Document Info

DocketNumber: 96-2444

Filed Date: 9/4/1997

Status: Precedential

Modified Date: 10/13/2015

  •                         United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    _____________
    No. 96-2444
    _____________
    Dana A. Ivy,                             *
    *
    Petitioner-Appellant,              *
    *      Appeal from the United States
    v.                                 *      District Court for the
    *      Eastern District of Missouri.
    Michael S. Bowersox,                     *
    *
    Respondent-Appellee.               *
    _____________
    Submitted: April 17, 1997
    Filed: September 4, 1997
    _____________
    Before BOWMAN, HANSEN, and MURPHY, Circuit Judges.
    _____________
    HANSEN, Circuit Judge.
    Dana Ivy (petitioner), an inmate at the Potosi Correctional Center in Mineral
    Point, Missouri, appeals the district court's1 order denying his petition for a writ of
    habeas corpus filed pursuant to 28 U.S.C. § 2254. The petitioner argues that the
    district court erred in denying him relief on his two claims alleging state trial court
    evidentiary errors and on his four claims alleging that he received ineffective assistance
    of counsel during his direct appeal. Finding no merit to the petitioner's arguments, we
    affirm.
    I.
    The petitioner was convicted of first degree robbery for stealing a woman's car
    and purse. On direct appeal, the Missouri Court of Appeals affirmed his conviction.
    State v. Ivy, 
    768 S.W.2d 151
    (Mo. Ct. App. 1989). In his petition for a writ of habeas
    corpus, the petitioner asserted that (1) the Missouri trial court had erred in allowing the
    victim to testify that she had identified the petitioner through the use of police
    department photographs, allegedly suggesting to the jury that the petitioner had a
    criminal record, and (2) the Missouri trial court had erred in admitting evidence of
    unauthorized long-distance telephone calls to the petitioner's aunt that were charged to
    the victim's telephone credit card following the robbery, allegedly constituting
    impermissible circumstantial evidence and evidence of other crimes. The petitioner
    argued that both of these errors deprived him of his constitutional right to due process.
    The petitioner also asserted that his appellate counsel had rendered ineffective
    assistance for failing to raise four additional claims in the direct appeal of petitioner's
    1
    The Honorable Donald J. Stohr, United States District Judge for the Eastern
    District of Missouri, adopting the report and recommendation of the Honorable Thomas
    C. Mummert, III, United States Magistrate Judge for the Eastern District of Missouri.
    2
    conviction. After reviewing each of these claims, the district court denied the petition
    for a writ of habeas corpus.
    II.
    We review the district court's legal conclusions de novo and its findings of fact
    for clear error. Miller v. Lock, 
    108 F.3d 868
    , 870 (8th Cir. 1997). In the habeas
    context, a state court evidentiary ruling will warrant relief "only if the alleged error was
    so conspicuously bad that it fatally infected the trial and rendered it fundamentally
    unfair." Troupe v. Groose, 
    72 F.3d 75
    , 76 (8th Cir. 1995). Moreover, an appellate
    counsel's failure to raise an issue on appeal will justify habeas relief only when there
    is a "reasonable probability that an appeal of [the] issue would have been successful
    and that the result of the appeal would thereby have been different." Pryor v. Norris,
    
    103 F.3d 710
    , 714 (8th Cir. 1997). After careful review, we find no clear error in the
    district court's factual findings, and we agree with the court's conclusion that none of
    the petitioner's claims qualify for habeas relief under the standards listed above.
    III.
    Thus, we affirm the judgment of the district court. The petitioner's pending
    motions are denied.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
    3