Sheik Mark Moore-El v. Al Luebbers ( 2006 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 05-1159
    ___________
    Sheik Mark S. Moore-El,                 *
    *
    Appellant,                  *
    *    Appeal from the United States
    v.                                *    District Court for the
    *    Eastern District of Missouri.
    Al Luebbers,                            *
    *
    Appellee.                   *
    ___________
    Submitted: October 13, 2005
    Filed: April 27, 2006
    ___________
    Before RILEY, JOHN R. GIBSON, and COLLOTON, Circuit Judges.
    ___________
    COLLOTON, Circuit Judge.
    Sheik Mark S. Moore-El appeals from the denial of a petition for a writ of
    habeas corpus under 28 U.S.C. § 2254. We affirm.
    I.
    Moore-El was convicted in Missouri state court of murder in the first degree,
    attempted robbery in the first degree, and two counts of armed criminal action. See
    Mo. Rev. Stat. §§ 565.020, 571.015, 564.011. The convictions arose out of the
    murder of Tommy Vaughn on February 17, 1993. According to the evidence
    produced by the prosecution at trial, Vaughn had visited the home of Patricia Holmes,
    apparently in an attempt either to sell jewelry or purchase cocaine, and was the victim
    of a staged robbery by Moore-El and his companions. A prosecution witness, Lenell
    Charleston, testified that Moore-El was supposed to rob Vaughn, because
    “[s]ometimes that’s what we would do, rob folks.” (T. Tr. at 559). Charleston said
    that Vaughn resisted Moore-El’s demands, and that Moore-El shot Vaughn in the back
    as he attempted to flee Holmes’s property. Another witness, Maurice Willis, testified
    that Vaughn was “begging for his life” and running away from the house shortly
    before Moore-El fired a gun from the front porch. (Id. at 652, 655). The home’s
    primary resident, Holmes, testified that she saw Moore-El come to the door in dark
    clothing while Vaughn was inside her house, and later saw an arm wearing what
    looked like a dark sweater holding a gun. (Id. at 698, 701-03). A fourth witness,
    Demetrius Taylor, testified that he heard noises, including scuffling and “wrastling,”
    and later heard gunshots, but did not see who fired them. (Id. at 621-23).
    At trial, Moore-El disputed the State’s version of events and claimed that he
    was not present at Holmes’s house when the murder occurred. He also presented the
    testimony of two eyewitnesses who claimed to have responded to newspaper
    advertisements, placed by Moore-El’s grandmother, seeking witnesses to the shooting.
    The witnesses described the shooter as someone other than Moore-El, and one
    specifically implicated Charleston. The prosecution attempted to demonstrate that
    these witnesses were induced to testify by promises of favors by Moore-El’s
    grandmother. One of the witnesses acknowledged on cross-examination that after she
    responded to the advertisement, Moore-El’s grandmother had provided her with
    favors, including securing the witness employment at a nursing home and posting
    bond for the witness’s release from jail. (Id. at 977-78). The State introduced a letter
    written by the other witness, which stated, “I spoke to that guy’s grandmother. She
    didn’t pick up the package today. I will not go to see anyone in his defense if I don’t
    -2-
    get what was promised to us.” (T. Tr. at 1127, 1178). A jury convicted Moore-El of
    all counts, and Moore-El was sentenced to death.
    Moore-El timely filed a motion to set aside his conviction and sentence
    pursuant to Missouri Supreme Court Rule 29.15, and also filed a direct appeal of his
    death sentence to the Supreme Court of Missouri. The court considering the Rule
    29.15 motion vacated Moore-El’s death sentence, but rejected his other claims.
    Meanwhile, the Supreme Court of Missouri transferred Moore-El’s direct appeal to
    the Missouri Court of Appeals. Because Moore-El’s death sentence had been vacated,
    but no new sentence had been imposed, the appellate court dismissed his appeal for
    lack of jurisdiction. The appellate court directed the trial court to re-sentence Moore-
    El. Moore-El and the State then entered into an agreement calling for a sentence of
    life imprisonment without parole, but allowing that if Moore-El successfully attacked
    his conviction, then the State could seek the death penalty in a new trial. In accord
    with the agreement, Moore-El was re-sentenced to life without parole.
