Nooner v. State
438 S.W.3d 233
Ark.2014Background
- Terrick Terrell Nooner was convicted (1995) of capital murder and sentenced to death; direct appeal, postconviction, and multiple federal habeas proceedings followed over ~20 years.
- At penalty phase Nooner presented limited mitigating evidence through his stepfather: troubled childhood, youth (22 at offense), substance abuse, and family ties; the jury completed Form 2 by checking option D: "There was no evidence of any mitigating circumstance."
- Nooner moved (2012) to recall the Arkansas Supreme Court’s direct-appeal mandate, arguing the court failed sua sponte to detect two fundamental errors affecting the death sentence: (1) the jury’s Form 2 D reflected a failure to consider presented mitigating evidence; and (2) instructions and prosecutor argument improperly limited mitigation to circumstances "at the time of the murder."
- The State argued recall requires extraordinary circumstances and that Nooner misreads later decisions (Williams/Anderson) to create a retroactive duty to raise such issues on collateral review.
- The court treated recall of a mandate as an extraordinary, discretionary remedy (Robbins/Calderon), concluded Williams (2011) was wrongly decided and overruled it, and denied Nooner’s motion because he failed to show an appellate-process breakdown or a reasonable likelihood that the jury was precluded from considering mitigating evidence.
Issues
| Issue | Plaintiff's Argument (Nooner) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether recall of mandate is warranted for an "error in the appellate process" | Williams and Anderson show the jury’s Form 2 D proves appellate breakdown; only an appellate error need be shown | Recall is extraordinary; Robbins three-factor framework and finality bar relief absent extraordinary circumstances | Denied — Nooner failed to show appellate-process error; Robbins framework remains relevant and recall is narrow and discretionary |
| Whether the jury’s marking of Form 2 D (no mitigating evidence) means the jury failed to consider offered mitigation | Form 2 D indicates the jury eliminated mitigation from consideration despite mitigating testimony | Hill precedent allows a jury to hear and reject mitigating evidence; the jury may weigh credibility and conclude evidence is not mitigating | Denied — Hill controls; jurors could have considered then rejected stepfather’s testimony; no automatic Eighth Amendment violation shown |
| Whether instructions/prosecutor argument limiting mitigation to "at time of the murder" violated Eighth Amendment (Penry/Skipper) | Repeated prosecutor references and the temporal language created a reasonable likelihood jurors were precluded from considering relevant mitigation | No contemporaneous objection; under governing Rule 4-3(h)/Rule 10 review scope and existing precedent (Thessing), no basis to sua sponte reverse on collateral motion | Denied — no reasonable likelihood jury was inhibited; any speculative possibility insufficient under Boyde to require recall |
| Whether "interests of justice" or new evidence (mental-health reports, accomplice confession) require recall and resentencing | New/weighty mitigation (Dr. Amador report, schizophrenia, accomplice confession) justify reopening for resentencing | These claims were or can be raised in other proceedings; accomplice-confession and other claims have been reviewed in federal habeas; interests of repose and finality weigh against recall | Denied — interests of justice do not overcome finality; issues reviewed elsewhere or not yet ripe (competency) |
Key Cases Cited
- Robbins v. State, 353 Ark. 556 (Ark. 2003) (recall of mandate is a narrow, extraordinary remedy to correct appellate-process errors)
- Anderson v. State, 357 Ark. 180 (Ark. 2004) (jury marking Form 2 D can show the jury failed to consider mitigating evidence under the amended form)
- Hill v. State, 289 Ark. 387 (Ark. 1986) (holding jury may consider and reject mitigating evidence; marking Form 2 D not necessarily proof of failure to consider)
- Penry v. Lynaugh, 492 U.S. 302 (U.S. 1989) (sentencer must be able to give meaningful effect to mitigating evidence)
- Skipper v. South Carolina, 476 U.S. 1 (U.S. 1986) (sentencer may not be precluded from considering relevant mitigation)
- Boyde v. California, 494 U.S. 370 (U.S. 1990) (instructional ambiguity assessed by whether there is a reasonable likelihood the jury applied it to preclude constitutionally relevant consideration)
- Calderon v. Thompson, 523 U.S. 538 (U.S. 1998) (extraordinary remedies must account for the interests in repose attached to appellate mandates)
- Dansby v. Norris, 682 F.3d 711 (8th Cir. 2012) (federal court analyzed interplay of Hill, Anderson, and Williams and treated Hill as consistent with Eighth Amendment jurisprudence)