Ray Dansby v. Larry Norris

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 10-1990
___________

Ray Dansby, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Larry Norris, Director, Arkansas *
Department of Correction, *
*
Appellee. *
___________

Submitted: September 19, 2011
Filed: June 21, 2012
___________

Before RILEY, Chief Judge, COLLOTON, and GRUENDER, Circuit Judges.
___________

COLLOTON, Circuit Judge.

Ray Dansby was convicted by a jury in Arkansas on two counts of capital
murder and sentenced to death. The district court denied his application for a writ of
habeas corpus. Dansby appeals on five claims covered by a certificate of
appealability, and he asks this panel to expand the certificate with respect to four
other claims. We affirm in part, vacate the dismissal of Claims II and III in Dansby’s
second amended petition, deny the applications to expand the certificate, and remand
for further proceedings.
 I.

As summarized by the Arkansas Supreme Court, see Dansby v. State, 893
S.W.2d 331 (Ark. 1995), the evidence at trial showed that on the morning of August
24, 1992, Dansby arrived at the residence of Brenda Dansby, his ex-wife, in El
Dorado, Arkansas. Justin Dansby, their nine-year-old son, was in the living room
with Ronnie Kimble, Brenda’s boyfriend. Justin was home with a cold and watching
television, while Kimble was asleep on the couch. Brenda had left earlier to buy
orange juice for Justin, and when she returned home, she was confronted by Ray as
she pulled her car into her driveway. Ray twice ordered her to leave her car, and she
eventually complied. Justin testified at trial that he saw Ray hold Brenda “like a
shield” before shooting her in the arm and in the neck.

Greg Riggins, a neighbor from across the street, also offered an account of
Brenda’s death. According to his trial testimony, Riggins went to his front door after
hearing gunshots and witnessed Ray and Brenda struggling with a revolver. He then
saw Ray knock Brenda down, get the gun from her, and shoot two consecutive rounds
into her from two or three feet away. Brenda tried to rise, and Ray fired again,
although Riggins believed the shot missed. After pausing for five or six seconds, Ray
shot Brenda once more, and her body went flat.

Justin testified that Ray then entered the home and shot Kimble in the chest,
at which point Kimble got his own gun from beneath the couch. Kimble positioned
himself behind the couch and attempted to return fire, but his gun only produced
“clicking sounds.” Ray chased Kimble to the back of the house, and Justin heard
about five more shots. When Justin went to investigate, he saw his father standing
over Kimble, kicking him twice and then saying something Justin could not
remember. Justin accompanied his father outside the house, where he saw his mother,
motionless, with “blood all over her neck.” Ray and Justin walked down the road,
and after they separated, Justin called the police.

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 El Dorado police officers arrived at Brenda’s home to find her body outside.
They also found an injured Kimble on the floor of the back bedroom, along with a
jammed .38 automatic pistol lying under him. Kimble eventually died of his wounds
at a local hospital, but not before telling a police detective that Ray Dansby had shot
him.

Later the same day, Officer Mike Stegall came upon Ray Dansby, who said,
“I’m Ray Dansby, ya’ll are looking for me.” Stegall asked Dansby whether he was
carrying any guns, and Dansby answered that he had thrown them away. Stegall then
took Dansby to the police station, where Lieutenant Mike Hill advised him of his
rights. Dansby stated that he had left the scene with two guns, a .32 revolver and a
.38 revolver, but had disposed of them where the police would never find them. By
Dansby’s account of the day’s events, he had armed himself before traveling to
Brenda’s home because he knew both she and Kimble had handguns. Dansby
explained that he had entered the front door to Brenda’s home to find Kimble holding
a handgun in his right hand “pointed down,” and Dansby stated that after an argument
ensued, “I just pulled my gun and started shooting.” After making these statements,
Dansby submitted to a gunshot residue test and signed a written rights waiver form,
but he declined to provide a tape-recorded statement.

At trial, prosecutors presented several pieces of evidence beyond the
eyewitness testimony of Justin Dansby and Greg Riggins. The autopsy revealed
gunshot wounds near Brenda’s left ear and on her upper chest; similar wounds were
found on Kimble’s chest, right arm, and left upper back, behind his left ear, and
superficial wounds were present on his left flank. The jury also heard testimony that
Dansby was scheduled to appear in court on charges of second-degree assault and
contempt of court at 9:00 a.m. on the day of the murders, and that state prosecutors
brought these charges after Brenda had provided them with a signed affidavit alleging
that Dansby had assaulted her.

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 Also testifying for the prosecution was Dansby’s jail cellmate Larry McDuffie,
the boyfriend of Dansby’s half-sister. McDuffie said Dansby admitted in jail that he
had murdered Kimble and Brenda. According to McDuffie, Dansby told him he was
“just glad” that Brenda was dead. McDuffie also testified that in response to
Brenda’s pleas for mercy, Dansby answered, “well b---- you done f----- up cause I'm
not gonna leave you out here in these streets when I done killed this man inside.”

An Arkansas jury convicted Dansby of two counts of capital murder on June
11, 1993, and sentenced him to death by lethal injection on both counts. The
Arkansas Supreme Court affirmed the conviction and sentence. Dansby, 893 S.W.2d
at 331. Dansby petitioned for postconviction relief under Arkansas Rule of Criminal
Procedure 37, claiming ineffective assistance of counsel. The trial court denied the
petition, and the Arkansas Supreme Court affirmed. Dansby v. State, 84 S.W.3d 857
(Ark. 2002).

Pursuant to 28 U.S.C. § 2254, Dansby filed a petition for a writ of habeas
corpus in the district court. The district court denied relief on all claims and
dismissed the petition. The court then denied Dansby’s motion to alter or amend the
judgment. Dansby sought a certificate of appealability, and the district court granted
a certificate on three claims: that Dansby is actually innocent of the murders of
Brenda and Kimble, that improper testimony at trial about Dansby’s postarrest silence
violated his constitutional rights, and that the evidence offered at trial was insufficient
to establish premeditation and deliberation. An administrative panel of this court
expanded the certificate of appealability to include Dansby’s claims that the State
failed to disclose material, exculpatory evidence concerning witness Larry McDuffie,
and that the trial court impermissibly limited impeachment of McDuffie at trial in
violation of Dansby’s rights under the Confrontation Clause.

