United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                  No. 98-2341/3095
                                   ___________

Thomas Holt,                              *
                                          *
             Appellant,                   *
                                          * Appeals from the United States
      v.                                  * District Court for the
                                          * Eastern District of Missouri
Michael Bowersox,                         *
                                          *
             Appellee.                    *
                                     ___________

                              Submitted: April 19, 1999

                                   Filed: September 21, 1999
                                    ___________

Before McMILLIAN, LOKEN and MURPHY, Circuit Judges.
                           ___________

McMILLIAN, Circuit Judge.

       Thomas Holt appeals from a final judgment entered in United States District
Court for the Eastern District of Missouri denying his 28 U.S.C. § 2254 petition for
habeas corpus relief. See Holt v. Bowersox, No. 4: 97CV00938 LOD (Order I) (E.D.
Mo. Feb. 18, 1998) (Memorandum and Order). For reversal, petitioner contends that
the district court erred in denying his petition because there was insufficient evidence
in the record to support its conclusions. For the reasons discussed below, we reverse
the judgment of the district court and remand the case for further proceedings consistent
with this opinion.
       Jurisdiction was proper in the district court based upon 28 U.S.C. § 2254.
Jurisdiction is proper in the court of appeals based upon 28 U.S.C. § 1291 and 28
U.S.C. § 2253(a). The notice of appeal was timely filed pursuant to Fed. R. App.
P. 4(a).

                                     BACKGROUND

       The following discussion of the factual background of this case is based largely
on the parties' briefs on appeal, medical records submitted by petitioner to the district
court, and the district court orders entered below, because no portion of the state record
was submitted to the district court or to this court.

       In 1987 petitioner pled guilty to murdering his step-father and was sentenced to
life imprisonment without possibility of parole. According to medical records petitioner
submitted to the district court with his petition, petitioner began showing signs of
mental illness as soon as he arrived in prison. The first psychiatric report in the record
on appeal, dated August 6, 1987, diagnosed petitioner with schizoaffective disorder.
See Appellant's Addendum at 11 (App. Add.). It reported that, upon arriving at the
prison, petitioner requested to be placed in protective custody because he believed he
was being threatened, although he could not name who was threatening him. See 

stated that petitioner believed he was James Bond, on loan to the United
States from the United Kingdom, living in Washington, D.C., and receiving direct aid
from the President, and that he believed his nurse was Nancy Reagan. See 

The report also noted that petitioner believed his mother had moved to St. Louis from
London and that her husband had been killed "in the war." 

In addition, it
noted that petitioner believed the year was 1986 and that he “was not oriented to time,
place, or date.” 

The report also noted that petitioner had been sexually and
physically abused by his step-father and that petitioner had trouble with his family
because he was the result of a rape of his mother. See 

Finally, the report


                                           -2-
states that petitioner's "present medication, namely Haldol," should be gradually
increased to control petitioner's "psychotic thought process." 

       The next psychiatric report in the record, dated December 1990, shows a
diagnosis of chronic undifferentiated schizophrenia and dysthymie disorder. See 

It also indicates that, in the fall of 1990, petitioner was placed on lithium in
addition to Mellaril, which he had already been taking. See 

1990, petitioner
was also prescribed Artane to ease side effects of the other medications. See 

in 1992 and 1993 describe petitioner as generally responding well to medication
and working as a tutor in the prison school. See 

However, in 1994 and
1995 petitioner’s medications were changed due to cardiotoxic problems. He was
removed from lithium and placed on Depakene, Klonopin, Ativan, and a reduced
dosage of Mellaril in addition to Tagamet and Mylanta for GI distress. See 

22. Beginning in 1994, petitioner's diagnosis again is characterized as schizoaffective
disorder. See 

from 1995 document a deterioration of petitioner’s
mental health, including anxiety attacks, delusions, auditory and visual hallucinations,
and some bizarre behavior and thinking. See 

The record on appeal
contains no reports after December 1995, but in his brief, petitioner alleges that he
continues to be mentally ill.

