    United States Court of Appeals
                  For the Eighth Circuit

           ___________________________

                   No. 02-3103
           ___________________________

                      Andrew Sasser

          lllllllllllllllllllllPetitioner - Appellant

                              v.

Ray Hobbs, Director, Arkansas Department of Corrections

          lllllllllllllllllllllRespondent - Appellee

           ___________________________

                   No. 11-3346
           ___________________________

                      Andrew Sasser

          lllllllllllllllllllllPetitioner - Appellant

                              v.

Ray Hobbs, Director, Arkansas Department of Corrections

         lllllllllllllllllllllRespondent - Appellee

                      ____________

         Appeal from United States District Court
    for the Western District of Arkansas - Texarkana
                     ____________
                          Submitted: December 13, 2013
                            Filed: February 26, 2014
                                 ____________

Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.
                             ____________

RILEY, Chief Judge.

       The State of Arkansas’s petition for panel rehearing is predicated on a
misreading of our opinion and a mischaracterization of the record. It should be clear
the district court, on remand, must consider whether “[Andrew] Sasser’s state
postconviction counsel fail[ed] to raise the[] four [potentially meritorious]
ineffectiveness claims.” Sasser v. Hobbs, 735 F.3d 833, 853 (8th Cir. 2013). It
should equally be clear that Sasser’s “postconviction counsel’s alleged
ineffectiveness” will excuse procedural default only “if proved.” Id. (emphasis
added). Far from determining Sasser has affirmatively overcome the procedural bar,
our opinion recognizes we cannot presently determine whether these four claims
remain procedurally barred in light of Trevino v. Thaler, 569 U.S. ___, 133 S. Ct.
1911 (2013).

       Our opinion therefore vacates the procedural default determination and
remands for the district court to decide the two-part Trevino question in the first
instance, after giving Sasser an opportunity to present evidence in support of his
argument the four claims are no longer procedurally barred. This hearing will
necessarily address the underlying merits of the four claims because, unless
postconviction counsel’s failure to raise a claim was prejudicial, the claim remains
procedurally barred despite Trevino. See Strickland v. Washington, 466 U.S. 668,
687 (1984). On remand, the State is free to argue Sasser’s postconviction counsel
fully raised the four claims, see Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir.


                                        -2-
2012), just as Sasser is free (1) to argue the State forfeited this argument or is
estopped from relying upon it, and (2) to show substantial and decisive factual
differences between these four claims and the purportedly similar postconviction
claims emphasized by the State.

       Because we do not consider it appropriate in this capital case to decide such
fact-intensive questions for the first time on appeal, we deny the State’s petition for
rehearing by the panel.
                        _____________________________




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