1 The Honorable James M. Moody, United St ates District Judge for the Eastern District of Arkansas. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-3306

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

___________ Submitted: June 14, 2006 Filed: August 17, 2006

___________ Before LOKEN, Chief Judge, and BE AM and ARNOLD, Circuit Judges.

___________ ARNOLD, Circuit Judge. Keith Buchheit appeals the denial of hi s habeas corpus petition by the district court. 1 In his petition, he claimed that th e Arkansas courts had denied him his constitutional right to effective assistance of counsel and due process. We affirm.-2- I. Keith Buchheit was one of three men charged with beating another man to death. After one of his co-defendants was convicted and sentenced to 40 years' imprisonment, Mr. Buchheit agreed to plead guilty to first-degree murder in exchange for the prosecutor's promise to ask for a sent ence no greater than 321⁄2years. The state trial court accepted Mr. Buchheit's plea and sentenced him to that term.

When Mr. Buchheit pleaded guilty, he was not aware of a statute that required persons convicted of certain felonies, incl uding first-degree murder, to serve at least seventy percent of their sentence be fore they could be paroled. See Ark. Code Ann. § 16-93-611. Mr. Buchheit's attorney al so did not know about the law (perhaps because it had not been in effect very l ong), and therefore did not tell Mr. Buchheit about it. Mr. Buchheit learned about the so -called seventy-percent rule shortly after he began serving his sentence; he then f iled for post-conviction relief in state court, contending that he had received in effective assistance of counsel. See Ark. R. Crim. P. 26, 37.

The state trial court conducted a hear ing on Mr. Buchheit's petition. His counsel testified that he "needed to a ssume that [he] woul d do the full amount" in deciding whether to accept the pl ea agreement. The attorney also testified that he told Mr. Buchheit and his father that "par ole was left up to the parole board." Mr. Buchheit and his father te stified that during the plea ne gotiations, the attorney told them that Mr. Buchheit would be eligible fo r parole after serving one-third or one-half of the sentence. Counsel denied making any such statement.

The state trial court denied Mr. Buchheit' s petition for relief. In its order, the court referred to Strickland v. Washington , 466 U.S. 668 (1984), which sets forth the requirements for an ineffective-assistance- of-counsel claim. The court noted that there was "an absolute conflict in testim ony between the Defendant's attorney ... and the Defendant as to any representations ma de pertaining to paro le eligibility." The-3- parties agree that the court's decision credited the testimony of counsel: Without mentioning the defendant's version of th e events, the court stated that counsel "unequivocally" testified that he had to ld his client that he could not make representations about parole eligibility and that the defendant should assume that he would serve his full sentence but admitted that he did not know about the seventypercent rule. After citing a state case holdi ng that receipt of some erroneous advice about parole eligibility cannot be a basis for setting aside a guilty plea, the court denied Mr. Buchheit's motion.

The Arkansas Supreme Court affirm ed the trial court's decision. Buchheit v. State , 339 Ark. 481, 6 S.W.3d 109 (1999) (per cu riam). Although the court noted that in Hill v. Lockhart , 474 U.S. 52, 57-58 (1985) ( Hill I ), the United States Supreme Court recognized a sixth-amendment right to effective representation for defendants entering guilty pleas, that case involved an attorney who made a positive representation that the defendant would be released after a peri od of time shorter than his sentence, id. at 54-55. Noting that the trial court had credited counsel's testimony, the Arkansas Supreme Court distinguished Hill I from Mr. Buchheit's case, because "Buchheit's counsel's alleged e rror was one of omission – he failed to inform his client of the minimum amount of time he would have to serve befo re parole could be considered, but, he did advise his client that he should assu me that he would serve the whole sentence." Buchheit , 339 Ark. at 482, 485-86, 6 S. W.3d at 110, 112. The court further noted its holding in Haywood v. State , 288 Ark. 266, 268, 704 S.W.2d 168, 169 (1986), that the failure of an attorney to tell his client the amount of time that he would have to serve was not ine ffective assistance of counsel. Buchheit , 339 Ark. at 486, 6 S.W.3d at 112. The court concluded that because Mr. Buchheit's attorney had not made any misrepresentati on to his client about the am ount of time that he would have to serve, the trial court did not err in denying him post-conviction relief. Id

. Mr. Buchheit filed a federal habeas corpus petition in the district court, claiming violation of his rights to due process and e ffective assistance of counsel. A magistrate2 The Honorable Jerry Cavaneau, United Stat es Magistrate Judge for the Eastern District of Arkansas.
-4- judge 2concluded that the Arkansas courts' resolution of Mr. Buchheit's ineffectiveassistance claim was not an unreasonable app lication of federal law. The magistrate judge said that the Supreme Court did not decide in Hill I whether erroneous parole advice constituted ineffective assistance of counsel. And although we had held in a later proceeding that the defendant in Hill I was entitled to habeas relief, see Hill v. Lockhart , 894 F.2d 1009, 1009-1010 (8th Cir. 1990) (en banc) (Hill III ), cert. denied , 497 U.S. 1011 (1990), the magistrate judge concluded that Hill III was factually distinguishable from Mr. Buchheit's and that, in any event, our decision in Hill III could not serve as a basis for overturning the state court's judgment under the deferential standard established by the Anti- terrorism and Effective Death Penalty Act (AEDPA). The magistrate judge also r ecommended that Mr. Buchheit's due- process claims be denied. The district court accepted the magistrate judge's recommendations and denied the petition. We granted Mr. Buchheit a certificate of appealability with respect to his ineffective-assistance-of-counsel claim.

