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April 4, 1989

Barry Lee FAIRCHILD, Petitioner,
A. L. LOCKHART, Director, Arkansas Department of Correction, Respondent

The opinion of the court was delivered by: EISELE





 Petitioner Barry Lee Fairchild was convicted of capital murder and sentenced to death. The Arkansas Supreme Court affirmed the conviction and sentence on direct appeal, Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984) cert. denied, 471 U.S. 1111, 85 L. Ed. 2d 862, 105 S. Ct. 2346, (1985), and denied Mr. Fairchild substantive relief on his petition for post-conviction relief. Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985). Petitioner then sought relief via petition for habeas corpus in this Court, electing to pursue only grounds which could potentially secure him a new trial, as opposed to those which might result in a different sentence. This Court rejected the two claims advanced in petitioner's original petition, Fairchild v. Lockhart, 675 F. Supp. 469 (E.D. Ark. 1987), aff'd 857 F.2d 1204 (8th Cir. 1988), cert. denied, 488 U.S. 1051, 102 L. Ed. 2d 1007, 109 S. Ct. 884 (1989).

 Petitioner has now filed what he denominates a Successor Petition for Writ of Habeas Corpus, seeking to raise two new grounds for reversal of his conviction. The factual basis for both of these new grounds is an IQ test recently administered to petitioner, on which petitioner registered a Full Scale IQ of 63, a Verbal IQ of 69, and a Performance IQ of 61. The petition alleges that those scores are consistent with a finding that petitioner is "mentally retarded." Appended to the successor petition as supporting material are copies of the petitioner's medical records from his evaluations by both the Arkansas State Hospital and the Medical Center for Federal Prisoners, affidavits from some of petitioner's family and friends, petitioner's school records, the state court order for psychiatric evaluation, the report concerning the latest testing of petitioner's intelligence, and affidavits of his trial and habeas attorneys.

 For his first ground for habeas corpus relief, petitioner alleges that he did not intelligently and knowingly waive his Miranda rights before making the two confessions which were key evidence at his trial. Essentially, petitioner claims that he did not knowingly and intelligently waive his rights because he did not understand those rights or the consequences of his waiver thereof immediately before he made those confessions. Petitioner further claims that his inability to understand the rights as read and explained to him was compounded by the stressful situation in which he found himself at the time he was interrogated, stress to which he was especially susceptible because of his retardation. The claim as pled is not that petitioner was incapable of understanding his rights under any circumstances, but rather that he did not understand them under the circumstances obtaining at the time of his confessions. See Successor Petition for Writ of Habeas Corpus, at 13-19.

 As a second ground for granting the writ, petitioner alleges that the state's failure to provide a professionally adequate evaluation of petitioner's mental condition denied him due process of law. Petitioner asserts that the state failed to perform an adequate review of his mental condition, and that it also denied him the means of obtaining an adequate independent evaluation. The result of these failures, according to petitioner, is that neither he, his counsel, nor the jury was advised of petitioner's retardation. Petitioner further argues that, as a mentally retarded person, he was especially susceptible to being led to agree with statements and suggestions of the interrogating police officers. Also, it is contended that his statements are inherently more unreliable because his experiences and memory are "filtered" through his retardation. In other words, petitioner suggests that his retardation creates grounds for doubting the reliability of his confession, grounds which the jury was not allowed to consider because the state's acts and omissions prevented petitioner from developing the relevant evidence.

 The respondent has moved to dismiss the successor petition on procedural grounds. Respondent asserts that this second petition constitutes abuse of the writ under Rule 9(b) of the Rules Governing Section 2254 Cases and 28 U.S.C. § 2244(b). Respondent also asserts that petitioner has procedurally defaulted under the rule of Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977).


 As stated above, the State raises two procedural grounds for dismissal.

 A. Abuse of the Writ

 First, it is important to recall the words of the United States Supreme Court in Sanders v. United States, 373 U.S. 1, 8, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963):

Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged.

 Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts requires that a successive petition be dismissed if "it fails to allege new or different grounds for relief and a prior determination was made on the merits . . . ." If new and different grounds are alleged, the petition nonetheless may be dismissed "if the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ."

 The Rule is essentially a codification of the principles articulated in Sanders regarding denial of successive petitions. In trying to gives examples of what it thought constituted an abuse, the Court in that case said:

If a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one . . . ., he may be deemed to have waived his right to a hearing on a second application . . . . The same may be true if . . . . the prisoner deliberately abandons one of his grounds at the first hearing.

 Sanders at 18.

 There has been no showing by the State that Mr. Fairchild has deliberately withheld the current claims raised in the successor petition, or that he deliberately abandoned these claims in the earlier hearing before this court.

 Sanders relied on Fay v. Noia, 372 U.S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963), where the Court laid out the limits of the writ abuse doctrine. In that case the Court held that because habeas corpus is governed by equitable principles, "a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." Id. at 438. Thus, according to Fay, a petitioner loses his right to have a new claim considered in a successor petition only if he "understandingly and knowingly" waived the privilege of seeking to vindicate his claims in the earlier proceeding for "strategic, [or] tactical" reasons. Id. Again, this is not the situation here.

