Broderick Collier v. Larry Norris

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
Nos. 06-2519/2630
________________
Broderick Collier, *
*
Appellant/Cross-Appellee, *
*
v. * Appeal from the United States
* District Court for the
Larry Norris, Director, Arkansas * Eastern District of Arkansas.
Department of Corrections, *
*
Cross-Appellant/Appellee. *
*
________________
Submitted: February 12, 2007
Filed: April 16, 2007
________________
Before LOKEN, Chief Judge, O’CONNOR*, Associate Justice (Ret.) and
GRUENDER, Circuit Judge.
________________
GRUENDER, Circuit Judge.
Broderick Collier was convicted in Arkansas state court of first-degree murder
and sentenced to 44 years’ imprisonment. The Arkansas Court of Appeals affirmed
the conviction. After the Arkansas Supreme Court denied post-conviction relief,
*
The Honorable Sandra Day O’Connor, Associate Justice of the United States
Supreme Court, (Ret.), sitting by designation, pursuant to 28 U.S.C. § 294(a).
Collier filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
district court1 denied habeas relief but granted a certificate of appealability. Collier
now appeals the denial of the writ, and we affirm.
I. BACKGROUND
In July 1996, Adam Wilstead was driving past 2205 Walker Street in Little
Rock, Arkansas, when shots were fired into his car. He subsequently died from
shotgun wounds to the head and neck. Dixie Griffin told investigators that Keon
Neeley had fired a shotgun and Collier had fired a pistol at Wilstead’s car. Collier
was charged with first-degree murder as an accomplice; Neeley was never charged.
A. The Trial Proceedings
Dixie Griffin was the only witness at trial who testified to seeing Collier and
Neeley commit the murder. Dixie Griffin lived at 2205 Walker Street with her
brother, Duke Hinerman, Lisa Pike Collier (“Lisa Pike”), who was then engaged and
later married to Collier, as well as a man named Charles Bell. Dixie Griffin testified
that on the night of the murder a car repeatedly drove by the Walker Street house with
its headlights turned off. Because her roommate, Lisa Pike, had a verbal altercation
with someone one or two weeks before this incident, the women feared that the car
was planning a drive-by shooting. Eventually Lisa Pike called Collier, who
subsequently arrived at the house with Neeley in Lisa Pike’s maroon Oldsmobile.
Neeley carried a sawed-off shotgun with duct tape on it that Dixie Griffin recognized
as Collier’s, and Collier had a pistol. Collier, Neeley and Lisa Pike then went outside,
and Dixie Griffin stayed inside by the front door of the house. From her view, Dixie
Griffin saw the car drive by again and watched as Neeley and Collier began shooting
1
The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas.
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at the car and continued shooting as they chased the car down the street. They shot
at the car until it hit a ditch and wrecked. Dixie Griffin then called the police. The
police eventually took Dixie Griffin, Lisa Pike, Collier and Bell to the police station.
All four denied knowing who shot Wilstead. Dixie Griffin testified at trial that she
did not tell the police that Collier was one of the shooters because Lisa Pike was her
best friend and she feared reproach from Collier. Thirteen months later she came
forward, told the police what she had seen on the night of the murder and implicated
Collier. Dixie Griffin testified that she decided to come forward because she had
begun to feel sorry for Wilstead’s mother.
Bell testified that he lived and was present at 2205 Walker Street at the time of
the Wilstead murder. He testified that after the car drove by a few times Lisa Pike
went into her room where there was a telephone. Shortly after she came out of her
room, Collier and another man arrived. A few minutes later, Collier, the man he
arrived with and Lisa Pike went outside. Bell was in the kitchen when he heard
gunshots. Shortly after the gunshots ceased, Collier and Lisa Pike came back inside
the house. Dixie Griffin then called the police. Bell admitted that he lied to the police
that night when he told them that “he didn’t know of anyone from 2205 Walker Street
that did any shooting.”
