Full opinion text
MEMORANDUM AND ORDER LIMBAUGH, District Judge. This matter is before the Court on Petitioner Schneider’s First Amended Petition for Writ of Habeas Corpus, filed October 11, 1991. The State of Missouri filed its amended response on December 20,1991. On February 14,1992 petitioner filed his reply to the State’s amended response. On October 30, 1985 a jury in the Circuit Court of Jefferson County convicted petitioner of the capital murders of Ronald Thompson and Richard Schwendemann. The jury recommended a sentence of death for the murder convictions. On December 4, 1985 Judge John L. Anderson sentenced petitioner to death. Petitioner filed a motion for a new trial which the trial court denied. The Missouri Supreme Court affirmed the convictions and death sentence on direct appeal. State v. Schneider, 736 S.W.2d 392 (Mo.1987). On February 4, 1988 petitioner filed a pro se Rule 29.15 motion for post-conviction relief. The sentencing court appointed counsel to represent him and appointed counsel filed an amended Rule 29.15 motion. After holding evidentiary hearings on August 24, 1988 and January 6,1989, the court denied the amended Rule 29.15 motion. Petitioner appealed the denial of his amended Rule 29.15 motion. On April 17, 1990 the Missouri Supreme Court denied the appeal, and shortly thereafter, denied petitioner’s motion for rehearing. Schneider v. State, 787 S.W.2d 718 (Mo.1990). On October 1, 1990 the United States Supreme Court denied petitioner’s Writ of Cer-tiorari. On October 16, 1990 petitioner filed his Rule 91 state petition for writ of habeas corpus. That same day the Missouri Supreme Court denied his Rule 91 state petition for writ of habeas corpus. It further set an execution date for October 18, 1990. On October 17, 1990 petitioner filed a motion for stay of execution with this Court, his original petition for writ of habeas corpus, and a motion for appointment of counsel. On October 17,1990 this Court entered its order staying the execution date of October 18, 1990 and appointing counsel for petitioner. Appointed counsel then proceeded to file the instant amended petition for writ of habeas corpus. Petitioner has alleged twenty-five (25) grounds of error which he believes support his claim for federal habeas corpus relief. Ground III, alleging ineffective assistance of trial counsel at both the guilt phase and sentencing phase of trial, lists thirty-six (36) separate instances of ineffective assistance of trial counsel. The circumstances of the murders for which Mr. Schneider was convicted are discussed in detail by the Missouri Supreme Court in State v. Schneider, 736 S.W.2d 392 (Mo.1987) and will not be reiterated in this memorandum, except when necessary to support a finding or conclusion reached by this Court. Other than the parties’ pleadings, the Court has for review various State exhibits, including but not limited to, the trial transcript (Volumes I-V), preliminary hearing transcript, deposition of David Morgan (one of petitioner’s two co-defendants), briefs regarding the direct appeal, transcript of the amended Rule 29.15 eviden-tiary hearings, briefs regarding the appeal of the denial of the amended Rule 29.15, certified copies of the Missouri Supreme Court’s decisions regarding this case, and xerox copies of photographs of the victims. Also submitted for the Court’s consideration are petitioner’s exhibits 1-10 consisting primarily of the affidavits of his post-conviction counsel, affidavits and psychiatric exam findings of Dr. A.E. Daniel, and affidavits of various family members of the petitioner. Petitioner seeks to expand the record pursuant to Rule 7(a)-(c) of the Rules Governing Section 2254 Cases. As will be elaborated further in this memorandum, the majority of the petitioner’s grounds for federal habeas relief are procedurally barred; the remaining grounds can be sufficiently reviewed based upon the record that was presented to the state courts. Since these documents were not part of the state court record, and the petitioner has not offered any reason as to why these documents were not made a part of the state court record, this Court will not engage in further factfinding based upon an expanded record presented to this Court. See, Bolder v. Armontrout, 921 F.2d 1359, 1364 (8th Cir.1990); Byrd v. Armontrout, 686 F.Supp. 743, 778 (E.D.Mo.1988), aff'd 880 F.2d 1 (8th Cir.1989) [referred to in Byrd v. Delo, 942 F.2d 1226, 1230 (8th Cir.1991) (consideration of petitioner’s third petition for writ of habeas corpus and denying same) ]. Similarly, petitioner’s request that he be granted an evidentiary hearing and time to conduct further discovery will be denied. The Court has carefully reviewed the pleadings, the trial and evidentiary hearings transcripts, and the state courts decisions regarding this case. Upon review of these documents the Court finds that the record as it now exists is adequate and that no evidentia-ry hearing or further discovery is required. See, 28 U.S.C. § 2254, Rules 6 and 8(a). Procedural Bar to Petitioner’s Claims The State contends that a majority of the petitioner’s grounds for federal habeas relief are procedurally defaulted because he did not adequately present them to the Missouri state courts. Federal habeas review is barred when a state court has not decided a federal claim on the merits because the petitioner violated a state procedural law. In such cases, the state judgment rests on independent and adequate state procedural grounds. Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 81, 87, 97 S.Ct. 2497, 2503-04, 2506-07, 53 L.Ed.2d 594 (1977). Before a petitioner can bring a § 2254 action, he must have presented the same legal theories and factual bases to the state courts. Forest v. Delo, 52 F.3d 716 (8th Cir.1995); Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.1995); Battle v. Delo, 19 F.3d 1547, 1552 (8th Cir.1994) citing Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982). In order for a § 2254 petitioner to avoid default, Missouri post-conviction procedure mandates that each and every claim be presented “at each step of the judicial process”. Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir.1994); Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir.1994) quoting Benson v. State, 611 S.W.2d 538, 541 (Mo.App.1980). Claims not presented in the state courts through post-conviction relief procedures are procedurally barred unless the petitioner can demonstrate both cause for the procedural default and actual prejudice resulting from the default; or can show that failure to consider the claims will result in a fundamental miscarriage of justice because petitioner has evidence of his “actual innocence”. Schlup v. Delo, — U.S.-, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Sawyer v. Whitley, — U.S.-,-, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2564-65; Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Schleeper, at 737; Battle v. Delo, at 1552. Schneider contends that his claims are not procedurally barred pursuant to Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) because the Missouri Supreme Court in ruling upon his Rule 91 state habeas petition did not “clearly and expressly” state that its denial of the petition was due to procedural default; i.e. its “unexplained ruling” should be considered a ruling on the merits of the claims contained in the petition. In the alternative, Schneider argues that even if his claims (or a majority of them) are procedurally barred, he can demonstrate “cause and actual prejudice” warranting this Court’s review of his claims. In order to establish cause, petitioner must show that some objective factor external to the defense impeded his counsel or his efforts to comply with the state procedural requirements. Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2564-65; Murray v. Carrier, 477 U.S. at 492, 106 S.Ct. at 2647-48. Examples of such “cause” are 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”. Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645. Plaintiff consistently argues that even if this Court considers his claims procedurally barred, he has met the “cause” test by the ineffective assistance of his direct appeal counsel, Rule 29.15 post-conviction relief counsel, and Rule 29.15 motion appellate counsel. He argues that the ineffective assistance of his post-conviction counsel for failing to raise his claims on direct appeal, or in his Rule 29.15 motion, or in his appeal of the denial of his 29.15 motion, constitutes “cause” and that the fact that his death sentences have been upheld constitutes “actual prejudice”. For reasons which will be set forth when addressing the individual claims, plaintiff has failed to show “cause” for his procedural defaults. Petitioner’s argument that the filing of his Rule 91 state habeas petition and the Missouri Supreme Court’s denial of same excuses his procedural default is meritless. Petitioner contends that, pursuant to Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), the Missouri Supreme Court’s unexplained denial of his Rule 91 state habeas petition constituted a decision on the merits that lifted any procedural bar. In Harris v. Reed, supra, the Supreme Court stated “[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the ease clearly and expressly states that its judgment rests on a state procedural bar.” Id., 489 U.S. at 263. However, the Supreme Court clarified the Harris “plain statement rule” in Coleman v. Thompson, supra. The Court explained: In habeas, if the decision of the last state court to which the petitioner presented his federal claims fairly appeared to rest primarily on resolution of those claims, or to be interwoven with those claims, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition. Id., 501 U.S. at 735, 111 S.Ct. at 2557. In petitioner’s case, the Missouri Supreme Court denied his Rule 91 petition the same day it was filed. In a single sentence, the Court ruled: Now at this day, on consideration of the petition for writ of habeas corpus herein to the said respondent, it is ordered by the court here that the said petition be, and the same is hereby denied. State’s Exhibit P. In Byrd v. Delo, 942 F.2d 1226 (8th Cir.1991), the Eighth Circuit Court of Appeals addressed the same situation that exists in the instant case. In Byrd v. Delo, supra, the Missouri Supreme Court denied Byrd’s Rule 91 petition using the exact same language as it did in denying Schneider’s Rule 91 petition. Not only was the language the same, but the Court had denied Byrd’s petition also on the same day it was filed. The Eighth Circuit Court of Appeals found that “[t]he order of the Supreme Court of Missouri denying his Rule 91 habeas petition is simply silent as to the underlying grounds and reasons. It does not ‘fairly appear! ] to rest primarily on federal law, or to be interwoven with the federal law ... ’ The Harris presumption that federal law was the basis of a state court’s decision is therefore inapplicable.” Byrd v. Delo, at 1231. The Missouri Supreme Court’s language, coupled with the fact that the petition was denied the same day it was filed, indicated to the Eighth Circuit Court of Appeals that “the ground of rejection was not an examination of the merits of the petition, which surely would have taken more time, but rather the application of a procedural rule believed by the Missouri Supreme Court to be plain and obvious”; said rule being that a Rule 91 petition cannot be used to raise claims that should have been raised on direct appeal or in a Rule 29.15 (or its predecessor, Rule 27.26) proceeding. Id., at 1231-32; see also, Jolly v. Gammon, 28 F.3d 51 (8th Cir.1994) (application of Coleman to unexplained denial of motion to recall the mandate and finding such a denial does not open up the merits of previously defaulted claims). In light of the afore-stated findings, the Court will now address each of the petitioner’s twenty-five (25) claims supporting his petition for federal habeas relief. I. Trial Court erred in excluding certain mitigating evidence during sentencing phase of trial A. Exclusion of photographs of petitioner as a child Petitioner contends that the trial court erred in excluding photographs of the petitioner as a child which the petitioner attempted to offer as mitigating evidence during the sentencing phase of his trial. This claim was not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court’s denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Foster v. Delo, 39 F.3d 873, 880 (8th Cir.1994); Byrd v. Delo, supra. Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his direct appeal counsel was ineffective when counsel failed to raise this claim before the Missouri Supreme Court. Schneider’s argument that the ineffectiveness of his direct appeal counsel constitutes “cause” sufficient to overcome the procedural default fails because it is well-established that there is no constitutional right to counsel in state post-conviction proceedings. