Jenniffer Horan, Public Defender, by: Julie Vandiver and Scott W. Braden, for appellant.
Dustin McDaniel, Att'y Gen., by: Kent G. Holt and Brad Newman, Ass't Att'ys Gen., for appellee.
PETITION TO RECALL THE MANDATE
KAREN R. BAKER, Associate Justice.
Before this court is Petitioner Kenneth R. Isom's petition to recall the mandate in his postconviction case of Isom v. State, 2010 Ark. 495, 370 S.W.3d 491 ( Isom II ). In a death penalty case, this court has the inherent authority to recall its mandate for extraordinary circumstances. Nooner v. State, 2014 Ark. 296, at 9, 438 S.W.3d 233, 239, cert. denied, 135 S.Ct. 1701, 191 L.Ed.2d 679, 2015 WL 1400885 (U.S. 2015).
I. Facts and Procedure
This court extensively reviewed the facts surrounding Isom's conviction and sentence in Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004) ( Isom I ). In short, Isom was convicted in 2001 by the Drew County Circuit Court jury of capital murder, residential burglary, attempted capital murder, rape, and aggravated robbery in connection with the murder of William Burton and the rape of Burton's sister-in-law, Dorothy Lawson. Id. During his trial, Isom was represented by G.B. " Bing" Colvin, a Drew County Public Defender. Colvin was assisted by two other public defenders, Tim Bunch and Gary Potts. Isom was sentenced to death for capital murder and received additional sentences of life in prison for aggravated robbery and for rape, sixty years for attempted capital murder, and forty years for residential burglary, with the sentences to run consecutively. Id. This court affirmed his convictions and sentences in 2004. Id.
After his convictions and sentences were affirmed, Craig Lambert was appointed on November 1, 2004, to represent Isom during postconviction proceedings. On January 31, 2005, Lambert filed a petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.5. Lambert included eleven possible bases for relief: (1) Trial counsel failed to investigate and file appropriate motions to show that Isom was ineligible for the death penalty due to mental retardation; (2) Trial counsel failed to investigate and present exculpatory evidence, including the purported confession of another individual, Jerry Don Avery, and two alibi witnesses, Treva Lamb and Yvonne Bealer; (3) Trial counsel failed to properly investigate Isom's social history and failed to explore and present mitigation evidence during the penalty phase; (4) Trial counsel failed to seek out independent DNA testing of a hair found during the rape-kit examination of Ms. Lawson; (5) Trial counsel failed to ensure that the jury was instructed on statutory mitigating factors; (6) Trial counsel failed to challenge the introduction of evidence of Isom's prior nonviolent felony offenses during the penalty phase; (7) Trial counsel failed to object to the prosecuting attorney's questioning prospective jury members regarding whether they could " commit to" signing a death-penalty verdict form and, therefore, the issue was not preserved for review during Isom's direct appeal; (8) Trial counsel failed to object to the trial court's refusal to strike two jurors, Billie Handley and Sanders Bealer, for cause; (9) Trial counsel failed to object to Ms. Lawson's in-court identification of Isom and, consequently, failed to preserve his earlier motion to suppress Ms. Lawson's prior photo-lineup identification; (10) Trial counsel improperly opened the door to the prosecutor's statements during closing argument that if Isom were not sentenced to death he could potentially escape and commit other murders; (11) Trial counsel failed to object to a " blatant" violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), that occurred when the prosecutor remarked that the victim in this case received " no appeal."
Subsequent to the filing of Isom's Rule 37.5 petition, Lambert filed a motion for continuance, motion for appointment of co-counsel, a motion for funds for expert assistance, a motion for leave to file an amended petition for postconviction relief, and an amended motion requesting appointment of co-counsel, in addition to responding to motions to dismiss filed by the State. By order filed on May 23, 2005, the trial court granted the motion for continuance, appointed Bruce Eddy as co-counsel, granted the motion to file an amended petition and " released" Isom from the " page requirements of Rule 37," and denied
the motion for funds for an expert witness as moot based on the appointment of a public defender as co-counsel.
On July 19, 2005, Lambert filed a second petition for postconviction relief under Rule 37.5. The second petition included the same eleven claims but was verified. On August 1, 2005, Lambert filed a motion to withdraw. In his motion, Lambert stated that his mother was terminally ill and he could not " provide competent representation to Isom at the present time." Lambert requested that the court appoint Jeff Rosenzweig as counsel. The trial court granted Lambert's motion to withdraw and substitute Rosenzweig as counsel on October 6, 2005. Thereafter, on June 7, 2006, Rosenzweig filed a motion for authorization of funds to retain an investigator, mitigation specialist, and psychologist, and for funds to obtain DNA testing on the hair recovered from the rape victim. By order filed on July 13, 2006, the trial court granted the motion.
