                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1715
                                   ___________

Ronald R. Scarberry,                    *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
State of Iowa,                          *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 12, 2005
                                Filed: November 29, 2005
                                 ___________

Before ARNOLD, BOWMAN, and MURPHY, Circuit Judges.
                         ___________

BOWMAN, Circuit Judge.

      The state of Iowa appeals from the decision of the District Court granting, on
Sixth Amendment grounds, a writ of habeas corpus, 28 U.S.C. § 2254, to Ronald
Russell Scarberry. We reverse.

      On June 22, 1998, Scarberry was driving a car in Warren County, Iowa, at one
o'clock in the morning when he was stopped by the highway patrol for speeding. The
car belonged to Scarberry's passenger and employee, Randy Fry. Both Fry and
Scarberry gave permission for their persons and the car to be searched. Inside the car
were many of the materials needed to manufacture and distribute methamphetamine,
and a small quantity of the drug and a fair amount of cash were found on both
Scarberry and Fry. Scarberry was arrested and charged with conspiracy to
manufacture methamphetamine, possession of a precursor, and possession of
methamphetamine. Scarberry was represented by counsel soon after his arraignment.
He was released pending trial.

       Five months later, on November 26, 1998, Scarberry was arrested in Polk
County, Iowa, by Des Moines police officers who were investigating a
methamphetamine lab. At least one of the officers involved was aware of Scarberry's
Warren County arrest on methamphetamine charges but was unaware of the
disposition of the charges. No one in Polk County contacted Warren County
authorities about Scarberry before or after his arrest. Upon his arrest in Polk County,
the officers advised Scarberry of his Miranda rights,1 and he waived those rights.
During the Polk County interrogation, the Warren County charges and the alleged
Warren County crimes did not come up. What did come up was Scarberry's cold-cook
methamphetamine "recipe," which he related to the officers. He also admitted to
making methamphetamine for his personal use.

       Before Scarberry's trial on the Warren County charges, the prosecutors in that
county learned of the Polk County statements and disclosed their intention to call the
Des Moines police officers to testify in the Warren County trial. Scarberry's trial
counsel filed a motion in limine to exclude the proffered testimony based on the Iowa
rules of evidence relating to relevance, probative value, and prejudice. No Sixth
Amendment ground was raised in support of the motion in limine. A Des Moines
officer testified at the Warren County trial, but the court limited the testimony to the
general statements Scarberry made about his method of manufacturing
methamphetamine. Scarberry was convicted on all counts. He was unsuccessful on
direct appeal, on his state post-conviction petition, and on appeal from the denial of



      1
       Miranda v. Arizona, 384 U.S. 436 (1966).

                                          -2-
state post-conviction relief. He then sought habeas relief from the District Court
under 28 U.S.C. § 2254.

       In his § 2254 petition, Scarberry claimed, as he had in his state post-conviction
proceedings, that his trial and appellate counsel were constitutionally ineffective for
failing to challenge the admission of the testimony of the Des Moines police officer
in the Warren County prosecution on the grounds that allowing testimony about
Scarberry's uncounseled Polk County statements violated his Sixth Amendment right
to counsel—a Sixth Amendment claim within a Sixth Amendment claim. Scarberry's
contention that counsel was constitutionally ineffective is evaluated under the familiar
two-part test of Strickland v. Washington, 466 U.S. 668, 687 (1984): Scarberry "must
show that counsel's performance was deficient" and "that the deficient performance
prejudiced the defense."

