Lead Opinion
1,Wоoten asks this court to recall our mandate and allow him to pursue a second Rule 37 proceeding. He asserts that he meets this court’s stringent criteria for providing this extraordinary relief. Because this is a criminal appeal in which the death penalty has been imposed, and the petitioner is asking this court to recall our mandate, we have jurisdiction pursuant to Ark. Sup.Ct. R. l-2(a)(2) & 5-3(d). We grant the motion to recall the mandate.
Wooten was convicted of capital murder, criminal attempt to commit capital murder, and aggravated assault, and was sentenced to death, thirty years, and six years, respectively. This court affirmed those convictions in Wooten v. State,
On October 2, 2003, Wooten filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Arkansas, alleging that both his convictions and sentence were in violation of various provisions of the United States Constitution. Specifically, Wooten asserted that his trial counsel had been constitutionally ineffective for (1) failing to argue, during the guilt phase of his trial, that mental health issues prevented him from formulating the necessary mens rea for capital murder, and (2) failing to present certain mitigating evidence during the sentencing phase of his trial. In an opinion issued September 19, 2006, the district court found Wooten’s arguments without merit and denied the petition for writ of habeas corpus. Wooten v. Norris, No. 5:03cv00370,
In March 2007, attorney J. Blake Hendrix filed a motion with this court to appear as counsel and also tendered a motion to recall the mandate in Wooten’s case. We denied the [amotion to appear as counsel on April 26, 2007, and made no mention of the tendered motion to recall the mandate. No further action was taken on the case in this court until October 2009; meanwhile, the judgment of the federal district court was affirmed by the Eighth Circuit Court of Appeals on August 26, 2009. Wooten v. Norris,
On October 1, 2009, Wooten’s current counsel, which includes three out-of-state attorneys from the Federal Community Defender Office of the Eastern District of Pennsylvania, and local attorney J. Blake Hendrix, filed an application for permission to be appointed as counsel in Wooten’s case. Counsel also tendered a “Motion to Clarify Status of Motion to Recall the Mandate.” We granted counsels’ application for permission to be | appointed as counsel on Wooten’s behalf on November 5, 2009, and on December 10, 2009, we denied the motion to recall the mandate without prejudice and with the right to refile a motion to recall the mandate. On December 28, 2009, another motion to recall the mandate was filed on Wooten’s behalf, and this court decided to submit the motion as a case, which is now presently before the court.
Wooten asserts that this court should recall the mandate in his case and allow him to pursue a second Rule 37 proceeding. He claims that his case satisfies the criteria for recalling the mandate under this court’s precedents in Robbins v. State,
Wooten argues that the same three considerations enumerated in Robbins require a finding of “extraordinary circumstances” and a recall of the mandate in his case. First, he argues that, like Robbins, he has “arguably meritorious” claims that have not been reviewed by this court, and he has cited this court to a decision, namely the Eighth Circuit оpinion discussed above, that shows he has compelling claims for relief. Second, he, like Robbins, was unable to obtain a review of his claims in federal court because his claims had not been addressed in state court. And third, his case, like Robbins, is a death-penalty case where heightened scrutiny is required.
We find that Wooten has misconstrued the meaning of the Robbins criteria for recalling the mandate. First, Wooten misunderstands the first factor, which is a case cited to this court that is “on all fours legally with the issue presented.” Wooten cites the Eighth Circuit opinion as fulfilling this requirement, but Robbins was referring to a recent case handed down by this court, prior to the affirmance of Robbins’s case, that is directly contrary to Robbins’s death sentence. See Robbins,
Wooten has also misconstrued the second criteria in Robbins, which is that federal proceedings have been dismissed because of unexhausted state claims. Robbins’s habeas corpus petition was dismissed by the federal district court without prejudice on the basis that Robbins had not exhausted his state remedies, specifically noting that state courts had not examined his inconsistency-in-the-verdicts argument under Willett.
