1

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

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-3306

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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. *

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Submitted: June 14, 2006

Filed: August 17, 2006

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Before LOKEN, Chief Judge, and BEAM and ARNOLD, Circuit Judges.

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ARNOLD, Circuit Judge.

Keith Buchheit appeals the denial of his habeas corpus petition by the district

court.1

 In his petition, he claimed that the Arkansas courts had denied him his

constitutional right to effective assistance of counsel and due process. We affirm.
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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 sentence no greater than 321⁄2 years. 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, including first-degree murder, to serve at least

seventy percent of their sentence before they could be paroled. See Ark. Code Ann.

§ 16-93-611. Mr. Buchheit's attorney also did not know about the law (perhaps

because it had not been in effect very long), 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 filed for post-conviction relief in state court,

contending that he had received ineffective assistance of counsel. See Ark. R. Crim.

P. 26, 37.

The state trial court conducted a hearing on Mr. Buchheit's petition. His

counsel testified that he "needed to assume that [he] would do the full amount" in

deciding whether to accept the plea agreement. The attorney also testified that he told

Mr. Buchheit and his father that "parole was left up to the parole board."

Mr. Buchheit and his father testified that during the plea negotiations, the attorney told

them that Mr. Buchheit would be eligible for 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 testimony between the Defendant's attorney ... and

the Defendant as to any representations made pertaining to parole eligibility." The
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parties agree that the court's decision credited the testimony of counsel: Without

mentioning the defendant's version of the events, the court stated that counsel

"unequivocally" testified that he had told 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 holding 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 affirmed the trial court's decision. Buchheit v.

State, 339 Ark. 481, 6 S.W.3d 109 (1999) (per curiam). 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 period 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 error was one of omission – he failed to inform his client

of the minimum amount of time he would have to serve before parole could be

considered, but, he did advise his client that he should assume 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 ineffective 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 misrepresentation to his client about the amount 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 effective assistance of counsel. A magistrate
2

The Honorable Jerry Cavaneau, United States Magistrate Judge for the Eastern

District of Arkansas.

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judge2

 concluded that the Arkansas courts' resolution of Mr. Buchheit's ineffectiveassistance claim was not an unreasonable application 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 recommended 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 provisions of AEDPA confine our review.

We must affirm the Arkansas courts' denial 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 an unreasonable 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 found 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 evidence, so we proceed on the understanding that

his counsel did not tell him that he would serve less than the full length of his
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sentence, and that counsel did inform Mr. Buchheit that he should be prepared to serve

the full amount of his sentence and that the question 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 murder. 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 serve 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 petitioner 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. Turning 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 assistance of counsel." This was because the

Supreme Court found that the petitioner had 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 unreasonably 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 demanded 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,
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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, which 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 ineffective 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, however, 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 Arkansas 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] state 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.
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Even if Hill or some other Supreme Court case required an attorney to advise

a defendant about his or her parole eligibility in advance of a guilty plea, moreover,

we do not think that Mr. Buchheit would be entitled to habeas relief. To succeed on

an ineffective-assistance claim, Mr. Buchheit must demonstrate that he was prejudiced

by counsel's failure to provide reasonably competent representation. Hill, 474 U.S at

58. The Arkansas courts found as a matter of fact that Mr. Buchheit's attorney told his

client that he needed to assume that he would 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 the entirety of his sentence, there can be no

reason to believe that he would have made a different choice had he been told to

assume that he would serve at least seventy percent of that time. Thus, we do not

think that Mr. Buchheit has made the required 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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