United States Court of Appeals

For the Eighth Circuit

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No. 11-1049

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Ralph Armstrong

lllllllllllllllllllllPetitioner - Appellant

v.

Ray Hobbs, Director, Arkansas Department of Correction

lllllllllllllllllllllRespondent - Appellee

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 Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: January 23, 2012

 Filed: November 6, 2012 (Corrected: 11/08/2012)

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Before MELLOY, SMITH, and BENTON, Circuit Judges.

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MELLOY, Circuit Judge

Ralph Armstrong was convicted in Arkansas state court of two counts of

capital murder and sentenced to life imprisonment without the possibility of parole

for killing his estranged wife and their unborn child. At trial, the court excluded

under a state rule exculpatory evidence pointing to the guilt of two other women. 

That rule admits such evidence only where there is a direct link between the crime

and the third partiesimplicated. Armstrong now seeks federal habeasrelief under the
Antiterrorism and Effective Death Penalty Act (AEDPA), arguing that this

evidentiary rule is contrary to, or an unreasonable application of, clearly established

federal law. The district court denied Armstrong's petition, but granted him a

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certificate of appealability (COA) on the issue of whether he was unconstitutionally

deprived of a meaningful opportunity to present a complete defense. We now affirm.

I.

On February 14, 2004, police in Pulaski County, Arkansas found the body of

Ralph Armstrong's estranged wife, Dashunda Armstrong, burning in an abandoned

van on rural McDonald Road. It was later determined that at the time she was killed,

Dashunda was pregnant and that Armstrong was the child's father. On the night of

her death, Dashunda was at a hair appointment with her sister until about 1:00 am,

after which she planned to meet Armstrong. Armstrong told the police that Dashunda

never arrived at his house as planned. Upon investigation, the police discovered that

on the night Dashunda was killed, Armstrong made several cell phone calls to a

former girlfriend, Kim Waller, that were routed through a cellular tower near where

Dashunda's body was found.

When Waller spoke to police, she told them she spoke to and saw Armstrong

the night of Dashunda's death. Waller later testified that she picked up Armstrong

from where the van was still burning and that Armstrong told her he set it on fire. 

Upon searching Armstrong's home, police found information on a computer related

to changing one's identity. They also found letters from various creditors that

revealed an ongoing and contentious divorce between Dashunda and Armstrong.

The Honorable Brian S. Miller, United States District Judge for the Eastern 1

District of Arkansas.

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At trial, Armstrong attempted to introduce evidence to support his argument

that Kim Waller and her two sisters, Karen and Yolanda, killed Dashunda. That

evidence included:

[A]n audio tape which contained statements by the Waller sisters

threatening to kill Dashunda Armstrong . . . , the names of all three

Waller sisters who had threatened his wife; records of the violent

encounters between the women including a court case; records from the

prosecutor's office that showed mutual harassment between Mrs.

Armstrong and Ms. Waller; and the presence of Kim Waller at the crime

scene the night of the murder.

Armstrong v. State, 233 S.W.3d 627, 636 (Ark. 2006). The trial court excluded much

of this evidence based on a rule from the Arkansas state case Zinger v. State, 852

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S.W.2d 320 (Ark. 1993), under which defendants may not introduce "'evidence

tending to show thatsomeone other than the defendant committed the crime charged'"

unless that evidence "'points directly to the guilt of the third party. Evidence which

does no more than create an inference or conjecture as to another's guilt is

inadmissible.'" Armstrong, 233 S.W.3d at 637 (quoting Zinger, 852 S.W.2d at 323). 

A jury subsequently convicted Armstrong of two counts of capital murder, and a

judge sentenced him to life in prison without the possibility of parole.

Armstrong then filed a petition in Arkansas trial court for postconviction relief. 