Hinerman’s testimony revealed that he arrived home from work after the
murder and while the police were on the scene conducting their investigation. As Lisa
Pike was being escorted out by the police, she whispered into Hinerman’s ear to “get
the gun.” From this, he understood she meant Collier’s duct-taped 12-gauge shotgun,
which Hinerman then retrieved from the maroon Oldsmobile and hid in the crawlspace
underneath the house.2 Hinerman was not interviewed on the night of the murder.
The following day, Collier asked Hinerman where the shotgun was hidden. After
Hinerman told him where to find it, Collier retrieved the gun and expressed his
2
The record is unclear as to what happened to the pistol.
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appreciation to Hinerman. It was not until seven months later that Hinerman first told
the police what he knew about the Wilstead murder and his conversation with Collier
the day after it. Hinerman testified that he decided to come forward after he had been
a victim of a shooting himself and began to feel that “anybody that wants to carry
around guns and shoot at people or shoot people needs to be taken off the streets.”
The remaining state lay witnesses included Henry Baker, Otis Griffin and
Rodney Blake. Baker was in the backseat of the car driven by Wilstead at the time of
the murder. His testimony confirmed that on the night of the murder they drove by
2205 Walker Street more than once and that Wilstead turned off the headlights as they
approached the house. Baker heard shots from both a handgun and shotgun and felt
the impact of shattered glass but did not see who had fired the shots. He recalled
seeing a burgundy or maroon car that he identified as either a Buick or an Oldsmobile.
Otis Griffin, Dixie Griffin’s husband, was not at 2205 Walker Street on the night of
the murder, but he testified that he later had a conversation with Collier during which
Collier confessed to Wilstead’s murder. Blake, a neighbor who lived at 2301 Walker
Street, testified to hearing shots fired from both a handgun and a shotgun at the time
of the murder. Blake stated the shots got “louder and louder” as they got “closer and
closer” to his house. In addition to the lay witnesses, the state presented testimony
from forensic experts that established Wilstead’s car was punctured by shotgun
pellets, that Wilstead died from shotgun wounds and that shotgun shells and waddings
were found at the crime scene. The forensic evidence also established that the shells
found on Walker Street were all fired from the same shotgun and that the waddings
found on the street and in Wilstead’s car were all from Remington-Peters 12-gauge
shotgun shells.
After the trial in the Circuit Court of Pulaski County, the jury convicted Collier
of first-degree murder, and the Arkansas Court of Appeals affirmed. Collier v. State,
No. CACR00-348, 2001 WL 196953 (Ark. Ct. App. Feb. 28, 2001). Collier did not
appeal to the Arkansas Supreme Court.
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B. The Post-Conviction Proceedings
Collier timely filed a petition for post-conviction relief in the circuit court under
Rule 37 of the Arkansas Rules of Criminal Procedure (“Rule 37 petition”), arguing
that the State had suppressed exculpatory evidence in violation of Brady.3 During the
course of these proceedings, a hearing was held that adduced the following evidence.
Hinerman testified that Detective Eric Knowles told him that he would receive
$10,000 from Wilstead’s family for information leading to the conviction of the
person or persons who murdered their son. He also testified that the day after he gave
his first statement to Detective Knowles he received $300 from Sergeant Terry
Hastings. Hinerman confirmed that he did not receive any payment or any promise
of any payment from the prosecuting attorney’s office. Hinerman testified that the
state prosecutor on Collier’s case, Marianne Wright, explicitly told him that there was
no reward, after which he “gave up on the idea pretty much.” Finally, Hinerman
testified that the remainder of his testimony at Collier’s trial was truthful and accurate.
Wright testified that the first time she knew of any payment to Hinerman and
any allegation of a promised reward was when she read Hinerman’s affidavit during
Collier’s post-conviction proceedings. Detective Knowles testified that the only time
a reward was mentioned was when Hinerman asked him about the Arkansas Crime
Stoppers program, which pays money for truthful information that leads to solving a
crime. Detective Knowles put Hinerman in contact with Sergeant Hastings of the
Crime Stoppers program. Sergeant Hastings testified that he did not remember
Hinerman; he could neither confirm nor deny that he arranged for Hinerman to be paid
$300; he had no knowledge of any reward fund that was established for the homicide
of Wilstead; he did not make any representation to Hinerman or anyone else that he
3
See Brady v. Maryland, 373 U.S. 83 (1963). The Rule 37 petition also
presented an ineffective assistance of counsel claim that was subsequently abandoned.
