                                        No. 95-4033


Marvin Gene Pearson,                            *
                                                *
      Appellee,                                 *
                                                * Appeal from the United States
          v.       *                            District Court for the Eastern
                                                * District of Arkansas.
Larry Norris, Director,                         *
Arkansas Department                             *
of Correction,                                  *
                                                *
      Appellant.                                *




                               Submitted:    June 13, 1996

                                Filed:     July 11, 1996


Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     In    1990,   a   state    court    jury   convicted   Marvin   Gene   Pearson   of
kidnapping, burglary, and terroristic threatening.           At that time, Arkansas
law provided two avenues for challenging a conviction -- (1) within 30 days
of sentencing, a pre-appeal petition to the trial court for a new trial on
the ground of ineffective assistance of trial counsel, see In the Matter
of the Abolishment of Rule 37 and the Revision of Rule 36, 770 S.W.2d 148
(Ark. 1989) (per curiam); and (2) within 30 days of sentencing or 30 days
of the denial of the new trial motion (whichever was latest), appeal to a
higher state court on the ground of error during the trial, see id. and
what is now Ark. R. Crim. App. P. 1(a).
     Mr. Pearson did not petition the trial court for a new trial based
on alleged ineffective assistance of trial counsel.               He did appeal his
convictions, making two state-law claims of error (failure to give a
certain jury instruction; overlap of the charges on, and thus excessive
sentences for, kidnapping and terroristic threatening).                The Arkansas
Supreme Court declined to reach the merits of these claims, holding that
Mr. Pearson had failed to preserve them properly (he had neglected to offer
the jury instruction at trial and to describe it in the appeal brief; he
had neglected to raise the issue of excessive sentences in the trial
court).     The Arkansas Supreme Court therefore affirmed the convictions.
See Pearson v. State, 819 S.W.2d 284, 285-86 (Ark. 1991).


                                          I.
     In 1994, Mr. Pearson petitioned in federal court for habeas corpus
relief under 28 U.S.C. § 2254(a).         In that petition, he alleged violation
of his sixth amendment right to counsel by virtue of the ineffective
assistance of his trial lawyer, specifically, the lawyer's neglecting to
offer the relevant jury instruction and to raise the issue of excessive
sentences.    In describing his claims, Mr. Pearson stated that his trial
counsel had failed altogether to petition for a new trial (or to request
a different lawyer to do so) based on those two omissions during trial.



     The     petition   was    referred    to   a   magistrate.     See   28   U.S.C.
§ 636(b)(1)(B) and Rule 8(b), Rules Governing Section 2254 Cases.              Because
Mr. Pearson had never raised, in the state courts, the issue of ineffective
assistance of counsel at trial, that claim in his habeas petition was
barred from consideration in the federal courts unless he showed cause for
his default in the state courts in that regard and actual prejudice as a
result of that default.       See, e.g., Coleman v. Thompson, 501 U.S. 722, 750
(1991).      The magistrate therefore directed Mr. Pearson to submit a
statement




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"describing the circumstances" that led to his failure in the state courts
to raise the issue of ineffective assistance of counsel at trial.        In
response, Mr. Pearson stated again that his trial counsel had failed
altogether to petition for a new trial (or to request a different lawyer
to do so) on the basis of that counsel's own alleged ineffective assistance
at trial.


     The magistrate found that Mr. Pearson could have petitioned -- but
did not -- under Ark. R. Crim. P. 37.1(a) for a new trial on the basis of
ineffective assistance of trial counsel.    That rule, which was in effect
by the time the Arkansas Supreme Court decided Mr. Pearson's appeal,
changed the avenues under Arkansas law for challenging a conviction from
those that were in effect at the time of Mr. Pearson's trial.    See In the
Matter of the Reinstatement of Rule 37, 797 S.W.2d 458 (Ark. 1990) (per
curiam), and In re Post-Conviction Procedures, 797 S.W.2d 458 (Ark. 1990)
(per curiam).   Under the new (and current) scheme, a petition to the trial
court for a new trial on the ground of ineffective assistance of counsel
at trial may not be made until after an appeal is decided, see Ark. R.
Crim. P. 37.2(a), and must be made within 60 days of the mandate from the
state appellate court, see Ark. R. Crim. P. 37.2(c).


