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