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would receive a reward; and, if an officer or a detective were to promise to pay a
witness in a case, it would not be consistent with department policy.
Bell and Otis Griffin did not testify at the hearing but submitted affidavits. Bell
recanted his trial testimony and stated that although he heard shots fired on the night
of the murder, he did not know who fired them and he did not see Collier that night
until after the police had arrived. Otis Griffin also recanted his trial testimony that
Collier had confessed to his involvement in the crime. Both Bell and Otis Griffin
stated in their affidavits that they lied at trial because they believed they would go to
jail if they did not testify on behalf of the state.
While the Rule 37 petition was pending, Collier petitioned the Arkansas
Supreme Court to reinvest the circuit court with jurisdiction to consider a petition for
writ of error coram nobis (“coram nobis petition”),4 raising the same alleged Brady
violation that he raised in his Rule 37 petition. Collier attached to his coram nobis
petition the affidavits from Bell and Otis Griffin. He also submitted an affidavit from
Hinerman, which proffered essentially the same statements as those he made at the
Rule 37 hearing. The Arkansas Supreme Court denied the coram nobis petition,
holding that Collier failed to show how he was prejudiced from the prosecution’s
alleged suppression of evidence that Hinerman received $300 from Sergeant Hastings
and was promised an additional $10,000 by Detective Knowles in exchange for his
testimony at Collier’s trial (collectively, “the Hinerman impeachment evidence”). It
4
A writ of error coram nobis is available under Arkansas law to address claims
of insanity at the time of trial, a coerced guilty plea, material evidence withheld by the
prosecutor or a third-party confession to the crime during the time between conviction
and appeal. Pitts v. State, 986 S.W.2d 407, 409 (1999) (per curiam). The writ is
appropriate only when the claim was not addressed or could not have been addressed
at trial because it was somehow hidden or unknown and would have prevented the
rendition of the judgment had it been known to the trial court. Echols v. State, 201
S.W.3d 890, 894 (2005). “[It] is an extraordinarily rare remedy, more known for its
denial than its approval.” State v. Larimore, 17 S.W.3d 87, 92 (2000).
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is undisputed that the Arkansas Supreme Court made two erroneous factual statements
in its opinion denying Collier’s coram nobis petition: (1) it attributed portions of Dixie
Griffin’s testimony to Lisa Pike, who did not testify; and (2) it referred to “the
testimony of other witnesses who saw the shooting,” whereas only one witness, Dixie
Griffin, testified that she actually saw the men who shot at Wilstead’s car.
Shortly after the Arkansas Supreme Court denied coram nobis relief, the circuit
court denied Collier’s Rule 37 petition, holding that he failed to demonstrate prejudice
from the suppression of the Hinerman impeachment evidence. Collier filed a motion
to reconsider, arguing that the circuit court mischaracterized the evidence presented
at trial. In response to the motion to reconsider, the circuit court entered an amended
order once again denying the Rule 37 petition. The amended order also held that the
Arkansas Supreme Court’s coram nobis decision established the law of the case with
respect to the Brady claim, despite its two erroneous factual findings. Collier filed
notices of appeal from the original and amended orders.
On appeal from the denial of his Rule 37 petition, Collier limited his argument
to the issue of whether the circuit court erred in its amended order by applying the
law-of-the-case doctrine. Instead of reaching the merits of the appeal, the Arkansas
Supreme Court held that the circuit court had lacked jurisdiction over the motion for
reconsideration, rendering its amended order—the only one addressed on appeal by
Collier—void. Noting that it does not have jurisdiction to review void orders, the
Arkansas Supreme Court dismissed Collier’s appeal. See Collier v. State, No. CR
02-780, 2004 WL 584903, at *2 (Ark. Mar. 25, 2004) (per curiam).
