The opinion of the court was delivered by: Susan Webber Wright United States District Judge
MEMORANDUM OPINION AND ORDER
Jimmy Don Wooten, an inmate in custody of the Arkansas Department of Correction, is under sentence of death for the 1994 murder of David LaSalle. Wooten seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), on grounds that both his conviction and sentence are in violation of various provisions of the United States Constitution. Having carefully reviewed the record, the Court concludes each of the grounds advanced by Wooten in support of his petition for writ of habeas corpus is without merit.*fn1
On August 5, 1994, David LaSalle, Henry Teb Porter, and Porter's eighteen year-old daughter, Molly, were hiking on a forest trail near the Long Pool Recreation area in Pope County, Arkansas, when they encountered Wooten riding a six-wheel all-terrain vehicle ("ATV"). According to Porter and Molly, this was the fourth time that day the group had encountered Wooten. The group's first encounter with Wooten consisted of him driving past them at a fairly high rate of speed without acknowledging their presence. When the group next encountered Wooten, he stopped and talked to them for a few minutes in a "very cordial" fashion and gave them directions to the Long Pool area where they were going to meet others for a picnic. The group's third encounter with Wooten occurred about three to five minutes after the second encounter and consisted of him again driving past them at a high rate of speed without acknowledging their presence and, according to Porter, "looking agitated." The group's fourth encounter with Wooten took place about two minutes later and began tragically and without warning. As the group was continuing their hike on the trail, Porter heard multiple gunshots and saw LaSalle slump to the ground, having been fatally shot in the head. Porter felt a "bee sting" on his shoulder -- the result of a gunshot -- and grabbed Molly by the arm, pulling her down. Porter looked in the direction from which the shots came and saw Wooten in a slight crouch with both hands on a semi-automatic pistol. Porter felt something hit him in his face and his head was knocked back into the dirt. When blood began "gushing out," Porter realized he had been shot again. As Wooten was attempting to reload his pistol, Porter jumped up and ran at Wooten. Molly was lying on the ground next to LaSalle and screaming at Wooten not to shoot her father. Wooten ran away from Porter as he continued to attempt to reload the pistol and hid behind a tree. Porter then took the keys from Wooten's ATV and ran into the woods saying, "Now try to get out of here." Having apparently successfully reloaded his pistol, Wooten stepped out from behind the tree and pointed the gun at Porter. Porter ran for a distance and then stopped to see what Wooten was doing because Molly was still lying beside LaSalle. Wooten began firing again and hit Porter in the forearm. Upon being hit, Porter continued running and ended up at a farm where he summoned help. Molly, after vainly trying to assist LaSalle, ran from the scene and ultimately hid under a rock on a small cliff.*fn2 Porter accompanied authorities back to the scene of the shooting and Molly was soon located unharmed. Both Porter and Molly positively identified Wooten as the assailant.*fn3
On February 16, 1995, a Pope county jury convicted Wooten of capital murder, one count of attempted capital murder, and one count of aggravated assault. He was sentenced to death, thirty years imprisonment, and six years imprisonment, respectively for the offenses.
Wooten appealed his convictions and sentences to the Arkansas Supreme Court. Wooten was represented on direct appeal by his trial counsel, David L. Gibbons. The Arkansas Supreme Court affirmed the convictions and sentences, Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996) (hereinafter Wooten I), and the United States Supreme Court denied certiorari. 519 U.S. 1125 (1997).*fn4 Wooten, now represented by James O. Clawson, petitioned the circuit court for post-conviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure. The circuit court denied relief without issuing detailed findings in support of its decision and without conducting a hearing. Wooten appealed and the Arkansas Supreme Court reversed and remanded the case for written findings in support of the trial court's decision or for an evidentiary hearing if additional evidence was required. Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999) (hereinafter Wooten II). On remand, the trial court again denied post-conviction relief. Clawson had apparently moved on by this time and Wooten filed a pro se motion to file a belated appeal and for appointment of counsel. The motion was granted and Alvin Schay (Wooten's co-counsel on the instant petition along with Assistant Federal Public Defender Bruce D. Eddy) was appointed to represent Wooten. See Am. Pet. at 4-5. On December 5, 2002, the Arkansas Supreme Court affirmed the trial court's decision. Wooten v. State, 351 Ark. 241, 91 S.W.3d 63 (2002) (hereinafter Wooten III).
