author: BOWMAN, Circuit Judge.

text:
    Steven G. ROTHMEIER, Appellant, v. INVESTMENT ADVISERS, INC., a Minnesota corporation; Noel P. Rahn, an individual, Appellees.
    No. 95-2562.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 13, 1995.
    Decided June 7, 1996.

      Timothy Thornton, Minneapolis, MN, argued, Scott G. Bowman, Minneapolis, MN, briefed, for appellant.
    Michael Berens, Minneapolis, MN, argued, Barbara P. Berens and George F. McGunnigle, Minneapolis, MN, briefed, for appellees.
    Before BOWMAN and LOKEN, Circuit Judges, and SCHWARZER, District Judge.

      The HONORABLE WILLIAM W. SCHWARZER, United States District Judge for the Northern District of California, sitting by designation.

   BOWMAN, Circuit Judge.

Steven G. Rothmeier brought this suit against his former employer, Investment Advisers, Inc. (IAI), alleging that he was fired on the basis of his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1994), and the Minnesota Human Rights Act (MHRA), Minn.Stat. §§ 363.01-363.20 (1994). The District Court granted summary judgment in favor of IAI, and Rothmeier appeals. We affirm.

I.

Rothmeier began working for IAI in 1989 at the age of forty-three. Less than four years later, in March 1993, Rothmeier was fired at the age of forty-six. IAI is a complex business enterprise of funds, subsidiary corporations, and general and limited partnerships. As its name proclaims, IAI is an investment advisor and makes money by procuring investment funds, which are managed for a fee by the various IAI divisions. Noel P. Rahn, the chief executive officer of IAI, hired Rothmeier to serve as president of IAI Capital Group, a division of IAI. In this position, Rothmeier oversaw two subsidiaries, the already successful Venture Capital Group and IAI International, a fledgling investment banking group headed by David Spreng. Under the auspices of IAI International, IAI created Great Northern Capital Partners to engage in merchant banking. A banking fund, called the Great Northern Fund, was organized as a limited partnership to raise monies for this merchant banking effort. At the time of Rothmeier’s hiring, Rahn, who was then age fifty, knew that Rothmeier was over forty.

In March 1993, Rothmeier was informed by Linda Watchmaker, chief financial officer of the Venture Capital Group, that Investment Advisors Venture Management, Inc. (IAVMI), a wholly owned subsidiary of IAI, perhaps was not in compliance with Securities and Exchange Commission (SEC) registration rules. Watchmaker’s information suggested that the financial exposure resulting from the registration problem was in excess of $11 million. On the basis of this information, Rothmeier undertook an investigation to determine whether IAVMI was in compliance with SEC rules. By March 15, 1993, Rothmeier had concluded that IAVMI was in violation of SEC regulations and reported this information to Rahn. Rothmeier then asked Rahn if he could see certain corporate records in furtherance of his investigation. Rothmeier insists that Rahn and IAI’s in-house lawyers stonewalled because they wanted to “cover-up” the SEC problem. Rothmeier never received the documents he requested because Rahn fired him on either March 15 or March 17, 1993. Rothmeier was replaced by David Spreng, who was then thirty-one years old. While at IAI, Rothmeier never received an unfavorable performance review and, just two weeks before his discharge, IAI paid Rothmeier a $50,000 bonus.

The District Court granted summary judgment to IAI on the ADEA and MHRA claims because the record was “bereft of any suggestion that there was any age based animus involved in the decision of IAI and Rahn to terminate Rothmeier.” Rothmeier v. Investment Advisers, Inc., No. 3-94-431, Memorandum Opinion and Order at 8 (D.Minn. May 18,1995). The court acknowledged that while there were problems between Rahn and Rothmeier, “those problems concerned certain aspects of the business relationship rather than [Rothmeier’s] age.” Id.

We review the grant of summary judgment de novo, applying, as did the District Court, the summary judgment standards of Federal Rule of Civil Procedure 56(e). Michalski v. Bank of Am. Ariz., 66 F.3d 993, 995 (8th Cir.1995).

II.

We first address Rothmeier’s ADEA claim. The ADEA makes it “unlawful for an employer ... to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). Everyone age forty and older is within the class of persons whom the act seeks to protect. 29 U.S.C. § 631. The hallmark of an ADEA disparate-treatment claim is intentional discrimination against the plaintiff on account of the plaintiffs age. Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 775 (8th Cir.1995). There are two methods by which a plaintiff can attempt to prove intentional discrimination. First, a plaintiff may satisfy his burden by presenting direct evidence of employment discrimination based on age. In employment-discrimination cases, however, “[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental processes” because a shrewd employer will not leave a trail of direct inculpatory evidence for the plaintiff to bring into court. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). Recognizing that the “smoking-gun” case is rare, the Supreme Court has developed a second, indirect method of proof by which a plaintiff can satisfy his burden using circumstantial evidence. In disparate-treatment cases based on circumstantial evidence, courts apply the now-familiar analytical framework of burden shifting developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Rothmeier’s case relies solely upon circumstantial evidence, and thus is governed by the McDonnell Douglas line of cases.

The McDonnell Douglas framework, using a three-stage burden-shifting analysis, establishes the order and allocation of proof in employment-discrimination cases. At the first stage, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093-94. The prima facie case, in the absence of an explanation from the employer, “creates a presumption that the employer unlawfully discriminated against the employee.” Id. at 254, 101 S.Ct. at 1094. If the plaintiff establishes a prima fade ease, the burden of production shifts at the second stage to the defendant, who must articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id. at 253, 101 S.Ct. at 1093-94. If the defendant carries this burden of production, the presumption raised by the prima facie ease is rebutted and “drops from the case.” Id. at 255 n. 10, 101 S.Ct. at 1095 n. 10. The burden then shifts back at the third and final stage to the plaintiff, who is given the opportunity to show that the employer’s proffered reason was merely a pretext for discrimination. Id. at 253, 101 S.Ct. at 1093-94. The plaintiff retains at all times the ultimate burden of persuading the trier of fact that the adverse employment action was motivated by intentional discrimination. Id.

For purposes of its summary judgment motion, IAI concedes the existence of a prima facie case of age discrimination. IAI’s Br. at 12 nn. 13 & 14. This concession created a presumption of age discrimination by IAI, requiring IAI to rebut it with nondiscriminatory reasons for Rothmeier’s discharge. IAI proffered three nondiscriminatory reasons: the poor performance of IAI International; the failure of the Great Northern Fund to achieve its goals; and Rothmeier’s purported insubordination and differences in management style between Rothmeier and Rahn. IAI having come forward with nondiscriminatory reasons for Rothmeier’s discharge, the burden then shifted to Rothmeier to offer evidence showing that the reasons given by IAI were a pretext for discrimination. Rothmeier attempted to satisfy this burden by disputing each of IAI’s proffered reasons. Where IAI asserted that IAI International lost millions of dollars, Rothmeier claimed that IAI International made over $1 million under his guidance and, in any event, David Spreng — the younger man who replaced him — headed that subsidiary. Where IAI claimed that the Great Northern Fund was failing, Rothmeier maintained that he had told an agreeable Rahn much earlier that it was unlikely the Fund would attain its goal and that, once again, David Spreng was in charge. Where IAI insisted that Rothmeier was insubordinate, Rothmeier argued that he possessed a heightened sense of business ethics and raised the SEC registration issue, not out of insubordination, but, rather, as an exercise of business ethics; he points out that he never received a negative performance review nor was he ever warned about any alleged insubordination or differences in management style.

Even though the District Court determined that Rothmeier had “plainly” created factual disputes with respect to whether IAI’s proffered reasons were credible, it granted summary judgment to IAI because Rothmeier failed to present any evidence that tended to show that age was a determining factor in IAI’s decision to fire him. Rothmeier v. Investment Advisers, Inc., No. 3-94-431, Memorandum Opinion and Order at 8 (concluding factual disputes shown in summary judgment record had “nothing to do with the critical issue before the court”— i.e., whether the termination was related to age).

Rothmeier argues that to survive IAI’s motion for summary judgment, it is enough that he created factual disputes with respect to whether IAI’s proffered reasons were pretextual; he insists that he did not have to take the additional step of showing, either directly or indirectly, that his termination was motivated by age-based animus. Rothmeier essentially argues that, once he establishes a prima facie case and presents evidence that IAI’s proffered reasons for discharging him were pretextual, his case can withstand a summary judgment motion and is entitled to go to trial. We disagree. Under the Supreme Court’s decision in St. Mary’s Honor Center v. Hicks, the ruling of the District Court must be upheld.

