                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                             Nos. 17-1833/17-2380
                         ___________________________

                                   Mickey Thomas

               lllllllllllllllllllllPetitioner - Appellee/Cross-Appellant

                                          v.

                             Dexter Payne, Director,
                        Arkansas Department of Correction

              lllllllllllllllllllllRespondent - Appellant/Cross-Appellee
                                       ____________

                    Appeals from United States District Court
                for the Western District of Arkansas - Hot Springs
                                 ____________

                            Submitted: January 15, 2020
                               Filed: May 22, 2020
                                  ____________

Before BENTON, GRASZ, and STRAS, Circuit Judges.
                           ____________

GRASZ, Circuit Judge.

       Mickey Thomas applied for habeas relief after the Arkansas Supreme Court
affirmed his capital-murder death sentence. The district court granted Thomas partial
relief. Both Thomas and the State of Arkansas appealed. We affirm in part and
reverse in part.
                                   I. Background

       Mickey Thomas was charged with capital murder after allegedly killing two
women at the Cornerstone Monument Company in DeQueen, Arkansas. Two lawyers
(“Trial Counsel”) from the Arkansas Public Defender Commission provided
Thomas’s legal defense. Ultimately, the jury found Thomas guilty of capital murder
and sentenced him to death.

      Thomas appealed, but the Arkansas Supreme Court affirmed both his
conviction and sentence. Thomas v. State, 257 S.W.3d 92, 104 (Ark. 2007).

        Thomas then filed a petition for postconviction relief under Arkansas Rule of
Criminal Procedure 37.5. The petition claimed, among other things, that Trial
Counsel provided ineffective assistance by “failing to properly investigate the
underlying allegations[,] . . . . failing to properly investigate and present mitigation
evidence[,] . . . . failing to properly investigate and present mental health
issues[,] . . . . [and] informing the Jury that [Thomas] was guilty or that [he] was
going to prison.” In addition, Thomas claimed the trial court violated the Sixth and
Fourteenth Amendments by refusing to draw a jury from Arkansas’s more expansive
list of registered drivers instead of its list of registered voters. The Circuit Court of
Sevier County, after reviewing Thomas’s Rule 37 petition, denied relief. For
simplicity’s sake, we will refer to the Circuit Court of Sevier County as the “Rule 37
court.”

      Thomas appealed the denial of his Rule 37 petition to the Arkansas Supreme
Court. In his appeal, Thomas raised only two ineffective-assistance claims. First, he
contended Trial Counsel should have objected to the trial court’s change of venue.




                                          -2-
And second, he argued Trial Counsel should have introduced additional witness
testimony. His appeal omitted any discussion (relevant for our purposes) of Trial
Counsel’s investigation and presentation of exculpatory, mitigating, or mental-health
evidence. Nor did Thomas continue to argue that Trial Counsel provided ineffective
assistance by conceding guilt. The Arkansas Supreme Court affirmed the denial of
Thomas’s Rule 37 petition. Thomas v. State, 431 S.W.3d 923, 930 (Ark. 2014).

       Turning to federal courts, Thomas then applied for relief under 28 U.S.C.
§ 2254 in the United States District Court for the Western District of Arkansas.
Thomas attempted to renew his claims that Trial Counsel provided ineffective
assistance by failing to investigate and present exculpatory, mitigating, and mental-
health evidence.1 He also introduced new claims; for example, that Trial Counsel
provided ineffective assistance by not effectively moving for an expanded jury pool.2

       As the district court pointed out, the procedural default rule was a major hurdle
for both Thomas’s guilt-and-penalty ineffective-assistance claims and his jury-pool
ineffective-assistance claim. The procedural default rule, the court explained,
typically forbids introducing new claims and resurrecting old, previously-abandoned
claims in federal habeas applications.



      1
       Specifically, in Claim 10-1, Thomas argues that Trial Counsel was ineffective
at presenting a mitigation case. We will refer to this claim as the “penalty-phase
ineffective-assistance claim.” In Claim 1, Thomas argues that Trial Counsel was
ineffective during the guilt phase of trial. We will refer to this claim — excepting
sub-Claim 1-1-5 (see note 2 below) as the “guilt-phase ineffective-assistance claim.”
When considering these two claims together, we will refer to them as the “guilt-and-
penalty ineffective-assistance claims.”
      2
        This sub-Claim, numbered 1-1-5 in Thomas’s application, we will refer to as
the “jury-pool ineffective-assistance claim.”