    After the re-sentencing, the state appellate court regained jurisdiction over
    Moore-El’s consolidated appeal. That appeal raised several issues, including
    arguments that Moore-El’s trial counsel performed inadequately by failing to discover
    information about other prosecutions of the witness Lenell Charleston. The Missouri
    Court of Appeals found none of Moore-El’s arguments persuasive and affirmed the
    conviction in June 2000.
    Moore-El then filed a second, pro se motion under Rule 29.15, again arguing
    that his trial counsel was ineffective. The motion court appointed counsel to represent
    Moore-El during this proceeding, but limited his claims to those arising from his re-
    sentencing and subsequent proceedings. The court dismissed all other claims as
    successive. Moore-El appealed this decision, arguing that he was entitled to file more
    than one motion pursuant to Rule 29.15, but the Missouri Court of Appeals affirmed
    the motion court’s decision concerning successive claims.
    -3-
    In 2003, Moore-El filed a pro se petition for a writ of habeas corpus in the
    district court, and later amended the petition with the assistance of counsel. His
    amended petition sought relief on a variety of grounds, including multiple alleged
    examples of ineffective assistance of counsel. In particular, Moore-El argued that the
    State violated his due process rights under Brady v. Maryland, 
    373 U.S. 83
    (1963), by
    failing to disclose inducements offered and threats made to witnesses Lenell
    Charleston, Patricia Holmes, Demetrius Taylor, and Maurice Willis. He also asserted
    that he was deprived of his Sixth Amendment right to counsel by his attorney’s
    ineffectiveness in failing to discover and present evidence of those alleged
    inducements and threats. Among his other claims, Moore-El argued that his counsel
    was ineffective for failing to discover exculpatory testimony from potential witnesses
    Kim Tuppman and Sharon Watkins. A magistrate judge recommended denial of the
    petition, finding that the majority of Moore-El’s claims were procedurally defaulted
    by his failure to raise them in his first appeal to the Missouri Court of Appeals. The
    magistrate judge found that the claims regarding Lenell Charleston were not
    procedurally defaulted, but recommended denial of those claims on the ground that
    the Missouri court had not unreasonably applied federal law.
    After the magistrate judge issued her recommendation, Moore-El moved to
    amend his petition and add another claim that his trial counsel was ineffective for
    failing to interview and call as a witness a woman named Loretta Petty, or, in the
    alternative, that the State violated his rights under Brady by failing to disclose Petty’s
    potentially exculpatory testimony. The district court1 considered the motion to amend
    along with the rest of Moore-El’s claims. On December 9, 2004, the court denied
    relief on all claims, but granted his request for a certificate of appealability on the
    questions whether the State violated its duties under Brady with regard to witnesses
    Charleston, Holmes, Taylor, and Willis, and whether the trial counsel was ineffective
    1
    The Honorable Catherine D. Perry, United States District Judge for the Eastern
    District of Missouri, adopting the report and recommendation of the Honorable Mary
    Ann Medler, United States Magistrate Judge for the Eastern District of Missouri.
    -4-
    for failing to call those witnesses. The district court also granted a certificate of
    appealability on its denial of Moore-El’s motion for leave to amend. Our court
    expanded the certificate of appealability to include his claim that his counsel was
    ineffective in failing to investigate and present the testimony of Kim Tuppman and
    Sharon Watkins.
    II.
