938 F.3d 949
8th Cir.2019Background
- In 2000, Justin Anderson (age 19) shot Roger Solvey (survived) and later killed Clara Creech; convicted of capital murder and sentenced to death after penalty-phase proceedings in 2002; Arkansas Supreme Court ordered resentencing because jury ignored mitigating evidence.
- At resentencing (2005) Anderson's defense presented extensive mitigation (13 witnesses, 30 mitigating findings) and expert testimony about childhood abuse, depression, and frontal-lobe immaturity; Anderson testified and accepted responsibility.
- Defense consulted multiple experts (including Drs. Speck-Kern and Caperton) but did not pursue neuropsychological testing or a formal fetal alcohol spectrum disorder (FASD) or PTSD diagnosis pretrial.
- Jury again found one aggravating circumstance (prior felony involving violence) and returned a death sentence; state courts affirmed; Anderson filed a federal habeas petition, raising ineffective-assistance and other claims.
- The district court denied habeas; this appeal challenges counsel’s investigation/presentation of mental-health evidence (teen brain, PTSD, FASD), an expert report statement that Anderson had been "on Death Row," a mid-deliberation jury instruction about aggravating evidence ("Creech circumstances"), and a claim that youth/mental illness categorically bar death.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance for failing to investigate/present mental-health evidence (teenage brain, PTSD, FASD) | Counsel unreasonably failed to obtain neuropsych testing, screen for PTSD, or develop FASD evidence that would reduce moral culpability | Counsel investigated extensively, presented youth/frontal-lobe immaturity and childhood-abuse mitigation, consulted experts who did not diagnose brain damage or recommend further testing | No deficient performance; even if deficient, no prejudice shown—totality of mitigation presented made different result not reasonably probable |
| Ineffective assistance for providing jury expert report stating Anderson was "on Death Row" | The statement prejudiced jurors by suggesting a prior jury had already sentenced Anderson to death, undermining juror responsibility | The effect is speculative; jurors may not have read or understood the line that way (could think it referred to current capital charge) | No prejudice shown under Strickland; speculative effect insufficient to overturn sentence |
| Trial court's mid-deliberation instruction allowing jury to "consider all evidence" (Creech circumstances) | Instruction improperly allowed the jury to treat facts of Creech's killing as an invalid aggravating factor (not enumerated under state law) | Instruction merely allowed weighing of properly admitted evidence; consideration of crime circumstances is permissible | Claim procedurally defaulted; even if reviewed, no federal constitutional error—consideration of crime circumstances is allowed under Tuilaepa |
| Categorical exemption from death (youth at time of offense; serious mental illness) / novelty to excuse procedural default | Newer Eighth Amendment developments (or their applications) excuse procedural default and warrant relief | Supreme Court precedent (Roper, Atkins, Ford) and available legal tools existed at resentencing; claim not novel and defaulted | Procedurally defaulted and no cause shown; tools to litigate claim were available at the time, so default not excused |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑part ineffective-assistance test: deficient performance and prejudice)
- Martinez v. Ryan, 566 U.S. 1 (2012) (narrow exception to procedural default for certain ineffective-assistance claims)
- Trevino v. Thaler, 569 U.S. 413 (2013) (application of Martinez in states where appellate review of trial-ineffective-assistance claims is inadequate)
- Wiggins v. Smith, 539 U.S. 510 (2003) (reasonableness of mitigation investigation informs Strickland analysis)
- Rompilla v. Beard, 545 U.S. 374 (2005) (limits on duty to investigate and reliance on reasonable factual baselines)
- Romano v. Oklahoma, 512 U.S. 1 (1994) (speculation about how particular evidence affects a jury cannot supply fundamental‑fairness reversal)
- Brown v. Sanders, 546 U.S. 212 (2006) (weighing of aggravating and mitigating evidence and harmless‑error principles)
- Tuilaepa v. California, 512 U.S. 967 (1994) (jury may consider circumstances of the crime in sentencing)
- Roper v. Simmons, 543 U.S. 551 (2005) (categorical bar on death penalty for offenders under 18)
- Atkins v. Virginia, 536 U.S. 304 (2002) (execution of intellectually disabled persons unconstitutional)
- Ford v. Wainwright, 477 U.S. 399 (1986) (insanity at execution bars imposition of death)
- Bobby v. Van Hook, 558 U.S. 4 (2009) (ABA Guidelines are guides but not definitive rules for reasonableness under Strickland)