In Lee, the defendant was convicted of capital murder and sentenced to death. His conviction and sentence were affirmed by this court, and we also affirmed the circuit court’s later denial of Lee’s petition for postconviction relief under Rule 37. Lee then filed for habeas corpus relief in federal court, and the federal district court determined that it was necessary to hold the petition in abeyance to allow Lee to seek additional recourse in state court. This decision was based on the district court’s concern over possible impairment of Lee’s counsel during the Rule 37 proceedings. Lee then petitioned this court to recall the mandate and | 7reopen post-conviction proceedings, arguing that his Rule 37 counsel was impaired by alcohol use during the time he represented Lee in postconviction proceedings, a fact admitted to by counsel.
In discussing the criteria necessary to establish the extraordinary circumstances that would warrant a recall of the mandate, the Lee opinion enumerated the Robbins factors as follows: (1) the presence of a defect in the appellate process; (2) a dismissal of proceedings in federal court because of unexhausted state court claims; (3) the appeal was a death case that required heightened scrutiny. See Lee,
In the present case, Wooten asserts that he suffered the same type of “counsel-related ‘defect’” in his Rule 37 proceedings. He argues that he was denied the assistance of qualified counsel because his attorney, James Clawson, was, inter alia, ineligible to practice law, had perpetrated fraud upon both Wooten and the courts, and was “embroiled in his own legal troubles.” He also argues that he meets the second and third criteria as explained in his discussion of Robbins, supra.
Wooten claims that his Rule 37 counsel was, at the time of his representation of Wooten in this case, ineligible to practice law. This is apparently because Clawson was disbarred in Oklahoma in 1993, and Wooten believes that disbarment resulted in an automatic disbarment in Arkansas, too. However, under the rules of professional conduct in effect at the time, that disbarment would be reciprocal and result in his disbarment in Arkansas only upon the filing of the disbarment order with the Committee on Professional Conduct. Section 7(F) of the Prоcedures Regulating Professional Conduct of Attorneys at Law (1993) provides:
(1) The disbarment or suspension of any person from the practice of law in any other state shall operate as a disbarment or suspension of such person from the practice of law in this State under any license issued to such person by the Arkansas Supreme Court prior to his disbarment in such other state.
(2) Upon presentation of a certified order or other proper document of a tribunal or a corresponding disciplinary authority of another jurisdiction evidencing disbarment or suspension, the Committee shall cause a like sanction to be imposed and shall notify the Clerk of such action. Notice of the Committee’s action shall be sent to the attorney’s mailing address on record with the Clerk.
See also Rules of Professional Conduct, Rule 16 (1993). However, until the time that ^documentation was filed with the Committee and an order was entered, Clawson was still eligible to practice law in Arkansas. This court was not notified of Clawson’s Oklahoma disbarment until 2001, at which time he surrendered his Arkansаs license in lieu of being disbarred. So Wooten is mistaken that Clawson was ineligible to practice law at the time of his representation. Additionally, it appears that there was no requirement to report disbarment in another jurisdiction until the most recent amendment to our rules on January 14, 2010. See Procedures Regulating Professional Conduct, Section 14(a) (2010). And finally, as to the second and third criteria under Robbins and repeated in Lee, Wooten has again failed to meet the second criteria.
Finally, in Collins, the defendant was convicted of capital murder and sentenced to death on October 21, 1997. His conviction and sentence were then affirmed by this court on June 3, 1999. Pursuant to Rule 37.5(b)(1), counsel was then appointed to pursue Rule 37 relief, but there was nothing in the record to show that the appointed attorneys were qualified under Rule 37.5. Furthermore, the Rule 37 petition filed with the circuit court on October 12, 1999, was not verified by Collins. Two additional Rule 37 petitions were filed on October 13, 1999, and October 14, 1999, again without verification from Collins. The State filed a response, but no аction was ever taken on the petitions. In fact, no action was taken in the case until January 31, 2003, when a new attorney was appointed to represent Collins. Collins also filed several pro se petitions in 2003. A hearing was eventually held on May 20, 2004, at which the parties referred to a petition under Rule 37.5, but no corresponding |inpetition was in the record. The order ultimately denying the Rule 37 petition was presumably based on the hearing, the judge’s notes, and a memorandum prepared by Collins’s counsel summarizing the May 20, 2004 hearing. This court specifically noted that none of the petitions filed since 1999 had complied with Rule 37.5.
In this court’s analysis, we explained that Rule 37.5 provides specific procedures setting out how postconviction relief is to be pursued, including deadlines that must be met, and in this case, there was clearly “a breakdown in the postconviction relief proceedings.”
