*1 Bandy-Bey’s defendants all of the Jimmy WOOTEN, Petitioner- Don respects. in all claim retaliation Appellant, Bandy-Bey’s sub- find that Finally, we Bandy- v. fails. process claim due stantive violated that the defendants Bey alleges Director, Larry NORRIS, rights by falsi- process due his substantive Correction, Department of sentencing charges fying disciplinary Respondent-Appellee. argues that he He segregation. him to No. 06-4068. in his liberty interest a fundamental has circum- and that the to the courts access Appeals, United States Court were disciplinary sanctions of his stances Eighth Circuit. outrageous. Sept. Submitted: a violation of sub “To establish 26, 2009. Aug. Filed: by an executive process rights due stantive (1) official, that the plaintiff a must show more fundamental one or
official violated (2) that the con rights, and
constitutional shocking official was of the executive duct ” conscience.’ Flow ‘contemporary Minneapolis, 478 F.3d City ers v. Cir.2007). (8th Bandy-Bey has failed of a substan showing a sufficient
to make su explained claim. As process
tive due access-to-courts claim
pra, Bandy-Bey’s fail. He has not
and retaliation claim impeded his
shown that he the defendants claim;
ability a non-frivolous pursue
furthermore, disciplinary sanctions charge first days’ segregation for the
ten on the subse days’ segregation
and 15 charge protected do not offend
quent Conner,
liberty interest. See Sandin 472, 486,
515 U.S. (1995) (“We hold that [the
L.Ed.2d 418 discipline segregated confine
inmate’s] type days] did not
ment [for in which atypical, significant deprivation conceivably liberty might create State
interest.”).
Accordingly, judgment affirm the we
the district court. *3 Ñolas, AFPD,
Billy argued, Michael Wiseman, AFPD, Blaskey, Rebecca AFPD, brief, PA, Philadelphia, on the for appellant. AAG, Rumpz, argued, Joseph
Pamela V. Svoboda, AAG, Hill, Sr., Kelly K. AAG, AR, Rock, brief, Little on the appellee. BRIGHT, RILEY,
Before MELLOY, Judges. Circuit MELLOY, Judge. Circuit inmate Jimmy death-row Don appeals the district court’s1 Wooten denial § petition of his 28 U.S.C. habeas relief. The court and our district court granted appealability certificates of re garding two ineffective assistance of coun alleges claims. sel Wooten his trial constitutionally counsel was ineffective during guilt phase of his bifurcated failing argue trial for that mental-health prevented issues from formulating Wooten rea for his necessary capital mens alleges offense. also trial constitutionally counsel was ineffective for failing present mitigating evidence dur trial. penalty-phase Wooten ar gues mitigation evidence tragic personal and a mental-health issues Wright, Webber trict of The Honorable Susan Unit- Arkansas. Judge ed for the States District Eastern Dis- history helped disprove would have ten’s Henry Molly home matched applicability death-qualifying of a aggrava- Porter’s trunks worn description tor. He this evidence argues also would the assailant. swayed jury balancing have as to the State, Wooten v. 325 Ark. 931 S.W.2d of mitigating aggravating circum- (1996) (“Wooten I”). 408, 409 Trial testi- decision stances its ultimate to recom- mony surviving from the victims showed
mend the
rather
than
penalty
death
life
that, in the three encounters between the
imprisonment.
affirm.
We
prior
victims and
shooting,
Wooten’s behavior was bizarre and erratic.
I. Background
passed
group
high
He first
at a
rate of
*4
The
set forth
speed
acknowledging
without
them. He
the details of
underlying
Wooten’s
offense
next stopped
group
and talked to the
in a
as follows:
cordial
them
gave
fashion and
directions to
1994,
5,
LaSalle,
August
On
David
Long Pool
area.
recreation
He then de-
Porter,
Henry Teb
and Molly Porter
parted, but a
passed
few minutes later he
were hiking on a forest trail near the
the group again
going
on his ATV
“as fast
Long
Pope
Pool recreation area in
you
could
trail.” Shortly
on that
there-
County
they
when
encountered appel-
after, he shot at the hikers from a hidden
Jimmy
lant
Wooten.
Don
Wooten was
position in
Molly
the woods.
Porter was
riding a
all-terrain
six-wheel
vehicle. At
able to run
away and hide
a rock forma-
trial, Henry Porter
testified that
tion, and David LaSalle died of his wounds.
group had three encounters with Woo-
Henry
successfully
Porter
chased Wooten
ten before he attacked them and shot
from the
despite
scene
the fact that Woo-
David LaSalle. LaSalle died
aas
result
ten shot him in
face
of a
and shoulder.
single gunshot wound to the head.
Porter also
testified
Wooten shot
trial,
At the guilt-phase
Wooten’s attor-
shoulder, forearm,
him in
face,
ney,
Gibbons, pursued
David
theory
a
of
and that he was able to remove
key
mistaken identity.
jury rejected
The
from Wooten’s all-terrain vehicle before
theory and
guilty
capital
found Wooten
of
Wooten
him into
chased
the woods. murder,
attempt
capital
criminal
to commit
Porter,
Molly
Henry
daughter,
Porter’s
murder, and aggravated
Ample
assault.
testified that
shot
Wooten
LaSalle and
evidence,
eyewitness
including
accounts
shot her father and chased after him.
from the
corroborating physi-
victims and
day
On the
the shooting,
Wooten
evidence,
cal
supported the state’s case
reported that an assailant who looked against Wooten.
just
like him had stolen his six-wheel
penalty-phase
Gibbons’s
presenta-
entire
vehicle
fishing
while he was
near Long
tion filled
ten
pages
fewer than
full
of trial
Pool and
at him using
had shot
the .22
transcript,
including
opening
and clos-
caliber pistol
had in
he
the vehicle.
ing arguments.
presented only
He
two
he
claimed that
later found the
witnesses, an
from
jail
officer
where
vehicle
gun
with the
abandoned
prior
Wooten was housed
to and during
side of the
near his
A
road
truck.
