*

 The Honorable Sandra Day O’Connor, Associate Justice of the United States

Supreme Court, (Ret.), sitting by designation, pursuant to 28 U.S.C. § 294(a).

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

________________

Nos. 06-2519/2630

________________

Broderick Collier,

Appellant/Cross-Appellee,

v.

Larry Norris, Director, Arkansas

Department of Corrections,

Cross-Appellant/Appellee.

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*

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Appeal from the United States

District Court for the 

Eastern District of Arkansas.

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Submitted: February 12, 2007

 Filed: April 16, 2007

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Before LOKEN, Chief Judge, O’CONNOR*

, Associate Justice (Ret.) and

GRUENDER, Circuit Judge. 

________________

GRUENDER, Circuit Judge.

Broderick Collier was convicted in Arkansas state court of first-degree murder

and sentenced to 44 years’ imprisonment. The Arkansas Court of Appeals affirmed

the conviction. After the Arkansas Supreme Court denied post-conviction relief,
1

The Honorable J. Leon Holmes, Chief Judge, United States District Court for

the Eastern District of Arkansas.

-2-

Collier filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The

district court1

 denied habeas relief but granted a certificate of appealability. Collier

now appeals the denial of the writ, and we affirm. 

I. BACKGROUND

In July 1996, Adam Wilstead was driving past 2205 Walker Street in Little

Rock, Arkansas, when shots were fired into his car. He subsequently died from

shotgun wounds to the head and neck. Dixie Griffin told investigators that Keon

Neeley had fired a shotgun and Collier had fired a pistol at Wilstead’s car. Collier

was charged with first-degree murder as an accomplice; Neeley was never charged.

A. The Trial Proceedings

Dixie Griffin was the only witness at trial who testified to seeing Collier and

Neeley commit the murder. Dixie Griffin lived at 2205 Walker Street with her

brother, Duke Hinerman, Lisa Pike Collier (“Lisa Pike”), who was then engaged and

later married to Collier, as well as a man named Charles Bell. Dixie Griffin testified

that on the night of the murder a car repeatedly drove by the Walker Street house with

its headlights turned off. Because her roommate, Lisa Pike, had a verbal altercation

with someone one or two weeks before this incident, the women feared that the car

was planning a drive-by shooting. Eventually Lisa Pike called Collier, who

subsequently arrived at the house with Neeley in Lisa Pike’s maroon Oldsmobile.

Neeley carried a sawed-off shotgun with duct tape on it that Dixie Griffin recognized

as Collier’s, and Collier had a pistol. Collier, Neeley and Lisa Pike then went outside,

and Dixie Griffin stayed inside by the front door of the house. From her view, Dixie

Griffin saw the car drive by again and watched as Neeley and Collier began shooting
2

The record is unclear as to what happened to the pistol.

-3-

at the car and continued shooting as they chased the car down the street. They shot

at the car until it hit a ditch and wrecked. Dixie Griffin then called the police. The

police eventually took Dixie Griffin, Lisa Pike, Collier and Bell to the police station.

All four denied knowing who shot Wilstead. Dixie Griffin testified at trial that she

did not tell the police that Collier was one of the shooters because Lisa Pike was her

best friend and she feared reproach from Collier. Thirteen months later she came

forward, told the police what she had seen on the night of the murder and implicated

Collier. Dixie Griffin testified that she decided to come forward because she had

begun to feel sorry for Wilstead’s mother. 

Bell testified that he lived and was present at 2205 Walker Street at the time of

the Wilstead murder. He testified that after the car drove by a few times Lisa Pike

went into her room where there was a telephone. Shortly after she came out of her

room, Collier and another man arrived. A few minutes later, Collier, the man he

arrived with and Lisa Pike went outside. Bell was in the kitchen when he heard

gunshots. Shortly after the gunshots ceased, Collier and Lisa Pike came back inside

the house. Dixie Griffin then called the police. Bell admitted that he lied to the police

that night when he told them that “he didn’t know of anyone from 2205 Walker Street

that did any shooting.” 