On January 14, 2008, Rosenzweig filed " Proposed Findings of Fact and Conclusions of Law" detailing the facts and law supporting each of Isom's eleven claims for relief. The record reveals that Rosenzweig did not amend the previously filed Rule 37.5 petition on Isom's behalf. The State filed a brief opposing Isom's Rule 37.5 petition on March 28, 2008. Then, on September 22, 2008, the trial court entered its order dismissing Isom's petition. On the same date, Rosenzweig filed a notice of appeal. As stated, this court affirmed the trial court's dismissal of Isom's Rule 37.5 petition on December 16, 2010. Isom II, 2010 Ark. 495, 370 S.W.3d 491. On that same date, this court affirmed the trial court's denial of Isom's " DNA Habeas" petition requesting additional DNA testing on the hair recovered from the rape victim. Isom v. State, 2010 Ark. 496, 372 S.W.3d 809 ( Isom III ).
On May 1, 2013, Isom filed the instant motion seeking recall of this court's mandate in his Rule 37 case. Isom maintains that this court should recall its mandate in his Rule 37.5 case because he was denied effective, conflict-free representation. Specifically, Isom maintains that his original postconviction counsel, Lambert, was impaired by substance abuse and personal crisis; that his postconviction counsel, Rosenzweig, had a conflict of interest because he hired Tyler Green as an investigator, despite the fact that Green worked in the same office as one of Isom's trial attorneys; that neither Lambert nor Rosenzweig sufficiently investigated and presented issues surrounding Isom's social history during the Rule 37.5 proceedings; that Rosenzweig failed to amend the Rule 37.5
petition to include claims that critical portions of Isom's trial were performed by unprepared counsel; that trial counsel suffered a disqualifying conflict of interest because he represented another inmate, Kevin Green, who secured a partial release on his own recognizance by providing information regarding the location of the murder weapon in Isom's case; that Rosenzweig waived the claim that Isom's trial counsel was ineffective for failing to develop and raise a claim that Isom was not eligible for the death penalty due to intellectual disability; and that during the Rule 37.5 proceedings, Rosenzweig failed to present evidence that the photo lineup used in the police investigation was " woefully deficient" and " biased in its composition." Finally, Isom maintains that this court should recall the mandate in his postconviction proceeding because Isom is categorically ineligible for the death penalty due to a stroke he suffered while in custody. We deny Isom's petition to recall the mandate in his postconviction proceedings because he has not identified any error on the part of this court that would constitute a breakdown in the appellate process. We do not reach his claim that he is categorically ineligible for the death penalty because that claim is not yet ripe as there is no date set for Isom's execution.
II. Standard of Review
In Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006), appellant Ledell Lee moved this court to recall our mandate and reopen his postconviction proceedings on the basis that his Rule 37 counsel was impaired by alcohol use during those proceedings, a fact admitted to by counsel. Id. at 87, 238 S.W.3d at 54. In that case, this court applied the same standard for recalling the mandate in a postconviction case as it does in a direct-appeal case. This court elaborated,
In Robbins, we recognized that " this court will recall a mandate and reopen a case in extraordinary circumstances." Id. at 564, 114 S.W.3d at 222. However, in deciding to recall the mandate, we specifically explained that our decision was based on three factors: 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 was a death case that required heightened scrutiny. Thus, these three criteria must be satisfied in order for this court to consider the relief requested by Lee.
Id. at 88, 238 S.W.3d at 54-55. More recently, this court determined that while the three Robbins factors are relevant factors for this court to consider when presented with a motion to recall a direct-appeal mandate in a death-penalty case, strict satisfaction of all three factors is not required because this court has the inherent authority to recall its mandate in extraordinary circumstances. Nooner, 2014 Ark. 296, at 9, 438 S.W.3d at 239. While the standard for recalling the mandate in a postconviction case is the same as the in a direct-appeal case, we emphasize that the recall of the mandate is an extremely narrow remedy, and we will not enlarge it to allow typical claims of ineffective assistance of counsel. Ward v. State, 2015 Ark. 62, at 9-10, 455 S.W.3d 830, reh'g denied (Apr. 9, 2015).
IV. Points on Appeal
A. Allegation that Lambert was Impaired by Substance Abuse and Personal Crisis
Isom's first argument for recalling the mandate in his postconviction appeal is that Lambert was impaired during his representation of Isom and, as a result, failed to ...