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August 28, 1986


The opinion of the court was delivered by: EISELE

 GARNETT THOMAS EISELE, United States District Judge

 On October 30, 1979, petitioner was sentenced to death by electrocution for capital felony murder, and life imprisonment for aggravated robbery. The conviction and death sentence for capital murder were affirmed by the Arkansas Supreme Court, but the aggravated robbery conviction and sentence were vacated on double jeopardy grounds. Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981). Certiorari was denied by the United States Supreme Court. Petitioner then sought permission to proceed under Rule 37 of the Arkansas Rules of Criminal Procedure. Permission was denied by the Arkansas Supreme Court and an execution date was set for June 4, 1982. The Arkansas Supreme Court denied petitioner's request for a stay of execution. On June 1, 1982, this Court granted petitioner a stay of execution and petitioner's first petition for writ of habeas corpus was filed. Petitioner subsequently filed an amended petition. The State of Arkansas responded. An evidentiary hearing was held to resolve the factual issues.

 The facts of the case were stated by the Arkansas Supreme Court, 274 Ark. at 128-29, as follows:

The victim, Mary Lou York, was murdered in York's Grocery Store at Hamburg on June 1, 1979. She died from loss of blood as a result of two stab wounds in her neck.
The evidence of guilt in this case is overwhelming. Patti Franklin saw her relative Singleton enter York's Grocery at approximately 7:30 p.m. on the day of the crime. Shortly after he entered Patti heard Mrs. York scream, "Patti go get help. Charles Singleton is killing me." Patti then ran for help. Another witness, Lenora Howard, observed Singleton exit the store and shortly thereafter witnessed Mrs. York, who was "crying and had blood on her," come to the front door. Police Officer Strother was the first to arrive at the scene and found Mrs. York lying in a pool of blood in the rear of the store. The officer testified Mrs. York told him that Charles Singleton "came in the store, said this is a robbery, grabbed her around the neck, and went to stabbing her." She then told Officer Strother that "there's no way I can be all right, you know I'm not going to make it. I've lost too much blood." Mrs. York was taken to the hospital in an ambulance and was attended by her personal physician, Dr. J. D. Rankin. While enroute to the hospital, she told Dr. Rankin several times that she was dying and that Singleton did it. Mrs. York died before reaching the emergency room of the hospital. Officer Strother also testified that during examination of the premises, he found a money bag on the floor near the cash register which was empty, except for about $2.00 in change. He also stated that the cash register had only a small amount of change in it.

 Petitioner's grounds for the writ are briefly summarized as follows:

 1. Petitioner was denied a jury panel of a cross-section of the community because the jury panel was selected in a racially discriminatory manner.

 2. Petitioner was denied a jury of a cross-section of the community because of the manner in which potential jurors were summoned.

 3. The jury was "death qualified."

 4. The trial court failed to grant petitioner's motion for a change of venue.

 5. Petitioner was denied effective assistance of counsel because his counsel:

 a. Failed to challenge certain veniremen for cause;

 b. Failed to conduct an adequate voir dire re challenges for cause;

 c. Wrongly assented to the exclusion of a potential juror under Witherspoon who should not have been excluded;

 d. Failed to make an adequate appellate record for review of voir dire;

 e. Did not rehabilitate, for Witherspoon purposes, potential jurors excluded under that case.

 a. The proposition of inconsistent defenses;

 b. Failure to seek additional psychiatric examination;

 c. The admission of purported dying declarations of the victim;

 d. Admission of certain photographs of the deceased.

 7. Petitioner's arrest and the introduction of certain evidence seized from him violated his Fourth and Fourteenth Amendment Rights.

 8. The evidence adduced at trial was insufficient to support a conviction.

 9. The Arkansas statutory scheme is void for vagueness and violative of the Constitution because of the overlapping definitions of capital and first degree murder.

 10. The Arkansas statutory scheme is impermissibly vague in its element of "extreme indifference to the value of human life. "

 11. Petitioner's constitutional rights were violated at the penalty phase of the trial by:

 a. Counsel's failure to prepare or present evidence in mitigation;

 b. Counsel's making an inadequate and improper closing argument;

 c. The jury's ignoring evidence of mitigating circumstances;

 d. The vagueness of the definition of the term "pecuniary gain."

 e. The failure to comply with procedural requisites.

 12. The death penalty in this case violates the Constitution in that:

 a. It was imposed despite the absence of valid and non-vague aggravating circumstances in that only one aggravating circumstance was argued by the prosecution;

 b. The sentence was not in proportion to other death sentences. More aggravating circumstances were involved in other cases where death sentences were not given;

 13. The death penalty itself is unconstitutional.

 14. Petitioner is not mentally competent to be executed and to execute him would violate the Constitution under these circumstances.

 Most of the questions presented by Mr. Singleton's petition for habeas corpus are questions of law based upon an established record. The hearing was devoted principally to issues relating to Mr. Wellenberger's effectiveness as Mr. Singleton's attorney and with respect to the manner in which the jurors were originally placed on the list of 800 and, later, chosen to serve on the Singleton panel.

