength of the state’s inculpatory evidence against petitioner and does not appreciably decrease the weight of the state’s case against petitioner. For these reasons, the Court concludes that “Anita’s” proposed testimony, even if believed by a jury, would not “probably produce an acquittal on retrial.” Mastrian, 554 F.2d at 823. The Court therefore concludes that petitioner is not entitled to a new trial based upon his newly discovered evidence, “Anita’s” proposed testimony, and that petitioner is not entitled to federal habeas corpus relief based upon that newly discovered evidence. Id. Likewise, the Court concludes that petitioner is not entitled to an evidentiary hearing on his claim for federal habeas corpus relief based upon that newly discovered evidence because, even if that evidence were believed by a jury, the evidence would not “probably produce an acquittal on retrial.” Hall, 806 F.2d at 168; Pruitt, 624 F.2d at 852. For the foregoing reasons, petitioner’s Amended Petition Habeas Ground D is denied on its merits. 2. Habeas Ground E. Petitioner contends that his Eighth Amendment rights have been violated because Missouri does not have a post-conviction court procedure by which he can file a motion in the nature of a motion for new trial based upon his newly discovered evidence, “Anita’s” proposed testimony. Because petitioner discovered his new evidence after his direct appeal was completed, Missouri does not have any post-conviction court procedure by which he can raise his claim of entitlement to a new trial. {See Section IV.A. above). No Missouri court has considered petitioner’s argument. “[TJhere is no federal constitutional requirement that the state provide a means of post-conviction review of state convictions.” Williams v. State of Missouri, 640 F.2d 140, 143 (8th Cir.), cert. denied, 451 U.S. 990, 101 S.Ct. 2328, 68 L.Ed.2d 849 (1981). The existence of state post-conviction court procedures is relevant only to determine if the federal habeas corpus petitioner has exhausted his state remedies or has committed a state procedural default. Id. Therefore, petitioner’s argument that he has been denied federal constitutional rights due to the fact that Missouri does not have a post-conviction court procedure by which he can raise his claim of entitlement to a new trial is without merit. For the foregoing reasons, petitioner’s Amended Petition Habeas Ground E is denied on its merits. V. Habeas Grounds A, C, F, G, H, I, J, K, L, N, O, P, R, and S: Merits. Petitioner’s Habeas Grounds G, H, I, J, K, L, N, 0, P, and S are substantive claims relating to his trial and sentencing. The Court will address these claims first. Petitioner’s Habeas Grounds A, C, and F are ineffective assistance of trial counsel claims. The Court will address these claims thereafter. Petitioner’s Habeas Ground R is a claim that the cumulative effect of all his other Habeas Grounds was to deny him various constitutional rights. The Court will address this claim last. A. Habeas Grounds G, H, I, J, K, L, N, 0, P, and S. 1. Habeas Ground G. Petitioner contends that he was denied his Sixth Amendment right to a fair and impartial jury selected from a fair cross-section of his peers because the jury was “death qualified” or “Witherspooned” in that the two jurors opposed to the death penalty were struck for cause. On direct appeal, the Missouri Supreme Court considered and rejected petitioner’s argument. State v. Byrd, 676 S.W.2d at 499. Both veniremen were struck because they stated that they could not impose the death penalty under any circumstances. (Respondent’s Exhibit A, Trial Transcript [hereinafter “Tr.Tr.”] Yol. I: Venireman Guadi, p. 65, 1. 24 through p. 68, 1. 6; Venireman Hudson, p. 69, 1. 8 through p. 70, 1. 21). Therefore, both veniremen were “Wither-spoon excludibles” and petitioner’s Habeas Ground G is without merit. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L. Ed.2d 137 (1986); Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). For the foregoing reasons, petitioner’s Amended Petition Habeas Ground G is denied on its merits. 2. Habeas Ground H. Petitioner contends that he was denied his Fourteenth Amendment due process rights and his Eighth Amendment right not to be subjected to cruel and unusual punishments because in Missouri the death penalty is sought and inflicted disproportionately against blacks. Petitioner is black. On direct appeal, the Missouri Supreme Court considered and rejected petitioner’s argument. State v. Byrd, 676 S.W.2d at 505-506. Because petitioner’s contention could not prove that “the decisionmakers in his case acted with discriminatory purpose” and could not prove that the death penalty was disproportionate to his crime, petitioner’s Habeas Ground H is without merit. McCleskey v. Kemp, — U.S. -, 107 S.Ct. 1756, 1766, 1774, 95 L.Ed.2d 262 (1987) (emphasis in original). For the foregoing reasons, petitioner’s Amended Petition Habeas Ground H is denied on its merits. 