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 II.

A.

Dansby’s broadest claim (Claim I of the second amended petition) is that new
evidence discovered after trial shows that he is actually innocent of murder. On that
basis, he argues that the conviction and sentence violate his rights under the Eighth
Amendment. Dansby says the new evidence—including documents allegedly
withheld by the State and a statement in which prosecution witness McDuffie
purportedly recants his trial testimony—would allow him to impeach McDuffie’s
credibility and establish that Dansby acted in lawful self-defense when he killed
Brenda Dansby and Kimble.

The Supreme Court has not decided whether a persuasive demonstration of
actual innocence after trial would render unconstitutional a conviction and sentence
that is otherwise free of constitutional error. See House v. Bell, 547 U.S. 518, 554-55
(2006). The Court has established, however, that the threshold for any such claim,
if it were recognized, would be “extraordinarily high.” Herrera v. Collins, 506 U.S.
390, 417 (1993). The threshold, if it exists, would require “more convincing proof”
than the “gateway” standard that allows for consideration of otherwise defaulted
constitutional claims upon a showing of actual innocence. House, 547 U.S. at 555;
see Schlup v. Delo, 513 U.S. 298, 315 (1995). Thus, on a freestanding claim of actual
innocence, it is not sufficient that a petitioner shows even that it is “more likely than
not that no reasonable juror would have found petitioner guilty beyond a reasonable
doubt.” Id. at 327. The “extraordinarily high” threshold, if recognized, would be
even higher. House, 547 U.S. at 555.1

1
In Clayton v. Roper, 515 F.3d 784 (8th Cir. 2008), a panel of this court said
that because the habeas petitioner could not point to an independent constitutional
violation in his state criminal proceeding, the federal court was “without jurisdiction”
to consider his claim of actual innocence. We are unsure why the Clayton panel

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 In its order denying relief, the district court treated this claim as a challenge to
the sufficiency of the evidence. When Dansby argued in a motion to alter or amend
the judgment that the court misconstrued his claim, the court explained that if it had
reached a freestanding actual innocence claim on the merits, then the claim would
have failed. The court reasoned that the only evidence proffered in support of actual
innocence was impeachment evidence regarding prosecution witness McDuffie, and
that a jury could have believed McDuffie even with the new evidence. The court also
said that the new evidence, at most, might have established reasonable doubt, but it
could not show that no reasonable juror would have found Dansby guilty. There was
ample other evidence that negated Dansby’s claim of self-defense, the court observed,
and it would not have been unreasonable for a juror to reject Dansby’s defense even
without McDuffie’s testimony.

We, too, conclude that Dansby’s proffered evidence does not meet the
extraordinarily high threshold that might support relief based on a showing of actual
innocence. As the district court observed, much of the new evidence is designed to
undermine the credibility of prosecution witness McDuffie. Latter-day impeachment
evidence, however, “will seldom, if ever,” make a clear and convincing case that no
reasonable jury could believe the core of the witness’s account. Sawyer v. Whitley,
505 U.S. 333, 349 (1992). Here, moreover, we agree with the Arkansas Supreme
Court that there was substantial evidence apart from McDuffie’s testimony that
permitted a jury to infer that Dansby killed the victims in a premeditated and
deliberate manner. Dansby, 893 S.W.2d at 336. The alleged new evidence cited by
Dansby with regard to witnesses other than McDuffie, App. A16-A20, does not
compel a conclusion that Dansby acted in lawful self-defense. Some of these facts
might be disbelieved or discounted by a reasonable juror; others can be reconciled
reasonably with the prosecution’s theory of the case. Dansby’s submission of new

thought it lacked jurisdiction, so we follow the approach of Herrera, 506 U.S. at 417-
19, in addressing Dansby’s claim.

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evidence would not meet an extraordinarily high threshold for proof of innocence.
The district court thus did not err in rejecting this claim without a hearing.

B.

Dansby also contends that the evidence at trial was insufficient to show that he
murdered Brenda and Ronnie Kimble with premeditation and deliberation. This is
Claim XIV of the second amended petition. Dansby raised a challenge to the
sufficiency of evidence on direct appeal, and the Arkansas Supreme Court rejected
it. The Arkansas court said “[t]he test for determining the sufficiency of the evidence
is whether there is substantial evidence to support the verdict,” 893 S.W.2d at 335,
and ultimately concluded that the evidence of premeditation and deliberation was
“overwhelming.” Id. at 336. Where the state court has adjudicated a constitutional
claim on the merits, a petitioner must demonstrate that the state court’s decision was
“contrary to, or involved an unreasonable application of, clearly established Federal
law.” 28 U.S.C. § 2254(d)(1).

Dansby argues for the first time on appeal that § 2254(d) does not apply. He
contends that the Arkansas court did not adjudicate his constitutional claim on the
merits, but instead resolved the sufficiency-of-evidence contention on state-law
grounds only. He points out that the state court applied a “substantial evidence”
standard, which this court once said is “arguably different than the due-process
standard enunciated” in Jackson v. Virginia, 443 U.S. 307 (1979). See Nance v.
Norris, 392 F.3d 284, 289 (8th Cir. 2004). Jackson held that the Due Process Clause
forbids a conviction when “no rational trier of fact could have found proof of guilt
beyond a reasonable doubt.” 443 U.S. at 324.

We believe that Dansby’s constitutional claim was adjudicated on the merits,
and that the deferential standard of § 2254(d) applies. Unlike Nance v. Norris, where
the state court “specifically disclaim[ed] addressing constitutional arguments,” 392

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F.3d at 289, the Arkansas Supreme Court did no such thing in Dansby’s direct appeal.
In prior decisions, the Arkansas court has explained its view that the substantial-
evidence standard applied in Arkansas cases is consistent with Jackson:

The substantial-evidence standard, while not explicitly reciting the
standard from Jackson word for word, requires that evidence supporting
a conviction must compel reasonable minds to a conclusion, and force
or induce the mind to pass beyond suspicion or conjecture, and, thereby,
ensures that the evidence was convincing to a point that any rational
fact-finder could have found guilt beyond a reasonable doubt.

