United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-2018

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Eric Randall Nance, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Eastern District

* of Arkansas.

Larry Norris, Director, *

Arkansas Department of Correction, *

*

Appellee. *

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Submitted: May 13, 2004

Filed: December 10, 2004

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Before MORRIS SHEPPARD ARNOLD, BEAM, AND MELLOY, Circuit Judges.

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BEAM, Circuit Judge.

Eric Randall Nance killed Julie Heath on October 11, 1993. The State of

Arkansas charged him with capital felony murder with attempted rape as the

underlying felony. After a jury trial, Nance was convicted. That crime was

punishable by death under Arkansas law. The jury was again called upon to

determine the aggravating and mitigating circumstances involved in Nance's case and

make a recommendation regarding the death penalty. The jury found that two

statutory aggravating factors existed, no mitigating factors existed, and recommended

the death penalty, which the trial court imposed.
1

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

District of Arkansas.

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Nance appealed his conviction and sentence to the Arkansas Supreme Court,

and he unsuccessfully sought state post-conviction relief. On September 13, 2000,

Nance filed a petition for federal habeas relief in the Eastern District of Arkansas.

The district court1

 denied the petition on January 22, 2003, and issued a certificate of

appealability on April 16, 2003, on the following claims: (1) insufficiency of the

evidence of attempted rape and (2) ineffective assistance of counsel. Nance claimed

that his trial counsel were ineffective for a variety of reasons, four of which are

included in the certificate. First, Nance argued that his trial counsel were ineffective

for failing to investigate, present, and argue evidence of Nance's innocence of

attempted rape during the guilt phase of his trial. Second, Nance argued that his trial

counsel were ineffective for failing to support their requests for funding to employ

experts in both the guilt and penalty phases of his trial. Finally, Nance argued that

his trial counsel were ineffective in the penalty phase of his trial for failing to develop

a mitigation case and for failing to object to victim-impact testimony. We affirm the

district court's denial of the habeas petition.

I. FACTS

Julie Heath was last seen alive on October 11, 1993. That evening she left her

home in Malvern, Arkansas, to visit her boyfriend in Hot Springs, Arkansas. Ms.

Heath's car broke down on the way. Nance was returning to Malvern from Hot

Springs in his pickup at about this time. When he left Hot Springs, he was dressed

in a shirt, bib-overalls, and shoes. According to Nance, he stopped to help and

offered Ms. Heath a ride to Malvern. Nance was later seen in a convenience store

with no shoes, socks, or shirt. He also had dark, damp stains on his overalls that

appeared to be fresh.
2

We note that the State has included two photographs in its Addendum. One

of those photographs (Plaintiff's Exhibit 7 at trial), however, was not admitted into

evidence. We base this recitation of facts on the evidence before the jury, with the

narrow exception of the item mentioned below.

3

These photographs were not used as evidence in the trial court, but the actual

shirt was. We do not have the shirt and these photographs were used by Nance in the

district court. No one has questioned whether they accurately depict the shirt.

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On October 18, 1993, Ms. Heath's body was found in a wooded area just off

an unpaved road about seven miles from where she had left her car. The body was

fully clothed. A photograph of the clothed body that was admitted into evidence2

shows that the belt buckle was partially undone; the pants' zipper was partially

zipped; and the portion of the shirt covering the body's right shoulder was torn. An

officer testified at trial that the shirt was inside out when the body was found. And

photographs of the shirt3

 once it was removed from the body reveal that the shirt's

torn shoulder was its left shoulder. The officer also testified that he concluded the

shirt was wrong-side out because when he saw the clothed body in the woods, the

shirt's shoulder pad was on the outside surface of the garment. The shirt's other

shoulder pad was found nearby.

The medical examiner testified that when the body was presented to him it

was dressed in one black shirt which was inside out, one pair of black

jeans, one black belt, one pair of black socks, which were inside out, one

pair of black shoes, a white bra, which was pulled up around the neck

and shoulder area, pink panties, which were inside out. The shirt and

pants were intact around the body. The belt was buckled and the zipper

was partially zipped and a slightly soiled sanitary napkin was present.

