The HONORABLE RONALD E. LONGSTAFF, United States District

1

Judge for the Southern District of Iowa, sitting by designation.

 The Honorable 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 MAGILL and MORRIS SHEPPARD ARNOLD, Circuit Judges, and LONGSTAFF,1

District Judge.

___________

MAGILL, Circuit Judge.

Minnie Pryor brought this petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 (1994), arguing that her trial counsel was

ineffective. The district court denied her petition, holding that

2

counsel's alleged ineffectiveness had not prejudiced Pryor. We affirm.
 During Ms. Brown's cross-examination, defense counsel noted

3

that police officers and the evidence submission form indicated

that six rocks of crack cocaine had been recovered. See Trial Tr.

at 174, reprinted in I Appellee's App. at 234. When asked about

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 each

little piece of a crumb as a piece of the off-white

substance but I just count the bigger ones as a piece.

Id. (testimony of Kim Brown).

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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 habitual offender to consecutive terms of imprisonment totalling 55

years. Evidence at trial indicated that on November 22 and 23, 1991, Pryor

had sold crack cocaine to Sammy White, who was working with the police as

a confidential informant. White wore a body microphone during the drug

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 of

counsel at trial and on direct appeal. First, Pryor alleges that her trial

counsel improperly failed to make a timely objection to the chain of

custody of the crack cocaine allegedly purchased from Pryor. A quantity

of crack cocaine allegedly sold by Pryor to White consisting of

"approximately three [rocks] and some crumbs," Trial Tr. at 173, reprinted

in I Appellee's App. at 233 (testimony of Kim Brown, Arkansas State Crime

Laboratory chemist), was introduced as evidence at trial. After the

3

evidence was introduced and the state had rested, trial counsel objected

because the police officer who actually delivered the crack cocaine to the

state crime laboratory had not testified regarding the chain of
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custody. The trial court overruled the objection. On appeal, the Arkansas

Supreme Court held that the issue had not been preserved for appeal because

the objection was made after the evidence had been admitted. See Pryor,

861 S.W.2d at 546. 

Second, Pryor complains that her trial counsel rendered ineffective

assistance by failing to request a mistrial immediately following allegedly

improper and prejudicial testimony from White. When asked by the state why

Pryor would sell crack cocaine to him, White testified that his sister had

purchased crack cocaine from Pryor and that his sister had given her

children's clothes and Christmas presents to Pryor in exchange for drugs.

See id. at 546-47 (quoting 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 waived because the motion for mistrial was not made at

the first opportunity. Id. at 547.

Third, Pryor argues that her trial counsel rendered ineffective

assistance by opening the door to prejudicial remarks made by prosecuting

counsel during closing arguments. Pryor faced a range of punishment for

each count of delivering cocaine of 20 years to life imprisonment and a

$50,000 fine. During defense counsel's closing arguments, counsel urged

the jury to 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 argument

by referring to parole, stating that "[i]f she gets 60 years and stays

clean, she'll be back in 20. Let's not play any games about it. You give

her 20 years, she'll be back in 5 to 10." Id. (quoting prosecuting

counsel).
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Upon defense counsel's request, the trial court admonished the jury

not to consider the prosecution's remarks but denied a mistrial. Pryor was

ultimately assessed a $25,000 fine and sentenced to concurrent terms of 20

years and 35 years imprisonment. On appeal, the Arkansas Supreme Court

held that, while the prosecutor's remarks were improper, defense counsel

had "opened the door and invited a response to his absolute statement that

Pryor would be in prison for all of the time assessed." Id. at 547-48.

Finally, Pryor argues that her counsel rendered ineffective

assistance on appeal by not challenging the introduction of a transcript,

rather than the original tapes, of the drug transactions between Pryor and

White. At trial, the state introduced transcripts of the November 22 and

23 transactions between Pryor and White. Although the tapes themselves

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 postconviction

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 alleged

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, which

was denied by the district court. This appeal followed.

II.

Pryor's claim of ineffective assistance of counsel "presents a mixed

question of law and fact; we review the district court's factual findings

for clear error and its legal conclusions de
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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 supported by the record. See

28 U.S.C. § 2254(d) (1994).

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court

described a two-part formula for determining if trial counsel rendered

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 requires showing that counsel's errors were

so serious as to deprive the defendant of a fair trial, a trial

whose result is unreliable. Unless a defendant makes both

showings, it cannot be said that the conviction or the

[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 alleged ineffectiveness. See

id. at 697 ("If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, which we expect will often be so,

that course should be followed.").