Williams v. State, 91 S.W.3d 54, 61 (Ark. 2002) (emphasis added) (internal citations
omitted). There is thus no reason to believe that the Arkansas Supreme Court in
Dansby’s direct appeal adjudicated only a state-law claim while leaving the
constitutional due process claim unaddressed. The court adjudicated the two claims
together.

Viewing the evidence in the light most favorable to the State, the state court
reasoned as follows:

Although the testimony is at variance among different witnesses as to
the exact sequence of events during the shootings, there was much said
as to the weapons used, and as to the nature, extent, and location of Ms.
Dansby’s and Mr. Kimble’s wounds. With reference to the shots fired
into Brenda, Dr. Peretti testified that he located gunshot wounds near the
left ear and upper chest of her body. Greg Riggins, an eye witness to
Brenda’s murder, testified as to Ray’s hesitation of several seconds
before he fired the final shot into Brenda’s head. In observance of the
wounds to Ronnie’s body, Dr. Peretti testified that Ronnie sustained
wounds to the left ear, chest, left upper back, and right arm, as well as
two superficial wounds to the left flank. Particularly, it was Dr. Peretti’s
opinion that the wound to Ronnie’s back occurred when he was
“probably bent over.” Ray’s son Justin, another eye witness, testified

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 that he watched as his father kicked Ronnie twice, and that he heard his
father say something after shooting him. In light of this testimony, the
jury could have easily inferred that Dansby fired multiple shots into both
victims in a premeditated and deliberated manner.

Dansby, 893 S.W.2d at 336. After considering Larry McDuffie’s testimony that
Dansby admitted to planning the murders, the court viewed the evidence as
“overwhelming.” Id.

We conclude that the decision of the Arkansas Supreme Court was not
contrary to, or an unreasonable application of, Jackson. It is not necessary for the
state court to cite the relevant Supreme Court precedent, see Early v. Packer, 537
U.S. 3, 8 (2002) (per curiam), so long as the decision satisfies the criteria of
§ 2254(d). The Arkansas court concluded that the evidence was “of sufficient force
and character to compel reasonable minds to reach a conclusion and pass beyond
suspicion and conjecture.” Dansby, 893 S.W.2d at 336. This was not an
unreasonable way for a state court to ensure that a rational trier of fact could have
found the requisite elements beyond a reasonable doubt. The evidence here surpassed
the constitutional threshold with room to spare. The district court properly rejected
Dansby’s due process claim based on sufficiency of the evidence.

C.

Dansby next appeals the district court’s denial of relief on his claim (Claim VI)
that improper testimony and comment on his postarrest silence violated his right to
due process under the Fourteenth Amendment. The claim arises from the following
testimony at trial by Lieutenant Mike Hill of the El Dorado Police Department.

COUNSEL FOR STATE: Did [Dansby] appear to understand his rights
as you verbally advised . . .

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WITNESS: Yes.

COUNSEL FOR STATE: . . . him of them?

WITNESS: Yes, he did.

COUNSEL FOR STATE: And did you have a conversation with him
about these events at all?

WITNESS: Yes, after I informed him, of course, that he had the right to
remain silent. Anything he said could be used against him in a court of
law, and that, you know, if he wanted a lawyer present during
questioning he could have one. And I asked him if he understood that at
any time, you know, that he didn’t wish to talk any longer he didn’t have
to.

I said or I asked him it’s very important that we find this gun. I
said anyone could pick this gun up. What did you do with it? At that
point he began to tell me that he left the scene with two guns, a .32 and
a .38, both revolvers. And that he threw them away where we would
never find ‘em and he wasn’t worried about anybody finding ‘em.

After obtaining the gunshot residue kit, I sat down at my desk and
again informed him of his rights. This time I read to him his rights from
the standard waiver form that we use which he again acknowledged that
he understood and signed the form.

COUNSEL FOR STATE: I’ll show you what’s been marked previously
as State’s Exhibit No. 2, and ask you if you can identify this, please
[handing to witness].

WITNESS: Yes, this is the form that I read to Ray Dansby that morning.
It’s noted here at the top 9:00 a.m., at the bottom 9:14 a.m. which would
have been the time that I read directly to him from the form and that he
signed it.

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 COUNSEL FOR STATE: Okay. And then at some point did he also
decline to talk?

WITNESS: Yes, at 9: . . .

COUNSEL FOR DEFENDANT: Objection.

WITNESS: . . . 21 a.m.

COUNSEL FOR DEFENDANT: Objection.

THE COURT: What’s your objection?

COUNSEL FOR DEFENDANT: May we approach?

Trial R. 803-04 (emphases added).

At a bench conference, Dansby’s counsel objected that it was impermissible for
Hill to refer to Dansby’s invocation of his right to remain silent. She moved for a
mistrial. The trial court did not hear Hill “say anything about anybody invoking
anything,” and denied the motion for mistrial. Id. at 805. The court directed the
prosecution to admonish Hill that he should not “make any reference or comment
about any rights being invoked or about the defendant refusing to answer questions.”
Id. at 808. And the court directed the prosecution to redact an advice-of-rights form
signed by Dansby to remove a notation about his invocation of the right to remain
silent. Id. at 808. The court then inquired whether Dansby wanted the court to
admonish the jury “just in case something slipped through,” but Dansby said through
counsel that he did not want an admonishment. Id. at 808-09.

On direct appeal, Dansby argued that Hill’s answer that “Yes,” Dansby did
decline to talk at some point during the interview, violated Dansby’s due process
rights as construed in Doyle v. Ohio, 426 U.S. 610 (1976). Doyle held that when an

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accused invokes his right to remain silent after receiving advice about his rights
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), the Constitution forbids the
prosecution to use the accused’s silence to impeach his testimony at a later trial. 426
U.S. at 619. The Court reasoned that the Miranda warnings carry an implicit
assurance that “silence will carry no penalty,” and that “it would be fundamentally
unfair and a deprivation of due process to allow the arrested person’s silence to be
used to impeach an explanation subsequently offered at trial.” Id. at 618.