Hinerman’s testimony revealed that he arrived home from work after the

murder and while the police were on the scene conducting their investigation. As Lisa

Pike was being escorted out by the police, she whispered into Hinerman’s ear to “get

the gun.” From this, he understood she meant Collier’s duct-taped 12-gauge shotgun,

which Hinerman then retrieved from the maroon Oldsmobile and hid in the crawlspace

underneath the house.2

 Hinerman was not interviewed on the night of the murder.

The following day, Collier asked Hinerman where the shotgun was hidden. After

Hinerman told him where to find it, Collier retrieved the gun and expressed his
-4-

appreciation to Hinerman. It was not until seven months later that Hinerman first told

the police what he knew about the Wilstead murder and his conversation with Collier

the day after it. Hinerman testified that he decided to come forward after he had been

a victim of a shooting himself and began to feel that “anybody that wants to carry

around guns and shoot at people or shoot people needs to be taken off the streets.”

The remaining state lay witnesses included Henry Baker, Otis Griffin and

Rodney Blake. Baker was in the backseat of the car driven by Wilstead at the time of

the murder. His testimony confirmed that on the night of the murder they drove by

2205 Walker Street more than once and that Wilstead turned off the headlights as they

approached the house. Baker heard shots from both a handgun and shotgun and felt

the impact of shattered glass but did not see who had fired the shots. He recalled

seeing a burgundy or maroon car that he identified as either a Buick or an Oldsmobile.

Otis Griffin, Dixie Griffin’s husband, was not at 2205 Walker Street on the night of

the murder, but he testified that he later had a conversation with Collier during which

Collier confessed to Wilstead’s murder. Blake, a neighbor who lived at 2301 Walker

Street, testified to hearing shots fired from both a handgun and a shotgun at the time

of the murder. Blake stated the shots got “louder and louder” as they got “closer and

closer” to his house. In addition to the lay witnesses, the state presented testimony

from forensic experts that established Wilstead’s car was punctured by shotgun

pellets, that Wilstead died from shotgun wounds and that shotgun shells and waddings

were found at the crime scene. The forensic evidence also established that the shells

found on Walker Street were all fired from the same shotgun and that the waddings

found on the street and in Wilstead’s car were all from Remington-Peters 12-gauge

shotgun shells.

After the trial in the Circuit Court of Pulaski County, the jury convicted Collier

of first-degree murder, and the Arkansas Court of Appeals affirmed. Collier v. State,

No. CACR00-348, 2001 WL 196953 (Ark. Ct. App. Feb. 28, 2001). Collier did not

appeal to the Arkansas Supreme Court. 
3

See Brady v. Maryland, 373 U.S. 83 (1963). The Rule 37 petition also

presented an ineffective assistance of counsel claim that was subsequently abandoned.

-5-

B. The Post-Conviction Proceedings

Collier timely filed a petition for post-conviction relief in the circuit court under

Rule 37 of the Arkansas Rules of Criminal Procedure (“Rule 37 petition”), arguing

that the State had suppressed exculpatory evidence in violation of Brady.

3

 During the

course of these proceedings, a hearing was held that adduced the following evidence.

Hinerman testified that Detective Eric Knowles told him that he would receive

$10,000 from Wilstead’s family for information leading to the conviction of the

person or persons who murdered their son. He also testified that the day after he gave

his first statement to Detective Knowles he received $300 from Sergeant Terry

Hastings. Hinerman confirmed that he did not receive any payment or any promise

of any payment from the prosecuting attorney’s office. Hinerman testified that the

state prosecutor on Collier’s case, Marianne Wright, explicitly told him that there was

no reward, after which he “gave up on the idea pretty much.” Finally, Hinerman

testified that the remainder of his testimony at Collier’s trial was truthful and accurate.

