___________ No. 95-2033

___________ Johnny Lee Hill, * * Plaintiff-Appellant, * * v. * Appeal from the United States * District Court for the Eastern Larry Norris, Director, * District of Arkansas Arkansas Department * of Correction, * * Defendant-Appellee. *

___________ Submitted: June 12, 1996 Filed: September 24, 1996

___________ Before WOLLMAN, FLOYD R. GIBSON, and MORRIS SHEPARD ARNOLD, Circuit Judges.

___________ FLOYD R. GIBSON, Circuit Judge.

JohnnyLee Hill was convicted in state court in Arkansas of th e felonymurder of Gary Sturdivant, who lived near Malvern, Arkansas. Mr. Hill's conviction was upheld by a divided court on direct appeal, see Hill v. State , 773 S.W.2d 424 (Ark. 1989), and on petitions for postconviction relief , see Hill v. State , 1991 WL 184217 (Ark. Sept. 16, 1991) ( pe r curiam ), and for correction of sentence, see Hill v. State , 1990 WL 6900 (Ark. Jan . 29, 1990) ( per curiam ). He applied for habeas corpus relie f under 28 U.S.C. § 2254(a), which was denied. Mr. Hill appeals that denial

. We affirm.

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I. BACKGROUND

We summ arize the evidence presented at Mr. Hill's trial in a ligh t most favorable to the verdict. Several people saw Mr. Hill hitchhikin g southwest on I-30 in the Malvern area on the night of May 23, 1987. The latest sighting was about 10:15 p.m. Between 11:00 p.m. and midnight, a neighbor saw Mr. Sturdivant's car arrive at his house, followed by a picku p truck w ith three men in it. All four people went into Mr. Sturdivant' s house. Both vehicles were gone at 9:00 a.m. the next morning, and there
were sk id or scuff marks in the yard, making it appear that someone ha d left in a vehicle very quickly.

Mr. Sturdivant was killed between 3: 00 a.m. and 4:00 a.m. on May 24, 198 7. After a struggle, he was tied up; he strangled from one of th e electric cords used to tie him. Although the medical examiner could not state the precise time of death, Mr. Sturdivant died closer to midnigh t than to 7:30 a.m. Va rious items were stolen from Mr. Sturdivant's house, including a rifle, some tools, and a stereo. All of the stolen items woul d have fit into the trunk of Mr. Sturdivant's car.

At 4 :19 a.m., someone used Mr. Sturdivant's Visa card at a convenien ce store on I-30 about 25 miles southwest of Malvern. Th e signature on the charge slip read "Stevie M. Sturdivant," although the nam e
on the Visa card was "Gary L. Sturdivant." Someone used that Visa car d four more times betwe en that convenience store and Dallas, Texas, on that same day, each time s igning "Stevie M. Sturdivant" on the charge slip. A handwriting sample given later by Mr. Hill showed signs of deception.

Between 4:30 a.m. and 5:00 a.m., two truck drivers saw Mr. Hil l driving Mr. Sturdivan t's car on I-30 about 45 miles southwest of Malvern. Mr. Hill was driving very fast and erratically. At a rest stop, Mr. Hill told the truck drivers that he had been

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drinki ng after a friend's funeral in Little Rock. Mr. Hill did not , however, appear to be drunk when he talked with the truck drivers; he had
no alcohol on his breath, his words were not slurred, and he was no t walking unsteadily. The truck drivers saw some type of rifle in the back seat of the car.

Four d ays later, Mr. Hill was arrested at a convenience store i n Dallas

. He was driving Mr. Sturdivant's car at the time and wa s accompanied by anothe r man, who was trying to sell some tools and a radio to the owner of the convenience store. Mr. Hill had no identification and gave three different names to the police. He ha d no proof of ownership or of i nsurance for the car, which had a stolen license plate on it. Th e police found Mr. Sturdivant's license plate in t he trunk of the car, along with hi s checkbooks and some utility bills in his name. Mr. Hill firs t told the police that he had bought the car from a man named Gary afte r seeing an ad at a lau ndromat; Mr. Hill was to take up the payments on the car. He later told police that a man named Clyd e had given him the car at one of the Dallas missions for the homeless.

