### The HONORABLE RONALD E. LONGSTAFF, United States Distric t 1 

### Judge for the Southern District of Iowa, sitting by designation. The Honorab le John F. Forster, Jr., United States Magistrate 2 

### Judge for the Eastern District of Arkansas, presiding by agreement of the parties pursuant to 28 U.S.C. § 636(c) (1994). ___________ No. 96-1996

___________ Minnie Pryor, * * Appellant, * * v. * Appeal from the United States * District Court for the Larry Norris, Director, * Eastern District of Arkansas. Arkansas Department of * Correction, * * Appellee. *

__________ Submitted: November 20, 1996 Filed: January 9, 1997

__________ Before MAG ILL and MORRIS SHEPPARD ARNOLD, Circuit Judges, and LONGSTAFF, 1 District Judge.

___________ MAGILL, Circuit Judge.

Minnie Pryor brought this petition for a writ of habeas corpu s pursuant to 28 U.S.C. § 2254 (1994), arguing that her trial counsel wa s ineffect ive. The district court denied her petition, holding tha t 2 counsel's alleged ineffectiveness had not prejudiced Pryor. We affirm.

### During Ms. Brown's cross-examination, defense counsel note d 3 

### that police officers and the evidence submission form indicate d that six rocks of crack cocain e had been recovered. See Trial Tr. at 174 , reprinted in I Appellee's App. at 234. When asked abou t this apparent disparity, Ms. Brown testified that: Well, different people look at that and say there are a different numbers of rocks. Some people count eac h little piece of a crumb as a piece of the off-whit e substance but I just count the bigger ones as a piece.
Id. (testimony of Kim Brown).
-2- I.
On April 20, 1992, Minnie Pryor was convicted by a jury in Arkansas state court on two counts of delivering cocaine. Pryor was sentenced as
an hab itual offender to consecutive terms of imprisonment totalling 5 5 years. Evidence at trial indicated that on November 22 and 23, 1991, Pryo r had sold crack cocain e to Sammy White, who was working with the police as
a confidential informant. White wore a body microphone during the dru g transactions, and the tapes of the transactions with Pryor were played to the jury during her trial. Pryor's conviction was subsequently affirmed on direct appeal. See Pryor v. State , 861 S.W.2d 544 (Ark. 1993).

Pryor complains of four acts of alleged ineffective assistance o f counsel at trial and on direct appeal. First, Pryor alleges that her tria l
coun sel improperly failed to make a timely objection to the chain o f custodyof the crack cocaine allegedly purchased from Pryor. A quantity of crack cocaine allegedly sold by Pryor to White consisting o f "approximately three [rocks] and some crumbs," T rial Tr. at 173, reprinted inI Appellee's App. at 233 (testimony of Kim Brown, Arkansas State Crime Laborato rychemist), was introduced as evidence at trial. After th e 3 evidence was introduced and the state had rested, trial counsel objected because the police officer who actually delivere d the crack cocaine to the state crime laboratory had not testified regarding the chain of

### -3-

custody. The trial court overruled the objection. On appeal, the Arkansa s Supreme Court held that the issue had not been preserved for appeal becaus e the objection was made after the evidence had been admitted. See Pryor , 861 S.W.2d at 546.

Second, P ryor complains that her trial counsel rendered ineffective assistance by failing to request a mistrial immediately following allegedl y improper and prejudicial testimony from White. When asked by the state why Pryor would sell crack cocaine to him, White tes tified that his sister had purc hased crack cocaine from Pryor and that his sister had given he r children's clothes an d Christmas presents to Pryor in exchange for drugs. See id. at 546-47 (qu oting trial testimony). Defense counsel objected to this question and answer, and the trial court admonished the jury not to consider White's response. Id. After the state rested, defense counsel moved for a mistrial because of the allegedly prejudicial testimony. The motion was overruled, and on appeal the Arkansas Supreme Court held that the issue had been wa ived because the motion for mistrial was not made at the first opportunity. Id. at 547.

Thi rd, Pryor argues that her trial counsel rendered ineffectiv e assistance by opening the door to prejudicial remarks made by prosecuting counsel during closing arguments. Pryor faced a range of punishment for each coun t of delivering cocaine of 20 years to life imprisonment and a $50,000 fine. During defense counsel's closing arguments, counsel urged the jury t o give Pryor the minimum sentence of 20 years imprisonment , noting that Pryor was 42 years old, and that "[i ]n 20 years she will be 62 years old. Sixty years from now she'll be 102 years old." Id. (quoting defense counsel). In response, the prosecutor tried to rebut this argumen t by referring to parole, stating that "[i]f she gets 60 years and stay s clean, she'll be back in 20. Let's not play any games about it. You give her 20 year s, she'll be back in 5 to 10." Id. (quoting prosecutin g counsel).