In Hicks, the Court resolved a circuit split regarding the proof an employee must have in order to prevail on an employment-discrimination claim under Title VII. Before Hicks, the federal courts of appeals were divided as to whether an employee could prove employment discrimination simply by showing that the employer’s proffered reasons were false. See Hicks, 509 U.S. at 512-13, 113 S.Ct. at 2750 (collecting cases). Some circuits, including our own, embraced the “pretext-only” rule. Under this view, a showing that the employer’s proffered explanation was false meant that the employee was automatically entitled to judgment. Thus, according to these courts, a finding that the employer’s explanation was not credible was “equivalent to a finding that the employer intentionally discriminated.” Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1396 (3d Cir.), cert. denied, 469 U.S. 1087, 105 S.Ct. 592, 83 L.Ed.2d 702 (1984). Other circuits, however, espoused the “pretext-plus” rule. These courts required more than a simple showing that the employer’s proffered reasons were false. Pretext-plus courts demanded that an employee show discriminatory animus in addition to pretext. In these courts, if the employee could do no more than show that the employer’s reasons were not credible, judgment was automatically entered for the employer.

In Hicks, the plaintiff brought a Title VII action against his former employer, St. Mary’s Honor Center, alleging that he had been unlawfully discharged because of his race. Hicks established a prima facie case, St. Mary’s proffered nondiscriminatory reasons for the discharge, and the district court, sitting as the trier of fact, found that the reasons St. Mary’s gave were not the true reasons for the discharge. Despite finding St. Mary’s proffered reasons to be pretextual, the district court nevertheless granted judgment to St. Mary’s because it also found that Hicks failed to prove that his employer’s conduct was racially rather than personally motivated. Hicks v. St. Mary’s Honor Ctr., 756 F.Supp. 1244, 1252 (E.D.Mo.1991) (subsequent history omitted).

We reversed on appeal, using the pretext-only rule as the basis for our decision. We reasoned that once the district court determined that Hicks had established a prima facie ease and that his employer’s proffered reasons for the discharge were false, it should have directed a verdict for Hicks. Hicks v. St. Mary’s Honor Ctr., 970 F.2d 487, 493 (8th Cir.1992) (subsequent history omitted).

The Supreme Court reversed and remanded the case for further proceedings, holding, as this Court saw it, that “proof that the defendant’s articulated explanation is false or incorrect does not, standing alone, entitle the plaintiff to judgment; instead, the showing must be that the explanation is a pretext for discrimination.” Hutson, 63 F.3d at 777 (citing Hicks, 509 U.S. at 515-17, 113 S.Ct. at 2752). “[A] reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason.” Hicks, 509 U.S. at 515, 113 S.Ct. at 2752. The Court thus rejected the pretext-only position and held that the factfinder’s disbelief of the employer’s reasons does not compel judgment for the employee. Instead, if the employer succeeds in carrying its burden of production, the presumption raised by the prima facie case is rebutted and drops from the case, rendering the McDonnell Douglas framework “no longer relevant.” Id. at 510-11, 113 S.Ct. at 2749. The trier of fact then proceeds to decide the ultimate question: whether the employee has proven that the employer intentionally discriminated against him because of his age. Id. The Court, however, also rejected the pretext-plus position, stating:

The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, “[n]o additional proof of discrimination is required.”

Id. (citation and footnote omitted) (alteration and second emphasis added by Supreme Court).

The Court thus struck a middle ground in Hicks, refusing to adopt either pretext-only or pretext-plus as the exclusive test for sufficiency of the evidence in employment-discrimination cases. Instead, the test fashioned by the Court for the third stage of the McDonnell Douglas analysis is more fact sensitive: whether the employee has provided evidence from which a reasonable factfinder could conclude that the employer intentionally discriminated against the employee for a prohibited reason. Id. This test is consistent with the Supreme Court’s admonition that the presumption created by the prima facie ease drops out of the picture after the employer has met its burden of production, thereby rendering the McDonnell Douglas framework no longer relevant. The factual inquiry then “proceeds to a new level of specificity,” id. at 516, 113 S.Ct. at 2752 (quoting Burdine, 450 U.S. at 255, 101 S.Ct. at 1095), and refocuses on the ultimate question in the case — whether the employer engaged in intentional discrimination. The Court reconciled its position by noting that “[e]ven though (as we say here) rejection of the defendant’s proffered reasons is enough at law to sustain a finding of discrimination, there must be a finding of discrimination.” Id. at 511 n. 4, 113 S.Ct. at 2749 n. 4. Thus, the Court recognized that in some eases the overall strength of the prima facie case in conjunction with evidence of pretext will be sufficient to permit a finding of intentional discrimination, while in other cases the prima facie case in tandem with evidence of pretext will not be sufficient to permit a finding of intentional discrimination. Hicks explicitly requires evidence that will “suffice to show intentional discrimination.” Only where the evidence of plaintiffs prima facie case and the evidence of pretext are sufficient, considered together, to allow a reasonable factfinder to conclude that the defendant has intentionally discriminated against the plaintiff is “no additional proof of discrimination ... required.” Whether or not a case requires evidence beyond a showing of pretext to support a finding of intentional discrimination is necessarily a fact-intensive determination and must be decided on a ease-by-case basis. The First Circuit has recently explained the middle-ground approach developed in Hicks:

[T]he Supreme Court envisioned that some eases exist where a prima facie case and the disbelief of a pretext could provide a strong enough inference of actual discrimination to permit the fact-finder to find for the plaintiff. Conversely, we do not think that the Supreme Court meant to say that such a finding would always be permissible____ The strength of the prima facie ease and the significance of the disbelieved pretext will vary from case to case depending on the circumstances. In short, everything depends on the individual facts.

Woods v. Friction Materials, Inc., 30 F.3d 255, 261 n. 3 (1st Cir.1994) (affirming summary judgment in favor of employer).

In the context of summary judgment, the question thus becomes whether, in a ease where the employee has established a prima facie case and has presented sufficient evidence for a jury to disbelieve the reasons proffered by the employer, the trial court nevertheless may decide as a matter of law that the evidence is insufficient for a reasonable jury to infer age discrimination and therefore may grant summary judgment to the employer. Rothmeier would have us answer this question in the negative. He argues that while Hicks prevents him from obtaining a compelled judgment based on evidence of pretext alone, pretext-only evidence is enough for him to withstand a summary judgment motion and get his case to a jury. Rothmeier is mistaken. His argument construes Hicks too narrowly and ignores its middle-ground approach. Rothmeier seeks a blanket statement that once evidence of pretext is proffered, that evidence along with the prima facie case always will shield a plaintiff from summary judgment. Hicks, of course, says no such thing. We believe that Hicks allows a trial judge to decide on a motion for summary judgment that the evidence is insufficient for a reasonable trier of fact to infer discrimination even though the plaintiff may have created a factual dispute as to the issue of pretext. Intentional discrimination vel non is like any other ultimate question of fact: either the evidence is sufficient to support a finding that the fact has been proven, or it is not. Indeed, Hicks emphasizes that once an employment-discrimination case reaches the third stage of McDonnell Douglas, it is to be treated like any other case. Trial courts or reviewing courts should not “treat discrimination differently from other ultimate questions of fact.” Hicks, 509 U.S. at 524, 113 S.Ct. at 2756 (quoting Aikens, 460 U.S. at 716, 103 S.Ct. at 1482).

Post-Hicks, our Circuit’s pronouncements on this issue have not been models of apparent consistency. Compare Krenik v. County of Le Sueur, 47 F.3d 953, 958 (8th Cir.1995) (“To survive summary judgment at the third stage of the McDonnell Douglas analysis, a plaintiff must demonstrate the existence of evidence of some additional facts that would allow a jury to find that the defendant’s proffered reason is pretext and that the real reason for its action was intentional discrimination.”); Hutson, 63 F.3d at 777 (following Krenik); and Nelson v. Boatmen’s Bancshares, Inc., 26 F.3d 796, 801 (8th Cir.1994) (holding employee “must do more than simply discredit an employer’s nondiscriminatory explanation; he must also present evidence capable of proving that the real reason for his termination was discrimination based on age”); with Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1109 (8th Cir.) (“[I]f (1) the elements of a prima facie case are present, and (2) there exists sufficient evidence for a reasonable jury to reject the defendant’s proffered reasons for its actions, then the evidence is sufficient to allow the jury to determine whether intentional discrimination has occurred, and we are without power to reverse the jury’s finding.”), cert. denied, — U.S. -, 115 S.Ct. 355, 130 L.Ed.2d 310 (1994); and Kobrin v. University of Minn., 34 F.3d 698, 703 (8th Cir.1994) (concluding plaintiff “may overcome summary judgment by producing evidence that, if believed, would allow ‘a reasonable jury to reject the defendant’s proffered reasons for its actions’”) (quoting Gaworski, 17 F.3d at 1109). These eases, however, can be reconciled.

