Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.arthur S. Clay, Appellant, v. James Anthony (tony) Gammon, Superintendent, Farmingtoncorrectional Center, Appellee, 89 F.3d 840 (8th Cir. 1996)

In 1989 a jury found Arthur S. Clay guilty of forcible rape. The Missouri Court of Appeals affirmed his conviction and sentence, and the denial of his motion for postconviction relief. State v. Clay, 812 S.W.2d 872, 876 (Mo.Ct.App.1991). In 1994 Clay filed his 28 U.S.C. § 2254 petition. Raising a due process violation for the first time, Clay argued he should have been sentenced by the jury instead of the trial court because his earlier conviction had been expunged in 1980. See Mo.Rev.Stat. §§ 557.036.4, 558.016.2 (1986). The district court denied relief.

Although the district court correctly denied Clay's petition on the merits, we conclude Clay's claim is procedurally barred. Having failed to present this federal claim in the state courts, Clay has shown neither cause to excuse his procedural default and actual prejudice resulting from the alleged denial of due process nor a fundamental miscarriage of justice. Clay's claim is thus barred from federal review. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

We affirm the district court.