United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1930
                                    ___________

Kenneth E. Murray,                       *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the District
                                         * of Minnesota.
Sheryl Ramstad Hvass,                    *
Commissioner of Corrections,             *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: May 14, 2001

                                   Filed: October 9, 2001
                                    ___________

Before MORRIS SHEPPARD ARNOLD, BRIGHT, and BYE, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       After the state of Minnesota convicted Kenneth Murray of eleven counts of
criminal sexual conduct involving minors, see Minn. Stat. § 609.342, he twice sought
relief from his conviction through direct appeal. See State v. Murray, 

(Minn. Ct. App. Nov. 17, 1992), modified, 

(Minn. 1993)
(per curiam), and State v. Murray, 

(Minn. Ct. App. Mar. 1, 1994).
In his second appeal, Mr. Murray, in a separate pro se brief, argued for the first time
that his counsel was ineffective at his trial. The Minnesota Court of Appeals, however,
declined to address this claim because it was "not litigated at the trial court level,"
Murray, 

at *2, and was therefore not subject to review on appeal.

        Mr. Murray subsequently petitioned the federal district court for habeas corpus
relief, again maintaining that he did not receive effective representation from his trial
counsel. The district court declined to consider this claim, however, because it found
that Mr. Murray had not yet exhausted all of his opportunities for obtaining relief from
the Minnesota courts. See Murray v. Wood, 

, 631-32 (8th Cir. 1997). A
panel of this court agreed, concluding that Mr. Murray should argue the issue of
ineffective assistance of counsel in his state post-conviction petition for relief. See 

        Mr. Murray returned to the Minnesota courts and moved for post-conviction
relief, on the ground of the ineffectiveness of his trial counsel. See Murray v. State,

at *1-*2 (Minn. Ct. App. Oct. 27, 1998). The Minnesota courts
rejected the claim, holding that it was procedurally barred because Mr. Murray did not
raise it in his first direct appeal. See 

Mr. Murray then returned to federal
court and petitioned a second time for habeas corpus relief. The district court, adopting
a magistrate judge's detailed report and recommendations, determined that habeas relief
was unavailable to Mr. Murray because the state courts had held that his claim was
procedurally defaulted. We agree and affirm the judgment of the district court.1

                                          I.
       In evaluating a petition for federal habeas corpus relief, a district court is
precluded from considering any issue that a state court has already resolved on an
independent and adequate state ground. See Lee v. Kemna, 

, 1038 (8th
Cir. 2000) (per curiam), cert. granted, 

(2001). This includes cases in


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

                                           -2-
which the state judgment turns on an independent and adequate state procedural
ground, such as when a state court has determined that a claim has been lost because
of default. See Coleman v. Thompson, 

, 729-30, 750 (1991); see also
Abdullah v. Groose, 

, 411 (8th Cir. 1996) (en banc), cert. denied, 

(1996). This rule is nearly absolute, allowing exceptions only when a habeas
petitioner can "demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law," 

, or when the petitioner can
show actual innocence, see Murray v. Carrier, 

, 496 (1986); see also
Schlup v. Delo, 

, 326-27 (1995).

        In this case, the Minnesota courts determined, in evaluating Mr. Murray's request
for post-conviction relief, that he was procedurally barred from arguing that he received
ineffective assistance from counsel at trial because he did not raise the issue during his
first direct appeal. See Murray, 

at *3. "Under Minnesota caselaw,
all matters raised on direct appeal from a conviction, and all claims known but not
raised, are precluded from being considered on a subsequent petition for postconviction
relief," 

absent exceptional circumstances not present here, claims
that trial counsel was ineffective. See 

contends that it was error for the Minnesota courts to refuse to
consider his ineffective assistance argument because a panel of this court, in resolving
his first habeas corpus petition, suggested that he might be able to obtain relief in state
post-conviction proceedings. That panel said that "[b]ecause Minnesota courts will
'consider[] ineffective-assistance claims in postconviction proceedings even though
[the] petitioner did not raise the claims on direct appeal,' ... we conclude that Murray
has not exhausted his state remedies with respect to that claim," 

, quoting Scruggs v. State, 

, 25 (Minn. 1992). Mr. Murray now
maintains that this statement by our court created a directive that the Minnesota courts
were obligated to follow. We disagree.