In our recent decisions, we consistently have interpreted Gaworski to mean merely that “[i]n some cases, evidence that an employer’s proffered nondiscriminatory explanation is wholly without merit or obviously contrived might serve double duty; it might serve the additional purpose of permitting an inference that age discrimination was a motivating factor in a plaintiffs termination.” Boatmen’s Bancshares, 26 F.3d at 801 (emphasis added); see also Nelson v. J.C. Penney Co., 75 F.3d 343, 346 (8th Cir.1996); Hutson, 63 F.3d at 777. Only within the ambit of these double-duty cases is no additional proof of discrimination required. Boatmen’s Bancshares, 26 F.3d at 801. As noted above, whether or not a case falls within this double-duty category is necessarily fact intensive and must be decided on a case-by-ease basis by the district court. Thus, Gaworski allows a plaintiff to rely on the same evidence to prove both pretext and intentional discrimination, but, as our cases subsequent to Gaworski make clear, the overall strength of this evidence must be sufficient for a reasonable factfinder to infer that the employer’s decision was motivated by discriminatory animus. If the evidence considered as a whole does not satisfy that standard, then the plaintiff must come forward with “some additional facts,” beyond the showing of a prima facie case and pretext, that would allow a jury reasonably to infer that the real reason for the adverse employment action was intentional discrimination. Krenik, 47 F.3d at 958. Accordingly, “evidence discrediting an employer’s nondiscriminatory explanation is not necessarily sufficient (i.e., it is sufficient in some cases but not all cases) because an age-discrimination plaintiff cannot prevail unless ‘the factfinder ... believe[s] the plaintiffs explanation of intentional discrimination.’ ” Boatmen’s Bancshares, 26 F.3d at 801 (quoting Hicks, 509 U.S. at 519, 113 S.Ct. at 2754) (alterations in Boatmen’s Bancshares). This view acknowledges the middle ground forged by the Supreme Court when it stated in Hicks that the factfinder’s disbelief of the employer’s explanation may, together with the prima facie case, suffice to show intentional discrimination. It is also consistent with the notion that the burden of persuasion as to the ultimate issue of intentional discrimination remains with the plaintiff at all times and that this burden is not necessarily satisfied merely by discrediting the employer’s explanation. Hutson, 63 F.3d at 777. Consequently, the rule in this Circuit is that an age-discrimination plaintiff can avoid summary judgment only if the evidence considered in its entirety (1) creates a fact issue as to whether the employer’s proffered reasons are pretextual and (2) creates a reasonable inference that age was a determinative factor in the adverse employment decision. The second part of this test sometimes may be satisfied without • additional evidence where the overall strength of the prima facie case and the evidence of pretext “suffiee[s] to show intentional discrimination.” The focus, however, always remains on the ultimate question of law: whether the evidence is sufficient to create a genuine issue of fact as to whether the employer intentionally discriminated against the plaintiff because of the plaintiffs age.

Having carefully reviewed the record, we conclude that Rothmeier presented neither direct evidence of age discrimination nor sufficient circumstantial evidence for a reasonable factfinder to infer that Rothmeier’s age “actually motivated ” his employer’s decision to discharge him. Boatmen’s Bancshares, 26 F.3d at 800 (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993)). Viewing the evidence in the light most favorable to Rothmeier, his prima facie case and his evidence of pretext are insufficient, as a matter of law, to allow a reasonable factfinder to infer intentional discrimination based on age. There were undoubtedly problems between Rahn and Rothmeier, but those problems concerned their business relationship (e.g., Rothmeier’s confronting Rahn with alleged SEC violations) rather than age. Moreover, when hired by Rahn (who was himself age fifty at the time), Rothmeier was already forty-three years of age; when fired by Rahn, Rothmeier was forty-six. These facts run counter to any reasonable inference of discrimination based on age. See Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 175 (8th Cir.1992) (“It is simply incredible, in light of the weakness of plaintiffs evidence otherwise, that the company officials who hired him at age fifty-one had suddenly developed an aversion to older people less than two years later.”); Proud v. Stone, 945 F.2d 796, 797 (4th Cir.1991) (“[I]n cases where the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.”).

Rothmeier acknowledges that he “was discharged because IAI wanted to cover up its SEC problems and keep the millions of dollars it illegally collected” in violation of SEC regulations. Rothmeier’s Br. at 23. This acknowledgement standing alone would completely refute Rothmeier’s claim of age discrimination. Consequently, Rothmeier attempts to cast his case as one of age discrimination by weaving an intricate web. He argues that IAI engaged in age discrimination when “Rahn terminated the older and more ethically mature Rothmeier and brought in younger, less experienced, and more easily controlled executives” like Spreng. Id. Rothmeier’s argument boils down to the notion that with age comes greater ethical acumen. Because he is older, Rothmeier insists that he has attained greater sensitivity to ethical problems than his younger colleagues at IAI and, for this reason, he argues, he was able to confront Rahn and to refuse to participate in the purported cover-up of the alleged SEC violations. His younger colleagues, on the other hand, because of their youth and inexperience in the business world, were supposedly unable to stand up to Rahn when the alleged cover-up scheme was hatched. We find Rothmeier’s argument to be ingenious, but to no avail, because it does not suffice as evidence of age discrimination. See Hazen Paper Co., 507 U.S. at 611, 113 S.Ct. at 1706-07 (holding discharge motivated by factor correlated to age, like vesting of pension fund benefits tied to seniority, is not proof of age-based discrimination). Rothmeier has tried to bootstrap his way into an age-discrimination claim by making an argument premised on a highly dubious correlation (and one for which he has offered no supporting evidence) between age and ethical behavior. For our part, we have no inclination to accept the assertion that the content of one’s character is a proxy for age. As Rothmeier contends, he may have been fired because he chose to do the right thing by investigating the alleged SEC violations. If that is the true reason for his discharge, that fact undercuts, rather than supports, his claim that IAI fired him because of his age.

Based on our review of the record, we are thoroughly satisfied that the District Court was correct in granting IAI summary judgment on Rothmeier’s ADEA claim.

III.

We next turn to Rothmeier’s age-discrimination claim under the MHRA. The District Court granted summary judgment to IAI on this state-law claim for the same reason that it granted summary judgment to IAI on the ADEA claim, namely that Rothmeier failed to satisfy the requirements of Hicks. Rothmeier argues that the federal standard fashioned in Hicks does not apply to MHRA claims. Consequently, he contends that, even if he loses his ADEA claim on summary judgment because of Hicks, he should survive summary judgment on the MHRA claim because Minnesota state courts apply a more liberal standard to MHRA claims than federal courts apply to ADEA claims. We disagree.

We review this question of state law de novo. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991). While Rothmeier concedes that Minnesota courts apply the three-step McDonnell Douglas framework to MHRA claims, see Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 710 (Minn.1992); Sigurdson v. Isanti County, 386 N.W.2d 715, 719-20 (Minn.1986), he argues that “the third step is more liberal and much more easily met under Minnesota law.” Rothmeier’s Br. at 44. In a recent 2-1 decision, the Minnesota Court of Appeals held it was error for the trial court to rely on “the more rigid federal standard” in Hicks when analyzing the third-step of McDonnell Douglas for MHRA claims. Hasnudeen v. Onan Corp., 531 N.W.2d 891, 894 (Minn.Ct.App.1995), review granted (July 20, 1995). Hasnudeen interpreted Hicks as requiring “a plaintiff to demonstrate both the falsity of the employer’s reason and that discrimination was the real reason.” Id. The Hasnudeen court determined that this test was inappropriate for MHRA claims; instead, the majority concluded that Minnesota Supreme Court precedent requires a trial court to focus “solely on whether the plaintiff ‘has been the victim of intentional discrimination.’ ” Id. (quoting Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 626 (Minn.1988) (quoting case below, Anderson v. Hunter, Keith, Marshall & Co., 401 N.W.2d 75, 81 (Minn.Ct.App.1987))). We do not view our interpretation of Hicks as being inconsistent or more “rigid” than the holding in Hasnudeen. Both interpretations require the trial court at the third-step of McDonnell Douglas to focus on the ultimate issue of the case: whether a plaintiff has been the victim of intentional discrimination. The only reason that Hasnudeen characterized Hicks as “a more rigid federal standard” was because it mistakenly construed Hicks as adopting a pretext-plus rule as the exclusive test at the third stage of McDonnell Douglas analysis. Our decision today shows that such a conclusion construes Hicks too narrowly and ignores the middle-ground approach developed by the Supreme Court.