     Even though that rule was not in effect at the time of Mr. Pearson's
trial, the magistrate noted that because the rule was in effect when
Mr. Pearson's appeal was decided, Mr. Pearson could have petitioned for
relief under the rule after his appeal.     See, e.g., Pogue v. State, 872
S.W.2d 387, 388 (Ark. 1994).   The magistrate found that Mr. Pearson had not
offered any reason for his failure to petition for a new trial under Ark.
R. Crim. P. 37.1(a) after his appeal.   The magistrate therefore recommended
that Mr. Pearson's habeas petition be denied.    The district court adopted
that recommendation and dismissed Mr. Pearson's habeas petition.




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        Mr. Pearson appealed that dismissal order to this court.     In Pearson
v. Norris, 52 F.3d 740, 742 (8th Cir. 1995) (per curiam), we held, as a
matter of law, that Mr. Pearson had never received constitutionally valid
notice, at a time when he could have taken advantage of it, of his right
to pursue relief under Ark. R. Crim. P. 37.1(a).        We further held that it
would be futile for Mr. Pearson to petition for relief in the state courts
under that rule, since any such petition obviously "would be rejected as
untimely," id. at 743.      See, e.g., Burk v. State, 856 S.W.2d 14, 14-15
(Ark. 1993) (per curiam).       Holding that Mr. Pearson thus "has no realistic
recourse in the Arkansas courts," we directed the district court to
consider "the merits of [Mr. Pearson's] constitutional claims."        Pearson,
52 F.3d at 743.


                                        II.
        On remand, the case was again referred to a magistrate.          See 28
U.S.C. § 636(b)(1)(B) and Rule 8(b), Rules Governing Section 2254 cases.
Instead of addressing the merits of Mr. Pearson's sixth amendment claims
of ineffective assistance of counsel at trial, however, the magistrate
found    that   Mr.   Pearson    had   suffered   constitutionally   significant
ineffective assistance of counsel for purposes of a pre-appeal petition to
the trial court for a new trial on the basis of ineffective assistance of
counsel at trial.       As a consequence, the magistrate recommended that
Mr. Pearson be released unless he was permitted within 90 days to pursue
such a petition in the state courts with the assistance of counsel, even
though the rule allowing that pre-appeal procedure is no longer in effect.
See In the Matter of Reinstatement of Rule 37, 797 S.W.2d 458 (Ark. 1990)
(per curiam), and In re Post-Conviction Proceedings, 797 S.W.2d 458 (Ark.
1990) (per curiam).     The district court adopted the recommendation.


        The state appealed the district court's order granting relief to
Mr. Pearson.    The state argues that the district court erred, as




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a matter of law, in holding that Mr. Pearson is constitutionally entitled
to counsel with respect to a petition to the trial court for a new trial
if that petition is based on alleged ineffective assistance of counsel at
trial.    The state also argues that, in any event, the proper action for the
district court to have taken, in light of this court's earlier decision in
this very case, see Pearson v. Norris, 52 F.3d 740, 743 (8th Cir. 1995)
(per curiam), was to consider the merits of Mr. Pearson's sixth amendment
claims, not to send him back through the state courts.                    Mr. Pearson
responds, first, that he is indeed constitutionally entitled to counsel
with respect to a petition to the trial court for a new trial because of
ineffective assistance of counsel at trial.              He further argues that the
district court acted appropriately in granting him the opportunity to
prosecute such a petition at this point.