Collier subsequently filed a petition for writ of habeas corpus in federal district
court under 28 U.S.C. § 2254. Collier’s petition requested that the district court
review the Arkansas Supreme Court’s decisions with respect to his coram nobis and
Rule 37 petitions. Respondent Larry Norris argued that Collier’s habeas petition was
time-barred under 28 U.S.C. § 2244(d). Alternatively, Norris argued that the
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Arkansas Supreme Court’s adjudication of Collier’s coram nobis petition did not
warrant relief under § 2254 and that Collier procedurally defaulted the claim arising
from the Arkansas Supreme Court’s denial of his Rule 37 petition.
The district court held that Collier’s habeas petition was not time-barred but
denied relief on the basis that the Arkansas Supreme Court’s coram nobis decision
was not contrary to, or an unreasonable application of, federal law and was not based
on an unreasonable determination of facts in light of the entire record. As to the Rule
37 petition, the district court held that Collier procedurally defaulted this claim and
did not demonstrate cause and prejudice to excuse the default. Collier appeals the
denial of the writ, and Norris cross-appeals the district court’s ruling that Collier’s
habeas petition is not time-barred.
II. DISCUSSION
A. Coram Nobis Petition
“Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA), when a state prisoner files a petition for writ of habeas corpus in federal
court we are directed to undertake only a limited and deferential review of underlying
state court decisions.” Morales v. Ault, 476 F.3d 545, 549 (8th Cir. 2007) (internal
quotation omitted). As such, an application for habeas corpus “shall not be granted
with respect to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.”
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28 U.S.C. § 2254(d). Under subsection (d)(1), “[a] decision is ‘contrary to’ federal
law . . . if a state court has arrived ‘at a conclusion opposite to that reached by [the
Supreme Court] on a question of law’ or if it ‘confront[ed] facts that are materially
indistinguishable from a relevant Supreme Court precedent’ but arrived at an opposite
result.” Davis v. Norris, 423 F.3d 868, 874 (8th Cir. 2005) (quoting Williams v.
Taylor, 529 U.S. 362, 405 (2000)). “A state court unreasonably applies clearly
established federal law when it ‘identifies the correct governing legal principle from
[the Supreme] Court’s decisions but unreasonably applies that principle to the facts
of the prisoner’s case.’” Id. (quoting Williams, 529 U.S. at 413). It is not enough for
us to conclude that, in our independent judgment, we would have applied federal law
differently from the state court; the state court’s application must have been
objectively unreasonable. Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir. 2005)
(citing Williams, 529 U.S. at 411).
Collier claims that the state prosecutor suppressed the Hinerman impeachment
evidence in violation of the due process clause of the Fourteenth Amendment. See
Brady, 373 U.S. at 86; see also United States v. Bagley, 473 U.S. 667, 676 (1985)
(recognizing that Brady evidence includes impeachment evidence). In order to
succeed on this claim, Collier must demonstrate that: (1) the prosecution suppressed
evidence; (2) the evidence was material and favorable to him; and (3) prejudice
ensued. United States v. Haskell, 468 F.3d 1064, 1075 (8th Cir. 2006). Because the
State did not challenge that Collier satisfied the first and second prongs in the state
court proceedings, the only issue in this habeas proceeding is the state court
adjudication of whether Collier suffered prejudice as a result of the State’s failure to
disclose the Hinerman impeachment evidence.
Prejudice under Brady ensues “if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quotation omitted). A
reasonable probability that the result of the proceeding would have been different
“does not require demonstration by a preponderance that disclosure of the suppressed
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evidence would have resulted ultimately in the defendant’s acquittal,” id. at 434, but
is satisfied when the suppression “undermines confidence in the outcome of the trial,”
id. (quotation omitted). With respect to prejudice, the Arkansas Supreme Court held:
Even if Duke Hinerman’s account of having been paid $300 and
promised a reward for his testimony is truthful, we cannot say that this
fact had it been known to the defense at trial would have produced a
different result in light of the testimony of other witnesses who saw the
shooting.
