No. 95-4033

Marvin Gene Pearson, * * Appellee, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. Larry Norris, Director, * Arkansas Department * of Correction, * * Appellant. *

Submitted: June 13, 1996 Filed: July 11, 1996
Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge.

In 1990, a state court jury convicted Marvin Gene Pearson o f kidnapping, burglary, and terroristic threatenin g. At that time, Arkansas law provided two avenues for challenging a conviction -- (1) within 30 day s of sentencing, a pre-appeal petition to the tria l court for a new trial on the ground of ineffective assistance of trial counsel, see In the Matter of the Abolishment of Rule 37 and the Revision of Rule 36 , 770 S.W.2d 148 (Ark. 1989) ( per curi am ); and (2) within 30 days of sentencing or 30 days of the denial of the new trial motion (whichever was latest), appeal to a higher state court on the ground of error during the trial, see id. an d what is now Ark. R. Crim. App. P. 1(a).

### -2- Mr. Pe arson did not petition the trial court for a new trial base d
on al leged ineffective assistance of trial counsel. He did appeal hi s
conv ictions, making two state-law claims of error (failure to give a
cer tain jury instruction; overlap of the charges on, and thus excessiv e sentenc es for, kidnapping and terroristic threatening). The Arkansa s Supreme Court declined to reach the merits of these claims, holding that Mr. Pearson had failed to preserve them properly (he had neglected to offe r the jury instruction at trial and to describe it in the appeal brief; he had neglected to raise the issue of excessive sentences in the tria l court)

. The Arkansas Supreme Court therefore affirmed the convictions

. See Pearson v. State , 819 S.W.2d 284, 285-86 (Ark. 1991).

I. In 1994, Mr. Pearson petitioned in federal court for habeas corpu s relief under 28 U.S.C . § 2254(a). In that petition, he alleged violation of h is sixth amendment right to counsel by virtue of the ineffectiv e assistance of his trial lawyer, specifically, the lawyer's neglecting to offer the relevant jury instruction and to raise the issue of excessiv e sentences. In describing his claims, Mr. Pearson stated that his tria l counsel had failed altogether to petition for a new trial (or to request
a different lawyer to do so) based on those two omissions during trial.

The petition was referred to a magistrate. See 28 U.S.C

. § 636(b)(1)(B) and Rule 8(b), Rules Governing Se ction 2254 Cases. Because Mr. Pearson had never raised, in the state courts, the issue of ineffectiv e assistance of counsel at trial, that claim in his habeas petition wa s barred from consideration in the federal courts unless he showed cause for his default in the state courts in that regard and actual prejudice as a result of that default. See , e.g. , Coleman v. T hompson , 501 U.S. 722, 750 (1991). The magistrate therefore directed Mr. Pearson to submit a statement

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"describing the circumstances" that led to his f ailure in the state courts to raise the issue of ineffective assistance of counsel at trial. I n resp onse, Mr. Pearson stated again that his trial counsel had faile d altogether to petition for a new trial (or to request a different lawyer to do so) on the basis of that counsel's own alleged ineffective assistanc e at trial.

The magi strate found that Mr. Pearson could have petitioned -- bu t did not -- under Ark. R. Crim. P. 37.1(a) for a new trial on the basis of ineffective assistance of trial counsel. That rule, which was in effect by t he time the Arkansas Supreme Court decided Mr. Pearson's appeal , changed the avenues under Arkansas law for challenging a conviction from those that were in ef fect at the time of Mr. Pearson's trial. See In the Matter of the Reinstatement of Rule 37 , 797 S.W.2d 458 (Ark. 1990) ( pe r curiam ), and In re Po st-Conviction Procedures , 797 S.W.2d 458 (Ark. 1990) ( per curiam ). Under the new (and current) schem e, a petition to the trial court for a new trial on the ground of ineffective assistance of counsel at t rial may not be made until after an appeal is decided, see Ark. R

. Crim. P. 37.2(a), and must be made within 60 days of the mandate from the state appellate court, see Ark. R. Crim. P. 37.2(c).
Even though that rule was not in eff ect at the time of Mr. Pearson's tria l, the magistrate noted that because the rule was in effect whe n Mr. Pearson's appeal was decided, Mr. Pearson could have petitioned fo r relief under the rule after his appeal. See , e.g. , Pogue v. State , 87 2 S.W.2d 387, 388 (Ark. 1994). The magistrate found that Mr. Pearson had no t offered any reason fo r his failure to petition for a new trial under Ark. R. Crim. P. 37.1(a) after his appeal. The magistrate therefore recommende d that Mr. Pearson's ha beas petition be denied. The district court adopted that recommendation and dismissed Mr. Pearson's habeas petition.

### -4- Mr. Pearson appealed that dismissal order to this court. In Pearson
v. No rris , 52 F.3d 740, 742 (8th Cir. 1995) ( per curiam ), we held, as a matter of law, that M r. Pearson had never received constitutionally valid notice, at a time when he could have taken advantage of it, of his right to pursue relief unde r Ark. R. Crim. P. 37.1(a). We further held that it would be futile for Mr. Pearson to petition for relief in the state courts under that rule, since any such petition obviously "would be rejected as untimely ," id. at 743. See , e.g. , Burk v. State , 856 S.W.2d 14, 14-1 5 (Ark. 1993) ( per curiam ). Holding that Mr. Pear son thus "has no realistic
recourse in the Arkansas courts," we directed the district court t o consider "the merits of [Mr. Pearson's] constitutional claims." Pearson , 52 F.3d at 743.

