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Slocum v. Kelley

United States Court of Appeals, Eighth Circuit

April 18, 2017

Jacques R. Slocum Petitioner-Appellant
v.
Wendy Kelley, Director, Arkansas Department of Correction Respondent-Appellee

          Submitted: December 14, 2016

         Appeal from United States District Court for the Eastern District of Arkansas - Pine Bluff

          Before WOLLMAN, SMITH, [1] and BENTON, Circuit Judges.

          SMITH, Circuit Judge.

         Jacques R. Slocum was convicted in Arkansas state court of second-degree murder, endangering the welfare of a minor, and fleeing. He was sentenced to 99 years' imprisonment. After exhausting his state post-conviction relief remedies, he filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging several claims of ineffective assistance of counsel. The district court[2] dismissed Slocum's habeas petition as procedurally defaulted but granted a certificate of appealability on whether Slocum had a substantial claim that his trial counsel was ineffective for failing to request a competency hearing and failing to present mitigating evidence during the sentencing phase. See Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012). Because we conclude that none of Slocum's ineffective-assistance claims have merit, we affirm the district court's dismissal of Slocum's § 2254 petition as procedurally defaulted.

         I. Background

         A. State Proceedings

         On October 24, 2011, Slocum shot and killed Joe Jackson in front of several onlookers. Slocum was charged under Arkansas law with first-degree murder, felon in possession of a firearm, first-degree endangering the welfare of a minor, and fleeing. He hired LaTonya Austin as his trial attorney. Austin entered a general-denial defense on Slocum's behalf. A week before trial, Slocum retained a family friend, attorney Steve Smith, as Austin's co-counsel. After retaining Smith, Slocum changed his defense strategy to self defense.

         At trial, Slocum did not contest that he killed Jackson; instead, he testified that he killed Jackson in self defense. Eyewitnesses Tina Williams and Tracy Brown testified to seeing Slocum in his car arguing with Jackson, who stood outside. The argument escalated, and Slocum got out of his car. At some point, Slocum got back in his car, grabbed a gun, and exited his car again. Slocum then shot Jackson twice, killing him. Slocum fired the fatal shots standing just outside of his vehicle with his two-year-old child in the backseat.

         After shooting Jackson, Slocum entered his car and drove away. Police apprehended Slocum after disabling his car following a high-speed chase. Slocum's child experienced the entire incident from the backseat of the car. During the chase, Slocum discarded his gun.

         On June 18, 2012, a Pulaski County Circuit Court jury found Slocum guilty of second-degree murder (the lesser-included offense); first-degree endangering the welfare of a minor; and fleeing. During the sentencing phase of trial, the State introduced victim-impact evidence and Slocum's conviction records-a Florida conviction for manslaughter and escape and a California conviction for felon in possession of a firearm. The State offered no details about Slocum's prior convictions, including the manslaughter conviction. Jackson's girlfriend, Erica Harris, testified that she was five months pregnant when Slocum killed Jackson and that her son was prematurely born as a result of the stress caused by Jackson's death. Harris showed a picture of her prematurely-born son to the jury. Slocum's defense team presented no mitigating evidence. During the sentencing-phase closing, the State argued that Slocum had "a violent history. He has taken another human life before he took Joe Jackson's [life]. . . . [O]ne human life is too much. And, now, it's been two at the hands of that man." The jury sentenced Slocum to the maximum penalty on all charges, and the court ordered all sentences to be served consecutively for an aggregate 99-year term of imprisonment.

         On February 1, 2013, Slocum, through Austin, appealed his conviction to the Arkansas Court of Appeals, challenging the sufficiency of the evidence on his second-degree murder conviction. That court determined that Slocum's argument was not preserved for appellate review and affirmed the judgment on May 8, 2013. See Slocum v. State, 2013 Ark.App. 309 (2013). The mandate issued on June 5, 2013.