Wright testified that the first time she knew of any payment to Hinerman and

any allegation of a promised reward was when she read Hinerman’s affidavit during

Collier’s post-conviction proceedings. Detective Knowles testified that the only time

a reward was mentioned was when Hinerman asked him about the Arkansas Crime

Stoppers program, which pays money for truthful information that leads to solving a

crime. Detective Knowles put Hinerman in contact with Sergeant Hastings of the

Crime Stoppers program. Sergeant Hastings testified that he did not remember

Hinerman; he could neither confirm nor deny that he arranged for Hinerman to be paid

$300; he had no knowledge of any reward fund that was established for the homicide

of Wilstead; he did not make any representation to Hinerman or anyone else that he
4

 A writ of error coram nobis is available under Arkansas law to address claims

of insanity at the time of trial, a coerced guilty plea, material evidence withheld by the

prosecutor or a third-party confession to the crime during the time between conviction

and appeal. Pitts v. State, 986 S.W.2d 407, 409 (1999) (per curiam). The writ is

appropriate only when the claim was not addressed or could not have been addressed

at trial because it was somehow hidden or unknown and would have prevented the

rendition of the judgment had it been known to the trial court. Echols v. State, 201

S.W.3d 890, 894 (2005). “[It] is an extraordinarily rare remedy, more known for its

denial than its approval.” State v. Larimore, 17 S.W.3d 87, 92 (2000). 

-6-

would receive a reward; and, if an officer or a detective were to promise to pay a

witness in a case, it would not be consistent with department policy. 

Bell and Otis Griffin did not testify at the hearing but submitted affidavits. Bell

recanted his trial testimony and stated that although he heard shots fired on the night

of the murder, he did not know who fired them and he did not see Collier that night

until after the police had arrived. Otis Griffin also recanted his trial testimony that

Collier had confessed to his involvement in the crime. Both Bell and Otis Griffin

stated in their affidavits that they lied at trial because they believed they would go to

jail if they did not testify on behalf of the state.

While the Rule 37 petition was pending, Collier petitioned the Arkansas

Supreme Court to reinvest the circuit court with jurisdiction to consider a petition for

writ of error coram nobis (“coram nobis petition”),4

 raising the same alleged Brady

violation that he raised in his Rule 37 petition. Collier attached to his coram nobis

petition the affidavits from Bell and Otis Griffin. He also submitted an affidavit from

Hinerman, which proffered essentially the same statements as those he made at the

Rule 37 hearing. The Arkansas Supreme Court denied the coram nobis petition,

holding that Collier failed to show how he was prejudiced from the prosecution’s

alleged suppression of evidence that Hinerman received $300 from Sergeant Hastings

and was promised an additional $10,000 by Detective Knowles in exchange for his

testimony at Collier’s trial (collectively, “the Hinerman impeachment evidence”). It
-7-

is undisputed that the Arkansas Supreme Court made two erroneous factual statements

in its opinion denying Collier’s coram nobis petition: (1) it attributed portions of Dixie

Griffin’s testimony to Lisa Pike, who did not testify; and (2) it referred to “the

testimony of other witnesses who saw the shooting,” whereas only one witness, Dixie

Griffin, testified that she actually saw the men who shot at Wilstead’s car.

Shortly after the Arkansas Supreme Court denied coram nobis relief, the circuit

court denied Collier’s Rule 37 petition, holding that he failed to demonstrate prejudice

from the suppression of the Hinerman impeachment evidence. Collier filed a motion

to reconsider, arguing that the circuit court mischaracterized the evidence presented

at trial. In response to the motion to reconsider, the circuit court entered an amended

order once again denying the Rule 37 petition. The amended order also held that the

Arkansas Supreme Court’s coram nobis decision established the law of the case with

respect to the Brady claim, despite its two erroneous factual findings. Collier filed

notices of appeal from the original and amended orders. 

On appeal from the denial of his Rule 37 petition, Collier limited his argument

to the issue of whether the circuit court erred in its amended order by applying the

law-of-the-case doctrine. Instead of reaching the merits of the appeal, the Arkansas

Supreme Court held that the circuit court had lacked jurisdiction over the motion for

reconsideration, rendering its amended order—the only one addressed on appeal by

Collier—void. Noting that it does not have jurisdiction to review void orders, the

Arkansas Supreme Court dismissed Collier’s appeal. See Collier v. State, No. CR

02-780, 2004 WL 584903, at *2 (Ark. Mar. 25, 2004) (per curiam). 