.22
the trial and one of Wooten’s former co-
caliber bullet was recovered from David
workers. The officer testified that Woo-
body.
LaSalle’s
It was determined that
record,
ten had no criminal
was a “good
gun
spent
fired a
Wooten’s
.22 caliber
prisoner,”
work in prison
and could
if
cartridge
sen-
at the location
found
where
imprisonment.
LaSalle and
were shot.
In
tenced
life
The
Porter
addi-
co-work-
tion, swimming trunks found at
er
good
Woo-
testified that
was a
work-
attorney
represented
then
Wooten for
rate
jury
told
closing,
Gibbons
er.
purpose
filing
unsuccess-
aggravating
the limited
find the
“have to”
they would
state,
with the U.S.
petition
name-
ful
for certiorari
by the
asserted
circumstance
Arkansas,
commission
in the
Court. Wooten
person
that “the
ly,
knowingly
created
awas parties dispute The the extent Arkansas. jury Molly ... Porter.” The life of the felony convic- which his disbarment and to against weighed aggravator then should have automati- tions in Oklahoma and recom- circumstances mitigating disqualified practicing him from law cally penalty. the death mended beyond dispute, in Arkansas. It is howev- continued his Gibbons appeal, direct On er, duty had a to disclose that Clawson presented of Wooten representation to the Arkansas courts and that these facts Arkansas to the arguments three have been material this information would First, that Wooten’s argued he Court. persons court but also to only not to the of Batson v. by a violation was tainted trial death-penalty in a hiring to assist Clawson Kentucky, U.S. matter. (1986), the state exer- because L.Ed.2d 69 his convictions did not disclose Clawson to exclude the strike peremptory cised a disbarment, prac- to and he continued or jury member of the African-American sole years, in Arkansas for several tice law I, at 409-10. 931 S.W.2d panel. represented he Wooten. during which time court Second, that the district argued he such, easy adopt it to Wooten’s As we find the state to by permitting erred concealment characterization Clawson’s pres- initial testimony in its victim-impact upon the upon Wooten and as a fraud trial. penalty-phase during entation below, explained of Arkansas. As courts asserted that such at 411. Gibbons Id. ran of the law and breached afoul Clawson used as rebuttal testimony only could be on sev- of Professional Conduct the Rules Fi- mitigation evidence. against Wooten’s moved to Arkansas. occasions after he eral that the trial court argued nally, Gibbons however, felon, did not His status as motion to exclude iden- denying in erred until well into light in Arkansas come to from what he character- evidence tification proceedings. lineup. Id. at unduly suggestive ized as an 21, 1997, ini- filed an April Clawson On September issued opinion In an in the post-conviction relief petition tial for reject- Arkansas The behalf. trial court on Wooten’s sepa- A state at 413. arguments. Id. ed these pages long, lowing mitigating was ten and in petition circumstances: coun- that, paragraph second Clawson asserted sel did not call or [Wooten’s] wife despite diligence, due the exercise of friends to ability establish Wooten’s possible complete adequate in- friendship maintain quali- favorable such, requested he vestigation. As “leave ties, his character and humanity. Coun- provide to amend to additional facts and/or sel made no argument for no mitigation, they claims as are discovered.” plea short, for mercy, and did abso- lutely nothing reasonably competent currently issues As relevant be- attorney court, would have done alleged provide subpara- our Clawson fore (4)(C) effective petition representation initial of the that trial graph penalty phase. “failing was ineffective to em- counsel any expert witnesses, the services of ploy addition, alleged Clawson trial so request funds to do as allowed or under counsel misunderstood the law petition spe- law.” The did not admissibility victim-impact testimo- cifically identify missing expert wit- ny in the penalty phase because trial coun- psychiatrists psychologists; nesses as sel incorrectly such testimony believed rather, the petition discussed ballistics ex- be if only admissible the defendant first reference perts. petition did the U.S. opened the door rebuttal by presenting case, Oklahoma, Supreme Court Ake v. mitigation evidence. Clawson alleged 470 U.S. S.Ct. L.Ed.2d 53 misunderstanding, as reflected (1985), availability which dealt with arguments during counsel’s trial funds for a psychiatrist, peti- but the appeal, direct was one of the reasons *6 tion cited this in reference funding case to counsel failed to introduce additional miti- fact, for a ballistics In expert. nothing in gating evidence. petition the post-conviction for state relief In a separate document filed simulta- suggests that mental-health issues were neously petition with the initial and enti- argument the focus of Clawson’s regarding Petition,” tled Expanded “Motion to File ineffective trial assistance of counsel. sought Clawson permission to file a sec- (4)(F) In subparagraph petition, the ond, longer petition that would exceed the alleged: Clawson ten-page limit contained in Arkansas Rule not, dire, Counsel did in voir opening of Criminal Procedure 37.1. He the filed closing arguments, statement or attempt petition second entitled “First Amended to jury educate the on the in- issues Petition for Under Relief Ark. Rules Crim. in capítol volved sentencing; [sic] he Pro., simultaneously Rule 37” with oth- the jury’s did not focus the attention to the er two He documents. asserted that the mitigation, role of humanity the of his petition second required was order client, the presumption law of life as treat “the complex numerous and issues sentence, the appropriate the need for involved in matter at an appropriate juror each beyond to be satisfied a rea- length.” however, petition, The second appropriateness sonable doubt of the only eleven pages long essentially short, the death penalty-in he made no indistinguishable initial, from the ten-page plea fact, In Wooten’s life. during petition. the penalty phase, counsel said clos- ing, “I will not use emotion.” Also, although Arkansas Rule of Crimi-
