1

The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas, adopting the report and recommendation of the Honorable Jerry

W. Cavaneau, United States Magistrate Judge for the Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-3432

___________

Albert Bell, *

*

Petitioner-Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Arkansas.

Larry Norris, Director, Arkansas *

Department of Correction, *

*

Respondent-Appellee. *

___________

Submitted: April 14, 2009

Filed: November 13, 2009

___________

Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.

___________

MELLOY, Circuit Judge.

In this habeas case involving two consecutive sentences of life imprisonment

for a minor, the question we face is whether the Arkansas Supreme Court identified

and reasonably applied the correct legal standard for assessing whether the minor

made a knowing and intelligent waiver of his Miranda rights. The district court1

determined that the Arkansas Supreme Court correctly identified a “totality-of-the-
2

Miranda v. Arizona, 384 U.S. 436 (1966).

-2-

circumstances test” as the governing legal standard and applied the test in a reasonable

manner. We affirm the judgment of the district court.

I.

Bell, an Arkansas inmate, was convicted on two counts of felony murder and

is serving two consecutive life sentences. He was sixteen at the time of his offense.

The murders took place in December 1992 when Bell and an accomplice, Terry Sims,

were robbing a grocery store. During the robbery, Bell served as a decoy to distract

a store employee whom Sims subsequently shot and killed. A second employee began

screaming. Bell then took money from a cash register, and Sims shot and killed the

second employee. There is no suggestion that Bell was armed during the robbery or

that Bell anticipated Sims would kill anyone. After the robbery and murders, Bell and

Sims left the store, discarded the murder weapon, and drove to a friend’s home.

Police spoke to Bell twice after the robbery, considering him a potential witness

during a first interview and considering him a suspect during a second interview.

During the first interview, on January 5, 1993, Bell’s mother was present at a sheriff’s

station where officers questioned Bell but did not give him Miranda2

 warnings. Bell

denied involvement in the robbery and murders, denied having been with Sims on the

night of the murders, and made no inculpatory statements. 

Before the second interview, officers questioned Bell’s brother, who

contradicted Bell’s claim that Bell had not been with Sims on the night of the murders.

In addition, officers learned that Sims’s neighbor was missing a .22 caliber revolver.

The officers believed that the murder weapon was a .22 caliber revolver.
-3-

At the second interview, on January 8, 1993, police isolated Bell in an

interrogation room, read him Miranda warnings, obtained verbal confirmations from

Bell that he understood each of his Miranda rights and warnings, and had Bell sign a

written form waiving his rights. Bell placed his initials after each warning on the

waiver form and placed his signature at the bottom of the form. On the evening of

January 8, Bell eventually confessed to his involvement in the robbery and drew the

officers a map to the location where they found the murder weapon. 

Arkansas charged Bell as an adult, and he moved to have the case transferred

to juvenile court. The state trial court denied his transfer motion. Following an

interlocutory appeal, the Arkansas Supreme Court affirmed the denial of the transfer

motion. See Bell v. Arkansas, 877 S.W.2d 579 (Ark. 1994) (“Bell I”).

Back at the trial court, Bell moved to suppress his confession and all statements

from both dates. He argued that he did not make his waiver knowingly, intelligently,

or voluntarily. He did not deny that officers read him his rights or deny that he

acknowledged and waived his rights verbally and in writing on January 8. Rather,

Bell argued that he understood the words involved in the recitation of his rights but

that he did not understand the full meaning of the warnings, the full extent of his

rights, or the full impact of his waiver. He also argued that he felt intimidated and

coerced by the police and simply followed their orders when signing the waiver. 

The trial court received evidence and heard testimony from several witnesses,

including Bell, Bell’s parents, and some but not all officers involved in the interviews.

