                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 11-3703
                         ___________________________

                                     Max C. Eastin

                         lllllllllllllllllllllPlaintiff - Appellant

                                            v.

             Ray Hobbs, Director, Arkansas Department of Correction

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                      Appeal from United States District Court
                  for the Eastern District of Arkansas - Pine Bluff
                                   ____________

                              Submitted: June 12, 2012
                               Filed: August 21, 2012
                                   ____________

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
                          ____________

GRUENDER, Circuit Judge.

      Max C. Eastin, an inmate in the custody of the Arkansas Department of
Correction, appeals the district court’s1 denial of his 28 U.S.C. § 2254 petition for


      1
       The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendations of the Honorable Beth
Deere, United States Magistrate Judge for the Eastern District of Arkansas.
federal habeas corpus relief from his state convictions on a number of drug-related
charges. We affirm.

I.    BACKGROUND

       Eastin was arrested after a search of his houseboat uncovered evidence of
methamphetamine manufacturing. Initially, his attorney filed motions to suppress
evidence from the search of the houseboat and for disclosure of the identity of the
informant whose information had provided the probable cause for the search warrant.
The trial court refused to order the prosecution to reveal the identity of the informant,
though, and Eastin’s counsel then told the court that he could not proceed to argue his
motion to suppress without the informant’s identity because the motion was based
primarily on what he argued was the state’s failure to establish the informant’s
reliability. The court then denied the suppression motion.

       After a jury trial, Eastin was convicted of manufacturing methamphetamine,
using paraphernalia to manufacture methamphetamine, possessing a controlled
substance, and simultaneously possessing drugs and a firearm, and he was sentenced
to 480 months’ imprisonment. Eastin appealed his conviction on a number of
grounds, including that his motion to suppress should have been granted because the
search warrant was based on the testimony of an informant whose reliability had not
been established. An Arkansas appellate court vacated the conviction, finding
Eastin’s suppression argument to be meritorious. Eastin v. State, 244 S.W.3d 718,
723-26 (Ark. Ct. App. 2006). However, the Arkansas Supreme Court granted the
state’s petition for review and reversed the appellate court’s decision, holding that
Eastin had not properly preserved his suppression argument. Eastin v. State, 257
S.W.3d 58, 63-65 (Ark. 2007).

      Eastin then filed a petition for post-conviction relief pursuant to Arkansas Rule
of Criminal Procedure 37.1, claiming that his trial counsel had been ineffective for

                                          -2-
failing to preserve the suppression argument. The trial court denied his petition, and
Eastin appealed to the Arkansas Supreme Court. The Arkansas Supreme Court held
that Eastin could not show prejudice from his trial counsel’s failure to preserve the
suppression argument and affirmed the trial court’s denial of his petition for post-
conviction relief. Eastin v. State, No. CR 08-1189, 2010 WL 2210924, at *3-4 (Ark.
June 3, 2010).

      Eastin then filed this federal habeas corpus action, raising a number of claims
including that he was denied effective assistance of counsel because of his trial
counsel’s failure to preserve the suppression argument. The district court dismissed
Eastin’s petition with prejudice but granted a certificate of appealability on the
question of whether Eastin had established ineffective assistance of counsel on the
suppression-preservation question.2

       On appeal, Eastin argues that the district court erred in denying his ineffective
assistance of counsel claim. He contends that he is entitled to habeas corpus relief
because his trial counsel was constitutionally ineffective in not properly preserving
the suppression argument and that he was prejudiced as a result because, if his trial
counsel had properly moved to suppress the evidence from the houseboat: (1) the
Arkansas Supreme Court would not have disturbed the appellate court judgment
vacating Eastin’s conviction; (2) the motion would have been granted as the search
warrant was deficient under the Arkansas Rules of Criminal Procedure; and (3) the
motion would have been granted because the search violated the Fourth Amendment.




      2
        The district court also granted a certificate of appealability on an independent
Fourth Amendment claim, but Eastin has abandoned that claim in his briefs and at
oral argument.

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II.   DISCUSSION

       Under 28 U.S.C. § 2254, we grant habeas corpus relief to a state prisoner
whose claims were adjudicated on their merits in state court proceedings only if those
proceedings “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 in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). “A state court decision may be incorrect, yet still not unreasonable, and
we will grant relief only if the state court decision is both incorrect and
unreasonable.” Cole v. Roper, 623 F.3d 1183, 1187 (8th Cir. 2010), cert. denied, 565
U.S. ---, 132 S. Ct. 147 (2011). In federal habeas proceedings, “a determination of
a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C.
§ 2254(e)(1).

       Ineffective assistance of counsel claims are governed by the two-pronged test
in Strickland v. Washington, 466 U.S. 668 (1984). For a claim to be cognizable,
counsel’s performance must rise to a level of constitutional deficiency, and the
defendant must show a reasonable probability that, “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 695. Failure
to file a meritorious motion to suppress can constitute ineffective assistance of
counsel if it resulted in prejudice. Kimmelman v. Morrison, 477 U.S. 365, 375
(1986).

      Eastin first contends that he was prejudiced by his trial counsel’s failure to
preserve the suppression issue because had his trial counsel properly preserved the
suppression issue the Arkansas Supreme Court would not have reversed the appellate
court’s judgment suppressing the evidence found on the houseboat. As a result, the
appellate court’s judgment would have remained in force, and his conviction would
have been vacated.