                                           -3-
      We reject Mr. Murray's contention because our court's previous conclusion, as
we read it, cannot be understood as issuing an order to the Minnesota courts. At most,
our court, in addressing Mr. Murray's first habeas petition, determined that his claim
was not eligible at that time for federal review because he might yet find relief from the
Minnesota courts. The court did not purport to guarantee Mr. Murray that he would
have his claim heard on the merits by the state court. Indeed, our court would never
undertake to do that, because it is not the province of a federal court to decide whether
a matter ought to be considered procedurally defaulted under state law. See
Wainwright v. Sykes, 

, 87, 90 (1977); see also May v. State of Iowa, 

at *3 (8th Cir. May 16, 2001).

       Mr. Murray also maintains that his ineffective assistance argument deserves
federal review because the Minnesota courts, in holding that his claim was procedurally
defaulted, applied a rule that they have not consistently followed. He points out, for
example, that, as we have already noted, the Minnesota Supreme Court declared in

, that "a direct appeal is not the most appropriate way to
raise an ineffective-assistance claim." The Scruggs court also noted that Minnesota
courts have previously "considered ineffective-assistance claims in postconviction
proceedings even though [a] petitioner did not raise the claims on direct appeal," id.;
see also Berg v. State, 

, 595 n.2, 595-96 (Minn. Ct. App. 1996).

       It is true that a federal court is not barred from reviewing a state judgment on a
petition for habeas corpus if that judgment is based on a state rule that is inconsistently
followed. See Ford v. Georgia, 

, 424-25 (1991). But the general rule in
Minnesota, as we have said, is that "where [a] direct appeal has once been taken, all
matters raised therein, and all claims known but not raised, will not be considered upon
a subsequent petition for postconviction relief," State v. Knaffla, 

, 741
(Minn. 1976). This rule has been consistently followed by Minnesota courts for more
than twenty years. See, e.g., Townsend v. State, 

, 227-29 (Minn.


                                           -4-
1998); Fox v. State, 

, 824-25 (Minn. 1991); and Case v. State, 

, 799 (Minn. 1985).

       After a careful review of the cases that Mr. Murray cites as examples of when
the Minnesota rule has not been consistently followed by the courts of that state, we
conclude that those cases, in the end, do not support his contention. Under Minnesota
law, a procedural default can be overlooked "[i]n limited situations, if fairness so
requires and if the petitioner did not 'deliberately and inexcusably' fail to raise the issue
on direct appeal," Roby v. State, 

, 484 (Minn. 1995), quoting Bangert
v. State, 

, 545 (Minn. 1979); see also 

.
After Scruggs, the Minnesota Supreme Court, in Hale v. State, 

, 926
(Minn. 1997), explained that the Scruggs court had simply "exercised its discretion to
review in the interests of justice." In this case, the Minnesota courts evidently
concluded that the interests of justice did not warrant excusing Mr. Murray's procedural
default, and this determination is entitled to respect by our court.

       Because "[a] federal court conducting habeas corpus review must ordinarily
refrain from reviewing any issue that a state court has already found to be defaulted on
an adequate and independent state-law basis," Owsley v. Bowersox, 

,
1058 (8th Cir. 2000), and because Mr. Murray has not alleged cause and prejudice for
his default or that he is actually innocent, we decline to consider the merits of his
argument with respect to ineffective assistance of counsel.

       We therefore affirm the judgment of the district court.

BYE, Circuit Judge, concurring in the judgment.

      Judge Bright argues persuasively in dissent that Minnesota courts have spoken
inconsistently in explaining when a defendant may raise an ineffective assistance of
counsel claim. I do not believe that Minnesota appellate decisions on this topic are

                                            -5-
wildly divergent, and I find that these decisions can, for the most part, be reconciled.
I nevertheless share Judge Bright’s concern that Minnesota courts have not spoken with
the clarity demanded by judges, lawyers and pro se prisoners alike.