On October 2, 2003, Wooten filed his initial and, subsequently, his amended petition for writ of habeas corpus in this Court, asserting the following grounds for relief: (1) his post-conviction counsel acted fraudulently thereby preventing him from challenging inadequate adversarial testing that occurred at his trial, in violation of his Sixth, Eighth, and Fourteenth Amendment rights; (2) his Sixth, Eighth, and Fourteenth Amendment rights were violated by trial counsel failing to provide adequate adversarial testing during his trial; (3) his Eighth and Fourteenth Amendment rights were violated when the trial court did not properly instruct the jury on parole eligibility; (4) he has been sentenced to death in violation of his Sixth, Eighth, and Fourteenth Amendment rights due to juror misconduct or error; (5) the Arkansas Supreme Court's opinion on his claim of ineffective assistance of counsel in the penalty phase of his trial is contrary to, or involved an unreasonable application of, clearly established federal law; (6) his Sixth, Eighth, and Fourteenth Amendment rights were violated by juror bias; (7) his Eighth and Fourteenth Amendment rights were violated because the "great risk of death" aggravating circumstance fails to adequately narrow the sentencer's discretion; (8) the Arkansas victim impact statute is unconstitutionally vague in that it is void for vagueness, impossible to reconcile or weigh it with other capital sentencing requirements, and permits the jury to consider irrelevant and inflammatory evidence amounting to non-statutory aggravation; (9) Arkansas' use of victim impact testimony is prohibited by the United States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002), and, alternatively, Ring should be found to be retroactive to cases on collateral review; (10) the Arkansas Supreme Court's decision regarding the prosecution's use of a peremptory strike on the only African-American on the jury venire is not fairly supported by the record and is not entitled to a presumption of correctness; and (11) he is mentally retarded and ineligible for the death penalty pursuant to the Eighth Amendment and the United States Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002).
In order to preserve a claim for relief, a habeas petitioner must present that claim to the state court and allow that court an opportunity to address the claim. Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). Where a petitioner fails to follow applicable state procedural rules, any claims not properly raised before the state court are procedurally defaulted. Id. (citing Sawyer v. Whitley, 505 U.S. 333, 338 (1992); Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir.) (en banc), cert. denied, 517 U.S. 1215 (1996)). In this respect, the doctrine of procedural default asks "not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts...." O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (emphasis in original). "We have held repeatedly that a claim has not been fairly presented to the state courts unless the same factual grounds and legal theories asserted in the prisoner's federal habeas petition have been properly raised in the prisoner's state court proceedings." Krimmel v. Hopkins, 56 F.3d 873, 876 (8th Cir.), cert. denied, 516 U.S. 1015 (1995). "We have also held that a claim is considered exhausted when the petitioner has afforded the highest state court a fair opportunity to rule on the factual and theoretical substance of his claim." Id. (quoting Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993)). "In order to fairly present a federal claim to the state courts, the petitioner must have referred 'to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue' in a claim before the state courts." McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997) (quoting Myre v. State of Iowa, 53 F.3d 199, 200-01 (8th Cir. 1995)). A claim may be lost due to procedural default at any level of state court review: at trial, on direct appeal, or in the course of state post-conviction proceedings. Kilmartin v. Kemna, 253 F.3d 1087, 1088 (8th Cir. 2001) (citation omitted).