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       However, Eastin cannot rely on the overturned appellate court’s judgment.
Under Arkansas law, when the Arkansas Supreme Court grants a petition for review,
it treats the appeal as if it were originally filed in the Arkansas Supreme Court,
reviewing the trial court’s judgment only and not the appellate court’s judgment.
Hamm v. State, 232 S.W.3d 463, 467 (Ark. 2006). As a result, the Arkansas Supreme
Court’s decision to reverse the appellate court and affirm the trial court’s judgment
on the basis of Eastin’s failure to preserve his suppression argument cannot be read
to mean necessarily that in the absence of counsel’s failure to preserve the
suppression issue the Arkansas Supreme Court would have allowed to stand the
appellate court’s reasoning with respect to the merits of the suppression issue. As the
Arkansas Supreme Court itself said in its denial of Eastin’s petition for post-
conviction relief, “We made no determination regarding the merits of Eastin’s
arguments” on direct appeal. Eastin, 2010 WL 2210924, at *4. Eastin provides no
basis for his assumption that a motion to suppress would have been meritorious based
on the Arkansas Supreme Court’s decision to reverse on a procedural ground rather
than reach the merits of the legality of the search. Eastin has therefore not carried his
burden of showing prejudice from the alleged ineffective assistance.

       Eastin’s second argument is that he was prejudiced by his trial counsel’s failure
to preserve the suppression issue because had his trial counsel properly moved for
suppression of the evidence from the houseboat such a motion would have been
meritorious under the Arkansas Rules of Criminal Procedure governing search
warrants and motions to suppress and would therefore have changed the outcome of
the proceeding. Arkansas Rule of Criminal Procedure 13.1 provides that, in
applications for search warrants relying on affidavits based “in whole or in part on
hearsay, the affiant or witness shall set forth particular facts bearing on the
informant’s reliability and shall disclose, as far as practicable, the means by which the
information was obtained.” Eastin argues that the affidavit presented in support of
the application for the search warrant in his case, which was based largely on hearsay



                                          -5-
from a single confidential informant, did not adequately provide facts supporting that
informant’s reliability.

       The affidavit, though, described information that the informant provided to the
affiant police officer: specific characteristics of Eastin’s houseboat, which the
informant claimed was a locus of methamphetamine production; identification of the
inhabitants of the houseboat, Eastin and his girlfriend; the specific dock location of
the houseboat; and the fact that the houseboat was sailing at night onto Lake DeGray,
allegedly so that methamphetamine could be produced in secret. The affiant police
officer confirmed with dock officials and a county investigator the characteristics of
the houseboat, its inhabitants, its location, and its nocturnal expeditions.

       Under Arkansas law, there are three factors for evaluating the reliability of an
informant: “1) whether the informant was exposed to possible criminal or civil
prosecution if the report is false; 2) whether the report is based on the personal
observations of the informant; and 3) whether the officer’s personal observations
corroborated the informant’s observations.” Frette v. City of Springdale, 959 S.W.2d
734, 741 (Ark. 1998). “The first factor is satisfied whenever a person gives his or her
name to authorities or if the person gives the information to the authorities in person.”
Id. The informant in this case met with the affiant police officer in person. “With
regard to the second factor, ‘an officer may infer that the information is based on the
informant’s personal observation if the information contains sufficient detail that it
[is] apparent that the informant had not been fabricating [the] report out of whole
cloth.” Id. (alterations in original) (quoting State v. Bybee, 884 P.2d 906, 908 (Or.
Ct. App. 1994)) (internal quotation omitted). In addition to the corroborated details
mentioned above, the informant provided such details, observed firsthand, as the
presence of a pill soak on board the houseboat. “The third and final element may be
satisfied if the officer . . . finds the person, the vehicle, and the location as
substantially described by the informant.” Id. This element was satisfied here as
well, in light of the affiant officer’s confirmation of the details provided by the

                                          -6-
informant. Eastin has therefore failed to show that the Arkansas Supreme Court’s
presumptively correct finding that he “has failed to provide a basis upon which trial
counsel could have presented a meritorious argument regarding the informant’s
reliability” was in error. Eastin, 2010 WL 2210924, at *4.

       Eastin’s final argument is that he was prejudiced by his trial counsel’s failure
to preserve the suppression issue because had his trial counsel moved properly for
suppression of the evidence from the houseboat such a motion would have been
meritorious under the Fourth Amendment. Even if the search warrant were to have
lacked probable cause, though, Eastin has advanced no argument as to why the
execution of the search warrant would not fall under the “good faith” exception to the
exclusionary rule set out in United States v. Leon, 468 U.S. 897 (1984). Eastin has
never argued that the “magistrate or judge in issuing [the] warrant was misled by
information in an affidavit that the affiant knew was false or would have known was
false except for his reckless disregard of the truth . . . [or that] the issuing magistrate
wholly abandoned his judicial role.” Leon, 468 U.S. at 923. Eastin has failed to show
that a motion to suppress would have been meritorious under the Fourth Amendment.

       Eastin has not met his burden of showing that, but for the claimed ineffective
assistance, “the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. Therefore, we do not find the Arkansas Supreme Court’s decision that
Eastin was not prejudiced by any deficient performance on the part of his counsel to
be “contrary to, or involv[ing] an unreasonable application of, clearly established
Federal law” or to have rested on an unreasonable interpretation of the evidence. 28
U.S.C. § 2254(d).

III.   CONCLUSION

       For the foregoing reasons, we affirm.
                       ______________________________

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