Collier subsequently filed a petition for writ of habeas corpus in federal district

court under 28 U.S.C. § 2254. Collier’s petition requested that the district court

review the Arkansas Supreme Court’s decisions with respect to his coram nobis and

Rule 37 petitions. Respondent Larry Norris argued that Collier’s habeas petition was

time-barred under 28 U.S.C. § 2244(d). Alternatively, Norris argued that the
-8-

Arkansas Supreme Court’s adjudication of Collier’s coram nobis petition did not

warrant relief under § 2254 and that Collier procedurally defaulted the claim arising

from the Arkansas Supreme Court’s denial of his Rule 37 petition.

The district court held that Collier’s habeas petition was not time-barred but

denied relief on the basis that the Arkansas Supreme Court’s coram nobis decision

was not contrary to, or an unreasonable application of, federal law and was not based

on an unreasonable determination of facts in light of the entire record. As to the Rule

37 petition, the district court held that Collier procedurally defaulted this claim and

did not demonstrate cause and prejudice to excuse the default. Collier appeals the

denial of the writ, and Norris cross-appeals the district court’s ruling that Collier’s

habeas petition is not time-barred. 

II. DISCUSSION

A. Coram Nobis Petition

“Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA), when a state prisoner files a petition for writ of habeas corpus in federal

court we are directed to undertake only a limited and deferential review of underlying

state court decisions.” Morales v. Ault, 476 F.3d 545, 549 (8th Cir. 2007) (internal

quotation omitted). As such, an application for habeas corpus “shall not be granted

with respect to any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim--

(1) 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; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.”
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28 U.S.C. § 2254(d). Under subsection (d)(1), “[a] decision is ‘contrary to’ federal

law . . . if a state court has arrived ‘at a conclusion opposite to that reached by [the

Supreme Court] on a question of law’ or if it ‘confront[ed] facts that are materially

indistinguishable from a relevant Supreme Court precedent’ but arrived at an opposite

result.” Davis v. Norris, 423 F.3d 868, 874 (8th Cir. 2005) (quoting Williams v.

Taylor, 529 U.S. 362, 405 (2000)). “A state court unreasonably applies clearly

established federal law when it ‘identifies the correct governing legal principle from

[the Supreme] Court’s decisions but unreasonably applies that principle to the facts

of the prisoner’s case.’” Id. (quoting Williams, 529 U.S. at 413). It is not enough for

us to conclude that, in our independent judgment, we would have applied federal law

differently from the state court; the state court’s application must have been

objectively unreasonable. Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir. 2005)

(citing Williams, 529 U.S. at 411). 

Collier claims that the state prosecutor suppressed the Hinerman impeachment

evidence in violation of the due process clause of the Fourteenth Amendment. See

Brady, 373 U.S. at 86; see also United States v. Bagley, 473 U.S. 667, 676 (1985)

(recognizing that Brady evidence includes impeachment evidence). In order to

succeed on this claim, Collier must demonstrate that: (1) the prosecution suppressed

evidence; (2) the evidence was material and favorable to him; and (3) prejudice

ensued. United States v. Haskell, 468 F.3d 1064, 1075 (8th Cir. 2006). Because the

State did not challenge that Collier satisfied the first and second prongs in the state

court proceedings, the only issue in this habeas proceeding is the state court

adjudication of whether Collier suffered prejudice as a result of the State’s failure to

disclose the Hinerman impeachment evidence.

Prejudice under Brady ensues “if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quotation omitted). A

reasonable probability that the result of the proceeding would have been different

“does not require demonstration by a preponderance that disclosure of the suppressed
-10-

evidence would have resulted ultimately in the defendant’s acquittal,” id. at 434, but

is satisfied when the suppression “undermines confidence in the outcome of the trial,”

id. (quotation omitted). With respect to prejudice, the Arkansas Supreme Court held:

Even if Duke Hinerman’s account of having been paid $300 and

promised a reward for his testimony is truthful, we cannot say that this

fact had it been known to the defense at trial would have produced a

different result in light of the testimony of other witnesses who saw the

shooting. 