                                          -3-
       If Thomas’s claims were procedurally defaulted, he could only bring them
before a federal court if he “demonstrate[d] cause for the default and actual
prejudice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). According to Thomas,
his lawyer in the Rule 37 proceeding (“Rule 37 Counsel”) was ineffective, which in
turn caused the procedural default. Because Thomas thought his underlying claim
was meritorious, he believed Rule 37 Counsel’s ineffectiveness prejudiced him.
Thus, Thomas maintained, he could demonstrate both cause and prejudice, which
would permit a federal court to consider his procedurally defaulted claims.

        Whether Thomas could demonstrate cause depended on when he experienced
procedural default. An Arkansas prisoner applying for federal habeas relief can
“demonstrate cause for the default” by proving Rule 37 Counsel’s ineffective
assistance resulted in the failure to raise an ineffective-assistance-at-trial claim in the
initial Rule 37 proceeding. See Sasser v. Hobbs, 735 F.3d 833, 853 (8th Cir. 2013)
(following Trevino v. Thaler, 569 U.S. 413 (2013)). But an applicant cannot
demonstrate cause for default by proving ineffective assistance resulted in the failure
to appeal a Rule 37 court’s ruling on an ineffective-assistance-at-trial claim.
Martinez v. Ryan, 566 U.S. 1, 16 (2012). Thomas’s argument — that Rule 37
Counsel’s ineffectiveness caused the procedural default — therefore turned on
whether the procedural default was triggered at the initial Rule 37 proceeding or on
its subsequent appeal.

        The parties briefed and argued their respective positions on procedural default
before the district court, which concluded procedural default was triggered at the
initial Rule 37 proceeding. As the district court explained, while “evidence presented
at the [Rule 37] hearing possibly skimmed the issues,” Thomas’s Rule 37 petition set
forth only “bare bones, boilerplate allegations.” This, when coupled with the Rule
37 court’s finding that Thomas “introduced no evidence in support of [his] claims,”
led the district court to hold that Thomas never really claimed ineffective-assistance



                                           -4-
for guilt-and-penalty investigation and presentation in the first place. Therefore, the
district court concluded, the failure to raise the guilt-and-penalty ineffective-
assistance claims in the first instance (and not the failure to appeal their rejection)
triggered the procedural default.

       Under the district court’s analysis, if Thomas could show Rule 37 Counsel
provided ineffective assistance by failing to properly raise the guilt-and-penalty
ineffective-assistance claims, and Thomas was prejudiced thereby, it could excuse
procedural default. Citing the Supreme Court’s Trevino decision, the district court
provided Thomas an opportunity to demonstrate cause and prejudice by expanding
the record and holding a hearing. See 569 U.S. at 429. But the district court only
allowed Thomas to argue some of his procedurally-defaulted claims at the hearing.
Many of his claims, the district court found, were not “potentially meritorious,”
including the jury-pool ineffective-assistance claim. The district court therefore
refused to consider them.

       During the hearing, Thomas introduced mitigation and mental-health evidence
not previously introduced at the trial or the Rule 37 proceedings. The district court,
after viewing this evidence and extensive live testimony, concluded that Thomas was
not prejudiced by Trial Counsel’s alleged shortcomings during the trial’s guilt phase.
However, it found that Trial Counsel was “dysfunctional and disjointed” and “failed
to conduct a thorough investigation with respect to mitigation.” Given the evidence
introduced at the federal hearing, the district court found a “reasonable probability”
the jury would have sentenced Thomas to life imprisonment rather than death, if only
Trial Counsel had conducted a constitutionally adequate mitigation investigation and
presentation.

      The district court also found Thomas’s Rule 37 Counsel ineffective. It
concluded Rule 37 Counsel’s ineffectiveness caused the procedural default by failing



                                         -5-
to raise the guilt-and-penalty ineffective-assistance claims in the initial Rule 37
proceedings. And because Trial Counsel provided ineffective assistance with respect
to Thomas’s mitigation case, Rule 37 Counsel’s failure prejudiced Thomas.
Therefore, the district court held, Thomas had shown both cause and prejudice for his
failure to raise the penalty-phase ineffective-assistance claim; he could bring it in
federal court. Because Trial Counsel was ineffective at mitigation, the court
continued, relief was appropriate. The state must either re-try the penalty phase of
Thomas’s trial, or else it must stipulate to a life sentence.