Collier v. State, No. CACR 00-348, 2001 WL 1104764, at *2 (Ark. Sept. 20, 2001)
(per curiam). In his brief, Collier argues that the Hinerman impeachment evidence,
if disclosed, would have changed the outcome of the proceedings because Hinerman
was the State’s “main” and “only credible” witness.
Collier does not specifically identify which subsection of 2254(d) he believes
entitles him to relief, but we conclude that neither entitle him to relief. We begin by
holding that the Arkansas Supreme Court’s decision was not “contrary to” clearly
established federal law under § 2254(d)(1). The Arkansas Supreme Court correctly
identified Brady as the clearly established law governing claims that the prosecution
failed to disclose exculpatory evidence. See Davis, 423 F.3d at 874. Collier does not
contend, and the record does not support an allegation, that the facts of his case are
“materially indistinguishable” from Brady or that the Arkansas Supreme Court
“arrived at a conclusion opposite to that reached by [the Supreme Court] on a question
of law.” Id. (internal quotation omitted). Therefore, habeas relief is not warranted
under the “contrary to” provision of § 2254(d)(1). See id at 874-75.
Before we address the “unreasonable application” provision of § 2254(d)(1),
we find it helpful to determine first whether the Arkansas Supreme Court decision was
based on an “unreasonable determination of facts” under subsection (d)(2). Collier
argues that the Arkansas Supreme Court made two unreasonable determinations of
fact. The first error was in attributing portions of Dixie Griffin’s testimony to Lisa
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Pike (Ms. Collier), who did not testify. The Arkansas Supreme Court stated: “Ms.
Collier testified that petitioner and a man named Keon arrived in a maroon
Oldsmobile. . . . Both Ms. Collier and Duke Hinerman had seen the shotgun before
in petitioner’s possession.” Collier, 2001 WL 1104764, at *1 (emphases added). The
second error was in referring to “the testimony of other witnesses who saw the
shooting,” id. at *2, when only one witness, Dixie Griffin, testified to seeing the
shooters. “[B]asic, primary, or historical facts” in the state court record are entitled
to a presumption of correctness under 28 U.S.C. § 2254(e)(1).5 See Lupien v. Clarke,
403 F.3d 615, 620 (8th Cir. 2005) (citing Thompson v. Keohane, 516 U.S. 99, 110-11
(1995)). Because Norris concedes that both of these factual statements were
erroneous, we will assume that Collier has overcome the presumption of their
correctness by clear and convincing evidence.6 See 28 U.S.C. § 2254(e)(1).
Notwithstanding this assumption, it does not necessarily follow that the state court
adjudication was based on an unreasonable determination of facts because subsection
(d)(2) instructs federal courts to evaluate the reasonableness of the state court decision
“in light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d)(2).
We believe that the evidence in the state court record is more than sufficient to
support the Arkansas Supreme Court’s determination that Collier failed to show Brady
prejudice because the suppression of the Hinerman impeachment evidence did not
create a “reasonable probability that . . . the result of the proceeding would have been
5
Subsection (e)(1) states: “[A] a determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence.” 21 U.S.C. §
2254(e)(1).
6
We note that the Arkansas Supreme Court’s finding that “other witnesses . . .
saw the shooting” may not be erroneous, since Baker, as a passenger in Wilstead’s car,
did witness the shooting but was unable to identify the shooters. However, in light of
Norris’s concession to the error and our ultimate holding, we decline to entertain the
effect of this technicality.
