*1 948 from review. procedurally barred procedural default federal claimant’s America, Appellee, “[A] UNITED STATES ... if the habeas review

precludes federal rendering judgment last state court proce- judgment on the the case its rests BEEDE, Daryl Appellant. James Reed, 489 U.S. Harris v. dural default.” No. 91-3208. 1038, 1042-43, 255, 262, 103 109 S.Ct. Here, (1989). ap- the state 308 L.Ed.2d Appeals, the issues

peals court refused to consider Eighth Circuit. grounds two and Reynolds now raises pre- trial counsel failed to four because March Submitted review, declined to ad- them for serve Aug. ground five be- Decided dress the issue raised file the appellate counsel did not cause

challenged photograph. Reynolds, See clear at 795-97. These constitute

S.W.2d procedur-

expressions on a state of reliance Harris, 489 al U.S. bar. See 1043-44.

S.Ct. at argues as

Reynolds that ineffective appellate counsel

sistance of trial and resulted in actual

caused the defaults and Sykes, 433

prejudice. Wainwright v. See 72, 87, 53 L.Ed.2d 97 S.Ct. not, however, (1977). Reynolds did

present these ineffective-assistance claims Therefore, they may

to the state courts. Scrog cause.

not used to establish See be Lockhart,

gins v.

Cir.1991); Lockhart, 822 F.2d Leggins v. n. L.Ed.2d

485 U.S. Moreover,

(1988). Reynolds does not at

tempt rely on the “actual innocence”

exception to avoid the default. See Mur Carrier,

ray 106 S.Ct. (1986).

2639, 2650, 91 L.Ed.2d 397

Finally, court did err the district not Reynolds’s request an

by denying evi hearing necessary

dentiary hearing. No petition raised in the can

when the issues court resolved on the basis of the state

records. Amos (8th Cir.), 159, 102 L.Ed.2d 130

Here, Reynolds’s the records indicate or barred from

claims are either meritless

review. affirm.

Accordingly, we

HANSEN, Judge. Circuit Daryl (Beede) James appeals Beede from his convictions and sentences on four relating counts of offenses marijuana and a firearm. We affirm.

I. mid-July In Patrick Hourihan (Hourihan), Special Agent with the feder- Alcohol, Tobacco, al Bureau of and Fire- (BATF), arms conducted an into Beede’s criminal July activities. On 17, 1990, Hourihan and a confidential infor- During mant met with Beede. the conver- sation Hourihan asked Beede if Beede was purchasing interested in marijuana. Beede expressed interest but was concerned price quoted by about Hourihan. by Hourihan telephone contacted Beede day two occasions later to discuss quantity price, they and but reached no agreement. 18th, firm July On Hourihan spoke Beede several times tele- phone, eventually agreeing that Beede buy pounds marijuana would five upon price. arranged agreeing They meeting night. point for that At some requested Hourihan the assistance of the (Minnesota) Hennepin-Anoka Suburban Force, Drug which consists of various Task police departments. local Hourihan and Kaulfuss, City for Michael a detective Center, Brooklyn met with Beede, Jeffrey, Tammy Hagen, Cynthia police offi- Betty Foss. Several local Special Agent, BATF cers and another Roggenbauer, who is the federal Donald Force, provided agent the Task liaison with Following the assistance. surveillance Villa, Minn., Minneapolis, ar- Virginia G. Special arrested transaction Beede was (Scott Tilsen, brief), on the for gued F. Roggenbauer. A firearm was re- Agent appellant. during Beede the arrest. covered from Morgan, Atty., Richard G. Asst. U.S. into the state authorities’ placed Beede was Minn., Minneapolis, argued, appellee. following his arrest. custody immediately arrest- Hagen, and Foss were also Jeffrey, case was referred to HANSEN, Subsequently, ed. Judge, Before Circuit prosecutors by and state HEANEY, Judge, the federal Circuit both Senior ROSENBAUM,* arresting officers. Judge. District ta, Rosenbaum, designation. sitting by *The Honorable James M. Judge for the District of Minneso- States District a federal criminal com- II. On plaint complaint The federal was filed. argues, respect Beede first with charged carrying a firearm in Beede with V, government’s Count that the failure to offense, trafficking drug relation to a thirty days file an indictment within of his *3 924(c). A federal violation of 18 U.S.C. § rights initial arrest violated his under the lodged the state detainer was with authori- Speedy Trial Act. 20th, July on a criminal com- ties. Also Any charg- information or indictment Hennepin County in the plaint was filed ing an individual with the commission of complaint charged That District Court. thirty an offense shall filed within be conspiracy possess marijua- to Beede with days from the date on which such individ- na, A in violation of state law. ual was or served with a sum- arrested on was served Beede on arrest warrant charges. mons in connection with such 21, 1990, 23, July 1990. On the 3161(b). 18 U.S.C. § upon complaint was dismissed mo- thirty-day period Beede contends that the States, tion and the state of the United 18, 1990, begin July on the date he to include a charges were amended state by Special Agent Roggen- was arrested carrying during law of a firearm violation bauer, 23, 1990, July rather than on the drug offense. the commission of a date he was served with the federal arrest 3161(b)requires warrant. Section that the continued on at Beede’s state trial was begins thirty-day period arrest which by agreement least two occasions between “in charges be connection with” the on the state and Beede’s counsel which the indictment or information is on the that a federal indictment was basis arrest, Only filed. a federal not a state 1991, 9, forthcoming. January a feder- On arrest, 3161(b). triggers § against al indictment was filed Beede and Carlson, (8th Cir.1983). Cynthia Jeffrey charges and the state specifically The district court found that against Beede were dismissed.1 The feder- arrested “[d]efendant[ ] [was] [on] charged Beede one al indictment with count charges on and held in state conspiracy possess marijuana to with the custody.”3 finding clearly That is not er- distribute, in violation of 21 intent to U.S.C. roneous. 841(a)(1) (Count I); and 846 one count of §§ facility of a use communication facilitate 3161(b) prevent Section does not a offense, drug of 21 violation U.S.C. thirty days federal indictment more than 843(b)(Count II); carrying one count of § after an arrest state authorities on sim drug trafficking firearm in relation to a charges. ilar state Ray, 924(c)(1) offense, in violation of 18 U.S.C. § (Count V); aiding and one count of and Robertson, abetting possession marijuana with (D.C.Cir.1987). law that settled an “[I]t distribute, in violation of 21 the intent to charge trigger arrest on one (Count 841(a)(1) and 18 U.S.C. U.S.C. right speedy charge to a trial on another § § VII).2 on jury The convicted Beede all four filed after the arrest.” United States v. sentenced to ten counts. Beede was Savage, 863 F.2d II, VII, I, months on each Counts (1989). concurrently, and a consecutive “undisput