Wooten asserts that there was a similar “breakdown” in his postconviction proceedings because the Rule 37 petition filed by Clawson was never verified or otherwise authorized by Wooten. Therefore, Wooten argues, he should be allowed to proceed with renewed postconviction proceedings that will allow his “compelling claims of constitutional error” to be addressed by the Arkansas courts.
Arkansas Rule of Criminal Procedure 37.1(c) requires that a petition seeking relief Inpursuant to the rule be verified.
As noted above, this court will routinely affirm the denial of postconviction relief if the petition is not verified; however, death-penalty cases are afforded unique procedural safeguards. In addition to this court’s ruling in Collins, we have also remanded a Rule 37 appeal for verification when a petition for postconviction relief in a death-penalty case was not properly verified, rather than dismissing the petition. Howard v. State,
We find that, in the present case, the lack of verification constitutes a defect or breakdown in the appellate process that requires a recall of the mandate. While there is no constitutional right to a postconviction proceeding, when a state undertakes to provide cоllateral relief, due process requires that the proceeding be fundamentally fair. Porter v. State,
In light of the fact that this is a case involving the death penalty and the fact that Rule 37.5 has in effect cured the instant situation from recurring, coupled with the ambiguous circumstances surrounding appellant’s legal representation, and the requirements of due process, we hereby hold that fundamental fairness, in this narrowest of instances where the death penalty is involved, dictates an exception in the present matter to allow appellant to proceed with his Rule 37 petition.
Motion granted.
Notes
. As explained in the discussion of Lee v. State, infra, this requirement from Robbins was later expanded to include situations where federal proceedings are held in abeyance so a petitioner may pursue any unex-hausted state claims.
. The changed wording in the first requirement appears to come from this court’s decision in Engram v. State,
. This verification requirement was a part of the rule at the time Wooten’s Rule 37 proceedings took place. See Ark. R.Crim. P. 37.1(d) (1997).
. Howard also involved an appeal from the denial of postconviction relief, not a recall of the mandate.
Concurrence Opinion
concurring.
The majority opinion concludes that the mandate should be recalled based on Wooten’s lack of verification of his Rule 37 petition. But there is an equally important reason to recall the mandate, which is the woefully deficient | ^presentation of Wooten’s mitigation case by trial counsel and Rule 37 counsel, James Clawson. This too warrants a recall of the mandate due to the breakdown in the Rule 37 process.
Wooten’s core argument on this point is that because of his defective counsel at his Rule 37 hearing in 1997 and on appeal, he has never been able to show either the circuit court or this court how his trial counsel was ineffective in his failure to present mental illness and familial abuse as mitigation evidence at the sentencing phase. That failure, according to Wooten, could easily have converted a life-without-parole sentence to death. Thus, under Wooten’s argument, prejudice is easily shown. Seе Wiggins v. Smith,
At trial, Wooten’s counsel called two witnesses during the sentencing phase. One witness was the Pope County jailer who testified that Wooten did not have a prior criminal record, that he adapted to jail life, that he was a good prisoner, and that he could work in prison if sentenced to life in prison without parole. The other witness was the person in charge of maintenance at a Russellville public school. He testified that Wooten had worked at the school and was a good worker. That was the sum total of Wooten’s mitigation case. Nothing was presented about his abusive childhood and mental handicap during the sentencing phase.
Counsel James Clawson was retained to represent Wooten in his postconviction proceeding. He wrote in Wooten’s Rule 37 petition in 1997 as follows:
Counsel, in the penalty phase, called two witnesses. Danny Sorey, jailor, was called to establish that Wooten had no criminal history, and that he is a good prisoner. 114Stanley Courtwright was called to establish that Wooten was a good worker, who possessed many skills. Counsel has a duty to investigate for penalty phase and failure is ineffective assistance. Kenley v. State,937 F.2d 1298 (C.A.8 1991) [sic]. Counsel was ineffective for failing to offer .for the jury’s consideration the following mitigating circumstances: counsel did not call wife or friends to establish Wooten’s ability to maintain friendship and favorable qualities. These witnesses would have portrayed positive aspects of Wooten’s character and demonstrated humanity. Counsel made no argument for mitigation, no plea for mercy, and in short, did absolutely nothing a reasonably competent attorney would have done to provide effective representation in the penalty phase.