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir.1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra. “Where there is no constitutional right to counsel there can be no constitutional right to effective assistance of counsel.” Pollard v. Delo, 28 F.3d at 888 citing Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982); Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir.1992). Thus, post-conviction counsel’s failure to raise a claim cannot constitute cause for purposes of overcoming a procedural default. Coleman v. Thompson, 501 U.S. at 753-55, 111 S.Ct. at 2566-68; Jolly v. Gammon, at 54. Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced. However, the Court does note that although the photographs of the petitioner were not admitted, his mother did testify to the petitioner’s life as a child. Given his mother’s testimony, the Court does not believe that the petitioner was actually prejudiced by the trial court’s ruling so as to infect the entire trial with error. B. Exclusion of evidence of co-defendant David Morgan’s plea agreement with the State during sentencing phase of the trial Petitioner argues that the trial court erred in precluding him from presenting evidence of co-defendant David Morgan’s plea agreement with the State. He contends that the plea agreement was a relevant “mitigating circumstance” which the jury should have been allowed to hear and consider. Schneider presented this claim to the Missouri Supreme Court on direct appeal; it rejected the claim finding that exclusion of evidence of the plea agreement did not violate Missouri law or petitioner’s constitutional rights under the Eighth and Fourteenth Amendments. Schneider v. State, 736 S.W.2d 392, 395-397 (Mo.1987). Under the terms of his plea agreement, Morgan was to plead guilty to two counts of felony murder, and to “testify truthfully” if he was called as a witness. In exchange the State agreed to recommend that Morgan be sentenced to concurrent thirty (30) year terms of imprisonment on the felony murder counts and to dismiss the other pending charges, including two counts of capital murder. Schneider v. State, 736 S.W.2d at 396. Although both the State and petitioner endorsed Morgan as a witness at petitioner’s trial, neither elected to call him as a witness. The State filed a motion in limine to prohibit any reference to Morgan’s plea agreement; the trial court sustained the motion. Schneider v. State, 736 S.W.2d at 396. When petitioner attempted to introduce evidence of the plea agreement at the penalty phase of his trial, the trial court denied the offer of proof and ordered both sides to desist from mentioning the plea agreement. Id., at 396. Under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1976), a defendant should not be precluded from introducing mitigating evidence which is relevant to the “defendant’s character, prior record, or the circumstances of his offense.” Id., 438 U.S. at 604-05, 98 S.Ct. at 2965. This constitutional categorizing of acceptable mitigating evidence is embodied in Missouri statute § 565.032.3 which provides that a jury shall consider (in addition to other factors specified in the statute), [a]ny mitigating or aggravating circumstances otherwise authorized by law and supported by the evidence and requested by a party including any aspect of the defendant’s character, the record of any prior criminal convictions, and pleas and findings of guilty and admissions of guilt of any crime or pleas of nolo contendré of the defendant^] The Missouri Supreme Court considered the language of Lockett v. Ohio, supra and § 565.032.3 R.S.Mo. and determined that the evidence pertaining to Morgan’s plea agreement was not relevant, and that the trial court had not abused its discretion in prohibiting this evidence. Schneider v. State, 736 S.W.2d at 396-97. The admissibility of evidence in a state trial is a matter of state law. Clark v. Groose, 16 F.3d 960, 963 (8th Cir.1994) citing Glaze v. Redman, 986 F.2d 1192, 1195 (8th Cir.1993); Schneider v. Erickson, 7 F.3d 760, 762 (8th Cir.1993). Ordinarily a federal court, in reviewing a federal habeas claim predicated on state law, is bound by the state court’s interpretation of state law. Clark v. Groose, at 963. However, a federal court may grant habeas relief when a state court’s evidentiary ruling “infringes upon a specific constitutional protection or is so prejudicial that it amounts to a denial of due process.” Clark v. Groose, at 963 quoting Turner v. Armontrout, 845 F.2d 165 (8th Cir.1988). After reviewing the facts of this case and the Missouri Supreme Court’s ruling, this Court finds that the trial court did not err in prohibiting the petitioner from introducing evidence of the plea agreement and that neither the trial court nor the Missouri Supreme Court’s evidentiary ruling infringed upon a specific constitutional protection or amounted to a denial of due process. Morgan’s plea agreement did not pertain to the defendant’s character nor to his prior record. Although Morgan was a co-defendant and his activities in the crime were relevant to the “circumstances of the offense”, his plea agreement only pertained to Morgan’s sentencing situation. The fact that he had entered into a plea agreement would only have been relevant if he had testified at trial; it certainly would have been permissible for petitioner to use the plea agreement to impeach Morgan’s credibility on cross-examination. However, since Morgan did not testify, evidence of the plea agreement was not relevant pursuant to Lockett v. Ohio, supra or § 565.032.3 R.S.Mo. Furthermore, petitioner’s argument that the jury should have considered evidence of the plea agreement in order to conduct a proportionality review is totally meritless. Under Missouri law, it is the Missouri Supreme Court which conducts the proportionality review, not the jury. § 565.035.3(3) R.S.Mo. Missouri law clearly imposes a duty upon the jury to view each capital case individually on its merits as well as the responsibility of the individual defendant. State v. Shaw, 636 S.W.2d 667, 675 (Mo.1982). The trial court did not abuse its discretion is prohibiting the introduction of Morgan’s plea agreement. Claim 1(b) will be denied as grounds for federal habeas relief. II. Trial Court erred in striking eight (8) veniremen for cause, thereby creating a death-prone jury Petitioner argues that the trial court improperly created a “death-prone” jury by striking veniremembers Phegley, Sharpe, Arnhardt, Barreca, Lowen, Roesh, Smith