         On July 18, 2013, Slocum filed a timely pro se petition for post-conviction relief in the Pulaski County Circuit Court under Arkansas Rule of Criminal Procedure 37 ("Rule 37"). In his pro se petition, Slocum alleged ineffective assistance of trial counsel. After holding a hearing on the petition, the state trial court denied relief on October 28, 2013. Slocum then appealed the denial of his Rule 37 petition to the Arkansas Supreme Court. On April 17, 2014, the Arkansas Supreme Court dismissed Slocum's appeal, holding that Slocum did not verify his original petition with the state trial court in accordance with Rule 37. Slocum v. State, 2014 Ark. 178, at *2-3 (2014) (per curiam). It held that the verification is "of substantive importance to prevent perjury" and thus the clerk should have rejected the petition. Id. at *2. As a result, it held that the state trial court lacked jurisdiction to consider the arguments raised in Slocum's Rule 37 petition. Id. at *3.

         B. Federal Proceedings

         On April 30, 2014, Slocum filed his § 2254 petition with the district court, alleging ineffective assistance by both trial and appellate counsel. The magistrate judge recommended that the district court deny Slocum's petition with respect to his claims of ineffective assistance of appellate counsel but conduct an evidentiary hearing with respect to Slocum's claims of ineffective assistance of trial counsel. The magistrate judge recognized that the Arkansas Supreme Court's dismissal of Slocum's petition for failure to conform with the verification requirement of Rule 37 constitutes a "procedural default in an initial-review collateral proceeding." See Martinez, 132 S.Ct. at 1318. The magistrate judge found, however, that Slocum's pro se status during his postconviction proceedings could constitute cause to excuse the procedural default if his ineffective-assistance claims were substantial. See id. at 1320.

         The district court adopted the magistrate judge's partial disposition. Thereafter, the magistrate judge held an evidentiary hearing on Slocum's claims that Austin, his trial attorney, was ineffective for, among other things, (1) failing to request a competency hearing, and (2) failing to present mitigating evidence during sentencing.

         1. Failure to Request a Competency Hearing

         At the evidentiary hearing, attorney Austin confirmed that she never requested a competency hearing before the state trial court. Slocum introduced exhibits showing that he had a series of mental evaluations by psychologists in the California Department of Correction (CDC), Florida Department of Correction (FDC), and the Arkansas State Hospital (ASH). Austin testified that she was unaware of these records. She confirmed that it was her "practice to question [her] clients as to their mental[-]health histories." Austin did not recall Slocum referencing his mental-health history. Austin confirmed that nothing about "Slocum's actions, speech, demeanor, [or] behavior . . . g[a]ve [Austin] any reason to suspect that he suffered from a mental disorder." During her initial interview with Slocum, Austin found him to be "intelligent." In fact, she found him "very articulate . . . in every hearing [that they] attended." She characterized him as "always active in his defense." In Austin's experience, "a client mentioning a difficult childhood" was an insufficient basis to request a competency hearing. Additionally, according to Austin, Slocum told her that he had a "nonviolent" criminal history. Austin observed no signs that Slocum was "mentally or emotionally" unable to assist with his trial "because he was actively involved." When asked what behavior of a client has previously led her to request a competency hearing, Austin testified, in relevant part, "I look at the offense. If the offense involves violence of some sort, that's somewhat of a red flag." But, according to Austin, she did not receive the certified copies of judgments from Slocum's California and Florida convictions until "three or four days before trial." Therefore, she "didn't know the full extent of all of [Slocum's] priors until, like, four days before trial."

         Austin also testified that Slocum's wife, who retained Austin, never mentioned any concerns about Slocum's mental health. And Tim Boozer, a public defender who had originally represented Slocum, "gave [Austin] no indication . . . of any present mental disorder that would make [Slocum] incompetent to stand trial." Slocum confirmed that he "never" had a conversation with Smith-Austin's co-counsel and Slocum's family friend-about Slocum's purported "mental health issues." No ...


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