Arthur S. Clay v. James Anthony Gammon

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No. 95-3789WM
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Arthur S. Clay, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
James Anthony (Tony) Gammon, *
Superintendent, Farmington * [UNPUBLISHED]
Correctional Center, *
*
Appellee. *
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Submitted: June 4, 1996
Filed: June 24, 1996
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Before FAGG, BOWMAN, and HANSEN, Circuit Judges.
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PER CURIAM.
In 1989 a jury found Arthur S. Clay guilty of forcible rape. The
Missouri Court of Appeals affirmed his conviction and sentence, and the
denial of his motion for postconviction relief. State v. Clay, 812 S.W.2d
872, 876 (Mo. Ct. App. 1991). In 1994 Clay filed his 28 U.S.C. § 2254
petition. Raising a due process violation for the first time, Clay argued
he should have been sentenced by the jury instead of the trial court
because his earlier conviction had been expunged in 1980. See Mo. Rev.
Stat. §§ 557.036.4, 558.016.2 (1986). The district court denied relief.
Although the district court correctly denied Clay's petition on the
merits, we conclude Clay's claim is procedurally barred. Having failed to
present this federal claim in the state courts, Clay has shown neither
cause to excuse his procedural default and
actual prejudice resulting from the alleged denial of due process nor a
fundamental miscarriage of justice. Clay's claim is thus barred from
federal review. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).
We affirm the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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