In his petition, he argued, inter alia, that the United States Supreme Court case,

The trial court admitted evidence relevant to the guilt of Armstrong's 2

girlfriend, Kim Waller, but excluded evidence concerning the guilt of her sisters,

Karen and Yolanda. To support the argument that Kim Waller killed Dashunda,

Armstrong presented evidence of mutual harassment between Kim Waller and

Dashunda, Kim Waller's presence at the murder scene, and Kim Waller's lies to the

police during their investigation. The trial court excluded only evidence specifically

relevant to the guilt of the other two sisters, Karen and Yolanda Waller, namely a tape

recording on which the two sisters allegedly made death threats to Dashunda.

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Holmes v. South Carolina, 547 U.S. 319 (2006), decided one day before the mandate

on the direct appeal in this case was issued, rendered the trial court's exclusion of

evidence implicating the Waller sisters pursuant to Zinger unconstitutional. The trial

court denied relief after a hearing, and the Arkansas Supreme Court affirmed.

Armstrong then petitioned for federal relief pursuant to 28 U.S.C. § 2254 in the

Eastern District of Arkansas, presenting three federal constitutional issues. The

magistrate recommended that Armstrong's petition be dismissed, and the district court

adopted the recommendation. Armstrong then filed a notice of appeal and an

application for a COA. The district court granted the COA and certified to this Court

one issue: whether the application of Zinger to exclude exculpatory evidence

"unconstitutionally deprived [Armstrong] of a meaningful opportunity to present a

complete defense as guaranteed by the Sixth and Fourteenth Amendments."

Armstrong v. Hobbs, No. 09-00100 BSM (E.D. Ark. Dec. 30, 2010) (order issuing

certificate of appealability).

II. 

A.

Under AEDPA, an application for a writ of habeas corpus may not be granted

unless the state court's decision was "contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States." 28 U.S.C. § 2254(d)(1). In Williams v. Taylor, 529 U.S. 362

(2000), the Supreme Court held that "contrary to" and "unreasonable application of"

have distinct meanings. A decision is "contrary to" clearly established federal law if

it "arrives at a conclusion opposite to that reached by [the Supreme Court] on a

question of law," or if it "confronts facts that are materially indistinguishable from a

relevant Supreme Court precedent and arrives at a result opposite to [that of the

Supreme Court]." Id. at 405. A decision is "an unreasonable application of" clearly

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established federal law if is clearly erroneous, that is, if no "'fairminded jurists could

disagree' on the correctness of the state court's decision." Harrington v. Richter, 131

S. Ct. 770, 786 (2011) (quoting Yarbrough v. Alvarado, 541 U.S. 652, 664 (2004)).

The Supreme Court has noted that if the AEDPA standard is "difficult to meet,

that is because it was meant to be." Harrington, 131 S. Ct. at 786. Under AEDPA,

the writ of habeas corpus is truly meant to be an extraordinary writ: "Section 2254(d)

reflects the view that habeas corpus is a 'guard against extreme malfunctions in the

state criminal justice systems,' not a substitute for ordinary error correction through

appeal." Id. (citing Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J.,

concurring in judgment)).

B. 

In this case, Armstrong argues that Holmes v. South Carolina, 547 U.S. 319

(2006), rendered the Arkansas court's use of the evidentiary rule from Zinger v. State,

852 S.W.2d 320 (Ark. 1993), contrary to, or an unreasonable application of, clearly

established federal law.

In criminal cases, Arkansas courts exclude evidence "'tending to show that

someone other than the defendant committed the crime charged,'" unless that

evidence "'points directly to the guilt of the third party. Evidence which does no

more than create an inference or conjecture as to another's guilt is inadmissible.'" 

Zinger, 852 S.W.2d at 323 (quoting State v. Wilson, 367 S.E.2d 589, 600 (N.C.

1988). In Zinger, two criminal defendants were on trial for beating and stabbing a

victim to death. The defendants attempted to introduce evidence of another murder

in Louisiana, where the victim had been beaten and stabbed several times and left in

a position similar to the victim in the Arkansas case. Id. These were the only links

between the two murders. The Arkansas Supreme Court found that the trial court did

not abuse its discretion in excluding evidence of the other murder. "'Evidence of a

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mere motive or opportunity to commit the crime in another person, without more, will

not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct

or circumstantial evidence linking the third person to the actual perpetration of the

crime.'" Id. (quoting People v. Kaurish, 802 P.2d 278, 295–96) (Cal. 1990) (internal

marks omitted).