       If we excuse Kenneth Murray’s default because it springs from an inconsistent
application of state procedural rules, see Ford v. Georgia, 

, 423-25
(1991), we must consider the merits of his three ineffective assistance of counsel
claims. I would affirm the district court’s denial of a writ of habeas corpus because
Murray has failed to demonstrate that his trial lawyer’s alleged errors “undermine
confidence in the outcome,” Strickland v. Washington, 

, 694 (1984), or
that his claims demand an evidentiary hearing.

BRIGHT, Circuit Judge, dissenting.

      I respectfully dissent.

       I quote language from an important Eighth Circuit case, which is appropriate to
the instant case:

             The history of this case illustrates not only the foolishness and
      inefficiency, but more importantly the injustice which results when courts
      rigidly apply procedural rules in post-conviction proceedings without
      regard to the function and importance of the writ.

Ashby v. Wyrick, 

, 794 (8th Cir. 1982) (Lay, Chief Judge, concurring).

       Mr. Murray contends that his ineffective assistance of trial counsel claim
deserves federal review because the Minnesota courts applied procedural default rules
that are not consistently followed. See Ford v. Georgia, 

, 424-25 (1991)
(recognizing that state procedural default rules must be firmly established, regularly


                                          -6-
followed, and readily ascertainable in order to be considered adequate to bar federal
review).

       The decisions of the Minnesota courts do not rest on an adequate state law
ground and, therefore, Mr. Murray was denied a fair opportunity to seek relief in state
court. See White v. Bowersox, 

, 780 (8th Cir. 2000) ("The underlying
principle is 'that failure to follow state procedures will warrant withdrawal of a federal
remedy only if those procedures provided the habeas petitioner with a fair opportunity
to seek relief in state court.'") (quoting Easter v. Endell, 

, 1347 (8th Cir.
1994)). The procedural rule that barred Mr. Murray's claims was neither regularly
followed nor readily ascertainable.

                                            I.

       To understand the hurdles facing Mr. Murray for post-conviction relief and to
appreciate the importance of consistency in the Minnesota procedural default rules, it
is necessary to review the winding path of Mr. Murray's efforts to bring an ineffective
assistance of counsel claim.2

      Mr. Murray was convicted by the Minnesota district court, sitting without a jury,
on August, 27, 1991. An appointed public defender brought Mr. Murray's first direct
appeal.3 On that appeal, he obtained relief from both the Minnesota Court of Appeals,


      2
       This recitation of procedural history will focus on the ineffectiveness of counsel
claim even though Mr. Murray raised numerous other claims on state direct and post-
conviction appeals and on federal habeas review.
      3
        Mr. Murray has repeatedly asserted, and presented a letter from counsel stating
that on his first direct appeal, appellate counsel advised him that he need not submit a
pro se supplemental brief raising issues, such as his ineffectiveness claim, because he
could raise and preserve those issues at resentencing. Cf. Townsend v. State, 582

                                           -7-
State v. Murray, No. C7-92-468, 

, at *4, slip. op. at 9 (Minn. Ct.
App. Nov. 10, 1992) (unpublished), and the Minnesota Supreme Court, State v.
Murray, 

, 412-13 (Minn. 1993), on the grounds that there existed
insufficient evidence to support his conviction and that he had been sentenced under
an ex post facto application of law.4 On remand, Mr. Murray waived his right to
representation and represented himself. At the resentencing hearing, Mr. Murray
alleged inter alia that he had received ineffective assistance of counsel at trial. The
trial judge informed Mr. Murray his ineffectiveness claim was properly raised in a state
post-conviction proceeding, rather than on a resentencing from a direct appeal.5
See Exh. d, Addendum, Report and Recommendation, Mar. 27, 1995, at 5.

