Charles Laverne Singleton v. Larry Norris, Director, Arkansas Department of Correction
108 F.3d 872
8th Cir.
1997
Check Treatment

*1 872 SINGLETON, Appellant, Laverne

Charles

v. NORRIS, Director,

Larry Arkansas Correction,

Department of

Appellee.

No. 95-3032. Appeals, Court of

United States Eighth Jeffrey Rosenzweig, argued, Circuit. Little Mark Rock, AR, appellant. for 14, 1996. Feb. Submitted Hill, Kelly Deputy Attorney Kristine Gen- 12, 1997. Decided March (Winston Rock, eral, argued, AR Little brief),

Bryant, appellee. on the WOLLMAN, HEANEY, and Before BRIGHT, Judges. Circuit WOLLMAN, Judge. Circuit Singleton appeals Laverne Charles dismissing pe- the district court’s1 order his corpus.2 affirm. tition for writ habeas We to death in 1979 was sentenced Ashley County, by Ar the Circuit Court kansas, arising murder out of the storekeeper of a whom death robbery.3 during the course of a stabbed affirmed The sentence and conviction were Single Court of Arkansas. State, 126, Ark. 180 ton v. 623 S.W.2d denied, 938, cert. 456 U.S. 102 S.Ct. 1996, (1982). Singleton’s pe 72 L.Ed.2d 458 proceed pursuant tition to to Rule 37 of the Arkansas Rules of Criminal Procedure was opinion in denied without written 1982. then filed a for writ of corpus the United States District habeas Court for the Eastern District of Arkansas. Lockhart, F.Supp. (E.D.Ark.1986), the district court vacated the prohibition on the basis of the against counting announced double Lockhart, court in 754 F.2d 258 Collins (8th Cir.), denied, Eisele, 104-132, 1. Garnett United Pub.L. 110 Stat. bars our consid- The Honorable Thomas Judge petition. States District for the Eastern District of eration of current Arkansas. 3.Singleton convicted under was Arlc.Stát.Ann. holding Single- In view our on the merits of § 41-1501. That section has been codified as whether, ton’s we need not decide as 5-10-101(a) (Supp.1995). § Ark.Code Ann. contends, recently enacted Anti-Terror- Penalty ism and Death Act of Effective