The medical examiner also testified that the shirt was torn or cut near the shoulder.
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A search of Nance's pickup revealed red pubic hairs in the cab. Ms. Heath had

red hair and an expert testified that these hairs were microscopically similar to some

taken from Ms. Heath's body.

Nance's defense theory was that he accidentally killed Ms. Heath. He claimed

that when she was riding in his pickup she saw his knife (a box cutter), became

hysterical, started kicking him and pulling his hair, and that he put his hand up to

make her stop. He claimed that after he put his hand up, he realized the knife had

become lodged in her throat. Though Nance did not testify, this version of his story

arose at trial through his brother and sister, to whom he had told the same story.

In the guilt phase of the trial, the jury found Nance guilty of capital felony

murder with attempted rape as the underlying felony. In the sentencing phase, the

State presented as evidence six prior felony convictions stemming from Nance's rape

and beating of two Oklahoma girls in 1982. Nance was released from his twenty-year

sentence for those convictions five months before he killed Ms. Heath. Ms. Heath's

mother also testified about how her daughter's death affected her and her family:

Mr. Nance took my only daughter. I believe that he deserves the death

penalty. He has ruined my family's life. I have been under constant

doctor's care since her death. I've had to see a psychologist once a week.

I'm on numerous medications. My life will never be the same again.

This has affected all of my family. It's been very hard on my husband

and my son. We basically do not know how we can live without her.

The State also argued that Nance killed Ms. Heath to avoid arrest.

To counter this aggravating evidence, Nance produced some mitigating facts.

He offered his confession to police (which was not offered by the State in the guilt

phase of the trial) to show remorse. That recitation recounted the story that was the
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basis for his guilt-phase defense. In further support of his mitigation case, Nance

introduced testimony from his brother, sister, mother, employer, and minister.

The jury found that two statutory aggravating circumstances existed beyond a

reasonable doubt, that no mitigating circumstances existed, that the aggravating

circumstances outweighed any mitigating circumstances beyond a reasonable doubt,

and that "the aggravating circumstances justify beyond a reasonable doubt the

sentence of death." The judge, following the jury's recommendation, sentenced

Nance to death.

Nance appealed his conviction and sentence to the Arkansas Supreme Court,

raising ten state-law grounds for reversal. Nance v. State, 918 S.W.2d 114, 117 (Ark.

1996) (Nance I). That court specifically refused to consider his constitutional

arguments because they were supported by "conclusory allegations without

supporting authority." Id.

Nance also filed for post-conviction relief in the trial court under Rule 37 of

the Arkansas Rules of Civil Procedure, "alleging, among other things, that his trial

counsel provided ineffective representation during the trial and penalty phases of his

trial." Nance v. State, 4 S.W.3d 501, 502 (Ark. 1999) (Nance II). The trial court

denied relief without a hearing and the Arkansas Supreme Court affirmed. Id. at 506.

Nance then filed a federal habeas petition in the Eastern District of Arkansas,

raising approximately fourteen issues. The district court, on Nance's motion,

appointed Dr. Bradley Diner under 21 U.S.C. § 848(q) to evaluate Nance's mental

health. In Dr. Diner's initial report, he relates what Nance told him about Ms. Heath's

death—a yet-unheard version of the facts. According to the report, Nance was

involved in a sexual relationship with Ms. Heath. On October 11, 1993, Nance

stopped at Wal-Mart to purchase a new box cutter. While there, he overheard

someone say that Ms. Heath was HIV-positive. Given his past relations with Ms.
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Heath, this information troubled Nance. On his way home, he saw Ms. Heath stopped

on the side of the road. He picked her up, offering to give her a ride back to Malvern.