The Arkansas Supreme Court rejected Dansby’s claim. The court concluded
that “the testimony elicited from Lieutenant Hill was not a comment on Dansby’s
right to remain silent; rather, it merely explained to the jury why there was not a taped
statement.” 893 S.W.2d at 340-41. Earlier in the trial, Mike Stegall, another police
officer who participated in Dansby’s interrogation, testified that “after [Dansby] had
given us his statement . . . Lieutenant Hill advised him that we needed to turn the tape
recorder on to record his statement. At which point Mr. Dansby invoked his rights
and stated that he didn’t want to say anything else without a lawyer.” Trial R. 676.
The Arkansas court evidently believed that Hill’s answer, like Stegall’s testimony,
explained why there was no recording of Dansby’s admissions, and that such
testimony did not violate Dansby’s due process rights.

Because the Arkansas Supreme Court resolved the Doyle claim on the merits,
Dansby is entitled to relief only if the state 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.” 28 U.S.C. § 2254(d)(1). The
district court concluded that he could not meet that standard. The court ruled
alternatively that any error was harmless.

Dansby contends that the Arkansas court’s decision was an unreasonable
application of Doyle and Wainwright v. Greenfield, 474 U.S. 284 (1986). Dansby
cites Greenfield’s holding that the prosecution could not use an accused’s post-

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Miranda warning silence to overcome a defendant’s plea of insanity, because the
implicit promise, breach, and consequent penalty is the same in that situation as when
the prosecution seeks to use silence to impeach the accused’s testimony at trial. 474
U.S. at 292. Dansby argues that the State impermissibly used his silence to rebut an
inference that Lieutentant Hill was fabricating Dansby’s unrecorded statement about
guns, and that the state court unreasonably applied Greenfield and Doyle by
permitting Hill’s testimony that Dansby invoked his right to remain silent.

This court has concluded that not every reference to an accused’s post-Miranda
warning silence violates due process. In Mathenia v. Delo, 975 F.2d 444 (8th Cir.
1992), a law enforcement officer testified that he advised an arrestee of his rights, but
that the arrestee did not make a statement at the time of his arrest. Other evidence
showed that the arrestee made a videotaped statement two weeks later. This court,
agreeing with the state court in that case, held that the officer’s testimony was
“‘merely preliminary to the admission into evidence of [the arrestee’s] video-taped
statement.’” Id. at 452 (quoting State v. Mathenia, 702 S.W.2d 840, 842 (Mo. 1986)).
Evidence that the accused did not make a statement at the time of arrest “merely
crystalized what was already suggested by the fact that appellant ultimately did make
a statement” at a later date. State v. Mathenia, 702 S.W.2d at 842; cf. Greer v. Miller,
483 U.S. 756, 763 (1987) (“[T]he holding of Doyle is that the Due Process Clause
bars the use for impeachment purposes of a defendant’s postarrest silence.”) (internal
quotation omitted).

The Supreme Court has not addressed a case like Mathenia. The line between
permissible references to postarrest silence for explanatory purposes and
impermissible breaches of the implied Miranda-warning promise, therefore, must
emerge from case-by-case applications of Doyle over a period of time. In the
meantime, state courts have some leeway to reach reasonable judgments in this area.
See Yarborough v. Alvarado, 541 U.S. 652, 663-64 (2004). It was not an
unreasonable application of Supreme Court precedent for the Arkansas court to

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conclude that Hill’s answer in this case was permissible. Officer Stegall already had
testified without objection that the officers attempted to tape record Dansby’s
statement, but that Dansby declined to say anything more. Hill’s testimony that
Dansby declined at some point to speak further could reasonably be viewed by a state
court merely as an explanation of the circumstances of Dansby’s interview, not as a
penalty for invoking the right to remain silent.2

D.

Dansby’s fourth point on appeal is that the district court erroneously rejected
his claim that the state trial court denied his right under the Sixth Amendment to
confront a witness against him, Larry McDuffie. This is Claim II in the second
amended petition.

After Dansby was arrested for murder, he was incarcerated with McDuffie in
Union County, Arkansas. McDuffie was in jail after his arrest on a pending felony
drug charge. Before trial, the prosecution moved in limine for an order to preclude
the defense from “mentioning or attempting to elicit testimony from any witness
regarding the reason for McDuffie’s incarceration, and pending charges or related
matters.” The trial court ruled that charges that had been filed in the past against
McDuffie that did not result in convictions “are clearly inadmissible and should not
be referred to because the witness may not be impeached in that manner.” Trial R.
636. The court provided that Dansby could inquire whether McDuffie had served as
a confidential informant for the El Dorado police department and whether he had
been paid by that agency for information in the past. Id. at 248.

2
It is unnecessary to consider the district court’s alternative ruling that any
Doyle error was harmless, but we note that Hill’s disputed answer is cumulative of
Officer Stegall’s testimony earlier in the trial that Dansby “invoked his rights and
stated that he didn’t want to say anything else without a lawyer.” Trial R. 676.

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 Dansby’s counsel sought additional leeway to elicit testimony designed to
show McDuffie’s bias. In a memorandum brief and at a pretrial hearing, counsel
asserted that McDuffie had a history of working as an informant for the State, that he
had been in and out of jail three or four times in recent months, that the State’s
treatment of previous criminal cases against him was inconsistent with its handling
of other cases, that he was not sanctioned for violating conditions of release, and that
evidence of these events would show McDuffie’s bias toward the State. Id. at 296-97,
631-32.

The court ordered that Dansby could inquire whether McDuffie had received
promises of leniency or guarantees of immunity, but could not present evidence about
“extrinsic matters which would call upon the jury to perform a feat of speculation or
conjecture in order to relate it to [the] alleged bias.” Id. at 637. The court ruled that
unless there was “direct evidence of an agreement of a promise of immunity or
something along that nature, . . . you’re in the realm of speculation and conjecture.”
Id. at 638. The oral ruling concluded as follows: “I’m going to grant the motion in
limine as to argument about and statement about these charges and then just allow the
matter to proceed as to these other areas.” Id. at 640. During cross-examination of
McDuffie, the court sustained an objection to defense counsel’s question about why
McDuffie was held in jail at the time of his statement to police about Dansby. Id. at
907. Before the case was submitted to the jury, Dansby made a proffer of evidence
that he sought to use to show McDuffie’s alleged bias. Id. at 969-89.