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different.” Kyles, 514 U.S. at 433 (quotation omitted). At trial, Dixie Griffin testified
that Lisa Pike summoned Collier to the house, where Collier arrived with Neeley in
a maroon Oldsmobile. She testified that Neeley had Collier’s duct-taped sawed-off
shotgun and that Collier had a handgun. According to Dixie Griffin, the two men
began shooting at Wilstead’s car as it drove by the house, ran after the car and
continued shooting at it until it crashed. Although Dixie Griffin was the only witness
who identified the shooters, her testimony was corroborated by other witnesses and
by the forensic evidence. First, Blake, a neighbor, and Baker, a passenger in
Wilstead’s car, both testified that they heard shots fired from a shotgun and a
handgun, corroborating Dixie Griffin’s testimony that the two different weapons were
used. Second, Blake testified further that the sounds got “louder and louder” as they
got “closer and closer” to his house, corroborating Dixie Griffin’s testimony that
Collier and Neeley ran down the street after the car while shooting at it. Third, the
forensic evidence corroborated Dixie Griffin’s testimony that Neeley fired the shotgun
from the street at Wilstead’s car. Barbara Polite, the state crime scene specialist,
testified that she recovered spent shotgun shells and waddings from the street and
spent waddings from the inside of Wilstead’s vehicle. Polite testified that the
waddings were all from Remington-Peters 12-gauge shotgun shells. Ronald
Andrejack, a tool marks examiner from the state crime laboratory, testified that the
spent shells were all fired from the same shotgun. The jury heard testimony that
Collier’s shotgun was indeed a 12-gauge. Doctor William Sturner testified that
Wilstead died from shotgun wounds to the head and neck. Finally, the jury heard
testimony from Otis Griffin that Collier confessed to the murder.7
7
Although Otis Griffin recanted this part of his testimony at the Rule 37
hearing, the Arkansas Supreme Court denied Collier coram nobis relief based on Otis
Griffin’s affidavit because of the general rule that “a writ of error coram nobis will not
lie for recanted testimony.” Collier, 2001 WL 1104764, at *2 (citing Taylor v. State,
799 S.W.2d 519 (Ark. 1990); Smith v. State, 140 S.W.2d 675 (Ark. 1940)). Federal
habeas relief on this basis is therefore barred by the independent and adequate state
grounds doctrine. See generally Coleman v. Thompson, 501 U.S. 722, 729-35 (1991)
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We believe that the evidence in the state court record supports the Arkansas
Supreme Court’s reasonable determination that Collier failed to establish that the
suppression of the Hinerman impeachment evidence “undermine[d] confidence in the
outcome of the trial.” Kyles, 514 U.S. at 434 (quotation omitted). Therefore, because
Collier has failed to demonstrate that the adjudication of his Brady claim “resulted in
a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceedings,” habeas relief is not warranted
under § 2254(d)(2).
Having determined that the state court adjudication was based on a reasonable
determination of the facts, we now return to the question of whether the Arkansas
Supreme Court unreasonably applied Brady to those facts under § 2254(d)(1). See
Williams, 529 U.S. at 413. The Arkansas Supreme Court correctly identified the issue
as arising under the prejudice prong of Brady and focused on whether Collier had
established “a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Collier, 2001 WL
1104764, at *2 (quotation omitted). It then concluded that had the Hinerman
impeachment evidence been presented at trial, “we cannot say that this fact . . . would
have produced a different result.” Id. It is not clear whether, in reaching this
conclusion, the Arkansas Supreme Court discredited Hinerman’s testimony entirely,
or only partially. We conclude that it was a reasonable application of Brady in either
event. First, the Supreme Court cases interpreting Brady prejudice have endorsed
both approaches. E.g., Strickler v. Green, 527 U.S. 263, 296 (1999) (“petitioner has
(explaining that the independent and adequate state grounds “doctrine applies to bar
federal habeas when a state court declined to address a prisoner’s federal claims
because the prisoner had failed to meet a state procedural requirement”). We see no
reason to ignore Otis Griffin’s original trial testimony at this stage of the proceedings,
but we conclude that its absence would not affect our ultimate conclusion that
confidence in the outcome of the trial has not been undermined. See Kyles, 514 U.S.
at 434 (quotation omitted).