The Minnesota Supreme Court has held time and again that MHRA claims are to be construed in accordance with federal precedent. See, e.g., Feges, 483 N.W.2d at 710 (applying McDonnell Douglas test to age-discrimination claim under MHRA); Anderson, 417 N.W.2d at 626 (“Courts of this state should continue to apply the McDonnell Douglas analysis in employment cases involving claims of disparate treatment brought under the Minnesota Human Rights Act....”). We see no reason why the Minnesota Supreme Court would deviate from federal precedent now. Although the Minnesota Supreme Court has not yet passed upon this issue since Hicks was decided, it did grant review to Hasnudeen. And while we do not view Hasnudeen as being at odds with our decision today, to the extent that it departs from using federal precedent to interpret MHRA claims, it is contrary to well-established Minnesota law and we are not bound by it. See Haugen v. Total Petroleum, Inc., 971 F.2d 124, 126 (8th Cir.1992) (noting federal court may disregard decision of intermediate appellate state court if “it is convinced by other persuasive data that the highest court of the state would decide otherwise.”) (quoting West v. American Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940)). Until the Minnesota Supreme Court decides otherwise, MHRA claims are analyzed in accordance with McDonnell Douglas and its progeny, including Hicks. Anderson, 417 N.W.2d at 623 (“[W]e have frequently applied principles which have evolved in the adjudication of claims under the federal act, and, specifically we have adopted the McDonnell Douglas analysis as an aid to resolving cases claiming disparate treatment.”) (emphasis added). Rothmeier’s reliance on Hasnudeen as establishing a different standard thus fails to save his MHRA claim.

IV.

For the foregoing reasons, the judgment of the District Court is affirmed.

      . The Honorable Michael J. Davis, United States District Judge for the District of Minnesota.

      . Rothmeier also sued his supervisor, Noel P. Rahn, individually under the ADEA. The District Court dismissed this claim, holding that a supervisor may not be held individually liable under the ADEA. Cf. Lenhardt v. Basic Inst. of Technology, Inc., 55 F.3d 377, 381 (8th Cir.1995) (concluding supervisors may not be held individually liable under Missouri Human Rights Act). Rothmeier does not raise any issue with respect to that ruling.

      . The parties dispute the actual date of Rothmeier’s discharge. IAI maintains that it terminated his employment on March 15, 1993. Rothmeier, on the other hand, insists that he was fired on March 17, 1993. Because this factual dispute is immaterial to the resolution of this case, this Court, like the District Court, expresses no view on the matter.

      . We note that Rothmeier also sued IAI for violating the Minnesota whistleblower statute, Minn.Stat. § 181.932 (1994), and the Minnesota dismissal for age statute, Minn.Stat. § 181.81 (1994), and for breaching a common law fiduciary duty. The District Court, having dismissed the federal ADEA claim, declined to exercise supplemental jurisdiction with respect to these additional claims and dismissed them without prejudice. Rothmeier does not appeal the dismissal of these state-law claims.

      . Although McDonnell Douglas is a Title VII case, the framework it establishes applies with equal force to claims under the ADEA. See, e.g., Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir.1994) (applying McDonnell Douglas burden-shifting analysis in ADEA case). The Supreme Court has never had occasion to decide whether application of the Title VII rule to the ADEA context is correct, but the Court has "assume[d]" that it does apply for the time being. O'Connor v. Consolidated Coin Caterers Corp., - U.S. -, -, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996).

      . The phrase “prima facie case” has two possible meanings. First, it “may denote the establishment of a legally mandatory, rebuttable presumption.” Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 n. 7, 101 S.Ct. 1089, 1094 n. 7, 67 L.Ed.2d 207 (1981). Second, it "may be used by courts to describe the plaintiff's burden of producing enough evidence to permit the trier of fact to infer the fact at issue.” Id. In the McDonnell Douglas context, prima facie case is given the more narrow first meaning; it is intended merely to be a legally mandatory, rebut-table presumption. Its purpose in the burden-shifting scheme is “to sharpen the inquiry into the elusive factual question of intentional discrimination.” Burdine, 450 U.S. at 255 n. 8, 101 S.Ct. at 1094 n. 8.

      . In a termination case that does not involve a reduction in force, a plaintiff establishes a prima facie case of age discrimination if he can show that he is a member of the protected age class, that he was performing adequately in his job, that he was fired, and that he was replaced by a younger person after his dismissal. Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 174 (8th Cir.1992).

      . Although the Hicks decision stemmed from an appeal from a full bench trial, its rationale applies with equal force to summary judgment proceedings. See O’Connor, - U.S. at -, 116 S.Ct. at 1309 (applying Hicks analysis in summary judgment context).

      . This point is bolstered further when the procedural context of Hicks is considered. In reversing this Court, the Supreme Court in Hicks did not order us to affirm the district court’s findings, as it would have done if the factfinder always has the final word in evaluating pretext evidence. Instead the Court simply remanded, explaining:
      That the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason of race is correct. That remains a question for the factfinder to answer, subject, of course, to appellate review — which should be conducted on remand in this case under the “clearly erroneous" standard____

        St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 523-25, 113 S.Ct. 2742, 2756, 125 L.Ed.2d 407 (1993) (emphasis added).
      In other words, the Supreme Court in Hicks held that whether an employer's proffered reason was a pretext for unlawful discrimination is a question of fact, reviewable like any other question of fact. After a bench trial, a trial court’s finding of pretext-for-age-discrimination is reviewable for clear error. After a jury trial, the jury's general verdict is reviewable under the standard for granting judgment as a matter of law. And before trial, the issue may be considered under the well-known standard that governs motions for summary judgment.

      . Rothmeier asserts that the District Court required him to offer direct proof of intentional age discrimination as the sole method of avoiding summary judgment and that such a requirement is reversible error. Rothmeier’s Br. at 26, 28. The District Court did no such thing. The court simply noted that, in addition to there being no circumstantial evidence, the record also was entirely devoid of direct proof of age-based animus. Rothmeier v. Investment Advisers, Inc., No. 3-94-431, Memorandum Opinion and Order at 8 (D.Minn. May 18, 1995).

      . The dissent in Hasnudeen correctly noted that there is no difference between the federal (Hicks) test and the Minnesota (Anderson) test. Hasnudeen v. Onan Corp., 531 N.W.2d 891, 896 (Minn.Ct.App.1995), review granted (July 20, 1995) (Randall, J. dissenting) ("[B]oth the federal and Anderson standards require the trier of fact be convinced plaintiff’s discharge was the result of intentional discrimination.”).


source: Caselaw Access Project

author: WOLLMAN, Circuit Judge.

license: Public Domain

text:
    James Edward BOWMAN, Appellant, v. James Anthony (Tony) GAMMON, Superintendent of the Moberly Correctional Center; Jeremiah W. (Jay) Nixon, Attorney General of the State of Missouri, Appellees.
    No. 94-3712.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 10, 1996.
    Decided June 7, 1996.

      Ronald Baugh, argued, Kansas City, Missouri, for appellant.
    John Simon, Assistant Attorney General, argued, Jefferson City, Missouri, for appellee.
    Before WOLLMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
   WOLLMAN, Circuit Judge.

Following his conviction in Missouri state court for felony murder, stealing without consent, armed criminal action, and second degree burglary, James Edward Bowman was sentenced to two consecutive life sentences, plus seven years. After exhausting his state court remedies, he brought this action pursuant to 28 U.S.C. § 2254. Following the district court’s denial of his petition, we remanded for further proceedings on the basis of newly discovered evidence. The district court again denied the petition, and we now affirm.

I.

