Clay Anthony Ford v. Larry Norris ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2917
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Clay Anthony Ford, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the Eastern
Larry Norris, Director, Arkansas * District of Arkansas.
Department of Correction, *
*
Appellant. *
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Submitted: January 14, 2004
Filed: April 14, 2004
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Before WOLLMAN, RICHARD S. ARNOLD, and MORRIS SHEPPARD
ARNOLD, Circuit Judges.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
This is an appeal from an order granting a petition for habeas corpus to a state
prisoner. See 28 U.S.C. § 2254. Because we conclude that the district court
incorrectly applied the controlling law in this case, we reverse.
I.
In 1980, Clay Ford shot and killed Sergeant Glen Bailey of the Arkansas State
Police. After Mr. Ford was tried, found guilty of capital murder, and sentenced to
death, we upheld the federal district court's decision overturning the conviction on
collateral review. See Ford v. Norris, 67 F.3d 162, 163-64 (8th Cir. 1995). On
retrial, Mr. Ford was sentenced to life in prison. He pursued his direct appeal in the
state courts, see Ford v. State, 334 Ark. 385, 976 S.W.2d 915 (1998), and then filed
a state habeas petition, alleging, as relevant here, that he was deprived of the effective
assistance of counsel when his attorney failed to object to statements by the
prosecution made during closing arguments. After the Arkansas Supreme Court
rejected this claim, see Ford v. State, No. CR 00-302, 2001 WL 1203446, at *3 (Ark.
Oct. 11, 2001) (per curiam), Mr. Ford filed a petition for habeas corpus in federal
district court. That court granted his petition, and the state filed this appeal.
At Mr. Ford's second trial, after the jury found him guilty of first degree murder
rather than capital murder, it was faced with the choice of sentencing Mr. Ford to life
in prison without parole or to a term of ten to forty years. See Ark. Stat. Ann.
§§ 5-10-102(c), 5-4-401(a)(1), 16-93-607(c)(1). During closing arguments at the
sentencing portion of the trial, the prosecutor stated that because of the good time
credit that Mr. Ford accumulated during the seventeen years that he had already been
incarcerated, coupled with the rules for parole eligibility, he could immediately "just
about flatten" a forty-year sentence. The prosecutor argued that because of this
credit, giving Mr. Ford anything less than a life sentence would be "basically giving
him the keys to the prison door." Mr. Ford's attorney did not object to these
statements, and Mr. Ford was sentenced to life in prison without parole.
In his state habeas proceedings, Mr. Ford claimed that the statements that the
prosecutor made were false and outside the record, and he argued that the failure of
his attorney to object to the statements deprived him of his right to the effective
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). On
appeal, the Arkansas Supreme Court held that if Mr. Ford's attorney had objected, the
trial court probably would have overruled the objection. See Ford v. Arkansas, 2001
WL 1203446, at *3. Under Arkansas law, the court stated, the defense had "opened
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the door" to the prosecutor's statements by noting in his own closing argument that
the prosecutor would bring up the issue of Mr. Ford's parole eligibility. Id. (citing
Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993)). Accordingly, the court
decided that Mr. Ford was not denied his right to the effective assistance of counsel
because his attorney did not act incompetently by failing to object to the state's
closing argument. Cf. Strickland, 466 U.S. at 687.
The district court, adopting in its entirety a federal magistrate judge's report and
recommendation, concluded that the Arkansas Supreme Court's decision "was
contrary to, [and] involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States." See 28 U.S.C.
§ 2254(d)(1). The district court decided that an objection to the prosecutor's remarks
"undoubtedly would have been sustained." The Arkansas Supreme Court's contrary
holding, the district court went on to hold, constituted an unreasonable application
of Strickland to the facts of Mr. Ford's case. The failure to object, according to the
district judge, fell below the objective standard of reasonable representation. Cf.
Strickland, 466 U.S. at 687-88. The court went on to find that Mr. Ford was
prejudiced because the jury was left to deliberate with the false impression that they
had no choice but to sentence him to life in prison or effectively release him
immediately.
II.
In recognition of the special role of the federal courts in seeing to it that federal
law is properly followed regardless of forum, Congress has created a legislative
exception to the rule of finality that ordinarily applies to cases that have been fully
tried and appealed. See 28 U.S.C. § 2254. But § 2254 makes perfectly clear that
when reviewing state court judgments in habeas corpus cases, our ability to grant
relief is sharply limited to those cases involving unreasonable determinations of fact
or clear errors of federal law. See 28 U.S.C. § 2254(d)(1). Nor do we pass on issues
of federal law that have not first been presented to state courts. This latter principle
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reflects a respect for state judicial systems, an unwillingness to correct mistakes that
the states have not first been given an opportunity to correct themselves.
