*1 appoint in to different its discretion been dis- had the evidence different counsel. Wayne, 903 F.2d v. closed. States United Cir.1990). (8th also contends that the dis Sullivan concluding in that trict court erred was in argues that there Sullivan Sonya procedures used with identification burglary support to evidence sufficient impermissibly sugges were not Jackson Supreme Court Arkansas conviction. merit to this There is no whatsoever tive. ground relief on this summarily denied picked picture out Sonya claim. Sullivan’s proper only a claim was such that basis six-photograph lineup in which he and of a magistrate judge on direct jump subjects were dressed in two other in sufficient evidence there was found which, in though they were fact is suits this support submission of to the record appear by jail, necessarily do not sued ruled on this issue could be charge. While clothing. nothing jail There was be default, think it evident that procedural others, picture over the point to Sullivan’s support evidence there was sufficient police did not the state court found the and argues burglary. Sullivan finding of picture. Sonya pick Sullivan’s prompt that he entered was no evidence that there any facts indi pointed has not Sullivan unlawfully. To the con house Jackson’s process any way in skewed cating the entry evidence of a forced trary, there was against him. house, a was broken since window into the raised numerous Finally, Sullivan glass murder and the night of the argued that he grounds from which to let someone reach screen removed were of counsel. received ineffective assistance the door. inside to unlock arguments assistance Sullivan’s ineffective argument is that he next Sullivan’s by magis- carefully considered were sentencing, process at since due was denied judge, Report whose and Recommen- trate escape improperly used a 1976 the State judge, adopted by the district dation was as a enhance his sentence conviction close examination we detect no and after offender, though the record does habitual ruling. in court’s felony that such was not demonstrate judgment affirm the of the district We argu not raise this conviction. Sullivan did court. magistrate judge or dis ment only raised was trict court. argument that the State jeopardy
a double to use a misdemeanor con permitted escape felony as a to count
viction for sentencing Sullivan as purpose HOUSTON, Appellant, Mikel W. jeopardy A double habitual offender. v. distinct from a due separate claim LOCKHART, Director of the A.L. process claim was process The due claim. Department of considered the court be not raised or Correction, Appellee. low, not consider it here. and we do No. 90-2592. the dis next Sullivan Appeals, Sullivan’s mo United States Court trict court erred Eighth Circuit. appointed counsel and tion to substitute repre motion to withdraw from counsel’s Sept. Submitted petition. senting Sullivan on his habeas March Decided the district court’s Since it rests within Granting Rehearing En Banc and Order appoint discretion whether Judgment Vacating Opinion and Jones, 905 proceeding, Ferguson habeas 29, 1992. April Cir.1990), (8th 213-14 we will case under the review the motions this no
same standard. has raised Sullivan
facts the district court abused that indicate *2 Howard, Bluff, Ark.,
William M. Pine argued appellant. for Reeves, Rock, Ark., Little ar- Oían W. gued for appellee. GIBSON, BOWMAN,
Before R. JOHN LOKEN, Judges. Circuit GIBSON, Judge. JOHN R. appeals Mikel denial W. Houston petition his for a writ habeas brought under 28 U.S.C. rape. serving a life Houston is sentence He claims counsel was ineffective his stipulation cer- failing to to admit secure polygraph test results into evidence tain pursue the issue trial and contends that his counsel He assist- the ineffective should have raised court1 appeal. The district ance issue on (1) pros- objection to the concluded that: stipulate to the test ecution’s refusal light have been futile results would poly- on the admission of Arkansas’ law results; asserted graph test and Houston’s it did was unreviewable because protections, infringe upon constitutional Woods, Henry sas. 1. The Honorable Judge for the Eastern District Arkan- District deny a meritorious issue omitted in his prejudicial as to due shown not so or- affirm the district court’s
process. We
petition.2
der
Houston then filed this habeas
*3
raping his
Houston of
juryA
convicted
Court, claiming,
the
District
year-old daughter LaDonna
devi-
twelve
issues,
among other
ineffectiveness of
activity. Because he
a ha-
was
ate sexual
counsel both at trial and on
offender,
him
jury
sentenced
bitual
agreed
district court
with the Arkansas
Supreme
The Arkansas
imprisonment.
life
Supreme
objection
an
Court that
to the
ap-
direct
the conviction on
Court affirmed
prosecution’s
stipulate
refusal to
ad-
to the
State,
492,
293 Ark.
739
peal. Houston v.
polygraph
of the
mission
test results would
(1987).
petition
Houston filed a
S.W.2d 154
existing
have been futile absent an
written
post-conviction relief under Arkansas
Lockhart,
stipulation. Houston v.