3. Habeas Ground I. Petitioner contends that he was denied his Sixth and Fourteenth Amendment rights to an impartial jury because the trial court denied his request for sequestered individual voir dire regarding death qualification and pretrial publicity. The voir dire was conducted in panels of twelve. With respect to pretrial publicity, petitioner contends that, as a result of the group voir dire, veniremen heard prejudicial remarks made by other veniremen. On direct appeal, the Missouri Supreme Court considered and rejected petitioner’s argument. State v. Byrd, 676 S.W.2d at 499-500. First, sequestered individual death qualifying voir dire is not constitutionally dictated. The death qualifying voir dire may be conducted in groups, and the fact that it is conducted in groups does not, without more, result in an impartial jury. Trujillo v. Sullivan, 815 F.2d 597, 606-607 (10th Cir.), cert. denied, — U.S.-, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); McCorquodale v. Balkcom, 721 F.2d 1493, 1495-1496 (11th Cir.1983), cert. denied, 466 U.S. 954, 104 S.Ct. 2161, 80 L.Ed.2d 546 (1984); see Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (Upholding death penalty based upon a death qualified jury where individual jurors were death qualified in the presence of the other jurors. 477 U.S. at 176-178, 106 S.Ct. at 2469-71.) Further, assuming that group voir dire death qualification does result in a more “conviction-prone” jury, that fact would not mean that petitioner was denied his right to a jury selected from a fair cross-section of the community, Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 1764-1766, 90 L.Ed.2d 137 (1986), or his right to an impartial jury. Id. 106 S.Ct. at 1767-1770. Second, the trial court did deny petitioner’s request that all aspects of the voir dire regarding pretrial publicity be sequestered individual voir dire. Instead, the trial court decided that the voir dire regarding pretrial publicity would be conducted as follows: general questions regarding pretrial publicity would be posed to the prospective jurors in groups of twelve and then, at a sidebar conference out of the hearing of the other members of the group of twelve, more specific questions regarding pretrial publicity would be posed to specific individual prospective jurors who indicated familiarity with pretrial publicity. (Tr.Tr. Vol. I: p. 12, 11. 13-21). Such private sidebar conference voir dire was held for many prospective jurors. Thus, as a general rule, the trial court did hold sequestered individual voir dire for those prospective jurors who did indicate familiarity with pretrial publicity. However, one prospective juror, in response to a voir dire question regarding pretrial publicity posed by petitioner’s attorney, indicated in the presence of his entire group of twelve that he had heard a news report that petitioner had been arrested in Georgia on an unrelated murder charge. (Id. at p. 149, 11. 11-17). The trial court concluded that petitioner’s attorney had invited the remark by asking a question which probed too much and therefore the trial court overruled petitioner’s motion to discharge the jury. (Id. at p. 151, 11. 24-25 and p. 152, 1. 24). The Missouri Supreme Court agreed that petitioner’s attorney had invited the remark and thus could not complain. In addition, the Missouri Supreme Court concluded that actual prejudice — a jury influenced by or made impartial by the remark — could not result from this single isolated remark. State v. Byrd, 676 S.W.2d at 500. The conclusion by the Missouri Supreme Court that the jury could not have been prejudicially influenced by the remark was a factual determination that the voir dire had not resulted in an impartial jury. This factual determination is entitled to the 28 U.S.C. § 2254(d) presumption of correctness. Patton v. Yount, 467 U.S. 1025, 1036-1038, 104 S.Ct. 2885, 2891-2892, 81 L.Ed.2d 847 (1984) (whether voir dire results in an impartial jury is a question of fact entitled to the § 2254(d) presumption of correctness); Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981) (factual determination by appellate court entitled to the § 2254(d) presumption of correctness); Simmons v. Lockhart, 814 F.2d 504, 511 (8th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1489, 99 L.Ed.2d 717 (1988). Because there is fair support in the record for the Missouri Supreme Court’s finding of fact that the voir dire did not result in an impartial jury and because petitioner has not otherwise overcome the presumption of correctness which attaches to that factual determination, see 28 U.S.C. § 2254(d)(8), the trial court’s denial of petitioner’s request that all aspects of the voir dire regarding pretrial publicity be sequestered individual voir dire did not deny petitioner his Sixth and Fourteenth Amendment rights to an impartial jury. 28 U.S.C. § 2254(d). For the foregoing reasons, petitioner’s Amended Petition Habeas Ground I is denied on its merits. 