       Both Thomas and the state appeal the district court’s order. Thomas maintains
that Trial Counsel was ineffective during both the guilt phase of the trial and the
penalty phase. He also appeals the district court’s rejection of his jury-pool
ineffective-assistance claim, requesting a federal hearing. Finally, he asks for a
hearing on a dismissed guilt-phase sub-claim in light of the Supreme Court’s recent
McCoy v. Louisiana decision. 138 S. Ct. 1500 (2018). The state resists each of these
arguments and further maintains that Trial Counsel provided constitutionally
adequate assistance in its investigation and presentation of Thomas’s mitigation case.

                                     II. Analysis

                   A. Guilt-and-Penalty Ineffective Assistance

      The district court found that Trial Counsel’s inadequate preparation for the
penalty phase of the trial deprived Thomas of his Sixth Amendment rights. See U.S.
Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . .
to have the Assistance of Counsel for his defence.”). “On appeal from a district
court’s grant of a habeas petition, we review the district court’s findings of fact for




                                          -6-
clear error, and its conclusions of law de novo.” Escobedo v. Lund, 760 F.3d 863,
868 (8th Cir. 2014).

       We begin our analysis with the issue of procedural default.3 Under the doctrine
of procedural default, “a federal court will not review the merits of claims, including
constitutional claims, that a state court declined to hear because the prisoner failed
to abide by a state procedural rule.” Martinez, 566 U.S. at 9. In such cases, the state
court’s judgment “rests on independent and adequate state procedural grounds,” and
we therefore cannot grant relief. Coleman, 501 U.S. at 730; see also 28 U.S.C.
§ 2254(a) (federal courts “shall entertain an application for a writ of habeas corpus
in behalf of a person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or treaties of the
United States.”).4

      In limited circumstances, however, procedural default can be excused. If “the
prisoner can demonstrate cause for the default and actual prejudice as a result of the


      3
       The state did not press the procedural default issue on appeal. But the parties
knew procedural default was in play and had opportunity to present their positions.
We can therefore address the issue. See Dansby v. Hobbs, 766 F.3d 809, 824 (8th
Cir. 2014).
      4
        In Thomas’s case, the application of the procedural default rule intersects with
the exhaustion requirement mentioned in 28 U.S.C. § 2254(b)(1)(A). If the state
“court to which the petitioner would be required to present his claims in order to meet
the exhaustion requirement would now find the claims procedurally barred . . . . there
is a procedural default for purposes of federal habeas.” Coleman, 501 U.S. at 735 n.1.
And “[a] habeas petitioner who has defaulted his federal claims in state court meets
the technical requirements for exhaustion; there are no state remedies any longer
‘available’ to him.” Id. at 732 (citing 28 U.S.C. § 2254(b)). Thus, we focus on
procedural default, and not exhaustion, in our analysis.



                                          -7-
alleged violation of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice,” then federal courts may consider the
procedurally defaulted claim. Coleman, 501 U.S. at 750.

      The district court found Thomas’s guilt-and-penalty ineffective-assistance
claims were procedurally defaulted. And in this respect, we agree with the district
court. Where we depart from the district court, however, is when Thomas
procedurally defaulted his claims. This difference ultimately determines whether the
procedural default can be excused.

       According to the district court, Thomas failed to properly raise his guilt-and-
penalty ineffective-assistance claims in his initial Rule 37 proceeding. In effect, the
district court concluded, Thomas never actually raised those claims to the Rule 37
court in the first place. Relying on our Flieger v. Delo decision, the district court
explained that Thomas’s failure to present both the factual and legal premises of the
guilt-and-penalty ineffective-assistance claims at the initial Rule 37 proceeding led
to procedural default. 16 F.3d 878, 884–85 (8th Cir. 1994).