The Strickland Court explained that "actual ineffectiveness claims

alleging a deficiency in attorney performance are subject to a general

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

that conceivably could have influenced the outcome undermines the

reliability of the result of the proceeding." Id. (citation omitted).

Instead, "[t]he defendant must show that there is a reasonable probability
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that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Id. at 694.

We conclude, as the district court and the Arkansas state courts have

held, that Pryor has failed to demonstrate any reasonable 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 crack cocaine, Pryor's trial counsel failed to force the

prosecution to carry its burden of proving the chain-of-custody of the

crack cocaine. There is no reason to believe, however, that the

prosecution would have failed to meet this burden if counsel had made a

timely objection. Indeed, in considering this claim, the Arkansas Supreme

Court held that:

In denying [Pryor's petition for post-conviction relief], the

trial judge found that the objection would not have been

sustained even if it had been made at the correct time. As the

court stated in the appellant's case on direct appeal, "It is

not necessary that the state eliminate every possibility of

tampering; instead the trial court must be satisfied that in

all reasonable probability, 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 counsel's failure to object at the time the cocaine was

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, and

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 was

prejudiced by her counsel's failure to request immediately 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

prosecutor to comment on the effect of parole on a sentence, see

Pryor, 861 S.W.2d at 547 ("There is no question but that comments

on parole by the State are to be avoided . . . ."), Arkansas law

now permits such comments. See 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 . . . .").

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children's clothing and presents to Pryor in exchange for drugs. The trial

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] cautionary

instruction to the jury can make harmless any prejudice that might

occur."). In light of this corrective action, and because mistrials are

extraordinary remedies under Arkansas law, see id. ("A mistrial is a

drastic remedy and proper 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 from her

counsel's argument for leniency, which opened the door to prosecution

comments regarding parole. Initially, we note that, as a strategy, arguing

for leniency may well have worked: Pryor, who could have received two life

sentences, received a minimum 20-year sentence on one count and a 35-year

sentence on the second count. Furthermore, the district court admonished

the jury not 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 argument

for leniency. 
 Indeed, Pryor's counsel may well have served her better by

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limiting the number of issues on appeal to those most likely to

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 that

attorneys must decide are questions of judgment and

degree. Among the most difficult are decisions as to

what issues to press on appeal. Lawyers have often been

told that it is not good strategy to argue on appeal

every conceivable point contained in a record.

Simmons v. Lockhart, 915 F.2d 372, 375 (8th Cir. 1990).

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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 themselves. Police transcripts of

recorded statements, if accurate, are admissible in Arkansas courts. See

Childress v. State, 907 S.W.2d 718, 721 (Ark. 1995). The determination of

accuracy is left to the discretion of the trial court and will not be

disturbed on appeal by the Arkansas appellate courts absent abuse of

discretion. Id. at 721-22. In this case, the trial court, as well as the

jury, listened to the actual tapes, and a police officer testified to their

accuracy. With the accuracy of the transcripts thus supported, we cannot

say that the trial court so abused its discretion in admitting the

transcripts that there was any reasonable probability that an appeal of

this issue would have been successful and that the result of the appeal

would thereby have been different. Because it would have made no

difference if Pryor's appellate counsel had included this issue on appeal,

Pryor has failed to demonstrate constitutionally ineffective assistance of

appellate counsel. See Strickland, 466 U.S. at 694 (constitutional

standard for ineffective assistance of counsel).5

There is nothing in the record to support Pryor's allegations that

her counsel's supposed missteps prejudiced the outcome of her
 Pryor also argues that the cumulative effect of her trial

6

counsel's alleged errors resulted in prejudice. We have held,

however, that "cumulative error does not call for habeas relief, as

each habeas claim must stand or fall on its own." Girtman v.

Lockhart, 942 F.2d 468, 475 (8th Cir. 1991) (quotations and

citation omitted).

Finally, Pryor argues that her trial counsel had a conflict of

interest, because he had previously represented White, a witness

for the state. Pryor did not present this argument to the district

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).

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trial or direct appeal. Accordingly, we affirm the judgment of the

district court denying Pryor's petition for habeas relief.6

A true copy.

Attest:

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