Again, the trial court was presented with no evidence about Wooten’s traumatic childhood and mental-health issues. In 2003, new counsel for Wooten made an extensive proffer concerning the childhood history and mental-health evidence that a reasonable investigation by trial counsel or Rule 37 counsel would have uncovered and produced. This evidence was рroffered in conjunction with counsel’s motion to recall the mandate. It included affidavits from psychiatrists, a psychologist, and a mitigation, specialist. It also included a declaration from his mother about Wooten’s traumatic life history and severe mental problems, none of which was imparted to Wooten’s jury at trial or to the court as part of the Rule 37 process. Some of the facts of Wooten’s proffered life history include his being the youngest of six children. His father was a severe alcoholic and did not provide for his family. His childhood was distorted by extraordinary violence, mistreatment, and abuse by his alcoholic father. Wooten’s father beat his mother in the presence of the children. He beat all' the children, including Wooten. The abuse was constant, extreme, and life threatening. Wooten was a special target because he was small, weak, and mentally slow.
In addition, the proffer states that Wooten has a lifelong history of learning and | ^cognitive problems. He was placed in special education classes for the lowest-functioning students. In spite of his intellectual limitations, he was considered a good worker and was eager to please. He worked at unskilled manual labor jobs.
As a direct result of Wooten’s mental disturbances, current counsel propose that his childhood trauma had a lasting, severe, and adverse impact on his mental health, including post-traumatic stress disorder with dissociative features and organic brain damage. Mental health expert testimony would have shown that Wooten, due to his mental disease/defects, lacked the mens rea necessary for murder. The testimony also would have established two statutory mental health-related mitigating circumstances and other nonstatutory mitigating circumstances arising from his impairments and mental health history. Wooten finally proffers that he suffers from brain damage caused by the trauma he endured, including prenatal insults to the brain, birth problems, and significant head injuries.
The United States Supreme Court has emphasized the critical importance of such mitigation evidence in Wiggins v. Smith,
Wiggins’ sentencing jury heard only one significant mitigating factor — that Wiggins had no prior convictions. Had the jury been able to place petitioner’s excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance. Cf. Borchardt v. State,367 Md. 91 , 139-140,786 A.2d 631 , 660 (2001) (noting that as long as a single juror concludes that mitigating evidence outweighs aggravating evidence, the death penalty cannot be imposed); App. 369 (instructing the jury: “If you unanimously find that the State has proven by a preponderance of the evidence that the aggravating circumstance does outweigh the mitigating circumstances, then consider whether death is the appropriate sentence”).
What is patently clear in all this is that Wooten never had his day in court regarding mitigation evidence related to mental impairment and early family abuse. Trial counsel can certainly be blamed for this, but this failure to investigate trial counsel’s oversight as part of the Rule 37 process can be laid squarely at thе feet of defective Rule 37 counsel, James Clawson. Because of Clawson’s dismal performance in failing to investigate and to assert mental illness and an abusive past, the circuit judge entered a one-page order denying the Rule 37 petition in 1997, without making factual findings.
On appeal of the one-page order to this court, Clawson filed only a five-page argument, again not referencing the absence of the pertinent mitigation evidence, but this court, sua sponte, remanded the matter to the circuit judge for factual findings. The circuit judge held no hearing, but in 2000, he made written findings in an order which did not touch on the absent mitigation evidence because it had not been presented to him. Clawson did not appeal the new order with its findings and did not advise Wooten of his failure to appeal.
The saga of Wooten’s experience in post-conviction proceedings with James Claw-son at the helm as counsel beginning in 1997 graphically illustrates a complete breakdown in the criminal-justice process. Not only did Wooten not have effective сounsel for his postconviction proceedings, according to the Eighth Circuit Court of Appeals, Clawson perpetrated a fraud “upon Wooten and upon the courts of Arkansas” by not disclosing his criminal convictions (two felony convictions for altering forged documents) and disbarment |l7in the State of Oklahoma. Wooten v. Norris,
Meanwhile, Clawson was convicted of drunk driving in 1998 in Arkansas, was reprimanded by the Arkansas Professional Conduct Committee for fraudulent conduct in bankruptcy court in 1999, and was convicted in federal court on six counts of bankruptcy fraud in 2001. He was sentenced to eighteen months in federal prison.