II. On remand, the case was again referred to a magistrate. See 2 8 U.S.C. § 636(b)(1)(B) and Rule 8(b), Rules Governing Section 2254 cases. Instead of addressing the merits of Mr. Pearson's sixth amendment claims of ine ffective assistance of counsel at trial, however, the magistrat e found that Mr. Pearson had suffered constitutionally significan t ineffective assistance of counsel for purposes o f a pre-appeal petition to the trial court for a new trial on the basis of ineffective assistance of
coun sel at trial. As a consequence, the magistrate recommended tha t Mr. Pearson be released unless he was permitted within 90 days to pursue such a petition in the state courts with the assistance of counsel, even though the rule allowing that pre-appeal procedu re is no longer in effect. See In the Matter of Reinstatement of Rule 37 , 797 S.W.2d 458 (Ark. 1990) ( per curiam ), and In re Post-Conviction Proceedings , 797 S.W.2d 458 (Ark. 1990) ( per curiam ). The district court adopted the recommendation.

The state appealed the district court's order granting relief t o Mr. Pearson. The state argues that the district court erred, as

### -5-

a matter of law, in h olding that Mr. Pearson is constitutionally entitled to counsel with respect to a petition to the trial court for a new trial if that petition is b ased on alleged ineffective assistance of counsel at trial. The state also argues that, in any event, the proper action for th e district court to have taken, in light of this c ourt's earlier decision in this ve ry case, see Pearson v. Norris , 52 F.3d 740, 743 (8th Cir. 1995 ) ( per curiam ), was to consider the merits of Mr. Pearson's sixth amendment claims, n ot to send him back through the state courts. Mr. Pearso n respon ds, first, that he is indeed constitutionally entitled to counse l with respect to a petition to the trial court for a new trial because of ineffective assistance of counsel at trial. He further argues that th e distri ct court acted appropriately in granting him the opportunity t o prosecute such a petition at this point.

We need not discuss the question of whether Mr. Pearson wa s
co nstitutionally entitled to counsel with respect to the now-defunc t procedure allowing a pre-appeal petition to the trial court for a new tria l because of ineffective assistance of counsel at trial. See , e.g. , Robinso n v. Norris , 60 F.3d 457, 460 (8th Cir. 1995), cer t. denied , 116 S. Ct. 1344 (1996); but see also Cherry v. State , 918 S.W.2d 125, 128 n.1 (Ark. 1996). That is because the district court misinterpreted our directive in th e previous appeal, and we therefore remand the cas e with instructions to the district court to follow that directive.

III. "The decision of a federal appellate court establishes the la w binding further action in the litigation by another body subject to it s authority," i.e. , the district court. City of Cleveland, Ohio v. Federal Power Commission , 561 F.2d 344, 346 (D.C. Cir. 1 977). "The District Court is bound b y the [appellate] decree and must carry it into execution. " Thornton v. Carter , 109 F.2d 316, 319

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(8th Ci r. 1940). On remand, the district court "is without power to d o anything which is contrary to either the letter or spirit of the mandate construed in light of the opinion of [the appellate] court deciding th e case." Id. at 320.

This court's opinion in the previous appeal in this case directe d that the district court proceed by "consider[ing] ... the merits o f [Mr. Pearson's] constitutional claims." Pearson v. Norris , 52 F.3d 740, 743 (8th Cir. 1995) ( per curiam ). Those claims were that Mr. Pearson was deprived of his sixth amendment right to counsel by virtue of his tria l lawyer's neglecting to offer the relevant jury instruction and to raise th e issue of excessive sentences.

It is true that Mr. Pearson's habeas petition cited his lawyer' s failure to petition for a new trial (or to request a different lawyer to do so) based on those two omissions at trial. Reading the petition as a whole, however, it is clear that Mr. Pearson was requesting relief on the basis of his lawyer's omissions at trial, not on the basis of his lawyer's failure t o file a pre-appeal petition for a new trial, even though tha t petition would have a lleged those omissions as well. His citation of his lawyer's failure to petition for a new trial was offered to explain why he had not raised his lawyer's trial omissions in the state courts. It i s also clear from this court's previous opinion that this court distinguishe d be tween Mr. Pearson's sixth amendment claims relative to ineffectiv e assistance at trial and Mr. Pearson's references to his lawyer's failure to file a pre-appeal petition for a new trial. This court discussed the latter failure solely in the context of whether Mr. Pearson had offered a sufficient reason for his procedural default of his sixth amendment claims

. Id. at 742; see also Forgy v. Norris , 64 F.3d 39 9, 401-02 (8th Cir. 1995), and Easter v. Endell , 37 F.3d 1343, 1345-47 (8th Cir. 1994).

### -7- The dis trict court therefore had no power on remand to address an y issu es other than the merits of Mr. Pearson's sixth amendment claim s relative to ineffecti ve assistance at trial. See , e.g. , United States v. Tama yo , 80 F.3d 1514, 1520 (11th Cir. 1996); Barber v. Internationa l Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, District Lodge No. 57 , 841 F.2d 1067, 1071-73 (11th Cir. 1988); Office of Consumers' Counsel, State of Ohio v. Federal Energy Regulatory Commission , 826 F.2d 1136, 1139-40 (D.C. Cir. 1987) ( per curiam ); Wheeler

v. City of Pleasant Grove , 746 F.2d 1437, 1440-41 (11th Cir. 1984 ) ( per curiam ); and City of Cleveland, Ohio , 561 F.2d at 347-48. See also Litman v. Massachusetts Mutual Life Insurance Co

. , 825 F.2d 1506, 1511-12, 1514-15 (11th Cir. 1987) ( en banc ), cert. denied , 484 U.S. 1006 (1988).

IV. For the r easons stated, we vacate the district court's judgment and
reman d the case for consideration of the merits of Mr. Pearson's sixt h amendment claims relative to his trial.

A true copy.

Attest:

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