      On what is styled as his second direct appeal,6 Mr. Murray was again
represented by appointed counsel. Over Mr. Murray's objections, counsel chose not
to include Mr. Murray's ineffectiveness claims, and so Mr. Murray filed a
supplementary pro se brief. The trial court rejected all of Mr. Murray's claims for


N.W.2d 225 (Minn. 1998) (finding procedural default where appellate counsel
explicitly informed petitioner that he could present issues in a pro se supplemental
brief, but he missed the filing deadline) (emphasis added).
      4
        Because Mr. Murray is currently bringing an ineffectiveness claim, it should be
noted that Mr. Murray's trial counsel failed to notice that Mr. Murray was illegally
sentenced under a statute that was enacted after Mr. Murray committed the majority
of his offenses. The Minnesota Supreme Court described this as counsel's "inexcusable
failure to object" to the applicability of the statute. 

.
      5
       The confusion in Minnesota courts regarding when to bring ineffectiveness
claims is revealed by the fact that the state trial judge at resentencing pondered the
possibility of treating a portion of the resentencing hearing as a post-conviction hearing
in order to allow Mr. Murray to argue all his claims.
      6
       None of the courts to consider Mr. Murray's various appeals has explained why
bringing a claim on "second" direct appeal is not sufficient to exhaust his state
remedies.

                                           -8-
relief, including the claims raised in his pro se brief. The Minnesota Court of Appeals
affirmed the trial court and stated that the issues raised in Mr. Murray's pro se brief
"were raised and decided on the first appeal or were not litigated at the trial court level
and will not be decided on appeal." State v. Murray, No. C1-93-1626, 

, at *2, slip op. at 5 (Minn. Ct. App. Mar. 1, 1994) (unpublished). The court did
not discuss whether Mr. Murray could present any of these issues in a state post-
conviction proceeding. On April 19, 1994, the Minnesota Supreme Court denied
further review without comment.

       Mr. Murray next sought a writ of habeas corpus in federal court. In its order, the
district court determined that Mr. Murray had not exhausted all viable state avenues for
alleging ineffective assistance of counsel because Mr. Murray could still raise the issue
in a state post-conviction proceeding.7 This court granted review and addressed Mr.
Murray's ineffective assistance of counsel claim:

      [W]e note that Minnesota courts have consistently held that "a direct
      appeal from a judgment of conviction is not the most appropriate way to
      raise a claim of ineffective assistance of trial counsel because the
      reviewing court does not have the benefit of all the facts concerning why
      defense counsel did or did not do certain things."




      7
          Specifically, the Report and Recommendation informed Mr. Murray:

      Minnesota courts have recognized that an ineffective assistance of
      counsel claim cannot be effectively raised on direct appeal and is properly
      raised in a post-conviction proceeding under Minn. Stat. 590.01-.06.
      Harris v. State, 

, 169 (Minn. Ct. App. 1991); Garasha v.
      State, 

, 22 (Minn. Ct. App. 1986).

Exh. d, Addendum, Report and Recommendation, Mar. 27, 1995, at 8.

                                           -9-
Murray v. Wood, 

, 631-32 (8th Cir. 1997) (emphasis in original) (citing
Roby v, State, 

, 484 n.1 (Minn. 1995) and Berg v. State, 

(Minn. Ct. App. 1996)).

       Amidst this uncertainty regarding Minnesota procedure, Mr. Murray filed a post-
conviction appeal with the Minnesota courts only to be denied once again. Murray v.
State, 

(Minn. Ct. App. Oct. 27, 1998)(unpublished), review denied,
(Minn. Jan. 21, 1999).

      On his second petition for federal habeas corpus relief, the district court adopted
the magistrate judge’s report and recommendations determining that habeas relief was
unavailable because Mr. Murray had procedurally defaulted his claim at the state level.



      This court granted a certificate of appealability on substantive issues relating
to ineffective assistance of counsel, not on the issue of whether there had been a
procedural waiver or whether Minnesota courts apply their procedural default rules
inconsistently. Therefore, the issue upon which this court resolves the Murray case
was not thoroughly briefed or argued. See Harris v. Bowersox, 

, 748
(8th Cir. 1999) (limiting appellate review to the issues specified in the certificate of
appealability). Mr. Murray briefed these issues and believed that his claims were
finally going to be heard on the merits. To the contrary, the opinion by this panel now
forecloses any possibility that Mr. Murray's claims will ever be heard.