       The parties agree that petitioner did not seek post-conviction relief within the
time provided by the Missouri rules for seeking post-conviction relief. The district
court found petitioner was required to file a motion for post-conviction relief by July
1988.1 See Holt v. Bowersox, No. 4:97CV00938 LOD, slip op. at 2 n.1 (Order II)


      1
       The district court found that at the time of petitioner's conviction there was no
time-limit for pursuing post-conviction relief under Mo. S. Ct. Rule 27.26, but that on
January 1, 1988, that rule was replaced by Mo. S. Ct. Rule 29.035, which fixed July 1,
1988, as the deadline for filing for post-conviction relief from convictions entered
before the rule's effective date. See Order II at 2 n.1.

                                          -3-
(July 14, 1998). However, in 1996, petitioner apparently filed a state habeas petition
which was denied. Petitioner initiated this federal habeas corpus action pro se on
April 2, 1997, in the District Court for the Western District of Missouri, but the case
was transferred to the Eastern District of Missouri. To his pro se petition, petitioner
attached the psychiatric reports summarized above. In its answer, the State alleged that
the petition should be denied because petitioner had procedurally defaulted his claims
when he failed to pursue post-conviction relief in state court within the required time
period. The State provided no portion of the state court record nor any information
about the location or contents of the state court record with its answer.
        The district court denied the petition. Based on petitioner's concession that he
had not filed a timely post-conviction relief motion, the district court found that
petitioner had procedurally defaulted his claims. See Order I at 2. Furthermore, the
district court found that petitioner did not prove cause and prejudice. The district court
rejected petitioner's two proffered grounds for finding cause: mental incapacity and
ineffective assistance of counsel. It rejected the ineffectiveness of counsel because
petitioner had never had post-conviction counsel and because there is no right to post-
conviction counsel. See 

It found that mental illness could not constitute cause
for default because, since petitioner's medical records indicated that he had undergone
psychiatric evaluation prior to trial, he "[could] not argue that the factual or legal basis
for his claim was not reasonably available to demonstrate cause to excuse his default."

Furthermore, the district court rejected petitioner's assertion that mental illness
caused his default because it held petitioner had failed to make a conclusive showing
that mental illness prevented him from complying with the state post-conviction relief
procedures. See 

In addition, the district court rejected petitioner's claim
that he was actually innocent because his guilty plea was not knowing, intelligent, and
voluntary due to mental incapacity. The district court also based this conclusion on the
statement in petitioner's August 1987 medical report that petitioner had been evaluated




                                            -4-
prior to trial, showed no psychosis and was held responsible for his crime.2 See 

        Subsequently, petitioner filed a pro se motion to vacate or in the alternative for
permission to appeal in forma pauperis. See Order II. Petitioner brought the motion
under Fed. R. Civ. P. 60(b)(3) alleging that the State committed fraud or
misrepresentation by claiming in its answer to his petition that, in Missouri, habeas
corpus relief is unavailable to attack a guilty plea if the defendant fails to pursue post-
conviction relief. See 

The district court denied petitioner's motion, holding
that the State's argument was not fraudulent because failure to pursue post-conviction
relief bars Missouri habeas corpus relief, except in rare and exceptional cases where
fundamental fairness requires otherwise. See 

(quoting State ex rel. Simmons
v. White, 

(Mo. banc 1993) (quoting State v. Tolliver, 

(Mo. banc 1992))). The district court determined that petitioner's case did not fall
within this exception, thus rejecting his claim that mental illness rendered him
incompetent to enter a guilty plea. See 

-5. In doing so, the district court again
relied on the August 1987 medical report, finding that since it showed petitioner had
been evaluated prior to trial, his competency was not the kind of new evidence for
which the Missouri courts make exceptions to the general rule against hearing
procedurally barred claims. See 

The district court also denied petitioner's
motion to proceed on appeal in forma pauperis. See 

court denied petitioner’s application for a certificate of appealability
(COA), and petitioner timely appealed. This court granted petitioner a COA on the
issue of whether he had procedurally defaulted his claims, and appointed counsel to


       2
       The psychiatric report does not state the source of this information. It does not
discuss the nature of the evaluation or why the evaluation was performed, i.e.,
competency vs. sanity at time of the crime. Nor does it list what findings, if any, it
prompted the state trial court to make.

