2 F.3d 1154
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.
James NOEL, Appellant,
v.
Paul K. DELO, Appellee.
No. 93-1413.
United States Court of Appeals,
Eighth Circuit.
Submitted: August 18, 1993.
Filed: August 26, 1993.
Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.
PER CURIAM.
On June 11, 1984, James Noel was convicted by a Missouri state court jury of capital murder and was thereafter sentenced to life imprisonment without the possibility of probation or parole for fifty years. After exhausting his state court remedies, Noel filed a petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254, alleging as grounds for relief improper comments by the prosecutor during closing argument and the ineffective assistance of post-conviction counsel.
The United States magistrate judge to whom the case was assigned1 found that when reviewed in the light of the overwhelming evidence against Noel, the prosecutor's alleged improper comments did not deny Noel a fair trial. With respect to Noel's second ground for relief, the magistrate judge noted that ineffective assistance of post-conviction counsel is not grounds for habeas relief. Accordingly, the magistrate judge recommended that Noel's petition be denied.
The district court2 adopted the magistrate judge's report and recommendation and dismissed the petition.
Having reviewed the record, we agree with the district court that Noel's claims for relief are without merit. The evidence against Noel was indeed overwhelming, inasmuch as there were some fourteen witnesses who testified regarding the circumstances under which Noel stabbed the victim to death. Because the state courts reviewed Noel's contention that the prosecutor had made improper arguments to the jury, we apply the standard of review set forth in Brecht v. Abrahamson, 113 S. Ct. 1710 (1993), to this aspect of Noel's claim for habeas relief. See Orndorff v. Lockhart, Nos. 91-3510/3412/3513/3514, slip op. at 6-7 (8th Cir. July 15, 1993). Under Brecht, the standard of review to be applied to Noel's contention that the prosecutor made an improper argument to the jury is "whether the error 'had substantial and injurious effect or influence in determining the jury's verdict.' " 113 S. Ct. at 1722 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). We conclude that in the light of the record as a whole, the prosecutor's comments (if indeed they were improper) did not have substantial and injurious effect or influence in determining the jury's verdict.
Noel's second ground for relief, the alleged ineffective assistance of his post-conviction counsel, does not constitute the basis for habeas relief. Bowman v. Thompson, 111 S. Ct. 2546 (1991).
In his brief to this court, Noel also argues that his trial counsel was ineffective. Noel did not raise this argument in the district court, however, and we will not now consider it for the first time on appeal.
The district court's judgment is affirmed.