Jacques R. Slocum Petitioner-Appellant
Wendy Kelley, Director, Arkansas Department of Correction Respondent-Appellee
Submitted: December 14, 2016
from United States District Court for the Eastern District of
Arkansas - Pine Bluff
WOLLMAN, SMITH,  and BENTON, Circuit Judges.
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 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.
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.
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
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.
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.
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.
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.
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.
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.
Failure to Request a Competency Hearing
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
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 ...