4. Habeas Ground J. Petitioner contends that he was denied various constitutional rights because the state called his second wife, Saundra Yvonne Byrd (hereinafter “Mrs. Byrd”), to testify as a witness for the state and then interrogated her as a hostile witness with leading questions and then impeached her testimony. On direct appeal, the Missouri Supreme Court considered and rejected petitioner’s argument. State v. Byrd, 676 S.W.2d at 502-503. First, with respect to the trial court’s decision to permit the state to interrogate Mrs. Byrd as a hostile witness with leading questions, this was a procedural or evidentiary ruling concerning the proper method for presentation of proof. Because federal habeas corpus relief is available only if a person is “in custody in violation of the Constitution or laws or treaties of the United States,” 28 U.S.C. § 2254(a), petitioner is entitled to federal habeas corpus relief on the basis of that ruling only if the ruling was erroneous under state law and resulted in a denial of due process. Wood v. Lockhart, 809 F.2d 457, 459-460 (8th Cir.1987); Maggitt v. Wyrick, 533 F.2d 383, 385 (8th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976). The trial court’s decision to permit the state to interrogate Mrs. Byrd as a hostile witness with leading questions was based upon an implied factual determination that the state had established sufficient hostility under state law to permit the state to so interrogate her. (Tr.Tr. Vol. II: p. 410, 1. 24 through p. 413, 1. 2). In addition, the Missouri Supreme Court explicitly found that the state had established sufficient hostility to permit the state to interrogate Mrs. Byrd as a hostile witness with leading questions. State v. Byrd, 676 S.W.2d at 503. Because these factual determinations are fairly supported by the record (Tr.Tr. Vol. II, p. 407, 1. 16 through p. 410, 1. 23), see 28 U.S.C. § 2254(d)(8), and because petitioner has otherwise failed to overcome the presumption of correctness, petitioner has failed to establish any error in the trial court’s decision. Further, to the extent there was error, petitioner has failed to show that the error resulted in a denial of due process. Wood v. Lockhart, 809 F.2d 457, 460 (8th Cir.1987). Second, with respect to impeachment, petitioner is complaining that the trial court permitted the state to impeach Mrs. Byrd, its own witness, by playing a tape recording of a prior statement made by Mrs. Byrd to the police. There is no constitutional bar to a party impeaching its own witness, see Fed.R.Evid. 607, and, in fact, the Constitution requires that a criminal defendant be permitted to impeach his own witnesses. Chambers v. Mississippi, 410 U.S. 284, 298, 93 S.Ct. 1038, 1047, 35 L.Ed.2d 297 (1973). Thus, the trial court’s decision to permit the state to impeach its own witness is a mere state law evidentiary ruling. Because federal habeas corpus relief is available only if a person is “in custody in violation of the Constitution or laws or treaties of the United States,” 28 U.S.C. § 2254(a), petitioner is entitled to federal habeas corpus relief on the basis of this impeachment ruling only if the ruling was erroneous under state law and resulted in a denial of due process. Wood v. Lockhart, 809 F.2d 457, 459-460 (8th Cir. 1987); Maggitt v. Wyrick, 533 F.2d 383, 385 (8th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976). Under Missouri law in effect at the time of petitioner’s trial, for the state to impeach one of its own witnesses at a criminal trial, the witness had to be hostile and (1) “the witness must, by reason of answers which are inconsistent with previous statements, surprise the party propounding the questions,” and (2) “the answers as given must state facts which in effect make the witness a witness for the other side.” State v. Byrd, 676 S.W.2d at 502, relying upon, State v. Ambruster, 641 S.W.2d 763, 767 (Mo.1982). Mrs. Byrd testified as follows: petitioner did not tell Mrs. Byrd that he had killed three people in St. Louis to be with her and their baby (Tr.Tr. Vol. II: p. 419, 1. 19 through p. 420, 1. 13); she did talk to the Police about petitioner (Id. at p. 420, 1. 14 through p. 421, 1. 5); she did not tell the Police that petitioner had told her that he had killed three people in St. Louis to be with her and their baby (Id. at p. 421, 1. 8 through p. 422,1. 14); she might be able to recognize a tape recording of her statement to the police {Id. at p. 422, 11. 18-21). The state then played a tape recording on which Mrs. Byrd stated that petitioner told her that he killed three people in St. Louis to be with her and their baby. {Id. at p. 424, 1. 