Mr. Ford asserts that the state proceedings deprived him of his right to counsel
under the Sixth Amendment. As the Supreme Court has long made clear, "the right
to counsel is the right to the effective assistance of counsel." See McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970). Effectiveness, however, is specific to the
legal context in which the counsel operates. A lawyer can be ineffective in many
ways: She might fail to make a pertinent federal-law argument, or she might fail to
make a pertinent state-law argument. Thus in a Strickland claim it is always the
conduct of the attorney that is being challenged. There is nothing about the claim
itself that necessarily constitutes a challenge to the underlying legal rules that the
allegedly ineffective counsel should have invoked. Therefore, the claim that a lawyer
was ineffective for not objecting to certain statements is not itself a federal challenge
to the statements themselves. The statements could be objectionable because they
violated the federal constitution or they could be objectionable because they violated
a state legal rule. Strickland does not commit a petitioner to any particular theory of
his counsel's ineffectiveness. That is an issue on which the petitioner must make a
specific argument.
In this case, Mr. Ford claimed that his lawyer failed to object to statements
made by the prosecution that were allegedly false and outside the record. His claim,
however, was based entirely on the law of trial procedure, and in an Arkansas court
these matters are, of course, governed by Arkansas law. In Mr. Ford's case, the
Arkansas Supreme Court came to the conclusion that had Mr. Ford's attorney objected
to the prosecutor's statements, the objection, as a matter of Arkansas law, would
probably have been overruled. Contrary to the district court's opinion, this
determination was not an application of federal law to the particular facts of
Mr. Ford's case. Rather, the Arkansas Supreme Court was applying Arkansas law to
the facts of Mr. Ford's case. The Arkansas Supreme Court is the final authority on
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the interpretation of Arkansas law. As the supreme judicial authority of the state, it
decides what state law is, an issue which cannot itself be reviewed in a federal habeas
proceeding. The district court essentially overruled the Arkansas Supreme Court on
a matter of Arkansas law, which is something that it cannot do.
The result that we reach here follows not only from the logic of habeas review
but also from our own precedents. In Jenner v. Class, 79 F.3d 736 (8th Cir. 1996),
we considered a similar habeas petition alleging ineffective assistance of counsel for
failure to raise a point of state law. In that case the defense attorney had failed to ask
for a particular instruction. See id. at 740. On collateral review, the state supreme
court ruled that the defendant would not have been entitled to the instruction that his
counsel did not ask for. See id. "Given [the state supreme court's] ruling," we held,
"there is no basis for ruling that counsel was deficient for not proposing the
instruction." Id.
The particular rule applied by the Arkansas Supreme Court in this case may be
odd, and the statements that the prosecuting attorney made may be open to a federal
constitutional attack on due process grounds or on some other basis. It is also
possible that Mr. Ford's lawyer was ineffective in not making such a challenge at trial
and on appeal. We do not address these issues because, after exhaustively reviewing
the pleadings, briefs, and arguments in this habeas petition and in the state post-
conviction proceedings, we were unable to locate a single instance in which these
arguments were advanced. Throughout his post-conviction proceedings, Mr. Ford
has argued simply that the prosecution's statements during closing argument were
false and outside the record. He has argued repeatedly that his attorney should have
objected to their admission and has cited to cases involving the Arkansas law of trial
procedure in support of this contention. It is true that in a few places during the long
course of this litigation, Mr. Ford's briefs and arguments contain vague references to
the unfairness of the prosecution's statements; but the law of this circuit "requires that
the applicant for a writ of habeas corpus refer to a specific federal constitutional right,
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a particular constitutional provision, a federal constitutional case, or a state case
raising a pertinent constitutional issue" in state court before we will evaluate a claim.
Kelly v. Trickey, 844 F.2d 557, 558 (8th Cir. 1988) (internal quotations omitted).
Not once either in state court or in federal court did Mr. Ford argue that the
prosecution's statements themselves violated the United States Constitution or any
other provision of federal law, nor did he cite to a single case that could be reasonably
construed as authority for such a proposition. None of the courts that have considered
the legality of the prosecution's statements has purported to rely on anything other
than the ordinary law of procedure in reaching its conclusions, and there is nothing
to suggest that those courts even considered the possibility that the statements
violated federal law. Finally, Mr. Ford did not argue in the district court that the rule
of Arkansas law relied on by the Arkansas Supreme Court violated federal law, nor
did the district court base its holding on any such federal theory. In short, even under
the most generous possible reading of the record, no federal challenge to the
prosecution's statement is properly before us.
III.
For the reasons stated above, we find that the Arkansas Supreme Court's
decision did not involve an unreasonable interpretation or application of federal law.
Accordingly, we reverse the decision of the district court.
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