In contrast, the United States Supreme Court in Holmesfound unconstitutional

a South Carolina rule that excluded evidence implicating third parties. TheCourt held

that the rule impermissibly based exclusion not on the strength of the evidence at

issue, but instead on the strength of the prosecution's case as a whole. Rather than

evaluating the strength of the link between the exculpatory evidence and the case at

hand, the South Carolina rule excluded exculpatory evidence because "'[i]n view of

the strong evidence of appellant's guilt—especially the forensic evidence— . . . the

proffered evidence . . . did not raise a 'reasonable inference' as to the appellant's own

innocence.'" Id. at 328–29 (quoting State v. Gay, 541 S.E.2d 541, 545 (S.C. 2001)). 

The rule contested in Holmes thus did not rationally serve the legitimate end of

focusing the trial on "central issues by excluding evidence that has only a very weak

logical connection to the central issues." Holmes, 547 U.S. at 330. Rather, it

required the trial court to evaluate the prosecution's case itself, and if the evidence

was strong enough, exclude even highly probative evidence that did not pose an

undue risk of harassment, prejudice or confusion of the issues. Id.

The Supreme Court in Holmes contrasted the contested South Carolina rule

with another South Carolina rule, which excluded

evidence which can have no other effect than to cast a bare suspicion on

another, or to raise a conjectural inference as to the commission of the

crime by another . . . . [B]efore such testimony can be received, there

must be such proof of connection with it, such a train of facts or

circumstances, as tends clearly to point out such other person as the

guilty party.

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Holmes, 547 U.S. at 328 (quoting State v. Gregory, 16 S.E.2d 532, 534–35 (S.C.

1941)). The Court noted that "[s]uch rules are widely accepted," Holmes, 547 U.S.

at 328, and allow trial judges to exclude evidence whose probative value is

outweighed by "certain other factors such as unfair prejudice, confusion ofthe issues,

or potential to mislead the jury." Id. at 326. This reasoning almost certainly affirms

the constitutionality of Arkansas's Zinger rule, which is substantially similar to the

widely accepted South Carolina rule. At the very least, Holmes indicates the rule in

Zinger is not contrary to clearly established federal law.3

In this case, the trial court excluded evidence pointing to the Waller sisters'

guilt on the basis of the Zinger rule, concluding that "the evidence pointed to by

Armstrong does no more than create a suspicion or conjecture that the Waller sisters

might have played a role in Dashunda Armstrong's death." Armstrong, 233 S.W.3d

at 637. The Arkansas court thus excluded the evidence based on the strength of the

link between that evidence and the crime. This is exactly the type of analysis the

Supreme Court validated in Holmes, and thus the decision in this case is not contrary

to, or an unreasonable application of, clearly established federal law.

C.

Armstrong further argues that Arkansas courts have transformed the Zinger

rule into a per se rule against evidence showing another committed the crime. In

support of this argument, Armstrong notes that "in each case where the issue of third

In a footnote to the discussion on these acceptable rules, the Supreme Court

3

cites casesfrom variousjurisdictions with similar rules, including the Arkansas case,

Shields v. State, 166 S.W.3d 28, 32 (Ark. 2004), which itself cites Zinger as the

source for this rule in Arkansas. See Holmes, 547 U.S. at 327 n.*.

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party guilt evidence arose, the court barred the introduction of that evidence because

it allegedly did not connect the third party directly to the crime." 

Armstrong's argument is unavailing. As we noted in Middleton v. Roper, 498

F.3d 812, 820 (8th Cir. 2007), the inquiry under AEDPA is whether a state court

decision is contrary to, or an unreasonable application of, clearly established federal

law, not whether the state court incorrectly applied state law. Thus even if, as

Armstrong asserts, the Arkansas Supreme Court misapplied the Zinger rule in his

case, he is not entitled to relief unless he can also demonstrate that such

misapplication is contrary to, or an unreasonable application of, clearly established

federal law. 