 Apparently, Mr. Singleton is not seriously challenging Mr. Wellenberger's effectiveness during the actual trial of his guilt or innocence. He does, however, raise questions about his effectiveness in challenging the jury selection system, in voir diring the jury, and in the handling of the penalty phase of the trial.

 The standard governing the Sixth Amendment right to effective assistance of counsel was recently articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064-2065, 80 L. Ed. 2d 674 (1984), in which the United States Supreme Court held:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
* * *
When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.
More specific guidelines are not appropriate. The Sixth Amendment refers simply to counsel, not specifying particular requirements of effective assistance. It relies instead on the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the Amendment envisions. See Michel v. New York, 350 U.S. 91, 100-101, 100 L. Ed. 83, 76 S. Ct. 158 (1955). The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.

 With respect to the element of "prejudice," the Court had the following to say, 104 S. Ct. at 2067-2068:

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365, 101 S. Ct. 665, 667-668, 66 L. Ed. 2d 564 (1981). The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.
* * *
Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, United States v. Agurs, 427 U.S. 97, 104, 112-113, 96 S. Ct. 2392, 2397, 2401-2402, 49 L. Ed. 2d 342 (1976), and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness, United States v. Valenzuela-Bernal, 458 U.S. 858, 872-874, 102 S. Ct. 3440, 3449-3450, 73 L. Ed. 2d 1193 (1982). The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law.

 In Kellogg v. Scurr, 741 F.2d 1099 (1984), the Eighth Circuit had the following to say about claims of ineffective assistance of counsel:

To succeed on a sixth amendment ineffective assistance of counsel claim, a defendant must show that his or her attorney failed to provide reasonably effective assistance which resulted in prejudice to the defense. Strickland v. Washington [466 U.S. 668], 104 S. Ct. 2052, 2064 [80 L. Ed. 2d 674] (1984). Reasonably effective assistance may be defined as "the skill and diligence that a reasonably competent attorney would exercise under similar circumstances * * *." Thomas v. Lockhart, 738 F.2d 304, 307 (8th Cir. 1984). Because "there are countless ways to provide effective assistance in any given case," Strickland, 104 S. Ct. at 2066, and to offset the "distorting effects of hindsight," id. at 2065, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," id. at 2066. See Wallace v. Lockhart, 701 F.2d 719, 726 (8th Cir.), cert. denied, [ 464 U.S. 934], 104 S. Ct. 340 [78 L. Ed. 2d 308] (1983); Comer v. Parratt, 674 F.2d 734, 736 (8th Cir.), cert. denied, 459 U.S. 856 [74 L. Ed. 2d 108, 103 S. Ct. 125] (1982). To establish that an attorney's inadequacy was also prejudicial, a defendant must show that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 104 S. Ct. at 2068.
An ineffective assistance of counsel claim presents a mixed question of law and fact. Eldridge v. Atkins, 665 F.2d 228, 236 n.5 (8th Cir. 1981), cert. denied, 456 U.S. 910 [72 L. Ed. 2d 168, 102 S. Ct. 1760] (1982). Therefore, the presumption of correctness accorded the factual determinations of the state court under 28 U.S.C. § 2254(d), and those of the district court under the clearly erroneous standard of Fed.R.Civ.P. 52(a), applies only to the historical facts underlying the attorney's performance but not to the ultimate conclusion as to whether or not effective assistance has been rendered. Thomas slip op. at 4 n.3; Strickland, 104 S. Ct. at 2070. Cf. Sumner v. Mata, 455 U.S. 591, 597 [71 L. Ed. 2d 480, 102 S. Ct. 1303] (1982).
* * *
We recognize that while no single error of an attorney may violate the sixth amendment, multiple errors viewed cumulatively may be constitutionally infirm. Harris v. Housewright, 697 F.2d 202, 206 (8th Cir. 1982).

 The record makes it clear that there was virtually no penalty phase trial. The question is: who was responsible for the failure to present evidence relating to mitigating factors at the penalty phase trial?

 The Court credits the testimony of Mr. Wellenberger that he was concerned with and worked on the penalty phase from the time of his first conference with Mr. Singleton on June 14. He began preparation for that phase of the trial on June 14. He explained the penalty phase to Mr. Singleton long before the trial and also at the trial. He requested Mr. Singleton to provide him with a personal history and the names of persons who could provide mitigating evidence. And the Court accepts Mr. Wellenberger's testimony that he in fact subpoenaed a witness to testify at the penalty phase and had also planned to use Singleton and/or his mother. The Court is further convinced, and so finds, that Mr. Singleton alone made the decision not to put on any evidence even though this was against the direct and specific advice of Mr. Wellenberger. And Mr. Singleton was adamant in regard to this decision.

 Mr. Wellenberger suggested that if Mr. Singleton chose not to testify he should nevertheless permit Mr. Wellenberger to put on a witness concerning Singleton's consumption of alcohol and marijuana and to try to get the Court to admit his handwritten personal history or, in the alternative, to call his mother for that purpose.

 The Court also accepts Mr. Wellenberger's testimony that his client admitted that he killed Mary Lou York and that Respondent's Exh. 1 is Mr. Singleton's statement of the true facts made to his attorney and not -- as stated by Mr. Singleton -- simply a statement of what he "told" the police. Such an admission to one's lawyer is an important circumstance which affects strategy decisions.