### -4- Upon defe nse counsel's request, the trial court admonished the jury not to consider the prosecution's remarks but denied a mistrial. Pryor wa s ultimately assessed a $25,000 fine and sentencedto concurrent terms of 20 years and 35 years imprisonment. On appeal, the Arkansas Supreme Cour t held that, while the prosecutor's remarks were improper, defense counsel had "opened the door and invited a response to h is absolute statement that Pryor would be in prison for all of the time assessed." Id. at 547-48.

Fina lly, Pryor argues that her counsel rendered ineffectiv e assistance on appeal by not challenging the introduction of a transcript, rather than the original tapes, of the drug tran sactions between Pryor and White. At trial, the state introduced transcripts of the November 22 and 23 transactions between Pryor and White. Although the tapes themselve s
were not introduced as evidence, they were played for the jury. Defense counsel objected to the introduction of the transcripts, but was overruled

. Counsel elected not to pursue this issue on appeal.

Pryor raised these four issues in a petition for postconvictio n relief under Arkansas Rule of Criminal Procedure 37 in the Cross County, Arkansas Circuit Court. The court denied relief on May 17, 1994 , concluding that Pryor had suffered no prejudice from any of the allege d acts of ineffective assistance. In an unpublished opinion, the Arkansas Supreme Court affirmed. See Pryor v. State , No. CR 94-860 (Ark. May 1 , 1995) (per curiam). Pryor then brought this federal habeas petition, whic h was denied by the district court. This appeal followed.

II.
Pryor's claim of ineffective assista nce of counsel "presents a mixed question of law and f act; we review the district court's factual findings for clear error and its legal conclusions de

### -5-

novo ." Dodd v. Nix , 48 F.3d 1071, 1073 (8th Cir. 1995). We shall defer to a state court's finding of fact if fairly sup ported by the record. See 28 U.S.C. § 2254(d) (1994).

In Strick land v. Washington , 466 U.S. 668 (1984), the Supreme Court descri bed a two-part formula for determining if trial counsel rendere d constitutionally-ineffective assistance:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel " guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requi res showing that counsel's errors were so serious as to deprive the defendant of a fair tr ial, a trial who se result is unreliable. Unless a defendant makes bot h sho wings, it cannot be said that the conviction or th e [sentence] resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687. We need not reach the performance prong if we determine that the defendant suffered no prejudice from the all eged ineffectiveness. See id. at 697 ("If it is easier to dispose of an in effectiveness claim on the ground of lack of suf ficient prejudice, which we expect will often be so, that course should be followed.").

The Strickland Court explained that "actual ineffectiveness claim s alleging a deficiency in attorney performance are subject to a genera l requirement that the defendant affirmatively prove prejudice." Id. at 693

. It is not sufficient, however, "for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error tha t conceivably could have influenced the outcome undermines th e reliabilityof the result of the proceeding." Id. (citation omitted)

. Instead, "[t]he defendant must show that there i s a reasonable probability

### -6-

that, but for counsel's unprofessional errors, the result of the proceedin g would h ave been different. A reasonable probability is a probabilit y sufficient to undermine confidence in the outcome." Id. at 694.
We conclude, as the district court and the Arkansas state court s have held, that Pryor has failed to demonstrate any r easonable probability that the outcome of the trial or appeal would have been different but for any of her attorney's alleged errors. By failing to object immediately to the admission of the crac k cocaine, Pryor's trial counsel failed to force the prosecution to carry its burden of proving the chain-of-custody of th e
cr ack cocaine. There is no reason to believe, however, that th e prosecuti on would have failed to meet this burden if counsel had made a timely objection. Indeed, in considering this c laim, the Arkansas Supreme Court held that:

In denying [Pryor's petition for post-conviction relief], the tri al judge found that the objection would not have bee n sustained even if it had been made at the correct t ime. As the court stated in the appellant's case on direct appeal, "It is not necessary that the state eliminate every possibility o f tam pering; instead the trial court must be satisfied that i n all reasonable probabili ty, the evidence has not been tampered with." Pryor v. State , [861 S.W.2d at 546]. Since the trial judge would not have sustained the objection even had it been made at a timely manner, the appellant is unable to show that his cou nsel's failure to object at the time the cocaine wa s introduced had an adverse effect on the outcome of the trial.

Pryor , No. CR 94-860, slip op. at 3. We find this analysis compelling, an d we agree that Pryor has failed to show any prejudice on this point.