II. At the outset, we recognize that the pr ovisions of AEDPA confine our review. We must affirm the Arkansas courts' deni al of his claims unless their treatment of those claims "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," 28 U.S.C. § 2254(d)(1), or was "based on anunreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d)(2). We are bound by the facts as f ound by the state courts, absent clear and convincing evidence that those findings were incorrect. 28 U.S.C. § 2254(e)(1). Mr. Buchheit has presented no such eviden ce, so we proceed on the understanding that his counsel did not tell him that he would serve less than the full length of his-5- sentence, and that counsel did inform Mr. Bu chheit that he should be prepared to serve the full amount of his sentence and that the que stion of parole was up to state officials.

The Supreme Court case relied upon by Mr. Buchheit is Hill I . In Hill I, the petitioner pleaded guilty to first-degree mu rder. He then filed a habeas action, alleging that his attorney advised him that if he pleaded guilty, he would serve only one third of his sentence. In fact, however, because the petitioner was a repeat offender, Arkansas law required him to se rve at least half of his sentence. Hill I, 474 U.S. at 53-55. The Supreme Court determined that to obtain habeas relief for ineffective assistance of counsel, the pe titioner had to satisfy the requirements of Strickland : He had to prove that counsel's representation fell below an objective standard of reasonableness and that, but for the faulty performance, the petitioner would not have pleaded guilty. Hill I, 474 U.S. at 57-58. Turn ing to the facts, the Supreme Court specifically declined to determine "whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed constitutionally ineffective assist ance of counsel." Th is was because the Supreme Court found that the petitioner ha d failed to demonstrate prejudice, the second requirement of Strickland

. Hill I, 474 U.S. at 60.

Because Hill I did not even address the question of whether the failure to inform a defendant of his parole eligibility is professionally unreasonable, we can hardly conclude that the Arkansas courts unr easonably determined that Mr. Buchheit's representation was constitutionally effective. In reiterating the constitutional standard for representation in Hill I, the Supreme Court referred to its earlier decisions in Tollett v. Henderson , 411 U.S. 258 (1973) and McMann v. Richardson , 397 U.S. 759 (1970). Those cases require petitioners to demonstrate that their representation "was not 'within the range of competence dema nded by attorneys in criminal cases.' " Tollett , 411 U.S. at 266 (quoting McMann , 397 U.S. at 771). Relying on its own case law interpreting McMann , the Arkansas Supreme Court determined that Mr. Buchheit's counsel's performance did not fall outside that range. Buchheit ,-6- 339 Ark. at 486,6 S.W.3d at 112 (citing Haywood , 288 Ark. at 268, 704 S.W.2d at 169). We cannot say that that application of McMann was unreasonable.

Mr. Buchheit makes much of our own court's decisions in Hill v. Lockhart , 877 F.2d 698 (8th Cir. 1989) (Hill II ), vacated , 883 F.2d 53 (8th Cir. 1989), and Hill v. Lockhart , 894 F.2d 1009 (8th Cir. 1990) (en banc) (Hill III ). (These decisions arose out of Mr. Hill's second habeas petition, wh ich he filed after the Supreme Court, in Hill I, 474 U.S. at 57-58, 60, held that defendants who plead guilty must meet Strickland 's requirements for ineffective-assistance claims and that Mr. Hill's first petition did not adequately allege prejudice.) In Hill II, 877 F.2d at 703, a panel of our court determined that the failure of an attorney to ascertain the applicable statute governing parole eligibility and accurately inform his or her client about that eligibility when asked amounted to ineffec tive assistance. Our en banc court then adopted the reasoning of the panel decision. Hill III, 894 F.2d at 1010.

It is important to note, howev er, that unlike the petitioner in Hill II, Mr. Buchheit did not request information about parole from his attorney, and he was not given incorrect factual information. Mr. Buchheit's attorney simply failed to provide Mr. Buchheit with information about Arkansas's seventy-percent rule, although he did advise him to be prepared to serve the full length of his sentence. In any event, neither Hill II nor Hill III can serve as a basis for any conclusion on our part about the reasonableness of the Arka nsas courts' decision under AEDPA; court of appeals decisions, of course, cannot be "clearly established Federal law, as determined by the Supreme Court," 28 U.S.C . § 2254(d)(1). "To obtain habeas relief, Mr. [Buchheit] must therefore be able to point to a Supreme Court precedent that he thinks the [Arkansas] stat e courts acted contrary to or unreasonably applied." Owsley v. Bowersox , 234 F.3d 1055, 1057 (8th Cir. 2000), cert. denied , 534 U.S. 903(2001). Hill is the only Supreme Court case that Mr. Buchheit relies upon, and it does not even address the relevant issue.-7- Even if Hill or some other Supreme Court case required an attorney to advise a defendant about his or her parole eligibility in advan ce of a guilty plea, moreover, we do not think that Mr. Buchheit would beentitled to habeas relief. To succeed on an ineffective-assistance claim, Mr. Buchhe it must demonstrate that he was prejudiced by counsel's failure to provide reas onably competent representation. Hill , 474 U.S at 58

. The Arkansas courts found as a matter of f act that Mr. Buchheit's attorney told his client that he needed to assume that hewould serve the full 321⁄2-year sentence before pleading guilty. If Mr. Buchheit was willing to plead guilty after his attorney advised him that he should be prepared to serve th e entirety of his sent ence, there can be no reason to believe that he would have made a differe nt choice had he been told to assume that he would serve at least seve nty percent of that time. Thus, we do not think that Mr. Buchheit has made the re quired showing of "a reasonable probability that, but for counsel's errors, he ... would have insisted on going to trial." Id. at 59.

III. For the reasons stated, we affirm the district court's denial of the petition.

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