In his testimony, Bell stated repeatedly that he had asked for counsel and asked to see

his parents several times on January 8 but that the officers denied his requests for

counsel. Officers testified that Bell made no such requests. Bell objected that the

state failed to make all of the interrogating officers available to testify. The trial court

overruled Bell’s objection, finding that the missing testimony likely would have been

cumulative. 
-4-

The trial court then denied Bell’s suppression motion without comment as to

Bell’s credibility or that of his parents and without specifically addressing the

voluntariness of his waiver or Bell’s allegations that he requested and was denied

counsel. A jury subsequently convicted Bell on two counts of felony murder. Bell

received two consecutive life sentences. 

On appeal following his conviction, the Arkansas Supreme Court held that, as

a matter of state law, the trial court erred by failing to require Arkansas to produce all

officers having material connections with the disputed interrogations and confession.

Bell v. Arkansas, 920 S.W.2d 821 (Ark. 1996) (“Bell II”). The Arkansas Supreme

Court reversed and remanded with instructions to reopen the suppression-hearing

record. The instructions directed the trial court to vacate the convictions and hold a

new trial only if, upon receiving further evidence on the suppression issue, the trial

court were to conclude that the statements required suppression.

On remand, the trial court reopened the record and heard additional testimony.

In addition, Bell filed an amended suppression motion renewing his previous

arguments. He also argued that the interrogation continued after he requested counsel

and that officers denied him access to his parents and to counsel. Finally, he argued

that officers failed to comply with a state criminal rule, Arkansas Criminal Procedure

Rule 2.3, which requires officers to tell persons who are not under arrest that they are

free to leave and need not accompany officers for questioning. In fact, in briefing at

a later stage of state proceedings, Bell described the focus of his arguments as follows:

At the first suppression hearing, trial counsel attempted to

suppress the custodial statements based upon coercion. On appeal to this

Court, it was noted that Appellant was asserting that he was forced to

make a statement and was intimidated by an officer when he requested

an attorney. At the second suppression hearing, trial counsel changed his

argument and alleged that the State violated the provisions of [Arkansas

Criminal Procedure] Rule 2.3 . . . when [Bell] was taken to the Sheriff’s
-5-

Office on January 5, 1993 and January 8, 1993 for questioning without

a verbal warning of his right to refuse. 

Appellant’s Brief to the Arkansas Supreme Court on appeal from the denial of state

post-conviction relief at 52.

After the second suppression hearing, the trial court suppressed Bell’s

statements as having been obtained in violation of Arkansas Rule 2.3. The trial court

also found that officers did not sufficiently inquire as to Bell’s ability and capacity to

make a knowing and intelligent waiver of his rights. The trial court noted that officers

read Bell the Miranda warnings and obtained the verbal and written waivers, but held

that the officers needed to take more actions to investigate and ensure Bell’s ability,

as a minor, to understand, fully appreciate, and validly waive his rights. Again, the

trial court made no findings or comments regarding the voluntariness of Bell’s waiver

or Bell’s claims that he repeatedly requested counsel and that officers denied him

access to counsel and continued interrogating him in the face of such requests.

The state appealed, and the Arkansas Supreme Court reversed, rejecting the trial

court’s state-law ruling as to Rule 2.3 and also rejecting the trial court’s position that

the officers had a heightened duty to ensure Bell’s capacity, as a minor, to knowingly

and intelligently waive his rights. Arkansas v. Bell, 948 S.W.2d 557 (Ark. 1997)

(“Bell III”). The court cited Arkansas authority as to the issue of a knowing and

intelligent waiver and reviewed the facts of Bell’s case that it deemed material to this

inquiry, stating:

It was undisputed that Bell had been read his Miranda rights prior

to giving the statement on this date. Bell also had some familiarity with

the criminal justice system due to the fact that he had previously been on

probation as a juvenile offender. In fact, he knew that as a juvenile, he

was entitled to have his parents or a lawyer present when being

questioned. He was age 16 and a high school sophomore who was

taking regular courses in math, science, and English, though he had also
-6-

been in remedial classes since the fourth grade. He further agreed that he

understood the words in his warnings but denied knowing their import.