Where a claim is defaulted, a federal habeas court will consider it only where the petitioner can establish either cause for the default and actual prejudice, or that the default will result in a fundamental miscarriage of justice. Moore-El, 446 F.3d at 896 (citing Sawyer, 505 U.S. at 338-39). "Cause" for the procedural default exists, for example, when counsel has been constitutionally ineffective or when an objective, external impediment prevented counsel from complying with the state's procedural rule. Noel v. Norris, 194 F.Supp.2d 893, 904 (E.D.Ark. 2002) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). To demonstrate prejudice, a petitioner must show "not merely that the errors at trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting the entire trial with error of constitutional dimensions ... [such that he] was denied fundamental fairness at trial." Id. (quoting Murray, 477 U.S. at 494).
When a claim has been adjudicated on the merits in state court, an application for a writ of habeas corpus can only be granted where the state court adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) 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. Davis v. Norris, 423 F.3d 868, 874 (8th Cir. 2005) (quoting § 2254(d)). "A decision is 'contrary to' federal law in the AEDPA sense if a state court has arrived 'at a conclusion opposite to that reached by [the Supreme Court] on a question of law' or if it 'confronted facts that are materially indistinguishable from a relevant Supreme Court precedent' but arrived at an opposite result." Id. (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). "A state court unreasonably applies clearly established federal law when it 'identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. (quoting Williams, 529 U.S. at 413). "Habeas relief cannot be granted just because a federal court concludes that the state court erred in its application of federal law; the test is whether the state court's application of the law was unreasonable." Id. at 874-75 (quoting Williams, 529 U.S. at 411). Finally, facts found by the state court are presumed to be correct unless the applicant can rebut the presumption by clear and convincing evidence. Rouper v. Rosan, 436 F.3d 951, 956 (8th Cir. 2006) (citing § 2254(e)(1)).
Having set forth the background of this petition and the standard of review to be applied, the Court now turns to a discussion of Wooten's asserted grounds for habeas relief.*fn5 As an initial matter, respondent argues that not one of Wooten's enumerated claims for relief was ever presented to the Arkansas Supreme Court in a manner that would allow that court to address the claim on the merits. Resp. to Am. Pet. at 10. As such, argues respondent, all of Wooten's claims are procedurally defaulted. Id. Nevertheless, respondent acknowledges and addresses two general issues that he states can be found in both Wooten's federal habeas petition and his various state court proceedings, namely victim impact related issues and issues concerning Batson v. Kentucky, 476 U.S. 79 (1986), and he also addresses one Atkins issue based on mental retardation, acknowledging Wooten's argument (but not agreeing) that this issue could not have been raised in state court as it did not then exist. Id. at 12, 13, 19, 22. For his part, Wooten "acknowledges that this petition contains some new claims and factually develops certain other claims made in state post-conviction." Am. Pet. at 7-8. He argues, however, that "any procedural bar to this Court's consideration of the new claims or the factual development of claims made in state post-conviction should be excused under the unique facts of this case," namely the circumstances and representation of his retained post-conviction counsel, James O. Clawson. Id. at 8-19. It is the circumstances and representation of Clawson that is the subject of Wooten's first claim for relief, a claim to which the Court now turns.
Wooten argues that Clawson was a convicted felon and practicing law in Arkansas by fraud and deceit and that this fraud prevented a complete challenge to the inadequate adversarial testing that occurred at his capital trial, in violation of his Sixth, Eighth, and Fourteenth Amendment rights. Wooten points to the following "highlights" of Clawson's legal career:
1993: Disbarred in Oklahoma for failure to pay dues and attend CLE. 1994: Oklahoma conviction and sentencing. Sentenced to two years in Oklahoma on two separate grounds of uttering a forged instrument. 1998: Reprimanded by the Arkansas Supreme Court for mishandling bankruptcy case. 1998: Reprimanded by the Arkansas Supreme Court for deceptive advertising. 1999: Referred to the Arkansas Committee of Professional Conduct for failing to file appeal on behalf of his client. 2001: Sentenced to eighteen months imprisonment by the United States District Court for the Eastern District of Arkansas after being found guilty of six counts of bankruptcy fraud. 2001: Disbarred in Arkansas - relinquished license.
