                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1517
                         ___________________________

                              Billy Wayne Stewart, Sr.

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

           Wendy Kelley, Director, Arkansas Department of Correction

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                     Appeal from United States District Court
                  for the Eastern District of Arkansas - Pine Bluff
                                   ____________

                             Submitted: January 9, 2018
                                Filed: May 29, 2018
                                  ____________

Before LOKEN, BEAM, and KELLY, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       In September 2011, a Garland County, Arkansas jury found Billy Wayne
Stewart, Sr. guilty of raping J.H., an adult woman with the mental capacity of a young
child. See Ark. Code Ann. § 5-14-103(a)(2)(B) (2011 Supp.). Under Arkansas law,
after finding a defendant guilty of a felony offense, the same jury “determine[s] a
sentence within the statutory range,” unless both parties waive jury sentencing with
the court’s consent. See Ark. Code Ann. § 16-97-101. During Stewart’s jury
sentencing, the prosecutor introduced evidence of his seven prior felony convictions,
which made him a “habitual offender” punishable under Arkansas law by
imprisonment for ten years to life. See §§ 5-4-501(b)(2)(A) (2011 Supp.), 5-14-
103(c)(1). The trial judge erroneously instructed the jury that Stewart would be
eligible for parole after serving 70% of his sentence if sentenced to a term of years.
In fact, he was ineligible for parole because of a prior violent felony conviction.

       The jury sentenced Stewart to seventy years in prison. The Supreme Court of
Arkansas affirmed the conviction on direct appeal. Stewart v. State, 423 S.W.3d 69
(Ark. 2012). Stewart filed a pro se petition for post-conviction relief under Arkansas
Rule of Criminal Procedure 37.1. The Garland County Circuit Court denied the
petition after a hearing, and the Supreme Court of Arkansas affirmed. Stewart v.
State, 443 S.W.3d 538 (Ark. 2014). Stewart then filed a timely pro se federal habeas
petition, raising numerous claims. The district court1 appointed counsel and directed
supplemental briefing on the claim that trial counsel provided ineffective assistance
when he failed to object to the erroneous sentencing instruction. The court then
denied habeas relief but granted a certificate of appealability on this issue. Reviewing
the district court’s decision de novo, we affirm.

                                   I. Background

       Stewart testified at trial that J.H.’s mother and stepfather took him in while he
was searching for a job. He admitted to having sex with J.H. while staying at the
family residence, and J.H. had Stewart’s child. After the jury found Stewart guilty of
rape, the court instructed, without objection, that a sentence of life in prison would
render Stewart ineligible for parole, but he would be eligible for parole upon serving
70% of a sentence to a term of years. Unbeknownst to the court and counsel,


      1
        The Honorable D.P. Marshall Jr., United States District Judge for the Eastern
District of Arkansas.

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Stewart’s prior conviction for first degree battery made him ineligible for parole under
Arkansas law. See §§ 16-93-609(b), 5-4-501(d)(2)(A)(vi) (2011 Supp.).

       The court instructed the jury that it was permitted to consider the possibility that
Stewart would be paroled. During closing arguments, both attorneys referenced
parole eligibility. The prosecutor, emphasizing Stewart’s serious crime and prior
criminal convictions, urged that he be sentenced to life in prison or, alternatively,
“anything that will keep him in prison for the rest of his life.” Defense counsel noted
Stewart would be eligible for parole after serving 70% of a term of years, told the jury
that eligibility did not guarantee release, and urged the jury take Stewart’s age into
account (he was forty-seven years old at the time). After twenty-seven minutes of
deliberation, the jury sentenced Stewart to seventy years in prison.

        On direct appeal, represented by different counsel, Stewart argued only that the
trial court erred in excluding evidence of J.H.’s prior sexual conduct. Stewart’s pro
se petition for post-conviction relief raised three grounds: that barring cross
examination of J.H. about her prior sexual conduct violated his Sixth Amendment
right of confrontation; ineffective assistance of trial counsel during the guilt phase;
and a due process claim that the State’s trial preparation coerced J.H.’s testimony. In
a supplemental petition, Stewart alleged that the prosecutor made a written pretrial
ten-year plea offer that was never presented to Stewart (after a hearing, the trial court
found the document was a forgery). Testifying at the Rule 37.1 hearing, Stewart
raised a new complaint:

      [The prosecutor] explained to the jury in depth what the seventy percent
      law is. When I get to prison they put me on a one hundred percent. In
      my Rule 37 you’ll see that it speaks of the coercion and misleading the
      jury into believing that I’m gonna do seventy percent. . . .

