                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-2326
                        ___________________________

                                  Vernist McCraney

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

            Ray Hobbs, Director, Arkansas Department of Correction

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

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

                            Submitted: January 16, 2013
                              Filed: March 11, 2013
                                  [Unpublished]
                                  ____________

Before BYE, MELLOY, and SMITH, Circuit Judges.
                           ____________

PER CURIAM.

       Vernist McCraney appeals from the judgment of the district court1 denying his
petition for a writ of habeas corpus. We affirm.

      1
       The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.
                                          I

       Vernist McCraney was convicted of delivery of a controlled substance (crack
cocaine) in an Arkansas state court. Because the state presented evidence that
McCraney distributed the drugs within 1,000 feet of a church, his sentence was
enhanced by 120 months for a total of 264 months' imprisonment. The state raised
the enhancement issue just one day before trial, and McCraney's attorney, Donny
Gillaspie, did not object, ask for a continuance, or investigate the alleged distance
himself. McCraney appealed his conviction to the Arkansas Court of Appeals, which
affirmed the lower court's decision. McCraney then filed a petition for post-
conviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1, asserting
ineffective assistance of counsel. His petition was denied. On appeal, the Arkansas
Supreme Court affirmed the denial of McCraney's request for Rule 37 relief, finding
Gillaspie's failure to investigate or seek a continuance with respect to the
enhancement did not constitute ineffective assistance. McCraney v. State, 360
S.W.3d 144, 148–49 (Ark. 2010).

       On September 29, 2010, McCraney sought habeas relief in the United States
District Court for the Eastern District of Arkansas. Having allegedly discovered only
after being incarcerated that Gillaspie had been subject to bar reprimands and
surrendered his license on account of an illegal drug addiction, McCraney argued for
the first time before the district court that Gillaspie's drug addiction had impaired
Gillaspie's judgment during trial preparation and rendered his representation
ineffective. On April 16, 2012, Magistrate Judge Jerome Y. Kearney recommended
dismissing McCraney's petition. He concluded that because McCraney had not raised
the issue of Gillaspie's drug addiction before the state court, this claim was
procedurally defaulted. In his objection to the magistrate judge's report and
recommendation, McCraney acknowledged that the claim was procedurally defaulted,
but argued his default should be excused as he had only learned of Gillaspie's
addiction after exhausting his state remedies.

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       On May 21, 2012, the district court adopted the magistrate judge's proposed
findings and recommendations and dismissed McCraney's petition. It concluded that
even assuming McCraney's lack of knowledge could constitute cause for the default,
McCraney had failed to demonstrate actual prejudice resulting from Gillaspie's
actions. See Murphy v. King, 652 F.3d 845, 849 (8th Cir. 2011) (noting that to
overcome a procedural bar, a prisoner must demonstrate (1) cause for the default and
actual prejudice or (2) that failure to consider the defaulted claim would constitute a
miscarriage of justice). Specifically, the district court noted the Arkansas Supreme
Court had already addressed the enhancement issue and found Gillaspie had made a
reasonable, tactical decision not to seek a continuance or to measure the distance
himself. Accordingly, the district court concluded McCraney could not demonstrate
a reasonable probability that "the errors at his trial . . . worked to his actual and
substantial disadvantage, infecting his entire trial with error of constitutional
dimensions." Armstrong v. Kemna, 590 F.3d 592, 606 (8th Cir. 2010) (internal
citation omitted).

       The district court also determined McCraney could not meet the fundamental-
miscarriage-of-justice exception because "[t]o meet this exception, a habeas petitioner
[must] present new evidence that affirmatively demonstrates that he is innocent of the
crime for which he was convicted." Oglesby v. Bowersox, 592 F.3d 922, 926 (8th
Cir. 2010) (internal citation and quotation marks omitted). Because it determined
McCraney could not satisfy either exception to the procedural bar, see Murphy, 652
F.3d at 849, the district court concluded his claim of ineffective assistance of counsel
resulting from Gillaspie's drug addiction was procedurally defaulted. McCraney now
appeals.

                                           II

       McCraney challenges the district court's denial of habeas relief on two grounds:
(1) the court erred in determining his claim of ineffective assistance of counsel was

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procedurally defaulted and (2) Gillaspie's illegal drug addiction indicates performance
below the standard of reasonableness, demanding the success of McCraney's habeas
petition on the merits. The government raises an additional objection to McCraney's
claim, arguing it is not only procedurally defaulted but also time-barred under the
one-year statute of limitations for filing a § 2254 petition.