On the way, he confronted her about the HIV rumors he had heard. Unsatisfied by

her response, Nance became quite angry and hit Ms. Heath so hard that he broke her

neck. Nance also said that he could not remember much of what happened. Dr. Diner

also submitted a supplemental report. In that report, Dr. Diner presents a picture of

Nance's social and family history, posits that those experiences contributed to the

"worry and fear" Nance experienced on the night of October 11, 1993, and concludes

that all of this culminated in Ms. Heath's death.

The district court dismissed the petition on January 22, 2003, and issued its

memorandum opinion the next day. It is not clear how much, if any, of Dr. Diner's

information was before the district court when it denied the petition. The

memorandum opinion refers to some of Dr. Diner's work, while the certificate of

appealability says Dr. Diner's reports were filed the day the memorandum opinion

was filed. Even though the district court did not consider some or all of Dr. Diner's

reports when it drafted its memorandum opinion, it issued a certificate of

appealability on five issues, in part, because of Dr. Diner's reports: "[A] Certificate

of Appealability will issue as to Petitioner's claim . . . so that the Circuit Court may

determine the propriety of the consideration of this evidence arising from the report

of Dr. Diner."

II. DISCUSSION

A.

Nance first makes a sufficiency-of-the-evidence, due-process claim under

Jackson v. Virginia, 443 U.S. 307 (1979). On direct appeal, the Arkansas Supreme

Court addressed Nance's sufficiency claim on state-law grounds by evaluating

whether the trial court erred in denying Nance's motion for a directed verdict. As
4

We express no opinion on whether this standard is lower, higher, or the same

as the Jackson standard.

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mentioned above, the court expressly refused to consider Nance's constitutional

arguments. Nance I, 918 S.W.2d at 117. In reviewing the sufficiency of the

evidence, the Arkansas court applied its "substantial evidence" standard. Id.

("'Evidence is substantial if it is of sufficient force and character to compel reasonable

minds to reach a conclusion and pass beyond suspicion and conjecture.'") (quoting

Pike v. State, 912 S.W.2d 431, 433 (Ark. 1996)). We, of course, do not evaluate

whether the evidence was sufficient under state law, because errors of state law are

not cognizable in federal habeas courts. See 28 U.S.C. § 2254(a). And this standard

is arguably different than the due-process standard enunciated in Jackson.

4

 Under the

Antiterrorism and Effective Death Penalty Act, we must give a great deal of deference

to state-court adjudications of constitutional claims, so long as those claims were

"adjudicated on the merits in State court." 28 U.S.C. § 2254(d). An adjudication on

the merits does not require that a state court invoke any particular language or devote

any specific degree of attention to the claim, Brown v. Luebbers, 371 F.3d 458, 461

(8th Cir. 2004), petition for cert. filed, (U.S. Nov. 12, 2004) (No. 04-7227), but when

a state court specifically disclaims addressing constitutional arguments, at the very

least, section 2254(d) does not apply. So we review the sufficiency claim de novo,

keeping in mind that underlying determinations of material fact that occurred in the

state court (here the trial court) are "presumed to be correct" unless "rebutt[ed] . . . by

clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

Under Jackson, a conviction transgresses the bounds of due process if "no

rational trier of fact could have found proof of guilt beyond a reasonable doubt." 443

U.S. at 324. All conflicting inferences that arise from the historical facts must be

resolved in favor of the prosecution. Id. at 326. Nance argues that there was

insufficient evidence of the attempted rape. If we review the historical facts and

construe them in the light most favorable to the prosecution (as we must), we
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conclude that Nance unbuckled Ms. Heath's belt, unzipped her jeans, and removed

her shirt and socks. Ms. Heath's pubic hair was also found in Nance's truck. From

this, a reasonable jury could conclude that Nance removed Ms. Heath's clothing.