       The district court erred in its analysis. Procedural default occurs when “a state
court decline[s] to hear [a claim] because the prisoner failed to abide by a state
procedural rule.” Martinez, 566 U.S. at 9. But the Rule 37 court did not decline to
hear Thomas’s guilt-and-penalty ineffective-assistance claims. Rather, the Rule 37
court clearly ruled on the merits of the claim: it found that Thomas’s “[trial] attorneys
did in fact adequately investigate the issues petitioner cites.” And the Rule 37 court’s
statement that Thomas “introduced no evidence” to support his claims does not




                                          -8-
indicate a failure to “abide by a state procedural rule.” Id. The lack of evidence
simply speaks to the weakness of Thomas’s claims on the merits.5

       An analysis of Flieger illustrates the district court’s mistake. In Flieger, the
applicant made a generic ineffective-assistance claim in his initial state
postconviction proceeding, coupled with a few specific allegations of ineffective
assistance. 16 F.3d at 884–85. After the state court denied postconviction relief, the
applicant raised new ineffective-assistance allegations to the federal district court that
he had not previously raised before the state court. Id. The federal district court
rejected these claims as procedurally barred. Id. On appeal, the applicant claimed his
purportedly defaulted allegations were implicit in the original, generic ineffective-
assistance claim. Id. We disagreed. The applicant’s generic ineffective-assistance
claim in state court did not “immunize[] his federal habeas claim’s specific variations
from the effects of the state’s procedural requirements.” Id. at 885. Without
presenting “both the factual and legal premises” of his claims to the state court, the
applicant could not expect to avoid procedural default. Id. at 884 (emphasis omitted).




      5
        By concluding that Thomas never adequately raised his guilt-and-penalty
ineffective-assistance claims in the initial Rule 37 proceeding, the district court
avoided applying the deferential standards provided by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254(d) (imposing
deferential standards when an applicant’s claim was previously “adjudicated on the
merits in State court”). It appears that § 2254(d) would, in fact, apply given the facts
outlined above. See Johnson v. Williams, 568 U.S. 289, 293 (2013) (requiring federal
courts to presume, absent contrary evidence, that a denial of relief is made “on the
merits”). But because we can resolve the ultimate issue of Thomas’s guilt-and-
penalty ineffective-assistance claims without invoking these deferential standards, we
will forgo such an analysis.



                                           -9-
       In other words, the state court in Flieger never ruled on the applicant’s specific
ineffective-assistance claim, because the applicant never presented the specific claim
in the first place. Compare that with Thomas’s case. Thomas presented the Rule 37
court with ten different, specific, ineffective-assistance-at-trial allegations. In
particular, he claimed “[t]rial counsel was ineffective for failing to properly
investigate the underlying allegations[,] . . . . failing to properly investigate and
present mitigation evidence[,] . . . . [and] failing to properly investigate and present
mental health issues.” And Rule 37 Counsel specifically questioned Trial Counsel
about the scope of the mitigation and mental health investigation. He asked about the
records Trial Counsel obtained and failed to obtain, the scope of the investigation into
Thomas’s background, and the results of Thomas’s mental health and competency
evaluations. Trial Counsel also testified about the number and identity of the
witnesses called during Thomas’s mitigation case.6 In short, the specific ineffective-
assistance-at-trial allegations were presented to the Rule 37 court, and the court
provided a determination on the merits. The weakness of support for the claims in
the Rule 37 petition and hearing has no bearing on whether the claims were actually
presented, much less whether the state court’s “judgment rests on a state procedural
bar.” Harris v. Reed, 489 U.S. 255, 263 (1989).

      Thus, no procedural default was triggered in the initial Rule 37 proceedings.
However, procedural default was triggered by Thomas’s failure to appeal the Rule 37
court’s ruling on the guilt-and-penalty ineffective-assistance claims. Fink v. State,
658 S.W.2d 359, 360 (Ark. 1983) (“Issues not argued on appeal are considered
abandoned.”). To reiterate: it was not Thomas’s failure to raise the guilt-and-penalty



      6
       We do not question the district court’s finding that the Rule 37 petition
contained “bare bones, boilerplate allegations,” or that Rule 37 Counsel only
“skimmed” the issues at the Rule 37 hearing.



                                          -10-
ineffective-assistance claims that triggered procedural default, because he did, in fact,
raise them. Rather, it was his failure to appeal that resulted in the default.