. . .

Balanced against these factors is Bell’s self-serving statement that

he did not realize the consequences of a waiver. He also contends that he

requested counsel, which partially flies in the face of his contention that

he did not understand his Miranda rights. While it is true that we defer

to the trial court’s assessment of credibility, here the trial court provides

no insight as to why it found that Bell did not understand the

consequences of what he was doing. Indeed, the factors clearly

preponderate in favor of a knowing and intelligent waiver. The mere

statement of the accused that he did not comprehend a waiver’s

significance is not enough in light of his statement that he understood the

words and his acknowledgment to the officers that he understood his

rights. We hold that the trial court clearly erred in suppressing the

statement of Bell on this basis.

Id. at 562 (internal citations omitted).

The court expressly stated in a footnote that the trial court had not made a ruling

regarding Bell’s assertion that he requested counsel, stating that the “precise issue is

not before us in this appeal.” Id. at 562 n.1. 

Subsequently, Bell filed for state post-conviction relief in the trial court in

accordance with Arkansas Rule of Criminal Procedure 37. Bell raised several grounds

for relief, only one of which bears upon the issues currently before our court. Bell

argued that trial counsel was constitutionally ineffective in failing to obtain a ruling

from the trial court regarding the purported denial of counsel during Bell’s

interrogation, thus precluding Bell from raising claims involving the denial-of-counsel

issue in his final direct appeal. The trial court denied post-conviction relief without

addressing the ineffective-assistance claim related to trial counsel’s failure to secure

a ruling.
-7-

The Arkansas Supreme Court affirmed. Bell v. Arkansas, No. 02-1071, 2004

WL 1068724 (Ark. May 13, 2004) (unreported) (“Bell IV”). In doing so, the

Arkansas Supreme Court noted that the state trial court’s order denying postconviction relief did not address the allegations of ineffective assistance as to trial

counsel’s failure to secure a ruling on Bell’s claim that his waiver was involuntary and

that officers denied his requests for counsel. The court concluded, “It is appellant’s

obligation to obtain a ruling from the trial court in order to properly preserve an issue

for review. Because the trial court did not rule on this issue, appellant is procedurally

barred in raising the issue now.” Id. at *7 (internal citation omitted). Because the trial

court in post-conviction proceedings had not ruled on this particular ineffectiveassistance claim, then, the Arkansas Supreme Court deemed appellate review of the

claim to be barred.

Finally, Bell filed a pro se petition for habeas relief in the district court pursuant

to 28 U.S.C. § 2254. He raised several claims, including a claim with a caption

describing a challenge to the reasonableness of the Arkansas Supreme Court’s

application of the test for determining whether he made his waiver knowingly and

intelligently. Although the caption only referenced the knowing and intelligent

requirements for a valid waiver, his arguments and factual recitations associated with

the claim clearly referenced the issue of voluntariness. He asserted several facts

regarding the interrogations and the officers’ statements and actions while taking him

to the sheriff’s station, including the purported denial of counsel. These facts clearly

were material as to the issue of voluntariness and the potentially coercive nature of the

setting. It is less clear whether they were material as to the issue of Bell’s

comprehension of his rights or the impact of his waiver, i.e., whether he made his

waiver knowingly and intelligently. Further, Bell made reference to the coercive

nature of the officers’ actions and alleged that the officers’ actions had the effect of

overbearing his will. 
-8-

At all times before the district court, Bell proceeded on a pro se basis, and the

district court docket does not indicate that he requested counsel. In the report and

recommendation, adopted in full by the district court, the court liberally construed

Bell’s filings and stated, “Petitioner contends that his waiver of his Miranda rights was

neither ‘voluntary’ nor ‘knowing and intelligent.’” The court stated that these

concepts present two distinct and separate inquiries, and the court addressed them

separately. The state did not object to the court’s characterization of Bell’s claim as

encompassing the question of voluntariness. 

