Remon Lee v. Mike Kemna, Superintendent Jeremiah (Jay) Nixon, Attorney General, State of Missouri , 213 F.3d 1037 ( 2000 )

PER CURIAM.

Remon Lee was tried in Missouri state court on charges of first degree murder and armed criminal action. During his trial, Lee’s alibi witnesses failed to appear and Lee moved for a continuance, until the witnesses could be brought to the courtroom. The continuance was denied and Lee was convicted and given a concurrent sentence of life without parole on the murder charge and ten years on the armed criminal action charge. The trial court denied Lee’s motion for a new trial which alleged ineffective assistance of trial counsel and violation of his due process rights.

On direct appeal, Lee claimed his trial motion for a continuance and his postcon-viction motion for a new trial were improperly denied. The Missouri Court of Appeals found the continuance motion was properly denied because it did not comply with Missouri Supreme Court Rule 24.09, which sets out the required form of the motion, and Rule 24.10, which lists the required elements of the motion. The court also found the new trial motion was properly denied because Lee failed to produce evidence showing counsel was ineffective. Lee then filed a 28 U.S.C. § 2254 petition claiming the denial of his motion for a continuance violated due process. The district court denied Lee’s ha-beas petition finding the claim procedurally defaulted. We granted a certificate of appealability on the question of whether denial of Lee’s motion for a continuance was a due process violation.

Lee first argues he did not procedurally default his claim. We disagree. Federal habeas review is not available on Lee’s due process claim if the Missouri Court of Appeals “restfed] [its decision] on a state law ground that is independent of the federal question -and adequate to support the judgment,” regardless of “whether the state law ground is substantive or procedural.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); accord Hall v. Delo, 41 F.3d 1248, 1249-50 (8th Cir.1994). The Missouri Court of Appeals rejected Lee’s claim because his motion for a continuance did not comply with Missouri Supreme Court Rules 24.09 and 24.10 and thus the claim was procedurally defaulted.

We reach the merits of Lee’s procedurally defaulted claim only if he can show cause for his default and prejudice or actual innocence; See Wyldes v. Hundley, 69 F.3d 247, 253-54 (8th Cir.1995). Lee claims his default should be excused because trial counsel’s failure to follow Missouri’s motion rules constituted ineffective assistance of counsel. We reject' Lee’s claim because ineffective assistance of counsel must be presented to the state court as an independent claim before it can be used to establish cause for a procedural default. See' id. at 253. Although Lee raised a claim of ineffective assistance in his postconviction motion for a new trial, he did not specifically allege failure of trial counsel to present properly the motion for a continuance. See id. (habeas petitioner must present to state court same specific claim of ineffective assistance made out in habeas petition). Thus, the Missouri courts had no opportunity to consider whether Lee’s trial lawyer was ineffective for failing to present the motion properly and Lee cannot present that claim now. Because Lee has not shown cause for his default, we do not reach the issue of prejudice.

An actual innocence claim requires Lee to show “ ‘new reliable evidence ... not presented at trial’ ” establishing “ ‘that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.’ ” Id. at 254 (citations omitted). Lee has failed to make the required showing because the factual basis for the affidavits he relies on as new evidence existed at the time of the trial and could have been presented earlier. See Meadows v. Delo, 99 F.3d 280, 282 (8th Cir.1996). Even assuming the alibi testimony was new evidence, Lee did not show with the required likelihood that reasonable jurors would not have convicted based on the word of three family members when the testimony of four prosecution witnesses refuted the alibi.

We affirm the denial of Lee’s habeas petition.