      Because the guilt-and-penalty ineffective-assistance claims were procedurally
defaulted, we will only consider them if Thomas can “demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman, 501 U.S. at 750. And this is why the timing of
procedural default matters. Under the Supreme Court’s Trevino decision,
postconviction counsel’s “ineffectiveness, if proved, establishes ‘cause for any
procedural default [Thomas] may have committed in not presenting these claims to
the [Arkansas] courts in the first instance.’” Sasser, 735 F.3d at 853 (emphasis
added) (quoting Williams v. Taylor, 529 U.S. 420, 444 (2000)). But the Trevino rule
“does not concern attorney errors in other kinds of proceedings, including appeals
from initial-review collateral proceedings, second or successive collateral
proceedings, and petitions for discretionary review.” Martinez, 566 U.S. at 16
(emphasis added). Because Thomas’s procedural default occurred by failing to
appeal the Rule 37 court’s ruling, Thomas’s Rule 37 Counsel’s ineffectiveness, if
proven, does not constitute cause for the default. Nor can Thomas show that, without
a federal hearing, a fundamental miscarriage of justice would occur; to do so, he
would have to establish by a preponderance of the evidence that “no reasonable juror
would have found [him] guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S.
298, 327 (1995). And given the strength of the state’s case against Thomas, we
remain sufficiently confident in the result of his trial. Cf. House v. Bell, 547 U.S. 518,
537 (2006). We therefore conclude that habeas relief cannot be granted on his guilt-
and-penalty ineffective-assistance claims. See 28 U.S.C. § 2254(a).7

      7
      We therefore need not address how Trevino interacts with AEDPA’s
procedural hurdle forbidding federal courts from holding hearings in most



                                          -11-
                        B. Jury-Pool Ineffective Assistance

       We next consider Thomas’s argument that Trial Counsel was ineffective by
failing to promptly and adequately move for an expanded jury pool. This claim
parallels one raised by Thomas in the Rule 37 proceeding: that the trial court violated
the Sixth and Fourteenth Amendments by failing to draw the jury from an expanded
jury pool, as Arkansas law permits. See Ark. Code Ann. § 16-32-301(a). But insofar
as Thomas failed to raise “both the factual and legal premises” of his jury-pool
ineffective-assistance claim to the Rule 37 court, the claim is procedurally defaulted.
Flieger, 16 F.3d at 884 (emphasis omitted); Frazier v. State, 482 S.W.3d 305, 309
(Ark. 2016) (“This court will not consider new matters not raised in the Rule 37
petition for the first time on appeal, unless they are so fundamental as to void the
conviction.”).

       As discussed above, Thomas’s procedural default can be excused if he “can
demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Under Trevino
and Sasser, ineffective assistance of Arkansas postconviction relief counsel, if



circumstances when an applicant fails to develop a claim in state court. See 28 U.S.C.
§ 2254(e)(2). We simply note the tension in the case law revealed by the district
court’s decision to hold a Trevino hearing. Compare Holland v. Jackson, 542 U.S.
649, 653 (2004) (“Attorney negligence . . . is chargeable to the client and precludes
relief unless the conditions of § 2254(e)(2) are satisfied.”), and Williams v. Norris,
576 F.3d 850, 860–63 (8th Cir. 2009) (explaining that it is “reversible error” to hold
a hearing for a § 2254 applicant’s claims that he failed to raise in state court), with
Sasser, 735 F.3d at 854–55 (indicating that, under Trevino, counsel’s ineffectiveness
permits an applicant to avoid the requirements of § 2254(e)(2)).



                                         -12-
proven, can constitute cause for failing to raise an ineffective-assistance-at-trial claim
in an initial Rule 37 proceeding. Sasser, 735 F.3d at 853.

       According to Thomas, Trevino entitles him to a federal hearing on his
procedurally defaulted (but potentially excused) jury-pool ineffective-assistance
claim. He is mistaken. A procedurally defaulted claim must be “substantial” for the
default to be excused — that is, the claim must have “some merit.” Martinez, 566
U.S. at 14. A federal court may “evaluate whether claims of ineffective-assistance
are ‘substantial’ or ‘potentially meritorious’” when determining whether a hearing is
warranted. Dansby v. Hobbs, 766 F.3d 809, 834 (8th Cir. 2014); see also Schriro v.
Landrigan, 550 U.S. 465, 473 (2007) (explaining that “the decision to grant an
evidentiary hearing” remains within the “sound discretion of district courts”). Thus,
even if an applicant alleges that his counsel’s ineffectiveness caused him to omit an
ineffective-assistance-at-trial claim in his initial-review postconviction proceeding,
a district court may still deny a hearing if it finds the claim not “substantial” or
“potentially meritorious.” Dansby, 766 F.3d at 834. And that’s what the district
court did in Thomas’s case.