nal Procedure at that required 37.1 time Counsel was defendants to failing personally verify ineffective for their Rule offer for jury’s the filings, consideration the fol- 37 neither Clawson informed Woo-
773 1998, filings ity.” nor his verification In December the Arkansas sought ten of attempt did not petitions. Supreme reprimanded Clawson Court Clawson any support evidence misleading” advertising “false or in rela- filings. Accordingly, the state 37 Rule telephone tion to book advertisement. and in- following record trial trial court’s 1999, September Supreme In the Arkansas no filings Rule 37 contained cluding the contempt held Clawson in for his Court factual issues Woo- evidence appeal failure to file a direct for a client in feder- upon support relies of his ten now case, unrelated criminal even after the an illness, petition, namely, mental al habeas repeatedly ap- him file an client asked injury, cognitive brain decreased organic State, Kirby v. Ark. 999 peal. See 338 tragic history, post- life functioning, (1999). the Arkansas Again, S.W.2d traumatic stress disorder. him Supreme Court referred to the court’s summary one- September In in a Professional Conduct Committee. containing findings, page order no written In October the Arkansas Rule court trial denied Wooten’s the state appeal ruled on from the Court Wooten’s grounds they con- petitions summary trial court’s denial of his Rule 37 in- allegations of prejudice tained no State, Ark. petition. Wooten allegations enable the sufficient factual (‘Wooten (1999) II”). Identify- S.W.3d an evi- court to determine whether trial sponte, ruling trial ing, sua court’s necessary. April dentiary hearing was in- denying state relief was untimely appeal filed Clawson firm a matter of state law due to the Rule 37 district court’s denial of from the of written Arkansas findings, absence ex- relief. trial Supreme Court remanded to the by invok- appeal the tardiness of the cused hearing court with directions to hold a ap- authority permits untimely findings. enter written Id. at 11. Claw- clearly is due peals when untimeliness argued had not for relief in son this basis a re- own and where failings to counsel’s brief, and action on appeal he took no preju- would fusal to excuse tardiness following behalf remand. *7 This resulted procedure dice a defendant. addition, apprise he failed to of the Wooten notifying Supreme Arkansas in the Court or otherwise him remand inform on its Committee Professional Conduct of the case. the status appeal failure. The brief Clawson’s ultimately only filed contained Clawson Supreme In March the Arkansas pages argument. five in to reprimanded Court Clawson relation appeal while was In June Wooten’s month, In same Kirby. Clawson was was in Arkan- pending, Clawson convicted driving convicted of drunk in Arkan- again charges driving of drunk and care- sas on sas. August 1998, In Arkan- driving. less 2000, the In June state trial court en- Supreme reprimanded sas Court Clawson its findings support tered written in case, finding to a bankruptcy in relation Rule in earlier denial of 37 relief Wooten’s in engaged involving that he “conduct dis- case, compliance with Arkansas Su- deceit, fraud, honesty, misrepresenta- or II. preme Court’s remand order Wooten tion,” “knowingly failed a mate- to disclose taken no action on court, Because Clawson had “knowingly rial fact” to the offered behalf the Arkansas false,” following failed to knew] evidence be [he remand, the Supreme sponte “sub- Court’s sua hearings, at scheduled and appear hearing. jected potential evidentiary client to criminal liabil- trial court held no his an ap- mitigation Clawson failed to file nor identified what subsequently evi- peal. might dence have been how would impacted the have trial:
In April Clawson was convicted bankruptcy argues federal court on six counts of Wooten other evidence miti- eighteen fraud and sentenced to months’ gation should have been offered. How- imprisonment. judge sentencing ever, provided nothing to the practic- “shocked” that had Clawson been court in petition trial his Rule 37 pro- light prior law in of his Oklahoma ceedings mitigation regarding what evi- convictions and and disbarment noted his presented. dence counsel should have Clawson had his record prior concealed states in He that the brief Rule 37 from the Arkansas courts. The federal “petitioner court noted that did not state prosecutor in case notified the Clawson’s what additional witnesses Mr. Woo- Arkansas Court of Clawson’s would ten have said.” Wooten fails past, and the Arkansas what establish other witnesses would struck Clawson from its list of licensed to, have testified and he fails to show attorneys. their testimony how could have changed September Wooten learned of the outcome of his case. When a peti- conviction, Clawson’s criminal federal tioner fails to what show the omitted disciplinary history, disbarment. testimony was how it could have Wooten also discovered that no one had outcome, changed the we will grant filed an appeal following on his behalf postconviction relief for ineffective assis- post-remand denying order Rule 37 relief. tance of counsel. Wooten thus fails to pro Wooten then filed a se motion for show that he is entitled to relief appointment permis- of counsel and sought point. sion to appeal file a belated of the state (internal omitted). Id. at citations trial post-remand court’s ruling. Octo- 2003, Schay In October and an Assistant ber the Arkansas Supreme Court Public Federal from Defender granted permission appeal