Removing Ms. Heath's clothing surely corroborates an intent to rape, at least where

consent is not at issue, and constitutes a substantial step in the commission of that

offense. Nance was also seen just after the killing in a state of partial undress. Thus,

a reasonable jury could conclude that Nance removed Ms. Heath's and his own

clothing with the intent to rape her. That is enough for attempted rape under

Arkansas law. See Sasser v. State, 993 S.W.2d 901 (Ark. 1999); Ark. Code Ann. §§

5-3-201 & 5-14-103.

Nance's arguments to the contrary, while appropriately made to a jury, are

unconvincing here. For example, Nance argues that the shirt found on Ms. Heath's

body was not inside out. Given the location of the tear or cut in the shirt's shoulder,

a reasonable juror could have concluded that the shirt was inside out when the body

was found. On the body, the tear appeared on the right shoulder. After the shirt was

removed and turned right-side in, the tear was to the left shoulder of the shirt. And

an officer who saw the body at the scene, as well as the medical examiner who

received the body from the crime scene, testified that the shirt was inside out.

Defense counsel made arguments to the contrary at trial, to no avail.

Nance argues that the sanitary napkin found with the panties establishes that

the evidence is insufficient under Jackson. The medical examiner testified that the

sanitary napkin "was present" and that the panties were on inside out. Defense

counsel argued that, given the presence of the sanitary napkin, there was no inference

that Nance ever removed those panties; Ms. Heath simply put them on inside out

earlier that day. The prosecutor did not argue to the contrary, admitting in closing

that sometimes "those kind of mistakes may have been made in dressing." Nance

places a great deal of emphasis on the medical examiner's report that stated more

specifically that the sanitary napkin was in the panties and over the body's genitalia.
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But that evidence was never offered in the trial court. It is therefore beyond our

Jackson review. Herrera v. Collins, 506 U.S. 390, 402 (1993). And, in any event, we

are not convinced that the jury drew the conclusion that Nance says it drew—that he

removed Ms. Heath's panties.

After reviewing the record with the appropriate level of deference, we conclude

there was no error under Jackson. Nance also appears to argue that Dr. Diner's report

"casts further doubt on the State's theory that Nance attempted to rape Ms. Heath."

Appellant's Br. at 9. This evidence also was never presented to the jury; thus, it has

no place in our Jackson analysis. Herrera, 506 U.S. at 402.

B.

Next, Nance claims his trial counsel were ineffective in the guilt phase of his

trial. First, he argues that they failed to investigate, present, and argue evidence of

Nance's innocence of attempted rape. The district court held that this guilt-phase

ineffective-assistance-of-counsel claim was procedurally defaulted because it had

never been presented to the state courts. The State has waived exhaustion. Nance

argues that Dr. Diner's report should excuse the procedural default under Schlup v.

Delo, 513 U.S. 298 (1995). We disagree.

Schlup allows a petitioner to raise a "gateway claim of actual innocence,"

Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001), that, if established, will

allow him to present otherwise procedurally defaulted claims to the federal habeas

court. But the Schlup standard is quite high; the petitioner must come forward with

new reliable evidence that was not available at trial, id., and he must show that "it is

more likely than not that no reasonable juror would have convicted him in the light

of the new evidence." Schlup, 513 U.S. at 327 (adopting the Murray v. Carrier, 477

U.S. 478 (1986), standard). The sort of evidence that cannot be used for a Schlup

gateway claim includes "evidence [that] could have been discovered earlier in the
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exercise of due diligence." Cornell v. Nix, 976 F.2d 376, 380 (8th Cir. 1992) (en

banc); accord Meadows v. Delo, 99 F.3d 280, 282 (8th Cir. 1996).

Nance's evidence is simply not new. His statements to Dr. Diner amount to a

self-written affidavit, even though it is embodied in Dr. Diner's report. Conveniently,

this affidavit does cast some doubt on an attempted-rape theory because the

implications of Nance regarding Ms. Heath as HIV-positive draw into question

whether he had the requisite intent to rape her. But even assuming this is true, all of

this information was available to Nance at trial, on direct appeal, and throughout his

post-conviction proceedings. Nance has provided no evidence of any sort of

impediment to his ability to recall this information. And he does not challenge his

competency at trial, including his ability to aid in his own defense. See Drope v.