Regarding the question of whether Bell made his waiver knowingly and

intelligently, the court identified the governing legal standard as a totality-of-thecircumstances test, see Fare v. Michael C. 442 U.S. 707, 725–26 (1979), and noted

that the Supreme Court had expressly held that this test applies to juvenile and adult

offenders alike. Id. at 726. The court then identified the factors the state court had

relied upon, noted that the Arkansas cases the state court had cited were consistent

with Fare, and found that the state court did not apply the test in an unreasonable

manner.

Regarding the question of voluntariness, the court stated, “[The state] does not

argue that the voluntariness or counsel-request issues are procedurally defaulted and,

because of the unusual procedural history, this Court will address the merits of both

dimensions of the waiver inquiry and, to a limited extent, his allegations that he

requested counsel.” The court proceeded to address relevant facts surrounding the

interrogations including the length of the detention and questioning, allegations

regarding raised voices and forceful gestures, and Bell’s claims that he felt coerced

and intimidated. The court expressly discussed and dismissed several aspects of

Bell’s suppression-hearing testimony and that of his parents, noting that much of their

testimony did not relate to the period of time preceding and surrounding Bell’s waiver

of his rights. Rather, the testimony described things that Bell’s parents purportedly

heard and that Bell purportedly experienced later in the interrogation. 
-9-

The court then addressed Bell’s allegations that he requested counsel both

before arriving at the sheriff’s station on January 8 and then repeatedly at the sheriff’s

station on that date before and after signing the waiver. The court noted that the

testimony on this point was conflicting, as the officers testified Bell had not made any

such requests. The court noted the absence of any express discussion of this issue in

the state court opinions. The court did not believe, however, that the absence of

express discussion indicated that the state courts had failed to consider this issue. The

court stated:

Nevertheless, this Court believes that the circuit court’s denial of

Petitioner’s motion to suppress following the first [suppression] hearing

constitutes a rejection of his repeated testimony that he requested an

attorney. As such, the ruling is an implicit finding that Petitioner never

invoked his right to counsel on January 8. By denying Petitioner’s

motion to suppress, the circuit court necessarily decided to credit the

officers’ testimony that Petitioner made no request for counsel, and to

discredit Petitioner’s testimony to the contrary. He has not presented

clear and convincing evidence to rebut this implied factual

determination, and it is reasonable in light of all testimony presented. 

The district court denied a certificate of appealability, and Bell filed a pro se

appeal and motion for a certificate of appealability with our court. We granted his

motion “with respect to Claim 2, whether the state court erred in concluding he

knowingly and intelligently waived his rights before making statements to police

officers.”

II. Discussion

“We review the district court’s conclusions of law de novo and its factual

findings for clear error.” Hunt v. Houston, 563 F.3d 695, 702 (8th Cir. 2009). We

may grant a habeas corpus petition under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), only where “the relevant state court decision was
-10-

either ‘contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States,’ . . . or ‘based

on an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.’” Id. (quoting 28 U.S.C. § 2254(d)(1), (2)). 

The parties agree that the issue of whether Bell made his waiver knowingly and

intelligently is squarely before our court and that our review is subject to the strict

limits of AEDPA. Under AEDPA’s standards, we must deem factual findings by the

state court to be presumptively correct and subject to disturbance only if proven

incorrect by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (“[A]

determination of a factual issue made by a State court shall be presumed to be correct.

The applicant shall have the burden of rebutting the presumption of correctness by

clear and convincing evidence.”).