                                            -5-
represent petitioner on appeal. For the reasons discussed below, we reverse the
judgment of the district court and remand for further proceedings consistent with this
opinion.

                                       DISCUSSION

       "We review the district court's legal conclusions de novo and its factual findings
for clear error." Wilkins v. Bowersox, 

, 1011 (8th Cir. 1998) (citing
Miller v. Lock, 

, 870) (8th Cir. 1997)). We defer to a state court's
findings of fact to the extent they are fairly supported by the record. See 

v. Norris, 

, 712-13 (8th Cir. 1997)).

       Petitioner argues that the district court erred in denying his petition for habeas
corpus relief because its conclusions were not supported by the record. Specifically,
petitioner argues that the district court erred in: (a) finding that his mental illness did
not constitute cause and actual prejudice excusing his procedural default, (b) rejecting
his actual innocence argument that his procedural default should be excused because
his guilty plea was not knowing, intelligent, and voluntary due to mental incapacity, and
(c) finding that he had pursued the wrong remedy in state court. In addition, petitioner
argues that the record before the district court was insufficient due to the State's failure
to comply with Rule 5 of the Rules Governing § 2254 Proceedings because respondent
did not address all his arguments in its answer, nor did it provide the district court with
any portion of the state court record or inform the court of the availability or location
of those documents.

                                PROCEDURAL DEFAULT

       As a general rule, federal courts are precluded from reviewing in §2254 cases
those claims which a petitioner has not yet presented to the state tribunals in the state
of conviction. See 28 U.S.C. § 2254(b). However, procedural default may be excused

                                            -6-
and the petition reviewed if a petitioner can prove cause and prejudice for the default
or that a constitutional error led to his or her conviction despite his or her actual
innocence. See Stanley v. Lockhart, 

, 710 (8th Cir. 1991) (citing Murray
v. Carrier, 

(1986)). In light of our discussion of petitioner's cause and
prejudice arguments below, we do not reach his actual innocence claim.
                                           A.

        Our cases establish that, in order for mental illness to constitute cause and
prejudice to excuse procedural default, there must be a conclusive showing that mental
illness interfered with a petitioner's ability to appreciate his or her position and make
rational decisions regarding his or her case at the time during which he or she should
have pursued post-conviction relief. See Garrett v. Groose, 

, 285 (8th Cir.
1996); Nachtigall v. Class, 

, 1080-81 (8th Cir. 1995); Stanley v. 

. Mental illness prejudices a petitioner if it interferes with or
impedes his or her ability to comply with state procedural requirements, such as
pursuing post-conviction relief within a specific time period. See Malone v. Vasquez,

, 719 (8th Cir.), cert. denied, 

(1998). Furthermore, we
have held that a defendant is not competent to waive post-conviction remedies if he or
she is "suffering from a mental disease, disorder, or defect that may substantially affect
his [or her] capacity to appreciate his [or her] position and make a rational choice with
respect to continuing or abandoning further litigation." Anderson v. White, 

, 321 (8th Cir. 1994).

       Applying these standards, we hold that the district court erred in rejecting
petitioner's claim that mental illness constituted cause and prejudice for his procedural
default. First, the district court erred in assuming that petitioner's knowledge of the
legal and factual issues regarding mental competency before trial could alone operate
to bar him from claiming mental illness as cause for his procedural default. The
standard noted above limits the inquiry into petitioner's mental competency to the time
period during which he should have pursued post-conviction relief. In this case, as the

                                           -7-
district court found, the relevant time frame was January 1987 to July 1, 1988. See 

. Petitioner's competency3 or familiarity with the legal and factual issues of
mental competency before trial are not dispositive.

