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September 23, 1988


The opinion of the court was delivered by: EISELE


 Petitioners seek a writ of habeas corpus to prevent the execution of Intervenor Ronald G. Simmons by Respondent Director of the Arkansas Department of Corrections. Before the Court are the Petition for Writ of Habeas Corpus, with supporting briefs, and Respondent's and Intervenor's opposing briefs. The Court finds that Petitioners lack standing to assert any claims which may be knowingly and intelligently waived by Simmons, including the claim that the State is required to give Simmons at least one appellate review of the death sentence imposed on him. The Court further finds that additional inquiry is necessary to establish whether Simmons wishes to waive his federal habeas corpus relief, and whether he is competent to do so. A hearing, with Simmons present, is therefore ordered on those issues.






A. Traditional Grounds of Jurisdiction
1. Petitioners' direct interest standing
2. Simmons's right to waive appeal if competent
3. Conclusion as to traditional jurisdiction
B. Constitutional Dimensions of Death Penalty Appellate Review
1. Relationship Between Standing and Merits of Mandatory Appeal Claim
2. Overview of Mandatory Appeal Claim
3. Development of principles
4. Application of principles
A) Arbitrary and capricious imposition
B) Violation of contemporary standards
C) Lack of individualized consideration
C. Conclusion as to the Mandatory Appeal Claim



 On May 16, 1988, Intervenor Ronald G. Simmons was convicted of capital murder and sentenced to death in the Circuit Court of Franklin County, Arkansas. Franz v. State, 296 Ark. 181, 183, 754 S.W.2d 839 (1988). Immediately after being sentenced, Simmons took the stand and made a statement that he thought the sentence was appropriate and that he did not wish any appeal to be taken or that anything be done to interfere with his execution. Id. A hearing was held concerning Simmons's desire and competence to waive appellate review, and, after hearing evidence, the trial court found that Simmons had made a rational choice and knowingly and intelligently waived his right to an appeal. Id., at 190, 192. The same conclusion was reached at a subsequent competency hearing held at the request of Rev. Louis J. Franz, one of the Petitioners here. Id., at 192-3.

 As the date of execution neared, Petitioner Franz petitioned the Arkansas Supreme Court to allow him to proceed in that Court on Simmons's behalf as next friend, asked for a stay of execution, and asked that the Court make appeal mandatory in death cases. Id., 296 Ark., at 183. The Arkansas Supreme Court stayed the execution, but ultimately rejected Franz's claims on the merits.

 As to Franz's standing to prosecute any issues which might be available to Simmons on appeal, the Court held that Franz did not show a close enough relationship to Simmons to qualify as a next friend, and that taxpayer standing was not permitted to Franz under Article 16, section 13 of the Constitution of Arkansas. Furthermore, the fact that review of an important issue might otherwise be impossible was not sufficient to give Franz standing. Id., at 184-6.

 On the merits, the Court reaffirmed its decision in Collins v. State, 261 Ark. 195, 211, 548 S.W.2d 106, 115 (1977) cert. denied, 434 U.S. 878, 54 L. Ed. 2d 158, 98 S. Ct. 231 (1977), that neither Arkansas law nor the United States Constitution requires mandatory appellate review. Id., at 186-8. The Court reiterated its holding in an earlier case that an appeal would be provided in each death case unless the defendant elected to waive review. No waiver would be permitted unless the defendant was judicially found competent to make a knowing and intelligent waiver, and all waiver decisions would be reviewed by the Arkansas Supreme Court. Id., at 188-9. Hence, the Court reviewed the record on Simmons's competence and desire to waive, found that both were satisfactorily established, and accepted his decision to waive further review. Id., at 190-4.

 Petitioners Franz and Darrel Wayne Hill next filed a Petition for Writ of Habeas Corpus in this Court, asserting various claims concerning the legality of Simmons's death sentence. This Court granted a stay of execution in order to consider the issues raised by that Petition.


 The procedures and standards to which a sentencing body of the state of Arkansas must conform in determining whether a sentence of death is to be imposed upon a conviction of capital murder are set forth in Ark. Code Ann. 5-4-601 through 5-4-617, see Ark.Code Ann. 5-4-601(a). A death sentence may only be imposed by a jury after a bifurcated trial at which guilt and sentence are considered separately. See Ark. Code Ann. 5-4-602 (bifurcated trial procedure); Ark.Code Ann. 5-4-608; Ark. R. Cr. P. 31.4 (defendant may only plead guilty to capital felony if prosecutor and court agree to waive the death penalty); Ruiz v. State, 275 Ark. 410, 630 S.W.2d 44, 46 (1982) (same).

