United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1083
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Cardrick D. Flowers, *
*
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: September 25, 2009
Filed: November 10, 2009
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Before MELLOY, GRUENDER and BENTON, Circuit Judges.
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GRUENDER, Circuit Judge.
Cardrick D. Flowers was charged in Arkansas state court with aggravated
robbery, theft of property, and being a felon in possession of a firearm. A jury found
Flowers guilty of all three charges, and the trial court sentenced him to an aggregate
term of 480 months’ imprisonment. Flowers appealed his conviction, and the
Arkansas Court of Appeals affirmed. After the Arkansas Supreme Court denied post-
conviction relief, Flowers filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2254. The district court1 denied habeas relief but granted a certificate of
appealability on the issue of whether Flowers’s attorney provided ineffective
assistance of counsel by not moving to sever the felon-in-possession charge from the
aggravated robbery and theft of property charges. For the following reasons, we
affirm.
I. BACKGROUND
On March 5, 2003, Flowers, Vic Norman and Alvin Akins robbed a
McDonald’s restaurant in Pine Bluff, Arkansas. Flowers and Norman entered the
restaurant armed with handguns and forced the manager to give them approximately
$1200. Flowers and Norman left the restaurant with the stolen cash and jumped in a
waiting car driven by Akins. The police arrived on the scene and gave chase as the
getaway car pulled out of the parking lot. One of the robbers aimed a gun at the
police, and an officer opened fire in response. Flowers was struck in the back by one
of the bullets. The getaway car jumped a curb and got stuck in a muddy field.
Norman and Akins fled the vehicle on foot, and the police arrested them after a brief
chase. Flowers also fled the vehicle and was found a short time later hiding in a
nearby dumpster.
At trial, Flowers’s defense theory was that Norman and Akins robbed the
restaurant while he was asleep in the backseat of the car and that he woke up during
the police chase when he was shot in the back. The jury nonetheless convicted
Flowers of aggravated robbery, theft of property, and being a felon in possession of
a firearm. The Arkansas Court of Appeals affirmed.
1
The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas.
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Flowers filed a petition for post-conviction relief in the state circuit court under
Rule 37 of the Arkansas Rules of Criminal Procedure. Flowers claimed, among other
things, that his attorney was ineffective because he did not move to sever the felon-in-
possession charge from the other charges. Flowers argues that this decision
prejudiced him because it allowed the prosecution to introduce into evidence a
certified copy of his prior conviction for arson as a basis for proving that he was a
felon, a necessary element of the felon-in-possession charge.
At the Rule 37 evidentiary hearing, the circuit court heard testimony from
Horace Fikes, Flowers’s defense attorney. Fikes testified that he visited Flowers in
the county jail several times before trial and that Flowers was helpful in formulating
the trial strategy. Fikes did not specifically remember discussing the severance issue
with Flowers but testified that “I would think that . . . I would have advised” Flowers
about it. Fikes also testified that at the time of the trial he was aware that the public
defender’s office where he worked had a default policy of moving to sever felon-in-
possession charges from other felony charges. Fikes chose to disregard this policy
because Flowers was “going for broke” by denying all involvement in the robbery.
Fikes reasoned that if all the charges were tried together, Flowers would not have to
face the burden of a subsequent trial for the felon-in-possession charge and would
avoid giving the state two chances to convict him. Following the Rule 37 hearing, the
circuit court denied relief, and the Arkansas Supreme Court affirmed.
Flowers filed a petition for writ of habeas corpus in federal district court under
28 U.S.C. § 2254, challenging his conviction on several grounds. The district court
denied habeas relief but granted a certificate of appealability on the sole issue of
whether Fikes provided ineffective assistance by not moving to sever the felon-in-
possession charge from the other charges.
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II. DISCUSSION
In reviewing a district court’s denial of habeas relief, we review its findings of
fact for clear error and its conclusions of law de novo. Evans v. Luebbers, 371 F.3d
438, 441 (8th Cir. 2004). Like the district court, we review the underlying decision
of the Arkansas Supreme Court under 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110
Stat. 1214 (1996).
The Arkansas Supreme Court rejected Flowers’s ineffective assistance of
counsel claim on the merits. The court held that Fikes’s performance was not
ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668
(1984), because Fikes presented credible evidence that his decision not to seek a
severance of the felon-in-possession charge was a tactical decision supported by
reasonable professional judgment. Flowers v. State, No. CR 06-1065, 2007
WL1367581, at *2 (Ark. May 10, 2007) (unpublished per curiam).
Under AEDPA, our review of the Arkansas Supreme Court’s decision is
“limited and deferential.” See Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003).
We may not grant a writ of habeas corpus unless the state court 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).2
2
We may also grant habeas relief under AEDPA if the Arkansas Supreme Court
based its decision “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). Fikes’s
testimony at the Rule 37 hearing provided the factual basis for the state court decision,
and Flowers concedes in his reply brief that Fikes “told the truth” and that he does not
question Fikes’s “honesty or motives.” Appellant’s Reply Br. at 5. Accordingly, we
limit our review under AEDPA to the “contrary to” and “unreasonable application”
clauses of § 2254(d)(1).