    We turn first to Moore-El’s argument that the district court erred in concluding
    that he had procedurally defaulted his claims that the State withheld evidence about
    witnesses Taylor, Willis, and Holmes, and that his counsel was ineffective in failing
    to call witnesses Tuppman and Watkins. In order to preserve a claim for relief, a state
    habeas petitioner must present that claim to the state court and allow that court an
    opportunity to address his claim. Coleman v. Thompson, 
    501 U.S. 722
    , 731-32
    (1991). Where a petitioner fails to follow applicable state procedural rules, any claims
    not properly raised before the state court are procedurally defaulted. Sawyer v.
    Whitley, 
    505 U.S. 333
    , 338 (1992); Abdullah v. Groose, 
    75 F.3d 408
    , 411 (8th Cir.
    1996) (en banc). Where a claim is defaulted, a federal habeas court will consider it
    only where the petitioner can establish either cause for the default and actual
    prejudice, or that the default will result in a fundamental miscarriage of justice.
    
    Sawyer, 505 U.S. at 338-39
    .
    Missouri law requires that a habeas petitioner bring any claim that a conviction
    violates the federal or state constitution, including a claim of ineffective assistance of
    counsel, in a motion for post-conviction relief under Rule 29.15. See Mo. Sup. Ct. R.
    29.15(a) (“This Rule 29.15 provides the exclusive procedure by which [a person
    convicted of a felony after a trial] may seek relief in the sentencing court for the
    claims enumerated.”); see also Schleeper v. State, 
    982 S.W.2d 252
    , 253 (Mo. 1998)
    (en banc). Rule 29.15 requires the movant to acknowledge that any known claims not
    presented in the motion are waived, see Mo. Sup. Ct. R. 29.15(d), and “successive”
    -5-
    motions for relief are not permitted. See Mo. Sup. Ct. R. 29.15(l). A second motion
    for relief will be denied even if the grounds stated in the second petition are new, if
    the claims could have been raised in the previous motion. Pinson v. State, 
    784 S.W.2d 846
    , 847 (Mo. Ct. App. 1990). This rule is designed to adjudicate all claims for relief
    in one proceeding. 
    Id. In his
    initial motion under Rule 29.15, Moore-El presented claims that his
    counsel was “ineffective in that he did not talk to or examine any of the State’s
    witnesses . . . prior to the day of trial,” and that the failure to interview witnesses
    “resulted in counsel being ineffective in cross-examining the witnesses at trial, in that
    counsel was unable to adequately expose the witness’ bias, inconsistencies and
    motives for testifying.” The witnesses listed included Patricia Holmes, Lenell
    Charleston, Demetrius Taylor, and Maurice Willis. (Add. at 107). Moore-El also
    argued that “[t]he state failed to disclose . . . records . . . of the numerous exculpatory
    and inconsistent statements and stories told by Lennell Charleston, Maurice Willis,
    Pat Holmes, and Demetrius Taylor during the investigation of the crime.” (Add. at
    111). The motion court rejected both of these claims, and Moore-El appealed to the
    Missouri Court of Appeals.
    On appeal, however, Moore-El did not renew his arguments that counsel had
    been ineffective with respect to the enumerated witnesses, or that the government had
    withheld exculpatory evidence. The district court found that Moore-El’s failure to
    appeal these claims constituted an abandonment of those claims under Missouri law,
    and that the claims were therefore procedurally defaulted. See Lowe-Bey v. Groose,
    
    28 F.3d 816
    , 818 (8th Cir. 1994); see also O’Neal v. State, 
    766 S.W.2d 91
    , 91 (Mo.
    1989) (en banc).
