                                   ___________

                                   No. 95-2033
                                   ___________

Johnny Lee Hill,                       *
                                       *
     Plaintiff-Appellant,              *
                                       *
       v.                              *     Appeal from the United States
                                       *     District Court for the Eastern
Larry Norris, Director,                *     District of Arkansas
Arkansas Department                    *
of Correction,                         *
                                       *
     Defendant-Appellee.               *


                                   ___________

                   Submitted:      June 12, 1996

                          Filed:   September 24, 1996
                                   ___________

Before WOLLMAN, FLOYD R. GIBSON, and MORRIS SHEPARD ARNOLD,
      Circuit Judges.

                                   ___________


FLOYD R. GIBSON, Circuit Judge.


     Johnny Lee Hill was convicted in state court in Arkansas of the
felony murder of Gary Sturdivant, who lived near Malvern, Arkansas.           Mr.
Hill's conviction was upheld by a divided court on direct appeal, see Hill
v. State, 773 S.W.2d 424 (Ark. 1989), and on petitions for postconviction
relief, see Hill v. State, 1991 WL 184217 (Ark. Sept. 16, 1991) (per
curiam), and for correction of sentence, see Hill v. State, 1990 WL 6900
(Ark. Jan. 29, 1990) (per curiam).         He applied for habeas corpus relief
under 28 U.S.C. § 2254(a), which was denied.       Mr. Hill appeals that denial.
We affirm.
I. BACKGROUND


        We summarize the evidence presented at Mr. Hill's trial in a light
most favorable to the verdict.           Several people saw Mr. Hill hitchhiking
southwest on I-30 in the Malvern area on the night of May 23, 1987.                The
latest sighting was about 10:15 p.m.             Between 11:00 p.m. and midnight, a
neighbor saw Mr. Sturdivant's car arrive at his house, followed by a pickup
truck with three men in it.            All four people went into Mr. Sturdivant's
house.       Both vehicles were gone at 9:00 a.m. the next morning, and there
were skid or scuff marks in the yard, making it appear that someone had
left in a vehicle very quickly.


        Mr. Sturdivant was killed between 3:00 a.m. and 4:00 a.m. on May 24,
1987.     After a struggle, he was tied up; he strangled from one of the
electric cords used to tie him.           Although the medical examiner could not
state the precise time of death, Mr. Sturdivant died closer to midnight
than to 7:30 a.m.      Various items were stolen from Mr. Sturdivant's house,
including a rifle, some tools, and a stereo.           All of the stolen items would
have fit into the trunk of Mr. Sturdivant's car.


        At    4:19   a.m.,   someone    used   Mr.   Sturdivant's   Visa   card   at   a
convenience store on I-30 about 25 miles southwest of Malvern.                     The
signature on the charge slip read "Stevie M. Sturdivant," although the name
on the Visa card was "Gary L. Sturdivant."              Someone used that Visa card
four more times between that convenience store and Dallas, Texas, on that
same day, each time signing "Stevie M. Sturdivant" on the charge slip.                 A
handwriting sample given later by Mr. Hill showed signs of deception.


        Between 4:30 a.m. and 5:00 a.m., two truck drivers saw Mr. Hill
driving Mr. Sturdivant's car on I-30 about 45 miles southwest of Malvern.
Mr. Hill was driving very fast and erratically.            At a rest stop, Mr. Hill
told the truck drivers that he had been




                                           -2-
drinking after a friend's funeral in Little Rock.                  Mr. Hill did not,
however, appear to be drunk when he talked with the truck drivers; he had
no alcohol on his breath, his words were not slurred, and he was not
walking unsteadily.      The truck drivers saw some type of rifle in the back
seat of the car.