Pryor has also failed to carry her burden of showing that she wa s prejudiced by her counsel's failure to request i mmediately a mistrial when White made statements about his sister giving her

### Although at the time of Pryor's trial it was improper for a 4 

### prosecut or to comment on the effect of parole on a sentence, se e Pryor , 861 S.W.2d at 547 ("There is no question but that comments on parole by the State are to be avoided . . . ."), Arkansas la w now permits such comments. Se e Ark. Code Ann. § 16-97-103 (Michie Supp. 1995) ("Evidence relevant to sentencing by either the court or a jury may include . . . [t]he law applicable to parole , meritorious good time, or transfer . . . .").
-7- children's clothing and presents to Pryor in exchange for drugs. The tria l court admonished the jury not to consider White's remarks. This kind of corrective action is usually effective in curing any possible prejudice. See Goins v. State , 890 S.W.2d 602, 608 (Ark. 1995) ("[A] cautionar y instruct ion to the jury can make harmless any prejudice that migh t occur."). In light of this corrective action, and because mistrials are extr aordinaryremedies under Arkansas law, see id. ("A mistrial is a drastic remedy and pr oper only when the error is beyond repair and cannot be corrected by any curative relief."), we agree with the Arkansas Supreme Court that there was no basis for a mistrial. See Pryor , No. CR 94-860, slip op. at 4. Because there was no basis for a mistrial, Pryor was not prejudiced when her attorney failed to make a timely motion for one.
We also hold that Pryor has failed to show prejudice arising fr om her
counse l's argument for leniency, which opened the door to prosecutio n comments regarding parole. Initially, we note that, as a strategy, arguin g for leniency may well have worked: Pryor, who co uld have received two life sentences, received a minimum 20-year sentence on one count and a 35-year sentence on the secon d count. Furthermore, the district court admonished the jury n ot to consider the prosecutor's improper remarks, a corrective 4 action which is usually effective. See Goins , 890 S.W.2d at 608. Pryor has failed to demonstrate that she was prejudiced by her counsel's argumen t for leniency.

### Indeed, Pryor's counsel may well have served her better b y 5 

### limit ing the number of issues on appeal to those most likely t o succeed, rather than clouding meritorious points on appeal with a host of frivolous arguments. As we have noted:
Law is an art, not a science, and many questions tha t attorneys must decide are questions of judgment an d degree

. Among the most difficult are decisions as t o what issues to press on appeal . Lawyers have often been told that it is not good strategy to argue on appea l every conceivable point contained in a record. Simmons v. Lockhart , 915 F.2d 372, 375 (8th Cir. 1990).
-8- Finally, Pryor did not suffer any prejudice from her counsel' s failure to appeal the admission of the transcript of the tapes of Pryor's drug transactions rather than the tapes themselv es. Police transcripts of recorded statements, if accurate, are admissible in Arkansas courts. See Childress v. State , 907 S.W.2d 718, 721 (Ark. 19 95). The determination of accuracy is left to the discretion of the trial court and will not b e dist urbed on appeal by the Arkansas appellate courts absent abuse o f discretion. Id. at 721-22. In this case, the t rial court, as well as the jury, listened to the actual tapes, and a police officer testified to thei r accuracy. With the a ccuracy of the transcripts thus supported, we cannot say that the trial court so abused its discretion in admitting th e tra nscripts that there was any reasonable probability that an appeal o f this issu e would have been successful and that the result of the appea l would th ereby have been different. Because it would have made n o difference if Pryor's appellate counsel had incl uded this issue on appeal, Pryor has failed to demonstrate constitutionally ineffective assistance of appell ate counsel. See Strickland , 466 U.S. at 694 (constitutiona l standard for ineffective assistance of counsel). 5

There is nothing in the record to support Pryor's allegations tha t her counsel's supposed missteps prejudiced the outcome of her

### Pryor also argues that the cumulative effect of her tria l 6 

### counsel's alleged errors resulted in prejudice. We have held , however, that "cumulative error does not call for habeas rel ief, as each ha beas claim must stand or fall on its own." Girtman v

. Lockhart , 942 F.2d 468, 475 (8th Cir. 1991) (quotations an d citation omitted). Finally, Pryor argues that her trial counsel had a conflict of intere st, because he had previously represented White, a witnes s for the state. Pryor did not present this argument to the d istrict court and we will not consider it for the first time on appeal

. See Williams v. Lockhart , 849 F.2d 1134, 1139 (8th Cir. 1988).
-9- trial or direct appeal. Accordingly, we affirm the judgment of th e district court denying Pryor's petition for habeas relief. 6

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.