 The burden is on the government to allege with particularity and clarity the abuse of the writ. Sanders, 373 U.S. at 17. Once the State has met this burden, the petitioner has the burden of answering the allegation and of proving by a preponderance of the evidence that he has not abused the writ. Price v. Johnston, 334 U.S. 266, 292, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948). The petitioner may meet this burden by showing that the claim asserted for the first time in a successive petition is based on facts or legal theories of which the petitioner had no legal knowledge when making his first habeas petition. Williams v. Lockhart, 862 F.2d 155, 159 (8th Cir. 1988).

 The State rests heavily upon the Williams case, in which the Eighth Circuit adopted a rule first articulated by the Fifth Circuit Court of Appeals in Jones v. Estelle, 722 F.2d 159 (1983). In that case, the Court held that when a petitioner was represented by competent counsel in a prior habeas proceeding, as was Mr. Fairchild, the petitioner cannot justify the omission of claims by asserting personal ignorance because awareness of a potential claim is chargeable to his counsel, and therefore, to the petitioner. The Court recognizes this to be a strong argument. Nevertheless, it is persuaded that that argument should not control here.

 Nonetheless, the State argues that because many of the records which Mr. Hall relied upon in filing the successor petition were available to him when he made his previous report, or could have been discovered with reasonable diligence, his failure to raise these issues should preclude review now. Such a ruling would leave habeas petitioners in an extremely precarious position -- especially in cases such as this one where we are dealing with the death penalty, and the petitioner's mental status is at issue. It should be noted that no such issue was raised in the Williams case. Additionally, adopting the State's argument here would in no way serve the underlying purpose of the abuse of writ doctrine and of Rule 9(b) which is to avoid hearing successive claims "whose only purpose is to vex, harass, or delay." Sanders, at 18. As the Court in Sanders stated:

The principles governing . . . . denial of a hearing on successive application are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits. Even as to such an application, the federal judge clearly has the power -- and, if the ends of justice demand, the duty -- to reach the merits.

 Sanders, at 18.

 The Court finds that the successor petition does not constitute an abuse of the writ of habeas corpus. Moreover, it is the judgment of this Court that the ends of justice require that we reach the merits of Mr. Fairchild's present petition.

 B. Procedural Default

 The State's second procedural argument is that the successor petition rests on grounds that were not presented at any time to the state courts, and are, therefore, procedurally defaulted. As such, the State contends, this Court is barred from reaching the merits of petitioner's claim unless Mr. Fairchild establishes cause for default and prejudice arising therefrom as required by Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977).

 As the Eighth Circuit summarized in Smittie v. Lockhart, 843 F.2d 295 at 296 (1988), "Federal courts must conduct a four-step analysis to determine whether a petition may be considered when its claims have not been presented to a state court." citing Laws v. Armontrout, 834 F.2d 1401, 1412-15 (8th Cir. 1987).

 The first step is to determine if the petitioner "fairly presented the federal constitutional dimensions of his federal habeas corpus claim to state courts." Smittie at 296. Since Mr. Fairchild did not bring the present claim before any Arkansas state court, the next step in the analysis requires that the federal court determine whether the petitioner has exhausted his state remedies, or if any existing state remedies are futile. Id.

 Following his conviction, Mr. Fairchild filed a post-conviction appeal pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. This appeal was denied in Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985). In Grooms v. State, 293 Ark. 358, 358, 737 S.W.2d 648 (1987), the Arkansas Supreme Court held "A successive Rule 37 petition will not be entertained unless the original petition was specifically dismissed without prejudice to filing a subsequent petition." Since the Arkansas Supreme Court's earlier denial of Mr. Fairchild's appeal did not specify that it was without prejudice, this Court must conclude that all further State remedies would be futile.

 Having so found, the next step in the procedural default analysis is to determine whether the petitioner has demonstrated "adequate cause to excuse his failure to raise the claim in state court." At least with respect to the procedural aspect of petitioner's claim, the Court finds that adequate cause exists since at no time prior to this petition was it ever known that Mr. Fairchild possessed an IQ score which would arguably reveal him to be mentally retarded and, therefore, draw into question for the first time his ability to understand and thus intelligently waive those constitutional rights identified in the standard Miranda warnings. It does appear that there existed another low IQ report on the petitioner made in 1965-66, but this too was only recently discovered.

 The final step is to determine whether failure to address the merits of Mr. Fairchild's claim in state court would result in "actual prejudice". Laws, at 1415. Given the critical importance Mr. Fairchild's confessions played in the prosecution of this case, it is obvious to this Court that failure to consider the merits of the claims in the successor petition would constitute actual prejudice.