       Second, the only evidence before the district court concerning petitioner's mental
state during the relevant time period showed that petitioner lacked the capacity to
appreciate his situation and make rational decisions. Petitioner's psychiatric reports
demonstrate that in August, 1987, if not earlier,4 he suffered from mental illness which
prevented him from making rational decisions or appreciating his situation. See App.
Add. at 11-12. The August 1987 psychiatric report indicates that petitioner was
diagnosed with schizoaffective disorder, that petitioner was suffering delusions, and
states that "[h]e [believed] that the year was 1986 and he was not oriented to time,
place, or date." 

we believe that this is the kind of evidence which
would satisfy the standard,5 we cannot say that it is conclusive proof of cause or




      3
      We note that a state court "finding of competence, once made, continues to be
presumptively correct until some good reason to doubt it is presented." Garrett v.
Groose, 

, 285 (8th Cir. 1996).
      4
        The August 1987 report states that petitioner's "present medication, namely
Haldol, be gradually and [illegible] increased to a level where the patient's psychotic
thought process" could be controlled. App. Add. at 12 (emphasis added). The fact that
petitioner was already taking prescription drugs to control his mental illness, coupled
with the reports that he exhibited strange behavior when he arrived in prison, strongly
suggests that he suffered from mental illness well before August 1987.
      5
       For example, the fact that petitioner was not aware of what year it was, where
he was, or even his own identity, is a major impediment which could have prevented
him, proceeding pro se, from being able to appreciate and comply with the formalities,
such as deadlines and formulating legal arguments, which the State procedures require;
his symptoms also could have prevented him from making rational decisions.

                                          -8-
prejudice at this time because the record contains no information about petitioner's
condition during the remainder of the post-conviction relief period.6

        Accordingly, we remand this matter to the district court to determine whether
petitioner's mental illness prevented him from appreciating his position and from
making rational decisions during the remainder of the period of post-conviction relief--
August 1987 to July 1, 1988--and whether his mental illness interfered with or impeded
his ability to comply with the procedural requirements for pursuing post-conviction
relief during that time.

                                            B.

       It is well-established that a state court may cure a procedural default if it reaches
the merits of a petitioner's claim, even if the claim is not raised according to normal
post-conviction procedures. See Ylst v. Nunnemaker, 

, 801 (1991)
("State procedural bars are not immortal . . . ; they may expire because of later actions
by state courts."). The parties both admit that petitioner filed some kind of habeas
petition in state court in 1996, but since the decision in that case is not part of the
record on appeal, we cannot tell what claims petitioner raised nor the state court's
scope of review. If the state court analyzed the merits of petitioner's claims about the


       6
        We note that the next report in the record after the August 1987 report is dated
December 18, 1990 and details petitioner's treatment from May or June 1990. See
App. Add. at 13. This report is consistent with the earlier finding of mental
incompetence, as it reports that petitioner's mental illness continues. The December
1990 report contains a new diagnosis of chronic undifferentiated schizophrenia and
dysthymie disorder and states that petitioner started taking lithium in 1990. See 

December 1990 report suggests that it may be the next report after the
August 1987 report, since it states that petitioner was previously seen on August 6,
1987, there may be interim reports or other sources of information that would show the
status of petitioner's mental illness between August 1987 and July 1, 1988.

                                            -9-
effect of his mental illness on the constitutional validity of his guilty plea, then the
procedural default for not pursuing post-conviction relief is cured. See 

last
state court to be presented with a particular federal claim reaches the merits, it removes
any bar to federal-court review that might otherwise have been available.") (citing
Harris v. Reed, 

, 262 (1989)).

       As a possible alternative to cause and prejudice analysis on remand, the district
court could consider whether the state court reached the merits of petitioner's 1996
state habeas petition.7

                                     CONCLUSION

       For the reasons discussed above, we reverse the judgment of the district court
and remand for further proceedings consistent with this opinion. In addition, the district
court should consider whether to appoint petitioner's counsel on appeal to represent him
in the district court proceedings.



      A true copy.

             Attest:

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




      7
      We direct the district court's attention to Rule 5 of the Rules Governing § 2254
Proceedings, which may assist the district court in its inquiry.

                                          -10-