Wooten learned of the federal convictions and Clawson’s failure to appeal his Rule 87 denial in 2001, and he sought to appeal the denial of postconviction relief belatedly. This court granted a belated appeal and appointed new counsel. Ultimately, this court denied the Rulе 37 appeal in 2002, Wooten v. State,
| ¶sWooten then went to federal court in 2003 with his new counsel and the federal public defender and sought habeas corpus relief under 28 U.S.C. § 2254. For the first time, counsel investigated and supplied the absent mitigation evidence in the form of mental illness, organic brain injury, decreased cognitive functioning, tragic life history, and post-traumatic stress disorder. The federal district court denied the § 2254 petition in 2006 based on the default by Rule 37 counsel in presenting proposed mitigation evidence at the state Rule 37 proceeding in 1997. The matter was then appealed to the Eighth Circuit Court of Appeals.
The Eighth Circuit, in 2009, concluded that it could not grant Wooten relief because this court had denied Wooten’s Rule 37 appeal on an adequate and independent state ground. Our denial was based on the procedural default by Clawson at the Rule 37 level in failing to investigate and present Wooten’s mental-impairment and childhood-abuse history, which trial counsel should have presented in mitigation. Wooten v. Norris, supra. In light of U.S. Supreme Court authority, the Eighth Circuit was foreclosed from considering Claw-son’s ineffectiveness and his abandonment of Wooten as a cause for excusing default, when there is no right to counsel in post-conviction matters and, thus, no constitutional violation. The Catch-22 scenario persists.
The Eighth Circuit, neverthеless, wrote that while it could not grant Wooten relief, the state supreme court could. The Eighth Circuit said: “[Tjhis appears to be a case that could satisfy the three factor test in Lee.” The reference is to Lee v. State,
The circumstances the court referred to included the facts that [1] a federal court had dismissed a related habeas case based on a failure to exhaust state remedies, [2] the Arkansas Supreme Court had recently decided a case that was “on all fours legally with the issue presented” in Robbins, [3] and the case was a capital case that the Arkansas Supreme Court viewed as qualitatively different and worthy of more thorough review.
The Eighth Circuit further underscored the high premium Congress and this court have placed on effective state-court review in death cases, including competent counsel:
In Lee, the [Arkansas Supreme Court] discussed the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132 (1996), and stated, “By this act, Congress chose to restrict federal habeas corpus review in exchange for the states’ appointing competent counsel for indigent capital defendants for purposes of state postconviction review.” Lee,238 S.W.3d at 56 . The court then discussed state procedural rules that Arkansas had put in place to ensure adequate post-conviction representation and review and “to eliminate the need for multiple federal habeas corpus proceedings in death cases.”
Id. (quotation omitted) (emphasis in original). This court has emphasized the same point in our postconviction death cases. See, e.g., Lee, suрra; Robbins, supra.
The instant case is analogous to the Lee case, as the Eighth Circuit recognized, because of the complete incompetence of Rule 37 counsel and, thus, his complete impairment. To date, this court has recalled our mandate in two death cases related to Rule 37.5 proceedings: |2qLee (inebriated counsel at Rule 37 proceeding) and Robbins (failure to pursue inconsistency in sentencing forms). This case easily qualifies for the same relief. In reference to this court’s procedure to recall the mandate in exceptional death cases, the Eighth Circuit said in its Wooten opinion:
We welcome and applaud this mechanism [of the Arkansas Supreme Court] given our frequent inability to provide relief in the face of questionable representation by post-conviction counsel. As such, we have a disincentive to use the state’s act of grace as a means to reach a case that would otherwise be unre-viewable under the restrictions of 28 U.S.C. § 2254:
Again, what is patently obvious in all this is that Wooten has never had his day in court in a postconviction proceeding with competent counsel to present his mitigation evidence on mental illness, organic brain injury, tragic life history, and post-traumatic stress disorder. Neither trial counsel nor Rule 37 counsel did the necessary investigations into Wooten’s background and, thus, failed to develop his readily ascertainable abusive childhood and cognitive disorders. See Wiggins, supra. Wooten’s Rule 37 counsel was impaired, as was the situation in Lee, and he deserves to be heard on this issue.