       Eight years after first raising this issue, Mr. Murray still has never received an
evidentiary hearing on his claims. Even more troubling, he and other Minnesota
petitioners have been left without an accurate or clear understanding of what
procedures should be followed in order to avoid defaulting their ineffectiveness claims.




                                          -10-
                                           II.

       Mr. Murray's procedural morass could have been avoided if the Minnesota law
on when to raise ineffectiveness of trial counsel claims had been clearly stated by law
or court decision. Now the federal courts have only muddied the waters with two
opinions that themselves are inconsistent in their interpretation of Minnesota procedural
default of ineffectiveness claims.
       In 1997, a panel of this court found that Minnesota courts have "consistently"
held that a direct appeal from a judgment of conviction is not the most appropriate way
to raise a claim of ineffective assistance of trial counsel. Murray v. 

(emphasis added). Today, the current panel declares that the Minnesota courts
have "consistently" followed a rule that bars post-conviction consideration of matters
raised or known at the time of direct appeal. Slip op. at 4 (citing State v. Knaffla, 

, 741 (Minn. 1976)).

      The majority fails to appreciate that while the Knaffla rule has been applied to
various post-conviction matters for over twenty years, its specific application to claims
of ineffective assistance of trial counsel has been far from consistent. Just consider the
three cases offered by the panel to support its consistency claims. In Townsend v.
State, 

(Minn. 1998), no evidentiary hearing was ever held on
Townsend's ineffectiveness claims because the Minnesota Supreme Court could point
to specific evidence that petitioner and counsel were aware of the claims at the time of
direct appeal. In Fox v. State, 

(Minn. 1991), the Minnesota Supreme
Court on post-conviction appeal reviewed the merits of Fox's ineffectiveness claims
even though the petitioner was aware of the claim at the time of direct appeal and failed
to raise it. Finally, in Case v. State, 

(Minn. 1985), the post-conviction
trial court held an evidentiary hearing and denied each issue on its merits, then, on
appeal, the Minnesota Court of Appeals decided there was a procedural bar and the
trial court had erred in considering the merits. Ultimately, the Minnesota Supreme


                                          -11-
Court did not resolve whether the trial court had erred, but rather reviewed the record,
including the trial court's findings on the merits, and denied the ineffectiveness claim.

       Several of the inconsistencies in Minnesota procedural default rules are
evidenced in Murray v. State, 

. In its analysis, the Minnesota Court
of Appeals first laid out an exception to the Knaffla rule that allows ineffectiveness
claims to be heard if the claim is such that the reviewing court would have required
additional facts before determining competency of counsel. 

, at *3
(citing Black v. State, 

, 85 n.1 (Minn. 1997) ("An exception exists,
however, when the claim is such that the reviewing court needs additional facts to
explain the attorney's decisions.")). But then the court declared Mr. Murray's claim
defaulted with this non sequitur: "Since Murray did not present such evidence, the
post-conviction court did not err in concluding that Murray's claims for ineffective
assistance of counsel were procedurally barred because these claims were known or
should have been known to him at the time of his first appeal." 

       A determination that Mr. Murray did not present a claim that required additional
fact-finding8 does not support the lower court's finding that Mr. Murray knew about the
ineffectiveness claim, but failed to raise it. The court offers no facts to support its

      8
        This determination by the Minnesota Court of Appeals is rightfully challenged
by Mr. Murray. Just like the state appeals court in 1994, the court of appeals chose not
to consider the Black exception within the context of any of Mr. Murray's factual
allegations. State v. Murray, 

, at *2 (Minn. Ct. App. Mar. 1, 1994);

, at *3. However, the exception for gathering additional facts is
especially important in this case because Mr. Murray alleges that his attorney did not
know applicable law, did not use the relevant law to formulate cross-examination
strategy or to attack the legal basis of the complaint, and did not request in camera
review of documents typically desired by defense counsel in child sexual assault
cases. Each of these allegations of ineffectiveness requires additional facts such as
whether the attorney had studied certain cases, or made strategic decisions not to
pursue particular courses of action, etc.

