___________

                             No. 96-1574
                             ___________

Thomas Miller,                  *
                                *
  Petitioner - Appellant,       *
                                * Appeal from the United States
     v.                         * District Court for the
                                * Western District of Missouri
Kelly Lock; Jay Nixon,          *
                                *
  Respondents - Appellees,      *
                           ___________

                  Submitted:    February 13, 1997

                        Filed: March 11, 1997
                             ___________

Before BOWMAN and WOLLMAN, Circuit Judges, and KOPF,1 District
     Judge.
                          ___________

KOPF, District Judge.


     Thomas Miller appeals from a district court2 order denying his
petition for a writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2254.   For reversal, Miller argues the district court erred in
finding that (1) there was sufficient evidence from which a jury
could find Miller guilty of first-degree arson; (2) trial counsel
was not constitutionally ineffective when counsel failed to procure
available evidence relevant to Miller’s alibi defense; and (3)
Miller’s claim that he was not informed by the sentencing court or
by trial, appellate, or postconviction counsel of the 30-day filing

     1
      The Honorable Richard G. Kopf, United States District Judge
for the District of Nebraska, sitting by designation.
    2
     The Honorable Dean Whipple, United States District Judge for
the Western District of Missouri.
deadline for postconviction motions under Missouri Supreme Court
Rule 29.15 was procedurally barred.   We affirm.
                             I.    BACKGROUND


     A.    Facts


     Orville and Waunita Steinert owned farm property located near
Milan, Missouri, on State Highway OO.        The Steinerts lived in one
half of a duplex on the property, and they intended to rent the
other half to a state patrolman who was scheduled to move into the
duplex on September 11, 1990. Miller drove onto the Steinert
property    on   the   afternoon   of   September   10,   1990,   and   told
Mr. Steinert that he had come to appraise some trees.             Steinert
replied that the trees were not for sale and Miller should leave.
Miller then became enraged, telling Steinert, among other things,
that if Steinert’s cattle came onto Miller’s property, he would
shoot them.      When Miller saw Steinert later the same day, Miller
apologized for his actions.


     Later the same afternoon, Miller visited the home of Danny
Courtney, a local resident, who testified that Miller had been
drinking quite a bit and was aggravated by his confrontation with
Steinert earlier that day, although Miller was mostly angry at the
men who had sent Miller to Steinert’s property.


     Courtney then drove Miller to a tavern where Miller began
talking to Joe and Lois Judd.             Lois Judd testified that at
approximately 8:00 that evening, Miller told her and Joe Judd that
Miller was going to do them a “big favor” by burning a house
located on Highway OO into which a patrolman was going to move
because Miller did not want a patrolman living on Highway OO, which
was the route Miller used to drive home after he had been drinking.
Lois Judd testified that around 9:00 p.m. Miller seemed to realize
he had “said too much” and then offered to pay for the Judds’


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dinner.   Miller then left the tavern and returned an hour later,
smelling like diesel fuel.   Other witnesses who were at the tavern
that




                                -4-
night stated that Miller did not leave the tavern until 10:15 or
10:30 p.m.


     Meanwhile, Mr. Steinert was watching Monday Night Football on
television after having taken a shower during halftime.                     Around
9:30 or 10:00 p.m., Mr. Steinert smelled an odor like kerosene or
diesel fuel and smoke began rolling into the living room from the
hallway.     Steinert   and   his    wife   left   the    house,      and    after
Steinert’s unsuccessful attempt at dousing the fire with water, the
couple drove one-half mile to the home of Terry Jones where they
called the fire department.       Jones heard a “loud noisy car . . . or
a truck” drive by his house shortly before the Steinerts arrived.


     Sometime after the fire department had arrived at the scene,
two men went to the duplex to watch the fire.             Miller drove up in
a Blazer or Bronco truck, approached the men, and opined that the
fire appeared to have started in the west end of the house.
However, by that time one-half to two-thirds of the duplex had
burned, making it hard to determine where the fire may have
started.


     The next morning Miller phoned Lois Judd and said “if you
don’t keep your mouth shut you’re going [to] keep me in trouble.”
Miller also said he did not mean the things he said the night
before and he did not burn anything.


     An    arson   investigator     concluded   that     the   fire    had    been
intentionally set in the northwest bedroom of the duplex with some
sort of flammable liquid.         He noted that flammable liquids will
flare up when water is applied, consistent with Mr. Steinert’s
experience when he tried to extinguish the fire.


     B.    Procedural History



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     Following a jury trial, Miller was convicted of one count of
first-degree arson and sentenced to 10 years in prison.   Miller’s




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conviction and sentence were affirmed on direct appeal.                 State v.
Miller, 

(Mo. Ct. App. 1992).              Miller then filed a
motion       for   postconviction    relief   which   was   dismissed    by   the
Missouri circuit court as being untimely, and the dismissal was
affirmed on appeal on the same ground.          Miller v. State, 

(Mo. Ct. App. 1994).       The United States District Court for the
Western District of Missouri denied Miller’s 28 U.S.C. § 2254
petition for a writ of habeas corpus.


                               II.    DISCUSSION


     We review the district court’s conclusions of law de novo and
its findings of fact for clear error.            McDonald v. Bowersox, 

, 592 (8th Cir. 1996).3


     A.       Sufficiency of Evidence


     Miller first argues that the district court erred in finding
sufficient evidence to support Miller’s conviction for first-degree
arson when various witnesses placed Miller at the tavern at the
time the fire was set.