To analyze Bowman’s contentions in this appeal, we begin by setting forth the facts underlying his conviction. The Missouri Supreme Court, in Bowman’s direct appeal, summarized the record as follows:

The only witness to implicate the defendant was Anthony Lytle, who testified that during the late evening of November 26, 1983 he and two other young men were riding in southeast Kansas City in a car driven by [Bowman], About 11:00 or 11:30 PM they decided to do some “stealing,” and headed for the home of Earl and Pauline Chambers, an elderly white couple, at 5801 Paseo. [Bowman] and his companions were black. They heard voices, apparently of black people, in the home. The shotgun was placed in the back seat but there is no evidence that it was taken into the house. When they returned, one of their companions indicated that he had reached accord with the people inside, apparently another party of burglars. Lytle remained as lookout while the others entered and carried property out of the house. Lytle then went into the house and saw a body. One of the burglars who had been in the house, said, “Don’t worry about it. We took care of him.” Lytle and his companions then drove away. This is the essence of Lytle’s eyewitness testimony.
The state then introduced the text of a videotaped statement Lytle had given to the police, over appropriate objection. Lytle told the police that he heard conversation with “old people,” and then “I hear, ‘no, no, no,’ and then sounds of pain.” The statement continued,
I ran back to see what was going on and Eddie [Bowman] was standing there over this man I saw one stab, I saw him do the last one----
He said that the person [Bowman] was standing over was wearing longjohns.
Lytle at trial admitted having made these statements, but said that they were not true. He testified on cross-examination that each of the statements just quoted was a “lie.” He also testified that Detective Glynn, the interrogating officer, mistreated him and told him that [Bowman] had already made a statement implicating him.
The bodies of Earl and Pauline Chambers were found the next morning, dead of multiple stab wounds. Pauline was wearing longjohns. The medical examiner testified that Earl might have lived for as much as an hour, and Pauline for at least half an hour, after the wounding.

State v. Bowman, 741 S.W.2d 10, 11-12 (Mo.1987) (en banc) (footnotes omitted). After the Missouri Supreme Court affirmed his conviction, see id. at 16, Bowman sought post-conviction relief pursuant to Missouri Supreme Court Rule 27.26. The motion court denied his motion for post-conviction relief and the Missouri Court of Appeals affirmed the denial. Bowman v. State, 787 S.W.2d 822 (Mo.Ct.App.1990). In October 1990, Bowman filed a habeas corpus petition, asserting four claims for relief. The district court issued an order denying Bowman relief, Bowman v. Armontrout, No. 90-0969, Opinion and Order Denying Petition for a Writ of Habeas Corpus, (June 29, 1992), and Bowman appealed. In February 1993, before filing an appellate brief, Bowman filed a motion to remand on the basis of newly discovered evidence. We granted the motion on March 5, 1993, and instructed the district court to conduct further proceedings on this issue. Without conducting an evidentiary hearing, the district court again denied relief, Bowman v. Armontrout, 859 F.Supp. 369 (W.D.Mo.1994), and Bowman appeals.

II.

In his motion for remand to the district court, Bowman alleged that “newly discovered evidence” made a remand necessary in order to fully develop the record. .Out-remand order states, in relevant part: “Appellant’s motion for remand to the district court for evidentiary hearing on newly discovered evidence is granted. The case is remanded to the district court with directions to conduct further proceedings on the issue of newly discovered evidence.” As a threshold matter, Bowman claims that the district court erred in failing to follow our order.

The district court, in interpreting our remand order, allowed substantial briefing on the issue and held a status conference. It did not, however, hold an evidentiary hearing. The district court believed our directive required it to “consider whether claims of newly discovered evidence may be brought and if so, to take evidence on those claims. There is no indication from the Eighth Circuit that these claims of newly discovered evidence should be treated any differently than other such claims similarly situated.” Bowman, 859 F.Supp. at 371.

Claims of newly discovered evidence that relate only to the guilt or innocence of a state prisoner do not warrant federal habeas corpus relief. Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 860, 122 L.Ed.2d 203 (1993) (citing Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963)). To constitute a basis for relief, such claims must establish an independent constitutional violation. Herrera, 506 U.S. at 400, 113 S.Ct. at 860. “This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the constitution — not to correct errors of fact.” Id.

Before a petitioner is entitled to an evidentiary hearing in federal court, he must “ ‘allege[ ] facts which, if proved, would entitle him to relief[.]’ ” Church v. Sullivan, 942 F.2d 1501, 1510 (10th Cir.1991) (alteration in original) (quoting Townsend, 372 U.S. at 312, 83 S.Ct. at 756-57); see also Ruiz v. Norris, 71 F.3d 1404, 1406 (8th Cir.1995). Based on its thorough opinion, it is apparent that the district court carefully considered Bowman’s claims. In light of the record, we hold that the district court did not abuse its discretion in concluding that no evidentiary hearing was necessary. See Ruiz, 71 F.3d at 1406 (standard of review). We agree that none of Bowman’s “newly discovered” evidence claims, even if further developed in an evidentiary hearing, would have entitled him to relief for the reasons discussed below.

III.

Bowman raises numerous claims in this appeal, some of which he alleges are newly discovered and others which appear to emanate from his initial petition. The essence of Bowman’s claims are as follows: (1) the prosecution made a secret deal with Anthony Lytle, a testifying co-defendant; (2) the autopsy report of Pauline Chambers was falsified; (3) trial counsel was ineffective in failing to protect his speedy trial rights; and (4) Missouri Revised Statute § 491.074 was applied against him ex post facto.

A. Evidence of Secret Deal

Bowman first alleges that the prosecution made a secret deal with Lytle for his testimony, that the deal was not disclosed, and that the prosecution elicited false testimony from Lytle about the deal, thus violating Bowman’s due process rights. At Bowman’s trial, both the prosecutor and Lytle denied having any type of deal. However, at Lytle’s 29.15 hearing for post-conviction relief held in January 1990, the state did not oppose Lytle’s motion to vacate his sentence based upon a prior agreement. At that hearing, the assistant prosecutor explained:

[Anthony Lytle] did not cooperate with us in the sense of doing anything unusual. In fact he was arguing against our ease, but we believe he knew that by arguing against our case, it allowed us to put the video [of his confession] on, which resulted in the conviction of the three other, we believe, more culpable people ...
Numerous times people from our office would go down to the pen to visit with him---- What we did tell him is that at the first available opportunity we would not oppose an early release, and at the time our thought was if he came up for parole, we certainly wouldn’t stand in the way of parole____

In addition, just prior to the start of Bowman’s trial, the prosecutor stated:

Anthony Lytle sent a letter to hi's attorney and to me stating that he wanted to come back to court and also filed a motion with Judge Lombardo in which he wanted to come back as a witness for the Court in these cases. At that time, officers of the Kansas City, Missouri Police Department were sent to the Jefferson City Penitentiary, talked to Mr. Lytle, and he agreed to testify against Mr. Bowman. He never made that agreement before.

Based on these events, the district court found that, at some point, the prosecution made a “deal” with Lytle not to oppose early parole. The court also concluded that this did amount to new evidence because it was not available at the time Bowman presented his claims to the state court. Although the court found it was unclear whether the “deal” was made before or after Lytle testified, it held that, even assuming the existence of the deal before Lytle testified, Bowman’s due process rights were not violated. Under United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976), due process is violated if the prosecution fails to disclose any agreement with a witness or fails to correct any false statement by a witness, and “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” We agree with the district court that “[b]ecause of the peculiar nature of Mr. Lytle’s testimony and the way in which the jury must have considered it, ... the additional evidence could not have affected the judgment of the jury.” Bowman, 859 F.Supp. at 377.

Normally, evidence that a witness had a deal with the prosecution would cause the jury to question the credibility of the witness. However, evidence of a deal would only have affected the credibility of Lytle’s live testimony — not his prior confession. In light of the fact that Lytle’s live testimony favored Bowman, evidence of a deal was more likely to have undermined the live testimony rather than to have strengthened it. We find it difficult to fathom a situation where the jury would give more credence to a testifying witness who had a deal with the prosecution. In any event, the jury chose to believe Lytle’s prior confession and disbelieve his live testimony. It is unlikely that evidence of a deal would have changed the jury’s evaluation.

In addition, we find persuasive the fact that during Lytle’s cross-examination, he acknowledged that he was hoping to receive favorable treatment from the state in exchange for his cooperation. In effect, he admitted to everything but a deal. Because the newly discovered evidence of a deal between Lytle and the prosecution would not likely have affected the jury’s verdict, the district court correctly denied this claim.

B. Falsification of Autopsy

Bowman next asserts that his due process rights were violated because the prosecution suppressed, destroyed, and falsified evidence pertaining to the Pauline Chambers’ autopsy. The crux of Bowman’s claim is that the autopsy report is inconsistent with the description of the stabbing given by Lytle in his confession. The district court found that all of the evidence that Bowman referred to was available to him at the time of trial. Bowman, 859 F.Supp. at 379 (“The only thing ‘new’ at this time is that petitioner’s counsel has read the testimony in a new light, with a medical dictionary at his side.”). We agree.