Missouri, 420 U.S. 162, 171 (1975) (stating that competency to stand trial includes

the ability to aid in one's own defense). So he cannot now try to excuse a procedural

default under Schlup.

Nance makes other arguments to bypass the procedural default as to this claim.

But even if the default is excused, Nance's claim has no merit. See Stephens v.

Norris, 83 F.3d 223, 224 (8th Cir. 1996) (stating that a court may bypass the

procedural-default question and proceed to the merits). Nance claims his trial counsel

were ineffective for failing to investigate, argue, and present evidence of innocence.

Nance makes no effort to show what a more thorough investigation would have

revealed. So his claim boils down to one of a failure to present and argue the

available evidence of innocence. Again, Nance cites the shirt and panties issues as

areas in which counsel fell short at trial. But counsel made arguments about both.

With regard to the shirt, it is unclear what more counsel could have done. In closing

arguments, Nance's counsel presented the shirt to the jury and pointed out the grass

stains that Nance now argues are so important. Thus, in this regard, counsel's

performance did not fall below an objective standard of reasonableness under

Strickland v. Washington, 466 U.S. 668 (1984). As to the panties and the sanitary
5

It is not clear whether Nance has incorporated the Dr. Diner information into

his ineffective-assistance claim or simply argued it as a way of lifting the procedural

bar. Nance's knowledge of these events is, as we have held, not new evidence. And,

again, Nance has not challenged his ability to assist in his own defense. Thus, insofar

as Nance may be asserting an ineffective-assistance claim based on the Dr. Diner

information, two possible scenarios appear. First, Nance did not tell his trial counsel

about his HIV story, in which case his counsel did not breach any objective standard

of reasonableness. Or, second, Nance did tell them and they chose as a matter of

strategy not to pursue that theory of defense. This choice would not be unreasonable

because if Nance's story were presented, the jury would then know that Nance had

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napkin, Nance's counsel made the argument Nance says they should have made, but,

he claims, they failed to introduce the autopsy report. Given the prosecutor's lack of

argument in closing, defense counsel's specific reference to the medical examiner's

testimony that the pad was in place, and the other evidence in the case, we see no

"reasonable probability" that, but for this purported failure of counsel, "the factfinder

would have had a reasonable doubt respecting guilt." Id. at 695.

Nance also argues that his trial counsel were ineffective for not arguing to the

jury that the bra on Ms. Heath's body was not "pulled up around the neck and

shoulder area" as the medical examiner testified. The photo presented to the jury

clearly shows that the bra was not in that position when the body was found. But this

does not make the medical examiner's statement any less true, because the bra could

have gotten in that position when the body was moved. That photo, which the jury

had access to and presumably viewed, showed exactly what Nance claims his counsel

failed to bring to the attention of the jury. And even though defense counsel did not

argue the point, the prosecutor also did not argue the point. So we can see no way in

which this omission fell below an objective standard of reasonableness or prejudiced

Nance.

In sum, Nance's ineffective-assistance-of-trial-counsel claim remains

procedurally barred despite Schlup, and it is without merit.5
told four different stories of the incident, and it likely would have strengthened the

State's case for premeditated murder or even the other lesser-included murder

offenses that were charged. We see no merit in this claim.

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Second, Nance argues that his trial counsel were ineffective in the guilt and

penalty phases of his trial because they failed to support their requests for funding to

employ various experts—a psychologist, a juristic psychologist, and an investigator.

The trial court denied these requests. This claim was not procedurally defaulted

because it was presented to the Arkansas court in Nance's Rule 37 motion and, neither

that court nor the Arkansas Supreme Court disposed of the claim under an

independent and adequate state procedural rule. Each court addressed the claim on

the merits. This prior adjudication makes section 2254(d)'s deferential standard of

review applicable. Under that standard, the district court was bound to deny the

petition 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). The district court concluded the

Arkansas court's disposition of the claim did not exceed the bounds of section

2254(d). We agree.