and Rutherford for cause. This claim was not raised in a motion for new trial or on direct appeal; consequently, it is procedurally defaulted. Nave v. Delo, 22 F.3d 802, 808 (8th Cir.1994) citing Smith v. Groose, 998 F.2d 1439, 1441 (8th Cir.1993) (“The failure to satisfy state procedural requirements serves as an adequate and independent state procedural bar to review.”). Petitioner attempts to avoid the procedural bar by alleging that “cause” for his procedural default is that his appeal counsel was ineffective for failing to raise this claim on appeal to the Missouri Supreme Court. Schneider’s argument that the ineffectiveness of his direct appeal counsel constitutes “cause” sufficient to overcome the procedural default fails because absent a constitutional right to post-conviction counsel, attorney error cannot provide cause to overcome a procedural bar. Coleman v. Thompson, supra; Foster v. Delo, 39 F.3d 873, 877 (8th Cir.1994); Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994); Jolly v. Gammon, supra. Since petitioner has failed to establish cause, the Court need not consider whether he was actually prejudiced. Even if this claim were not procedurally barred, it fails to provide a ground for federal habeas relief. A defendant in a criminal case has a constitutional right to an impartial jury. Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986). In a capital murder case, a venireperson may be excused for cause because his or her views on capital punishment would “prevent or substantially impair the performance of his [her] duties as a juror in accordance with his [her] instructions.” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). Consequently, a venireperson may be excused for cause if his or her personal beliefs or views would prevent or substantially impair that venireperson from objectively listening to the evidence, abiding by the law, following the trial court’s instructions, and considering the imposition of either a death sentence or a life sentence. Under Missouri law, a juror must be able to consider both sentences. State v. Murray, 744 S.W.2d 762, 768 (Mo.1988); State v. Smith, 649 S.W.2d 417, 425 (Mo.1983). A review of the merits of this claim requires the Court to examine the state court record. Whatever findings of fact the state court made are entitled to a presumption of correctness and will not be disturbed if they are fairly supported by the record. Forest v. Delo, 52 F.3d 716, 720-21 (8th Cir.1995); Murray v. Delo, 34 F.3d 1367, 1377 (8th Cir.1994). The impartiality of a juror is a question of fact entitled to this presumption of correctness. Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984); Murray v. Delo, at 1377. The Court has reviewed portions of the trial transcript pertaining to these jurors and finds that these jurors did voice opinions or views which reasonably indicated an inability to participate in sentencing in an impartial manner. Trial Transcript, Vols. I and II, pgs. 279-781. The Court finds that the trial court did not abuse its discretion in striking these jurors for cause. Trial Transcript, pgs. 773, 780. III. Ineffective assistance of trial counsel during both the guilt phase and sentencing phase of trial A. Failure to cite caselaw in motion to suppress Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court’s denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra. Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the “ineffectiveness” of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965. B. Failure to investigate mental illness defenses Both the State and the petitioner aver that this claim has been exhausted because it was raised in petitioner’s 29.15 motion, the appeal of the denial of said motion, and in petitioner’s Rule 91 state habeas petition. After reviewing the state court record, this Court finds that this claim, as raised in the present federal habeas petition, was never presented to the state courts. In his amended 29.15 motion, petitioner claimed that trial counsel was ineffective because he “failed to secure a psychiatric examination for defendant or to explore the possibility of a psychiatric defense in spite of evidence that defendant may suffer from a mental disease or defect precluding responsibility.” State’s Exhibit J — Legal File; First Amended Motion for Correction of Sentence pursuant to Rule 29.15 Missouri Supreme Court Rules, pg. 76. The motion court held two evidentiary hearings on the amended Rule 29.15 motion. It is clear from the motion court’s order denying the motion that it addressed the claim as one of failing to secure a psychiatric examination. The motion court stated: Petitioner contends that he was denied effective assistance of counsel by trial counsel’s failure to obtain a psychiatric examination of the Defendant. Movant adduced relevant evidence at the hearing on this motion from both trial counsel and A.E. Daniel, M.D., his chosen psychiatrist. Trial counsel, who himself has a B.A. in psychology, indicated he had considered the possibility of a psychological examination upon the Defendant, but had ruled it out. Counsel saw no indication of a mental disease or defect, nor saw any history of such in his interviews with the movant’s family. More importantly, an examination under Chapter 552 performed in January of 1983 indicated no mental defect. Counsel testified that he has a policy of not permitting a client to discuss the case with third parties without a good reason for doing so. With no indication for the efficacy of an examination, and fearing that any examination could provide aggravating circumstances, given the Petitioner’s record and manner, counsel decided not to have any psychological examination performed. This is very similar to the issue in Strickland [footnote omitted]. Dr. Daniel, after examination of Movant testified that Defendant had a history of attention deficit disorder (hyperactivity) and was capable of rehabilitation based on his remorse. Mov-ant failed to show how Defendant’s history could reasonably change the outcome of the case and the record, as noted by the Missouri Supreme Court, indicates a lack of remorse by the Petitioner. As the Supreme Court noted in Strickland, “There are countless ways to provide effective assistance of counsel in a given case. Even the best criminal defense attorney’s [sic] would not defend a particular client in the same way.” Strickland at 689. State’s Exhibit J — Legal File, Motion Court’s Findings of