     In      determining the sufficiency of evidence to support a
conviction, “the relevant question is whether, after viewing the


         3
       In considering Miller’s claims, the State argues that we
should apply the standard of review set forth in 28 U.S.C.
§ 2254(d) and (e), as amended on April 24, 1996, by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, Title I, § 104, 110 Stat. 1218. However, this court
has not yet decided whether the section 2254 amendments apply to
cases that were pending on April 24, 1996. We leave consideration
of the State’s argument to another day because Miller’s claims
either fail under the standards applied prior to the Act or are
procedurally barred. Preston v. Delo, 

, 599 n.4 (8th
Cir. 1996).

                                       -7-
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of




                               -8-
the crime beyond a reasonable doubt.”      Jackson v. Virginia, 

, 319 (1979) (emphasis in original).    The evidence in this
case was clearly sufficient to enable a trier of fact to find that
Miller knowingly damaged a building or inhabitable structure when
any person was present by starting a fire and thereby recklessly
placing such person in danger of death or serious physical injury.
See Mo. Ann. Stat. § 569.040 (West 1979 & Cum. Supp. 1997) (crime
of first-degree arson).   The fact that some witnesses placed Miller
at a tavern during the time the fire occurred is of no consequence,
as it was for the jury to determine witness credibility.     Meadows
v. Delo, 

, 282 (8th Cir. 1996).   Therefore, the evidence
is sufficient to sustain Miller’s conviction.


     B.   Ineffective Assistance of Trial Counsel


     Miller next argues that trial counsel was constitutionally
ineffective when counsel failed to procure available evidence
relevant to Miller’s alibi defense.    Although in his postconviction
motion Miller sought to raise trial counsel’s ineffectiveness in
preparing and presenting an adequate defense, the motion was denied
as being untimely under Mo. S. Ct. R. 29.15.4   “The failure to file
a timely motion for post-conviction relief in the state court is a
procedural default that will bar habeas review absent cause and
prejudice,” which Miller has not shown here.    Griffini v. Mitchell,


     4
     On November 2, 1992, the date Miller filed his postconviction
motion, Mo. S. Ct. R. 29.15(b) provided in relevant part:

     If an appeal of the judgment sought to be vacated, set
     aside or corrected was taken, the motion shall be filed
     within thirty days after the filing of the transcript in
     the appeal pursuant to Rule 30.04. If no appeal of such
     judgment was taken, the motion shall be filed within
     ninety days of the date the person is delivered to the
     custody of the department of corrections.

Mo. S. Ct. R. 29.15(b) (1992).

                                 -9-


, 692 (8th Cir. 1994) (citing Wainwright v. Sykes, 

, 87 (1977)).




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     To the extent Miller’s 28 U.S.C. § 2254 petition can be
construed as alleging ineffective assistance of counsel in failing
to advise Miller of the deadline for filing postconviction motions
under Mo. S. Ct. R. 29.15 as cause for the procedural default, this
claim is also without merit because before a claim of ineffective
assistance of counsel can constitute cause, both the factual
grounds and legal theories on which the claim is based must have
been presented to the highest state court in order to preserve the
claim for federal review.    Krimmel v. Hopkins, 

, 875-76
(8th Cir.), cert. denied, 

(1995); Flieger v. Delo,

, 884-85 (8th Cir.), cert. denied, 

(1994).


     Miller   did   not     present    on   postconviction   appeal   a
constitutional ineffective assistance of counsel claim based on
trial, appellate, or postconviction counsel’s failure to advise him
of the 30-day deadline for filing a postconviction motion under Mo.
S. Ct. R. 29.15 when an appeal has been taken.        Rather, Miller’s
sole argument on postconviction appeal was that Mo. S. Ct. R. 29.15
was unreasonable and made no exception for good cause, thereby
violating Miller’s due process rights.       Miller’s only mention of
counsel on postconviction appeal was in the context of his argument
that the timing provisions in Mo. S. Ct. R. 29.15 were unfair,
especially in a situation where counsel leads a defendant to
believe that the defendant’s interests will be protected, as was
promised to Miller in this case.      Thus, this claim is procedurally
defaulted.


     C. Ineffective Assistance of Counsel Regarding Postconviction
     Motion Filing Deadline




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     Miller argues that neither the sentencing court nor his trial,
appellate,   and   postconviction   counsel   advised   him   that   his
postconviction motion must be filed within 30 days after filing of




                                -12-
the transcript in the event an appeal was taken.             Therefore, Miller
argues, counsel were constitutionally ineffective in failing to
advise him of this deadline and in neglecting to present this issue
in postconviction proceedings.


     For    the reasons discussed above with regard to Miller’s
ineffectiveness     of   trial    counsel    claim,   this    claim    is       also
procedurally barred.        To the extent Miller’s claim addresses the
alleged ineffectiveness of postconviction counsel, this claim fails
because Miller is not constitutionally entitled to counsel in state
postconviction proceedings.          There can be no denial of effective
assistance    of      postconviction     counsel      when     there       is    no
constitutional      right   to   postconviction    counsel      in   the    first
instance.    Coleman v. Thompson, 

, 752 (1991); Cassell
v. Norris, 

, 62 (8th Cir. 1996).


                              III.    CONCLUSION


     We hold the district court did not err in denying Miller’s
petition for a writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2254.


     Accordingly, we affirm the judgment of the district court.


     A true copy.


            Attest:


                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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