    Moore-El argues that three of his claims – his Brady claim regarding witness
    Patricia Holmes and his ineffective assistance of counsel claims regarding witnesses
    Tuppman and Watkins – were preserved, because he mentioned these claims in Point
    -6-
    IX of his appeal brief to the Missouri Court of Appeals. Point IX of the brief asserts
    that “[t]he motion court erred and abused its discretion when it denied Mark’s requests
    for a continuance, his motions to dismiss postconviction counsel and to proceed pro
    se, his motion to reopen the evidence, applications for a writ of habeas corpus, motion
    for subpoenas, endorsement of witnesses, request to keep the hearing open, and
    request for relief under Rule 75.01 . . . .” (Add. at 100). The brief goes on to argue
    that
    [t]he motion court’s rulings precluded Mark from adducing evidence
    supporting Mark’s 29.15 claims of innocence and ineffective assistance
    of counsel, such as witnesses whose existence were or should have been
    known by [trial counsel] Reardon prior to trial: (A) Sharon Watkins
    (Watson) who would have testified that she witnessed the crime, and
    Mark was not involved; . . . (E) Patricia Holmes would have testified that
    her trial testimony was the product of undisclosed threats and promises
    by the State; (F) Kim Tuppman would have testified that Mark did not
    shoot Vaughn, rather the shooter fit the description of Charleston . . . .
    (Add. at 100-01). The brief then contends that the motion court’s rulings were “an
    abuse of discretion and denied [him] a full and fair evidentiary hearing.” (Add. at
    105).
    We agree with the district court that the appeal brief asserts error in various
    enumerated “rulings” of the motion court without raising directly the constitutional
    claims based on alleged ineffective assistance of counsel. In order to preserve a claim
    for relief, a habeas petitioner “must present both the factual and legal premises” of his
    claim to the state court, Flieger v. Delo, 
    16 F.3d 878
    , 885 (8th Cir. 1994), and afford
    that court a “fair opportunity” to review its merits. Wemark v. Iowa, 
    322 F.3d 1018
    ,
    1021 (8th Cir. 2003). That Moore-El believed certain rulings of the motion court
    hampered his ability to develop his claim of ineffective assistance did not excuse him
    from raising the Sixth Amendment claim on appeal.
    -7-
    Moore-El’s appeal brief did not argue that counsel was ineffective in failing to
    call Tuppman and Watkins, and it did not invite the state appellate court to address the
    merits of such an argument. Instead, it attacked various motion court rulings as an
    abuse of discretion that “precluded [him] from adducing evidence.” (Add. at 100).
    The mention of Patricia Holmes in Point IX is even more remote from the current
    claim. In the state court appeal, Moore-El argued that the motion court’s rulings
    prevented him from developing a claim of ineffective assistance of counsel, while his
    current claim is that the State violated Brady by withholding impeachment material.
    We conclude that none of these references to Holmes, Tuppman, or Watkins was
    sufficiently specific to preserve the claims that were subsequently raised in Moore-
    El’s habeas petition.
    With respect to claims regarding Holmes, Taylor, Tuppman, and Watkins,
    which he attempted to raise in a second pro se Rule 29.15 motion, Moore-El contends
    that Missouri law was “at least arguably confusing” on the question whether an
    unappealed claim could be revived in a subsequent motion, so the claims were not
    defaulted. See Ashby v. Wyrick, 
    693 F.2d 789
    , 793 (8th Cir. 1982). In support of this
    alleged confusion, Moore-El points to the language in Rule 29.15(d), which permits
    a motion under Rule 29.15 to include “all claims for relief known to the movant,” and
    argues that this language potentially permits a movant to raise any issue in a
    subsequent Rule 29.15 motion. We find no merit to this argument, because it ignores
    the plain language in Rule 29.15(l) prohibiting “successive” motions. Moore-El could
    have raised these arguments in his first Rule 29.15 motion, so the second motion was
    successive. 
    Pinson, 784 S.W.2d at 847
    .
    As for claims that pertain to witnesses Willis and Taylor, Moore-El argues that
    he is now raising a new argument regarding exculpatory evidence, this time focused
    on “threats and inducements” that persuaded Willis and Taylor to testify, rather than
    on the inconsistent and exculpatory statements discussed in his original state court
    motion. To the extent these are new claims, they are nonetheless defaulted by Moore-
    -8-
    El’s failure to present them to the Missouri court as required by Rule 29.15. See
    Hornbuckle v. Groose, 
    106 F.3d 253
    , 255 (8th Cir. 1997). We therefore agree with
    the district court that Moore-El’s claims regarding witnesses Holmes, Taylor, Willis,
    Tuppman, and Watkins were procedurally defaulted.