                                          -12-
conclusion that Mr. Murray knew about the ineffectiveness claim. Moreover, the court
formulates the test as being whether "the claims were known or should have been
known" at the time of the first appeal. 

This formulation of the
rule is inconsistent with Knaffla and subsequent ineffectiveness claim cases. 

("[W]here direct appeal has once been taken, all matters raised
therein, and all claims known but not raised, will not be considered upon a
subsequent petition for post-conviction relief."). After reviewing numerous
Minnesota procedural default cases, only two even mention a "should have known"
inquiry, and neither involved an ineffectiveness claim. See 

(defendant knew or should have known about prosecutorial misconduct), and
Hanley v. State, 

, 279 (Minn. 1995) (defendant knew or should have
known about purported perjured testimony).

      Federal law on this issue has expressed a clear preference for ineffectiveness
claims to be raised on post-conviction appeal, rather than on direct appeal, precisely
because lay petitioners will not know if they have ineffectiveness claims. As the
Supreme Court explained in Kimmelman v. Morrison:

              Because collateral review will frequently be the only means through
      which an accused can effectuate the right to counsel, restricting the
      litigation of some Sixth Amendment claims to trial and direct review
      would seriously interfere with an accused's right to effective
      representation. A layman will ordinarily be unable to recognize counsel's
      errors and to evaluate counsel's professional performance, consequently
      a criminal defendant will rarely know that he has not been represented
      competently until after trial or appeal, usually when he consults another
      lawyer about his case.

, 378 (1986) (citations omitted).




                                         -13-
       My research has uncovered no Minnesota appellate decisions that cite to
Kimmelman or its reasoning. This indicates that Minnesota courts have not identified
a key justification for bringing ineffectiveness of trial counsel claims on post-conviction
rather than on direct appeal: the opportunity to have another attorney examine the
record.

       Another inconsistency presented by Murray, 

, involves
excusing the default in the interests of justice. This majority declares that the
Minnesota courts "evidently concluded that the interests of justice did not warrant
excusing Mr. Murray's procedural default," slip op. at 5, but there is no mention of the
interests-of-justice exception, considerations of fairness, or any application of the
"deliberately and inexcusably" language in the 1998 unpublished opinion. The
Minnesota Court of Appeals relied solely on its novel "knew or should have known"
theory to dismiss Mr. Murray's claims.

       Furthermore, the decision of this court downplays the importance of the interests-
of-justice exception by implying it was limited in Hale v. State, 

, 926
(Minn. 1997), even though that case involved a situation where the petitioner actually
did raise his ineffectiveness claims on appeal and thus clearly fell under the terms of
Knaffla. The majority also fails to note additional language from Bangert v. State:
"Because we believe that except in unusual circumstances a decision on the merits
better serves the purposes of our post-conviction-remedies statute than a disposition
on procedural grounds, we will address the claim." 

, 545 (Minn.
1979). Nor does it reveal the reasoning from Fox in which the "deliberately and
inexcusably" language is explained as an "extra requirement allow[ing] substantive
review of a petitioner's claims whose legal basis may have been either 'known' or
'reasonably available' at the time of direct appeal." 

(emphasis added).



                                           -14-
       Reviewing Minnesota cases that address procedural default of ineffective
assistance of trial counsel claims, the only thing that is clear is that this body of law is
in desperate need of reconsideration. Mr. Murray's claims did not receive the review
they deserved, despite his best efforts to bring them to light. After examining the
record no one could argue that Mr. Murray deliberately failed to raise this issue.
                                           III.

       I would reverse the district court and hold that there is no procedural default
because there is no adequate and independent state law ground barring federal habeas
review. I would remand this action for an evidentiary hearing on Mr. Murray's claim
of ineffective assistance of trial counsel.

      Even though the unpublished opinion of the Minnesota Court of Appeals is not
precedent, nonetheless it forecloses this petitioner from any opportunity to establish his
claims of ineffective assistance of trial counsel. If Minnesota courts continue to refuse
post-conviction remedies without adequate procedures, as in this case, then the Great
Writ of Habeas Corpus stands as a remedy.

       A true copy.

              Attest:

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




                                           -15-