Collier v. State, No. CACR 00-348, 2001 WL 1104764, at *2 (Ark. Sept. 20, 2001)

(per curiam). In his brief, Collier argues that the Hinerman impeachment evidence,

if disclosed, would have changed the outcome of the proceedings because Hinerman

was the State’s “main” and “only credible” witness. 

Collier does not specifically identify which subsection of 2254(d) he believes

entitles him to relief, but we conclude that neither entitle him to relief. We begin by

holding that the Arkansas Supreme Court’s decision was not “contrary to” clearly

established federal law under § 2254(d)(1). The Arkansas Supreme Court correctly

identified Brady as the clearly established law governing claims that the prosecution

failed to disclose exculpatory evidence. See Davis, 423 F.3d at 874. Collier does not

contend, and the record does not support an allegation, that the facts of his case are

“materially indistinguishable” from Brady or that the Arkansas Supreme Court

“arrived at a conclusion opposite to that reached by [the Supreme Court] on a question

of law.” Id. (internal quotation omitted). Therefore, habeas relief is not warranted

under the “contrary to” provision of § 2254(d)(1). See id at 874-75. 

Before we address the “unreasonable application” provision of § 2254(d)(1),

we find it helpful to determine first whether the Arkansas Supreme Court decision was

based on an “unreasonable determination of facts” under subsection (d)(2). Collier

argues that the Arkansas Supreme Court made two unreasonable determinations of

fact. The first error was in attributing portions of Dixie Griffin’s testimony to Lisa
5

Subsection (e)(1) states: “[A] a determination of a factual issue made by a State

court shall be presumed to be correct. The applicant shall have the burden of rebutting

the presumption of correctness by clear and convincing evidence.” 21 U.S.C. §

2254(e)(1). 

6

We note that the Arkansas Supreme Court’s finding that “other witnesses . . .

saw the shooting” may not be erroneous, since Baker, as a passenger in Wilstead’s car,

did witness the shooting but was unable to identify the shooters. However, in light of

Norris’s concession to the error and our ultimate holding, we decline to entertain the

effect of this technicality.

-11-

Pike (Ms. Collier), who did not testify. The Arkansas Supreme Court stated: “Ms.

Collier testified that petitioner and a man named Keon arrived in a maroon

Oldsmobile. . . . Both Ms. Collier and Duke Hinerman had seen the shotgun before

in petitioner’s possession.” Collier, 2001 WL 1104764, at *1 (emphases added). The

second error was in referring to “the testimony of other witnesses who saw the

shooting,” id. at *2, when only one witness, Dixie Griffin, testified to seeing the

shooters. “[B]asic, primary, or historical facts” in the state court record are entitled

to a presumption of correctness under 28 U.S.C. § 2254(e)(1).5

 See Lupien v. Clarke,

403 F.3d 615, 620 (8th Cir. 2005) (citing Thompson v. Keohane, 516 U.S. 99, 110-11

(1995)). Because Norris concedes that both of these factual statements were

erroneous, we will assume that Collier has overcome the presumption of their

correctness by clear and convincing evidence.6

 See 28 U.S.C. § 2254(e)(1).

Notwithstanding this assumption, it does not necessarily follow that the state court

adjudication was based on an unreasonable determination of facts because subsection

(d)(2) instructs federal courts to evaluate the reasonableness of the state court decision

“in light of the evidence presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2).