II. DISCUSSION

Mr. Hill asserted eight separate bases for habeas relief before the di strict court: (1) ineffective assistance of appellate counsel; (2 ) insuff iciencyof the evidence; (3) the admission of evidence obtaine d pursuant to an illega l search; (4) denial of post-conviction counsel; (5) the ad mission of an involuntary statement; (6) instructional error; (7 )
error in allowing the prosecutor to amend the information; and (8 ) ineffective assistance of trial counsel. The district court found that Mr

. Hill had procedurally defaulted grounds four through eight by failing to present them at the state level. The district court went on to deny habea s relief on grounds one through three on the merits. On appeal, Mr. Hil l asserts cause and prejudice to excuse his procedural default on issues fou r through eight and appeals the

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district court's order affirming the sufficiency of the evidence supportin g his felony murder conviction.
A. Cause and Prejudice

1. Rule 37 Ten-Page Limit

Mr. Hill does not deny that he faile d to present issues four through eight to the state court in his Rule 37 petition. He asserts, however, th e ten-page limitation imposed by Arkansas Criminal Procedure Rule 37 as caus e excusing his default. See Wainwright v. Sykes , 433 U.S. 72, 87 (1977)

. Und er Murray v. Carrier , 477 U.S. 478 (1986), cause excusing procedura l default generally turns upon whether "some objective factor external to th e defens e impeded counsel's efforts to comply with the State's procedura l rule," such as a show ing that the factual or legal basis of the claim was not then available or that some interference by officials made compliance impracticable. Id. at 488. Rule 37.1 provides:

The petition will state in concise, non repetitiv e language, without argume nt, the grounds upon which it is based and shall not exceed ten pages in length. If the petition is handwritten it will be c learly legible, will not exceed thirty li nes per page and fifteen words per line, with a left han d margin of at least 1 1/2 inches and upper and lower margins of at leas t two inches. Petitions which are not in complianc e with this rule will be subject to being stricken.

Ark. R. Crim. P. 37.1(e). Mr. Hill, however, wa s free to demonstrate that he was unable to adequately present his claims in ten or fewer pages in a motion to file an overlength petition. See Washington v. State , 823 S.W.2 d 900, 901 (Ark. 1992). Because he failed to do so, he cannot now assert th e all eged inadequacies of state procedural rules which he failed to full y utilize as post-hoc

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cause excusing his procedural default. Id. (Rule 37 ten-page limit is a reasonable restriction on post-conviction relief).

2. Ineffective Assistance of Appellate Counsel

Mr. Hill alternatively asserts ineffective assistance of appellat e counsel as cause. "Ineffective assistance of counsel . . . is cause fo r a procedural default." Carrier , 477 U.S. at 488 . In order to demonstrate ineffective assistance of counsel, Mr. Hill must prove: (1) his attorney's perfor mance was deficient; and (2) resultant prejudice. Strickland v

. Washington , 466 U.S. 668, 687 (1984). A review of the record reveals , however, t hat Mr. Hill has failed to establish either element, and w e accordingly reject this argument.

B. Sufficiency of the Evidence

Mr. Hill next challenges the sufficiency of the evidence supporting his conviction for felony murder, that is, for killing Mr. Sturdivant in the course of perpetrating a robbery. See Ark. Code Ann. § 5-10-101(a)(1)

. A bar e majority of the Arkansas Supreme Court concluded that there wa s sufficient evidence to support Mr. Hill's conviction. The issue in this
case is not whether this panel would have convicted the defendant had it been the trier of fact. Our standard of review is as narrow as it is well

established:

This court must view the evidence in the light most favorable to the government and sustain the verdict if it is supported by substantial evidence. Moreover, on appeal, the gov ernment must be given the benefit of all inferences that may logically b e drawn from the evidence. It is not necessary that the evidence exclude every reasonable hypothesis except guilt; instead, the evidence is simply sufficient if it will convince a trier o f fac t beyond a reasonable doubt that the defendant is guilty

. Thi s court will not disturb a conviction if the evidenc e rationally supports two conflicting hypotheses. Each of

### -6- the elements of the crime charged may be proven b y cir cumstantial evidence, as well as by direct evidence. An d finally, this court must keep in mind that the standard to be app lied to determine the sufficiency of the evidence is a strict one, and the finding of guilt should not be overturned lightly.

United States v. Brown , 921 F.2d 785, 791 (8th Cir. 1990) (citations and quotation omitted). Our function as an appellate court is not to reweigh the evidence. United States v. Anderson , 78 F.3d 420, 422 (8th Cir. 1996)

. To the contrary, we must accord "great deference" where a state appellate court has found the evidence supporting the conviction constitutionall y suffic ient, as the Arkansas Supreme Court has in this case. Ward v