 The penalty phase was clearly deficient so the Court's decision turns upon the question of law: does the defendant or his attorney have the right to decide if evidence of mitigating circumstances should be introduced at the penalty phase? The Court is firmly convinced that Mr. Wellenberger would have put on such evidence if he had believed that the decision was his to make. However, he was convinced that under the law his client had the right and the authority to make that decision and therefore, after protest, accepted his decision.

 Before discussing this issue, it is important to note the charges against Mr. Singleton, the Arkansas statutory basis therefor, and the Arkansas statutory procedures governing the trial thereof.

 Mr. Singleton was charged by the Prosecuting Attorney in an Information filed on the 4th of June, 1979. Omitting the formal portions thereof it accuses:

 Thereafter, apparently later on the same day, the prosecutor filed a capital murder information in which he accused:

The defendant CHARLES LAVERN SINGLETON of the crime of CAPITAL MURDER, A CLASS A FELONY committed as follows, to-wit: The said defendant on the 1st day of JUNE, 1979, in Ashley County, Arkansas, did unlawfully, commit capital murder when acting alone or with one or more other persons, he did rob or attempt to rob York's Grocery Store in Hamburg, Ashley County, Arkansas; and in the course of and in furtherance of the said felony, he did cause the death of May Lou York by stabbing her in the throat, under circumstances manifesting extreme indifference to the value of human life. Capital murder is a Class A Felony.

 This latter charge was based upon Ark.Stat.Ann. § 41-1501 (1) (a) which states in pertinent part:

A person commits capital murder if: (a) acting alone or with one or more other persons, he commits or attempts to commit . . . robbery, . . ., and in the course of and in furtherance of the felony, . . ., he . . . causes the death of any person under circumstances manifesting extreme indifference to the value of human life. . . .

 The trial of persons charged of capital murder is governed by the procedure set out in Ark.Stat.Ann. § 41-1301 (1947) in pertinent part as follows:

The following procedures shall govern trials of persons charged with capital murder:
(1) The jury shall first hear all evidence relevant to the charge or charges and shall then retire to reach a verdict of guilt or innocence.
* * *
(3) If the defendant is found guilty of capital murder, the same jury shall sit again in order to hear additional evidence as provided by subsection (4) hereof, and to determine sentence in the manner provided by section 1302 [§ 41-1302]; except that, if the state waives the death penalty, stipulates that no aggravating circumstance exists, or stipulates that mitigating circumstances outweigh aggravating circumstances, no such hearing shall be required, and the trial court shall sentence the defendant to life imprisonment without parole.
(4) In determining sentence, evidence may be presented to the jury as to any matters relating to aggravating circumstances enumerated in section 1303 [§ 41-1303] or any mitigating circumstances. Evidence as to any mitigating circumstances may be presented by either the state or the defendant regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters; but the admissibility of evidence relevant to the aggravating circumstances set forth in section 1303 [§ 41-1303] shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant or his counsel shall be permitted to present argument respecting sentencing. [Acts 1975, No. 280, § 1301, p. 500.]

 The findings that are required to support a sentence of death are set forth in section 41-1302, Ark.Stat.Ann. (1947) as follows:

(1) The jury shall impose a sentence of death if it unanimously returns written findings that:
(a) aggravating circumstances exist beyond a reasonable doubt; and
(c) aggravating circumstances justify a sentence of death beyond a reasonable doubt.
(2) The jury shall impose a sentence of life imprisonment without parole if it finds that:
(a) aggravating circumstances do not exist beyond a reasonable doubt; or
(b) aggravating circumstances do not outweight [outweigh] beyond a reasonable doubt all mitigating circumstances found to exist; or
(c) aggravating circumstances do not justify a sentence of death beyond a reasonable doubt.
(3) If the jury does not make all findings required by subsection (1), the court shall impose a sentence of life imprisonment without parole. [Acts 1975, No. 280, § 1302, p. 500; 1977, No. 474 § 11, p. --.]

 "Aggravating circumstances" are identified and limited by section 41- 1303 of Ark.Stat.Ann. (1947).

Aggravating circumstances shall be limited to the following:
(1) the capital murder was committed by a person imprisoned as a result of a felony conviction;
(2) The capital murder was committed by a person unlawfully at liberty after being sentenced to imprisonment as a result of a felony conviction;
(3) the person previously committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another victim;
(4) the person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim;
(5) the capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody;
(6) the capital murder was committed for pecuniary gain; or
(7) the capital murder was committed for the purpose of disrupting or hindering the lawful exercise of any government or political functions. Acts 1975, No. 280 § 1303, p. 500; 1977 No. 474 § 12, p.]
(8) the capital murder was committed in an especially heinous, atrocious or cruel manner. [Acts 1975, No. 280, § 1303, p. 500; 1977, No. 474, § 12, p. 1127; 1985, No. 833, § 1, p. --.]

  Certain "mitigating circumstances" are identified in section 41-1304, but that section does not restrict such mitigating circumstances to those ...

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