The issue here is only whether Nance's trial counsel were ineffective for failing

to substantiate their claims to the trial court that various experts were needed for

Nance's defense. The federal habeas court also considered Nance's claim that his

constitutional rights were violated because the trial court denied his requests for these

same experts. It concluded that Nance's rights under Ake v. Oklahoma, 470 U.S. 68

(1985) (holding that indigent defendants have a due-process right to psychiatric

assistance in some circumstances), had not been violated. The district court did not

certify that issue for appeal, so we do not address it. We do note, however, that the

basis for the district court's decision on the Ake claim was that Nance had not made

a sufficient showing of need. Nance claims now that the failure to make the
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necessary showing was attributable to his trial counsel and that this was objectively

unreasonable because Nance badly needed that assistance. Of course, the original

Ake arguments rested on the notion that Nance, through counsel, had made a

sufficient showing of need. In any event, Nance has failed to overcome section

2254(d). The Arkansas Supreme Court articulated the Strickland standard and

applied it to the limited facts Nance presented. Nance II, 4 S.W.3d at 504. Nance has

offered no reason why that court's determination "resulted in a decision that 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 light of the record before it. See Holland v. Jackson, 124 S. Ct. 2736,

2738 (2004) (reminding courts that the section 2254(d) inquiry must be made in light

of the record before the state court). In short, Nance offered no basis for funding that

existed at the time of trial that counsel failed to communicate to the trial court.

Nance's next claim has to do with the effectiveness of his penalty-phase trial

counsel. He argues that his penalty-phase trial counsel failed to properly develop a

mitigation case. This claim is closely related to Nance's funding-request claim

because, he says, psychiatric assistance would have enabled him to present more

evidence of mitigation. But whichever way Nance presents the claim, it is without

merit under AEDPA. The mitigation claim was also adjudicated on the merits in state

court. Thus, section 2254(d) governs our review. The Arkansas Supreme Court, in

ruling on the Rule 37 appeal, held that Nance had failed to establish both aspects of

Strickland: objectively unreasonable representation and prejudice. As with the

funding-request claim, Nance has not explained why the Arkansas Supreme Court's

ruling, on the record that was before it, is not entitled to section 2254(d) deference.

And, again, we find no error in the Arkansas Supreme Court's application of law to

fact or its conclusion.

Nance's final claim is that his penalty-phase trial counsel were ineffective

because they failed to object to victim-impact testimony. Ms. Heath's mother, Nancy
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Heath, testified at the penalty trial. She said, "I believe that he deserves the death

penalty." This statement is inadmissible under Arkansas law, see Greene v. State, 37

S.W.3d 579, 584 (Ark. 2001), but that does not mean the failure to object falls below

a standard of objective reasonableness. In fact, a reasonable lawyer may wish to

refrain from objecting to this type of statement when uttered by the victim's grieving

mother, in front of a jury, and in the midst of her impact testimony. Of course, we

need not go that far. This claim was adjudicated on the merits in the Arkansas

Supreme Court in the Rule 37 appeal, so section 2254(d) applies. The Arkansas

Supreme Court found that Nance had not established professionally unreasonable

representation with regard to this claim, because not objecting to such testimony was

a valid trial strategy. Nance II, 4 S.W.3d at 505. And it concluded that Nance had

not shown prejudice—a reasonable probability that Nance would not have been

sentenced to death had counsel objected. Id. We do not think the Arkansas Supreme

Court misapplied Strickland. And, while we may have our doubts about whether it

was reasonable for counsel not to object, we can only grant the writ if we think the

Arkansas court applied Strickland unreasonably. It did not, and we have found no

materially indistinguishable cases from the Supreme Court of the United States.

We have evaluated the balance of petitioner's claims that were certified for

appeal, including his various claims for an evidentiary hearing, and we find them

without merit.

III. CONCLUSION

We affirm.

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