The state courts, citing Arkansas law, “identified and applied the clearly

established Federal law as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1); Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (“[A] state court

need not even be aware of our precedents, so long as neither the reasoning nor the

result of the state-court decision contradicts them.”) (internal quotation omitted). The

U.S. Supreme Court has concisely articulated the requirements for a valid Miranda

waiver in describing the totality-of-the-circumstances test:

Miranda holds that “[t]he defendant may waive effectuation” of the

rights conveyed in the warnings “provided the waiver is made

voluntarily, knowingly and intelligently.” 384 U.S. at 444, 475. The

inquiry has two distinct dimensions. Edwards v. Arizona, 451 U.S. 477,

482 (1981); Brewer v. Williams, 430 U.S. 387, 404 (1977). First, the

relinquishment of the right must have been voluntary in the sense that it

was the product of a free and deliberate choice rather than intimidation,

coercion, or deception. Second, the waiver must have been made with

a full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it. Only if the “totality of the
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circumstances surrounding the interrogation” reveal both an uncoerced

choice and the requisite level of comprehension may a court properly

conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Fare, 442 U.S. at 725).

In Fare, a case involving a 16-year-old offender, the Supreme Court held that

courts are to assess the validity of waivers of Miranda rights under a totality-of-thecircumstances test for juvenile and adult offenders alike. 442 U.S. at 725 (“This

totality-of-the-circumstances approach is adequate to determine whether there has

been a waiver even where interrogation of juveniles is involved. We discern no

persuasive reasons why any other approach is required where the question is whether

a juvenile has waived his rights, as opposed to whether an adult has done so.”). A

defendant’s juvenile status, indications of the juvenile’s mental abilities, and the

impact that the juvenile status likely had on the defendant’s ability to comprehend his

rights, then, are valid and important considerations under the broad, totality-of-thecircumstances test. Id. (“The totality approach permits—indeed, it mandates

—inquiry into all the circumstances surrounding the interrogation. This includes

evaluation of the juvenile’s age, experience, education, background, and intelligence,

and into whether he has the capacity to understand the warnings given him, the nature

of his Fifth Amendment rights, and the consequences of waiving those rights.”); see

also Rone v. Wyrick, 764 F.2d 532, 535 (8th Cir. 1985) (identifying as important

factors a juvenile’s intelligence, maturity, and prior dealings with law enforcement).

The question of whether a defendant understood the Miranda warnings is a

question of fact, but the ultimate question of whether a waiver was valid is a question

of law. See Thai v. Mapes, 412 F.3d 970, 976 (8th Cir. 2005) (holding the

determination that a defendant understood the Miranda warning “as it was explained

to him” was a factual determination that “depend[ed] heavily on the trial court’s

appraisal of witness credibility and demeanor”). This characterization is consistent
-12-

with the Supreme Court’s emphasis on the fact-specific nature of the inquiry. See

Fare, 442 U.S. at 724–27. 

Here, we find nothing in the state’s application of the test to be unreasonable,

28 U.S.C. § 2254(d)(1), and Bell has presented insufficient evidence to overcome the

presumption of correctness that we must attach to the state court’s factual

determination that he understood the Miranda warnings. Thai, 412 F.3d at 976; 28

U.S.C. § 2254(e)(1). The state court noted that Bell was a reasonably intelligent 16-

year-old high-school student who was in remedial or resource classes for some

subjects but who was in “regular” classes for math, science, and English. Bell had

prior exposure to the juvenile justice system, expressly acknowledged that he

understood the words of the Miranda warnings, and waived his rights verbally and

in writing. These facts are similar to the facts present in Fare, where the Court

rejected a habeas petitioner’s attempt to prove a waiver invalid. See Fare, 442 U.S.

at 726–27.

The limited evidence that runs counter to the state court’s determination as to

this issue includes Bell’s after-the-fact claim that he failed to understand the full

meaning of his rights and the full impact of his waiver. In light of the heavy burden

Bell faces under § 2254(d) and (e), however, we cannot disturb the state court’s ruling

in this case. See, e.g., Montejo v. Louisiana, 129 S. Ct. 2079, 2085 (2009) (“When

a defendant is read his Miranda rights (which include the right to have counsel present

during interrogation) and agrees to waive those rights, that typically does the trick.”).

