The opinion of the court was delivered by: Susan Webber Wright United States District Judge
Petitioner Alvin Bernal Jackson ("Jackson"), sentenced to death for murder and confined at the Maximum Security Unit of the Arkansas Department of Correction, 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"). Jackson asserts that his death sentence is in violation of several provisions of the United States Constitution. After careful consideration of the record, and for the reasons that follow, Jackson's petition will be dismissed with prejudice.
In 1990 Jackson was convicted of capital murder and two attempts to commit capital murder and sentenced to life without parole plus 105 years. R. 1316-17. On November 29, 1995, while serving out his life sentence at the Arkansas Department of Correction, Jackson stabbed prison guard Scott Grimes to death with a homemade knife. On June 20, 1996, following an four-day trial in the Circuit Court of Jefferson County, a jury convicted Jackson of capital murder for killing Scott Grimes and sentenced him to death.
The Arkansas Supreme Court affirmed Jackson's 1996 conviction and death sentence on direct appeal. See Jackson v. State, 330 Ark. 126 (1997). Jackson filed a petition for post-conviction relief pursuant to Ark. R. Crim. P. 37, asserting the following claims:
1. There was "improper incursion" into the verdict by the trial court in an attempt to cure an obvious penalty phase error, and petitioner's counsel was ineffective for failing to object.
2. Petitioner's counsel was ineffective for failing to present an adequate penalty phase defense.
3. Petitioner's counsel was ineffective for failing to seek further examination of Petitioner to determine whether there was an organic basis for his mental condition.
4. Petitioner's counsel was ineffective for failing to object to a misstatement of law by the prosecuting attorney.
5. Petitioner's counsel was ineffective for failing to challenge the constitutionality of the Arkansas victim impact statute.
6. Petitioner's counsel was ineffective for failing to elicit testimony about the pre-existing disrepair of Petitioner's cell door.
Initially, the trial court denied Jackson's petition as untimely, but the Arkansas Supreme Court reversed and remanded. See Jackson v. State, 343 Ark. 613 (2001). On remand, the trial court determined that no hearing was warranted, and it issued written findings rejecting each ground for relief asserted by Jackson. R. 417. Jackson appealed, and the Arkansas Supreme Court affirmed. See Jackson v. State, 352 Ark. 359 (2003).
On October 27, 2003, Jackson filed his petition for habeas corpus relief in this Court, asserting the following grounds for relief: (1) Jackson's Sixth, Eighth, and Fourteenth Amendment Rights were violated by the trial court's improper incursion into the jury's role in a misguided attempt to cure penalty phase error; (2) trial counsel was ineffective by failing to object to the trial court's instructions to the jury; (3) trial counsel was ineffective by failing to present an adequate penalty phase defense; (4) trial counsel was ineffective by failing to seek further examination of Jackson to determine the existence of an organic basis for his mental condition; (5) trial counsel was ineffective by failing to object to the prosecution's misstatement of law; (6) trial counsel was ineffective by failing to object to victim impact evidence and by failing to argue that the Arkansas victim impact statute is unconstitutional; and (7) Jackson is mentally retarded; thus ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002).
Under the AEDPA amendments to 28 U.S.C. § 2254, a state prisoner may obtain federal habeas relief with respect to a claim that has been adjudicated on the merits in state court only when the state decision was (1) contrary to or involved an unreasonable application of clearly established Supreme Court precedent 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. See 28 U.S.C. § 2254(d).
A state court's decision is "'contrary to' clearly established federal law if the state court has applied a rule that directly contradicts Supreme Court precedent or has reached a result opposite to a result reached by the Supreme Court on 'materially indistinguishable' facts." Kinder v. Bowersox, 272 F.3d 532, 538 (8th Cir. 2001) (quoting Williams v. Taylor, 529 U.S. 362, 405(2000)(concurring opinion of O'Connor, J., for the Court)). A state court's decision will be viewed as an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the [petitioner's] case." Williams v. Taylor, 529 U.S. 362, 413 (2000)(concurring opinion of O'Connor, J., for the Court).
"[A] federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409 (emphasis supplied). "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410. Thus, a state court's application of federal law might be erroneous, yet not objectively unreasonable. Kinder, 272 F.3d at 538.
Jackson's first asserted ground for relief is that his constitutional rights were violated in the penalty phase of his criminal trial by the trial court's "improper handling of error in the completion of the penalty phase verdict form." The pertinent facts regarding this claim follow.*fn1
Arkansas law provides that a jury shall impose a sentence of death if it unanimously returns written findings that: (1) aggravating circumstances exist beyond a reasonable doubt; (2) aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and (3) aggravating circumstances justify a sentence of death beyond a reasonable doubt. See Ark. Code Ann. 5-4-603(a). The Arkansas model jury instructions for the sentencing phase of a capital murder case include four separate verdict forms: Form 1, the jury's findings concerning possible aggravating circumstances; Form 2, the jury's findings concerning possible mitigating circumstances; Form 3, the jury's weighing of any aggravating or mitigating circumstances; and Form 4, the jury's sentence of death or life without the possibility of parole. See AMI Crim.2d 1008.
Pursuant to the model instructions, Form 2 submitted to the jury in Jackson's case contains four paragraphs: A, B, C, and D. See Supp. R. (Resp't Ex. 3-A). Paragraph A provides a checkmark space beside the statement: "We unanimously find that the following mitigating circumstances probably existed at the time of the murder:" Below this statement are checkmark spaces beside three specific mitigating circumstances, which were proffered by the defense, and blank lines for the jury to specify in writing any other mitigating circumstances. The specific mitigating circumstances listed on the form are as follows:
* The capital murder was committed while Alvin Jackson was under extreme or mental or emotional disturbance.
* The capital murder was committed while the capacity of Alvin Jackson to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease.
* Alvin Jackson had a history of mental retardation.*fn2
Paragraph B provides a checkmark space beside the statement: "One or more members of the jury believed that the following mitigating circumstances probably existed, but the jury did not unanimously agree:" Below this statement are the same proffered specific mitigating circumstances set forth in Paragraph A and blank lines for other mitigating circumstances.
Paragraph C provides a checkmark space beside the statement: "There was evidence of the following circumstances, but the jury unanimously agreed that they were not mitigating circumstances." Paragraph C then lists the specific mitigating circumstances set forth in Paragraphs A and B and provides checkmark spaces beside each.
Paragraph D provides a checkmark space beside the following statement: No evidence of a mitigating circumstance was presented by either party during any portion of the trial. (Check only if no evidence was presented. If evidence was presented but the jury agreed that it was not mitigating, check [paragraph C]). The trial court read Forms 1 through 4 aloud to the jury. R. 997-1002. Additionally, after reading Paragraph D of Form 2, the judge instructed: ...