    We also agree with the district court that Moore-El has not shown cause and
    prejudice that would permit the court to entertain his defaulted claims regarding
    Holmes, Taylor, and Willis. Assuming that the State’s alleged failure to disclose
    certain information constitutes “cause” for Moore-El’s failure to raise the claims
    earlier, we are not persuaded that the proffered information creates a reasonable
    probability that the outcome of the trial would have been different. These witnesses
    were subject to impeachment on several grounds during the trial, including their prior
    criminal histories and possible involvement in the Vaughn attempted robbery and
    murder, and the jury was able to infer their potential bias toward the prosecution. The
    defense case was substantially discredited by evidence that one eyewitness wrote a
    letter indicating that she had been promised something in consideration for her
    testimony, and by an admission of another that Moore-El’s grandmother had done
    “big favors” for her by getting her a job and posting bond for her. Viewing the trial
    record as whole, we do not think the alleged inducements and threats described in the
    defaulted claims are sufficient to create a reasonable probability that a jury aware of
    this new information would have acquitted Moore-El of the murder. See Strickler v.
    Greene, 
    527 U.S. 263
    , 291 (1999). Because Moore-El has not met his burden of
    showing that his procedural default should be excused, the district court did not err in
    declining to consider the defaulted claims.
    III.
    Like the district court, we conclude that the only portion of Moore-El’s federal
    habeas petition that was not procedurally defaulted is the claim that the government
    withheld exculpatory evidence by not disclosing alleged threats and inducements
    -9-
    toward witness Lenell Charleston.2 According to Moore-El, the State promised
    Charleston lenient resolution of his pending drug charges if he would testify against
    Moore-El, and the State did not disclose these inducements to testify to Moore-El as
    it was required to under Brady.
    Relief under § 2254 is available only when the initial adjudication of the claim
    by the state court “(1) resulted in a decision that was contrary to, or involved an
    unreasonable application of, clearly established Federal law, as determined by the
    Supreme Court of the United States; or (2) resulted in a decision that was based on an
    unreasonable determination of the facts.” 28 U.S.C. § 2254(d). A state court decision
    is “contrary to” clearly established law if it “applies a rule different from the
    governing law set forth in [the Supreme Court’s] cases, or if it decides a case
    differently than [the Supreme Court] has done on a set of materially indistinguishable
    facts.” Bell v. Cone, 
    535 U.S. 685
    , 694 (2002). A decision is an “unreasonable
    application” of clearly established law if “the state court correctly identifies the
    governing legal principle from [the Supreme Court’s] decisions but unreasonably
    applies it to the particular case.” Id.; see Williams v. Taylor, 
    529 U.S. 362
    , 405
    (2000).
    During its consideration of Moore-El’s Brady claim, the Missouri motion court
    heard testimony from Charleston’s attorney, Richard Fredman, and from Johnny
    Liston, an acquaintance of Charleston’s. Fredman testified that he believed, and
    conveyed to Charleston, that Charleston’s testimony in Moore-El’s trial would “work
    to our advantage” and “put us and his case in a better position,” but that he and the
    prosecutor “specifically made no agreement” regarding the treatment of Charleston’s
    2
    Although the certificate of appealability permitted Moore-El to address both
    the Brady claim and the alternative argument that his trial counsel was ineffective in
    failing to discover evidence about Lenell Charleston, he has abandoned the latter
    argument by failing to brief it on appeal. See United States v. Zavala, 
    427 F.3d 562
    ,
    564 n.1 (8th Cir. 2005).
    -10-
    case. (Motion Ct. Tr. at 166-67, 172). For his part, Liston testified that Charleston
    had told him that by testifying, Charleston was avoiding potential charges related to
    the murder.