Finally, although our certificate of appealability recited only the requirement

that a waiver be knowing and intelligent, we are compelled in this case to mention the

related issue of voluntariness. At the district court and in his pro se filings with our

court, Bell presented arguments surrounding his purported requests for counsel and

the overall coercive environment of the interrogation process. He presented these

arguments within his claim number 2, the claim for which we granted a certificate of
3

To the extent that our grant of the certificate of appealability was not sufficient

to include the voluntariness of the waiver, we expand the certificate to include this

issue. Bell has made the requisite “substantial showing” of the denial of a

constitutional right in that reasonable jurists could disagree as to whether any state

court ruling in this matter actually contained an implicit rejection of Bell’s repeated

claims to have requested counsel. See 28 U.S.C. § 2253(c)(2) (“A certificate of

appealability may issue . . . only if the applicant has made a substantial showing of the

denial of a constitutional right.”); Cox v. Norris, 133 F.3d 565, 569 and n.2 (8th Cir.

1997) (applying AEDPA’s standards and stating, “A substantial showing is a showing

that issues are debatable among reasonable jurists, a court could resolve the issues

differently or the issues deserve further proceedings.”). As explained below, we

conclude that no implicit factual finding disposed of Bell’s claim, and we therefore

reach a different conclusion than the district court on this issue. We also note that,

although this issue centers on Bell’s purported requests for counsel, he does not raise

a separate denial-of-counsel claim. Rather, he raises the purported requests for

counsel as important factors bearing on the voluntariness of his waiver. 

-13-

appealability. Also, the district court interpreted Bell’s habeas petition broadly and

addressed and dismissed Bell’s arguments related to voluntariness. The district court

resolved this issue and the purported requests for counsel as factual matters implicitly

decided by the state trial court.3

 

We and the Supreme Court have recognized the binding nature of implicit

factual determinations. See Marshall v. Lonberger, 459 U.S. 422, 433 (1983);

LaVallee v. Delle Rose, 410 U.S. 690, 692–95 (1973) (per curiam); Crespo v.

Armontrout, 818 F.2d 684, 686 (8th Cir. 1987). In doing so, we and the Court have

interpreted state court records and applied a presumption that “the state trier of fact

applied correct standards of federal law to the facts” to determine whether factual

findings necessarily were implicit in the state courts’ conclusions. Marshall, 459 U.S.

at 433 (internal citations omitted); see also LaVallee, 410 U.S. at 695 (holding that

where there was no evidence the state court had applied an incorrect standard and

where the petitioner’s testimony would have required a grant of relief, it was proper

to infer a credibility finding adverse to the petitioner); Crespo, 818 F.2d at 686
-14-

(recognizing a state appellate court’s acknowledgment of a state trial court’s implicit

finding of fact, and stating, “This holding leaves no doubt that the court rejected [the

petitioner’s] factual contention that he asserted his right to counsel.”). 

We are not fully convinced, however, that these precedents find proper

application in the present case. The state court ruling supposedly containing an

implicit rejection of Bell’s factual assertions was the state trial court’s initial denial

of Bell’s suppression motion. The Arkansas Supreme Court reversed and remanded

as to that ruling because the state trial court’s underlying evidentiary record was

infirm. Then, on a different and expanded record, the state trial court subsequently

granted relief, albeit on other grounds, suppressing the statement based on Bell’s

alternate arguments. 

The Arkansas Supreme Court, in the final direct appeal, rejected the state trial

court’s suppression ruling and expressly stated that it was not considering whether

Bell requested counsel because “that precise issue” was not before the court in the

final direct appeal. See Bell III, 948 S.W.2d at 562 n.1. In reversing the state trial

court’s suppression ruling, however, the state supreme court did not purport to

reinstate the trial court’s earlier ruling in which the trial court had denied the

suppression motion. In fact, the state supreme court’s ruling in Bell II precluded any

such reinstatement of the initial suppression ruling because Bell II held the initial

evidentiary record to be infirm. Bell II, 920 S.W.2d at 822–23. The subsequent

suppression order resulted from a new evidentiary record that had been established on

remand. Accordingly, not only was the state trial court’s initial order denying the

suppression motion no longer an extant ruling in the case, the record on which the trial

court based that ruling was expressly held infirm and subsequently supplemented with

additional testimony.