We believe that the evidence in the state court record is more than sufficient to

support the Arkansas Supreme Court’s determination that Collier failed to show Brady

prejudice because the suppression of the Hinerman impeachment evidence did not

create a “reasonable probability that . . . the result of the proceeding would have been
7

Although Otis Griffin recanted this part of his testimony at the Rule 37

hearing, the Arkansas Supreme Court denied Collier coram nobis relief based on Otis

Griffin’s affidavit because of the general rule that “a writ of error coram nobis will not

lie for recanted testimony.” Collier, 2001 WL 1104764, at *2 (citing Taylor v. State,

799 S.W.2d 519 (Ark. 1990); Smith v. State, 140 S.W.2d 675 (Ark. 1940)). Federal

habeas relief on this basis is therefore barred by the independent and adequate state

grounds doctrine. See generally Coleman v. Thompson, 501 U.S. 722, 729-35 (1991)

-12-

different.” Kyles, 514 U.S. at 433 (quotation omitted). At trial, Dixie Griffin testified

that Lisa Pike summoned Collier to the house, where Collier arrived with Neeley in

a maroon Oldsmobile. She testified that Neeley had Collier’s duct-taped sawed-off

shotgun and that Collier had a handgun. According to Dixie Griffin, the two men

began shooting at Wilstead’s car as it drove by the house, ran after the car and

continued shooting at it until it crashed. Although Dixie Griffin was the only witness

who identified the shooters, her testimony was corroborated by other witnesses and

by the forensic evidence. First, Blake, a neighbor, and Baker, a passenger in

Wilstead’s car, both testified that they heard shots fired from a shotgun and a

handgun, corroborating Dixie Griffin’s testimony that the two different weapons were

used. Second, Blake testified further that the sounds got “louder and louder” as they

got “closer and closer” to his house, corroborating Dixie Griffin’s testimony that

Collier and Neeley ran down the street after the car while shooting at it. Third, the

forensic evidence corroborated Dixie Griffin’s testimony that Neeley fired the shotgun

from the street at Wilstead’s car. Barbara Polite, the state crime scene specialist,

testified that she recovered spent shotgun shells and waddings from the street and

spent waddings from the inside of Wilstead’s vehicle. Polite testified that the

waddings were all from Remington-Peters 12-gauge shotgun shells. Ronald

Andrejack, a tool marks examiner from the state crime laboratory, testified that the

spent shells were all fired from the same shotgun. The jury heard testimony that

Collier’s shotgun was indeed a 12-gauge. Doctor William Sturner testified that

Wilstead died from shotgun wounds to the head and neck. Finally, the jury heard

testimony from Otis Griffin that Collier confessed to the murder.7

 
(explaining that the independent and adequate state grounds “doctrine applies to bar

federal habeas when a state court declined to address a prisoner’s federal claims

because the prisoner had failed to meet a state procedural requirement”). We see no

reason to ignore Otis Griffin’s original trial testimony at this stage of the proceedings,

but we conclude that its absence would not affect our ultimate conclusion that

confidence in the outcome of the trial has not been undermined. See Kyles, 514 U.S.

at 434 (quotation omitted).

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We believe that the evidence in the state court record supports the Arkansas

Supreme Court’s reasonable determination that Collier failed to establish that the

suppression of the Hinerman impeachment evidence “undermine[d] confidence in the

outcome of the trial.” Kyles, 514 U.S. at 434 (quotation omitted). Therefore, because

Collier has failed to demonstrate that the adjudication of his Brady claim “resulted in

a decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceedings,” habeas relief is not warranted

under § 2254(d)(2).

Having determined that the state court adjudication was based on a reasonable

determination of the facts, we now return to the question of whether the Arkansas

Supreme Court unreasonably applied Brady to those facts under § 2254(d)(1). See

Williams, 529 U.S. at 413. The Arkansas Supreme Court correctly identified the issue

as arising under the prejudice prong of Brady and focused on whether Collier had

established “a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” Collier, 2001 WL

1104764, at *2 (quotation omitted). It then concluded that had the Hinerman

impeachment evidence been presented at trial, “we cannot say that this fact . . . would

have produced a different result.” Id. It is not clear whether, in reaching this

conclusion, the Arkansas Supreme Court discredited Hinerman’s testimony entirely,

or only partially. We conclude that it was a reasonable application of Brady in either

event. First, the Supreme Court cases interpreting Brady prejudice have endorsed

both approaches. E.g., Strickler v. Green, 527 U.S. 263, 296 (1999) (“petitioner has
-14-

not convinced us that there is a reasonable probability that the jury would have

returned a different verdict if her testimony had been either severely impeached or

excluded entirely”) (emphases added); Kyles, 514 U.S. at 451 (“In assessing the

significance of the evidence withheld, one must of course bear in mind that not every

item of the State’s case would have been directly undercut if the Brady evidence had

been disclosed.”). Second, as shown by our earlier recitation of the evidence, ante at

