                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 00-1309EM
                                   _____________

Danny Hendricks,                       *
                                       *
            Appellee,                  *
                                       * On Appeal from the United
      v.                               * States District Court
                                       * for the Eastern District
                                       * of Missouri.
Kelly Lock, Superintendent of Central *
Missouri Correctional Center,          *
                                       *
            Appellant.                 *
                                  ___________

                              Submitted: December 13, 2000
                                  Filed: February 9, 2001 (Corrected 3/19/01)
                                   ___________

Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD and HANSEN, Circuit
      Judges.
                             ___________

RICHARD S. ARNOLD, Circuit Judge.


       In this appeal, the State of Missouri seeks to reverse the conditional grant of
habeas corpus to Danny Hendricks, a Missouri prisoner. The District Court,1 in
granting the writ, held that the insufficient performance of appellate counsel had in


      1
       The Hon. Carol E. Jackson, United States District Judge for the Eastern District
of Missouri.
effect denied Mr. Hendricks his first appeal of right in the state courts. We agree and
affirm.

                                            I.

       The facts, viewed in a light most favorable to the verdict, are as follows. A
confidential informant helped an undercover Missouri detective to arrange to buy drugs
from Mr. Hendricks's sister, Connie Wood. Mr. Hendricks was present during the
transaction, which involved 100 dollars' worth of cocaine. After the sale had been
completed, and Ms. Wood had left the room, Mr. Hendricks said that if the detective
tried the drugs and liked them, he could sell him a larger quantity the next day. The
detective said that if he liked the drugs, he would get in touch, and they would "do the
deal." The proposed transaction never took place.

       On the basis of these facts, Mr. Hendricks was convicted at a bench trial of
selling a controlled substance in violation of Missouri Revised Statutes § 195.211. The
statutory definition of sale includes an offer for sale, see Mo. Rev. Stat. § 195.010(37),
but "offer for sale" is not defined. See generally Mo. Rev. Stat. § 195.010 (defining
terms). Mr. Hendricks appealed, arguing that the statute did not authorize a conviction
unless the person charged with offering drugs for sale was proved to have had access
to some drugs with which to make the offer good. His appeal was rejected without a
decision on the merits. The Missouri Supreme Court explained as follows:

      Appellant's argument does not allow a decision. Appellant does not say
      why there must be evidence that he had access to the substance.
      Appellant cites cases that he contends show the need for a presence of a
      controlled substance, but he does not connect them to the present case in
      any respect, nor does he provide explanation of why they might be
      authoritative. His statements, although thought-provocative, are nothing
      more. His statements are presented, then left unsupported by any



                                           -2-
      reasoning. Left as they are, completely undeveloped, they provide
      nothing for meaningful review.


State v. Hendricks, 944 S.W.2d 208, 210 (Mo. 1997) (en banc).2 Mr. Hendricks filed
a motion to recall the mandate, arguing that he had received ineffective assistance of
appellate counsel. The Missouri Supreme Court summarily denied this motion.
Petitioner then urged the claim by way of a 28 U.S.C. § 2254 motion in United States
District Court. The Court's order granting that motion is before us now.

                                           II.

       The District Court held, under the familiar standard of Strickland v. Washington,
466 U.S. 668 (1984), that Mr. Hendricks's appellate counsel did not exercise skill and
diligence at the level to be expected of a reasonably competent attorney. The State
does not challenge that part of the order. But attorney incompetence, standing alone,
does not necessarily justify a writ of habeas corpus. In the usual case, a defendant who
seeks the protection of Strickland must also show that counsel's incompetence caused
him some material harm. See id. at 687. In the District Court's view, Mr. Hendricks's
case fell within an exception to that rule for defendants who are, actually or
constructively, altogether denied the assistance of counsel in a proceeding where a
constitutional right to it exists. See id. at 692. For that reason the District Court did
not require Mr. Hendricks to show a reasonable probability that he would have
prevailed in the state appellate court with the benefit of competent counsel.

      The State first argues that the District Court applied the wrong standard of
review. 28 U.S.C. § 2254(d) limits the circumstances in which a petitioner may obtain



      2
      One judge dissented, asserting that the point was adequately briefed and in fact
had merit.

                                          -3-
federal habeas corpus relief with respect to a claim adjudicated on the merits in a state
court: such relief is available only if the state's adjudication of the claim

      (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 a
             State court proceeding.


28 U.S.C. § 2254(d)(1)-(2). The State contends that, under these provisions of the
statute, the District Court could issue the writ only if the Missouri Supreme Court's
denial of the motion to recall the mandate on the ineffective-assistance claim involved
an unreasonable application of clearly established Supreme Court precedent. We are
asked to reverse on the ground that the District Court engaged in an inappropriate de
novo review.

       We do not believe that the case should go back to the District Court for any error
concerning standard of review. First, the State cites no passage in the District Court's
order that would tend to support the inference that the Court applied de novo review.
The order does recite that a de novo standard was applied in adopting the
recommendation and proposed order of the United States Magistrate Judge, but the
standard applied there is not challenged. Second, the State conceded at oral argument
that Mr. Hendricks's appellate counsel was constitutionally deficient. Thus, any
§ 2254(d)(1) question would go only to the District Court's review of an implied state
decision on Strickland prejudice. Because the prejudice issue in this case is purely
legal, our own de novo review of the District Court's decision allows us to determine
and apply for ourselves the correct standard of review under § 2254(d)(1). "The rule
is well established that a decision of a lower court can be affirmed if 'the result is


                                          -4-
correct although the lower court relied upon a wrong ground or gave a wrong reason.' "
Office and Prof. Employees Int'l Union, Local 2 v. Washington Metropolitan Area
Transit Authority, 724 F.2d 133 (D.C. Cir. 1983), quoting SEC v. Chenery Corp., 318
U.S. 80, 88 (1943) (further internal quotations omitted).