Because the state trial court granted relief on remand and suppressed Bell’s

statements, it is not possible to infer that the state trial court, on the amended record,
-15-

found Bell not credible and rejected the voluntariness arguments tied to his claim of

having repeatedly requested counsel prior to signing his waiver. An intact ruling and

record denying relief would be required to make such an inference. Further, the

Arkansas Supreme Court’s footnote 1 in Bell III expressly disavows any action on the

part of the Arkansas Supreme Court to make a ruling as to the issues surrounding the

purported request for counsel. Bell III, 948 S.W.2d at 526 n.1. Accordingly, this is

not a case like Lonberger, DeVallee, or Crespo, where the state record presents an

intact ruling disfavorable to a petitioner that might support an inference of an adverse

credibility determination.

Nevertheless, we believe the Arkansas Supreme Court’s treatment of Bell’s

appeal from the denial of post-conviction relief precludes federal habeas relief as to

this specific issue. Bell argued in the Rule 37 proceedings that counsel during the

underlying proceedings was ineffective for failing to obtain a ruling as to the request

for counsel. The Rule 37 court did not address this issue, and the Arkansas Supreme

Court held that Bell had failed to preserve this Rule 37 claim for appellate review

because he failed to secure a ruling from the lower court on this particular Rule 37

claim. Bell IV, 2004 WL 1068724 at *7.

“[A] state prisoner who fails to satisfy state procedural requirements forfeits his

right to present his federal claim through a federal habeas corpus petition, unless he

can meet strict cause and prejudice or actual innocence standards.” Clemons v.

Luebbers, 381 F.3d 744, 750 (8th Cir. 2004). Further, “federal courts do not sit to

correct a state court’s application of its ordinarily adequate procedural rules except in

unusual circumstances not present here.” Id. (internal citation omitted). A review of

Arkansas law demonstrates a well-established and regularly applied rule that “[i]t is

the appellant’s obligation to obtain a ruling at trial in order to preserve an issue for

appellate review.” Beshears v. Arkansas, 8 S.W.3d 32, 34 (Ark. 2000); see also

Delancy v. Arkansas, 151 S.W.3d 301, 306 (Ark. 2004); Milberg, Weiss, Bershad,

Hynes, & Lerach, LLP v. Arkansas, 28 S.W.3d 842, 847 (Ark. 2000) (“It is well
-16-

settled that the failure to obtain a ruling from the trial court is a procedural bar to our

consideration of the issue on appeal.”). 

Although the district court elected to address this issue, noting that the state had

not raised the issue of a procedural bar, it is appropriate to recognize a procedural bar

in habeas cases whether or not raised by the state. See Day v. McDonough, 547 U.S.

198, 205–10 (2006) (holding that a habeas statute of limitations, like “other threshold

barriers [such as] procedural default” is non jurisdictional such that courts may, but

need not raise such issues sua sponte); Cagle v. Norris, 474 F.3d 1090, 1098 (8th Cir.

2007) (addressing the issue of a procedural bar although not raised in the state’s brief);

King v. Kemna, 266 F.3d 816, 822 (8th Cir. 2001) (en banc) (“We agree with our

sister circuits and hold that we have discretion to consider an issue of procedural

default sua sponte.”). Here, there was no ambiguity in the Arkansas Supreme Court’s

final ruling, and it clearly rejected the Rule 37 claim based on a failure to comply with

a state procedural requirement. As such we find the request-for-counsel/voluntariness

claim to be procedurally barred. 

We affirm the judgment of the district court.

______________________________