873 (1985). 546, Wainwright 475 The dis- Ford v. claims. In 88 L.Ed.2d view of the S.Ct. Singleton’s pending contentions action court dismissed state court and what it as trict guilt forthcoming of trial and sumed would regarding phase his decision in Middlebrooks, relating pen- to the Tennessee v. the other issues the district court deferred abeyance alty phase and the sentence. held the in while death the state litigation proceeded. Singleton court v. appealed and the Both Ended, 133, 742, 316 Ark. 870 S.W.2d cert. ruling. Following district court’s from the Norris, denied sub nom. v. 513 argument in this court but before our oral 960, 419, 115 U.S. S.Ct. 130 L.Ed.2d 334 decision, Supreme the United States Court (1994), Supreme Court of Arkansas re 231, Phelps, decided v. 484 U.S. Lowenfield jected Singleton’s Wainwright Ford v. (1988). 546, 108 S.Ct. 98 L.Ed.2d 568 After Thereafter, claims. district court held briefing reargument, supplemental we hearings Singleton’s present petition. two held, upon contemporaneously based our first, 17, May 1995, held on related to Lockhart, Perry opinion filed v. 871 F.2d Singleton’s competency to be executed. The (8th denied, Cir.), 959, 110 1384 cert. 493 U.S. second, relating claim of actual 378, (1989), 107 L.Ed.2d 363 that Low- S.Ct. innocence, 24,1995. July was held on implicitly Ac had overruled Collins. enfield cordingly, district we reversed the court’s The district Singleton, court found that ruling setting sentence and voluntarily taking antipsychotic aside who was medication, competent. ordered that the sentence be reinstated. We was The district court, Single noting Supreme affirmed the district court’s denial of Court had guilt phase Singleton v. improvidently granted ton’s contentions. dismissed as the writ Lockhart, (8th Cir.), Middlebrooks, 871 F.2d 1395 cert. de of certiorari v. Tennessee nied, 874, 207, 124, 651, 110 107 493 U.S. S.Ct. see 510 U.S. 114 S.Ct. 126 L.Ed.2d (1989). (1993),rejected Singleton’s 160 L.Ed.2d 555 double count- ing and actual innocence claims. It is remand, up court took On the district the denial of his claim of unconstitutional Singleton’s remaining matter of contentions. counting appeals. double now 12, 1990, July On the district court denied Although possibility he raises the that he petition. claims and dismissed the those may incompe- in the future have a claim of (E.D.Ark.PB-C-82- Singleton v. Lockhart tency, Singleton currently that he concedes 165). affirmed the dismissal. On we support has no for such a claim view of his (8th Lockhart, Singleton v. 962 F.2d 1315 voluntary ingestion antipsychotic of medi- denied, Cir.), 964, 113 cert. 506 U.S. S.Ct. .Singleton appeal cation. does not from the (1992). 435,121 L.Ed.2d 355 denial of his claim of actual innocence. 1992, Singleton In December of filed an Singleton asks that we reconsider our deci action in the Circuit Court Jefferson Coun- Perry Phelps im sion v. Lowenfield Arkansas, ty, alleging incompe- that he was plicitly counting overruled our earlier double tent to be executed and that he had not been holding in v. Lockhart. He contends Collins procedural guarantees afforded the outlined the Arkansas murder statute 399, Wainwright, in Ford v. 477 106 U.S. provide narrowing does function 2595, (1986). 91 S.Ct. L.Ed.2d 335 pan mandated We as a Constitution. pending, action While the state court was liberty at el are not to overrule the estab granted the United States Court however, see, circuit, e.g., lished law the Middlebrooks, 507 certiorari Tennessee v. (8th Lockhart, 1289, F.3d 1305 Snell 14 1028, 1840, U.S. 113 S.Ct. 123 L.Ed.2d 466 Cir.), denied, 960, cert. 115 S.Ct. (1993), again present- a ease that would 419, Perry 130 L.Ed.2d 334 and thus counting ed the issue of double interpretation must stand as our court’s thereafter, sentencing Shortly an exe- murder statute. See Singleton. date was cution set Lockhart, 1226, Wainwright v. 80 F.3d 1231 - (8th denied, -, Cir.), present petition, 117 then filed the cert. U.S. 395, .(1996), petition alleging counting both the double and the 136 L.Ed.2d 310 S.Ct. (U.S. I. 96-7351 Jan. filed, No. cert. Norris, 1997); F.3d Ruiz v. Sadly, I to concur in the am - denied, -, (8th Cir.1995), U.S. respect this case. result of With (1996); L.Ed.2d 301 Snell 117 S.Ct. I double-counting Singleton, issue raised Lockhart, at 1305. 14 F.3d his too see no material difference between *3 court’s claim and this recent decisions Following submission of this the (8th Cir.1997) Norris, 104 F.3d 163 Ruiz v. filed its Supreme of Arkansas the Court Norris, Wainwright and No. 94-3525EA State, 325 Ark. opinion in Brown (8th (order). 2,1997) I that Cir. Jan. believe that second- which holds S.W.2d .l46 narrowing require- Eighth Amendment’s the a included of degree murder is not lesser prohibits pecuniary-gain of ment the use felony granted murder. We fense of aggravating circumstance motive as the sole parties per motion that the Singleton’s- justify robbery- in a to a death sentence supplemental briefs on the mitted to file case. Absent farther review of this murder holding impact of the question of the our court en banc or the issue either narrowing Ar function of the Brown on the Court, however, my United States statute. capital murder kansas hands are tied. Although recognize I that the issue is not Norris, Wainwright v. No. 94-3525EA time, us at this I also feel before (8th 2,1997) (order), and in Ruiz v. Cir. Jan. briefly Singleton’s competency to to address (8th Norris, Cir.1997), petition F.3d 163 light of the substantial rec- face execution (Jan. 7, 1997),we filed, No. 97-7352 presented point. on the rec- ord this While read out of section Brown does not held that ord is unclear as to whether con- 5-10-101(a) narrowing element the the to initiation of his treatment with sented the “under circumstances mani killing be done antipsychotic antidepressant and medi- to the value of festing indifference extreme cations, question that he will not there is no 2; Ruiz, Wainwright, order at human life.” medications, voluntarily stop taking his even no Because we see F.3d at 165-66. purpose assessing for the limited of his com- between the circum differences material and, petency drugs in his own without the Singleton’s conviction and those stances of words,, my “not to save life.” The dis- even Ruiz, reject Singleton’s we Wainwright and trict court determined that under the influ- the basis Brown eviscerates contention compe- ence of his medications is Perry that holding in of our tent to be executed and does adequately nar felony murder statute Apparently, adequate appeal that issue. no death-eligible of murderers. the class

rows Singleton’s competen- to record exists assess question cy his medications. The without above, Singleton makes no indicated As impose penalty the death whether states currently incompetent to be claim he is may person competence execute a whose has Accordingly, the district court’s executed. (for chemically-induced been reasons other unchallenged and is ruling that stands execution) expedite problematic than to the is ruling on this issue does thus affirmed. Our minimum, At a I want to and unresolved. raising a future not foreclose nothing panel’s opin- make clear that upon incompetence based conditions claim of Single- to ion should be construed foreclose to the district from those that led different making ton from a future claim that he is case, subject, ruling present of court’s the incompetent to be executed. objections course, procedural the to whatever II. may to such a claim. raise Finally, although uphold I am bound to dismissing for writ The order law, separately my I write to add voice to corpus is affirmed.