       To see why Thomas’s claim was not potentially meritorious, consider what
Thomas must prove for his claim to succeed. To show cause for procedural default,
he must show that Rule 37 Counsel provided ineffective assistance under Strickland
v. Washington, 466 U.S. 668 (1984). Doing so would require showing that, by failing
to raise a jury-pool ineffective-assistance claim, Rule 37 Counsel fell below the
constitutional standard of competence and prejudice resulted. Id. at 688, 694. To
show prejudice, Thomas would have to establish “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the [Rule 37] proceeding would have
been different.” Id. at 694. Showing prejudice would thus require establishing the
merits of the underlying jury-pool ineffective-assistance claim. That is, Thomas




                                          -13-
would have to establish that Trial Counsel fell below the constitutional standard of
competence and — again — prejudice resulted. Id.

       So, at bottom, Thomas must establish a reasonable probability that, but for
Trial Counsel’s failure to properly move for an expanded jury pool, the jury would
not have sentenced him to death. See id. He assumes the increased availability of
black jurors would have resulted in a jury less inclined to impose the death sentence.
But such assumptions have no place in a Strickland prejudice inquiry. Rather, when
reviewing prejudice, we must consider “the totality of the evidence before the judge
or jury.” Id. at 695. In this case, the evidence presented before either jury —
Thomas’s actual jury or his desired, hypothetical one — is the same. See id. at
695–96 (“Some of the factual findings will have been unaffected by the errors . . . .
Taking the unaffected findings as a given . . . a court making the prejudice inquiry
must ask if the defendant has met the burden of showing that the decision reached
would reasonably likely have been different absent the errors.”). And as the district
court rightly reported, there was “overwhelming evidence against Thomas on the
elements of capital murder and the aggravating factors supporting the death
sentence.”

       At the same time, our prejudice inquiry “should proceed on the assumption that
the decisionmaker is reasonably, conscientiously, and impartially applying the
standards that govern the decision.” Id. at 695. The inquiry “should not depend on
the idiosyncracies of the particular decisionmaker, such as unusual propensities
toward harshness or leniency.” Id. And even if these factors “may actually have
entered into counsel’s selection of strategies and, to that limited extent, may thus
affect the performance inquiry, they are irrelevant to the prejudice inquiry.” Id.
Thomas is therefore asking us to make the assumption forbidden by Strickland: that
he was prejudiced by a jury who, by virtue of the pool they were drawn from, had a
propensity toward harshness.



                                        -14-
       Thomas, like all criminal defendants, was entitled to a jury “selected from a fair
cross section of the community.” Duren v. Missouri, 439 U.S. 357, 359 (1979). But
as the Arkansas Supreme Court pointed out, Thomas “failed to prove any systematic
exclusion of black people from the jury-selection process.” Thomas, 257 S.W.3d at
99. We have previously held that a petitioner’s failure to show an unconstitutional
jury selection process “precludes a finding of prejudice springing from ineffective
assistance.” Wharton-El v. Nix, 38 F.3d 372, 377 (8th Cir. 1994); see also Phea v.
Benson, 95 F.3d 660, 662 (8th Cir. 1996) (“[B]ecause [applicant] has not
demonstrated that the composition of the jury violated the requirements of the Sixth
Amendment, counsel was not ineffective for failing to object.”). The same principle
applies here: because Thomas got a constitutionally adequate jury, he was not
prejudiced.8 The district court did not err in denying Thomas a hearing for his jury-
pool ineffective-assistance claim.