filed a federal petition habeas and a first appointed attorney Schay repre- Alvin petition amended on Wooten’s behalf pur- sent Wooten. § suant 2254. They sup- U.S.C. Schay some briefed but not all of the ported petition the federal habeas with a issues Clawson had raised the Rule 37 proffer including evidence description petitions. Schay argued trial counsel was tragic of a life history involving brutal “1) constitutionally ineffective: for failure They abuse Wooten’s pro- father. also *8 put to mitigation penal- on evidence the vided an affidavit in form of a prelimi- the 2) ty phase; for failure to argue the nary opinion from a psychi- board-certified penalty death uncon- scheme is who atrist had a cognitive- administered 3) stitutional; for and failure to preserve 8, test September function to Wooten State, certain issues at trial.” Wooten v. psychiatrist concluded, That “[Woo- (2002) 351 Ark. 91 S.W.3d appears specific to cognitive ten] have a (“Wooten ”). III Ultimately, the Arkansas impairment that of an inability consists to Supreme Court affirmed trial the state situations, understand requiring immediate court’s denial of relief. Id. here, time and process structure in order to As relevant rejected the court the effectively.” penalty-phase mitigation-evidence petition alleged The this evi- argu- ment finding would that Wooten neither dence have been beneficial present- to Woo- mitigation ed evidence to the court penalty state ten at the phase that it would requirements of the his conduct to the the mitigation evidence have been valuable criminality asked consider or to the jury appreciate have been to law should miti- aggravating balancing when the time of his his conduct at offense. circumstances. gating ... Schay requi- [the and the Assistant Wooten failed to make June however, filed a motion to preliminary showing, per- Public Defender site]
Federal to three as counsel and have be removed haps nothing there is because Defenders from the Assistant Federal sanity that his demonstrating record Community Defender’s Federal Office likely the time of was the offense be a Pennsylvania ap District of Eastern significant factor at trial. (“Pennsyl counsel pointed replacement footnote, In a court elaborated: Counsel”).2 19, 2006, September On vania Among things, was able other Wooten granting court entered orders district jobs, including hold several maintenance simultaneously denying motion and graduate work and small repairs, vehicle As petitions for habeas relief. relevant (albeit high school near the bottom of the district court com appeal, class), years, for two college attend presented evidence upon the mented license, and, appar- maintain his driver’s support petition. Regarding the habeas aircraft, ently, operate having an for- history, tragic life the court evidence of a merly Skipper” owned “Beacheraft air- stated: plane. [Gjiven Wooten, against in- the evidence Shortly thereafter, in September still Molly’s compelling Porter’s and cluding 2006, Pennsylvania moved for Counsel re- positively identifying testimony at trial Rule of consideration under Federal Civil assailant, be Wooten as the cannot 59(e) have Procedure and moved to there is a reasonable likelihood said that stay district the federal case court acquitted have jury would Wooten abeyance pend- hold federal proceedings capital murder or sentenced him to life further ing exhaustion of remedies. if trial counsel had admitted addi- even history. September, psychiatrist of life In late another ex- tional evidence Wooten, amined and on October impair- of mental Regarding evidence Pennsylvania tendered a Counsel written ments, the court stated: psychiatrist from the second who opinion claims trial counsel failed to “to a opined degree reasonable medical investigate his mental health adequately certainty, currently, at the time of the relating guilt issues and sentenc- offense, sentencing, trial and through- that had ing. argues He trial counsel life, out his adult Mr. suffer- history social in- adequate conducted from Posh-Traumatic Stress Disorder sought for a vestigation funding psychia- with Dissociative Features.” expert steps mental health taken tragic childhood trist described how of a mental health secure the assistance abuse this disorder and brutal caused ex- have expert ... he would found as “a plained condition dissociative ... product actions were the *9 irrational involving thinking mental state or that a mental disease defect and reality.” and and a break with capacity perceptions, lacked the to conform by experienced Pennsyl- death case handled Pennsylvania Counsel are sentence in a and, cases, Beard, Counsel), apparently, make Rompilla vania their penalty see death petitioners outside the L.Ed.2d services available to U.S. (2005) Pennsylvania. (granting habeas Eastern District of relief In Pennsylvania late November possible defect, i.e., mental post-traumatic Counsel report tendered a from a board- stress disorder.” neuropsychologist certified and forensic In March Pennsylvania Counsel updated reports examiner and from the counsel, along with new local Arkansas first two experts who added to their opin- attorney Hendrix, J. Blake filed in the ions reviewing after one reports. anothers’ Supreme Arkansas Court a Motion to Re- expert opined The third that Wooten suf- call Reopen Mandate and Post-Conviction fered from Post-Traumatic Stress Disor- (“Motion Proceedings to Recall and Re- and, der with fact, Dissociative Features open”). month, Later that all four attor- organic suffered brain damage. neys filed in the Arkansas 1, 2006, On December receiving after (“Motion a Motion to Appear as Counsel and reviewing reports from the ex- Appear”). Pennsylvania Counsel made a perts above, described the district court substantial proffer of evidence with the stating entered an order that it had consid- Motion to