       In Scarberry's post-conviction appeal, the Iowa Court of Appeals affirmed the
state post-conviction court's decision that admitting the evidence in question did not
violate Scarberry's Sixth Amendment right to counsel and that Scarberry therefore was
unable to show a Sixth Amendment violation under Strickland for ineffective
assistance of counsel. The District Court reviewed this conclusion de novo, having
determined that neither of the state post-conviction courts had "addressed whether
Scarberry's attorneys provided ineffective assistance because both courts determined
there was no Sixth Amendment violation." Scarberry v. Mapes, 355 F. Supp. 2d 975,
986 (S.D. Iowa 2005). The District Court misconstrued the opinion of the Iowa Court
of Appeals and therefore applied the incorrect standard of review to Scarberry's claim
of ineffective assistance. The Iowa Court of Appeals in fact analyzed Scarberry's
Strickland claim and concluded that counsel's performance could not be deemed
deficient for failure to object to the Des Moines police officer's testimony on the basis
that its admission would violate Scarberry's Sixth Amendment right to counsel
inasmuch as such an objection would have been entirely without merit. The state
court clearly decided the Strickland ineffective-assistance issue.

                                          -3-
       So the appropriate standard of review, for both the Strickland Sixth Amendment
ineffective-assistance claim and the underlying Sixth Amendment right-to-counsel
claim, is the deferential one set out in § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA).2 Federal habeas relief will not be
granted unless the state-court adjudication of the federal constitutional claim on the
merits "resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court"
or "resulted in a decision that was based on an unreasonable determination of the
facts." 28 U.S.C. § 2254(d). (The material facts are not in issue here.) "[A] federal
habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly." Williams v. Taylor, 529 U.S. 362, 411
(2000).

       The Iowa Court of Appeals noted the undisputed fact that the Des Moines
officers did not question Scarberry about the Warren County arrest or charges. Citing
McNeil v. Wisconsin, 501 U.S. 171 (1991), the state court concluded, "[T]here was
no Sixth Amendment violation necessitating suppression of Scarberry's statements to
the officers in Polk County regarding a separate crime." Scarberry v. State, No. 02-
1686, 2003 WL 21459037, at *2 (Iowa Ct. App. June 25, 2003). We hold that this
conclusion was neither contrary to nor an unreasonable application of clearly
established federal law.

      In McNeil, the defendant was arrested in Nebraska on a warrant for an armed
robbery that occurred in Wisconsin. When officials arrived in Nebraska to return
McNeil to Wisconsin, they advised him of his Miranda rights, and he declined to

      2
        The District Court did apply the AEDPA standard to the state court's analysis
of the underlying Sixth Amendment claim that provided the basis for Scarberry's
allegation that trial and appellate counsel were constitutionally ineffective under
Strickland.

                                         -4-
answer any questions but did not ask for counsel. At his first appearance in court in
Wisconsin, he was represented by a public defender. After that, another officer who
was investigating other crimes—including a murder—met with McNeil, who waived
his Miranda rights. McNeil said he was not involved in those crimes. Two days later,
when officers returned to talk with him about the same crimes, McNeil again waived
his Miranda rights and this time admitted to involvement in the crimes. His
statements were used against him in the trial on those crimes, and he was convicted.

       The Supreme Court, noting that the Sixth Amendment right to counsel is
"offense specific," held that the right "cannot be invoked once for all future
prosecutions, for it does not attach until a prosecution is commenced," by a formal
charge or indictment, for example. McNeil, 501 U.S. at 175. Under McNeil, it was
not a violation of Scarberry's Sixth Amendment rights for the Des Moines police
officers to question Scarberry about the Polk County methamphetamine lab, even
though the right to counsel had attached and had been invoked on the Warren County
methamphetamine charges. See also Texas v. Cobb, 532 U.S. 162, 174 (2001)
(holding that home burglary, for which the right to counsel had been invoked, was a
separate offense for Sixth Amendment purposes from the murder of two persons that
occurred when defendant was discovered during the burglary).

       The Iowa Court of Appeals may well have relied on this Court's interpretation
of McNeil as set forth in Hellum v. Warden, 28 F.3d 903 (8th Cir. 1994), in coming
to its conclusion. On facts very similar to those in this case, we addressed the
petitioner's contention that "the interrogation of him outside the presence of his
counsel violated his Sixth Amendment right to counsel." Id. at 909. This Court held
that the case fell "squarely within the rule laid down in McNeil" and there was no
Sixth Amendment violation. Id. In these circumstances, we cannot say that the state
court's application of McNeil to Scarberry's underlying Sixth Amendment claim was
an unreasonable application of clearly established federal law. To that extent, we
agree with the District Court's analysis of the case.