12-13, even completely discrediting Hinerman’s testimony would not “put the whole

case in such a different light as to undermine confidence in the verdict.” Strickler, 527

U.S. at 290 (internal quotation omitted). Accordingly, we hold that it was objectively

reasonable for the Arkansas Supreme Court to conclude from its application of Brady

that disclosure of the Hinerman impeachment evidence would not have produced a

different result at trial. See Lyons, 403 F.3d at 592. Therefore, habeas relief is not

warranted under the “unreasonable application of[ ] clearly established Federal law”

provision of § 2254(d)(1).

In sum, even assuming that the Arkansas Supreme Court made two erroneous

factual statements under § 2254(e)(1), we conclude that its decision was based on a

reasonable determination of the facts under § 2254(d)(2) and was not contrary to, or

an unreasonable application of, clearly established federal law under § 2254(d)(1).

See Rice v. Collins, 546 U.S. 333, ---, 126 S. Ct. 969, 976 (2006) (commenting on the

interplay between sections 2254(d)(1) and (d)(2) and noting that “[t]he question

whether a state court errs in determining the facts is a different question from whether

it errs in applying the law”) Thus, we affirm the district court’s denial of habeas relief

for Collier’s claim regarding the coram nobis decision. 

B. Rule 37 Petition

Collier’s Rule 37 petition raised the same alleged Brady violation. The circuit

court denied the petition, and Collier subsequently filed a motion for reconsideration.

The circuit court entered an amended order, again denying Collier’s Rule 37 petition.
8

Rule 37.2(d) provides that “[t]he decision of the court in any proceeding under

this rule shall be final when the judgment is rendered. No petition for rehearing shall

be considered.” Ark. R. Crim. Pro. 37.2(d) (emphasis added).

-15-

Though he filed notices of appeal from both orders, Collier only addressed the

amended order in his opening brief to the Arkansas Supreme Court. Under Arkansas

law, he thereby waived any argument regarding the initial order. See City of Dover

v. Barton, 29 S.W.3d 698, 703-04 (Ark. 2000). His appeal of the amended order was

dismissed by the Arkansas Supreme Court on procedural grounds:

[A]ppellant requested [in his motion for reconsideration] that the circuit

court reverse itself, an act prohibited by Rule 37.2(d). Thus, the circuit

court’s amended order was void because it lacked jurisdiction to rehear

appellant’s petition. Consequently, this Court lacks jurisdiction to

entertain this appeal from the amended order, and we dismiss the appeal.

Collier v. State, CR 02-780, 2004 WL 584903, at *2 (Ark. Mar. 25, 2004).8

“This Court will not review a question of federal law decided by a state court

if the decision of that court rests on a state law ground that is independent of the

federal question and adequate to support the judgment.” Coleman, 501 U.S. at 729.

“This rule applies whether the state law ground is substantive or procedural.” Id.

“The doctrine applies to bar federal habeas when a state court declined to address a

prisoner’s federal claims because the prisoner had failed to meet a state procedural

requirement.” Id. at 729-30. “[A] state prisoner who fails to satisfy state procedural

requirements forfeits his right to present his federal claim through a federal habeas

corpus petition, unless he can meet strict cause and prejudice or actual innocence

standards.” Clemons v. Luebbers, 381 F.3d 744, 750 (8th Cir. 2004). Because Collier

does not attempt to satisfy the cause and prejudice or actual innocence standards and

because of his reliance on Matthews v. State, 975 S.W. 2d 836 (Ark. 1998) (per

curiam), we, like the district court, construe his argument as challenging whether the

state procedural rule on which his claim was disposed is an “adequate” state ground.
-16-

In Matthews, the petitioner appealed the denial of a claim of ineffective

assistance of counsel on which the circuit court had not specifically ruled in its order

denying Matthew’s claims for post-conviction relief. Id. at 836. Matthews failed to

request a ruling on his ineffective assistance of counsel claim from the circuit court.