On direct appeal, Dansby challenged the trial court’s restrictions on cross-
examination, arguing in part that McDuffie’s “past dealing with law enforcement,
including all the surrounding circumstances of his past criminal record and the
penalties or rewards he received, were relevant to the jury’s consideration of the
testimony he would give at the trial.” Dansby urged, among other things, that the trial
court’s right to limit testimony “must be weighed against the defendant’s
confrontation rights and fair trial rights guaranteed by the Sixth Amendment.” The

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Arkansas Supreme Court concluded that Dansby’s proffered evidence was “not
relevant to show bias,” and upheld the trial court’s ruling. 893 S.W.2d at 339. The
state supreme court opined that Dansby had not proffered direct evidence of an
agreement or promise of immunity, and that a jury could not have made a connection
between McDuffie’s arrests and his alleged bias in the Dansby trial without
speculation or conjecture. Id.

In his federal habeas petition, Dansby challenged the trial court’s ruling as a
violation of his rights under the Sixth Amendment. Dansby complained that the
ruling unconstitutionally precluded him from cross-examining McDuffie and from
introducing extrinsic evidence to expose his bias and motive to fabricate. But cf.
Driver v. Landers, 444 F. App’x 934, 936 (9th Cir. 2011) (“The Supreme Court has
never held that the Confrontation Clause requires, in addition to cross-examination,
the admission of extrinsic evidence for the purpose of establishing a witness’s motive
to lie.”); Brown v. Ruane, 630 F.3d 62, 70-71 (1st Cir. 2011) (“[T]he Supreme Court’s
Confrontation Clause jurisprudence left a defendant’s right to introduce extrinsic
impeachment evidence as an open constitutional question.”).

The district court dismissed this claim on the ground that it was procedurally
defaulted. The court concluded that Dansby never presented a claim of federal
constitutional error in his direct appeal to the state supreme court, and that the claim
was therefore defaulted. See O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). The
district court noted that Dansby’s brief on direct appeal included one mention of the
Sixth Amendment, but reasoned that Dansby failed to assert that the trial court’s
ruling violated his federal constitutional rights.

Dansby argues that he fairly presented a federal constitutional argument to the
state supreme court, and we agree. To exhaust a claim properly in state court, a
prisoner must give the state courts a fair opportunity to act on the claim. Id. at 844.
A petitioner must present “‘both the factual and legal premises’” of his claims to the

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state courts in order to exhaust the claims properly. Flieger v. Delo, 16 F.3d 878, 884
(8th Cir. 1994) (quoting Cox v. Lockhart, 970 F.2d 448, 454 (8th Cir. 1992)). The
legal aspect of this requirement is satisfied if the petitioner’s argument to the state
court “refer[s] to a specific federal constitutional right, a particular constitutional
provision, a federal constitutional case, or a state case raising a pertinent federal
constitutional issue.” Abdullah v. Groose, 75 F.3d 408, 412 (8th Cir. 1996) (en banc)
(internal quotation omitted).

As noted, Dansby’s brief on direct appeal to the Arkansas Supreme Court
argued that limits on impeachment “must be weighed against the defendant’s
confrontation rights and fair trial rights guaranteed by the Sixth Amendment.” The
brief also cited Sullivan v. State, 798 S.W.2d 110 (Ark. Ct. App. 1990), for the
proposition that “[e]vidence of guarantees of immunity or promises of leniency or any
other considerations are a proper subject for cross examination.” As authority for this
same point, Sullivan cited Delaware v. Van Arsdall, 475 U.S. 673 (1986), a decision
that addressed the requirements of the federal Confrontation Clause. Id. at 679.
Dansby’s specific invocation of the Sixth Amendment and a state court decision that
applied the federal constitutional provision, followed by his assertion that the trial
court should have allowed him to attack McDuffie’s alleged bias and prejudice in
certain ways that the trial court prohibited, was sufficient to give the state supreme
court fair notice that he raised a federal constitutional claim in addition to a state-law
evidentiary argument. See Snell v. Lockhart, 14 F.3d 1289, 1298-99 (8th Cir. 1994).

For these reasons, we conclude that the district court erred in determining that
Dansby failed to present a Sixth Amendment claim to the Arkansas Supreme Court.
The parties have not addressed the extent to which the factual premises of Dansby’s
current federal claim were presented to the state supreme court, so we do not take up
that matter. We vacate the dismissal of Claim II and remand the claim to the district
court for further consideration.

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 E.

The final claim on which Dansby received a certificate of appealability
concerns alleged prosecutorial misconduct. This claim (Claim III) involves two
related allegations: (1) that the State violated the rule of Brady v. Maryland, 373 U.S.
83 (1963), by withholding material exculpatory evidence regarding the credibility of
Larry McDuffie, and (2) that the State violated Dansby’s right to due process by
knowingly permitting McDuffie to testify falsely. See Napue v. Illinois, 360 U.S. 264
(1959). Dansby contends that the prosecution concealed various unwritten
inducements it had offered McDuffie in exchange for his testimony. These
inducements included, he asserts, a favorable sentencing recommendation in
McDuffie’s pending felony drug case and nonenforcement of the conditions of his
probation. Dansby also relies on a statement purportedly signed by McDuffie in
2005, in which he recants his trial testimony and accuses the prosecution of directing
him to testify in a manner that he told the authorities was not true.

The district court dismissed Dansby’s Brady-Napue claim on the ground that
it was procedurally defaulted. In a motion to alter or amend the judgment, Dansby
complained that the court had raised the doctrine of procedural default sua sponte
without giving the parties appropriate notice and opportunity to be heard. The district
court denied the motion, stating that Eighth Circuit precedent authorized the court to
consider default sua sponte, and that “due to the intertwine of Petitioner’s Claims II
and III, there was adequate notice of the possibility of procedural default, if any
notice was due.” Claim II was the alleged violation of the Confrontation Clause.