                                         -5-
        The District Court correctly held that "[t]he Polk County interrogation did not
violate the Sixth Amendment as to either charge." Id. at 985. But the court went
further: "As soon as [Des Moines] Officer Hickey offered testimony in the Warren
County trial, however, Scarberry's Sixth Amendment right to counsel was violated."
Id. As we understand the court's reasoning and Scarberry's response to the
government's appeal, ultimately the constitutional problem does not lie in the
interrogation of Scarberry in Polk County (notwithstanding a great deal of discussion
about the interrogation in the District Court's opinion). Instead, "Scarberry has at all
times maintained that his Sixth Amendment rights were violated when the State used
the statements obtained in the Polk County custodial interview in the Warren County
trial." Brief of Appellee at 29.

       To find this Sixth Amendment violation, the District Court relied on Maine v.
Moulton, 474 U.S. 159 (1985), noting that "the Iowa Court of Appeals was
unreasonable in failing to apply [Moulton's] principles" to Scarberry's case.
Scarberry, 355 F. Supp. 2d at 986. That the state courts did not apply Moulton should
not have been surprising, considering that Scarberry did not suggest, much less argue,
that Moulton was the clearly established—and controlling—federal law applicable to
his case. In fact, he did not make that argument in the District Court either.

       In Moulton, the indicted defendant, who was represented by retained counsel,
had a meeting with his codefendant, Colson, prior to their trial on pending theft and
other charges, in order to discuss defense strategy. Unbeknownst to Moulton, Colson
had given authorities a full confession and had agreed to testify against Moulton, in
exchange for a plea agreement. Based on some of the information that Colson had
already provided, authorities asked Colson to assist in getting evidence that Moulton
was plotting to kill a witness who would be testifying against him on the theft charge.
To that end, Colson went to the meeting wired by the authorities and elicited
incriminating statements from Moulton. Some of those statements were used at
Moulton's trial, and he was convicted.

                                          -6-
       The Supreme Court held that "incriminating statements pertaining to pending
charges are inadmissible at the trial of those charges, notwithstanding the fact that the
police were also investigating other crimes, if, in obtaining this evidence, the State
violated the Sixth Amendment by knowingly circumventing the accused's right to the
assistance of counsel." Moulton, 474 U.S. at 180 (emphasis added). That is not what
happened to Scarberry. The Des Moines officers were investigating Scarberry for
possible involvement in a Polk County methamphetamine lab, not for his involvement
in the charged Warren County crimes, when Scarberry waived his right to counsel for
the interrogation and gave officers his methamphetamine recipe. Neither the Des
Moines police officers nor Warren County officials created or exploited "an
opportunity to confront the accused without counsel being present." Id. at 176.
Because no one tried to circumvent Scarberry's Sixth Amendment right to counsel on
the Warren County charges, the District Court erred in applying Moulton in this case
to find a Sixth Amendment violation for the use of Scarberry's uncounseled Polk
County statements in the Warren County trial. Moulton, at least as interpreted by the
District Court, is far from clearly established law on the facts of this case. Indeed, far
more germane here is the Moulton Court's comment that "the Sixth Amendment is not
violated whenever—by luck or happenstance—the State obtains incriminating
statements from the accused after the right to counsel has attached." Id. It was "by
luck or happenstance," not any circumvention of Scarberry's right to counsel, that
Scarberry incriminated himself in Polk County in a way that would later prove useful
in the Warren County prosecution.

       The District Court also concluded that the knowledge of the Warren County
officers (that Scarberry had invoked his right to counsel for the offenses charged in
Warren County) must be imputed to the Des Moines police officers in Polk County.
Scarberry, 355 F. Supp. 2d at 985. The implication is that the Des Moines officers,
armed with this imputed knowledge, attempted to circumvent Scarberry's right to
counsel on the Warren County charges by "creat[ing] a situation that was likely to
result in incriminating statements as to the Warren County charge." Id. The court

                                           -7-
cites Michigan v. Jackson, 475 U.S. 625, 634 (1986), for the proposition that the
knowledge of the Warren County authorities should be attributed to the Des Moines
police officers. The court's Jackson analysis misses the mark.