                      C. McCoy Sixth Amendment Violation

       Finally, Thomas contends Trial Counsel violated the Sixth Amendment by
telling the jury, in his opening argument, that Thomas had killed the victims and was
“going to the penitentiary.” Under McCoy v. Louisiana, Thomas explains, a criminal
defendant has the right to veto his attorney’s decision to make such concessions at

      8
        Moreover, even if his argument were permissible, Thomas would also have to
establish a probability that the trial court would have granted a motion to expand the
jury pool. We doubt he could meet this burden. Trial Counsel did, in fact, move for
an expanded jury pool, but was unable to provide demographic data supporting the
argument until trial was underway. Yet the trial court recognized the force of the
argument before denying the motion. See Thomas, 257 S.W.3d at 99 (“[T]he trial
court did not err by denying [Thomas’s] motion to expand the jury pool.”).




                                          -15-
trial. 138 S. Ct. at 1505. While Thomas’s federal habeas application alleged
ineffective assistance and structural error based on Trial Counsel’s concessions,
McCoy was not decided until after the district court denied relief on this claim.
Thomas now asks us to revisit his concession-based claim in light of McCoy and
order a hearing so he can prove Trial Counsel made concessions against his expressed
wishes.

       The parties debate whether and to what extent Thomas raised this claim in state
court, and in turn dispute whether we can order a hearing. Thomas raised a
concession-based ineffective-assistance claim in his Rule 37 petition, and the Rule
37 court denied relief. Thomas did not appeal this decision. As such, if Thomas’s
present claim is essentially the same claim as the one he raised in state court (even in
light of the McCoy decision), we cannot order a hearing or grant relief. By failing to
appeal the Rule 37 court’s decision, the claim is procedurally defaulted and cannot
be excused under Trevino. Martinez, 566 U.S. at 16 (refusing to apply the Trevino
rule to appeals from initial-review collateral proceedings). Moreover, the Rule 37
court’s adjudication of the concession-based ineffective-assistance claim on the
merits — i.e., that Trial Counsel’s concessions did not violate Strickland — was
reasonable and is therefore unreviewable. See 28 U.S.C. § 2254(d) (forbidding
federal habeas relief on claims reasonably adjudicated on the merits by a state court);
see also Greene v. Fisher, 565 U.S. 34, 39 (2011) (explaining that the reasonableness
of a state court’s legal analysis under § 2254(d)(1) is typically determined by the
then-existing Supreme Court precedent); cf. Holder v. United States, 721 F.3d 979,
988–90 (8th Cir. 2013) (finding no Strickland violation when trial counsel
strategically conceded “all-but-indisputable” act requirements).

      To avoid this result, Thomas says he never brought the present claim before the
Rule 37 court in the first place. In his federal habeas application, Thomas explains,




                                         -16-
he argued that Trial Counsel’s concessions constituted “structural error,” triggering
a presumption of prejudice and a violation of the Sixth Amendment. It was precisely
this kind of presumptively-prejudicial structural error that the Supreme Court would
later identify in McCoy. 138 S. Ct. at 1511. But no such presumptively-prejudicial
structural error (“McCoy-type claim”) was alleged in the initial Rule 37 petition.
Rather, the Rule 37 petition simply accused Trial Counsel of violating Strickland
when informing the jury that Thomas was guilty and was going to prison. The two
claims, Thomas maintains, are different. And by failing to raise the McCoy-type
claim in the Rule 37 petition, the McCoy-type claim was procedurally defaulted ab
initio. Under Trevino, Thomas reminds us, postconviction counsel’s “ineffectiveness,
if proved, establishes ‘cause for any procedural default [Thomas] may have
committed in not presenting [this] claim[] to the [Arkansas] courts in the first
instance.” Sasser, 735 F.3d at 853 (emphasis added) (quoting Williams, 529 U.S. at
444). A hearing is therefore necessary, Thomas argues, so he can establish cause for
procedural default.

       But even if we assume many key premises of Thomas’s argument,9 he is not
entitled to a hearing. Ultimately, for us to excuse procedural default, Thomas must
show “actual prejudice.” See Coleman, 501 U.S. at 750. In other words, he must
show a reasonable probability that, but for Rule 37 Counsel’s failure to raise the


      9
       We may assume, without deciding or commenting on the merits of, the
following propositions: (1) Thomas’s present claim is legally and factually distinct
from the one raised in state court; (2) Rule 37 Counsel fell below the constitutional
standard of competence by failing to present this claim in state court; (3) a McCoy-
type claim does not require a showing of Strickland prejudice; (4) the restrictions on
habeas hearings articulated in § 2254(e)(2) do not apply to Thomas’s present claim;
and (5) Trial Counsel actually violated the principles articulated in McCoy by
conceding guilt against Thomas’s expressed wishes.