Recall Reopen, and including reports ered the previous and its rulings several experts’ reports detailing Wooten’s and reports any did “not have history life and attendant mental-health bearing on proceedings” these habeas or problems. This was the only first and the earlier denial of relief and denial of the presentation of evidence in state court re- 59(e) Rule motion to reopen. The district garding the issues of Wooten’s mental in- court briefly recited the conclusions of the tragic firmities and history. life The stated, experts and “Among things, other March 2007 filings also served as the first Wooten, as by jury, found has no sig- specific articulation of these issues because history nificant of prior criminal activity.” (filed petitions earlier Rule 37 The court again noted Wooten’s achieve- Clawson and defended on appeal by Schay) ments in life that contrary seemed to the only contained vague alleging statements experts’ prognoses and concluded: ineffectiveness based on the absence of respect Wooten has not shown a unidentified mitigation evidence. The probability reasonable that the result of State resisted the Motion Appear but proceedings would have been differ- did not resist the Motion to Recall and ent had such mental health evidence as Reopen. April the Arkansas Su- described in the affidavits been admitted preme Court denied the Appear Motion to and, thus, he has not shown ineffective but did not address the Motion to Recall assistance of counsel due to trial coun- Reopen. and alleged sel’s failure to adequately inves-
tigate his mental health for issues relat- Presently before our court is Wooten’s guilt sentencing. appeal from the September district court’s 2006 denial of petition his habeas and No- The district court granted a certificate vember and December 2006 denials of his of appealability regarding Wooten’s claim 59(e) Rule motion and motion stay trial counsel was ineffective at the abeyance. At oral argument, parties penalty phase for “failing to investigate, contested the current prepare status of the present state- mitigating evidence court concerning Motion to Recall history.” Reopen. his life Pennsylvania argued Counsel State appealed court, that the our and we expanded the certificate Court’s denial to include of the Appear the is- Motion to sue of “whether trial necessarily counsel was and implicitly disposed ineffec- of the tive at guilt phase when counsel did Motion to Recall and Reopen. Wooten not investigate evidence of argued the status of the Motion to
777 that, to statutory phrase develop that the “failed unknown but Reopen was Recall and of a claim in court” oral the factual basis State pending. After it remained arguably, 2254(e)(2) § requires as found 28 U.S.C. supplemental filed parties the arguments, fault, greater or some diligence, a “lack of addressing authority regarding briefs prisoner prison- to the or the motions attributable surrounding procedure counsel”); see also 28 U.S.C. appointment er’s reopen and and to recall (B) 2254(e)(2)(A)(ii), (describing § in fur- cause counsel to assist habeas of federal respectively, in context prejudice, and supple- proceedings. ther state-court evidence). addition, newly presented of of clarify did not the status mental briefs may be available where a Reopen federal review Motion to Recall and consider an otherwise defaulted refusal to court. the state undeveloped necessary record is claim or II. Discussion i.e., miscarriage justice, prevent the defaulted claim or omitted evi- where may ha grant
Federal courts
“actual innocence” as to
dence establishes
defaulted
procedurally
based on
beas relief
underlying
ineligibility
offense
for
court’s reason for find
if the state
claims
Delo,
penalty.
Schlup
the death
See
v.
513
adequate
indepen
and
rests on
ing default
298, 326-30,
851,
Nixon, U.S.
115 S.Ct.
130
v.
grounds.
state
Niederstadt
dent
(1995)
Cir.2007) (en
(8th
banc),
(discussing
808
standards
832,
L.Ed.2d
F.3d
835
505
—
1875,
actual innocence as a
denied,
U.S. -,
proof
for
means to
128 S.Ct.
cert.
default);
(2008).
procedural
Sawyer
overcome
v.
proce
A claim is
record not as it stood the Arkan- violation, petitioner constitutional ruling sas Court’s Wooten III bears the risk in federal all habeas for supplemented but as with his Motion to attorney errors made course of Recall and Reopen accompanying evi- representation.”). dentiary proffer. in this light, Viewed Wooten frames his cause argument record the present argu- would contain in a manner support general ments and intended avoid this evidence to rule. arguments. argues He that Clawson ineffective, merely but that there was a A. Develop” “Failed to and Cause for complete of the “agency” breakdown rela Omissions tionship typically exists between at argument torneys The substance due clients to Clawson’s Okla develop disbarment, did not “fail” record, the factual homa felonious
779
or
by
prior unavailability
of
facts from Wooten
officials”
the
of
these
concealment
fact,
In
courts.
factual
legal
types
and the Arkansas
or
bases
relief as
of
precluded the
that
fraud
asserts
Clawson’s
that
objective
might
external factors
serve
attorney
an
initial establishment of
excusing
capable
as cause
default.
Id.
—client
no
rela-
relationship.
agency
With
agency
Court, however,
rejected agency
The
argues,
fail-
tionship, Wooten
Clawson’s
theory
as a viable
of cause.
breakdown
in
are not attributable
ures Wooten’s case
Subsequently,
recognized
we
the Su-
Wooten; rather,
fraud and
Clawson’s
to
rejection
firm
counsel-
preme Court’s
impedi-
concealment serve as external
arguments regarding
based
cause for de-
prevented
presentation
the
ments that
fault,
something
stating
“beyond
that
the
in
arguments
and
state court.
facts
post-conviction counsel,
control of
like
makes
gravity
The
of Clawson’s failures
interference,”
required
was
to show
State
argument
The
compelling.