. Lockhart , 841 F.2d 844, 846 (8th Cir. 1988).
Bearing t hese principles in mind, there can be little argument that Mr. Hi ll's murder conviction is supported by substantial, albeit no t overwhelming, evidence. We readily concede that there is no direc t evidence placing Mr. Hill in the victim's traile r the night of the murder. Forensic evidence such as hair, fingerprints, or body fluids are eminently useful when found, but their absence does not necessarily mandat e acquit tal. Although the evidence supporting Mr. Hill's conviction i s adm ittedlycircumstantial, "circumstantial evidence may constitut e substantial evidence" under Arkansas law. Hill , 773 S.W.2d at 425. Our Court h as also recognized that the verdict "may be based in whole or i n part on circumstantial evidence." Anderson , 78 F.3d at 422.
Mr. Hill argues that the circumstantial evidence supporting his guilt is ins ufficient because it fails to exclude other factual scenario s consistent with his innocence. The Supreme Court, however, quashed this contention in Jackson v. Virginia , 443 U.S. 307 (1979), the very case that established the applicable standard by which we judge sufficiency of the evidence challenges. In that case, the Supreme Court rejected the habeas petitioner's

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sufficiencychallenge based on his argument that circumstantial evidence in the case supported his claim of self-defense as well as th e prosecution's theory of guilt. Id. at 325. "On ly under a theory that the prosecution was under an affirmative duty to rule out every hypothesi s except that of guilt beyond a reasonable doubt could this petitioner' s challenge be sustained. That theory the Court has rejected in the past. We decline to adopt it today." Id. at 326 (citation omitted).

This Cou rt has followed that mandate faithfully. United States v

. Alvarado-Sandoval , 997 F.2d 491, 493 (8th Cir. 1993) ("The evidence need not exclude every reasonable hypothesis except that of guilt; it i s suffic ient if there is substantial evidence justifying an inference o f guilt as found irresp ective of any countervailing testimony that may have been introduced." (quotation omitted)); United S tates v. Searing , 984 F.2d 960, 963 (8th Cir. 19 93) ("The evidence need not exclude every reasonable hypothesis other than guilt."); Perez v. Groose , 973 F.2d 630, 634 (8t h Cir. 1992) ("Contrary to [the petitioner]'s cont ention, the prosecution is not requi red to rule out every hypothesis except that of guilt beyond a reasonable doubt . . . . It was for the jury to resolve any conflicting inferences . . . ."); United States v. Brown , 921 F.2d 785, 791 (8th Cir. 1990) ("This court will not disturb a conviction if the evidence rationall y supports two conflicting hypotheses."); United States v. O'Malley , 854 F.2 d 1085, 1088 (8th Cir. 1988) ("While this determin ation could certainly have been resolved differe ntly, it is not our function as a reviewing court to reverse based on a recognition of alternate possibilities."). This cas e is analogous to a host of convictions based o n circumstantial eviden ce affirmed by this Court despite the recognition of "alternate possibilities." It is theoretically possible, but unlikely , that the true killer sold the proceeds from the killing to the hitchhiking Mr. Hill in the hour or so possibly separating t he time of the murder from Mr. Hill's appearance with

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Mr. Sturdivant's property. It is even possible that Mr. Hill killed Mr. Sturdivant for other unknown reasons and then made off with the goods as
an afterthought. But it was also possible in Jackson that the femal e victim "willingly removed part of her clothing and then attacked [th e defendant] with a kni fe when he resisted her advances" thus requiring him to shoot her in self-defense. Jackson , 443 U.S. at 325. Nevertheless, th e Supreme Court presumed that "the trier of fact r esolved any such conflicts in favor of the prosecution" and deferred to tha t resolution. Id. at 326.

In United States v. Bates , 77 F.3d 1101 (8th Cir. 1996), petiti on for cert. fil ed (July 10, 1996) (No. 96-5184), it was possible that th e defendant found dressed in hunting apparel with two other individuals in
a boat containing two shotguns, dead ducks, camouflaged netting, and decoy s
was merely acting as a wilderness guide as opposed to illegally huntin g ducks with a shotgun as a felon in possession of a firearm. Id. at 1105. This C ourt, however, concluded that this alternative had been fairl y presented to and rejected by the jury despite the fact that a wilderness guide business card was found on the defendant's person. Id. In Rhod e
v. Olk-Lo ng , 84 F.3d 284 (8th Cir. 1996), the Court conceded that "som e parts of the record could be read to support [the defendant's] theorie s that either her parents or her children could have inflicted the fata l injuries" on her infant child. Id. at 288. Nev ertheless, the Court found "ample evidence" in the record supporting her felony murder conviction

. Id. As s uch, we find the evidence supporting Mr. Hill's conviction fo r felony murder to be supported by sufficient evidence.

III. CONCLUSION

For the aforementioned reasons, we affirm the district court's denial of habeas relief.

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MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

Bec ause I believe that the court errs in rejecting Mr. Hill' s contention that the state of Arkansas failed to make a submissible cas e against him, I respectfully dissent from the judgment in this case. A bar e majority of the Arkansas Supreme Court concludedthat there was sufficient evi dence to convict Mr. Hill of felony murder, that is, of killin g Mr. Sturdivant in the course of perpetrating a robbery. See Ark. Code Ann

. § 5-10-101(a)(1). Wi th respect, it appears to me that this determination
was e rror, even when it is afforded the deference that it is due. See , e.g. , Jackson v. Virginia , 443 U.S. 307, 323-24 (1979).