No.
Procedure 37 with the
Rule of Criminal
(E.D.Ark.
PB-C-88-294, slip op.
Aug.
at 6
Court, specifically as-
Supreme
Arkansas
28, 1990).
rejected
The district court also
serting ineffective assistance
counsel.
Houston’s claim that his counsel failed to
prosecution
claimed that the
and
Houston
adequate appellate
file an
brief.
Id.
agreed to admit his
preliminarily
defense
district court concluded that Houston’s
trial,
at
but that
polygraph test results
not
at
was
ineffective.
Id.
3-6.
tests,
prosecution
after he took
disposing
After
of other claims Houston
reneged
its
and defense
appeal,
has not raised on this
objection.3 Houston filed
counsel made no
petition.
court denied his
at
Id.
copy
Supreme
Arkansas
Court a
with the
report indicat-
of the
examiner’s
Houston
that his counsel’s
during the
ing that he
truthful
tests
was
actions constitute ineffective assistance un
daugh-
contact with his
the sexual
der the standards of Strickland v. Wash
ter.
668,
2052,
ington, 466
104
U.S.
S.Ct.
80
(1984).
Court held L.Ed.2d 674
He asserts that
only if
tests are admissible
very fact
that his trial counsel did not
parties agree in
to the admis
both
stipulate
to the admission of the
State,
87-85, slip
No.
sion.
v.
CR
Houston
test results
their
demonstrates
ineffective
(Ark.
op. at
1988
14162
Feb.
WL
ness,
severely
and
affected his chances of
1988).
no evidence that
There was
acquittal.
points
Houston
his coun
agree
had made such a written
sel’s failure to raise the issue on
Accordingly, the test results were
ment.
He further claims that his counsel failed to
admissible, making
objection by
an
raise the ineffective assistance claim on
defense futile. Id. The court stated Hous
appeal
they
represent
continued to
proven
ton had not
that his trial would
proceeding.
him at that
The ultimate con
differently
have turned out
had the test
clusion as to whether Houston was de
results
admitted. Id. at 2. The court
prived of
assistance of counsel is
effective
that there
a reason
could not conclude
question
that we
de
law
review novo.4
probability that the test results would
able
Scurr,
741
Kellogg
See
credibility as
have so bolstered Houston’s
(8th Cir.1984).
jury
acquit
him.
persuade
claiming
A defendant
violation
rejected arguments that
The court also
right
the sixth amendment
to effective as
failed to file an ade
Houston’s counsel
brief,
(1)
quate appellate
as Houston had not
sistance of counsel must show that:
process argu-
present
participated
not raised a due
in the verbal
2. Houston has
it,
appeal and we do not reach
but it is
agreement.
ment on
abundantly clear that the district court did not
handling
of this issue.
err
its
4.Houston
assumes that the district court held
procedurally
that he
defaulted on his claim be-
filed with the Arkan-
3. Houston's rule 37 motion
appeal
cause his counsel did not raise it on
only
sas court asserts
attorney
between his
contrary,
state court. To the
the district court
respect to the
claim,
results,
of the
Houston v.
ruled on the merits
but his
filed with the
Lockhart,
judge
slip op.
district
adds
statement that the
at 3-6.
court
object
for counsel
to the court’s refusal
fell below an ob
representation
counsel's
reasonableness;
test
(2)
allow Houston’s
jective
standard
Raising
appeal
the issue on
into evidence.
probability exists that coun
a reasonable
equally unavailing.
would have been
Fur-
defendant.
prejudiced
sel’s
thermore,
Houston’s
Strickland,
687-95, 104
at
S.Ct.
counsel should have raised
ineffective
Lockhart,
Spillers v.
2064-69;
802 F.2d
merit,
appeal is
assistance claim on
without
(8th Cir.1986).
proper
place
as the
raise such
claim is
standard,
Strickland
the first
State,
Carrier v.
petition,
in a Rule
counsel acted
consider whether Houston’s
Ark.
This
*4
failing
stipula
secure a
unreasonably in
did,
and the Arkansas
Houston
into
polygraph
to admit his
test results
tion
adversely
decided the issue
to Hous-
Court
requires a
Arkansas law
written
evidence.
ton on the merits. We see no ineffective-
parties
polygraph
stipulation of both
raise
on
ness
this issue
direct
State,
tests are admissible. Foster
285
363, 369-70,
829,
687
832
Ark.
S.W.2d
judgment
affirm the district court’s
We
denied,
929,
(1985),
cert.
107 S.Ct.
denying the writ.
see
3213,
(1987);
700
Ark.