State
Wooten’s
Delo,
276,
Zeitvogel v.
84
279
cause.
F.3d
attempt to
seriously
not
defend Claw-
does
Cir.1996).
(8th
Zeitvogel,
In
petition-
the
conduct,
readily
and it is
deplorable
son’s
to
er’s state
counsel failed
responsible
that
was
apparent
Clawson
arguments
certain
to
and failed
fact, at
procedural default.
In
present easily
obtain
accessible rec-
during
ap-
initial
point, perhaps
some
support
arguments.
ords
of those
relief,
Rule
from the denial of
peal
petitioner attempted to characterize this
providing
that
ceased
appears
Clawson
resting
failure as
on the shoulders of the
ineffective assistance Wooten
even
adequately
state because the state had not
altogether.
him
simply abandoned
discovery request
responded
that en-
Nevertheless,
accept
cannot
Woo-
we
compassed
rejected
the records. We
view,
because, in
argument
our
ten’s
that
petitioner’s arguments,
finding
rejected
“agency-
a similar
Supreme Court
by
could
omission
the state
not serve as
Coleman,
albeit on
theory
breakdown”
cause
the face of counsel’s failure to
Coleman, 501
compelling facts. See
less
simple steps
to obtain
take reasonable
There,
753-54,
at
found the needed 513 applicable. Schlup, incapable formulating necessary See U.S. at (“To requisite underlying establish the mens rea for the offense or the S.Ct. petitioner must probability, “knowingly” death-qualify show of the element likely than that no opinions is more reason aggravator. experts’ juror case, would him in able have convicted suggested this could be but the evidence.”); light of the new see also Cox experts’ district court did not view the (8th Burger, v. 398 F.3d Cir. Rather, reports in it viewed isolation. 2005) (discussing Schlup and standards newly proffered light evidence in of the actual applied to be to claims of inno offense, details of accom cence). review the court’s fac We district plishments (including completing in life regard only tual determination in this high attending college), school Weber, Raymond clear error. F.3d any prior absence of criminal record. The (8th Cir.2009) (“We review a dis court determined Wooten failed to trict court’s denial of habeas relief for requisite probability establish the that rea fact, in respect findings *15 clear error of jurors sonable would have found these ele questions and novo for of law de or for ments of or the aggravator the crime miss fact.”); mixed of and questions law see ing. clearly This determination was Luebbers, 744, v. F.3d 754 n. Clemons 381 jurors erroneous as reasonable could have (8th Cir.2004) (identifying a district accomplishments in viewed Wooten’s life regarding credibility court’s conclusion and the of the crime as being facts itself of of evidence actual innocence as a factual inconsistent with the ex mental-health determination to be for clear reviewed er perts’ assessments.4 ror). to Appear C. Motion Motion to and court’s of district assessment Woo- Reopen Recall and
ten’s claim
deferential
withstands this
level
scrutiny.
innocence,
Wooten,
of
To establish actual
Relief is unavailable to
then,
new
evidence of mental-health
unless the Motion to
and Re-
Recall
Although
exception
probability
given
jury,
actual
innocence
able
exists that
if
highly subjective
opportunity
cannot reach
issue of the
to consider Parkus’ additional
evidence,
jury's balancing
aggravating
mitigating
of
and
would not have
him
convicted
circumstances,
or,
prejudice aspect
degree
guilt phase,
of Stric
first
murder at the
668,
otherwise,
Washington,
klandv.
imposed
466 U.S.
would not have
the death
2052,
(1984),
penalty
sentencing.”).
L.Ed.2d 674
preju
and the
Because
as-
aspect
prejudice analy
impact
mitigating
dice
of the cause and
serted the
of additional
evi-
See,
may
question.
e.g.,
balancing
prejudice
stage
sis
reach this
Paul
dence
in the
as
States,
832,
(8th
argument,
prejudice
United
534 F.3d
Cir.
relation to
cause and
2008) (discussing
mitigation
necessary
additional
evi
remained
address the
us to
jury’s balancing
question
dence and the
function in the
of cause related to his claims of
prejudice prong
prejudice
simply
context
of an ineffec
cause and
and not
rest our
claim), petition
tive assistance of
cert,
district
counsel
decision on the
court's assessment of
(Feb.
2009);
filed,
light
newly present-
No. 08-8871
Par
actual innocence in
of the
Delo,
(8th
addition,
kus v.
33 F.3d
938-40
Cir.
ed evidence.
asserts im-
1994) (discussing
pact
balancing stage
component
the failure
introduce fam
at the
as a
history
ily
prejudice and mental
evidence
health
and
his ineffective assistance
stating,
purposes only
presented
"For the
of cause and
claim as
in his state court Motion
evidence,
prejudice,
Reopen. Accordingly,
we believe this new
to Recall and
we
while
also
having
bearing
guilt,
necessary
impact
could
some
have had
find it
to discuss
stronger impact
filings
penalty
and effect on the
Wooten's belated state-court
and evi-
Further,
phase.
dentiary proffers.
we
that a
determine
reason-
exhausting
vehicle for
related habeas case based on
failure to
proper
is a
open
Ar-
remedies,
in the
presenting
claims and
evidence
exhaust state
the Arkansas Su-
that,
argues
courts. Wooten
kansas
preme
recently
Court had
decided a case
Reopen,
through the Motion to Recall
legally
that was “on all fours
with the issue
means for
regularly
available
he seeks
Robbins,
and the
presented”
case was a
further, state-court, collateral review such
capital
case
the Arkansas
proffer
his belated
that we should deem
qualitatively
Court viewed as
different and
presenta-
to be a
the state court
sufficient
worthy
thorough
of more
review.