        Four days later, Mr. Hill was arrested at a convenience store in
Dallas.      He   was   driving   Mr.   Sturdivant's   car   at    the   time   and   was
accompanied by another man, who was trying to sell some tools and a radio
to the owner of the convenience store.          Mr. Hill had no identification and
gave three different names to the police.         He had no proof of ownership or
of insurance for the car, which had a stolen license plate on it.                     The
police found Mr. Sturdivant's license plate in the trunk of the car, along
with his checkbooks and some utility bills in his name.                  Mr. Hill first
told the police that he had bought the car from a man named Gary after
seeing an ad at a laundromat; Mr. Hill was to take up the payments on the
car.    He later told police that a man named Clyde had given him the car at
one of the Dallas missions for the homeless.


II. DISCUSSION


        Mr. Hill asserted eight separate bases for habeas relief before the
district court: (1) ineffective assistance of appellate counsel; (2)
insufficiency of the evidence; (3) the admission of evidence obtained
pursuant to an illegal search; (4) denial of post-conviction counsel; (5)
the admission of an involuntary statement; (6) instructional error; (7)
error    in allowing the prosecutor to amend the information; and (8)
ineffective assistance of trial counsel.         The district court found that Mr.
Hill had procedurally defaulted grounds four through eight by failing to
present them at the state level.        The district court went on to deny habeas
relief on grounds one through three on the merits.                On appeal, Mr. Hill
asserts cause and prejudice to excuse his procedural default on issues four
through eight and appeals the




                                          -3-
                                           3
district court's order affirming the sufficiency of the evidence supporting
his felony murder conviction.


     A. Cause and Prejudice


     1. Rule 37 Ten-Page Limit


     Mr. Hill does not deny that he failed to present issues four through
eight to the state court in his Rule 37 petition.     He asserts, however, the
ten-page limitation imposed by Arkansas Criminal Procedure Rule 37 as cause
excusing his default.    See Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
Under Murray v. Carrier, 477 U.S. 478 (1986), cause excusing procedural
default generally turns upon whether "some objective factor external to the
defense impeded counsel's efforts to comply with the State's procedural
rule," such as a showing that the factual or legal basis of the claim was
not then available or that some interference by officials made compliance
impracticable.   Id. at 488.    Rule 37.1 provides:



           The petition will state in concise, non repetitive
     language, without argument, the grounds upon which it is based
     and shall not exceed ten pages in length. If the petition is
     handwritten it will be clearly legible, will not exceed thirty
     lines per page and fifteen words per line, with a left hand
     margin of at least 1 1/2 inches and upper and lower margins of
     at least two inches. Petitions which are not in compliance
     with this rule will be subject to being stricken.



Ark. R. Crim. P. 37.1(e).   Mr. Hill, however, was free to demonstrate that
he was unable to adequately present his claims in ten or fewer pages in a
motion to file an overlength petition.     See Washington v. State, 823 S.W.2d
900, 901 (Ark. 1992).   Because he failed to do so, he cannot now assert the
alleged inadequacies of state procedural rules which he failed to fully
utilize as post-hoc




                                     -4-
                                      4
cause excusing his procedural default.     Id. (Rule 37 ten-page limit is a
reasonable restriction on post-conviction relief).


     2. Ineffective Assistance of Appellate Counsel


     Mr. Hill alternatively asserts ineffective assistance of appellate
counsel as cause.   "Ineffective assistance of counsel     . . . is cause for
a procedural default."    Carrier, 477 U.S. at 488.   In order to demonstrate
ineffective assistance of counsel, Mr. Hill must prove: (1) his attorney's
performance was deficient; and (2) resultant prejudice.        Strickland v.
Washington, 466 U.S. 668, 687 (1984).      A review of the record reveals,
however, that Mr. Hill has failed to establish either element, and we
accordingly reject this argument.