A petitioner’s failure to develop a material fact in state court proceedings will be excused if he can show cause for and prejudice from his failure to raise the claim. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 11, 112 S.Ct. 1715, 1721, 118 L.Ed.2d 318 (1992). “ ‘[C]ause ... ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.’ ” Cornell v. Nix, 976 F.2d 376, 380 (8th Cir.1992) (en banc) (quoting McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991), cert. denied, 507 U.S. 1020, 113 S.Ct. 1820, 123 L.Ed.2d 450 (1993)). Also relevant is whether the newly discovered evidence “could have been discovered earlier in the exercise of due diligence.” Cornell, 976 F.2d at 380 (citing United States v. Bednar, 776 F.2d 236, 238 (8th Cir.1985)).

We find that the factual basis of Bowman’s claim concerning the autopsy evidence was reasonably available to him at the time of his trial. Thus, Bowman should have presented this claim to the state court. Because he has failed to demonstrate cause for his failure to do so, we need not discuss whether he was prejudiced by the default. Accordingly, the district court was correct in denying this claim.

C. Ineffective Assistance

Bowman next claims that his trial attorney was ineffective for failing to protect his speedy trial rights. The district court had previously rejected this claim in Bowman’s initial habeas petition. It declined to address this issue on remand because Bowman did not show any “newly discovered evidence” relating to his claim. A district court may decline to address a successive claim decided adversely against a petitioner in an earlier petition. Ruiz, 71 F.3d at 1409. “The motion to remand is the functional equivalent of a second or successive petition for habeas corpus.” Smith v. Armontrout, 888 F.2d 530, 540 (8th Cir.1989). Because Bowman raised this claim in his first petition, however, and because we have not previously addressed it, we believe it warrants discussion in this appeal.

Bowman first raised an ineffective assistance claim in his Rule 27.26 motion for post-conviction relief. After holding an evidentiary hearing, the motion court denied relief and the Missouri Court of Appeals affirmed. To prevail on this claim, Bowman must establish that his attorney’s conduct was professionally unreasonable and that, but for his attorney’s performance, the outcome of the proceeding would have likely been different. Griffin v. Delo, 33 F.3d 895, 900 (8th Cir.1994) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)). Bowman bears the burden in showing that his attorney’s conduct “fell below an objective standard of reasonableness.” See Griffin, 33 F.3d at 900 (citing Wing v. Sargent, 940 F.2d 1189, 1191 (8th Cir.1991)). He must also prove that he was prejudiced by his attorney’s performance. Griffin, 33 F.3d at 900 (citing Lawrence v. Armontrout, 961 F.2d 113, 115 (8th Cir.1992)).

In Bowman’s post-conviction proceeding, the Missouri Court of Appeals rejected his ineffective assistance claim 'regarding the Speedy Trial Act issue for the following reasons:

[P]rior to the start of the trial, [counsel] did make a motion for dismissal of the case on the ground that appellant had been denied his right to a speedy trial. [Further], according to [counsel’s] testimony at the Rule 27.26 hearing, it was to [petitioner’s] advantage to delay the start of the trial, as [counsel] was using the time to try to arrange a favorable deal with the prosecutor. Thus, [counsel’s] requests for continuances were a reasonable trial strategy- •• ••

Under Strickland, there is a strong presumption that an attorney’s performance is professionally reasonable. 466 U.S. at 689, 104 S.Ct. at 2065. Moreover, Strickland holds that decisions related to trial strategy are virtually unchallengeable. Id. at 690, 104 S.Ct. at 2066. The record establishes that counsel for Bowman recognized the Speedy Trial Act issue and made tactical trial decisions in the interests of his client. Because counsel’s trial strategy decisions were objectively reasonable, Bowman’s ineffective assistance claim is without merit.

D. Ex Post Facto Claim

Bowman also alleges that the application of section 491.074 against him constituted an ex post facto violation. Bowman raised this claim in his initial habeas petition. The district court denied the claim, finding that it was procedurally defaulted. On appeal, Bowman does not allege any newly discovered evidence relating to this claim.

Instead of raising the ex post facto claim in his direct appeal, Bowman challenged the constitutionality of section 491.074 on Confrontation Clause grounds. See Bowman, 741 S.W.2d at 12-13. His failure to properly present this claim in state court constitutes a procedural default. Because the claim has been procedurally defaulted, Bowman must establish cause for the default and show that he was prejudiced by the alleged violation of his constitutional rights. See Heffernan v. Norris, 48 F.3d 331, 333 (8th Cir.1995). Bowman has failed to advance any cause in this appeal for his procedural default. Thus, we need not examine whether he was prejudiced. Because this claim has been procedurally defaulted, we decline to address it.

E. Actual Innocence

Despite Bowman’s failure to show cause for his default, we can reach the merits of his claims if he can show that he is probably actually innocent. Wyldes v. Hundley, 69 F.3d 247, 254 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1578, 134 L.Ed.2d 676 (1996). Under Schlup v. Delo, - U.S. -, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), a petitioner who raises a gateway claim of actual innocence must satisfy a two-part test. First, the petitioner’s allegations of constitutional error must be supported “with new rehable evidence ... that was not presented at trial.” Id. at -, 115 S.Ct. at 865. Second, the petitioner must establish “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Id. at -, 115 S.Ct. at 867. See also Wyldes, 69 F.3d at 254. The actual innocence exception requires “review of procedurally barred, abusive, or successive claims only in the narrowest type of case-when a fundamental miscarriage of justice would otherwise result.” Ruiz, 71 F.3d at 1409 (citing Schlup, — U.S. -, 115 S.Ct. at 864).

The district court found no merit in Bowman’s actual innocence claim. At trial, Bowman defended on the ground that although he participated in the burglary at the Chambers’ home, he was not involved at the time of the murders. Under Missouri law, Bowman’s conviction for felony murder will stand if he participated in the burglary when the murders occurred. See Mo.Rev.Stat. § 565.021 (a person commits second-degree murder if he “commits or attempts to commit any felony, and, in the perpetration or the attempted perpetration of such felony ... another person is killed as a result ... ”). As the district court found, “Even if petitioner did not wield the murder weapon, as he argues the evidence shows, that does not prove that he is ‘actually innocent’ Of the more broad reaching crime of felony murder.” Bowman, 859 F.Supp. at 372, n. 3.

The state put on ample evidence of Bowman’s participation in the burglary. It is true that Lytle’s confession was the only evidence that directly placed Bowman at the scene at the time of the murders. The jury chose to believe Lytle’s confession and disbelieve his live testimony, despite evidence that tended to discredit the confession. In any event, the jury could reasonably have inferred that the murders occurred during the course of the burglary regardless of the confession evidence. Even Lytle’s live testimony did not conclusively show that Bowman was not present at the time of the murders. Thus, we agree with the district court that Bowman has not established a claim of actual innocence.

IV.

We have considered the remainder of Bowman’s claims and find them to be without merit. The judgment dismissing the petition for writ of habeas corpus is affirmed.

      . The Honorable Joseph E. Stevens, Jr., United States District Judge for the Western District of Missouri.

      . Rule 27.26 was repealed January 1, 1988, and was replaced by Rule 27.15.

      . The statute reads as follows:
      Notwithstanding any other provisions of law to the contrary, a prior inconsistent statement of any witness testifying in the trial of an offense under chapter 565, 566 or 568, RSMo, shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of such statement.

      . The following exchange occurred during Lytle’s cross-examination:
      Q. And isn’t it true that fyour attorney] was hired for the very specific purpose of trying to make a deal with [the prosecutor] in return for your testimony here today?
      A. Something to that extent.
      Q. That's the only reason he’s representing you is to try to get you a deal with [the prosecutor], trying to get you a lighter sentence; is that right?
      A. Something to that extent, yes, sir.
      Q. And you know [your attorney] has spoken with [the prosecutor] an awful lot about you testifying in this case, hasn’t he?
      A. Yes, he has.
      Q. It's true Mr. Lytle, that you're not getting anything out of this testimony, is that right?
      A. That's right.
      Q. And you say the only reason you’re here today is because you want to be; isn’t that right?
      A. That’s right.
      Q. But isn't it true, Mr. Lytle, that you're really hoping that you win that appeal and after you win that appeal if you cooperated with [the prosecutor] he is going to not prosecute you for murder anymore?
      A. I anticipate something. I don’t know—
      Q. You’re going to get something out of this, aren’t you?
      A. Hoping for something.
      Q. You're hoping that all that money spent on fyour attorney] doesn’t go to waste, isn’t that right?
      A. Yes, I am.
      Q. And fyour attorney] knows that no deal has been made for your testimony, right?
      A. As far as to my knowledge, yes.
      Q. And you know that you couldn’t be forced to testify here if you didn't want to, don't you?
      A. Right.
      Q. But even knowing all that, your lawyer has told you that it's okay for you to go ahead and testify; isn't that right?
      A. Right.
      Q. And that’s because you know that if you don’t testify you can’t even hope to get a deal out of [the prosecutor] later; isn’t that right?
      A. Yes.
      Q. And that's why you’re here, isn’t it?
      A. I’m here because I want to be here.
      Q. You’re here because you have to be here because if you don’t testify [the prosecutor] isn’t going to help you, isn't [sic] he?
      A. I don’t think so. I don’t think he would, no, sir.