I would recall the mandate both because of Wooten’s (1) lack of verification of the Rule 37 petition, and (2) the deficient presentation of Wooten’s mitigation case.
Dissenting Opinion
dissenting.
1⅞|1 respectfully dissent. This court has long recognized its inherent authority to recall its mandate, see Boynton v. Asha-branner,
Further, neither Robbins nor Lee is controlling in this case. In Robbins, this court recalled the mandate because of fundamental error in the jury’s completion of the sentencing forms. This court in Robbins cited Willett v. State,
While Wooten argues that he was effectively left without counsel, that argument fails because it is based on his counsel’s alleged failure to make the proper choices as to what to put on as evidence in the guilt phase and as mitigation in the penalty phase of trial. The result of this decision is that when an attorney fails to make the proper choices as to what defense to present and what mitigation evidence should be presented, a criminal defendant has been denied competent counsel as required under Rule 37. That is incorrect.
Much is made of Attorney James Claw-son’s status as a disbarred attorney in Oklahoma and his misconduct in Arkansas. The concurrence’s argument is based on the conclusion that Clawson was not qualified to represent Wooten in Arkansas because he had been disbarred in Oklahoma. However, at the time Clawson undertook Wooten’s representation, he was a licensed attorney in Arkansas. The concurrence is wrong. The question is not whether Claw-son was subject to disbarment in Arkansas based on the disbarment in Oklahoma, but is whether his conduct in representing Wooten effectively left him without counsel. It also should be noted that the drunk-driving and bankruptcy-fraud issues raised in the concurrence all occurred after the initial denial of Wooten’s initial Rule 37 petition on September 11,1997, and, therefore, after his representation of Wooten.
On appeal, Wooten’s cаse on his Rule 37 petition was reversed and remanded for the | ^circuit court to enter written findings as required by Rule 37.3(a), and, if necessary, to hold an evidentiary hearing to make the required findings. See Wooten v. State,
The elephant in the room here is the question of why Wooten’s defense was mis-identification given that the overwhelming evidence identified Wooten as the perpetrator. Eyewitnesses viewed Wooten up close more than once shortly before the crimes were committed. There was pretrial identification of Wooten. Molly Porter described the characteristics of Wooten’s eye-teeth in identifying him as the perpetrator. Because Wooten’s defense was misidentification, rather than some other defense, such as mental incapacity, the |24impression is that trial counsel was not acting as effective counsel. But, Wooten did not assert the affirmative defense that he lacked the capacity to conform his conduct to the requirements of the law at the time the crimes were committed. Further, he did not assert that he was not cоmpetent to stand trial. Competence to stand trial is presumed, and the criminal defendant bears the burden of proving incompetence. Mask v. State,
The United States Court of Appeals for the Eighth Circuit concluded that trial counsel “pursued a theory of mistaken identity.” Wooten v. Norris,
It is doubtless that Wooten now regrets trying his case on misidentification, given that he was found guilty. However, the defense presented at trial was the defense that Wooten chose. A careful review of the record in this case reveals that Wooten’s defense was entirely consistent from the moment he first contacted police until this case was submitted to the jury on guilt.
Wooten called law enforcement and reported that someone had shot at him. He then | pjjtold law enforcement that a person who looked and dressed like him, took his six-wheeler and drove off. Wooten further told law enforcement that he heard shots and shortly thereafter found his six-wheeler. The evidence found in the six-wheeler, according to Wooten, was left there by the man who looked like him and dressed like him. Wooten required that this defense be followed at trial. Contrary to the conclusions of the Eighth Circuit Court of Appeals, the record on direct appeal reveals that counsel carefully prepared and tried the case, but that it was prepared on the theory of misidentification as Wooten required. While that may have been the weakest defense available, it is inaccurate to say that Wooten received poor representation. A review of the record on appeal reveals that counsel undertook substantial work on identification and other issues in preparation for trial. Wooten was able to, and did, participate in his defense. The idea that he was somehow left in the dark is not supported by the record.