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not convinced us that there is a reasonable probability that the jury would have
returned a different verdict if her testimony had been either severely impeached or
excluded entirely”) (emphases added); Kyles, 514 U.S. at 451 (“In assessing the
significance of the evidence withheld, one must of course bear in mind that not every
item of the State’s case would have been directly undercut if the Brady evidence had
been disclosed.”). Second, as shown by our earlier recitation of the evidence, ante at
12-13, even completely discrediting Hinerman’s testimony would not “put the whole
case in such a different light as to undermine confidence in the verdict.” Strickler, 527
U.S. at 290 (internal quotation omitted). Accordingly, we hold that it was objectively
reasonable for the Arkansas Supreme Court to conclude from its application of Brady
that disclosure of the Hinerman impeachment evidence would not have produced a
different result at trial. See Lyons, 403 F.3d at 592. Therefore, habeas relief is not
warranted under the “unreasonable application of[ ] clearly established Federal law”
provision of § 2254(d)(1).
In sum, even assuming that the Arkansas Supreme Court made two erroneous
factual statements under § 2254(e)(1), we conclude that its decision was based on a
reasonable determination of the facts under § 2254(d)(2) and was not contrary to, or
an unreasonable application of, clearly established federal law under § 2254(d)(1).
See Rice v. Collins, 546 U.S. 333, ---, 126 S. Ct. 969, 976 (2006) (commenting on the
interplay between sections 2254(d)(1) and (d)(2) and noting that “[t]he question
whether a state court errs in determining the facts is a different question from whether
it errs in applying the law”) Thus, we affirm the district court’s denial of habeas relief
for Collier’s claim regarding the coram nobis decision.
B. Rule 37 Petition
Collier’s Rule 37 petition raised the same alleged Brady violation. The circuit
court denied the petition, and Collier subsequently filed a motion for reconsideration.
The circuit court entered an amended order, again denying Collier’s Rule 37 petition.
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Though he filed notices of appeal from both orders, Collier only addressed the
amended order in his opening brief to the Arkansas Supreme Court. Under Arkansas
law, he thereby waived any argument regarding the initial order. See City of Dover
v. Barton, 29 S.W.3d 698, 703-04 (Ark. 2000). His appeal of the amended order was
dismissed by the Arkansas Supreme Court on procedural grounds:
[A]ppellant requested [in his motion for reconsideration] that the circuit
court reverse itself, an act prohibited by Rule 37.2(d). Thus, the circuit
court’s amended order was void because it lacked jurisdiction to rehear
appellant’s petition. Consequently, this Court lacks jurisdiction to
entertain this appeal from the amended order, and we dismiss the appeal.
Collier v. State, CR 02-780, 2004 WL 584903, at *2 (Ark. Mar. 25, 2004).8
“This Court will not review a question of federal law decided by a state court
if the decision of that court rests on a state law ground that is independent of the
federal question and adequate to support the judgment.” Coleman, 501 U.S. at 729.
“This rule applies whether the state law ground is substantive or procedural.” Id.
“The doctrine applies to bar federal habeas when a state court declined to address a
prisoner’s federal claims because the prisoner had failed to meet a state procedural
requirement.” Id. at 729-30. “[A] state prisoner who fails to satisfy state procedural
requirements forfeits his right to present his federal claim through a federal habeas
corpus petition, unless he can meet strict cause and prejudice or actual innocence
standards.” Clemons v. Luebbers, 381 F.3d 744, 750 (8th Cir. 2004). Because Collier
does not attempt to satisfy the cause and prejudice or actual innocence standards and
because of his reliance on Matthews v. State, 975 S.W.2d 836 (Ark. 1998) (per
curiam), we, like the district court, construe his argument as challenging whether the
state procedural rule on which his claim was disposed is an “adequate” state ground.
8
Rule 37.2(d) provides that “[t]he decision of the court in any proceeding under
this rule shall be final when the judgment is rendered. No petition for rehearing shall
be considered.” Ark. R. Crim. Pro. 37.2(d) (emphasis added).