     We    need   not   discuss   the   question    of    whether   Mr.   Pearson   was
constitutionally entitled to counsel with respect to the now-defunct
procedure allowing a pre-appeal petition to the trial court for a new trial
because of ineffective assistance of counsel at trial.          See, e.g., Robinson
v. Norris, 60 F.3d 457, 460 (8th Cir. 1995), cert. denied, 116 S. Ct. 1344
(1996); but see also Cherry v. State, 918 S.W.2d 125, 128 n.1 (Ark. 1996).
That is because the district court misinterpreted our directive in the
previous appeal, and we therefore remand the case with instructions to the
district court to follow that directive.


                                        III.
     "The decision of a federal appellate court establishes the law
binding further action in the litigation by another body subject to its
authority," i.e., the district court.          City of Cleveland, Ohio v. Federal
Power Commission, 561 F.2d 344, 346 (D.C. Cir. 1977).           "The District Court
is bound by the [appellate] decree and must carry it into execution."
Thornton v. Carter, 109 F.2d 316, 319




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(8th Cir. 1940).   On remand, the district court "is without power to do
anything which is contrary to either the letter or spirit of the mandate
construed in light of the opinion of [the appellate] court deciding the
case."   Id. at 320.


     This court's opinion in the previous appeal in this case directed
that the district court proceed by "consider[ing] ... the merits of
[Mr. Pearson's] constitutional claims."   Pearson v. Norris, 52 F.3d 740,
743 (8th Cir. 1995) (per curiam).   Those claims were that Mr. Pearson was
deprived of his sixth amendment right to counsel by virtue of his trial
lawyer's neglecting to offer the relevant jury instruction and to raise the
issue of excessive sentences.


     It is true that Mr. Pearson's habeas petition cited his lawyer's
failure to petition for a new trial (or to request a different lawyer to
do so) based on those two omissions at trial.    Reading the petition as a
whole, however, it is clear that Mr. Pearson was requesting relief on the
basis of his lawyer's omissions at trial, not on the basis of his lawyer's
failure to file a pre-appeal petition for a new trial, even though that
petition would have alleged those omissions as well.   His citation of his
lawyer's failure to petition for a new trial was offered to explain why he
had not raised his lawyer's trial omissions in the state courts.     It is
also clear from this court's previous opinion that this court distinguished
between Mr. Pearson's sixth amendment claims relative to ineffective
assistance at trial and Mr. Pearson's references to his lawyer's failure
to file a pre-appeal petition for a new trial.    This court discussed the
latter failure solely in the context of whether Mr. Pearson had offered a
sufficient reason for his procedural default of his sixth amendment claims.
Id. at 742; see also Forgy v. Norris, 64 F.3d 399, 401-02 (8th Cir. 1995),
and Easter v. Endell, 37 F.3d 1343, 1345-47 (8th Cir. 1994).




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     The district court therefore had no power on remand to address any
issues other than the merits of Mr. Pearson's sixth amendment claims
relative to ineffective assistance at trial.   See, e.g., United States v.
Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996); Barber v. International
Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and
Helpers, District Lodge No. 57, 841 F.2d 1067, 1071-73 (11th Cir. 1988);
Office of Consumers' Counsel, State of Ohio v. Federal Energy Regulatory
Commission, 826 F.2d 1136, 1139-40 (D.C. Cir. 1987) (per curiam); Wheeler
v. City of Pleasant Grove, 746 F.2d 1437, 1440-41 (11th Cir. 1984)
(per curiam); and City of Cleveland, Ohio, 561 F.2d at 347-48.   See also
Litman v. Massachusetts Mutual Life Insurance Co., 825 F.2d 1506, 1511-12,
1514-15 (11th Cir. 1987) (en banc), cert. denied, 484 U.S. 1006 (1988).


                                   IV.
     For the reasons stated, we vacate the district court's judgment and
remand the case for consideration of the merits of Mr. Pearson's sixth
amendment claims relative to his trial.


     A true copy.


           Attest:


                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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