       The Court in Jackson did say, "Sixth Amendment principles require that we
impute the State's knowledge from one state actor to another." Id. But this is dictum
and as such is not clearly established federal law. See Williams v. Taylor, 529 U.S.
at 412 (noting that clearly established federal law under AEDPA "refers to the
holdings, as opposed to the dicta" of the Supreme Court's decisions). In Jackson, the
officers in question were present at the arraignment where the right to counsel was
invoked, so they had actual knowledge, and it was unnecessary to impute the
knowledge of the court to the officers. Moreover, the facts of the case are
distinguishable from the facts surrounding Scarberry's claim. Jackson's alleged Sixth
Amendment violation arose from one arraignment in a single jurisdiction. In such
circumstances, it is true that "[o]ne set of state actors (the police) may not claim
ignorance of defendants' unequivocal request for counsel to another state actor (the
court)." Jackson, 475 U.S. at 634. But the Jackson Court did not suggest that
knowledge of a defendant's attached and invoked right to counsel should be imputed
to state actors in another jurisdiction within the state who are investigating a crime
separate and apart from the crime with respect to which the defendant already has
invoked the right—much less that the right is therefore presumed to have been
invoked for an investigation of the defendant anywhere else in the state. And even if
the Court had reached such a conclusion in Jackson, it would have been abrogated five
years later by McNeil, where the Court held that the Sixth Amendment right to
counsel is offense specific and cannot be invoked in one context for all future
prosecutions.

      We hold that the Iowa Court of Appeals did not unreasonably apply Strickland
in concluding that the performance of Scarberry's trial and appellate counsel was not
professionally unreasonable when counsel failed to invoke the Sixth Amendment in

                                         -8-
challenging the admission of Scarberry's Polk County statements in his trial on the
Warren County charges. But even assuming for the sake of argument that we are
mistaken in this application of the first part of the Strickland test, we would
nevertheless reach the same result because the error by counsel did not prejudice
Scarberry's defense.3 The evidence on the Warren County charges, although largely
circumstantial, was nevertheless compelling. Scarberry was stopped driving a car at
excessive speed in the middle of the night. A consensual search uncovered large
quantities of pseudoephedrine; a number of lithium batteries; muriatic acid; razor
blades; gloves that fit only one hand; a roll of plastic tubing; two plastic fuel
containers, one of which had contained acid, with plastic tubing attached; a cellular
phone; a portable scanner; and a walkie-talkie radio. As the District Court observed,
"The items listed as found in the passenger compartment and trunk are either
precursors to making meth or can be involved in its distribution." Scarberry, 355 F.
Supp. 2d at 978. On his person, Scarberry had $1690 in cash and 0.90 grams of
methamphetamine. The evidence supporting Scarberry's defense—that it was Fry's
methamphetamine operation, and Scarberry was not involved—also was
circumstantial. There is not a "reasonable probability" that Scarberry would have
prevailed against the prosecution's considerable evidence even if his statements to the
Des Moines officers about his recipe for cooking methamphetamine had not been
admitted. Strickland, 466 U.S. at 694. Nor did counsel's assumed deficient
performance "render[] the result of the trial unreliable or the proceeding fundamentally
unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). The Iowa court's conclusion
that Scarberry did not receive constitutionally ineffective assistance of counsel is
neither contrary to nor an unreasonable application of clearly established federal law
as determined by the Supreme Court of the United States.




      3
       Scarberry does not contend, and the District Court did not determine, that the
alleged Sixth Amendment violation was structural error, where prejudice would be
presumed. See generally Strickland, 466 U.S. at 692.

                                          -9-
       The District Court's grant of the writ is reversed, and the case is remanded with
instructions that Scarberry's 28 U.S.C. § 2254 petition be dismissed.
                        ______________________________




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