    Both the motion court and the Missouri Court of Appeals concluded that there
    was no Brady violation in the State’s failure to disclose any alleged agreement. The
    motion court found that Liston was not credible. (J.A. at 518). It further determined
    that there was “no express agreement between the State and its witnesses,” although
    the “evidence at trial . . . clearly indicated that Charleston had pending cases and
    permitted an inference that the State would treat him favorably if he testified for the
    State.” (J.A. at 517). The court of appeals affirmed, concluding that:
    While the prosecutor has an obligation to disclose the state’s agreement
    favorably to dispose of charges pending against a witness in exchange
    for the witness’ testimony, there is no credible evidence of record that
    there was an agreement between State and Charleston for the favorable
    disposition of his pending drug charges in exchange for his testimony in
    Moore’s case. Therefore, State did not engage in prosecutorial
    misconduct and Moore’s trial counsel was not ineffective for failing to
    ascertain, disclose, and use an agreement for the favorable disposition of
    Charleston’s pending charges.
    (J.A. at 306) (internal citation omitted).
    Moore-El now argues that this decision unreasonably applied Brady by
    requiring that only “express” agreements be disclosed to the defendant. (Pet’r Br. at
    55). This argument misreads the decision of the Missouri Court of Appeals, which is
    the final word from the state courts on this matter. The appellate decision concluded
    that “there is no credible evidence of record that there was an agreement” between the
    State and Charleston; it did not rely on the absence of an “express” agreement. The
    state court’s factual determination is presumptively correct, see 28 U.S.C. §
    2254(e)(1), and the finding of no agreement is consistent with the straightforward
    -11-
    testimony of Charleston’s attorney that he and the prosecutor never made an
    agreement. Moore-El has not advanced clear and convincing evidence that the
    determination is erroneous. See 
    id. A witness’s
    “nebulous expectation of help from the state is not Brady material,”
    Hill v. Johnson, 
    210 F.3d 481
    , 486 n.1 (5th Cir. 2000) (internal quotations omitted),
    and absent evidence that the State communicated an agreement that it would consider
    rewarding Charleston’s testimony, there was nothing for the government to disclose.
    An experienced defense attorney may well have hoped and even expected that
    Charleston’s testimony would result in leniency from the prosecution, but that
    educated prediction is not the equivalent of an affirmative act by the State to hold out
    a potential reward to the witness if his testimony proves helpful. As the motion court
    observed, the evidence permitted an inference that the State would treat Charleston
    favorably if he provided assistance, and Moore-El was free to argue this inference of
    bias when attacking Charleston’s credibility. Indeed, defense counsel made that very
    argument to the jury, emphasizing that Charleston had admitted aiding and abetting
    an attempted robbery that resulted in Vaughn’s death, but had never even been
    charged for attempted robbery, and that Charleston had a great deal to lose if he had
    not pointed the finger at Moore-El. (T. Tr. at 1189-93).
    Moore-El also argues that the deferential standard of § 2254(d) should not
    apply because the Missouri Court of Appeals did not address the particular issue he
    now raises. According to Moore-El, new evidence has surfaced, in the form of
    statements by Charleston to a private investigator, suggesting that Charleston was
    threatened by the State with prosecution for the Vaughn murder and a separate
    robbery. He argues that the district court should have permitted discovery or held an
    evidentiary hearing to develop this evidence.
    We conclude that the district court did not abuse its discretion in ruling on this
    matter. Even assuming that further discovery would have corroborated the
    -12-
    information presented by Moore-El’s investigator, a habeas petitioner who has failed
    to develop the factual basis of a claim in state court proceedings is entitled to an
    evidentiary hearing under only very limited circumstances. The petitioner must show
    that the claim relies on a factual predicate that could not have been discovered through
    the exercise of due diligence, and that the facts would be sufficient to establish by
    clear and convincing evidence that but for constitutional error, no reasonable
    factfinder would have found him guilty of the underlying offense. 28 U.S.C. §
    2254(e)(2).