           THE COURT: Okay, now that is not grounds for Rule 37, Mr.
      Stewart.


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             DEFENDANT STEWART: Yes, ma’am, but I did include it in
      there. [We find no reference to this issue in the Rule 37.1 petitions.]

             THE COURT: We’re not gonna go into that.

In a post-hearing brief, Stewart specifically argued that trial counsel’s failure to object
when the prosecutor misled the jury regarding parole eligibility was ineffective
assistance. The trial court denied post-conviction relief without discussing this issue.
Stewart appealed to the Supreme Court of Arkansas, reasserting this claim of
ineffective assistance. In affirming the denial of relief, the Court stated that Stewart’s
brief “expanded the allegations raised in the Rule 37.1 petition and discussed at the
evidentiary hearing,” and that it would not consider new arguments on appeal.
Stewart, 443 S.W.3d at 542.

       Stewart filed a pro se federal habeas petition, asserting in part that his trial
counsel provided ineffective assistance by failing to object to the court’s parole
eligibility jury instruction. After appointing counsel to assist in resolving this claim,
the district court denied Stewart’s petition, concluding: 1) the claim was not
procedurally defaulted; 2) trial counsel provided constitutionally deficient assistance
because “parole eligibility statutes are clear and settled law” and the prior violent
felony conviction “was obvious and in the case”; and 3) Stewart could not
demonstrate prejudice resulting from this attorney error.

                                     II. Discussion

       As the district court recognized, this appeal presents a narrow but difficult
ineffective assistance of counsel issue. Without question, the prosecutor who initially
proposed the erroneous parole eligibility instruction, the trial court that gave the
instruction, and Stewart’s trial and appellate counsel all missed a sentencing issue that
was obvious under settled law. But the issue was belatedly identified. Trial and
appellate counsel focused exclusively on guilt phase issues. Stewart’s pro se post-

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conviction efforts also focused on guilt phase issues until he learned that the Arkansas
Department of Corrections had classified him 100% parole ineligible. He then
complained at the Rule 37.1 evidentiary hearing and, more articulately, in his post-
conviction briefs to the trial court and the Supreme Court of Arkansas.

       By the time Stewart raised the issue, any federal claims of prosecutor
misconduct, trial court error, or ineffective assistance of appellate counsel were
procedurally defaulted. See Dansby v. Hobbs, 766 F.3d 809, 833-34 (8th Cir. 2014),
cert. denied, 136 S. Ct. 297 (2015). The claim of ineffective assistance of trial
counsel was not defaulted because the Garland County trial court denied Stewart’s
request for appointment of counsel at his Rule 37.1 post-conviction proceeding. See
Martinez v. Ryan, 566 U.S. 1 (2012); Trevino v. Thaler, 569 U.S. 413 (2013).

       Under Arkansas law, “[p]arole-eligibility determinations by the [Department
of Corrections] do not constitute a modification of a prison sentence.” Mason v.
Hobbs, 453 S.W.3d 679, 682 (Ark.), cert. denied, 136 S. Ct. 147 (2015). Thus, trial
counsel’s deficient performance did not deprive Stewart of a due process claim that
Ark. Code Ann. § 16-93-609(b) should not apply “when the jury, court, and
[defendant] were unaware of the Act and did not intend for the Act to apply to the
judgment.” Stephens v. Hobbs, 2012 WL 4017376, at *1 (Ark. 2012). The only
preserved federal issue is whether Stewart has shown that trial counsel’s deficient
performance prejudiced the defense at trial because there is “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different,” in other words, that a jury properly instructed regarding parole
eligibility would have sentenced him to a term of less than seventy years in prison.
Strickland v. Washington, 466 U.S. 668, 694 (1984). Reasonable probability is “a
probability sufficient to undermine confidence in the outcome.” Id. Stewart need not
show it is more likely than not the outcome would differ, but “[t]he likelihood of a
different result must be substantial, not just conceivable.” Harrington v. Richter, 562
U.S. 86, 111-12 (2011).