Fact and Conclusions of Law (re Amended Rule 29.15 Motion), pgs. 6-7 (pgs. 18-19 of the exhibit). In his brief on appeal of denial of the Rule 29.15 motion, petitioner’s Point I on appeal reads as follows: THE TRIAL COURT CLEARLY ERRED IN DENYING APPELLANT’S MOTION TO VACATE SENTENCE BECAUSE COUNSEL WAS INEFFECTIVE IN FAILING TO SEEK A MENTAL EVALUATION IN MITIGATION OF PUNISHMENT IN THAT COUNSEL SHOULD HAVE BEEN PUT ON NOTICE, BY APPELLANT’S DRUG ABUSE, HYPERACTIVITY, CUTTING OF HIS WRIST, HIS TWO SISTER’S [sic] PSYCHIATRIC HISTORY, AND THE ABSENCE OF A DIAGNOSIS OF A SOCIOPATHIC CONDITION, THAT AN EXAMINATION WOULD PROVE HELPFUL AND WOULD NOT PROVE HARMFUL. APPELLANT WAS PREJUDICED IN THAT THE JURY WAS DENIED IMPORTANT INFORMATION ON WHICH TO BASE A LIFE SENTENCE, PARTICULARLY HIS CAPACITY FOR FEELING, [sic] REMORSE, AND REHABILITATION. State’s Exhibit K, pg. 15. The body of the brief clearly addresses the issue as trial counsel’s ineffectiveness for failing to secure a psychiatric examination in order to present mitigating evidence during the penalty phase. The State also presented the issue on appeal as one of trial counsel’s ineffectiveness for failing to obtain a mental evaluation for purposes of providing mitigating evidence at the penalty phase. State’s Exhibit L. Finally, the Missouri Supreme Court clearly addressed the issue on appeal as trial counsel’s ineffectiveness for failing to secure a psychiatric examination. “Schneider charges counsel was ineffective in failing to seek a mental evaluation.” Schneider v. State, 787 S.W.2d 718, 720 (Mo.1990). The Court reviewed the testimony adduced at the 29.15 motion hearings and found that trial counsel decided “as a matter of trial strategy, not to have a psychological examination done.” Schneider v. State, 787 S.W.2d at 720. The court concludes that “[m]ovant fails his burden to show how a psychological evaluation would have changed the outcome of the case.” Id., at 721. However, in his amended federal habeas petition, petitioner now states his claim as: “[n]ot only is Petitioner alleging his trial counsel was ineffective for failing to investigate the defense of mental disease or defect, but also for failing to investigate: 1) evidence of a diminished capacity defense; 2) defense of lack of the requisite mental intent to commit first degree murder or the underlying felony for felony murder; and 3) defense of insanity at the time of the offense as well as at the time of trial and sentencing. This inadequacy was shown by counsel’s failure to gather a social and medical history of Petitioner and to have a psychiatric evaluation performed on Petitioner to determine if any of the aforementioned defenses could be raised.” Petitioner’s Traverse to Respondent’s Response, pg. 12. “The particular factual and legal basis for the claim asserted in a state prisoner’s federal habeas petition must have been brought to the attention of the state courts in order to satisfy the exhaustion of state remedies requirement of 28 U.S.C. § 2254(b).” Forest v. Delo, at pg. 721 citing Keithley v. Hopkins, at 1217; Flieger v. Delo, 16 F.Bd 878, 884-85 (8th Cir.1994). The only portion of this claim that is not procedurally defaulted is trial counsel’s alleged ineffectiveness for not securing a mental examination for purposes of presenting mitigating evidence at the penalty phase. The other portions of this claim, i.e. failing to investigate a variety of mental defenses, are procedurally defaulted and petitioner has failed to make any showing of cause for failing to present these portions of his claim in his 29.15 motion or appeal of the denial of the motion. In order to prevail on a habeas claim of ineffective assistance of trial counsel, petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). He must show that 1) trial counsel’s performance fell below an objective standard of reasonableness in that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would use under similar circumstances; and 2) that he was prejudiced by this deficiency. Id., 466 U.S. at 687-88, 104 S.Ct. at 2064-65; Lawrence v. Armontrout, 31 F.3d 662, 666 (8th Cir.1994); Flieger v. Delo, at 886; Battle v. Delo, at 1554. Petitioner was prejudiced by his trial counsel’s ineffective performance if he can show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”, Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, or trial counsel’s errors rendered the proceeding unreliable or fundamentally unfair, Lockhart v. Fretwell, — U.S. -, -, 113 S.Ct. 838, 844, 122 L.Ed.2d 180; Adams v. Leapley, 31 F.3d 713, 714 (8th Cir.1994); Battle v. Delo, at 1554. However, trial counsel’s representation is entitled to a presumption of reasonableness, and the courts should review counsel’s performance as of the time of trial and “not view it with the distorting tint of hindsight.” Battle v. Delo, at 1555 citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Trial counsel’s reasonable trial strategies cannot constitute ineffective assistance of counsel, even if they prove to be unsuccessful. Flieger v. Delo, at 886 citing Riley v. Wyrick, 712 F.2d 382, 385 (8th Cir.1983). This Court will review the record because the issue of ineffective assistance of counsel is a mixed issue of law and fact, Flieger v. Delo, at 886, but as noted before, the factual findings of the state courts (both trial and appellate) are presumed to be correct. Id., at 886 citing Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981). Petitioner contends that his trial counsel was ineffective for not securing a mental exam in order to present mitigating evidence. Both the 29.15 motion court and the Missouri Supreme Court extensively discussed the relevant facts behind trial counsel’s decision. The state courts considered trial counsel’s explanation that petitioner was always coherent, understandable, and appeared to fully appreciate the nature of the charges against him. A mental examination under Chapter 522 in January of 1988 (in connection with other criminal charges) was “unremarkable” — no evidence of mental disease or defect. Counsel was concerned about petitioner speaking with a third party because petitioner was denying guilt at the time. Counsel feared an unfavorable psychiatric report and having the psychiatrist testify as to petitioner’s denial of committing the murders would leave a bad impression with the jury. Counsel also feared that a psychiatric examination would open up the door for prejudicial, discoverable information. Given petitioner’s