Suzanne Philbrick, Oak Lawn, Ill., for appellant.

Ronald L. Jurgeson, Jefferson City, Mo., for appellee.

Before FAGG and BEAM, Circuit Judges, and ROY,* Senior District Judge.

ROY, Senior District Judge.

Melvin Leroy Tyler appeals from the district court's1 denial of his petition for a writ of habeas corpus and the district court's order denying Mr. Tyler's Rule 60(b) motion to vacate the judgment. We affirm the district court's rulings.

I. BACKGROUND

On August 4, 1978, Melvin Leroy Tyler was convicted in the State of Missouri of two counts of robbery and two counts of assault. The facts surrounding Tyler's crimes were set out as follows in the petitioner's direct-appeal opinion.

Evidence supporting the verdicts showed that on the morning of December 27, 1976, defendant entered the home of Ralph and Mary Petersen and their daughter Christine. Prior to his entry he had approached Christine's friend, Laura Harmon, while she was sitting in the Petersen yard and had asked Laura if the neighbors were home. At this time Laura's sister, Angie Harmon, was tapping at Christine's bedroom window to get her attention. Laura and Angie Harmon entered the Petersen home and went to Christine's bedroom where they saw defendant walk by the window. A few minutes later as Mrs. Petersen was passing the bathroom door defendant put a gun to her side and ordered her into the bedroom where her husband was sleeping. Defendant stated, "I want the two little girls that came into this house. They stole something out of my car." Mr. Petersen told defendant that the girls had spent the night there and could not have stolen anything. He struck Mr. Petersen, obtained a knife from the kitchen, cut the telephone line, and ordered Mr. and Mrs. Petersen into a closet. Defendant forced Christine and Laura into Christine's bedroom and ordered them to remove their clothes. Christine hesitated and defendant hit her on the head with the butt of the knife. When Laura began screaming he hit her on the head with the butt of the gun. Eventually both girls removed their clothes. Defendant advanced toward them unzipping his pants. Angie was hiding under the bed while defendant was in Christine's bedroom. Meanwhile, Mr. and Mrs. Petersen had pushed open the closed door. They saw Laura and Christine in the hallway naked, and Laura was covered with blood. Defendant left Christine and Laura in the bedroom and walked out to confront Mr. and Mrs. Petersen and asked for money. Mr. Petersen gave him $100. There was testimony that Mrs. Petersen's wallet containing her credit cards was missing from her purse in the living room after defendant left. Defendant was arrested the next day, December 28, in Kansas City, Missouri. He had in his possession a .25 caliber pistol and a wallet containing the Petersen's credit cards.

State v. Tyler, 622 S.W.2d 379 (Mo.App., E.D.1981).

Tyler was sentenced to terms of fifty years imprisonment on each count of robbery and five years imprisonment on each count of assault, all sentences to be served consecutively.

On July 19, 1988, Tyler filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 in the United States District Court for the Eastern District of Missouri. The case was referred to United States Magistrate Carol E. Jackson who filed a Magistrate's report and recommendation, recommending that Tyler's petition for a writ of habeas corpus be denied. On July 12, 1989, the district judge overruled Tyler's exceptions to the Magistrate's Report and Recommendation and adopted the recommendation. Mr. Tyler filed a Notice of Appeal on July 18, 1989, including the order denying the habeas petition on July 12, 1989, and on August 10, 1989, filed a Notice of Appeal from the denial of the Rule 60(b) motion.

Tyler raises the following issues on appeal: (1) Whether the district court committed reversible error when it denied the relief sought in paragraph 1 of Tyler's petition for habeas relief, to wit: that he was denied due process by the filing of a false addendum transcript in the Missouri Court of Appeals; (2) Mr. Tyler maintains that during his Missouri trial, his witnesses, Greg Dorsey and Donald Winters were terrorized during the trial and threatened by the police or the investigator for the prosecutor, therefore he was denied due process; and (3) Tyler was denied due process when he was convicted on two assault counts where there was insufficient evidence to prove him guilty beyond a reasonable doubt.

I. Filing of Addendum Transcript.

Tyler previously filed a petition for federal habeas relief on February 22, 1982, Case No. 82-246C(3). Tyler acknowledges that in that previous petition, he raised, inter alia, the issues of (1) the addendum transcript, which he alleged was false, and (2) the intimidation and terrorizing of his witnesses Greg Dorsey and Donald Winters.