of habeas oppose the death as viola- those who My tive of the United States Constitution. years’ experience on this court HEANEY, concurring. thirty Judgé, Circuit imposition experienced lawyer and criminal conclude that the is con- compelled me to building arbitrary capri- strained from a credible penalty is and defense of the establishing presence mitigating and of every stage, I the decision At believe cious. weigh against imposition factors which for his live and die of who shall who.shall often, only unexperienced death. Too and on the nature of the offense crime turns less unqualified lawyers appointments will take incorrigibility of the offender and and the poor resulting defend defendants and the inappropriate and indefensible con- more on representation grossly inadequate.5 is This political personal and incli- siderations: pattern repeated respect same is with prosecutors; the defendant’s nations legal indigent persons available to services at race, intellect; wealth, race and eco- and appellate post-conviction stages and victim; quality of the of the nomic status counsel; the resources allo- defendant’s *4 lawyers. simply, Put cated to defense Adding to the in arbitrariness inherent the penalty country’s unprincipled death selec- system society’s deeply-rooted prob- is our process is inconsistent with fundamental

tion of racial bias. have lem Studies shown that process. principles of due persons who kill white victims are sentenced persons to death more often than who kill economic importance The a defendant’s that, jurisdictions, in black victims and some death-eligible in cases cannot be over- status penalty black defendants receive the death particularly light in of the direct cor- stated Sys- more often than do white defendants. ability pay between a defendant’s to relation tematic racial in discrimination sen- legal representa- competency of his and tencing is one of the reasons cited employ enables a defendant to tion. Wealth support Bar in American Association of its stages in lawyers at the earliest the best calling a recent resolution for moratorium on thereby affording proceeding the best carrying any out death sentences state avoiding penalty. the death chance of adequate safeguards until such time as are in spares expense prosecut- government no place impartial to ensure fair and administra- Only experienced and ing capital cases. killing persons tion and the risk of innocent lawyers, well-compensated defense with can be minimized. Resolution No. 107 of the qualified investigators and ex- assistance of Delegates, approved House of Feb. adequately perts, expected to defend can be (A.BA. Indiv.Rights Resp.Rep. at 12- See. reality, lawyers appointed by In such cases. 14). As Justice Blackmun noted his elo- capital eases for indi- the states to defend day to quent dissent on the he vowed never gent underqualified, defendants are often so machinery again “tinker with the of death”: underfunded, undercompensated that and pro- sophisticated are mere shams of an adversarial Even under the most trials statutes, play to a ceeding. Take the case at bar: race continues major appointed determining Arkansas role in who shall live trial counsel was under received, Perhaps according appellant’s to and who shall die. it should not law and preju- argument, surprising a total of the biases and counsel at oral $350 society plus investigation.4 generally infect would compensation dices $100 adequate funding, qualified influence the determination of who is sen- Without even trial, tomeys compensation Subsequent Singleton's and 4. to because of lack of attorney's overwhelming lawyers was amended to increase the statute workloads. Just when cap $1000. cases to See Ark.Code. fee point they reach the there have handled (1987). Later still in Ann. 16-92-108 mistakes, avoiding enough begin cases to basic legislature cap fees state removed the on they replaced practice leave criminal and are indigent attorneys appointed represent per- to lawyers young, inexperienced other who are § 20. sons. 1993 Ark.Acts 1193 overwhelming even less able to deal with caseloads. legal expert reports, ap- the various As one Bright, Stephen B. “Counsel for the Poor: The proaches indigent among to defense the states Death Sentence Not for the Worst Crime but for several common features: share Lawyer,” the Worst 103 Yale L.R. They gross underfunding per- evince omitted). (1994) (footnote indigent They to vades defense. are unable keep qualified experienced at- attract and death, the narrower even with tenced to death-eligible defendants selected

pool of objective standards.

according to Collins, 1141, 1153,

Collins v. (1994) 1127, 1135, 127 L.Ed.2d 435

S.Ct. J., dissenting).

(Blackman,

Moreover, not convinced that we havé I am legal procedures to ensure place adequate are not handed down capital sentences changes in the law. Recent

in violation of corpus only- rules have habeas

our federal difficulty of the federal

compounded the adjudicate federal claims

courts to n complex legal of this As a result

morass, many persons sentenced to death claims that will legitimate constitutional by any merits

never be addressed

court. sum, I am although adhere *5 law, my per- announce I nonetheless nation’s administration of

sonal view that this irrational, simply

capital punishment is arbi- problems are inher-

trary, and unfair. I am enterprise itself. Because

ent in the system can that no

confident in a rational and consis-

ever be administered manner, explore at this time

tent I do (in penalty itself some

whether the death Eighth

“perfect” application) violates the prohibition against cruel and

Amendment’s fundamentally in that it punishment

unusual humanity and intrinsic worth of

denies the puts whom the state

the men and women

death. America, Appellee,

UNITED STATES PEYTON, Appellant. Harold

Jonathan

No. 96-2457WA. Appeals,

United States Court

Eighth Circuit. 10, 1996. Dec.

Submitted March

Decided