                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1117
                                   ___________

Steven F. Taylor,                       *
                                        *
            Petitioner -Appellant,      *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Arkansas.
Larry Norris, Director, Arkansas        *
Department of Correction,               *
                                        *
            Respondent - Appellee.      *
                                   ___________

                          Submitted: December 16, 2004
                              Filed: March 21, 2005
                                  ___________

Before MELLOY, BOWMAN, and BENTON, Circuit Judges.
                         ___________

MELLOY, Circuit Judge.

       Arkansas prisoner Steven F. Taylor appealed the district court’s1 denial of his
petition for habeas relief. We affirmed in a decision dated February 9, 2005. The
appellee filed a timely petition for rehearing by the panel. Although the appellee,


      1
       The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the
Eastern District of Arkansas.
Larry Norris, was the prevailing party in our prior decision, he correctly points out
in the rehearing petition that we misconstrued the procedural default rule as set out
in Harris v. Reed, 489 U.S. 255 (1989). Accordingly, we grant the petition for
rehearing by the panel, vacate the opinion filed in this matter on February 9, 2005,
and file this substituted opinion.

      Arkansas authorities arrested Mr. Taylor on various state drug and firearm
charges following the nighttime execution of a search warrant at his home. The State
charged Mr. Taylor in three separate cases: CR 95-648, delivery of a controlled
substance; CR 96-113, simultaneous possession of drugs and firearms; and CR 96-
190, two counts of possession of a controlled substance with intent to deliver and one
count of possession of a firearm. The first attorney that the Arkansas Circuit Court
appointed to represent Mr. Taylor, Phyllis Worley, requested and received discovery
materials from the county prosecutor. These materials revealed that the State’s
confidential informant, who had provided information for the search warrant
application, was one of her former clients.

       Ms. Worley notified the Circuit Court of the existence of a potential conflict
of interest in CR 95-648 and CR 96-113, the cases she believed to be dependent in
part on the search. She petitioned the court to be released from representing Mr.
Taylor. The Circuit Court released her and appointed replacement counsel, Jim Petty,
to represent Mr. Taylor. Later, Mr. Petty discovered that he too had conflicts. The
Circuit Court released Mr. Petty. The Circuit Court then appointed a third attorney,
Russ Hunt, to represent Mr. Taylor in CR 95-648 and 96-190. The Circuit Court
reappointed Ms. Worley as co-counsel in CR 96-190 and as sole counsel in CR 96-
113.

       When the Circuit Court reappointed Ms. Worley to represent Mr. Taylor, she
told the prosecutor of the possible conflict related to the confidential informant. The
prosecutor, however, assured her that in the event the case went to trial, the State did

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not intend to call the confidential informant as a witness. Later, Ms. Worley
discovered that the State did intend to use the confidential informant as a witness.
She sought instruction from the Circuit Court, but before the Circuit Court acted on
her request, Mr. Taylor reached a plea agreement.

      Ms. Worley was present at the plea hearing. The Circuit Court asked her about
the conflict, and she told the Circuit Court that no conflict existed because the only
possibility for a conflict would have been if Mr. Taylor’s cases had gone to trial and
the confidential informant had testified. The Circuit Court accepted this explanation.
Mr. Taylor pled guilty in CR 96-190 and CR 96-113 and the State abandoned CR 95-
648. The Circuit Court sentenced Mr. Taylor to 432 months of imprisonment.