Id. at
and exhaustion of claims
tion of evidence
222-23.
federal review under
open
the door for
Subsequently,
Arkansas
2254(b)(1)(A)
(e)(2)(B).
§
28 U.S.C.
reopened
Court has recalled mandates and
that,
extent the state
argues
He also
to the
capital cases
two other cases. Lee v.
may
to Appear
court’s denial of the Motion
State,
367 Ark.
238 S.W.3d
Recall and
have terminated his Motion to
Collins,
(2006);
Clearly,
this death case we have a
have been available absent the additional
postconviction
breakdown in the
relief
procedure. General
proceedings. We therefore remand this
concerns
federal-
comity, therefore,
appoint-
against
case to the circuit court for the
ism and
militate
qualified attorney
using
procedure
ment of a
our
such a
Rule 37.5
to reach other-
petition
Collins to file a verified
wise unreviewable cases. These concerns
postconvietion
relief that complies
push
also
us towards the conclusion that
may
any
with Rule 37.5. Collins
raise
we must deem the
complete
state record
and all issues he wishes to
raise
the without reference to claims and evidence a
petition.
new
petitioner
presents
first
to the state court
after
end of
proceedings
other
and in
Id. at 720.
pursuit
of this
form
extraordinary
Recalling the mandate and
reopening
relief.
case, then,
act,
completely
is not a
unique
Robbins,
Further,
suggested
appears
but it
our
court’s and the
extraordinary
remain
rather than routine. Court’s treatment
process
of due
claims
procedural
great po-
This
mechanism is of
state-provided post-conviction
related to
prisoners
tential benefit to
who have com-
counsel further demonstrate that the state
pelling
arguments
evidence and
grants
show
layers
protection
of additional
they
were denied fair trials but who
not open
does
the door to an additional
opportunities
prove
lost their
unfairness
layer of federal review.
Pennsylvania
See
*17
due to
incompetency
of their post-
551, 555-57,
v. Finley, 481 U.S.
107 S.Ct.
procedural
conviction counsel. This
mech- 1990,
(1987);
We
given
nism
our frequent
inability
pro-
rejected
The Court
the contention that a
questionable
vide relief
the face of
rep-
“right
by
to counsel” created
a state
rejected
guarantee:
process
to a constitutional
due
claims in
gives
Finley
rise
right
the source of the
to a law
“It is
Simpson,
reject
we must
request
assistance, combined with the na
yer’s
to have the federal courts oversee
Ar-
proceeding,
that controls the
ture of
kansas
application
court’s
of its state-cre-
case,
question.
In this
re
constitutional
ated, additional means for review.
lawyer
access to a
is the re
spondent’s
appears
This
to be a case that could
decision,
not the com
sult of
State’s
Lee,
satisfy the three factor test
of the United States Constitution.”
mand
54-55,
at
for recall
S.W.3d
of the mandate.
555-56,
[Finley, 481 U.S. at
However, that is an issue for the Arkansas
explained
The Court further
1990.]
Simply put,
to decide.
“the State has made a valid choice to
this is a case for which the federal courts
give prisoners the assistance of counsel
provide
post-eon-
can
no relief because of
post-conviction proceedings
without
viction counsel’s failure to
the al-
exhaust
requiring
panoply
procedural
the full
legedly meritorious claims.
protections that
the Constitution re
In support
arguments,
of his
quires
given
be
to defendants who are in
fundamentally
position
different
relies upon cases from our court treating
—at
appeal
right.”
trial and on first
as of
Id. motions to recall the mandate under Mis
559, 107
S.Ct. 1990.