      . It is axiomatic that no evidentiary hearing is warranted on this issue, for there is nothing further that could be developed on the existence of a deal.


author: WOLLMAN, Circuit Judge. BRIGHT, Circuit Judge,

text:
    UNITED STATES of America, Appellant, v. Cirilo MENDOZA, Appellee. UNITED STATES of America, Appellant, v. Cirilo MENDOZA, Martha Wheeler, Appellees.
    Nos. 95-3572, 95-3573.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 13, 1996.
    Decided June 11, 1996.

      Clifford Cronk, Asst. U.S. Atty., argued, Rock Island, IL, for appellant.
    Jane Kelly, Asst. Public Defender, argued, Cedar Rapids, IA, for appellee Mendoza.
    Chip Lowe, argued, Des Moines, IA, for appellee Wheeler.
    Before FAGG, BRIGHT, and WOLLMAN, Circuit Judges.
   WOLLMAN, Circuit Judge.

Pursuant to 18 U.S.C. § 3731, the government appeals from two orders entered by the district court suppressing as evidence statements made by defendant Martha Wheeler. The first order granted Wheeler’s motion to suppress evidence on the basis that her statements were involuntary, and the second order precluded the government from using Wheeler’s statement implicating co-defendant Cirilo Mendoza, on the theory that the statement was inadmissible hearsay. We affirm in part and reverse in part.

I. Background

On July 28, 1995, agents of the Drug Enforcement Administration (DEA) and the Iowa Division of Narcotics Enforcement (DNE) executed a search on Carmella Sue House’s residence. House agreed to cooperate with the agents after they discovered evidence of drug activity. House told the agents that her source of methamphetamine was a person named Martha Wheeler and that Wheeler’s source was a person named Cirilo. She also informed them of the details of a methamphetamine purchase she was to make later that day. According to House, one pound of methamphetamine, which was to cost her $16,000, was to be placed next to a tire and a metal pipe beside a gravel road in a wooded area.

While the agents were at House’s residence, House received a telephone call from Wheeler. Wheeler and House arranged to meet so that House could pay Wheeler for the methamphetamine that was to be delivered later that day. One of the agents accompanied House to the prearranged meeting place while several other agents followed. The agents observed Wheeler get into House’s vehicle and accept a payment of approximately $16,000. While inside the vehicle, Wheeler told House that the methamphetamine would be delivered later that day to the drop site that had been used previously. As Wheeler exited House’s vehicle and returned to her own, DNE Agent Dan Stepleton approached Wheeler and identified himself as a law enforcement officer. After retrieving the $16,000 payment from Wheeler’s purse, Stepleton advised Wheeler that he knew that she had received the money as payment for methamphetamine and that he was seeking her cooperation in finding her source. After advising Wheeler of her Miranda rights, Stepleton got into Wheeler’s vehicle and directed her to drive to the Muscatine County Drug Task Force office which was located a few blocks away. While en route to the office, Stepleton told Wheeler that if she did not cooperate, she would be arrested immediately.

Wheeler was again advised of her Miranda rights by DEA Agent David Mizell upon her arrival at the Drug Task Force office parking lot. Mizell told Wheeler that he knew she was involved in a methamphetamine transaction but that she was not under arrest and would not be charged at that point. After Mizell told Wheeler that he could not make any deals concerning the charges but that he would make her cooperation known to the United States Attorney, Wheeler agreed to cooperate.

Wheeler gave a general description of the drop site location that coincided with the description given by House. She then pointed out two possible drop site locations to the agents and returned to her house to wait for a telephone call from her source. She was permitted to drive her own vehicle to the drop site locations and to her house. While waiting for the telephone call, Wheeler told the agents that her source was a Mexican male named “Beaner.” Later, she said that her source’s true name was “Jose.” She confirmed that he was to deliver the drugs to a rural location in Muscatine County and place them in a culvert, a tire, or a pipe that was located near a gravel road. Wheeler told the agents that she had delivered one-pound quantities of methamphetamine to House on three prior occasions. She also mentioned that she had a boyfriend named Cirilo Mendoza but that he was not involved in the transaction.

After receiving a telephone call informing them that a suspect had been arrested near one of the drop site locations, the agents left Wheeler’s residence and recovered one pound of methamphetamine in a culvert by a gravel road in Muscatine County. Thereafter, they returned to Wheeler’s residence and confronted her with the fact that Mendoza had been arrested near the drop site location. Wheeler then admitted that Mendoza had gone to the location to deliver the methamphetamine.

Wheeler and Mendoza were charged with conspiring to distribute and possess methamphetamine in violation of 21 U.S.C. § 841(a)(1). Wheeler filed a motion to suppress her July 28th statements. Mendoza moved to sever his trial from Wheeler’s on the theory that Wheeler’s statements were inadmissible hearsay as to him. On September 29, 1995, the district court granted Wheeler’s motion to suppress, finding that the statements were not voluntarily made. On the same day, the district court denied Mendoza’s motion to sever, concluding that the issue was moot because of its ruling on Wheeler’s motion to suppress.

The government timely appealed the district court’s order suppressing Wheeler’s statements. After receiving notice of the appeal, the district court entered an order severing the defendants’ cases for trial. Wheeler’s trial was continued so that the appeal could be processed, but Mendoza’s trial was set to proceed as scheduled on October 2,1995.

Prior to the start of Mendoza’s trial, the district court entered a clarification to the effect that its prior suppression order “did not purport or intend to hold that the evidence of the statements is inadmissible against defendant Mendoza. That was a separate issue which has been ruled on this date in a Rule 104(a) ruling.” The district court then filed an order precluding the government from using Wheeler’s statement implicating Mendoza, on the theory that the statement was inadmissible hearsay under Federal Rule of Evidence 804(b)(3). Later that day, the government filed a notice of appeal from the second order. We address both orders in this appeal.

II. Jurisdiction

As a preliminary matter, Mendoza contends that because he was not a party to the first order entered by the district court, we lack jurisdiction over the appeal as to him. Section 3731 states, in relevant part:

An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

Because the district court’s second order effectively prevents the government from using Wheeler’s statement to implicate Mendoza, we have jurisdiction under section 3731.

III. Merits

A. Voluntariness of Wheeler’s Statements

The government first contends that the district court erred in finding that Wheeler’s statements were not voluntary. We review de novo the ultimate issue of whether a confession is voluntary, but we review the district court’s factual findings underlying its decision for clear error. United States v. Johnson, 47 F.3d 272, 275 (8th Cir.1995) (citing United States v. Casal, 915 F.2d 1225, 1228 (8th Cir.1990), cert. denied, 499 U.S. 941, 111 S.Ct. 1400, 113 L.Ed.2d 455 (1991)). In determining whether a confession is voluntary, a court should examine the circumstances surrounding the confession, including “ ‘the conduct of the law enforcement officials and the capacity of the suspect to resist pressure to confess.’” Id. at 276 (quoting Casal, 915 F.2d at 1228).

In assessing the voluntariness of Wheeler’s statements, the district court reasoned:

Were it not for the fact that Special Agent Stepleton told defendant Wheeler that she would be immediately arrested if she did not cooperate with the officers, I would probably conclude that all of her statements to the officers were voluntary. The totality of circumstances in this case includes, however, the fact that defendant Wheeler was told near the outset of events and before she made any statements, that the only alternative to cooperating with the officers was immediate arrest. That threat, which was made while defendant Wheeler was in a custodial situation, is a coercive facet in the totality of the circumstances.

In the light of the totality of the circumstances, we cannot agree that Wheeler’s will was overborne so as to make her statements involuntary. First, the agents gave Miranda warnings to Wheeler on two occasions. The fact that such warnings were given weighs in favor of a voluntariness finding. Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 268 (1985). In addition, the agents did not place Wheeler in handcuffs or subject her to physical or emotional coercion. The first encounter by Agent Stepleton took place on a street while Wheeler was in her own vehicle. The second encounter took place in the parking lot of the Drug Task Force office. Finally, the bulk of Wheeler’s statements were made in her own home.

