Sasser v. Kelley

          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 intellectual disability, 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^[2] and giving rise to these proceedings. 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 intellectually disabled under Atkins.

         The four claims to be considered on remand are that Sasser's trial counsel was unconstitutionally ineffective when he failed to: “1. Prepare for the sentencing phase of the trial; 2. Obtain a timely psychological evaluation of Sasser; 3. Meaningfully consult with a mental health professional; and 4. Object when the prosecutor misconstrued the mitigating evidence that the defense had presented concerning Sasser's mental impairment and lessened culpability or to rebut the argument.” Sasser v. Hobbs (Sasser II), 735 F.3d 833, 851 (8th Cir. 2013) (brackets and quotation omitted). 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.” (quotation 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 Court's Atkins finding is addressed by a separate opinion.

         A hearing was set, and the Court's scheduling order directed the parties that the Court was to hear evidence regarding Sasser's four surviving ineffective assistance claims. (Doc. 217). The Court also directed the parties to submit prehearing briefs with proposed findings of fact and conclusions of law. In February 2016, the Court held a four-day hearing and heard testimony from the following individuals in the following order: Charles Potter (“trial counsel”), Jacquelyn Carter, Rupert Purifoy, Steve Jackson, Leroy Brown, Deborah Sallings (“postconviction counsel”), Joseph Cummings, Dr. Ann Thomas, Dana Harrison, Mark Bezy, Betty Perry, Margie Sasser Kemp, Artha Sasser, H.B. Sasser, James Blackburn, Ph.D., Pamela Blake, M.D., Dale Watson, Ph.D., Leslie Lebowitz, Ph.D., and Richard Burr. Following the hearing, the Court invited posthearing briefing.

         II. Applicable Law

         A federal court may consider a petition for writ of habeas corpus from a person serving a state court sentence that violates the Constitution or a federal law or treaty. 28 U.S.C. § 2254(a). A state court sentence may violate the Sixth Amendment to the Constitution if the petitioner was deprived of the right to effective assistance of counsel at trial and sentencing, which occurs when counsel's performance is deficient (“counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment”) and the performance prejudiced the defense (“counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable”). Strickland v. Washington, 466 U.S. 668, 687 (1984).

         Before a federal court may grant a petition, the petitioner must first have exhausted state court remedies, “unless the state remedies are ineffectual or non-existent.” Sasser II, 735 F.3d 833, 842 (citing 28 U.S.C. § 2254(b)(1)). The exhaustion requirement protects a state court's interest in correcting its own constitutional violations, and is grounded in principles of comity. Coleman v. Thompson, 501 U.S. 722, 731 (1991). Where state court remedies have been exhausted, a federal court cannot grant a petition for a writ of habeas corpus unless the state's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or … was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

         Where a claim has not been exhausted, that new claim must be presented and exhausted in state court proceedings before a federal court can grant a petition. Rhines v. Weber, 544 U.S. 269, 274 (2005). Dismissal of the entire petition without prejudice is generally required in such instances. In limited circumstances where there has been good cause for a petitioner's failure to exhaust a claim in state court, a federal court may stay its proceedings and hold the matter in abeyance until the new claim is exhausted, or allow the petitioner to amend his petition and omit the new claim. Id. at 277, 278.

         Where a claim has been raised but defaulted during state proceedings due to the petitioner's failure to abide by a state's procedural requirements, although it is technically exhausted (because a state remedy is no longer available to the petitioner), the same need for comity exists that undergirds the exhaustion requirement. Coleman, 501 U.S. at 732. When there has been a procedural default, there is typically an independent and adequate state ground barring federal habeas relief, unless a petitioner can show cause to excuse the default and prejudice to himself if the default is not excused. See Id. at 745-47.

         As a general rule, the ineffective assistance of counsel in the state postconviction proceedings does not provide cause to excuse a procedural default. Id. at 753-54. A narrow exception to this rule exists. Ineffective assistance of counsel during postconviction proceedings may provide cause to excuse procedural default

where (1) the claim of ineffective assistance of trial counsel was a substantial claim; (2) the cause consisted of there being no counsel or only ineffective counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the initial review proceeding in respect to the ineffective-assistance-of-trial-counsel claim; and (4) state law requires that an ineffective assistance of trial claim be raised in an initial-review collateral proceeding.

Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez v. Ryan, 566 U.S. 1, 14, 17-18 (2012)) (quotations and punctuation omitted). Because there is no meaningful distinction between a state that denies permission to raise ineffective assistance claims on direct appeal and one that, “as a matter of procedural design and systemic operation, ” technically allows but effectively denies a meaningful opportunity to raise ineffective assistance claims on direct appeal, the Supreme Court has expanded the narrow exception to cover states in the second category. Id., at 429. In this case, Arkansas falls into the latter category. Sasser II, 735 F.3d at 853 (“For these reasons, we conclude Arkansas did not ‘as a systematic matter' afford Sasser ‘meaningful review of a claim of ineffective assistance of trial counsel' on direct appeal.” (citation omitted)).

         The four ineffective assistance claims before this Court on remand may provide grounds for habeas relief if (1) they were exhausted in state court, and the state court's decision was contrary to or unreasonably applied clearly established federal law, or was based on an unreasonable determination of the facts based on the evidence in the state court proceeding; or (2) they were procedurally defaulted in state court proceedings, but the default was due to postconviction counsel's ineffective assistance and that ineffective assistance would prejudice the petitioner.

         III. Analysis

         As an initial matter, the Court will address Sasser's fourth claim identified by the Eighth Circuit-that trial counsel was unconstitutionally ineffective when he failed to object when the prosecutor misconstrued the mitigating evidence that the defense had presented concerning Sasser's mental impairment and lessened culpability or to rebut the argument. Sasser has presented no argument or evidence concerning this claim. Because “[t]he law favors an adversarial presentation of issues in order to conserve judicial resources and to ensure that cases are resolved in the context of an actual dispute, ” Sasser's failure to present argument or evidence concerning this claim results in abandonment. Malone v. Vasquez, 138 F.3d 711, 716 (8th Cir. 1998). This leaves only three claims that must be analyzed-Sasser's claims that his trial counsel was unconstitutionally ineffective when he failed to: (1) prepare for the sentencing phase of the trial; (2) obtain a timely psychological evaluation of Sasser; and (3) meaningfully consult with a mental health professional. Sasser II, 735 F.3d at 851.

         A. Claim Comparison

         The first issue the Court must resolve is whether these three claims are claims that Sasser exhausted before the state court, or if they are new or procedurally defaulted claims and susceptible to a Martinez/Trevino analysis. Claims are the same when they have the same factual and legal premises, and are new when new factual allegations fundamentally alter the legal claim already considered. See Vasquez v. Hillery, 474 U.S. 254, 260 (1986) (holding supplemental evidence did not fundamentally alter legal claim).

         The Court is cognizant that a determination that a claim is new might in a similar case require the Court to follow the stay and abeyance process identified in Rhines. See Sasser v. Hobbs, 745 F.3d 896, 899 (8th Cir. 2014) (Colloton, J., dissenting from denial of rehearing en banc).

However, if no state court remedy is available for the unexhausted claim-that is, if resort to the state courts would be futile-then the exhaustion requirement in § 2254(b) is satisfied, but the failure to exhaust ‘provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim unless the petitioner can demonstrate cause and prejudice for the default' (or actual innocence, which is not an issue in this case).

Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir. 2005) (quoting Gray v. Netherland, 518 U.S. 152, 162 (1996). That is, if there is no state remedy, new claims are treated as procedurally defaulted. To the extent any of these three ineffective assistance claims is new, Arkansas has no available state court remedy to exhaust the claim. See, e.g., Ward v. State, 455 S.W.3d 830, 832, 835 (Ark. 2015) (“This court will recall a mandate and reopen a case only in extraordinary circumstances.” … “As we have held, recalling the mandate is an extremely narrow remedy reserved for unique situations; to enlarge it to allow typical claims of ineffective assistance of counsel would alter the nature of the relief entirely.”) Therefore, any claim that is new, or any claim that was otherwise procedurally defaulted, may be excused under Martinez and Trevino and the matter need not be stayed pending exhaustion in state proceedings.

         Determining whether any of Sasser's three ineffective assistance claims was exhausted or procedurally defaulted requires the Court to compare those claims to the claims Sasser made in the state court proceedings. This analysis is complicated by the parties' competing arguments that the other party is judicially estopped from asserting the position now taken with respect to whether these claims were exhausted or procedurally defaulted. Judicial estoppel “generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000)). It is employed to protect the integrity of the judicial process. Stallings v. Hussman Corp., 447 F.3d 1041, 1047 (8th Cir. 2006). The Court will address the judicial estoppel arguments first.

         1.Judicial Estoppel

         A nonexhaustive list of three factors should inform the Court's determination of whether judicial estoppel should apply in a given instance:

First, a party's later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled. Absent success in a prior proceeding, a party's later inconsistent position introduces no risk of inconsistent court determinations, and thus poses little threat to judicial integrity. A third consideration is whether the ...