    In this case, the district court concluded that Moore-El’s “new” evidence could
    have been developed in state post-conviction proceedings. We agree that Moore-El
    failed to develop the factual basis for this claim in state court proceedings, and he has
    not established that he was unable to do so despite diligent efforts. See Williams v.
    Taylor, 
    529 U.S. 420
    , 436-37 (2000). There is no showing that he employed an
    investigator to obtain the “new” information from Charleston during state court
    proceedings, or that he sought an evidentiary hearing to develop this evidence at that
    time. 
    Id. at 437.
    Under those circumstances, a federal court is “not an alternative
    forum for trying facts and issues which a prisoner made insufficient effort to pursue
    in state proceedings.” 
    Id. We also
    agree with the district court that “even if counsel had cross-examined
    Charleston on the threats and promises he now says were made to him, the outcome
    is not likely to have changed.” (Add. at 5-6). More precisely, in the terms of the
    statute, these new facts would not be sufficient to establish by clear and convincing
    evidence that but for constitutional error, no reasonable jury would have found
    Moore-El guilty. 28 U.S.C. § 2254(e)(2). The new information is additional
    impeachment material. Charleston already was impeached based on his inconsistent
    statements to the police, as well as his prior criminal history, pending charges, and
    admitted involvement in the plan to rob Vaughn. As the state motion court observed,
    the evidence in the record already “permitted an inference that the State would treat
    -13-
    him favorably if he testified for the State.” It is arguable that additional attacks on
    Charleston’s credibility would not even satisfy the “reasonable probability” standard,
    because they are largely cumulative, and the jury was already apprised of the potential
    taint on Charleston’s credibility. See Clay v. Bowersox, 
    367 F.3d 993
    , 1000 (8th Cir.
    2004). We are confident that the proffered impeachment evidence is not “clear and
    convincing evidence” establishing that no reasonable jury would have convicted
    Moore-El.
    IV.
    Finally, we consider Moore-El’s motion to amend his petition to add a claim
    that his trial counsel performed ineffectively by failing to discover and present the
    testimony of Loretta Petty, or, alternatively, that the government violated his due
    process rights by failing to disclose that she would provide exculpatory evidence. In
    support of his motion, Moore-El asserted that Petty provided a written statement in
    2004 that she witnessed the shooting of Vaughn, and that the shooter was someone
    other than Moore-El. The motion to amend was filed on September 15, 2004, more
    than a year after the magistrate judge had issued her report and recommendation on
    the disposition of Moore-El’s other claims. The district court entertained the motion,
    but denied it on the grounds that Moore-El could have raised the claim previously, and
    that there was no showing of a constitutional violation that resulted in Moore-El’s
    wrongful conviction.
    We review the denial of a motion to amend for abuse of discretion. Fed. R. Civ.
    P. 15(a); Baker v. John Morell & Co., 
    382 F.3d 816
    , 830 (8th Cir. 2004); see also Fed.
    R. Civ. P. 81(a)(2); Mayle v. Felix, 
    125 S. Ct. 2562
    , 2569 (2005). As a general rule,
    leave to amend “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a).
    The court may disallow amendment for various reasons, however, including “undue
    delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure
    deficiencies by amendments previously allowed, undue prejudice to the opposing
    -14-
    party by virtue of allowance of the amendment, [or] futility of amendment.” Foman
    v. Davis, 
    371 U.S. 178
    , 182 (1962).
    “Delay alone is insufficient justification” for a denial of a motion to amend, Bell
    v. Allstate Life Ins. Co., 
    160 F.3d 452
    , 454 (8th Cir. 1998), but leave may be denied
    if it would be futile. 