 On December 30, 1988, the Eighth Circuit rendered its opinion in the case of Mercer v. Armontrout, 864 F.2d 1429. Judge Lay, writing for the Court in a section of the opinion dealing with granting a stay of execution, said:

The initial point of inquiry in granting or denying a stay of execution in a death case must be whether the petition is frivolous. If the petition is not frivolous on its face, the very essence of this court's duty is to study and research the points raised. The severity and finality of the death penalty requires the utmost diligence and scrutiny of the court. In capital cases the law is uniquely complex and difficult to understand. No judge can digest, retain, or apply these principles to a voluminous state court record without reflective study and analysis. To suggest that a life or death decision can be made by simply reading a petition is to advocate dereliction of judicial duty. The penalty has already been rendered and approved by the highest court of the state in which the crime has been committed. However, as worthy as state courts may be, the state process does not always ensure constitutional process. Experience has long demonstrated that human judgment rendered through judicial process is not infallible. As long as federal habeas review exists, it is the duty of federal judges to make certain that an individual does not forfeit his life at the hands of the state unless the state process lawfully rendered the punishment, it complied with federal constitutional standards, and the defendant was furnished with competent and effective representation within the norms required by the sixth amendment. Regardless of how heinous the crime, no one may reasonably question that a predicate to carrying out a death sentence is careful review of the constitutionality of the defendant's conviction and sentence.

 Mercer v. Armontrout, supra, 864 F.2d at 1431-32. (Emphasis in the original)

 The Court will deny the State's motion to dismiss on procedural default grounds, and move to the merits of the claim.


 It is important to break down, and separately analyze, the two differing thrusts of Mr. Fairchild's new "Successor Petition for Writ of Habeas Corpus." It is alleged that a new and recent IQ test fixes his IQ at 63. It is contended that both the jury and the courts have heretofore operated upon the assumption that "Mr. Fairchild was a person of average intelligence." The petition goes on to state that, "The validity of his waiver of constitutional rights and the reliability of his confession were assessed on the basis of this assumption." p.2 Writ. It argues that the state failed to provide a professionally competent evaluation of Mr. Fairchild's mental condition before his trial, and that this, "precluded the defense from discovering and presenting to the jury the substantial doubt about the accuracy and reliability of Mr. Fairchild's confessions which was interjected by his retardation and the stressful circumstances in which the confessions were given." Petitioner contends that "his mental retardation profoundly affected his ability to make an intelligent waiver of his Miranda rights, and if known to the jury, likely would have raised substantial doubts about the reliability and accuracy of his confessions."

 It is clear that petitioner is not dealing here with one, but two separate questions: (1) whether petitioner's IQ on March 5, 1983, was such that he could not, or did not, knowingly and intelligently waive his Miranda rights, and (2) whether the level of his IQ on March 5, 1983, could reasonably "raise substantial doubts about the reliability and accuracy of his confessions."

 Before dealing with the question of the effect, if any, of petitioner's IQ upon his ability to make an intelligent waiver of his Miranda rights, the Court first wants to make it clear that, on the basis of the facts previously found and reaffirmed below, no reasonable argument can be made that petitioner's IQ -- whether 63 or 87 or some other number -- could in this case raise "substantial doubts about the reliability or accuracy of his confessions." While it is quite probable -- indeed, obvious *fn1" -- that Mr. Fairchild in his videotaped confessions did not tell "the whole truth and nothing but the truth," the Court is convinced that, in material respects, they reflect Mr. Fairchild's recollection of the events of February 26, 1983, and his involvement in those ugly and tragic events.

 This Court has previously dealt with the issue of the voluntariness of Mr. Fairchild's confessions. The Court's finding of fact and conclusions of law are set forth in a 51-page memorandum dated September 11, 1987. The Court also had some comments to make on the videotaped confessions early on during the course of the hearing:

THE COURT: Let's see. This is being tried to the Court and I think some feedback from the Court as we go along would not be inappropriate and would not, in effect, be considered as pre-judging any of the issues. One of the points that you've made is that if we just look at the video tape, that we'll be able to draw certain inferences and one of the inferences was the suggestion that there had been a lot of coaching and that the man had memorized his statement and so forth. Another inference is that the officers must have talked to him beforehand because they had substantial information or that their questions revealved [sic] that they had some prior information.
* * * *
I do not think it's obvious at all that the confession was coached or memorized or whatnot. I watched Mr. Fairchild making his statements and when he -- His statements give the feeling of truth to me because particularly when he is using his hands to describe on the right-hand side or the left or whatever. 'And we went up this and down this hill,' he's making an uphill or downhill with his hands just automatically as he talks. All of the incidental body language is corroborative, it seems to me, of what is being said. And what is being said is also not -- did not given me the impression that it had been rehearsed. Now, there may have been some little feeling about, you know, 'Be sure that you tell them about the Toyota car having a red stripe.' You know, you can kind of get that impression that maybe someone knew about that and wanted to be sure that he remembered that. Not only that, there are a few things they kind of wanted him to remember.
But the broad thrust of his confession gives me the impression that it is an honest statement of what happened as he recalled it, and that's why I'm telling you, you know, that something could come along and maybe change that but I do not agree that looking at those video tapes by themselves would give me cause to believe that this was a hoked up, rehearsed, memorized sort of a packaged type of confession. Rather, it seems to have the indicia of spontaneity and truth. There are a few little incidents in which I gather he's trying to put into it what the police want him to in terms of a detail here and a detail there. But on the whole it seems to me to have that ring.

 That comment was made early on during the two-day hearing. After hearing all of the witnesses and reviewing all of the evidence, the ...

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