be served It is an sixty-month trigger V. ed rule that a arrest does not sentence Count Nothing disposition in the record before us indicates does not indicate the of the charges against Jeffrey against Jeffrey. whether the state Hagen Betty Tammy dismissed. Foss had report and recommendation of the Honor 3. See charges. previously pled guilty to state Noel, Magistrate Franklin L. able 1-2, charged conspiracy Judge Jeffrey for the District as was also (Count I) Alsop, charged adopted Donald D. with other related of- the Honorable III, IV, Judge Jeffrey Dis Chief United States District for the fenses in Counts and VI. jointly trict of Minnesota. Beede were tried. The record before us clock, Speedy if prosecutorial Trial Act’s even demonstrate vindictiveness in is for conduct that is the basis of a ways. arrest two subsequent indictment for a federal of- First, may a defendant prove Mills, fense.” through objective prose evidence that the (D.C.Cir.1992) (en banc). An cutor’s decision punish was intended to him arrest on state criminal is not legal or her for the exercise of right. merely turned into a federal arrest because Goodwin, See United States v. product joint the arrest is a of a state- 384 n. 2494 n. or because federal of- produced Beede has not e.g., the arrest. See participate in ficers alleged objective or any evidence of vindic Mills, (It F.2d at is a “well-estab- *4 tiveness. principle lished that a arrest does not start the clock no matter extensive the how Second, may a defendant in certain original involvement ar rely presumption circumstances on a of vin Charles, rest.”); v. United States Hayes, Bordenkircher v. dictiveness. In denied, 355, cert. 357, 663, 434 U.S. 98 S.Ct. 54 L.Ed.2d 604 1033, 750, U.S. 110 S.Ct. 107 L.Ed.2d 767 (1978), Supreme the Court held that due (1990); laquinta, process by prosecutor is not violated a 260, (4th Cir.1982); 264-69 carrying out a threat to reindict on a more Mejias, 435, (2d Cir.), 440-42 charge serious if the defendant does not 847, 154, 434 U.S. 98 S.Ct. plead guilty original charge, long to the as (1977). Further, courts have probable prosecute as there is cause to on thirty-day period held that the does not Goodwin, charge. the more serious In the begin to run when a defendant is arrested Supreme expanded upon Borden by agents, immediately but kircher and held presumption that no turned over to state authorities vindictiveness arises when a defendant re charged with state law violations. United plead fuses to to a misdemeanor and re Amuny, F.2d 1120-21 quests prosecutor jury trial and a new Ferrs, felony. Goodwin, reindicts on a (E.D.Pa.1980), without F.Supp. 187 aff'd 381-84, 102 S.Ct. at 2492-94. The Good at (3d Cir.1982). opinion, 676 F.2d 688 win court characterized Bordenkircher as similarly We hold that an arrest a making that “the mere fact that a clear immediately relinquish- federal officer who plead guilty defendant refuses to es control of the arrestee to state officials prove government forces the its case is trigger prosecution for state the presumption insufficient to warrant a 3161(b). thirty-day period of § changes charging in subsequent the deci formally not arrested on the Beede was Goodwin, unjustified.” sion are “in connection charges, the arrest 382-83, at at 102 S.Ct. 2493. charges for he was feder- with” the which governed We find that this case is convicted, ally subsequently indicted of Goodwin. logic 1990. The dismissal of until complaint was less An initial indictment —from which the thirty days from Beede’s federal ar- than prosecutor plea embarks on a course of speedy trial rest. find that Beede’s We negotiation necessarily define not —does 3161(b) not rights under violated. § legitimate the extent of the interest just prosecutor prosecution. For as a III. forgo legitimate charges already may brought in an effort to save the time and argument is that his Beede’s second trial, may expense prosecutor file charges after he prosecution on the federal expecta- if an initial additional plead guilty to the state refused to plead guilty prose- tion that a defendant would constitutes process due violates charges proves unfounded. may to lesser A defendant cutorial vindictiveness. Goodwin, prosecutor at 2492 and that the state was 457 U.S. at S.Ct. aware omitted). (footnote refusing potential In to create for a federal indictment. Fi- respect presumption