Steven F. Taylor v. Larry Norris ( 2005 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-1117
    ___________
    Steven F. Taylor,                       *
    *
    Petitioner -Appellant,      *
    * Appeal from the United States
    v.                                * District Court for the Eastern
    * District of Arkansas.
    Larry Norris, Director, Arkansas        *
    Department of Correction,               *
    *
    Respondent - Appellee.      *
    ___________
    Submitted: December 16, 2004
    Filed: March 21, 2005
    ___________
    Before MELLOY, BOWMAN, and BENTON, Circuit Judges.
    ___________
    MELLOY, Circuit Judge.
    Arkansas prisoner Steven F. Taylor appealed the district court’s1 denial of his
    petition for habeas relief. We affirmed in a decision dated February 9, 2005. The
    appellee filed a timely petition for rehearing by the panel. Although the appellee,
    1
    The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the
    Eastern District of Arkansas.
    Larry Norris, was the prevailing party in our prior decision, he correctly points out
    in the rehearing petition that we misconstrued the procedural default rule as set out
    in Harris v. Reed, 
    489 U.S. 255
    (1989). Accordingly, we grant the petition for
    rehearing by the panel, vacate the opinion filed in this matter on February 9, 2005,
    and file this substituted opinion.
    Arkansas authorities arrested Mr. Taylor on various state drug and firearm
    charges following the nighttime execution of a search warrant at his home. The State
    charged Mr. Taylor in three separate cases: CR 95-648, delivery of a controlled
    substance; CR 96-113, simultaneous possession of drugs and firearms; and CR 96-
    190, two counts of possession of a controlled substance with intent to deliver and one
    count of possession of a firearm. The first attorney that the Arkansas Circuit Court
    appointed to represent Mr. Taylor, Phyllis Worley, requested and received discovery
    materials from the county prosecutor. These materials revealed that the State’s
    confidential informant, who had provided information for the search warrant
    application, was one of her former clients.
    Ms. Worley notified the Circuit Court of the existence of a potential conflict
    of interest in CR 95-648 and CR 96-113, the cases she believed to be dependent in
    part on the search. She petitioned the court to be released from representing Mr.
    Taylor. The Circuit Court released her and appointed replacement counsel, Jim Petty,
    to represent Mr. Taylor. Later, Mr. Petty discovered that he too had conflicts. The
    Circuit Court released Mr. Petty. The Circuit Court then appointed a third attorney,
    Russ Hunt, to represent Mr. Taylor in CR 95-648 and 96-190. The Circuit Court
    reappointed Ms. Worley as co-counsel in CR 96-190 and as sole counsel in CR 96-
    113.
    When the Circuit Court reappointed Ms. Worley to represent Mr. Taylor, she
    told the prosecutor of the possible conflict related to the confidential informant. The
    prosecutor, however, assured her that in the event the case went to trial, the State did
    -2-
    not intend to call the confidential informant as a witness. Later, Ms. Worley
    discovered that the State did intend to use the confidential informant as a witness.
    She sought instruction from the Circuit Court, but before the Circuit Court acted on
    her request, Mr. Taylor reached a plea agreement.
    Ms. Worley was present at the plea hearing. The Circuit Court asked her about
    the conflict, and she told the Circuit Court that no conflict existed because the only
    possibility for a conflict would have been if Mr. Taylor’s cases had gone to trial and
    the confidential informant had testified. The Circuit Court accepted this explanation.
    Mr. Taylor pled guilty in CR 96-190 and CR 96-113 and the State abandoned CR 95-
    648. The Circuit Court sentenced Mr. Taylor to 432 months of imprisonment.
    Mr. Taylor filed a timely petition for postconviction relief with the Circuit
    Court under Arkansas Rule of Criminal Procedure § 37. He alleged ineffective
    assistance of counsel in violation of the Sixth Amendment of the United States
    Constitution. Mr. Taylor claimed that Ms. Worley should have challenged the search
    warrant affidavit, search warrant, and nighttime execution of the search warrant under
    Arkansas law, and that her failure to do so comprised ineffective assistance. The
    Circuit Court denied relief, and Mr. Taylor appealed. The Arkansas Supreme Court