Wooten acknowledges that the issue of Clawson's fraud was not presented to the Arkansas courts, stating it was not discovered and developed in adequate time, but asserts that Clawson provided ineffective assistance of counsel and that this excuses any procedural default.
Claims of ineffective assistance of counsel are analyzed under Strickland v. Washington, 466 U.S. 668 (1984):
[F]irst, 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.
[J]udicial scrutiny of a counsel's performance must be highly deferential and . . . every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.
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 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. In determining whether an attorney has acted reasonably, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101(1955)); see also Noel v. Norris,322 F.3d 500, 502 (8th Cir.), cert. denied, 539 U.S. 972 (2003).
Here, there is no occasion to examine whether Clawson rendered ineffective assistance of counsel sufficient to excuse any procedural default as there is no Sixth Amendment right to the effective assistance of post-conviction counsel, the position in which Clawson served. See Armstrong v. Iowa, 418 F.3d 924, 927 (8th Cir. 2005), cert. denied, 126 S.Ct. 1351 (2006). Any such ineffective assistance is insufficient as a matter of law to serve as cause for the default. Id.
Even if Wooten could show cause for the default, he cannot show prejudice. Wooten argues that the nature and quality of Clawson's misconduct under the circumstances is such that confidence is clearly undermined in the outcome of Wooten's trials, convictions, and sentence of death. However, as will be seen with this Court's disposition of each of Wooten's asserted grounds for habeas relief, Wooten cannot show a reasonable probability that the outcome of Wooten's various proceedings would have been different absent Clawson's representation. Strickland, 466 U.S. at 694. Moreover, Clawson represented Wooten successfully on his Rule 37 post-conviction claim when the Arkansas Supreme Court reversed and remanded Wooten's post-trial appeal to the trial court to either conduct a hearing or enter an Order with findings of fact; Clawson was still licensed to practice law in Arkansas when he obtained a reversal of the trial court's denial of Wooten's Rule 37 claims. Clawson's representation, then, did not cause any prejudice to Wooten and, in fact, afforded him the only legal victory of substance in the course of these proceedings.*fn6
In sum, Wooten has not demonstrated either cause for the default concerning the issue of Clawson's representation and actual prejudice, or that the default will result in a fundamental miscarriage of justice. Moore-El, 446 F.3d at 896 (citing Sawyer, 505 U.S. at 338-39).
Wooten next claims his Sixth, Eighth, and Fourteenth Amendment rights were violated by trial counsel's unreasonable failure to investigate, prepare and present mitigating evidence and provide Wooten with adequate adversarial testing in the following areas: (a) failure to investigate Wooten's life history, (b) failure to investigate mental health history for issues relating to guilt and sentencing, (c) failure to object to victim impact testimony during the guilt phase, and (d) failure to object to inflammatory prosecutor argument. Wooten claims that trial counsel's failure in these areas denied him effective assistance of counsel and that this ineffective assistance is cause for procedural default. The Court will address these areas in turn.
Wooten claims that trial counsel failed to investigate and present pertinent information regarding Wooten's life history that should have been presented during the mitigation phase. He argues that trial counsel's failure to unreasonably investigate and prepare for trial rendered his trial unreliable. Cf. Wiggins v. Smith, 539 U.S. 510 (2003) (finding counsel failed to uncover the existence of extensive sexual and psychological abuse as a child).
In reviewing and denying Wooten's mitigation claim, the Arkansas Supreme Court stated as follows:
The guarantee of effective assistance of counsel includes the sentencing phase of a criminal trial. Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000). Counsel's primary function in the penalty phase of a capital trial is to neutralize the aggravating circumstances and to present mitigating evidence. Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000). A decision not to offer significant mitigating evidence is a matter of trial strategy only where the decision is made after a full investigation of all the mitigating circumstances so that counsel may make an informed tactical decision. Sanford, supra. The failure to carry out an investigation into mitigating circumstances may constitute ineffective assistance of counsel requiring reversal. Coulter, supra. However, reversal is not automatic. Coulter, supra. The petitioner must show that but for counsel's errors, there is a reasonable probability that the sentence imposed would have been different. Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001). See also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
Thus, in the Rule 37 petition proceedings, Wooten had to show that but for his counsel's failure to put on additional evidence in mitigation, there is a reasonable probability that a different sentence would have been imposed. Two witnesses in mitigation were presented, a co-worker who testified Wooten had several job skills and was a good worker, and a jailer who testified that Wooten had been a good prisoner.