A federal court has discretion to address procedural default in a habeas corpus
case despite the State’s failure to present the issue properly. King v. Kemna, 266 F.3d
816, 822 (8th Cir. 2001). The Supreme Court has held that before a court may
address sua sponte a different procedural defense—timeliness of a habeas petition—it
must give the parties fair notice and an opportunity to present their positions. See

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Wood v. Milyard, 132 S. Ct. 1826, 1834 (2012); Day v. McDonough, 547 U.S. 198,
210 (2006). The same requirements of notice and opportunity to be heard should
apply when a federal court chooses to address procedural default on its own initiative.
See Prieto v. Quarterman, 456 F.3d 511, 518 (5th Cir. 2006); Boyd v. Thompson, 147
F.3d 1124, 1128 (9th Cir. 1998). The district court did not give the parties such
notice and opportunity, but the State asserts that its response to Dansby’s second
amended petition adequately raised the issue of procedural default. We disagree.

The State responded to Claim III of the second amended petition, Dansby’s
claim based on Brady and Napue, as follows:

This issue was addressed to some degree in the first claim of both the
original habeas petition and the first amended habeas petition. The
arguments from the prior two responses are incorporated herein, as if
fully set forth. To the extent that it was not previously addressed, the
issue was correctly decided on the merits by the State Supreme Court.
The entire argument regarding issues decided correctly on the merits by
the state’s highest court, set out in claim I of this response, is
incorporated herein as if fully set forth.

Resp. to Second Am. Pet. for Writ of Habeas Corpus 5.

The first claim in the original petition and the first amended petition was that
the state trial court’s ruling on cross-examination of McDuffie violated the
Confrontation Clause. In response to the original petition, the State argued that
Dansby failed to cite any federal law or to assert constitutional error in state
court: “Claim number one was grounded solely in state law, and for that reason is
defaulted.” Resp. to Pet. for Writ of Habeas Corpus 5. In response to the
Confrontation Clause claim raised in the first amended petition, the State incorporated
its original response and reiterated that “[t]his issue was presented on state law
grounds only to the Arkansas Supreme Court.” Resp. to First Am. Pet. for Writ of
Habeas Corpus 1.

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 We do not understand how the State’s incorporation of these responses when
answering Dansby’s Brady-Napue claim gave notice of its position that the Brady-
Napue claim was procedurally defaulted. If the Brady-Napue claim was procedurally
defaulted, the default was not occasioned because Dansby argued only state law when
challenging the trial court’s limitation on cross-examination of McDuffie. Limitation
on cross-examination is an issue distinct from whether the prosecution withheld
material exculpatory evidence or knowingly presented false testimony. We conclude,
therefore, that the parties were not afforded adequate notice and opportunity to be
heard on the issue of procedural default, and the Brady-Napue claim must be
remanded for further consideration.

III.

In papers filed after this case was briefed, argued, and submitted, Dansby urges
this panel to expand the certificate of appealability to encompass four more claims.
The district court and an administrative panel of this court denied previous
applications on these claims, but Dansby contends that intervening court decisions
warrant reconsideration. This panel has authority to expand a certificate of
appealability, but we reexamine the action of a prior panel with caution. Watts v.
Norris, 356 F.3d 937, 941 (8th Cir. 2004). Having considered the issues raised in the
postargument motions, we deny the pending applications to expand the certificate.

A.

Dansby asks us to expand the certificate to encompass Claim XVIII, which
asserts that the jury arbitrarily refused to consider mitigating evidence in violation of
the Eighth Amendment. The district court concluded that the Arkansas Supreme
Court rejected this claim on the merits, and that the decision was not contrary to or
an unreasonable application of clearly established federal law. See 28 U.S.C.
§ 2254(d). We do not think the state supreme court adjudicated the Eighth

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Amendment claim, but Dansby has not made a substantial showing of a denial of a
constitutional right. See id. § 2253(c)(2).

Dansby’s contention is based on the jury’s decision to mark Option D on Form
2 of the jury forms. Form 2 was entitled “Mitigating Circumstances.” Option D read:
“There was no evidence of any mitigating circumstance.” Option A permitted the
jury to list mitigating circumstances that it unanimously found probably existed at the
time of the murder; Option B allowed the jury to list mitigating circumstances that
one or more members of the jury believed probably existed, but on which the jury was
not unanimous; and Option C applied if the jury found that “there was evidence of”
any of six enumerated mitigating circumstances, or any other that the jury might
identify, but the jury unanimously agreed that the circumstances did not exist at the
time of the murder.

Dansby directs our attention to Williams v. State, No. CR93-988, 2011 WL
6275536 (Ark. Dec. 15, 2011), where the Arkansas Supreme Court held that a jury’s
decision to check Option D of Form 2 in a capital case was reversible error, because
the defendant had presented “unrebutted evidence in mitigation.” Id. at *5. The court
reasoned that if the jury did not believe that the evidence presented “rose to the level
of mitigating evidence,” then it should have marked Option C of Form 2. Id. at *6.
Applying its precedent in Anderson v. State, 163 S.W.3d 333 (Ark. 2004), the court
held that the jury’s completion of Form 2 meant that “the jury eliminated from its
consideration all evidence presented of mitigating circumstances and sentenced
Williams to death solely based on the aggravating circumstance, which is reversible
error.” Williams, 2011 WL 6275536, at *6.

We note first that while Williams was decided after a panel of this court ruled
on Dansby’s application to expand the certificate of appealability, Williams
announced no new rule of law. Williams is an unpublished decision that applied the
Arkansas court’s 2004 decision in Anderson.

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 Reviewing the matter nonetheless, and assuming for the sake of analysis that
the claim is not procedurally defaulted, we conclude that Dansby has not made a
substantial showing of a denial of a constitutional right. See 28 U.S.C. § 2253(c);
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Williams does not cite federal law,
and neither does Anderson. It is not even clear that these state court decisions purport
to apply the Eighth Amendment rather than Arkansas law. Dansby suggests that the
action of the jury in this case violated the Eighth Amendment as construed in Mills
v. Maryland, 486 U.S. 367 (1988). Mills vacated the imposition of a death sentence
where the record showed “a substantial probability that reasonable jurors . . . well
may have thought they were precluded from considering any mitigating evidence
unless all 12 jurors agreed on the existence of a particular such circumstance.” Id. at
384; see also Commonwealth v. Chambers, 807 A.2d 872, 883 (Pa. 2002) (finding an
Eighth Amendment violation where “the instruction, when read as a whole, seems to
indicate to jurors that, once they have unanimously found an aggravating
circumstance, before they can weigh aggravating circumstances against any
mitigating circumstances, they must all find the existence of at least one mitigating
circumstance”).

