                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 09-2063
                               ________________


Gary Crawford,                           *
                                         *
            Appellant,                   *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Eastern District of Arkansas.
Larry Norris, Director, Arkansas         *
Department of Correction,                *      [UNPUBLISHED]
                                         *
            Appellee.                    *

                                _______________

                           Submitted: January 11, 2010
                               Filed: January 29, 2010
                              ________________

Before GRUENDER and SHEPHERD, Circuit Judges, and JARVEY,1 District
Judge.
                        ________________

PER CURIAM.

      In 2004, Gary Crawford was tried in the Circuit Court of Jackson County,
Arkansas on charges of kidnapping and rape. The jury found Crawford guilty of both
charges, and he was sentenced to twenty-eight years’ imprisonment. Crawford filed


      1
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa, sitting by designation.
a petition for post-conviction relief under Rule 37.1 of the Arkansas Rules of Criminal
Procedure, claiming, among other things, that his counsel was ineffective because he
did not call Al Hamdini as a witness. According to Crawford, Hamdini would have
testified that he saw Crawford leave Hamdini’s shop in a car with the twelve-year-old
victim and the victim’s brother on the day of the kidnapping and rape. The victim and
her brother had given a different account at trial; the victim testified that Crawford
dragged her away from the shop, alone and against her will, and the victim’s brother
testified that he saw Crawford pulling his sister through a field behind the shop.
Crawford suggested in his petition that Hamdini’s testimony would have proved that
the victim and her brother testified falsely.

       The trial court denied Crawford’s petition for post-conviction relief, finding that
Crawford’s counsel made a tactical decision not to call Hamdini as a witness. The
Arkansas Supreme Court affirmed the denial of post-conviction relief, holding that
Crawford failed to show that his counsel’s performance was deficient or that counsel’s
allegedly deficient performance prejudiced his defense. See Strickland v. Washington,
466 U.S. 668, 687 (1984). Crawford next filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254. The district court2 dismissed Crawford’s petition but granted
a certificate of appealability “on the issue of whether Crawford was denied his right
to effective assistance of counsel.”3 Crawford’s only argument on appeal is that the
district court abused its discretion in dismissing his petition without holding an
evidentiary hearing.



      2
        The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas, adopting the proposed findings and
recommendations of the Honorable H. David Young, United States Magistrate Judge
for the Eastern District of Arkansas.
      3
        The district court also granted a certificate of appealability “on the issue of
whether Crawford . . . is actually innocent.” Crawford has expressly abandoned his
actual innocence claim, so we need not consider that issue.

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       At the outset, we note that the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA) contains “mandatory restrictions barring evidentiary hearings in
most federal habeas proceedings” under § 2254. Williams v. Norris, 576 F.3d 850,
859 (8th Cir. 2009) (citing § 2254(e)(2)). “Only if the habeas petitioner ‘was unable
to develop his claim in state court despite diligent effort’ is an evidentiary hearing not
barred by § 2254(e)(2).” Id. at 860 (quoting Williams v. Taylor, 529 U.S. 420, 437
(2000)). Crawford does not contend that he exercised diligence in seeking to develop
the factual basis of his ineffective assistance claim in state court. Crawford does,
however, assert that he did not receive a “full and fair hearing” in state court. The
record shows that the trial court denied Crawford’s petition for post-conviction relief
under Rule 37.1 without holding an evidentiary hearing. And the State does not argue
that Crawford failed to develop the factual basis of his claim due to a lack of
diligence. Cf. Gingras v. Weber, 543 F.3d 1001, 1004 (8th Cir. 2008) (“An applicant
has ‘failed to develop’ a claim only where ‘there is lack of diligence, or some greater
fault, attributable to the prisoner or the prisoner’s counsel.’” (quoting Williams v.
Taylor, 529 U.S. at 432)). Thus, we will assume for purposes of this appeal that
Crawford’s request for an evidentiary hearing was not barred by § 2254(e)(2). See
Johnston v. Luebbers, 288 F.3d 1048, 1059 (8th Cir. 2002).

       Given that assumption, the decision whether to grant or deny the requested
hearing “rest[ed] in the discretion of the district court.” Williams v. Norris, 576 F.3d
at 860 (quoting Schriro v. Landrigan, 550 U.S. 465, 468 (2007)). The Supreme Court
has said that “[i]n deciding whether to grant an evidentiary hearing, a federal court
must consider whether such a hearing could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas relief.”
Schriro, 550 U.S. at 474. It follows that a court “must take into account” the
“deferential standards prescribed by § 2254.” Id. If the factual allegations a petitioner
seeks to prove would not entitle him to relief under the relevant standard, then an
evidentiary hearing is not required. See Johnston, 288 F.3d at 1059; see also Newton



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v. Kemna, 354 F.3d 776, 785 (8th Cir. 2004) (“[T]he court may deny an evidentiary
hearing if such a hearing would not assist in resolving the petitioner’s claim.”).