       Mr. Taylor filed a timely petition for postconviction relief with the Circuit
Court under Arkansas Rule of Criminal Procedure § 37. He alleged ineffective
assistance of counsel in violation of the Sixth Amendment of the United States
Constitution. Mr. Taylor claimed that Ms. Worley should have challenged the search
warrant affidavit, search warrant, and nighttime execution of the search warrant under
Arkansas law, and that her failure to do so comprised ineffective assistance. The
Circuit Court denied relief, and Mr. Taylor appealed. The Arkansas Supreme Court
determined that the Circuit Court had not made adequate written findings on Mr.
Taylor’s claims. Taylor v. State, 9 S.W.3d 515, 516 (Ark. 2000). On remand, the
Circuit Court found:

      The defendant failed to prove that Ms. Worley had an actual conflict of
      interest. Prior representation of a potential witness for the state does not
      by itself establish an actual conflict of interest. The defendant failed to
      present evidence of any such actual conflict. Secondly, the defendant
      failed to provide evidence that Ms. Worley’s prior representation of the
      [] potential state’s witness in any way [a]ffected the adequacy of her
      representation of the defendant. No evidence was presented to indicate
      Ms. Worley declined to challenge the search warrant because of her
      prior representation of the confidential informant.

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Taylor v. State, CR 00-877, 2001 WL 435511 at *2 (Ark. 2001) (unpublished)
(“Taylor II”) (quoting the Circuit Court).

      Following remand, the Arkansas Supreme Court affirmed on procedural
grounds. Id. It found that Mr. Taylor failed to adequately abstract the record as
required under Arkansas procedure and that this failure deprived the Arkansas
Supreme Court of an adequate record upon which to rule. Id. (“Although appellant
has abstracted language mentioned in the search warrant, we are unable to determine
whether the language consists of an impartial condensation of the search warrant as
required by Ark. Sup. Ct. R. 4-2(a)(6). . . . Because of this failure, we affirm.”)
(emphasis added).

      Notwithstanding this ruling on procedural grounds, the Arkansas Supreme
Court stated in its footnote 1:

      Despite appellant’s abstracting deficiency, the limited information
      provided by appellant appears to be similar to the case of Holloway v.
      State, 293 Ark. 438, 742 S.W.2d 550 (1987) in which we found that a
      nighttime search was justified. Thus, appellant has also failed to show
      that he was prejudiced by counsel’s alleged conflict of interest.

Taylor II at *2 n.1.

      Mr. Taylor next filed a petition for habeas relief in the United States District
Court for the Eastern District of Arkansas. The District Court denied relief, but
granted a certificate of appealability as to one issue: the alleged ineffective assistance
of Ms. Worley due to a conflict of interest.

       On appeal, the State argues that we may not consider Mr. Taylor’s ineffective
assistance claim because the Arkansas Supreme Court found the claim procedurally
defaulted as a matter of state law. Heffernan v. Norris, 48 F.3d 331, 333 (8th Cir.

                                           -4-
1995) (stating that a federal court cannot consider claims that a prisoner procedurally
defaulted in state court absent a showing of actual innocence or cause and prejudice).
We agree. Although the Arkansas Supreme Court, in its footnote 1, set forth an
alternative ruling based on the merits, and although this alternative ruling appears to
address the federal issue of ineffective assistance of counsel, the court nevertheless
clearly and expressly stated that its decision rested on state procedural grounds. As
long as a state court sets forth a clear and plain statement that its decision rests on
state law grounds, and as long as those grounds are adequate and independent of
federal claims, the state court may make reference to a federal claim without opening
the door to habeas review. See Coleman v. Thompson, 501 U.S. 722, 733 (1991).
In Coleman, the Court stated:

      After Long a state court that wishes to look to federal law for guidance
      or as an alternative holding while still relying on an independent and
      adequate state ground can avoid the presumption [that the state court
      decision rests on federal grounds] by stating “clearly and expressly that
      [its decision] is . . . based on bona fide separate, adequate, and
      independent grounds.”

Id. (quoting Michigan v. Long, 463 U.S. 1032, 1041 (1983)) (second alteration in
original). Here, the Arkansas Supreme Court’s decision is supported by independent
and adequate state law grounds that we may not disturb. See generally, Harris v.
Reed, 489 U.S. 255, 260-266 (1989).

      The judgment of the district court is affirmed.
                     ______________________________




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