permissible
souri law as
avenues
ex
(alterations
hausting state claims. Such motions in
Simpson,
We addressed Missouri motions several provides permitting sas motions to re- occasions, Missouri, and in such motions reopen being pro- call and akin to the proper ordinary were the tective, method for constitutionally unrequired, but asserting claims of ineffective provision post-conviction of state counsel. assistance See, part direct-appeal Just as the Court and our court on the counsel.5 prior January appellate already 5. For sentences issued courts had ruled on the required Missouri convicted defendants appeal post-conviction from the denial of re pursue relief in the such, petitioner lief. As Missouri could file prior trial court to resolution of their direct properly a motion to recall mandate to appeals. See Mo. Pro. criminal R.Crim. alleging ap a claim ineffectiveness of 29.15(1) (1995) ("If appeal § is filed from pellate recognized counsel. We have this judgment sustaining overruling a mo fact, stating petitioners that Missouri must provisions tion filed under the of this Rule pursue prop avenue of relief in order to *18 29.15, appeal judgment from the of con See, erly e.g., exhaust certain claims. appeal viction shall be consolidated with the 392, (8th Simpson Camper, v. F.2d 927 394 motion.”); judgment from the on the State v. 1991) (holding abeyance permit Cir. case in to 741, Griddine, (Mo.Ct. 75 S.W.3d 743 n. 2 petitioner Missouri to file a motion to recall App.2002) (discussing amendments to Rule mandate to assert claim of ineffective 1, January changes 29.15 effective 1996 counsel). direct-appeal assistance of But see postconviction/di "consolidated to Missouri's (8th Bell-Bey Roper, v. 499 F.3d Missouri, then, appeal procedure.”). rect Cir.2007) (holding that a Missouri motion to appeal typically the first in a criminal case appropriate recall the mandate is not an appeal was a combined that included the di exhausting types means of other of claims appeal appeal any rect and an from denial of alleged that are unrelated to ineffective Accordingly, relief. if consti Delo, counsel); appellate ness of Nave v. tutionally mandated counsel was ineffective in (8th Cir.1995) F.3d 1031-32 & n. 6 appeal, petitioner initial had Missouri (discussing permissible opportunity claims in Missouri no to raise a claim of ineffective mandates). appellate ness of counsel until after Missouri’s motions to recall Kemna, vividly But because this ag., Williams v. 311 F.3d also case shows (8th Cir.2002) (“For that, offenses, ... petitioners sen- of capital for those convicted 1, 1996, January this was prior tenced to may quality of counsel well be the way raise a claim of ineffec- proper imprisonment difference between life with- counsel under appellate tive assistance of parole penalty. out and the death Bowersox, law.”); Missouri Chambers v. Here, brief, picture painted by is the (8th Cir.1998). 157 F.3d 565-66 & n.5 (a not unreasonable view of the Wooten Missouri, though, motions Even such record): poor representation He received appropriate were not vehicles exhaust- trial, particularly penalty phase, at at the types Bell-Bey other of claims. ing See penalty- when his first counsel’s entire (8th Cir.2007) Roper, 499 F.3d phase presentation filled less than ten that a (holding Missouri motion to recall pages. attorney, transcribed That David appropriate the mandate was not an means Gibbons, only called two witnesses: an of- claim). exhausting type a different jail from kept ficer where Wooten was Finally, today we note that our decision during trial and one of former does not foreclose in cases where a relief jury co-workers. Gibbons also told the meritorious claim of actual innocence ex- that it aggravator would “have to” find one prejudice ists or cause and is shown. We appeal and that he did not intend to suggest today’s opinion also do not As the court acknowledges, emotion. Gib- precludes extraordinary relief where an “presented personal bons no evidence of remedy ordinary becomes fre- through history testimony or family from members quency of use application. or Ante, to humanize Wooten.” 771. That Because Wooten’s Motion to Recall and inadequate representation continued di- Reopen not a proper is vehicle for exhaust- courts, appeal through rect the Arkansas creating state remedies in or which denied relief. a state record that might support federal Then, Clawson, hiring of James 0. claims, habeas proper for the dis- felon, represent disbarred 59(e) reject trict court to his Rule motion post-conviction proceedings, as we have stay proceedings. and his motion to federal known, was a great mistake. The mistake Also, because the state’s denial of the Mo- was not the fault of family. Appear apparent tion to refusal Clawson, among things, other failed to dis- Reopen address the Motion to Recall and felony close his multiple convictions or his relief, afford no basis for federal we need disbarment Oklahoma to either Wooten not reach the question disposi- of whether or the courts. Clawson filed the When tion of the Motion Appear qualifies (a post-conviction petition adequate pages), scant ten independent grounds denying further relief. he failed to inform Wooten or seek Woo- personal ten’s pleadings, verification of the affirm judgment We of the district which required is under Arkansas law. court. The post-conviction pleadings raise the BRIGHT, Judge, concurring. Circuit question any whether Clawson did inde- *19 pendent investigation of the case whatso- Although statutory ju- the relevant ever. dicial authorities compel me to concur in opinion, I nonetheless write court’s Unsurprisingly, post-convic- Clawson’s separately my to further explain views. representation miserably tion failed in the Next,
This is a sad case. Sad
district court.
Clawson missed a
first and fore-
most
the victims of a heinous crime. deadline to appeal the district court’s deni-
(1991)
petition,
(noting
an error S.Ct.
seems to be even criminal-justice system failed case, during penalty phase both I post-conviction proceedings.
and the ex-
press opinion no on the constitutional suffi-
ciency representation, but as a Wooten’s judicial expe- sense and
matter of common rience, quality representa- of Wooten’s SANDOVAL; Francisca Ines Hernan- shocking poor. tion is as as it is dez; Pacheco; Reyes; Miriam Eva Ar- Nonetheless, may this court be limited Gomez; Guerrero; minda Nidia Luci- injustice. ability in its to correct an Under Marquez; Perez; la Maria Azucena law, existing statutory and case Garcia; Laureano; Estela Marlene may procedurally have defaulted his habe- Giron, Plaintiffs-Appellants, as claims because he did not them courts, in the state and he is unable to v. exceptions avail himself of the narrow MAINTE- AMERICAN BUILDING general Specifically, rule. INDUSTRIES, INC., NANCE also counsel, incompetent post-conviction al- Industries, Incorpo- ABM known as though dooming important avenue for rated, doing ABM business as Janito- court, maybe relief in state is insufficient Services; Building rial American procedural to excuse the default that that Kentucky, Maintenance very representation created. Co. of Defen- See Coleman 722, 752-55, dants-Appellees. Thompson, 501 U.S. driving, 6. Clawson's trouble with the law continued for drunken a conviction in federal through period, including repri- fraud, this entire bankruptcy court on six counts of mand from the Arkansas Court in finally his disbarment Arkansas. *20 case, an unrelated two additional convictions