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A state court violates the “contrary to” clause of § 2254(d)(1) if it “applies a
rule that contradicts the governing law set forth” by the Supreme Court or if the state
court “confronts a set of facts that are materially indistinguishable from a decision of
[the] Court and nevertheless arrives at a [different] result.” Williams v. Taylor, 529
U.S. 362, 406 (2000). The state correctly identified Strickland as the controlling
Supreme Court precedent applicable to this case. Flowers does not contend, nor does
the record establish, that the state court’s decision contradicts the governing law set
forth by the Supreme Court or that the facts of his case are materially
indistinguishable from Strickland. Therefore, we hold that the Arkansas Supreme
Court’s decision was not “contrary to” clearly established federal law under
§ 2254(d)(1).
A state court violates the “unreasonable application” clause of §2254(d)(1) if
it “identifies the correct governing legal rule from [the Supreme] Court’s cases but
unreasonably applies it to the facts of the particular state prisoner’s case.” Williams,
529 U.S. at 407. “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.” Collier v. Norris, 485
F.3d 415, 421 (8th Cir. 2007) (citing Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir.
2005)).
To prevail on an ineffective assistance claim under Strickland, a petitioner must
show that his attorney’s “performance was deficient” and that “the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at 687. In evaluating an
attorney’s performance, we “must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Id. at 689.
Moreover, “the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’” Id.
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
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Flowers argues that the Arkansas Supreme Court misapplied Strickland’s
performance prong because Fikes’s failure to seek a severance was not a strategic
decision. Flowers first argues that Fikes’s severance decision could not have been
strategic because Fikes misunderstood the legal ramifications of his decision. Fikes
indicated at a pre-trial conference that he thought the prosecutor could not present
evidence that Flowers was a convicted felon until sentencing. The trial judge
interjected, explaining that the prosecutor could introduce evidence of Flowers’s prior
conviction at the beginning of trial. Fikes nonetheless persisted in not seeking a
severance. Flowers argues that Fikes’s initial misunderstanding shows that the
severance decision was not a strategic decision and that he was prejudiced by the
introduction of his conviction into evidence at the beginning of trial. While Flowers
is correct that an attorney’s decision is not strategic if it is solely or primarily based
on a mistaken understanding of the law, see Williams, 529 U.S. at 395; Kimmelman
v. Morrison, 477 U.S. 365, 385 (1986), in this case the record clearly shows that Fikes
based his decision on Flowers’s general denial defense, not on any mistaken
understanding about the admissibility of Flowers’s conviction prior to trial.
Although Fikes did not specifically remember discussing the severance issue
with Flowers, Fikes testified that, as a matter of trial strategy, he decided not to sever
the felon-in-possession charge because Flowers was “going for broke.” In other
words, Fikes reasoned that if the jury believed that Flowers had not participated in the
robbery, it would also find him not guilty of being a felon in possession of a firearm.
As a result, Flowers would not have to face a subsequent trial on the felon-in-
possession charge. It is inappropriate for us to second-guess this strategic decision.
See Henderson v. Norris, 118 F.3d 1283, 1287 (8th Cir. 1997) (“We presume
attorneys provide effective assistance and will not second-guess strategic decisions or
exploit the benefits of hindsight.”).
Flowers also argues that Fikes’s decision to try the charges together could not
have been strategic because it violated the default policy of the public defender’s
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office where Fikes worked. We disagree. Strickland specifically cautions courts to
avoid bright-line rules based on “detailed guidelines,” such as the policy of the public
defender’s office in this case. See 466 U.S. at 688-89 (noting that a mandatory set of
rules “would interfere with the constitutionally protected independence of counsel and
restrict the wide latitude counsel must have in making tactical decisions”). Fikes was
aware of the default severance policy but exercised his professional judgment in
disregarding it based on Flowers’s general denial defense. See Evans, 371 F.3d at 445
(holding that “strategic and tactical decisions made by counsel, though they may
appear unwise in hindsight, cannot serve as the basis for an ineffective-assistance
claim under Strickland”).
The Arkansas Supreme Court held that Fikes did not violate Strickland’s
performance prong because his failure to seek a severance was a strategic decision.3
In so holding, the Arkansas Supreme Court did not violate the “unreasonable
application” clause of § 2254(d)(1).4
3
After deciding that Fikes’s performance was not deficient under Strickland’s
performance prong, the Arkansas Supreme Court properly declined to discuss the
prejudice prong. See Strickland, 466 U.S. at 697 (noting that “there is no reason for
a court deciding an ineffective assistance claim to . . . address both components of the
inquiry if the defendant makes an insufficient showing on one”).
4
Flowers also argues that the Arkansas Supreme Court’s decision was an
unreasonable application of Strickland because it was inconsistent with Burton v.
State, 238 S.W.3d 111 (Ark. 2006), and Price v. State, 66 S.W.3d 653 (Ark. 2002).
This argument lacks merit. AEDPA requires us to determine whether the Arkansas
Supreme 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.” See 28 U.S.C. § 2254(d)(1) (emphasis added). Whether the Arkansas
Supreme Court misapplied its own precedents is irrelevant to this analysis. See
Evenstad v. Carlson, 470 F.3d 777, 783 (8th Cir. 2006) (holding that § 2254(d)(1)
requires the petitioner “to point to the [United States] Supreme Court precedent he
thinks the Minnesota state courts acted contrary to or applied unreasonably” and that
“it is not enough for [the petitioner] to argue that Minnesota state courts misapplied
state law”).
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III. CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of Flowers’s
petition for writ of habeas corpus.
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