Furthermore, Armstrong's evidence does not necessarily support his

conclusion. The fact that no Arkansas appellate court has reversed on a Zinger issue

does not compel the conclusion that the Zinger rule has become a blanket

exclusionary rule. Many other explanations are plausible: that no criminal defendant

has yet presented sufficient proof under Zinger, that courts have admitted evidence

at the trial level in cases where there was no appeal, or that for any other procedural

or tactical reason an appeal of a trial-level Zinger decision did not reach an appellate

court on the merits of the Zinger issue.

Finally, even if Armstrong is correct that Zinger has been misapplied in other

cases, this fact still does not entitle him to relief. The critical inquiry under AEDPA

is not whether Arkansas courts have misapplied the Zinger rule in general in criminal

cases, but rather, whether their application of the rule in Armstrong's case was

contrary to, or an unreasonable application of, clearly established federal law. Here,

it was not.

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III.

Armstrong's other two arguments are not within the scope of the COA for this

case. These arguments are first, whether Arkansas courts abridged Armstrong's right

to have a jury decide all the facts necessary to convict, and second, whether Arkansas

courts unconstitutionally reduced the level of proof necessary for the prosecution to

obtain a conviction.

AEDPA requiresthe issuance of a COA before a court of appeals may entertain

an appeal from a habeas proceeding arising out of state court. 28 U.S.C. §

2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Miller-El makes

clear that the issuance of a COA is a jurisdictional prerequisite for an appeal from the

denial of a habeas petition. 537 U.S. at 336 ("[U]ntil a COA has been issued federal

courts of appeals lack jurisdiction to rule on the merits of appeals from habeas

petitions"). However, the Supreme Court has recently addressed the requirements of

28 U.S.C. § 2253(c)(3) and clarified that, while a COA is jurisdictional, the

requirement to specify the constitutional issues appealed does not contain the same

jurisdictional force. Gonzalez v. Thaler, 132 S. Ct. 641, 649 (2012). The Court in

Gonzalez also noted that courts of appeals routinely amend COA's or remand for

specification of issues. Id. at 651 n.7. Miller-El and Gonzalez leave undisturbed a

prior en banc ruling of our circuit in which we held that a panel has the "the right . . .

to exercise its discretion to consider sua sponte issues beyond those specified in a

certificate of appealability, whether the certificate wasissued by a district court or by

an administrative panel of this court." United States v. Morgan, 244 F.3d 674, 675

(8th Cir. 2001). See also Dodd v. United States, 614 F.3d 512, 518 (8th Cir. 2010)

(noting that a panel of the court of appeals may consider issues beyond the scope of

a certificate of appealability in "appropriate circumstances" but declining to do so

(quoting Sanders v. Norris, 529 F.3d 787, 789 (8th Cir. 2008))); Theus v. United

States, 611 F.3d 441, 449 n.4 (8th Cir. 2010) (expanding a certificate of

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appealability). We have indicated that this discretion should be exercised "carefully"

and that we will "consider issues outside the scope of the certificate . . . when it is in

the interest of justice." White v. Dingle, 616 F.3d 844, 847 (8th Cir. 2010). In this

case, we decline to expand the certificate of appealability or consider issues not

addressed in the certificate.

In this case, the district court certified the following issue for appeal: "Whether

the trial court's application of the rule in Zinger v. Arkansas, 852 S.W.2d 320 (Ark.

1993), unconstitutionally deprived petitioner of a meaningful opportunity to present

a complete defense as guaranteed by the Sixth and Fourteenth Amendments?" 

Armstrong v. Hobbs, No. 09-00100 BSM (E.D. Ark. Dec. 30, 2010) (order issuing

certificate of appealability). We addressed this question and answered it in the

negative above. 

IV.

In sum, we conclude that the Arkansas court's decision to exclude evidence that

the Waller sisters might have committed the murder of Dashunda Armstrong was not

contrary to, or an unreasonable application of, clearly established federal law. The

district court therefore did not err in denying habeas relief to Mr. Armstrong, and we

affirm its judgment.

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