In our view, there is not a substantial showing on this record of an Eighth
Amendment violation based on Mills. Option B on the verdict form in this case
plainly allowed the jury to list mitigating circumstances that any one juror found
probably existed, even when the jury did not find that circumstance unanimously.
The instructions and forms thus did not run afoul of the rule stated in Mills.

Dansby appears to propose a different Eighth Amendment rule—namely, that
if the defendant submits evidence that he claims to be mitigating, then a failure of the
jury to find that there was evidence of a mitigating circumstance violates the Eighth
Amendment. Dansby identifies no decision of the Supreme Court of the United
States that so holds, and the Arkansas Supreme Court actually rejects the proposition.
In Hill v. State, 962 S.W.2d 762 (Ark. 1998), the state supreme court held that “‘[a]

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jury is not required to find a mitigating circumstance just because the defendant puts
before the jury some evidence that could serve as the basis for finding the mitigating
circumstance.’” Id. at 764 (quoting Bowen v. State, 911 S.W.2d 555, 561 (Ark.
1995)). A jury, the court explained, may reject all or any part of a defendant’s
mitigating evidence. 962 S.W.2d at 764. In this very case, the state supreme court
cited Hill for that point in dismissing Dansby’s claim that his counsel was ineffective
at the penalty phase because the jury found no mitigating factors. 84 S.W.3d at 862-
63. Dansby’s jury was free to reject his proposed mitigating evidence. That the jury
marked Option D on the verdict form does not translate into a substantial showing of
a constitutional violation.

B.

Dansby next applies for an expanded certificate with respect to Claim V, his
argument that ineffective assistance of trial counsel violated his rights under the Sixth
Amendment. The district court dismissed the claim as procedurally defaulted because
Dansby did not present the alleged deficiencies in counsel’s performance to the
Arkansas courts. Dansby contends that intervening decisions of the Supreme Court
in Maples v. Thomas, 132 S. Ct. 912 (2012), and Martinez v. Ryan, 132 S. Ct. 1309
(2012), make the district court’s procedural ruling debatable. See Slack, 529 U.S. at
478. We address each new decision in turn.

1.

Maples held that a habeas petitioner showed cause that excused his procedural
default under state law when the attorney representing the petitioner abandoned him
without notice, and thereby occasioned the default. 132 S. Ct. at 922. In that
circumstance, the attorney had severed the principal-agent relationship and no longer
served as the client’s representative, so the attorney’s error was not attributable to the
petitioner client. Id. at 923.

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 Dansby contends that his postconviction attorney, David Talley, ceased to act
as his agent because he suffered from a conflict of interest. He highlights the
Supreme Court’s favorable citation in Maples of Jamison v. Lockhart, 975 F.2d 1377,
1380 (8th Cir. 1992), which held that attorney conduct may provide cause to excuse
a state procedural default where, as a result of a conflict of interest, a postconviction
attorney “ceased to be [the petitioner’s] agent.” See 132 S. Ct. at 923.

The factual basis for the assertion of a conflict of interest is as follows. At trial,
Dansby was represented by attorney Jan Thornton. Another attorney, Didi Sallings,
was then a staff attorney with the Arkansas Death Penalty Resource Center.
According to her testimony at the postconviction hearing, Sallings was not counsel
of record for Dansby, but she “helped on the Dansby case.” Postconviction R. 193.
At the time of Dansby’s postconviction proceeding, Sallings was the executive
director of the Arkansas Public Defender Commission.

When Dansby filed his petition for postconviction relief in state court in May
1995, he was represented by attorney Al Schay. In June 1995, Schay filed a motion
for leave to file an expanded amended petition. As an attachment to that amended
petition, Schay included an affidavit signed by Sallings. Sallings averred that she had
been assigned, as an attorney with the Resource Center, to provide assistance to
attorney Thornton in Dansby’s case. The Sallings affidavit listed multiple reasons
why Sallings believed that Thornton provided ineffective assistance at trial.

In August 1998, the postconviction court appointed attorney Talley, public
defender for Union County, Arkansas, to represent Dansby in postconviction
proceedings. Several months later, attorney Katherine Streett of the public defender’s
office wrote to the judge to express her “concern” that attorneys employed by the
Arkansas Public Defender Commission “may be unable to represent Mr. Dansby” due
to a conflict. Streett recounted that Sallings was then the executive director of the
commission and the “titular boss” of attorneys Streett and Talley. Streett’s letter

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expressed concern that because Sallings provided assistance to Thornton before and
during Dansby’s trial, it appeared that the proceeding must address not only
Thornton’s representation of Dansby, but also Sallings’s representation. Streett
suggested that the situation created at least “the appearance of a conflict if a public
defender represents Mr. Dansby.”

The record includes no response from the court and no motion of counsel to
withdraw or motion to substitute counsel. Talley and Streett represented Dansby at
the evidentiary hearing in the postconviction proceeding. Talley called Sallings as
a witness. Consistent with her affidavit, Sallings testified to her belief that Thornton
provided ineffective assistance.

We are not convinced there is a debatable question whether Talley ceased to
be Dansby’s agent because of an alleged conflict of interest between Dansby and
Sallings. Sallings was not counsel of record for Dansby at his trial. When Dansby
filed his petition for postconviction relief, represented by an attorney unaffiliated with
the public defender system, he elected to focus his claims of ineffective assistance of
counsel on the performance of attorney Thornton. Sallings actually filed an affidavit
in support of Dansby’s expanded petition, attacking the quality of Thornton’s
representation. Sallings then testified at the postconviction hearing in support of
Dansby’s contention that Thornton was ineffective. In this federal habeas action,
Dansby seeks to avoid the procedural default of his ineffective assistance claims in
order to challenge Thornton’s performance at trial. Even if Dansby had wished to
challenge the “assistance” provided by Sallings, moreover, there is no showing that
Talley and Streett owed any duty of loyalty to Sallings as a result of her “titular”
status as executive director of the public defender commission. There is also no claim
that Sallings had any role in supervising the representation of Dansby in the
postconviction proceeding. In our view, this case is a long way from the “veritable
perfect storm of misfortune,” 132 S. Ct. at 929 (Alito, J., concurring), that befell the
petitioner in Maples, who missed the filing deadline for a notice of appeal because

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he was left without any functioning attorney of record and had no reason to suspect
that he had been reduced to pro se status.