 After returning a guilty verdict in a capital case, the jury is instructed to find (1) whether any of the aggravating conditions listed in Ark.Code Ann. 5-4-604 accompanied defendant's crime; (2) whether the aggravating circumstances outweigh any mitigating circumstances, including but not limited to those mitigating circumstances listed in Ark. Code Ann. 5-4-604; and (3) whether the aggravating circumstances justify a sentence of death beyond a reasonable doubt. Ark. Code Ann. 5-4-603(a) (Supp. 1987). If the jury answers yes to each issue, it "shall impose a sentence of death." Id. In Simmons's cases, the jury found as an aggravating circumstance that Simmons "in the commission of the capital murder knowingly created a great risk of death to a person other than the victim." Ark. Code Ann. 5-4-604(4).

 "The trial judge is not required to impose the death penalty in every case in which the jury verdict prescribes it." Collins, 261 Ark. at 206. Entry of judgment may be postponed up to 30 days following the verdict, during which time information relevant to the appropriateness of the sentence may be collected and considered by the Court. Id.; Ark. Code Ann. 16-90-105(b). [Arkansas has recodified its statutes since Collins was decided. References are to current code numbers.] "When the defendant appears for sentencing, he must be asked if he has any legal cause why sentence should not be pronounced against him." Id., at 207; Ark.Code Ann. 16-90-106(b). "He may show for cause against the judgment any sufficient ground for new trial or for arrest of judgment." Id.; Ark.Code Ann. 16-90-106(c).

 "The trial court has the power, in its discretion, to reduce a death sentence to life imprisonment, or to grant a new trial." Id.; Ark.Code Ann. 16-90-107(e). "In considering grounds for a new trial, powers of the trial judge are great and the latitude of his discretion broad, and have always been, in this state." Id. "The presiding judge must necessarily have a wide discretion to set aside a verdict where, in his judgment, it was tainted by passion, sympathy, prejudice, corruption, or any other sinister influence, and therefore was not responsive to the law and the evidence; and his exercise of that discretion will not be interfered with on appeal unless there has been an abuse of discretion." Id., 261 Ark. at 208; see generally, id., at 208-10. "Thus, it is quite clear that the trial judge has the power and the duty to reduce the punishment from that for capital felony to that for life felony or any of the other degrees of homicide, if he finds the evidence insufficient to support the higher degree of homicide and sufficient only to support the lesser degree." Id., at 210. Additional trial court review of Constitutional objections to the death penalty is available under Ark. R. Cr. P. 37, post-conviction relief. Id.

 Generally, death sentence appeals are governed by the same portions of the Arkansas Code and the Rules of Criminal Procedure as other criminal appeals. For a summary of the appellate procedure applicable, see Collins, 261 Ark. 195 at 211-2, 548 S.W.2d 106. (While Ark.Code Ann. 5-4-603(d) and (e) contain special provisions bearing on the appellate review of the jury's finding of aggravating circumstances, these provisions are not relevant to the Petition here before the Court.)

 Rule 36.1 of the Arkansas Rules of Criminal Procedure provides in part that "any person convicted of a misdemeanor or a felony by virtue of trial in any circuit court of this state has the right to appeal to the Arkansas Court of Appeals or to the Supreme Court of Arkansas." The defendant is to be informed of this right at the time sentence is announced and judgment entered. Ark.Code Ann. 16-90-105. Criminal appeals take precedence over all other business of the Court. Ark. Code Ann. 16-91-103.

 Rule 36.4 states that "the Supreme Court need only review those matters briefed and argued by the appellant provided that where either a sentence for life imprisonment or death was imposed, the Supreme Court shall review the entire record for errors prejudicial to the right of the appellant." (Emphasis added.) This review includes examination of the appropriateness of the death penalty in the particular case before the Court. See, generally, Collins, 261 Ark. at 212-7. The defendant is assured of assistance of counsel should he desire to take an appeal by Rule 36.26, which mandates that "trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause."

 The Arkansas Statutes and Rules of Criminal Procedure do not on their face require an appeal before a death sentence may be imposed. However, in Remeta v. State, 294 Ark. 206, 207, 740 S.W.2d 928 (1987), the Court ruled that "the death penalty would not be imposed without an appeal or a knowing and intelligent waiver of appeal by the defendant." Followed Parker v. Enfield, 296 Ark. 218, 752 S.W.2d 283 (1988); Franz, 296 Ark. at 188. "In Arkansas, a defendant sentenced to death will be able to forego a state appeal only if he has been judicially determined to have the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all right to appeal his sentence." Franz, 296 Ark. at 189. This waiver standard is deemed to be more rigorous than that required by the United States Constitution under Rees v. Peyton, 384 U.S. 312, 314, 16 L. Ed. 2d 583, 86 S. Ct. 1505 (1966). 296 Ark. at 188-9. Furthermore, the Arkansas Supreme Court "must review a lower court's determination on the issue of the waiver of an appeal in a capital case," and "the State has the burden of bringing the record of the lower court proceeding on the issue to [that] Court for review" before an execution may take place. 296 Ark. at 189-90.