      Upon review of the record, we find it likely that McCraney has incurably
procedurally defaulted his claim of ineffective assistance of counsel as it relates to
Gillaspie's illegal drug addiction. See id. Nonetheless, questions of procedural
default and timeliness do not present jurisdictional bars to our review, see Day v.
McDonough, 547 U.S. 198, 205 (2006), and both parties have thoroughly briefed the
issues relevant to McCraney's claim. Accordingly, in the interest of judicial
economy, we shall proceed to the merits of McCraney's claim. See Trussell v.
Bowersox, 447 F.3d 588, 590–91 (8th Cir. 2006) (bypassing questions of procedural
default and timeliness in the interest of judicial economy); see also Sweet v. Delo,
125 F.3d 1144, 1150 (8th Cir. 1997) ("When a state court decides an issue on the
merits despite a possible procedural default, no independent and adequate state
ground bars consideration of that claim by a habeas court.").

      When a claim has been adjudicated on the merits in state court proceedings,
habeas relief is permissible under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), only if the state court's determination:

      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or

      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the State
      court proceeding.



                                         -4-
McCraney's claim is governed by AEDPA and the standards set forth in Strickland
v. Washington, 466 U.S. 668 (1984), which require that a defendant alleging a
violation of the Sixth Amendment right to counsel must show both that counsel's
performance was deficient and that the deficiency prejudiced the defendant. Id. at
687. In the state court proceedings, the Arkansas court adjudicated both prongs of
McCraney's ineffective-assistance claim on the merits.

        With respect to the first prong of the Strickland standard, the Arkansas state
court concluded that Gillaspie's failure to ask for a continuance or investigate the
distance himself was a tactical decision and, therefore, not unreasonable. McCraney
disagrees. He argues the Supreme Court made clear in Williams v. Taylor, 529 U.S.
362, 396 (2000), that counsel has a duty to thoroughly investigate a defendant's
background for purposes of establishing a defense, rendering Gillaspie's failure to
investigate the distance between the church and the site of his crime unreasonable.
While McCraney acknowledges that the distance issue is not encompassed by his
"background," he contends it has the same effect of establishing mitigating factors
that may be relevant to his defense. In our view, McCraney fails to establish that the
Arkansas state court unreasonably applied the Strickland standard in opposition to
clearly established federal law. Gillaspie testified before the state court that he knew
the officer who made the measurement to be truthful, had spoken with him before
trial, and was assured by the officer that the measurement was well within the 1,000
feet required by statute. Resp't Ex. 2 at 64–65. In addition, Gillaspie cross-examined
the officer at trial regarding why the measurement supporting the enhancement was
made only one day before trial. Resp't Ex. 1B at 105–06. Accordingly, we believe
the state court reasonably applied the first prong of the Strickland standard and that
its determination with respect to that prong was factually supported by the evidence
before it.

      With respect to the second prong of the Strickland standard, counsel's
performance is prejudicial if there is a "reasonable probability that, but for counsel's

                                          -5-
unprofessional errors, the result of the proceeding would have been different." 466
U.S. at 694. The district court concluded McCraney had not been prejudiced by
Gillaspie's representation because there was no reason to believe McCraney's case
would have concluded differently had Gillaspie personally investigated the alleged
distance between the site of McCraney's criminal activity and the church. McCraney,
in contrast, argues that but for Gillaspie's performance, the results of his case would
have been different. In support, he points to the fact that the state had conducted
many simultaneous arrests on the date of his arrest and that it had only introduced the
enhancement one day before trial. Construing this argument generously, we may
assume McCraney means to suggest that the state may have been mistaken in its
distance calculation. McCraney has never alleged, however, that the distance
between the church and the site of his crime was over 1,000 feet. Indeed, even at
trial, McCraney did not argue the distance had been miscalculated; he merely asserted
that he had not committed the crime. Thus, McCraney fails to demonstrate that an
investigation or objection by Gillaspie would have changed the outcome of his trial.
Accordingly, we find the state court reasonably applied the second prong of the
Strickland standard and that its determination with respect to that prong was factually
supported by the evidence before it.

      For the foregoing reasons, we affirm the district court's denial of McCraney's
habeas petition.
                      ______________________________




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