PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION, NO. CR-89-1836.
Jennifer Horan, Federal Defender, by: Josh Lee; and Joseph W. Luby, Death Penalty Litigation Clinic, for petitioner.
Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for respondent.
COURTNEY HUDSON GOODSON, Associate Justice. DANIELSON, BAKER and HART, JJ., dissent. HART, J., joins.
MOTION TO RECALL POSTCONVICTION-APPEAL MANDATE
COURTNEY HUDSON GOODSON, Associate Justice
Petitioner Bruce Earl Ward moves this court to recall the mandate on his appeal affirming the circuit court's denial of postconviction relief. Ward identifies three issues that he suggests amounted to a defect or breakdown in the appellate process to support recalling the mandate. First, he points out that his postconviction petition was unverified. Second, he alleges that he was incompetent at the time of the postconviction hearing; and third, he argues that his counsel performed deficiently by failing to raise any issue of mental health or competency in the postconviction proceedings. We conclude that Ward has failed to establish the extraordinary circumstances necessary to justify a recall of his postconviction appeal mandate, and we deny his motion.
In 1990, a jury convicted Ward of capital murder and imposed the death penalty. On appeal, this court affirmed his conviction but reversed his sentence due to a prejudicial error that occurred during the sentencing phase of the trial. Ward v. State, 308 Ark. 415, 827 S.W.2d 110, 831 S.W.2d 100 S.W.2d 110 (1992) ( Ward I ) . On remand, a jury again sentenced Ward to death, but we reversed based on an error made by the court reporter. Ward v. State, 321 Ark. 659, 906 S.W.2d 685 (1995) (per curiam) ( Ward II ). Thereafter, a third jury sentenced Ward to death, and we affirmed his sentence. Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999) ( Ward III ). Ward then filed a
petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.5, which the circuit court denied after a hearing. On appeal, we affirmed the circuit court's denial of relief. Ward v. State, 350 Ark. 69, 84 S.W.3d 863 (2002) ( Ward IV ).
Ward has now petitioned this court to recall the mandate in Ward IV based on the three aforementioned reasons. This court will recall a mandate and reopen a case only in extraordinary circumstances. Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003). To establish the extraordinary circumstances that would warrant the recall of a mandate or the reopening of a case, we have enumerated certain factors to be considered, namely: (1) the presence of a defect in the appellate process, (2) a dismissal of proceedings in federal court because of unexhausted state-court claims, and (3) the appeal is a death case that requires heightened scrutiny. Roberts v. State, 2013 Ark. 57, 426 S.W.3d 372. We have held that these factors are not necessarily to be strictly applied but rather that they serve as a guide in determining whether to recall a mandate. Nooner v. State, 2014 Ark. 296, 438 S.W.3d 233.
In this case, Ward first argues that we should recall the mandate because his postconviction petition was unverified, and he asserts that the lack of verification constitutes a defect in the appellate process sufficient to support recalling the mandate in his postconviction appeal, citing to our decision in Wooten v. State, 2010 Ark. 467, 370 S.W.3d 475. The State argues that we should not follow Wooten because the appropriate relief for a defendant in a death case who has filed an unverified postconviction petition is to allow the defendant to verify his petition and supplement the record so that this court may review the substance of his postconviction appeal. In light of the fact that this court previously reviewed Ward's postconviction appeal despite the unverified petition, the State contends that such relief in this instance would be moot.
The requirement for verification is found in Arkansas Rule of Criminal Procedure 37.1(c) and requires the petitioner to execute an affidavit swearing that the petitioner has read the petition and that the facts stated in the petition are true, correct, and complete to the best of petitioner's knowledge and belief. This court has held that the verification requirement for a postconviction-relief petition " is of substantive importance to prevent perjury." Boyle v. State, 362 Ark. 248, 250, 208 S.W.3d 134, 136 (2005). Furthermore, we have routinely affirmed the denial of postconviction relief where the petition is not verified. See, e.g., Butler v. State, 2014 Ark. 380 (per curiam). However, in the unique case involving a defendant sentenced to death, we have remanded, rather than summarily affirming the denial of postconviction relief, so that the defendant can verify his petition and supplement the record with the verified petition. Howard v. State, 366 Ark. 453, 236 S.W.3d 508 (2006).
Keeping the foregoing principles in mind, we hold that Ward has failed to establish a defect or breakdown in the appellate process because this court has reviewed his postconviction appeal, notwithstanding the unverified petition. Pursuant to our decision in Howard, Ward's remedy for submitting an unverified petition in his direct postconviction appeal would have been limited to a remand to allow him to verify his petition and to supplement the record, followed by an appeal of his original postconviction ...