In his original and amended petitions filed on July 19, 1988 and August 31, 1988, which are the subject of this appeal, Tyler's first and second claims are that (1) he was denied due process by the trial court's filing of a false addendum transcript with the Missouri Court of Appeals without a hearing or opportunity to be heard; and (2) that there was prosecutorial misconduct in "terrorizing" and "threatening" petitioner's trial witnesses. The district court refused to entertain either grounds as constituting abuse of the writ.

In an order entered on March 27, 1989, Magistrate Jackson stated that on January 19, 1983, the Court ordered Tyler to delete two unexhausted grounds or risk dismissal of the petition under Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1981). In the same order, the Magistrate stated:

Petitioner chose to delete the two grounds in which he had alleged that the state judge in the criminal case falsified a transcript to the Missouri Court of Appeals and that the Missouri Court of Appeals denied petitioner a fair hearing because it ignored the issue of the false transcript. After considering the merits of Tyler's remaining grounds, the Court ruled on March 26, 1984 that the petitioner was not entitled to relief. Upon appeal, the Eighth Circuit affirmed. Tyler v. Wyrick, 760 F.2d 272 (8th Cir.1985) (without reported opinion).

Tyler contends that it was his understanding at all times that he would be able to delete the "unexhausted" claims alleged in the previous petition, take the steps necessary to exhaust the state remedies, and present them in a subsequent petition for habeas relief. He contends that he was intentionally misled by the attorney general's office, and that they should be estopped from claiming an abuse of the writ. He further contends that the issue raised in the previous petition should have been treated as an exhausted claim, since it was futile to present it to state court. Alternatively, Tyler contends that he made a "colorable showing of factual innocence," that Greg Dorsey admitted he committed the crime, that Tyler was not afforded the opportunity to present Dorsey or develop his testimony. Finally, Tyler asserts that he was at the very least entitled to an evidentiary hearing.

The Court finds Tyler's arguments to be without merit. In the Magistrate's recommendation, the Magistrate fully and accurately set out the applicable legal standards to be used by the Court in determining an abuse of the writ, citing 28 U.S.C. Sec. 2244(b), 28 U.S.C. Sec. 2254, and Rule 9(b).2 In Williams v. Lockhart, 862 F.2d 155, 159 (8th Cir.1988), this Court stated that these rules allow the district court to dismiss a subsequent petition as an abuse of the writ if the district court is satisfied that the petitioner deliberately withheld the claims presented in the second petition from the original habeas corpus petition.

In Smith v. Armontrout, 888 F.2d 530 (8th Cir.1989), stay denied, --- U.S. ----, 110 S. Ct. 830, 107 L. Ed. 2d 826 (1990), this Court summarized the abuse-of-the-writ doctrine as follows:

An attempt to raise claims omitted from a previous petition should be rejected as an abuse of the writ if (1) the previous omission was the deliberate choice of the petitioner, or (2) the previous omission is not excusable under the cause-prejudice-innocence approach of Wainwright and Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397. (Fed.Cir.1986)

Id., 888 F.2d at 541.

The facts support the Court's conclusion that Tyler deliberately withheld the claims presented in the second petition from the original habeas corpus petition. Tyler presented the two claims in his petition filed in 1982. He was on notice that under the authority of Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982), "a prisoner who decided to proceed only with his exhausted claims and deliberately sets aside his unexhausted claims risks dismissal of subsequent federal petitions." Id., 455 U.S. at 521, 102 S. Ct. at 1205. This very quotation can be found in appellee's Response to Order to Show Cause, which was attached as an exhibit to Tyler's Opposition to the State's Response to the Order to Show Cause Why the Writ of Habeas Corpus Should Not Issue. This dispels Tyler's argument that he was misled by the Attorney General's office. It is clear that the choice to proceed with only the exhausted claims was Tyler's deliberate choice.

Tyler also argues that he should not have been required to delete the issue raised in his original petition because the act of presenting it to the Missouri appellate court, by way of motion to recall the mandate,3 was a futile effort. The Court agrees with the district court's findings that under the exhaustion doctrine, the federal court is not concerned with whether a petitioner does in fact receive the relief sought under the available state procedure. Instead, the pertinent issue is the availability of a procedure by which the state courts can consider a petitioner's constitutional claims. See, Snethen v. Nix, 736 F.2d 1241, 1245 (8th Cir.1984).

Tyler alternatively argues that he made a "colorable showing of factual innocence," and that the ends of justice require the Court to consider the merits of his first claim.