     B. Sufficiency of the Evidence


     Mr. Hill next challenges the sufficiency of the evidence supporting
his conviction for felony murder, that is, for killing Mr. Sturdivant in
the course of perpetrating a robbery.   See Ark. Code Ann. § 5-10-101(a)(1).
A bare majority of the Arkansas Supreme Court concluded that there was
sufficient evidence to support Mr. Hill's conviction.       The issue in this
case is not whether this panel would have convicted the defendant had it
been the trier of fact.   Our standard of review is as narrow as it is well-
established:


     This court must view the evidence in the light most favorable
     to the government and sustain the verdict if it is supported by
     substantial evidence. Moreover, on appeal, the government must
     be given the benefit of all inferences that may logically be
     drawn from the evidence. It is not necessary that the evidence
     exclude every reasonable hypothesis except guilt; instead, the
     evidence is simply sufficient if it will convince a trier of
     fact beyond a reasonable doubt that the defendant is guilty.
     This court will not disturb a conviction if the evidence
     rationally supports two conflicting hypotheses. Each of




                                     -5-
                                      5
     the elements of the crime charged may be proven by
     circumstantial evidence, as well as by direct evidence. And
     finally, this court must keep in mind that the standard to be
     applied to determine the sufficiency of the evidence is a
     strict one, and the finding of guilt should not be overturned
     lightly.


United States v. Brown, 921 F.2d 785, 791 (8th Cir. 1990) (citations and
quotation omitted).       Our function as an appellate court is not to reweigh
the evidence.     United States v. Anderson, 78 F.3d 420, 422 (8th Cir. 1996).
To the contrary, we must accord "great deference" where a state appellate
court has found the evidence supporting the conviction constitutionally
sufficient, as the Arkansas Supreme Court has in this case.                   Ward v.
Lockhart, 841 F.2d 844, 846 (8th Cir. 1988).


     Bearing these principles in mind, there can be little argument that
Mr. Hill's murder conviction is supported by substantial, albeit not
overwhelming, evidence.          We readily concede that there is no direct
evidence placing Mr. Hill in the victim's trailer the night of the murder.
Forensic evidence such as hair, fingerprints, or body fluids are eminently
useful   when    found,    but   their   absence   does   not   necessarily   mandate
acquittal.      Although the evidence supporting Mr. Hill's conviction is
admittedly      circumstantial,     "circumstantial       evidence   may   constitute
substantial evidence" under Arkansas law.           Hill, 773 S.W.2d at 425.      Our
Court has also recognized that the verdict "may be based in whole or in
part on circumstantial evidence."          Anderson, 78 F.3d at 422.


     Mr. Hill argues that the circumstantial evidence supporting his guilt
is insufficient because it fails to exclude other factual scenarios
consistent with his innocence.           The Supreme Court, however, quashed this
contention in Jackson v. Virginia, 443 U.S. 307 (1979), the very case that
established the applicable standard by which we judge sufficiency of the
evidence challenges.      In that case, the Supreme Court rejected the habeas
petitioner's




                                           -6-
                                            6
sufficiency challenge based on his argument that circumstantial evidence
in   the   case   supported   his   claim   of    self-defense    as   well   as   the
prosecution's theory of guilt.      Id. at 325.     "Only under a theory that the
prosecution was under an affirmative duty to rule out every hypothesis
except that of guilt beyond a reasonable doubt could this petitioner's
challenge be sustained.       That theory the Court has rejected in the past.
We decline to adopt it today."        Id. at 326 (citation omitted).