I begin my consideration of this case with a statement of th e principles that should have guided the court's decision. Due process is violated, and a habeas petitioner is entitled to relief, if a conviction has been obtained on the basis of insufficient evidence. Id. at 321

. Evidence is insuffici ent if from it no rational factfinder could conclude beyond a reasonable doubt that the defendant committed the crime with whic h he or she is charged. Id. at 319, 324. If, in other words, the state of the evidence is such that a reasonable juror would necessarily have a doub t about t he defendant's guilt, and that doubt is not based on fancy or o n whim but on reason, id. at 317, then the defenda nt cannot constitutionally be found guilty. Id. at 324.
We have g ranted habeas relief in a similar case at least once. See Ward v. Lockhart , 841 F.2d 844, 845-47, 849 (8th Cir. 1988). In that case , the defendant was con victed of burglary, yet no evidence placed him at or inside the school fro m which certain property was stolen. Id. at 846-48. In that case as well, there was evidence of possession of stolen property and implausible and conflicting stories concerning the defendant' s acquis ition of the property and concerning his whereabouts at critica l times. Id. at 846-47. We stated that while "the evidence was clearl y sufficient

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to support a conviction for theft of property or theft by receiving, ... it was not [constitutionally] sufficient to perm it a legal inference" that the defendant was guilty of being inside the school from which the propert y was taken. Id. at 847.
In this case, the Supreme Court of Arkansas concluded that Mr. Hill's guilt was more probab le than any other reasonable hypothesis supported by the evidence. See Hill v. State , 773 S.W.2d 424, 426 (Ark. 1989). But, wit h respect, this conclusion provides an answer to the wrong question

. The question is not whether under the evidence Mr. Hill's guilt was more probab le than any other reasonable hypothesis, but whether under th e evidence, viewed in a light most favorable to the verdict, there was some other hypothesis that was reasonable. If there was, the defendant must be acqu itted. Mr. Justice Newbern of the Arkansas Supreme Court in hi s dissent identified a number of hypotheses inconsistent with guilt that wer e both reasonable and c onsistent with the evidence, even when that evidence is viewed in a light most favorable to the verdict. Id. at 427. I note that Mr. Hill was never placed at the scene of the crime, but even if he had been , it is entirely possible that he simply stole the car and th e ot her goods that were found in his possession without in any wa y participating in the murder. Since this is a reasonable hypothesis, and since I believe that a rational juror would have had to entertain it, Mr. Hill's conviction cannot stand.

Th is conclusion, moreover, seems to me required by the fact tha t Mr. Hill was charged with felony murder, that is , with killing a person in the course of the commission of a robbery. Even if Mr. Hill kille d Mr. Sturdivant, there is no proof whatever that Mr. Hill did not kill Mr. Sturdivant with delib erate premeditation and then decide to make off with his goods as an afterthought. This possibility is as likely as his having killed Mr . Sturdivant in the course of a robbery and by itself entitle s Mr. Hill, as a consti tutional matter, to an acquittal. "Under our system of

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criminal justice even a thief is entitled to complain that he has bee n unconstitutionallyconvicted and imprisoned as a burglar." Jackson , 443 U.S. at 323-24. I agree with Mr. Justice Newbern that "Johnny Lee Hill, or whatever his name may be, is guilty of someth ing, but the state has not proven him guilty of murder." Hill v. State , 773 S.W.2d at 426.
I respectfully disagree with the cou rt's suggestion that my proposed disposition of this case would conflict with the principles laid down in Ja ckson , 443 U.S. at 326. I presume, of course, as the Court did i n Jackson , that the jury is entitled to resolve any "conflicts in favor of the prosecution." Id. What I rely on here as the predicate for my anal ysis is an assumption that the jury believed all of the evidenc e favora ble to the government, indulged in all reasonable inferences tha t coul d have been drawn from that evidence, and disbelieved all of th e evidence favorable to the defendant. That is what I mean when I say that I have viewed the evi dence in a light most favorable to the verdict. The
cases t hat the court relies on to support its judgment are all cases i n which there were conf licts in the testimony that the jury, of course, was entitled to resolve. I admit the applicability to this case of th e principle announced in those cases, but I suggest that its application doe s not lead to the conclusion that the court reaches.

I wou ld therefore grant Mr. Hill's petition for relief and reman d this case to the district court with instruction s to release Mr. Hill from custody.

A true copy.

Attest:

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