Phillip ROYAL, Appellant, v. Donald WYRICK, Appellee, 694 F.2d 525

BRIGHT, Circuit Judge. Phillip Royal, a Missouri state prisoner, appeals the order of the district court denying his petition for writ of habeas corpus. Royal sought relief from the state jury conviction for capital murder and sentence to life imprisonment without possibility of probation or parole for fifty years. We affirm the judgment of the district court. This case arises out of the January 13, 1978 robbery of the Neelyville branch of the Bank of Poplar Bluff, Missouri, and the abduction and murder of a bank teller named Tara Lynn Creach.

Following an automobile chase shortly after the robbery, police apprehended Royal and placed him under arrest. The police recovered money from the car, including marked “bait” money. After his arrest, Royal made certain statements that enabled the police to recover the body of Tara Lynn Creach. Royal’s trial was bifurcated, the first part on the capital murder charge, and the second part on punishment. Following Royal’s conviction and sentencing, he appealed to the Missouri Supreme Court. That court affirmed Royal’s conviction and sentence. State v. Royal, 610 S.W.2d 946 (Mo.1981) (en banc).

Subsequently, Royal brought this action for postconviction relief in the federal district court, asserting, with one exception, the same contentions that he had made in his appeal to the Missouri Supreme Court. The district court assigned the case to Magistrate William S. Bahn for disposition based on the record made in connection with Royal’s state trial and on supplementary written materials filed in support of the petition for writ of habeas corpus. The magistrate considered each of the issues raised by Royal, and on all but one of the points, made findings and rulings against Royal.

The magistrate recommended that Royal’s contention that the police obtained incriminating statements from him through coercion be dismissed so that he could seek postconviction relief in the Missouri state courts. The district court adopted the magistrate’s report and entered a judgment of dismissal. Royal brings this appeal, asserting that habeas relief is warranted because unconstitutional procedures underlay his state conviction.

Specifically, Royal asserts that: (1) law enforcement officers obtained statements from him through coercion, intimidation and physical duress; (2) the prosecutor failed to disclose at an early date before trial all of Royal’s pretrial statements; (3) the exclusion of a juror for cause because of statements she made in opposition to imposing a death sentence deprived Royal of a fair trial; and (4) the bifurcation of the state trial violated due process.

In the state court proceedings, Royal had unsuccessfully sought to suppress his post-arrest statements on the ground that they were taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Royal did not contend that his statements were involuntarily made and the result of police coercion until he filed this action in district court. On this issue, the magistrate ruled: The full set of facts pertinent to Royal’s claim of coercion were not presented to the state courts.

Since the voluntariness of a confession depends upon the “totality of the circumstances”, this Court cannot consider the “exhausted facts”, ignore the “unexhausted facts” and then reach a conclusion. The better procedure would be for Royal to submit this claim to the Missouri courts for consideration in a Rule 27.26 motion. Until Royal has given the Missouri courts an opportunity to rule on this claim, comity dictates this Court not interfere. The district court in accepting the magistrate’s determination directed that the claim relating to voluntariness of statements be dismissed without prejudice.

The state does not cross-appeal from this ruling. The magistrate recommended, and the district court approved, the dismissal with prejudice of all of Royal’s other claims. The magistrate found that Royal was not prejudiced by the prosecutor’s failure to make a more prompt disclosure of Royal’s statements to police. The magistrate also found that the striking for cause of a juror objecting to the death penalty did not amount to a violation of Royal’s due process rights when, as here, the jury did not recommend the death penalty.

Finally, the magistrate ruled that there was no basis in this case to reject Missouri’s bifurcated trial procedure as unconstitutional. We affirm for the reasons set forth in the magistrate’s opinion, which the district court adopted. Affirmed. . The Honorable Edward L. Filippine, United States District Judge for the Eastern District of Missouri. . During oral argument, the panel inquired whether the Supreme Court’s decision in Rose v.

Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), decided after the district court ruled in the present case, required vacating the entire judgment without prejudice because of the possible existence of an unexhausted claim. This circuit specifically addressed this question in Richards v. Solem, 693 F.2d 760 (8th Cir.1982), and held that we need not apply Rose v. Lundy retroactively. See also Dunn v. Wyrick, 679 F.2d 731, 733 (8th Cir.1982). Accordingly, we deem it appropriate to affirm rather than vacate the judgment on all issues.