8 through p. 425, 1. 7). Mrs. Byrd then testified that it was her voice speaking on the tape, but she didn’t say what was on the tape. {Id. at p. 425, 11. 8-19). The trial court ruled that the playing of the tape was proper impeachment by a prior inconsistent statement of Mrs. Byrd’s trial testimony that she had not told the Police that petitioner had told her that he had killed three people in St. Louis to be with her and their baby. {Id. at p. 423,1. 23 and p. 426, 11. 18-19). See State v. Byrd, 676 S.W.2d at 502. The Missouri Supreme Court concluded that the state had satisfied the requirements for impeaching Mrs. Byrd, its own witness, by her prior inconsistent statement. In reaching that conclusion, the Court made the factual determination that Mrs. Byrd’s testimony prior to impeachment was “contrary to the prosecutor’s legitimate anticipation.” 676 S.W.2d at 503. Petitioner takes issue with this factual determination of surprise. This factual determination is entitled to the 28 U.S.C. § 2254(d) presumption of correctness unless it is not fairly supported by the record. See 28 U.S.C. § 2254(d). As petitioner points out, petitioner’s trial attorney specifically advised the Court and the state that Mrs. Byrd had previously told the state that she had not made the statement to the Police (Tr.Tr. Vol. II: p. 402,11. 13-17), and that Mrs. Byrd would now testify that she never made the statement. {Id. at p. 402, 11. 24-25). {See also Tr.Tr. Vol. Ill: pp. 1027-1030 & pp. 1038-1039 [Sgt. Wedlock] ). However, the state legitimately expected Mrs. Byrd to testify truthfully and would not expect Mrs. Byrd to perjure herself by denying that she made the statement to the Police. Thus, it is a close question whether the Missouri Supreme Court’s factual determination of surprise is fairly supported by the record. Without definitively deciding the question, the Court will assume for the purposes of this opinion that the state was not surprised when Mrs. Byrd denied making the statement to the Police. If the state was not surprised by Mrs. Byrd’s denial, then it was an erroneous evidentiary ruling under Missouri law for the trial court to permit the state to impeach Mrs. Byrd, its own witness, with her prior inconsistent statement. State v. Ambruster, 641 S.W.2d at 767. As stated above, if the trial court did err under state law, such an erroneous state law evidentiary ruling is grounds for federal habeas corpus relief only if the error resulted in a denial of due process. Wood v. Lockhart, 809 F.2d 457, 459-460 (8th Cir.1987). Petitioner fails to meet this standard. The state’s impeachment of its own witness without first being surprised does not of itself raise any due process problems or cause any fundamental unfairness. United States v. Fay, 668 F.2d 375, 379 (8th Cir.1981); United States v. Dennis, 625 F.2d 782, 795 (8th Cir.1980); United States v. Long Soldier, 562 F.2d 601, 605 (8th Cir.1977); Fed.R.Evid. 607. Yet, courts have recognized that, because an unsworn prior inconsistent statement is hearsay inadmissible as substantive evidence, the state’s impeachment of its own witness with a prior inconsistent hearsay statement may be a subterfuge by the state to present the inadmissible evidence to the jury as substantive evidence. See United States v. Fay, 668 F.2d at 379; United States v. Long Soldier, 562 F.2d at 605. Such a use of impeachment with a prior inconsistent hearsay statement could be conspicuously prejudicial to a defendant and could cause the trial to be fundamentally unfair. In the instant case, assuming that the state was not surprised by Mrs. Byrd’s testimony, it is possible that the state impeached Mrs. Byrd with her prior inconsistent hearsay statement for the purpose of presenting that statement to the jury as substantive evidence. However, assuming that this was the state’s purpose, petitioner cannot show any conspicuous prejudice or fundamental unfairness resulting therefrom because, as the Missouri Supreme Court noted, State v. Byrd, 676 S.W.2d at 503, Mrs. Byrd later did affirmatively testify that petitioner had told her that he had killed some people to be with her and their baby in Georgia. (Tr.Tr. Vol. II: p. 702, 1. 18 through p. 704, 1. 17 and p. 708, 11. 12-20). Mrs. Byrd’s later testimony cured any prejudice which might have resulted from the state’s prior impeachment of her. Therefore, petitioner has not shown that, if the trial court erred in permitting the state to impeach Mrs. Byrd, its own witness, such error resulted in a denial of due process. Wood v. Lockhart, 809 F.2d at 466. For the foregoing reasons, petitioner’s Amended Petition Habeas Ground J is denied on its merits. 5. Habeas Ground K. Petitioner contends that he was denied various constitutional rights because the state was permitted to recall Mrs. Byrd as a witness after the state charged her with peijury in or