       The relevant standard for determining Crawford’s entitlement to relief is set out
in § 2254(d), which provides that

      [a]n application for a writ of habeas corpus on behalf of a person in
      custody pursuant to the judgment of a State court shall not be granted
      with respect to any claim that was adjudicated on the merits in State
      court proceedings unless the 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 . . . .

       Crawford cannot plausibly argue that the Arkansas Supreme Court’s
adjudication of his ineffective assistance claim resulted in a decision that was
“contrary to” clearly established federal law. See Williams v. Taylor, 529 U.S. 362,
405-06 (2000) (holding that a state-court decision is “contrary to” clearly established
federal law if it “applies a rule that contradicts the governing law set forth in [the
Supreme Court’s] cases,” or “if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [the Court’s] precedent”). The Arkansas Supreme
Court did not apply a rule that contradicts the governing law set forth in the U.S.
Supreme Court’s cases; on the contrary, the Arkansas Supreme Court applied
Strickland v. Washington, 466 U.S. 668 (1984), the decision which established the
general standard for evaluating ineffective assistance of counsel claims, see Knowles
v. Mirzayance, 556 U.S. ---, 129 S. Ct. 1411, 1419 (2009). Crawford has not
identified a decision of the U.S. Supreme Court involving a set of facts that are
materially indistinguishable from the facts of his case, and we are not aware of one.




                                          -4-
       The question thus becomes whether an evidentiary hearing could have allowed
Crawford to show that the Arkansas Supreme Court’s decision “involved an
unreasonable application of” clearly established federal law. A state-court decision
“involve[s] an unreasonable application of” clearly established federal law if the state
court “correctly identifies the governing legal rule but applies it unreasonably to the
facts of a particular prisoner’s case.” Williams v. Taylor, 529 U.S. at 407-08. There
is no dispute that the Arkansas Supreme Court correctly identified the governing law.
In particular, the court noted that to obtain the reversal of a conviction for ineffective
assistance of counsel under Strickland, a defendant must prove two things: first, that
“counsel’s performance was deficient,” and second, “that the deficient performance
prejudiced the defense.” See Strickland, 466 U.S. at 687. Although the Arkansas
Supreme Court held that Crawford failed to show either deficient performance or
prejudice, we need address only the ruling on prejudice. See Williams v. Norris, 576
F.3d at 858.

       In reviewing an ineffective assistance claim under the “unreasonable
application” clause of § 2254(d)(1), “[t]he question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard ‘was incorrect
but whether that determination was unreasonable—a substantially higher threshold.’”
Mirzayance, 129 S. Ct. at 1420 (quoting Schriro, 550 U.S. at 473). “And, because the
Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.” Id. (citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Here, the Arkansas Supreme
Court found that Crawford’s factual allegations did not prove that his counsel’s
alleged error—not calling Hamdini as a witness—prejudiced his defense. In this
context, “prejudice” means “a reasonable probability that, but for counsel’s
unprofessional error[], the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. In turn, a “reasonable probability” means “a probability
sufficient to undermine confidence in the outcome.” Id. The Arkansas Supreme
Court determined that there was no prejudice under Strickland because “even had Mr.

                                           -5-
Hamdini testified as [Crawford] alleged that he would, [Crawford] did not show that
this testimony was sufficient to have changed the outcome of the trial.” In other
words, Crawford failed to prove that there was a reasonable probability that Hamdini’s
testimony would have led to his acquittal on either the kidnapping charge or the rape
charge.

       Having carefully reviewed the record, we find that the Arkansas Supreme Court
reasonably applied Strickland to the facts of this case. As the district court put it, the
State presented “ample” evidence at trial that Crawford kidnapped the victim. It is
highly improbable that Hamdini’s testimony would have caused the jury to acquit
Crawford on the kidnapping charge. See Mirzayance, 129 S. Ct. at 1422. And it is
even more improbable that Hamdini’s testimony—which apparently would not have
addressed the rape at all—would have caused the jury to acquit Crawford on the rape
charge. In light of these considerations, an evidentiary hearing concerning Hamdini’s
testimony would not have allowed Crawford to show that the Arkansas Supreme
Court’s decision involved an unreasonable application of Strickland. See Schriro, 550
U.S. at 474; Johnston, 288 F.3d at 1059. Accordingly, the district court did not abuse
its discretion in dismissing Crawford’s petition without holding an evidentiary
hearing.

      For the foregoing reasons, we affirm the judgment of the district court.
                       _____________________________




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