 Petitioner Franz avers that he has standing as an Arkansas taxpayer under a provision of the Arkansas Constitution, and also that he should be appointed next friend of Simmons. Petitioner Hall avers that he is, like Simmons, an Arkansas death row inmate who will suffer irreparable harm if the Arkansas Supreme Court does not review Simmons's sentence. Specifically, Petitioner Hall alleges that the proportionality review the state Supreme Court has committed itself to carry out will be skewed or impossible unless this case is included in the database of cases the Court considers. In addition, Petitioner Hall also argues that he should be appointed next friend of Simmons.

 First, Petitioners claim that Arkansas's failure to require a mandatory appeal of all death sentences constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and also deprives Simmons of due process of law in violation of the Fourteenth Amendment to the United States Constitution. See Petition, Ground One. This claim is conveniently considered apart from the others because it would arise whether or not Simmons is competent to waive his rights. If at least one appellate review is required by the United States Constitution and if the constitutional requirement is enforceable by the lower federal courts, the requirement by definition cannot be omitted at the defendant's instance.

 Second, under the competency claims, Petitioners allege a group of claims which could be waived by a competent defendant. Petitioners' right to assert these claims, therefore, depends upon a finding that Simmons is incompetent to make such a waiver. Petitioners argue that if a finding of incompetence is made, then a next friend, guardian ad litem, or similar representative should be appointed to assert any available grounds for reversal or setting aside of the death sentence. The competency claims comprise the allegations that Simmons was denied effective assistance of counsel, that he was incompetent to stand trial and to attempt waiver of any rights he may have had to appeal, that he was denied the right to a fair trial and a reliable determination of his sentence, and that no valid aggravating circumstances were found. See Petition, Grounds Two through Five.


 The Court now turns to the question of whether it may allow Arkansas to execute Simmons when the State does not require at least one appellate review of the death sentence and when no such review has in fact been given. Petitioners' contention is that the Constitution requires an appellate review of all cases in which the death sentence has been imposed, and that Petitioners may enforce that Constitutional mandate by means of this habeas corpus proceeding.

 As a preliminary matter, it is necessary to adopt precise terminology. Petitioners and courts in other cases have tended to use the phrases "automatic appeal" and "mandatory appeal" interchangeably. See, e.g., Justice George Rose Smith's dissent in Collins, 261 Ark. at 225-6: "a person condemned to death could waive the benefit of a mandatory appellate review, but, as I understand the Supreme Court's position . . . the mandatory review ought to be provided in the first place, leaving the accused the option of affirmatively declining it if he so desired." For the purposes of this Order, the Court will refer to an appeal of the type described by Justice Smith, which is undertaken automatically upon entry of sentence but which may be waived by the defendant, as an "automatic appeal." It will refer to a "mandatory appeal" as one which is initiated automatically upon entry of a death sentence and which may not be waived by the defendant. Cf. Collins, 261 Ark. at 204: ("We find nothing in any opinion, and certainly no majority, which supports a holding that there must be either a mandatory or automatic appeal of a judgment imposing the death penalty . . .") Under this terminology, Arkansas has automatic, but not mandatory, appeals in capital cases.

 It must be kept in mind that the question whether the Constitution requires the State to provide an appellate review in Mr. Simmons's case before it may execute him is to a degree separate from the question of whether this Court may enforce such a requirement in this proceeding. Not all Constitutional obligations are enforceable in federal courts. As a general rule, unless a party can first establish that his relation to the substantive claim sought to be litigated is such as to give him standing to bring that matter before the Court, that party may not advance the claim. Logically, then, the analysis begins with jurisdiction. As will be seen, however, because of the unusual nature of some of Petitioners' claims, it cannot end there.


 1. Petitioners' Direct Interest Standing

 The jurisdiction of the federal courts under Article III of the United States Constitution extends only to "cases and controversies." The mere fact that the Constitution is arguably not being complied with in some respect does not automatically give a court power to correct the dereliction. This Court is not a roving constitutional ombudsman, righting wrongs as they may be brought to its attention. Only parties with the requisite standing may seek to vindicate rights through federal litigation. Even one who feels strongly that another's rights are being ignored or violated may not rely ...

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