with nally, previously an inflexible we have held that the fact decisions, pretrial charging Goodwin also subject that a defendant is to a harsher charging the initial deci- notes that when sentence in federal court than he would made, prosecutor’s assessment sion is “the prosecuted subject have been to if in state prosecution may proper extent of not of the implicate process court does not the due Goodwin, 457 U.S. at crystallized.” have Turpin, at clause. at 2493. permitted subsequent Courts have fed remain free before “A should prosecution eral after a conviction for the en- the broad discretion trial to exercise court, same conduct to him to determine extent trusted Simpkins, 953 F.2d 444-45 prosecution.” societal interest — Cir.), U.S. -, 112 S.Ct. Goodwin, at 457 U.S. at (1992); after an ac Additionally, initial decision “[a]n court, quittal for the same conduct in state not freeze future conduct.” Good- Staples, 747 F.2d States v. win, 457 102 S.Ct. at 2493. (8th Cir.1984); after a defendant proceed The initial decision to with the *5 successfully suppression obtains the of evi against charges state Beede “should not consequent dence in the state court and the freeze” the later decision dismissal of the state for lack of prose- prosecutor that Beede should be evidence, 1116, 1119; Amuny, 767 F.2d at Both the state and cuted in federal court. Renfro, v. 620 F.2d United States prosecutors must remain free (6th Cir.), 573-74 discretion prosecutorial exercise their with 902, (1980); 101 S.Ct. charging decision. “The fact respect to the prosecution after the state court is dis government prosecutes a that the federal trial, provide speedy missed for failure to in a federal court that could federal crime F.2d Nelligan, 573 prosecuted as a state crime in or has been 254-55 or after a successful itself violate due state court challenge jurisdiction to the of the state process.” Turpin, v. 920 United States Bartlett, court. United v. 856 F.2d States cert. de F.2d (8th Cir.1988). prosecu 1074-75 If — -, nied, 111 113 systems in state and federal tion both the L.Ed.2d 480 circumstances, permissible in those a de objective government asserts that The prosecution system of to the federal ferral indict- demonstrate that the federal events pro court defendant elects to after state prosecutorial vin- ment did not result from permissible. ceed to trial should also be Punelli, dictiveness. Cf. presumption of arises No vindictiveness (8th Cir.1990). The 1371 Ac- from the circumstances of this case. moving given reason dismissal Beede’s cordingly, we find no violation of original complaint was that process rights. due order of “[investigation continues.” See The BATF issued a re- IV. fur- port in of 1990 and conducted October argument, final based on Beede’s Both the ther thereafter. Williams, F.Supp. v. States United attorney and Beede’s 1990), (D.Utah he have is that agreed delay state trial be- defendant’s non obstante the United been sentenced they it to be a waste of cause believed Sentencing Guidelines because States if the federal go resources to to trial guidelines governing the lack of written Further, there government was to indict. for state or federal the referral of cases between the is no evidence of consultation officers. The prosecution by Task Force although prosecutors, state and federal has Appeals for the Tenth Circuit prosecu- Court there is evidence that the federal Williams, see the district court pending reversed tor was aware of the Williams, v. States United Cir.1992), other circuit courts

(10th and the considered this issue appeals which have reasoning of the district rejected

have v. States See United court Williams. (10th

Andersen, 595-97 Cir. Carter, F.2d

1991); v. — Cir.), (5th

U.S. -, Allen, F.2d

(1992); Cir.1992);

1160, 1165-66(6th States United Cir.1992); (3rd Parson, Goodapple, 958 F.2d Cir.1992). reject Beede’s We likewise point. this

argument on

V. Beede’s convic-

Accordingly, we affirm

tions.

HEANEY, Judge. Circuit Senior

I concur result. *6 America, STATES

UNITED

Plaintiff-Appellee, MILLER,

Ginger Defendant- A.

Appellant. America, STATES

UNITED Plaintiff-Appellee, HAMPTON, Defendant-

Toni A.

Appellant. America, STATES

UNITED Plaintiff-Appellee, NASH, Defendant-Appellant.

Jay L. 91-1250, 91-1252 and 91-1768.

Nos. Appeals,

Eighth Circuit. 10, 1992. Feb.

Submitted Aug.

Decided