      This Court has followed that mandate faithfully.            United States v.
Alvarado-Sandoval, 997 F.2d 491, 493 (8th Cir. 1993) ("The evidence need
not exclude every reasonable hypothesis except that of guilt; it is
sufficient if there is substantial evidence justifying an inference of
guilt as found irrespective of any countervailing testimony that may have
been introduced." (quotation omitted)); United States v. Searing, 984 F.2d
960, 963 (8th Cir. 1993) ("The evidence need not exclude every reasonable
hypothesis other than guilt."); Perez v. Groose, 973 F.2d 630, 634 (8th
Cir. 1992) ("Contrary to [the petitioner]'s contention, the prosecution is
not required to rule out every hypothesis except that of guilt beyond a
reasonable doubt . . . .       It was for the jury to resolve any conflicting
inferences . . . ."); United States v. Brown, 921 F.2d 785, 791 (8th Cir.
1990) ("This court will not disturb a conviction if the evidence rationally
supports two conflicting hypotheses."); United States v. O'Malley, 854 F.2d
1085, 1088 (8th Cir. 1988) ("While this determination could certainly have
been resolved differently, it is not our function as a reviewing court to
reverse based on a recognition of alternate possibilities.").
      This   case    is   analogous   to    a    host   of   convictions   based    on
circumstantial evidence affirmed by this Court despite the recognition of
"alternate possibilities."       It is theoretically possible, but unlikely,
that the true killer sold the proceeds from the killing to the hitchhiking
Mr. Hill in the hour or so possibly separating the time of the murder from
Mr. Hill's appearance with




                                        -7-
                                         7
Mr. Sturdivant's property.      It is even possible that Mr. Hill killed Mr.
Sturdivant for other unknown reasons and then made off with the goods as
an afterthought.    But it was also possible in Jackson that the female
victim "willingly removed part of her clothing and then attacked [the
defendant] with a knife when he resisted her advances" thus requiring him
to shoot her in self-defense.    Jackson, 443 U.S. at 325.   Nevertheless, the
Supreme Court presumed that "the trier of fact resolved any such conflicts
in favor of the prosecution" and deferred to that resolution.        Id. at 326.



      In United States v. Bates, 77 F.3d 1101 (8th Cir. 1996), petition for
cert. filed (July 10, 1996) (No. 96-5184), it was possible that the
defendant found dressed in hunting apparel with two other individuals in
a boat containing two shotguns, dead ducks, camouflaged netting, and decoys
was merely acting as a wilderness guide as opposed to illegally hunting
ducks with a shotgun as a felon in possession of a firearm.      Id. at 1105.
This Court, however, concluded that this alternative had been fairly
presented to and rejected by the jury despite the fact that a wilderness
guide business card was found on the defendant's person.       Id.        In Rhode
v. Olk-Long, 84 F.3d 284 (8th Cir. 1996), the Court conceded that "some
parts of the record could be read to support [the defendant's] theories
that either her parents or her children could have inflicted the fatal
injuries" on her infant child.    Id. at 288.   Nevertheless, the Court found
"ample evidence" in the record supporting her felony murder conviction.
Id.   As such, we find the evidence supporting Mr. Hill's conviction for
felony murder to be supported by sufficient evidence.


III. CONCLUSION


      For the aforementioned reasons, we affirm the district court's denial
of habeas relief.




                                      -8-
                                       8
MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.


      Because I believe that the court errs in rejecting Mr. Hill's
contention that the state of Arkansas failed to make a submissible case
against him, I respectfully dissent from the judgment in this case.          A bare
majority of the Arkansas Supreme Court concluded that there was sufficient
evidence to convict Mr. Hill of felony murder, that is, of killing
Mr. Sturdivant in the course of perpetrating a robbery.         See Ark. Code Ann.
§ 5-10-101(a)(1).   With respect, it appears to me that this determination
was error, even when it is afforded the deference that it is due.              See,
e.g., Jackson v. Virginia, 443 U.S. 307, 323-24 (1979).


      I begin my consideration of this case with a statement of the
principles that should have guided the court's decision.           Due process is
violated, and a habeas petitioner is entitled to relief, if a conviction
has been obtained on the basis of insufficient evidence.                Id. at 321.
Evidence is insufficient if from it no rational factfinder could conclude
beyond a reasonable doubt that the defendant committed the crime with which
he or she is charged.     Id. at 319, 324.    If, in other words, the state of
the evidence is such that a reasonable juror would necessarily have a doubt
about the defendant's guilt, and that doubt is not based on fancy or on
whim but on reason, id. at 317, then the defendant cannot constitutionally
be found guilty.    Id. at 324.