                                          -5-
         We agree with the district court that the question is close, primarily because the
prosecutor in closing argument drew the jury’s attention to the 70% rule and urged
that it impose a term of years “that will keep him in prison for the rest of his life.” But
we agree with the district court that Stewart did not meet his burden to show
prejudice:

      The jury heard the troubling facts of this case: Stewart was a family
      friend. He knew his victim functioned on a first-grade or second-grade
      level. Nonetheless, when her parents took Stewart in, he had sex with
      their daughter; and she spent the next eight months unaware that she was
      carrying Stewart’s child. After hearing these facts, the jury gave Stewart
      a sentence it believed would keep him in prison [at least] until he’s
      ninety-six.

             If the jury had heard a correct parole-eligibility instruction, it’s
      possible they would have given Stewart a shorter sentence. But in light
      of the bad facts, Stewart’s age, and the lengthy sentence imposed, it’s
      just that -- a possibility. The system malfunctioned in his case, but not
      to a degree that undermines confidence in the result.

       On appeal, Stewart argues that instructing the jury on parole eligibility “creates
a reasonable probability that a jury will calculate the parole eligibility number and add
more time to compensate.” Applying that premise, Stewart assumes the jury added
49 years -- 70% of its seventy-year sentence -- to Stewart’s age of 47 to reach an
intended sentence that would not end until he was 96 years old. If the jury had been
properly instructed he was not eligible for parole, Stewart reasons, “there is a
reasonable probability . . . that it would have sentenced to an outcome possibly less
than 70 years.” Certainly that is a possibility, but “not every error that conceivably
could have influenced the outcome undermines the reliability of the result of the
proceeding.” Strickland, 466 U.S. at 693. Eligibility for parole does not necessarily
mean parole will be granted, as Stewart’s trial counsel emphasized to the jury. Nor
was the jury required to consider the possibility of parole in determining his sentence.


                                           -6-
The prosecutor’s closing argument emphasized the serious nature of Stewart’s crime
and the injury he inflicted on mentally impaired J.H. and her family -- facts the jury
heard during the guilt phase -- and Stewart’s seven prior felony convictions. After
deliberating less than thirty minutes, the jury imposed a sentence that would likely
exceed Stewart’s life span whether or not he would be granted parole. On this record,
trial counsel’s deficient performance in failing to correct the instructional error of the
prosecutor and the trial court does not establish Strickland prejudice sufficient to
undermine our confidence in the outcome of the proceedings.

      The judgment of the district court is affirmed.

KELLY, Circuit Judge, dissenting.

        I agree that Stewart received objectively unreasonable assistance of counsel at
sentencing. I respectfully dissent, however, because I believe Stewart was prejudiced
by defense counsel’s performance. Defense counsel, the prosecutor, the trial judge,
and the jury instructions all told the jury that Stewart would be eligible for parole after
serving 70 percent of any term-of-years sentence imposed. The State sought a life-
without-parole sentence, or alternatively, “anything that will keep him in prison for
the rest of his life.” Instead, however, the jury selected a 70-year sentence, which
under the instructions given would have made Stewart eligible for parole after 49
years, or at age 96. See Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is
presumed to follow its instructions.”). It turns out Stewart is not eligible for parole
at all, and the jury unwittingly imposed a sentence of 70 years without parole. This
means Stewart will be released from prison only if he lives to be 117 years old.

       To establish prejudice, Stewart must show “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. Under this standard, I think

                                           -7-
there is a reasonable probability that, properly instructed, the same jury that believed
it was giving Stewart a 70-year-with-parole sentence would impose something other
than the 70-year-without-parole sentence he is actually serving. Cf. Rummel v.
Estelle, 445 U.S. 263, 281 (1980) (“If nothing else, the possibility of parole, however
slim, serves to distinguish [a parole-eligible defendant] from a person sentenced” to
life without parole); Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir. 1990) (en banc);
Savage v. State, No. CR 06-526, 2007 WL 538990, at *2–3 (Ark. 2007) (unpublished
per curiam). The jury declined to impose a life-without-parole sentence, and chose
a lengthy prison term instead. And, had the jury wanted to make sure that Stewart
would be in prison until he was 117 years old, it would have imposed a 100-year
sentence, which under the erroneous instruction would have rendered him ineligible
for parole until then.
                        ______________________________




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