Wooten argues other evidence in mitigation should have been offered. However, Wooten provided nothing to the trial court in his Rule 37 petition proceedings regarding what mitigation evidence his counsel should have presented. He states in his brief that the Rule 37 court noted that "petitioner did not state what additional witnesses for Mr. Wooten would have said." Wooten fails to establish what other witnesses would have testified to, and he fails to show how their testimony could have changed the outcome of his case. When a petitioner fails to show what the omitted testimony was and how it could have changed the outcome, we will not grant post-conviction relief for ineffective assistance of counsel. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000); Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). Wooten thus fails to show that he is entitled to relief on this point.
Wooten III, 351 Ark. at 245-46, 91 S.W.3d at 66.
The record demonstrates that trial counsel filed numerous motions seeking the exclusion of certain evidence and requesting other evidence and that he did in fact prepare and investigate the case. See e.g. R. at 108, 111, 114, 117, 119, 120, 127, 129, 132, 136, 145, 148 and 150. Indeed, in pleadings filed February 8 and 9, 1995, trial counsel identified 18 individuals he intended to call as witnesses at trial. R. at 132, 136. Although trial counsel ultimately called four witnesses during the guilt phase -- including Wooten's wife -- and two mitigation witnesses during the penalty phase -- a former co-worker and a jailer regarding Wooten's good behavior -- he effectively conducted direct-examination on each of those witnesses and he conducted effective cross-examinations on all of the state's witnesses. Indeed, the jury found as mitigating circumstances that Wooten had no significant history or prior criminal activity, that Wooten has developed an exemplary work ethic, that Wooten has developed more than one job skill and has job skills that can be utilized in prison, that Wooten has adapted to incarceration and been a good prisoner, that Wooten has not been involved in any violent activity while incarcerated, and that Wooten, although given the opportunity, did not take the life of Molly Porter. R. at 1223.
Wooten argues that trial counsel was ineffective for not presenting additional mitigation witnesses, such as Wooten's mother, wife and siblings, but he has not demonstrated that counsel's decision not to call all the witnesses he earlier identified and any additional witnesses was anything other than sound trial strategy. See Rodden v. Delo, 143 F.3d 441, 448 (8th Cir.), cert. denied, 525 U.S. 985 (1998) (whether or not mitigating evidence is presented in the sentencing phase and the determination of what, if any, evidence is ultimately selected to be presented, is a strategic decision made by defense counsel) (citing Fretwell v. Norris, 133 F.3d 621, 627 (8th Cir.), cert. denied, 525 U.S. 846 (1998)). Moreover, given the evidence against Wooten, including Porter's and Molly's compelling testimony at trial positively identifying Wooten as the assailant, it cannot be said that there is a reasonable likelihood the jury would have acquitted Wooten of capital murder or sentenced him to life even if trial counsel had admitted additional evidence of life history. Id. (citing Strickland, 466 U.S. at 694). Wooten has not shown ineffective assistance of counsel regarding investigation and presentation of evidence in the penalty phase concerning Wooten's life history.
Wooten claims trial counsel failed to adequately investigate his mental health for issues relating to guilt and sentencing. He argues that had trial counsel conducted an adequate social history investigation and sought funding for a mental health expert or taken steps to secure the assistance of a mental health expert as required by Ake v. Oklahoma, 470 U.S. 68 (1985), he would have found that Wooten's actions on August 5, 1994, were the product of a mental disease or defect and that Wooten lacked the ...