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In Matthews, the petitioner appealed the denial of a claim of ineffective
assistance of counsel on which the circuit court had not specifically ruled in its order
denying Matthew’s claims for post-conviction relief. Id. at 836. Matthews failed to
request a ruling on his ineffective assistance of counsel claim from the circuit court.
See id. at 837. The Arkansas Supreme Court denied appellate review of the claim,
citing the general rule that when a circuit court denies post-conviction relief and does
not reach a specific issue, the burden is on the petitioner to obtain a ruling on that
issue in order to preserve it for appeal. Id. (citing Oliver v. State, 918 S.W.2d 690,
694 (Ark. 1996)). In a subsequent decision, the Arkansas Supreme Court rejected the
argument that seeking such a ruling is prohibited by Rule 37.2(d). Beshears v. State,
8 S.W.3d 32, 34 (Ark. 2000). Citing Matthews, the Arkansas Supreme Court held
“that a request that the trial court modify its order to include an omitted issue is not
a request for rehearing that is prohibited by Rule 37.2(d)” and denied Beshears
appellate review since he failed to obtain a ruling on the omitted issue. Id.
Under this paradigm, Collier ostensibly argues that Rule 37.2(d) was not
“adequate” to bar the appeal of his motion for reconsideration because the motion was
simply his attempt to comport with the Matthews mandate and preserve for appeal his
allegation that the circuit court, in denying his petition, mischaracterized the evidence.
See Coleman, 501 U.S. at 729-30. Collier’s Brady claim was the sole ground on
which he petitioned for Rule 37 relief and, unlike in Matthews and Beshears, the
circuit court here expressly ruled on it. The six-page order concluded that Collier had
“not met his burden of proving that a Brady violation occurred.” Collier’s Brady
claim, including the evidence on which it was based, was therefore preserved for
appeal. As such, Collier’s “motion to reconsider,” requesting that the circuit court
“grant reconsideration; set aside it’s [sic] most recent order [and] grant Rule 37 relief”
did not fall under the Matthews and Beshears exception to the Rule 37.2(d)
prohibition of petitions for rehearing. Rather, it was expressly prohibited by the
language of Rule 37.2(d) (“No petition for rehearing shall be considered.”). See
McClendon v. State, 735 S.W.2d 701, 702 (Ark. 1987) (“Rule 37 explicitly states
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there will be no rehearing.”). Furthermore, even if the Arkansas Supreme Court
erroneously applied Rule 37.2(d) to Collier’s petition, it would not make the rule
“inadequate.” See Clemons, 381 F.3d at 750 (“[F]ederal courts should not consider
whether the state court properly applied its default rule to the claim; federal courts do
not sit to correct a state court’s application of its ordinarily adequate procedural
rules.”).
Therefore, we conclude that the Arkansas Supreme Court disposed of Collier’s
Rule 37 petition based on an independent and adequate state procedural rule. See
Coleman, 501 U.S. at 729-30. Because Collier made no attempt to show cause and
prejudice or actual innocence, he has forfeited his right to raise his federal claim in his
habeas petition. See Clemons, 381 F.3d at 750.9 Having concluded that Collier’s
habeas petition was properly denied, we need not reach Norris’s argument on cross-
appeal that the petition was untimely.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of the writ of
habeas corpus.
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9
Collier also argues that he did not procedurally default his Rule 37 claim
because he “fairly presented” it to the Arkansas Supreme Court. This attempt to
convert his habeas petition into “an end run around the limits of [federal court]
jurisdiction and a means to undermine the State’s interest in enforcing its laws” has
been recognized and rejected by the Supreme Court. Coleman, 501 U.S. at 731-32
(“In the absence of the independent and adequate state ground doctrine in federal
habeas, habeas petitioners would be able to avoid the exhaustion requirement by
defaulting their federal claims in state court.”). Therefore, even if Collier fairly
presented his claim to the Arkansas Supreme Court, our review is precluded unless he
can demonstrate cause and prejudice or actual innocence to excuse the procedural
default. See Clemons, 381 F.3d at 751-52.
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