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Sasser v. Kelley

United States District Court, W.D. Arkansas, Texarkana Division

March 2, 2018

ANDREW SASSER PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          MEMORANDUM OPINION

          P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE

         On March 20, 2014, the United States Court of Appeals for the Eighth Circuit issued a mandate (Doc. 180) in this case affirming in part and reversing in part this Court's previous judgments, and remanding the matter for proceedings consistent with the Eighth Circuit's opinion.

         I. Background

         On May 4, 1994, Petitioner Andrew Sasser was convicted of capital murder and sentenced to death for the July 12, 1993 homicide of Jo Ann Kennedy. See Sasser v. State, 902 S.W.2d 773 (Ark. 1995). The murder occurred while Kennedy worked as a clerk at an E-Z Mart convenience store in Garland City, Arkansas. Id. at 774-75. Following a direct appeal, and Sasser's effort to obtain Arkansas state court postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37, Sasser sought federal relief through a writ of habeas corpus. (Doc. 3). The Court dismissed the petition but granted a certificate of appealability with respect to several issues. (Docs. 30 and 34). During Sasser's first appeal to the Eighth Circuit, and following the Supreme Court's decision in Atkins v. Virginia, [1] the Eighth Circuit remanded for a determination of whether Sasser was ineligible for the death penalty because of mental retardation, [2] but retained jurisdiction over the bulk of Sasser's case. After reviewing the Atkins issue twice, the Eighth Circuit issued its opinion and mandate remanding to this Court[3] and giving rise to these proceedings. Sasser v. Hobbs (Sasser II), 735 F.3d 833 (8th Cir. 2013). The Eighth Circuit affirmed dismissal of many of Sasser's claims, but reversed with respect to Sasser's Atkins claim and four of his claims of ineffective assistance of counsel at the sentencing phase of Sasser's trial. The Eighth Circuit vacated the Court's denial of relief on those four claims, and the Court's finding that Sasser is not mentally retarded under Atkins.

         The Eighth Circuit directed the Court to conduct a hearing on the four ineffective assistance of counsel claims to determine whether they are procedurally defaulted claims, and if so, whether they should be excused. Id. at 853, 855; see also Sasser v. Hobbs, 743 F.3d 1151, 1151 (8th Cir. 2014) (denying rehearing) (“It should be clear the district court, on remand, must consider whether Andrew Sasser's state postconviction counsel failed to raise the four potentially meritorious ineffectiveness claims.” (citation and brackets omitted)). The Eighth Circuit also directed the Court to make a new Atkins finding using the appropriate standard. Sasser II, 735 F.3d at 855. The Courts' ineffective assistance findings are addressed in a separate opinion.

         On remand, the Court denied Sasser's motion to file an amended petition and directed the parties to file post-remand briefs on Sasser's Atkins claim. Sasser filed his brief (Doc. 187) on September 17, 2014, and the Respondent filed a response brief (Doc. 195) on December 17, 2014. Sasser later filed notices of supplemental authority (Doc. 205, 279, 280).

         II. Applicable Law

         In 2002, the United States Supreme Court found that the Eighth Amendment “‘places a substantive restriction on the state's power to take the life' of a mentally retarded offender.” Atkins v. Virginia, 536 U.S. 304, 321 (2002) (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)). The Atkins Court left “‘to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.'” Id. at 317 (quoting Ford, 477 U.S. at 416-17).

         Even prior to Atkins, Arkansas provided a statutory right against execution for persons “with mental retardation at the time of committing capital murder.” Ark. Code Ann. § 5-4-618. Following Atkins, the Arkansas Supreme Court has consistently construed this statutory right to be equivalent to the federal constitutional right established in Atkins. See Anderson v. State, 163 S.W.3d 333, 354-55 (Ark. 2004). Arkansas law defines mental retardation as follows:

(A) Significantly subaverage general intellectual functioning accompanied by a significant deficit or impairment in adaptive functioning manifest in the developmental period, but no later than age eighteen (18) years of age; and
(B) A deficit in adaptive behavior.

Ark. Code Ann. § 5-4-618(a)(1). A defendant must prove that he meets the mental retardation standard “by a preponderance of the evidence.” Ark. Code Ann. § 5-4-618(c). To meet this burden, Sasser must prove four factors:

1. “Significantly subaverage general intellectual functioning”;
2. “[A] significant deficit or impairment in adaptive functioning”;
3. That both of the above “manifest[ed] . . . no later than age eighteen”; and,
4. “A deficit in adaptive behavior.”

Sasser II, 735 F.3d at 843 (quoting Ark. Code Ann. § 5-4-618(a)). The third prong modifies both the first and second prongs, while the fourth prong asks the same questions as the second prong, unbounded by the requirement of juvenile manifestation.