See id. at 837. The Arkansas Supreme Court denied appellate review of the claim,

citing the general rule that when a circuit court denies post-conviction relief and does

not reach a specific issue, the burden is on the petitioner to obtain a ruling on that

issue in order to preserve it for appeal. Id. (citing Oliver v. State, 918 S.W.2d 690,

694 (Ark. 1996)). In a subsequent decision, the Arkansas Supreme Court rejected the

argument that seeking such a ruling is prohibited by Rule 37.2(d). Beshears v. State,

8 S.W.3d 32, 34 (Ark. 2000). Citing Matthews, the Arkansas Supreme Court held

“that a request that the trial court modify its order to include an omitted issue is not

a request for rehearing that is prohibited by Rule 37.2(d)” and denied Beshears

appellate review since he failed to obtain a ruling on the omitted issue. Id. 

Under this paradigm, Collier ostensibly argues that Rule 37.2(d) was not

“adequate” to bar the appeal of his motion for reconsideration because the motion was

simply his attempt to comport with the Matthews mandate and preserve for appeal his

allegation that the circuit court, in denying his petition, mischaracterized the evidence.

See Coleman, 501 U.S. at 729-30. Collier’s Brady claim was the sole ground on

which he petitioned for Rule 37 relief and, unlike in Matthews and Beshears, the

circuit court here expressly ruled on it. The six-page order concluded that Collier had

“not met his burden of proving that a Brady violation occurred.” Collier’s Brady

claim, including the evidence on which it was based, was therefore preserved for

appeal. As such, Collier’s “motion to reconsider,” requesting that the circuit court

“grant reconsideration; set aside it’s [sic] most recent order [and] grant Rule 37 relief”

did not fall under the Matthews and Beshears exception to the Rule 37.2(d)

prohibition of petitions for rehearing. Rather, it was expressly prohibited by the

language of Rule 37.2(d) (“No petition for rehearing shall be considered.”). See

McClendon v. State, 735 S.W.2d 701, 702 (Ark. 1987) (“Rule 37 explicitly states
9

Collier also argues that he did not procedurally default his Rule 37 claim

because he “fairly presented” it to the Arkansas Supreme Court. This attempt to

convert his habeas petition into “an end run around the limits of [federal court]

jurisdiction and a means to undermine the State’s interest in enforcing its laws” has

been recognized and rejected by the Supreme Court. Coleman, 501 U.S. at 731-32

(“In the absence of the independent and adequate state ground doctrine in federal

habeas, habeas petitioners would be able to avoid the exhaustion requirement by

defaulting their federal claims in state court.”). Therefore, even if Collier fairly

presented his claim to the Arkansas Supreme Court, our review is precluded unless he

can demonstrate cause and prejudice or actual innocence to excuse the procedural

default. See Clemons, 381 F.3d at 751-52.

-17-

there will be no rehearing.”). Furthermore, even if the Arkansas Supreme Court

erroneously applied Rule 37.2(d) to Collier’s petition, it would not make the rule

“inadequate.” See Clemons, 381 F.3d at 750 (“[F]ederal courts should not consider

whether the state court properly applied its default rule to the claim; federal courts do

not sit to correct a state court’s application of its ordinarily adequate procedural

rules.”). 

Therefore, we conclude that the Arkansas Supreme Court disposed of Collier’s

Rule 37 petition based on an independent and adequate state procedural rule. See

Coleman, 501 U.S. at 729-30. Because Collier made no attempt to show cause and

prejudice or actual innocence, he has forfeited his right to raise his federal claim in his

habeas petition. See Clemons, 381 F.3d at 750.9

 Having concluded that Collier’s

habeas petition was properly denied, we need not reach Norris’s argument on crossappeal that the petition was untimely.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s denial of the writ of

habeas corpus. 

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