    determined that the Circuit Court had not made adequate written findings on Mr.
    Taylor’s claims. Taylor v. State, 
    9 S.W.3d 515
    , 516 (Ark. 2000). On remand, the
    Circuit Court found:
    The defendant failed to prove that Ms. Worley had an actual conflict of
    interest. Prior representation of a potential witness for the state does not
    by itself establish an actual conflict of interest. The defendant failed to
    present evidence of any such actual conflict. Secondly, the defendant
    failed to provide evidence that Ms. Worley’s prior representation of the
    [] potential state’s witness in any way [a]ffected the adequacy of her
    representation of the defendant. No evidence was presented to indicate
    Ms. Worley declined to challenge the search warrant because of her
    prior representation of the confidential informant.
    -3-
    Taylor v. State, CR 00-877, 
    2001 WL 435511
    at *2 (Ark. 2001) (unpublished)
    (“Taylor II”) (quoting the Circuit Court).
    Following remand, the Arkansas Supreme Court affirmed on procedural
    grounds. 
    Id. It found
    that Mr. Taylor failed to adequately abstract the record as
    required under Arkansas procedure and that this failure deprived the Arkansas
    Supreme Court of an adequate record upon which to rule. 
    Id. (“Although appellant
    has abstracted language mentioned in the search warrant, we are unable to determine
    whether the language consists of an impartial condensation of the search warrant as
    required by Ark. Sup. Ct. R. 4-2(a)(6). . . . Because of this failure, we affirm.”)
    (emphasis added).
    Notwithstanding this ruling on procedural grounds, the Arkansas Supreme
    Court stated in its footnote 1:
    Despite appellant’s abstracting deficiency, the limited information
    provided by appellant appears to be similar to the case of Holloway v.
    State, 
    293 Ark. 438
    , 
    742 S.W.2d 550
    (1987) in which we found that a
    nighttime search was justified. Thus, appellant has also failed to show
    that he was prejudiced by counsel’s alleged conflict of interest.
    Taylor II at *2 n.1.
    Mr. Taylor next filed a petition for habeas relief in the United States District
    Court for the Eastern District of Arkansas. The District Court denied relief, but
    granted a certificate of appealability as to one issue: the alleged ineffective assistance
    of Ms. Worley due to a conflict of interest.
    On appeal, the State argues that we may not consider Mr. Taylor’s ineffective
    assistance claim because the Arkansas Supreme Court found the claim procedurally
    defaulted as a matter of state law. Heffernan v. Norris, 
    48 F.3d 331
    , 333 (8th Cir.
    -4-
    1995) (stating that a federal court cannot consider claims that a prisoner procedurally
    defaulted in state court absent a showing of actual innocence or cause and prejudice).
    We agree. Although the Arkansas Supreme Court, in its footnote 1, set forth an
    alternative ruling based on the merits, and although this alternative ruling appears to
    address the federal issue of ineffective assistance of counsel, the court nevertheless
    clearly and expressly stated that its decision rested on state procedural grounds. As
    long as a state court sets forth a clear and plain statement that its decision rests on
    state law grounds, and as long as those grounds are adequate and independent of
    federal claims, the state court may make reference to a federal claim without opening
    the door to habeas review. See Coleman v. Thompson, 
    501 U.S. 722
    , 733 (1991).
    In Coleman, the Court stated:
    After Long a state court that wishes to look to federal law for guidance
    or as an alternative holding while still relying on an independent and
    adequate state ground can avoid the presumption [that the state court
    decision rests on federal grounds] by stating “clearly and expressly that
    [its decision] is . . . based on bona fide separate, adequate, and
    independent grounds.”
    
    Id. (quoting Michigan
    v. Long, 
    463 U.S. 1032
    , 1041 (1983)) (second alteration in
    original). Here, the Arkansas Supreme Court’s decision is supported by independent
    and adequate state law grounds that we may not disturb. See generally, Harris v.
    Reed, 
    489 U.S. 255
    , 260-266 (1989).
    The judgment of the district court is affirmed.
    ______________________________
    -5-
    

Document Info

Docket Number: 04-1117

Filed Date: 3/21/2005

Precedential Status: Precedential

Modified Date: 10/13/2015