         If Sasser can show that he suffered from an intellectual disability, “either (a) at the time of committing the crime or (b) at the presumptive time of execution, ” to an extent that meets Arkansas's mental retardation legal standard, his execution will be prohibited by the Eighth Amendment. Id. at 846.

         III. Evidence Presented

         At the 2010 evidentiary hearing regarding Sasser's Atkins claim, the Court heard testimony from Mr. Hollis Sasser, Dr. Jethro Toomer, Prof. Tom Smith, Dr. Roger Moore, Mr. Grant Harris, Sgt. John Cartwright, Mr. Bryan Olinger, and Dr. Kevin McGrew. Along with the testimony of witnesses, Sasser submitted exhibits numbered 1-4, [4] which consisted of the following: Petitioner's Exhibit 1: Report of Dr. Jethro Toomer, consisting of three volumes; Petitioner's Exhibit 2: Curriculum Vitae and report of Professor Tom Smith; Petitioner's Exhibit 3: Report of Dr. Kevin McGrew and Appendix, consisting of five volumes. The Respondent submitted exhibits numbered 1-3, which consisted of the following: Respondent's Exhibit 1: Report, Raw Data, and Materials of Dr. Roger Moore, consisting of seven volumes; Respondent's Exhibit 2: Diagram showing correspondence between Sasser's test results and the normal distribution curve; Respondent's Exhibit 3: Arkansas Department of Finance and Administration Driver Permit/License Record for Sasser.

         As a summary of the evidence, the Court fully incorporates the Eighth Circuit's description in Sasser II:

Beginning on June 15, 2010, the district court held a two-day evidentiary hearing on Sasser's Atkins claim. Sasser first called three witnesses: his brother, Hollis; Dr. Jethro Toomer, a psychologist; and Professor Tom Smith, a special education expert. The State, in turn, called four witnesses: Dr. Roger Moore, a psychologist; Grant Harris; Sergeant John Cartwright; and Brian Hollinger. Sasser called one witness in rebuttal: Dr. Kevin McGrew, a psychologist. We recount only the evidence relevant to this appeal.
Dr. Toomer's Testimony
Dr. Toomer evaluated Sasser in person, conducting an intelligence quotient (IQ) test: the Wechsler Adult Intelligence Scale, fourth edition (WAIS-IV). Dr. Toomer also administered several other psychological tests and interviewed numerous individuals about Sasser's background. Dr. Toomer concluded Sasser “met the criteria for mental retardation [in 1994].” He based his conclusion on qualitative factors in addition to evidence of Sasser's IQ scores, which were 79 in 1994, according to an earlier test, and 83 in 2010, according to Dr. Toomer's test.
Dr. Toomer testified the IQ score of 79 Sasser obtained in 1994 was based on an outdated set of scoring norms, resulting in an inaccurately high result. Specifically, the 1994 score was from the WAIS-R, a test whose scoring norms were developed in 1980. IQ scoring norms rapidly become outdated because an IQ score is a relative rather than an absolute measure: IQ tests including the WAIS-R and WAIS-IV are normed such that 100 is the mean score, meaning approximately 68% of the U.S. population would score between 115 and 85, one standard deviation (15 points) above and below the mean. Approximately 2% of the U.S. population would score 70 (i.e., two standard deviations from the mean) or below. For several decades, however, the U.S. population's average raw IQ score has risen each year.1See, e.g., James R. Flynn, Massive IQ Gains In 14 Nations: What IQ Tests Really Measure, 101 Psychol. Bull. 171 (1987). Thus, an IQ score of 100 under current scoring norms would likely have been close to 110 under scoring norms in effect thirty years ago. This change in IQ scoring norms over time is referred to as the “Flynn effect.” See, e.g., Richard E. Nisbett et al., Intelligence: New Findings and Theoretical Developments, 67 Am. Psychologist 130, 148 (2012).
1 Although this rise in raw IQ scores is persistent and widely recognized, psychologists heavily debate its causes. See, e.g., Ted Nettelbeck & Carlene Wilson, The Flynn Effect: Smarter Not Faster, 32 Intelligence 85 (2004); Joseph L. Rodgers, A Critique of the Flynn Effect: Massive IQ Gains, Methodological Artifacts, or Both?, 26 Intelligence 337, 354 (1999) (“Even with a healthy dose of skepticism, the [Flynn] effect rises above purely methodological interpretation, and appears to have substantive import.”).
To correct for the Flynn effect, Dr. Toomer testified Sasser's IQ score from 1994 should be reduced by four points to 75, a score falling within the 70-75 outer range consistent with mental retardation. Cf., e.g., Jack M. Fletcher et al., IQ Scores Should Be Corrected For the Flynn Effect in High-Stakes Decisions, 28 J. Psychoeducational Assessment 469, 472 (2010) (finding IQ scores should be adjusted by a mean of 3 points per decade from the date scoring norms are developed). Dr. Toomer testified that because of the measurement error inherent in IQ tests, a score of 75 indicated that Sasser's actual IQ almost certainly fell between 70 and 80 (i.e., an error of 5 points). Dr. Toomer testified that Sasser's 2010 IQ score was likely higher because he had been in a structured prison environment for an extended period of time. Dr. Toomer explained, “research shows that what tends to be enhanced ... is the area of verbal reasoning on people who have been incarcerated.”
Dr. Toomer's diagnosis also relied on qualitative factors. Notably, Sasser had a long history of intellectual and academic difficulties. In high school, he was placed with students in the bottom performance level, indicating that he was a “special education” student despite the fact Arkansas, at the time, did not offer dedicated programs for “special education” students. His grades were consistently poor despite the simplicity of his classes. He was unable to graduate from high school; instead, the school gave him, like all students who failed to meet the minimum graduation requirements, a “certificate of attendance.” Apart from time in prison, Sasser lived with his mother virtually his entire life, and he was unable to live independently. After high school, he attempted to join the army, but his dismal performance on the Armed Services Vocational Aptitude Battery (ASVAB) disqualified him. Apparently ashamed of telling his family of this failure, he spent several weeks pretending to be in the Army, hiding in an abandoned cabin in the woods near his mother's home and sneaking into her house to get food.
Sasser never had a checking account or a credit card, did not obtain a driver's license until he was twenty-eight years old, and had extraordinary difficulties performing even the simplest manual labor jobs. For example, he worked for a time at a chicken processing facility, where his supervisor rotated him through several jobs of decreasing difficulty, trying to find one Sasser could perform. In the end, the only job he was able to perform was the simplest task in the facility: pushing a button to dispense ice. Even a slightly more difficult task-color coding pallets-was too difficult because Sasser often mixed up the colors.
Dr. Moore's Testimony
Dr. Moore evaluated Sasser in person and conducted several psychological tests, but did not reassess his IQ.2 Dr. Moore concluded Sasser was not “mentally retarded as defined by Arkansas law.” Dr. Moore admitted Sasser had “borderline mental retardation or impaired cognitive functioning that falls into the upper 70s to low 80s.” But in Dr. Moore's view, “as th[e] term is statutorily and clinically defined, ... [Sasser] does not suffer from mental retardation.” Dr. Moore based his conclusions primarily on the 1994 and 2010 IQ scores, but he also considered several qualitative factors.
2 Because there are substantial “practice effects, ” Dr. Moore explained, it is not appropriate to administer multiple IQ tests in short succession.
As to Sasser's IQ, Dr. Moore agreed with Dr. Toomer that (1) the Flynn effect is “a genuine and real observation, ” and (2) norm obsolescence was a justified concern, but he opined that it was not appropriate to adjust the 1994 score for the Flynn effect. Dr. Moore admitted, however, that the American Association on Intellectual and Developmental Disabilities (AAIDD)-the primary organization in the United States dealing with “the assessment and diagnosis of mental retardation”-considered it a “best practice[] in the diagnosis of mental retardation” to recognize the Flynn effect. Dr. Moore disagreed with Dr. Toomer's scoring of the 2010 IQ test, contending that the score should have been 84 rather than 83. Stating no supportive research exists, Dr. Moore denied that spending time in a structured prison environment could raise IQ scores. Dr. Moore testified that the “cutoff of mental retardation” was a score of 70.
As to qualitative factors, Dr. Moore opined that Sasser “appears to have adequate skills to cook for himself as needed, travel independently in the community, hold a job, take care of his personal needs and communicate effectively.” Dr. Moore noted that Sasser had maintained over time two significant relationships and fathered a child. Dr. Moore pointed to a small bank loan obtained in Sasser's name as positive evidence of Sasser's adaptive functioning, but Sasser's brother actually procured the loan, completing all the necessary paperwork on Sasser's behalf.
Other Qualitative Evidence
Both psychologists considered firsthand accounts of Sasser's behavior by people who knew him before he turned eighteen years old. For example, one of Sasser's high school classmates, Janice Washington Briggs, described Sasser's limited interpersonal skills. “[I]f someone did or said something funny, [Sasser] laughed longer than everyone else in an inappropriate way [and] slobbered when he laughed, ” Briggs said. She said Sasser “was in Group III, ” and “[t]he students in Group III were Special Education students.” After high school, Briggs remembered that Sasser entered into his first relationship, with a woman who “[l]ike [Sasser], ... did not fit in.” Dr. Toomer reported Sasser's “social interaction and communication skills” at age 45 “equate[d] with that of an average person age 7 years, 6 months.”

Sasser II, 735 F.3d at 838 - 41 (heading numbers omitted, alterations and punctuation in original).

         In addition to the foregoing recitation of evidence from the Eighth Circuit, the Court notes the ...


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