criminal record and demeanor, counsel believed the best strategy was not to have a psychological examination done. See, Schneider v. State, 787 S.W.2d at 720-21; State’s Exhibit J — Legal File, pgs. 18-19 (Motion Court Order of June 27, 1989, pgs. 6-7). The Court has examined the state courts’ factual findings and concurs that the record supports trial counsel’s decision as being reasonable in light of the circumstances at the time. Schneider asserts that an examination was warranted because of his drug abuse, hyperactivity, cutting of his wrist, and two of his sisters’ psychiatric history. He maintains an examination would have revealed his capacity for remorse, rehabilitation, and productive work. He offers several exhibits (not offered to the state courts) evidencing psychological and social services reports produced after he was tried and convicted for the capital murders. These exhibits are irrelevant to this Court’s consideration of whether trial counsel’s actions were reasonable given the circumstances present at the time of trial. The only document which has any bearing on the Court’s inquiry is the January 21, 1983 mental examination report prepared by the Missouri Department of Corrections — Classification and Assignment Unit. According to this report, petitioner claimed to have been drug-free since 1981. His only treatment for any psychological problem was in 1982 when he slashed his wrist while in the St. Louis City Work House. According to the report, Petitioner admitted that he had been depressed over his life at the time. He further admitted that no one knowledgable about the incident believed he was seriously trying to take his life. He claimed that he had never made any other “suicide attempts”. There is no mention of hyperactivity as a clinical diagnosis. This report mirrors the earlier findings of staff personnel at the Malcolm Bliss medical facility. State’s Exhibit J, pgs. 57-60 (report dated January 4, 1983). Petitioner has failed to make any showing that trial counsel’s decision to forego a psychiatric examination was unreasonable, and that there is a reasonable probability that having the exam would have changed the outcome of his sentencing. Plaintiff had several felony convictions. There is no evidence on the record that plaintiff had been abusing drugs prior to the commission of the murders. A recent 522 mental exam showed no evidence of mental disease or defect. Plaintiff does not dispute trial counsel’s testimony that he was coherent and fully understood the nature of the charges and the punishment he faced. Plaintiff has failed to show how an alleged childhood diagnosis of hyperactivity would have convinced a jury to relieve him of the responsibility of planning and committing two heinous brutal murders as a twenty-four (24) year old man. As for the mental exam demonstrating plaintiff’s capacity for remorse, the Court is not surprised that a defendant facing a death sentence would acquire such remorse for his acts; however, this Court is not convinced that a jury would have been moved by this “after-the-fact” remorse, especially since the trial record shows that “[n]ot only is there no showing of remorse on the part of this defendant, but to the contrary he demonstrated an offensive air of braggadocio when boasting to others how he brought about the deaths of the victims.” State v. Schneider, 736 S.W.2d 392, 404 (Mo.1987). Trial counsel’s decision not to secure a mental examination was reasonable trial strategy and petitioner has failed to show how a psychological evaluation would have changed the outcome of the case. C. Failure to object to the State’s strikes for cause D. Failure to object to the trial court’s dismissal of venirepersons holding World Series tickets E. Failure to object to trial court excusing venirepersons with minor children F. Failure to object to trial court excusing venirepersons with work-related problems Petitioner failed to raise any of the four above-stated incidents of trial counsel’s alleged deficient performance in his 29.15 motion or in his appeal of denial of said motion; consequently, they are procedurally barred. Foster v. Delo, at 880. Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his 29.15counsel was ineffective for failing to raise these claims before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the “ineffectiveness” of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965. G. Failure to investigate and present evidence regarding a broken window in petitioner’s car Petitioner raised this claim in his 29.15motion but failed to raise it in his appeal of the denial of the motion. Failure to raise a claim on appeal from the denial of a post-conviction motion procedurally bars federal habeas review of the claim. Jolly v. Gammon, at 53; Gilmore v. Armontrout, 861 F.2d 1061, 1065 (8th Cir.1988). Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his 29.15appeal counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the “ineffectiveness” of his 29.15 appeal counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Jolly v. Gammon, at 54. H.Failure to investigate and present evidence that the State’s witness Tom Herrick knew that his mother Barbara Holt was facing criminal charges The essence of petitioner’s claim is that Tom Herrick’s testimony was not credible because his mother Barbara Holt (co-defendant Charles Palmer’s girlfriend) was facing criminal charges and was in danger of losing custody of her other children. Petitioner failed to raise this claim in his 29.15 motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court’s denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra. Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his 29.15counsel and 29.15 appeal counsel were ineffective for failing to raise this claim before the motion court and the Missouri Supreme Court. Since petitioner does not have a constitutional right to post-conviction counsel, the “ineffectiveness” of his 29.15 motion and appeal counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Jolly v. Gammon, at 54; Pollard v. Delo, at 888; Clark v. Groose, at 965. Even if this claim were not procedurally barred, petitioner has failed to show that he was actually prejudiced by trial counsel’s failure to examine Tom Herrick as to his motives for testifying. The trial record shows that trial counsel extensively questioned Ms. Holt directly as to her motives for testifying. Trial Transcript, pgs. 1547-1552. The trial record shows that counsel explored the issue of police pressure on Ms. Holt to testify (against the petitioner). Since the issue had been presented and explored with the witness who would have been most knowledgeable about it, counsel’s decision not to resurrect the matter with her son Tom Herrick was reasonable. Petitioner has failed to show Strickland prejudice. I. Failure to present alibi defense by presenting evidence that petitioner’s girlfriend Dana Messner was “coerced” into not testifying Petitioner raised this claim in his 29.15 motion but failed to raise it in his appeal of the denial of the motion. Failure to raise a claim on appeal from the denial of a post-conviction motion procedurally bars federal habeas review of the claim. Jolly v. Gammon, at 53; Gilmore v. Armontrout, 861 F.2d 1061, 1065 (8th Cir.1988). Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his 29.15appeal counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the “ineffectiveness” of his 29.15 appeal counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Jolly v. Gammon, at 54. J. Failure to exclude evidence of “inconclusive” blood and fingerprint tests Petitioner failed to raise this claim in his 29.15motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court’s denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra. Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his 29.15counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the “ineffectiveness” of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965. K.Failure to present evidence that co-defendant Charles Palmer and his girlfriend Barbara Holt “routinely rolled queers” Petitioner failed to raise this claim in his 29.15motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court’s denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra. Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his 29.15counsel was ineffective for failing to raise this claim before the trial court. Since petitioner does not have a constitutional right to post-conviction counsel, the “ineffectiveness” of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965. L. Failure to investigate and present alibi evidence regarding Pat Wood-side Petitioner failed to raise this claim in his 29.15motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court’s denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra. Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his 29.15counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the “ineffectiveness” of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965. M. Failure to adequately litigate motion for change of venue Petitioner failed to raise this claim in his 29.15motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court’s denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra. Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his 29.15counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the “ineffectiveness” of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965. Furthermore, the trial record shows that trial counsel submitted approximately sixty-five (65) newspaper articles, radio broadcast or television reports pertaining to the case. He also presented the testimony of a State Representative and Jefferson County Commissioner who were former neighbors of the victims. Trial Transcript, pgs. 9-39; State v. Schneider, 736 S.W.2d at 403. Finally, trial counsel extensively argued on his client’s behalf to the trial court why he believed a change in venue was necessary. Trial Transcript, pgs. 39-47, 49-52, 53. The Court finds that trial counsel’s litigation of this matter was thorough and that petitioner has failed to show that it meets the Strickland standard for ineffective assistance. The fact that the trial court rejected counsel’s argument is not any indication that counsel’s performance was deficient. Flieger v. Delo, at 886. N.Failure to respond adequately to the State’s argument that petitioner planned the robbery and murders Petitioner failed to raise this claim in his 29.15motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court’s denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra. Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his 29.15counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the “ineffectiveness” of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965. O.Failure to object to the prosecutor’s remarks regarding the petitioner’s failure to testify Petitioner failed to raise this claim in his 29.15motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court’s denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra. Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his 29.15counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the “ineffectiveness” of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965. Furthermore, the trial record does not indicate any remark made by the prosecutor regarding the petitioner’s failure to testify. It appears that this claim is directed not at the prosecutor’s remarks (or lack thereof) regarding petitioner’s failure to testify, but rather to the prosecutor’s questioning of the State’s witness Roland Johnson which elicited a response referencing the petitioner’s post-arrest silence. The court record indicates that the prosecutor asked Johnson why Johnson did not make a statement the first time he talked to the police. Johnson replied, “[t]he reason I didn’t make a statement the first time I felt as though Schneider or Morgan would go ahead and tell their side of the story.” Trial Transcript, pg. 1361. It is clear that the prosecutor’s question was directed solely at Johnson’s motivation for keeping silent, not at petitioner’s post-arrest silence. Petitioner hasn’t demonstrated any knowledge on the part of the prosecutor that he knew that Johnson would respond to the question by referencing Schneider’s post-arrest silence. Petitioner hasn’t demonstrated why trial counsel should have objected to the question since it did not in anyway implicate petitioner’s posharrest silence. Such an objection would have been overruled. Trial counsel’s performance was not deficient under the Strickland standard. P. Failure to object to the trial court allowing the jurors unrestricted access to television Petitioner failed to raise this claim in his 29.15motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his 29.15counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the “ineffectiveness” of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965. Q. Failure to poll the juiy after rendering a guilty decision Petitioner failed to raise this claim in his 29.15motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his 29.15counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the “ineffectiveness” of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965. R. Failure to depose the State’s witnesses Kenny and Beverly LaVear to determine if a conflict of interest existed Petitioner failed to raise this claim in his 29.15motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Petitioner did raise it in his Rule 91 petition, but the Missouri Supreme Court’s denial of the petition did not remove the procedural bar. Coleman v. Thompson, supra; Ylst v. Nunnemaker, supra; Foster v. Delo, at 880; Byrd v. Delo, supra. Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his 29.15 counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the “ineffectiveness” of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, at 877; Pollard v. Delo, at 888; Clark v. Groose, at 965. Furthermore, the Court has carefully reviewed the trial record in this case and finds that trial counsel’s performance was not ineffective given the circumstances. On the third day of trial, witness Pat Woodside suddenly informed the State that her testimony had been incorrect in that when she visited petitioner a second time at his residence, she took along her brother-in-law Kenny LaVear, not her boyfriend as she had previously testified. She further informed the State that Kenny LaVear had purchased a microwave from petitioner (one of several items stolen from the murder victims’ home). Neither Kenny nor Beverly LaVear had ever been identified as having any connection to the case. As soon as the State knew about the LaVears, prosecutors told petitioner’s counsel. Counsel’s preliminary investigation revealed that one or both of the LaVears may have been represented at one time or another by the Jefferson County Public Defenders’ Office. Counsel was given about forty-eight (48) hours to talk to the LaVears and to do a background cheek. Counsel talked to the LaVears by telephone. A background check indicated that Kenny LaVear had been represented in 1977 and 1980 on misdemeanor trespassing charges by the Jefferson County Public Defenders’ Office (neither of petitioner’s trial counsel had been employed by the Jefferson County Public Defenders’ Office at these times). Beverly LaVear was represented by the Jefferson County Public Defenders’ Office from October 1994 until shortly before trial began in the petitioner’s case. Trial counsel argued extensively that the State be prohibited from endorsing either one of the LaVears as witnesses, or in the alternative, that a continuance be ordered so that counsel could more thoroughly investigate the LaVears’ background and their alleged involvement in the case. The trial court rejected both arguments, specifically finding that no conflict existed because 1) Beverly LaVear was not being called as a witness; and 2) Kenny LaVear had been represented by other public defenders long before either one of petitioner’s counsel had joined the Jefferson County Public Defenders’ Office; 3) Kenny LaVear’s trespassing convictions were of public record and any investigation notes (confidential discussions, etc.) pertaining to these convictions were totally irrelevant to the petitioner’s case and would not place counsel at an advantage because of the earlier representations by the Public Defenders’ Office; and 4) Kenny La-Vear’s testimony was secondary, i.e. was corroborative and cumulative of Pat Woodside’s testimony. Trial transcript, pgs. 953-966, 1598-1613. An actual conflict of interest may constitute the cause and prejudice necessary to overcome a procedural bar. Nave v. Delo, 22 F.3d 802, 811 (8th Cir.1994). The petitioner must show that “an actual conflict of interest adversely affected his lawyer’s performance.” Nave v. Delo, at 811 citing Salam v. Lockhart, 874 F.2d 525, 527 (8th Cir. 1989) [quoting Cuyler v. Sullivan, 446 U.S. 335, 348,100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980) ]. “Neither a possible conflict nor the appearance of impropriety are sufficient to demonstrate the existence of an actual conflict; the claimant must show that ‘his counsel actively represented conflicting interests.’ ” Nave v. Delo, at 811 (citations omitted). Petitioner has failed to present any facts which might demonstrate that an actual conflict of interest existed. He relies solely on the minimal relationship that the Jefferson County Public Defenders’ Office had with a State witness, on totally unrelated charges several years earlier, to contend that a possible conflict of interest existed. He further speculates that this possible conflict prevented his counsel from deposing the LaVears. The trial record belies this supposition; both the State and trial counsel were surprised during trial with the LaVears’ existence, trial counsel tried to get the trial court to refuse to allow the State to endorse the LaVears as witnesses, trial counsel tried to get a continuance, the trial court rejected both options, and despite the extremely short amount of time to gather information on the LaVears, trial counsel did speak with them and resurrected old files stored by the Public Defenders’ Office to review. The Court concurs with the trial court’s findings that an actual conflict of interest did not exist due to the minimal representation by other counsel on totally unrelated charges a number of years earlier; and that Kenny LaVear’s testimony would not necessitate any cross-examination regarding confidential matters pertaining to his representation by the Jefferson County Public Defenders’ Office. Consequently, petitioner has failed to establish cause to overcome the procedural bar. S. Failure to adequately cross-exam Kenny LaVear Petitioner failed to raise this claim in his 29.15motion or in his appeal of denial of same; consequently, it is procedurally barred. Foster v. Delo, at 880. Schneider can avoid the procedural bar if he can demonstrate “cause and actual prejudice”. The only ground Schneider raises as cause for his procedural default is that his 29.15counsel was ineffective for failing to raise this claim before the motion court. Since petitioner does not have a constitutional right to post-conviction counsel, the “ineffectiveness” of his 29.15 counsel cannot constitute cause for purposes of overcoming the procedural default. Coleman v. Thompson, supra; Foster v. Delo, a