      We have granted habeas relief in a similar case at least once.            See
Ward v. Lockhart, 841 F.2d 844, 845-47, 849 (8th Cir. 1988).           In that case,
the defendant was convicted of burglary, yet no evidence placed him at or
inside the school from which certain property was stolen.          Id. at 846-48.
In that case as well, there was evidence of possession of stolen property
and   implausible   and   conflicting    stories   concerning    the    defendant's
acquisition of the property and concerning his whereabouts at critical
times.   Id. at 846-47.     We stated that while "the evidence was clearly
sufficient




                                        -9-
                                         9
to support a conviction for theft of property or theft by receiving, ...
it was not [constitutionally] sufficient to permit a legal inference" that
the defendant was guilty of being inside the school from which the property
was taken.       Id. at 847.


        In this case, the Supreme Court of Arkansas concluded that Mr. Hill's
guilt was more probable than any other reasonable hypothesis supported by
the evidence.       See Hill v. State, 773 S.W.2d 424, 426 (Ark. 1989).                But,
with respect, this conclusion provides an answer to the wrong question.
The question is not whether under the evidence Mr. Hill's guilt was more
probable than any other reasonable hypothesis, but whether under the
evidence, viewed in a light most favorable to the verdict, there was some
other hypothesis that was reasonable.            If there was, the defendant must be
acquitted.       Mr. Justice Newbern of the Arkansas Supreme Court in his
dissent identified a number of hypotheses inconsistent with guilt that were
both reasonable and consistent with the evidence, even when that evidence
is viewed in a light most favorable to the verdict.                Id. at 427.    I note
that Mr. Hill was never placed at the scene of the crime, but even if he
had been, it is entirely possible that he simply stole the car and the
other    goods    that   were   found    in    his   possession   without   in   any   way
participating in the murder.            Since this is a reasonable hypothesis, and
since I believe that a rational juror would have had to entertain it, Mr.
Hill's conviction cannot stand.


        This conclusion, moreover, seems to me required by the fact that
Mr. Hill was charged with felony murder, that is, with killing a person in
the course of the commission of a robbery.                  Even if Mr. Hill killed
Mr. Sturdivant, there is no proof whatever that Mr. Hill did not kill Mr.
Sturdivant with deliberate premeditation and then decide to make off with
his goods as an afterthought.       This possibility is as likely as his having
killed Mr. Sturdivant in the course of a robbery and by itself entitles
Mr. Hill, as a constitutional matter, to an acquittal.               "Under our system
of




                                              -10-
                                               10
criminal justice even a thief is entitled to complain that he has been
unconstitutionally convicted and imprisoned as a burglar."     Jackson, 443
U.S. at 323-24.    I agree with Mr. Justice Newbern that "Johnny Lee Hill,
or whatever his name may be, is guilty of something, but the state has not
proven him guilty of murder."     Hill v. State, 773 S.W.2d at 426.


     I respectfully disagree with the court's suggestion that my proposed
disposition of this case would conflict with the principles laid down in
Jackson, 443 U.S. at 326.       I presume, of course, as the Court did in
Jackson, that the jury is entitled to resolve any "conflicts in favor of
the prosecution."     Id.    What I rely on here as the predicate for my
analysis is an assumption that the jury believed all of the evidence
favorable to the government, indulged in all reasonable inferences that
could have been drawn from that evidence, and disbelieved all of the
evidence favorable to the defendant.    That is what I mean when I say that
I have viewed the evidence in a light most favorable to the verdict.    The
cases that the court relies on to support its judgment are all cases in
which there were conflicts in the testimony that the jury, of course, was
entitled to resolve.        I admit the applicability to this case of the
principle announced in those cases, but I suggest that its application does
not lead to the conclusion that the court reaches.


     I would therefore grant Mr. Hill's petition for relief and remand
this case to the district court with instructions to release Mr. Hill from
custody.


     A true copy.


           Attest:


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




                                     -11-
                                      11
