Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes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.darwin E. Conley, Appellant, v. Bill Armontrout, Appellee, 39 F.3d 1184 (8th Cir. 1994)

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U.S. Court of Appeals for the Eighth Circuit - 39 F.3d 1184 (8th Cir. 1994) Submitted: Sept. 13, 1994. Filed: Oct. 21, 1994

Before MAGILL, Circuit Judge, GIBSON, Senior Circuit Judge, and ARNOLD, Circuit Judge.


Darwin Conley, a Missouri inmate, appeals from the district court's1  denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Conley alleges trial errors and ineffective assistance of counsel. We affirm.

Conley was convicted, after a jury trial in Missouri state court, of rape, kidnapping, robbery in the first degree, two counts of sodomy and two counts of armed criminal action. He received consecutive sentences on all counts, totalling 115 years imprisonment. He exhausted his Missouri post-conviction remedies and filed this federal habeas corpus action alleging: (1) that the trial court erred in admitting post-hypnotic identification testimony of the victim; (2) ineffective assistance of counsel; and (3) that a fatal variance existed between the indictment and the jury instructions.

The district court dismissed the habeas petition, adopting the magistrate judge's report and recommendation. The magistrate judge found that post-hypnotic identification testimony of the victim was properly admitted under existing state evidentiary rules at the time of Conley's state trial; there had been no ineffective assistance of counsel; and that there was no fatal variance because Conley was convicted of a lesser included offense of the charged offense. Having carefully reviewed the record and the parties' briefs, we agree with the well-reasoned opinion of the district court and magistrate judge and affirm. See 8th Cir. R. 47B.

Accordingly, the judgment of the district court is affirmed.


The Honorable George F. Gunn, Jr., United States District Judge for the Eastern District of Missouri, adopting the report and recommendation of the Honorable David D. Noce, United States Magistrate Judge for the Eastern District of Missouri