    Foman, 371 U.S. at 182
    . Moore-El’s claims regarding Loretta
    Petty were not developed in the state courts, and they are therefore defaulted. See
    Sweet v. Delo, 
    125 F.3d 1144
    , 1149 (8th Cir. 1997). There is not cause and prejudice
    to excuse the default. Loretta Petty’s presence at the scene of Vaughn’s murder, and
    even the possibility that she witnessed the shooting, were discussed by witnesses at
    Moore-El’s trial. (T. Tr. at 626, 637).3 Nonetheless, Moore-El made no mention of
    Petty in his Rule 29.15 motion filed in October 1995. Moore-El’s explanation for his
    failure to raise the claim until nearly a decade later is that Petty refused to talk to
    investigators in 1996, and indicated then that she would invoke the privilege against
    self-incrimination if called to testify about the Vaughn murder. (Pet’r Br. at 69). But
    to the extent this circumstance could establish cause for the default (even though the
    1996 investigative interview was not conducted until after the Rule 29.15 motion was
    filed in October 1995), it also undermines Moore-El’s claim that any constitutional
    violation with respect to her testimony at trial was prejudicial. If Petty was indeed
    unwilling to testify or talk to investigators before 2004, then trial counsel’s alleged
    failure to interview her and the State’s alleged failure to disclose information about
    her to Moore-El in 1994 could not have changed the outcome of his trial. In light of
    3
    The district court observed that there is no explanation in the trial record or
    post-conviction record why neither the prosecution nor the defense called Petty at the
    trial. Moore-El’s trial counsel said he declined to call one unidentified eyewitness
    because she was a drug addict, grossly unreliable, and ambivalent about whether she
    would testify if called. But he was not asked the name of this witness, and Moore-El
    says that counsel could have been referring to women other than Petty who were
    potential witnesses. Trial counsel was not asked whether he attempted to locate and
    interview Petty. (Add. at 7-8).
    -15-
    Petty’s undisputed refusal to speak based on concerns of self-incrimination in January
    1996, the district court did not err in concluding that Moore-El could not show a
    reasonable probability that Petty would have waived the privilege against self-
    incrimination, testified favorably to the defense, and affected the outcome of the trial
    in October 1994. As for the Brady claim, there is no evidence at all that the State
    knew Petty would provide exculpatory evidence if called as a witness at trial.
    For similar reasons, we are not convinced that this is the “rare” and
    “extraordinary case” in which default should be excused because it is “more likely
    than not that no reasonable juror would have found petitioner guilty beyond a
    reasonable doubt.” Schlup v. Delo, 
    513 U.S. 298
    , 321, 327 (1995) (internal quotations
    omitted). The district court was permitted to consider how the timing of Moore-El’s
    evidentiary submission and Petty’s likely credibility bear on the probable reliability
    of the proffered evidence. 
    Id. at 332.
    As noted, although Petty wrote in 2004 that she
    would have testified at the trial in October 1994, she told Moore-El’s investigator in
    January 1996 that she would refuse to testify based on the privilege against self-
    incrimination. We agree with the district court that Petty’s reaction to an invitation
    to testify in a post-conviction proceeding at a time much closer to the trial is sufficient
    to defeat the claim that she “more likely than not” would have provided exculpatory
    evidence at trial. To meet the Schlup standard, moreover, Moore-El must show not
    only that Petty would have testified, but that if she had testified, no reasonable juror
    would have returned a verdict of guilty. At most, Petty’s testimony would have
    established conflicting testimony among purported eyewitnesses to the murder, a
    circumstance that already existed. The jury would have been required to weigh
    credibility, just as it did with the trial witnesses, to determine whether there was
    reasonable doubt about Moore-El’s guilt. The existence of such a “swearing match”
    would not establish that no reasonable juror could have credited the testimony of the
    prosecution witnesses and found Moore-El guilty beyond a reasonable doubt. Bosley
    v. Cain, 
    409 F.3d 657
    , 665 (5th Cir. 2005) (per curiam), pet. for cert. filed (U.S. Aug.
    -16-
    10, 2005) (No. 05-5810). Accordingly, we conclude that the district court did not
    abuse its discretion in denying Moore-El’s motion for leave to amend.
    *      *       *
    The judgment of the district court is affirmed.
    ______________________________
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