Further, during her encounter with the agents Wheeler was permitted to drive her own car to the Drug Task Force office, to the possible drop site locations, and to her house. There was no lengthy interrogation by the agents, nor did the agents use trickery or deceit to obtain Wheeler’s statements. Moreover, Wheeler presented no evidence that she was particularly susceptible to police pressure. Finally, the agents’ promise that they would make Wheeler’s cooperation known to the United States attorney did not transform an otherwise voluntary statement into an involuntary one. See United States v. Kilgore, 58 F.3d 350, 353 (8th Cir.1995) (promise of leniency, by itself, does not make confession involuntary); United States v. Harris, 914 F.2d 927, 933(7th Cir.1990) (police may solicit confession by offering to reduce charges against defendant).

The district court placed emphasis on Agent Stepleton’s statement that Wheeler would be arrested immediately if she did not cooperate. We conclude, however, that this single statement was not so coercive as to deprive Wheeler of her ability to make an unconstrained decision to confess. See United States v. Hocking, 860 F.2d 769, 774 (7th Cir.1988) (FBI agents’ threats that defendant faced criminal charges and imprisonment did not make defendant’s confession involuntary). See also United States v. Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir.) (suggestion by law enforcement that defendant might suffer while serving long prison sentence did not make ensuing statement involuntary), cert. denied, 506 U.S. 964, 113 S.Ct. 436, 121 L.Ed.2d 356 (1992); United States v. Nash, 910 F.2d 749, 752-53 (11th Cir.1990) (officer’s discussion of realistic penalties for cooperative and non-cooperative defendants did not make defendant’s confession involuntary); United States v. Meirovitz, 918 F.2d 1376, 1379 (8th Cir.1990) (agents’ threats of long prison sentence if defendant failed to cooperate did not make statements involuntary), cert. denied, 502 U.S. 829, 112 S.Ct. 101, 116 L.Ed.2d 71 (1991); Sumpter v. Nix, 863 F.2d 563, 565 (8th Cir.1988) (confession voluntary even though defendant with below-average IQ was subjected to seven and one-half hour interrogation with agent who played on his emotions); Cf. Kilgore, 58 F.3d at 353 (statements voluntary despite evidence that defendant’s motivation in confessing was to recover his impounded vehicle and not spend the night in jail). We find persuasive the fact that Wheeler did not make any incriminating statements or decide to cooperate until after Agent Mizell had given her Miranda warnings and had told her that she would not be arrested or charged that day. Thus, we conclude that Wheeler’s will was not overborne by the agents when she decided to cooperate.

B. Admissibility of Statement Implicating Mendoza

The government also contends that the district court erred in prohibiting the use of Wheeler’s statement to incriminate Mendoza, on the theory that the statement was admissible under Rule 804(b)(3). We review a district court’s ruling on admissibility of evidence for an abuse of discretion. United States v. Hazelett, 32 F.3d 1313, 1316 (8th Cir.1994).

Under Rule 804(b)(3), a statement is not excluded as hearsay if the declarant is unavailable as a witness and the statement was against the declarant’s penal interest. Before a statement is admitted pursuant to Rule 804(b)(3), a three-prong test must be satisfied:

[I]t must be shown that (1) the declarant is unavailable as a witness, (2) the statement must so far tend to subject the declarant to criminal liability that a reasonable person in the declarant’s position would not have made the statement unless he or she believed it to be true, and (3) corroborating circumstances clearly indicate the trustworthiness of the statement.

Id. (quoting United States v. Riley, 657 F.2d 1377, 1383 (8th Cir.1981)).

In Williamson v. United States, — U.S. -, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), the Supreme Court addressed the manner in which courts should resolve the against-penal-interest determination under Rule 804(b)(3). In Williamson, Harris was arrested when an officer discovered'cocaine in the trunk of his rental car. Following his arrest, Harris gave a detañed account of his involvement in a cocaine operation and made statements implicating Williamson. The Court recognized that “[t]he fact that a person is making a broadly self-inculpatory confession does not make more credible the confession’s non-self-inculpatory parts.” Id. at -, 114 S.Ct. at 2435. The Court remanded the case, holding that “[t]he district court may not just assume for purposes of Rule 804(b)(3) that a statement is self-inculpatory because it is part of a fuller confession, and this is especially true when the statement implicates someone else.” Id.

As the Seventh Circuit noted, Williamson rests on the premise that “[pjortions of inculpatory statements that pose no risk to the declarants are not particularly rehable; they are just garden variety hearsay.” Carson v. Peters, 42 F.3d 384, 386 (7th Cir.1994). Thus, courts “must separate the incriminating portions of statements from other portions” of the statements because “portions of a confession that do not inculpate the declarant are not rehable enough for prosecutors to use against anyone other than the declarant.” Id.

In Hazelett, we apphed the standards set forth in Williamson. In that ease, King was arrested after a DEA agent discovered that she was carrying drugs. King agreed to cooperate with the authorities and implicated Hazelett in a subsequent statement. We held that King’s statements incriminating Hazelett were inadmissible under Rule 804(b)(3) inasmuch as “she had nothing to lose by confessing, and she certainly had nothing to lose by impheating another person, particularly someone more culpable.” Hazelett, 32 F.3d at 1318.

Williamson required the district court to examine each portion of Wheeler’s statement to determine whether it tended to subject her to criminal liability. We agree with the district court that Wheeler’s statement that Mendoza had dehvered the methamphetamine was not sufficiently against her penal interest to warrant admission under Rule 804(b)(3). Wheeler agreed to cooperate with authorities after she was caught red-handed with $16,000 in drug money. Initially, she denied that Mendoza was involved in the transaction and named someone else as her source. It was only after the agents apprehended Mendoza near the drop site location and confronted her with this fact that she pointed the finger at Mendoza. At that point, she had nothing to lose by implicating him. Moreover, she may reasonably have believed that by implicating Mendoza she would curry favor with the authorities and lessen her own punishment. See Hazelett, 32 F.3d at 1318.

The district court’s order prohibiting the government from using Wheeler’s statement to implicate Mendoza is affirmed. The district court’s order granting Wheeler’s motion to suppress is reversed. The cases are remanded for further proceedings consistent with this opinion.

BRIGHT, Circuit Judge,

concurring in part and dissenting in part.

I concur in that portion of the majority opinion concluding that Wheeler’s statements were inadmissible hearsay against Mendoza. I dissent from that portion of the opinion concluding that Wheeler’s statements were “voluntary” and thus admissible against her.

The question of voluntariness is a mixed question of law and fact. As the majority observes, a court should examine the circumstances surrounding the confession, including the conduct of law enforcement officials and the capacity of the suspect to resist pressure to confess. Op. at 1350 (citing United States v. Johnson, 47 F.3d 272, 275 (8th Cir.1995)). Although government agents may initiate conversations on cooperation without rendering a confession involuntary, custodial statements are presumed involuntary and the government must overcome the presumption by a preponderance of the evidence. Tippitt v. Lockhart, 859 F.2d 595, 597 (8th Cir.1988), cert. denied, 490 U.S. 1100, 109 S.Ct. 2452, 104 L.Ed.2d 1007 (1989).

The majority does not seem to question the underlying crucial findings of the district court that Wheeler was in a custodial situation and that an officer visibly carrying a gun got in her car and told her that she would be arrested immediately if she did not cooperate. This statement was made before Wheeler talked. The basic question is whether these matters served to coerce Wheeler’s statements here in question given to the officers. The district court answered the question in the affirmative. The district judge who heard the live witnesses stands in a superior position to this court in finding that the conversation and other circumstances continued their coercive effect to the time when Wheeler spoke out.

The facts support the trial court’s findings of eoerciveness. Those findings are not clearly erroneous and lead to the ultimate conclusion of involuntariness of the confession. Cf. United States v. Kilgore, 58 F.3d 350, 353 (8th Cir.1995) (acknowledging that suspect’s will may be overborne and capacity for self-determination critically impaired where confession extracted by threats, violence, or direct or implied promises, but finding no such extraction where officers simply promised suspect he would not go to jail that same night and would retain the use of his personal vehicle).

Accordingly, I dissent from that portion of the majority opinion which concludes Wheeler’s statements were voluntary and admissible against her. I believe the district court’s opinion should be affirmed in its entirety.

      . Rule 804 states, in relevant part:
      (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
      (3) Statement against interest. A statement which as at the time of it making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.