                                           II.

       For the sake of argument, we adopt the State's interpretation of the Missouri
Supreme Court's order denying the motion to recall the mandate. That is, we assume
that the order implies a decision on the merits that Mr. Hendricks was not prejudiced
by his counsel's deficient performance. The question then becomes whether such a
decision would (1) be contrary to, or (2) involve an unreasonable application of, clearly
established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). An "unreasonable
application" of precedent is one that, "evaluated objectively and on the merits, resulted
in an outcome that cannot reasonably be justified under existing Supreme Court
precedent." Long v. Humphrey, 184 F.3d 758, 760 (8th Cir. 1999).

       In our view, it would be unreasonable to hold that a defendant in Mr. Hendricks's
position was not prejudiced by his counsel's delinquency. It is clear that "the
Constitution cannot tolerate trials in which counsel, though present in name, is unable
to assist the defendant to obtain a fair decision on the merits," and that the same
constitutional protection extends to the first appeal of right. Evitts v. Lucey, 469 U.S.
387, 395-96 (1985). The Supreme Court has also clearly stated that, where the
ineffective performance of counsel deprives a defendant of his appeal altogether, post-
conviction relief under 28 U.S.C. § 2255 cannot be conditioned on a showing that the
appeal would likely have succeeded. See Rodriquez v. United States, 395 U.S. 327,
330 (1969) ("Those whose right to appeal has been frustrated should be treated exactly
like any other appellants; they should not be given an additional hurdle to clear just
because their rights were violated at some earlier stage in the proceedings.")


                                          -5-
       The State urges that Mr. Hendricks did receive an appeal. There is no point in
arguing about semantics. We agree that he received something, and that it would be
hard to call it anything but an appeal, but we cannot agree that what he received passed
constitutional muster. The purpose of having counsel on appeal is to get a decision on
the merits of the appealable issues the record presents. See Lucey, supra, at 393 ("the
services of a lawyer will for virtually every layman be necessary to present an appeal
in a form suitable for appellate consideration on the merits"); 394 n.6 (counsel is
necessary "for the defendant to obtain a decision at all – much less a favorable decision
– on the merits of the case"); 395 ("the Constitution cannot tolerate trials in which
counsel, though present in name, is unable to assist the defendant to obtain a fair
decision on the merits"); see also United States v. Cronic, 466 U.S. 648, 656 (1984)
("[t]he right to the effective assistance of counsel is . . . the right of the accused to
require the prosecution's case to survive the crucible of meaningful adversarial
testing"). Although the Constitution does not guarantee adjudication on the merits in
every case, it does require that a criminal defendant pursuing a first appeal of right shall
not be completely deprived of such an adjudication by the blunders of his own lawyer.

        The State next points out that the Supreme Court has distinguished the complete
denial of appellate counsel, which would justify a presumption of Strickland prejudice,
from "a case in which counsel fails to press a particular argument on appeal . . . or fails
to argue an issue as effectively as he or she might." Penson v. Ohio, 488 U.S. 75, 88
(1988). According to the State, a defendant alleging the latter kind of ineffective
assistance would not be entitled to a presumption of prejudice. Mr. Hendricks's case
is not so easily distinguishable from one that involves a complete denial of counsel. His
claim is not that there was some important issue that his attorney failed to raise or that
should have been argued more strenuously than it was. His claim is that the advocacy
he got did not move him appreciably closer to a decision on the merits on any issue
than would no advocacy at all. This claim is sufficiently supported by the fact that the
Missouri Supreme Court refused to address the substance of Mr. Hendricks's appeal.


                                            -6-
       The State's case is severely weakened by the fact that the Supreme Court has
explicitly extended the Rodriquez rule to cases arising under § 2254. See Roe v.
Flores-Ortega, 528 U.S. 470, — , 120 S. Ct. 1029, 1038 (2000). Although Flores-
Ortega was not decided until after the Missouri Supreme Court had rejected Mr.
Hendricks's motion, the principles underlying the rule are general and have long been
clear. See Flores-Ortega, 120 S. Ct. at 1039 (stating that "this prejudice standard
breaks no new ground . . . ;" citing Hill v. Lockhart, 474 U.S. 52 (1985), Rodriquez,
supra, and Lucey, supra). Defendants in state courts have the same right to the
effective assistance of appellate counsel as do their federal counterparts. Indeed, the
Supreme Court case that established that right involved an appeal from a state
conviction. See Lucey, supra. We cannot think of a reasonable ground on which a
court addressing this issue, even prior to Flores-Ortega, could have held that the same
right should receive less protection in one forum than in the other.

       Mr. Hendricks was altogether denied a decision on the merits in his first appeal
of right. It is unquestioned that he wished to take an appeal and that he so instructed
his appellate counsel. The only reason he did not get a decision on the merits is that
his counsel's performance fell short of the constitutional standard. In such a case, it is
inappropriate and irrelevant to speculate what the decision on the merits might have
been.

                                           III.

       Because prejudice is presumed as a matter of law, there is no need to remand to
the District Court. We therefore affirm the District Court's order provisionally granting
the writ of habeas corpus.




                                           -7-
A true copy.

      Attest:

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




                              -8-