                                        -17-
McCoy-type claim in the Rule 37 petition, he would have been granted relief by the
Rule 37 court. See Fischetti v. Johnson, 384 F.3d 140, 155 (3d Cir. 2004) (applying
Strickland’s prejudice standard in a default-by-ineffective-assistance “actual
prejudice” inquiry); Reed v. United States, 106 F.3d 231, 236 (8th Cir. 1997) (calling
Strickland’s prejudice standard an “actual prejudice” standard); see also Sawyer v.
Whitley, 505 U.S. 333, 345 & n.13 (1992) (analogizing Coleman’s “actual prejudice”
standard to Strickland’s prejudice standard).

        Thomas cannot meet this burden. At the time of the Rule 37 hearing, McCoy
had not yet been decided.10 The leading case then was Florida v. Nixon, which held
that trial counsel’s concessions do not constitute presumptively-prejudicial structural
error when the defendant is indifferent about trial strategy. 543 U.S. 175, 179, 191
(2004) (“Counsel therefore may reasonably decide to focus on the trial’s penalty
phase, at which time counsel’s mission is to persuade the trier that his client’s life
should be spared.”); see also Malcom v. Houston, 518 F.3d 624, 627 (8th Cir. 2008)
(explaining that we “rarely presume prejudice in ineffective assistance of counsel
cases”). And, in Thomas’s case, Trial Counsel had notes from the eve of trial
indicating that Thomas had no problem admitting he was guilty of “something but not
capital murder.”

      It is highly unlikely that the Rule 37 court would have found Trial Counsel’s
concessions one of the “rare” instances of presumptively-prejudicial structural error,
especially in light the Supreme Court’s Nixon decision. See Malcom, 518 F.3d at
627. Rather, under Nixon, the Rule 37 court would not have presumed prejudice; it


      10
        Thomas does not argue that McCoy applies retroactively; he simply argues
the principles underlying the McCoy decision were in place at the time of his trial and
should be applied to his case.




                                         -18-
would have applied the Stickland standard, which would require Thomas to establish
both that Trial Counsel, by conceding guilt, fell below the constitutional standard of
competence and that prejudice resulted. Nixon, 543 U.S. at 192 (requiring application
of Strickland); see also State v. Fudge, 206 S.W.3d 850, 858 n.2 (Ark. 2005) (“There
is no presumption of deficiency or prejudice under Strickland even to a concession
of guilt on the capital-murder charge itself[.]”). And it is equally unlikely that the
Rule 37 court would have found Trial Counsel’s concessions violated Strickland.
After all, as the Rule 37 court held in Thomas’s similar (but purportedly distinct)
concession-based ineffective-assistance claim, Trial Counsel’s decision to concede
guilt was a tactical decision made in the face of overwhelming evidence, and was
neither “grounds for finding counsel to be ineffective” nor prejudicial. We therefore
do not find it likely that the Rule 37 court would have granted relief on the McCoy-
type claim.

       To summarize: Thomas’s McCoy-type claim is procedurally defaulted. We
cannot excuse the default, because the default can only be excused if Thomas can
establish a reasonable probability that relief would have been granted had Rule 37
Counsel raised the claim. Under the then-existing Nixon framework, it is not
reasonably probable that relief would have been granted. So even if Thomas could
prove Trial Counsel violated McCoy, he still would not be entitled to relief. As such,
a federal hearing is not appropriate. Schriro, 550 U.S. at 474.

                                   III. Conclusion

       Thomas’s procedural default on his guilt-and-penalty ineffective-assistance
claims cannot be excused. Therefore we reverse the district court’s grant of relief
with respect to his penalty-phase ineffective-assistance claim, and we affirm the
district court’s denial of relief with respect to his guilt-phase ineffective-assistance




                                         -19-
claim. Likewise, we affirm the district court’s denial of a hearing and of relief for
Thomas’s jury-pool ineffective-assistance claim. Finally, we reject Thomas’s request
for a hearing under McCoy.
                      ______________________________




                                        -20-