Dansby also asserts that his agency relationship with postconviction counsel
was severed because attorney Talley did not meet the qualifications required for
appointment of counsel in capital postconviction proceedings in Arkansas. See Ark.
R. Crim. P. 37.5 (1998). He first raised this point in the district court in a
“Supplement to Motion To Alter or Amend Judgment Pursuant to Fed. R. Civ. P.
59(e).” R. Doc. 80.3 The district court denied this aspect of the motion to alter or
amend on the ground that Dansby raised an argument that could have been and should
have been raised previously. Because the issue was not raised properly in the district
court, we will not expand the certificate of appealability to address it on appeal.
Freeman v. Busch, 349 F.3d 582, 589 (8th Cir. 2003).

2.

Relying on Martinez, Dansby contends that ineffective assistance by his
postconviction counsel establishes cause to excuse his procedural default on Claim V.
In Wooten v. Norris, 578 F.3d 767 (8th Cir. 2009), a capital case from Arkansas, this
court cited Coleman v. Thompson, 501 U.S. 722, 752-55 (1991), for the proposition
that “ineffective assistance of counsel during state post-conviction proceedings
cannot serve as cause to excuse factual or procedural default.” 578 F.3d at 778.

3
Dansby has not challenged the qualifications of attorney Schay, who filed the
petition that identified Dansby’s claims for postconviction relief. Cf. Ark. R. Crim.
P. 37.5 (1998) (providing that “[a]t least one of the attorneys” appointed to represent
the postconviction applicant shall have certain qualifications) (emphasis added). The
record does not reflect whether Schay withdrew from representing Dansby in the state
postconviction proceeding after Talley was appointed. The district court appointed
Schay to represent Dansby in the federal habeas proceeding. R. Doc. 4.

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 Martinez announced a “narrow exception” to the Coleman rule:

Where, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial
claim of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was
ineffective.

132 S. Ct. at 1320.

The court defined “initial-review collateral proceeding” as a collateral
proceeding that provides the first occasion to raise a claim of ineffective assistance
at trial. Id. at 1315. Martinez “addresse[d] only the constitutional claims presented
in [that] case, where the State barred the defendant from raising the claims on direct
appeal.” Id. at 1320. The case arose from the State of Arizona, and “Arizona does
not permit a convicted person alleging ineffective assistance of trial counsel to raise
that claim on direct review.” 132 S. Ct. at 1313; see State ex rel. Thomas v. Rayes,
153 P.3d 1040, 1044 (Ariz. 2007) (“[A] defendant may bring ineffective assistance
of counsel claims only in a Rule 32 post-conviction proceeding—not before trial, at
trial, or on direct review.”); State v. Sang Le, 212 P.3d 918, 918-19 (Ariz. Ct. App.
2009) (“Because . . . our supreme court has designated Rule 32 proceedings as the
proper vehicle for raising such claims, it therefore follows that defendants may not
assert ineffective assistance of counsel claims in post-trial motions under Rule
24.2.”).

Martinez does not apply here, because Arkansas does not bar a defendant from
raising claims of ineffective assistance of trial counsel on direct appeal. Arkansas law
permitted Dansby to raise a claim of ineffective assistance in a motion for new trial
and on direct appeal. Ark. R. Crim. P. 36.22 (1993); Halfacre v. State, 578 S.W.2d
237, 239 (Ark. 1979); Hilliard v. State, 531 S.W.2d 463, 464-65 (Ark. 1976); see also

-27-
State v. Robinson, 2011 Ark. 90, at *6 (Ark. Mar. 3, 2011); Rounsaville v. State, 288
S.W.3d 213, 217 (Ark. 2008); Missildine v. State, 863 S.W.2d 813, 818 (Ark. 1993).

The Supreme Court in Martinez was clear that its “narrow exception” to
Coleman was limited to the situation in which the State barred the defendant from
raising a claim of ineffective assistance on direct appeal. 132 S. Ct. at 1316. The
Court was not silent about a possible extension of Martinez to a State that does not
impose such a bar. The Court did not expressly reserve judgment, as it sometimes
does when a question is debatable. The Court was explicit about the finite scope of
its decision: “The rule of Coleman governs in all but the limited circumstances
recognized here.” Id. at 1320.

Martinez thus does not authorize a departure from our circuit precedent in
Wooten and similar cases. The district court correctly ruled that Claim V is
procedurally defaulted, and Martinez does not make the ruling debatable. We need
not address whether Dansby makes a substantial showing of a denial of a
constitutional right on the merits.

C.

Dansby also applies to expand the certificate of appealability as to a portion of
Claim XV, which alleges ineffective assistance of counsel at the penalty stage, and
Claim XIX, which asserts ineffective assistance of counsel on direct appeal. The
district court dismissed these claims based on procedural default. Relying on Maples
and Martinez, Dansby seeks to expand the certificate. Substantially for the reasons
discussed in Part III.B, we deny the application. With respect to Claim XV, Arkansas
law did not bar Dansby from asserting in a new trial motion and on direct appeal the
ineffective assistance of trial counsel at the penalty stage. On Claim XIX, the narrow
exception of Martinez is limited to claims of ineffective assistance of trial counsel
and does not extend to alleged ineffectiveness of appellate counsel. The rule of

-28-
Coleman governs these claims, and we need not address whether the merits of either
claim satisfies the standard of § 2253(c).

* * *

For the foregoing reasons, we vacate the dismissal of Claim II and Claim III
in Dansby’s second amended petition and remand the case for further consideration
of those claims. We affirm the dismissal of the remaining claims on appeal, and deny
the applications to expand the certificate of appealability.
______________________________

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