I don’t write about habeas appeals very often because they are judged by the Eighth Circuit Court of Appeals but I’ve got one that involves Arkansas appellate courts.
The client’s name is Max Eastin. A search warrant was served on his houseboat based on a confidential informant’s statements. The evidence discovered as a result led to a conviction for manufacturing methamphetamine. The affidavit for the search warrant did not state anything about the reliability of the informant as required by Arkansas Rule of Criminal Procedure 13.1.
His trial counsel knew enough to file a motion but not much more. His trial counsel failed to argue the motion. The Court of Appeals reversed his conviction because the affidavit failed to establish the reliability of the informant. Unfortunately, the Arkansas Supreme Court found the argument was not preserved because he did not argue the motion at the pre-trial hearing.
Easy win on ineffectiveness right? Wrong. The trial court and Arkansas Supreme Court found that there was no merit in a motion to suppress. His case has got to make you wonder: how do the Court of Appeals and Supreme Court see the same issue so differently? Not only did they radically differ on whether the argument was preserved but they also disagreed about whether there was probable cause for the warrant to be issued.
The only real question on habeas review is whether Eastin should get the benefit of the Court of Appeals judgment because if it was preserved their decision would have stood. That’s what I’m arguing. I guess we’ll see in the end. Nevertheless, it would be a horrible feeling to have your case reversed and essentially dismissed only to then be reversed again by the Supreme Court because your attorney failed to follow through on the motion.