96 L.Ed.2d
(Michie 1987) (poly
Ann.
12-12-704
Code
LOKEN,
Judge, dissenting.
generally not
graph test
are
admis
results
alleges
Mikel Houston
that his trial attor
courts).
in Arkansas
sible
prosecutor,
trial
neys,
judge
the
a
obligation to make written
was under no
that,
agreed
pre
if
took
orally
Houston
a
alleged
any
oral
stipulation regardless of
test,
side could intro
trial
either
may have
Hous
agreement
it
made before
the
at trial. Houston took the
duce
results
agree
took the
tests. We
ton
test,
it,
passed
the
but
favorable
Supreme Court
the
with the Arkansas
were nonetheless inadmissible be
objection
that an
would have
district court
agreement
writing.
the
was not
cause
prosecu
in the
of the
been fruitless
face
State,
Ark.
See Foster v.
285
687
stipulation.
to make a
tion’s refusal
denied,
cert.
(1985),
U.S.
Having
that Houston’s coun-
determined
107 S.Ct.
L.Ed.2d
representation did not fall
sel’s
below
claims the failure of his counsel
Houston
reasonableness,
objective
of
we
standard
get
this deal in
constitutes ineffec
need not consider the second Strickland
majority
assistance of counsel.
tive
probability
of
a
issue
whether
reasonable
affirming
disagrees,
the denial of habeas
by the
prejudiced
exists that Houston was
hearing,
relief,
without
because
convinced, however,
alleged
error. We
obligation
no
prosecution was under
“[t]he
probability
there is
that
that
no reasonable
regardless
stipulation
make a written
have
of the results would
admission
respectful
alleged
agreement.”
I
any
oral
Houston’s trial.
affected the outcome of
ly dissent.
likeli-
say
cannot
there
a reasonable
We
evaluating claims of ineffective-
When
hood that the
test results would
Washington, ness under Strickland v.
credibility as
so bolstered Houston’s
have
2052,
fore circumstances, examination signed have cutor would credibility that bolstered the defendant’s then and the test results would have been might easily have been decisive in secur- at trial. admissible ing acquittal. place, In it is fair to assume that the first Indeed, no-prejudice conclusion in this prosecutor would have reduced his oral particularly case is ironic because the likeli- he agreement to because wanted to juries give weight hood that will too much from obtain admissible evidence why it evidence is one reason Second, rape in the defendant trial. even in normally is inadmissible Arkansas. See advantage if the saw no tactical Bullock, 262 Ark. State admissible, making the test I am majority’s willingness troubled reasons, I remand put refused to For the above would assume that would have hearing. evidentiary At writing simply oral be- this case for an good writing, example, and will adhere in 1. For the Seventh Circuit’s new Stan- er oral or in among agreements implied by dards for Professional Conduct include the circum- faith to all Lawyers’ Duties to Other Counsel: stances or local customs. express promises 6. We will adhere to all counsel, agreements other wheth- with the State assert- argument, counsel for oral deny the existence
ed trial counsel true, If alleged agreement. oral case. But if there would end this
of course if agreement, and Houston’s an oral good for not attorneys had no reason
trial writing, the result that
reducing it to with polygraph results were rendered
favorable trial, agree I cannot then
inadmissible Hous- majority’s conclusion that relief under fails to warrant
ton still
Strickland.
ORDER
April rehearing suggestion for en banc panel opinion judg-
granted. The previously of this Court entered
ment This is set
vacated. case Paul, the Court en banc St.
Minnesota, July Tuesday, *6 to, required file
parties may, but are If such briefs
supplemental briefs.
filed, simultaneously, and they are to be filed with the Clerk of this Court
must be July 1, Wednesday,
on or before DAVIS, Appellant,
Ollie J. NEBRASKA; Gunther, Omaha, Neb., Frank argued, STATE OF McNary, Bernard Nebraska; appellant. for for Warden the State Shortridge, Karen Warden for Lincoln, Whitaker, Neb., argued, Alfonza Center, Appellees. Correctional Omaha appellees. for
No. 91-1129. FAGG, Judge, Before Circuit TIMBERS,* Judge, Circuit Senior Appeals, States Court United MAGILL, Judge. Circuit Eighth Circuit. MAGILL, Judge. Circuit 12, 1991.
Submitted Nov. appeals the order of J. Davis Ollie Decided March a writ court district to 28 U.S.C. pursuant of habeas 2254(a). find Davis Because the state court’s not have foreseen could * TIMBERS, Circuit, designation. sitting by ond WILLIAM H. THE HONORABLE Judge for the Sec- Senior