The conclusion reached by the majority in this case is also based on the premise that because Wooten’s Rule 37.5 petition was not verified, he did not know its contents; therefore, he could not know that the circuit court was not asked to address his trial counsel’s alleged ineffectiveness in failing to present evidence of his mental illness and familial abuse in mitigation.
| ^Verification is a red herring. Verification by a criminal defendant in a Rule 37 proceeding is not verification that he or she read the petition and concluded that all issues that should be raised, have been raised. Rather, by verifying the Rule 37 petition, the criminal defendant makes a declaration under an oath that the statements that are contained in the petition are true. The affidavit form set out in Arkansas Rule of Criminal Procedure 37.1(c) bears this out, requiring that the petitioner state under oath that “[t]he facts in the petition are true, correct, and complete.” “[Vlerification is ‘[a] formal declaration made in the presence of an authorized officer, such as a notary public, or ... under oath but not in the presence of such an officer, whereby one swears to the truth of the statements in the document.’ ” Solis v. State,
Typically, where the petition for post-conviction relief is not verified, the denial of relief is simply affirmed by this court based on the lack of verification. Collins v. State,
Collins does not hold that the failure to verify the Rule 37 petition in a death case is reversible error requiring a new Rule 37 proceeding. In Collins, this court held that there was a “breakdown in the post-conviction proceedings,” but the failure to verify the petition was a single issue among several issues raised in that case. Collins,
Unlike Collins and Lee, Wooten has had an opportunity to present issues on post-conviction relief. Wooten offered mitigation evidence at trial. The focus of the testimony offered from the assistant jail administrator was that Wooten had adjusted to incarceration and would do well working a job within the prison system if he were sentenced to life without parole. Stanley Courtwright similarly testified that Wooten had been a good worker. While the Eighth Circuit Court of Appeals is critical of the brevity of the mitigation evidence, it is not questioned that the decision of what to present was considered, including the credibility of the witnesses. Further, the issue of whether trial counsel was ineffective in the choice of mitigation evidence was raised by attorney Alvin Schay in Wooten’s postconviction proсeedings, and postconviction relief was denied.
Considering the outcome in this case, a different trial strategy might have been morej^effective. However, that is not a basis for the extraordinary relief sought. It cannot be the basis for recalling the mandate and providing a new Rule 37 petition. Lee clearly limited such relief to a situation where the criminal defendant was effectively left without counsel. Wooten had counsel in Clawson and in Schay. The decision reached in the present case opens the door in every death-penalty case to grant relief based on a failure of counsel to pursue a different strategy at trial. Wooten rigidly held himself and his counsel to the theory that it was another who committed the crimes. Clearly, he was unwilling to admit to the commission of the crimes, which would have been required for him to avail himself of the defense that his attorneys are now being labeled as grossly incompetent for failing to provide. Counsel certainly could not have simultaneously pursued the defenses of misidenti-fication and lack of сapacity. Wooten chose to defend on identity. The consequences of that choice are now manifest. The evidence of identification was overwhelming, and Wooten has shown no prejudice.
Today, the majority recalls a mandate and permits Wooten to file a second Rule 37 petition because, as of this date, no verified petition has been filed. A hearing and appeal will presumably follow. Porter v. State,
The law on point in the present case is found in Howard. The relief due Wooten, for an unverified Rule 37 petition in a death-penalty case, is to remand for him to verify the existing petition already filed in this case and leave to file a supplemental record in this court to include that verified petition in the record on appeal. That would entitle Wooten to have his appeal from the Rule 37 hearing heard on appeal by this court and avoid a perfunctory affir-mance based on the lack of verification.' However, Wooten’s appeal was heard by this court, so the issue of the lack of verification is moot. The majority is creating new law on verification that is cut out of whole cloth.
Wooten was convicted of capital murder, criminal attempt to commit murder, and aggravated assault for an incident that occurred over sixteen years ago. He timely filed a Rule 37 petition and then argued that his counsel at trial was ineffective for failure to pursue the correct defense and for putting on mitigation evidence that left him a virtual stranger before the jury. He alleged there was a breakdown in the Rule 37 process. Those issues have already been litigated and reviewed on appeal. The majority, in reaching its conclusion, ignores postconviction procedures and our standard of review. Certainly, this court has the inherent authority to recall a mandate. But, this ease is not Robbins or Lee. It is not a case where justice requires the recalling of the mandate. I would deny the petition.
. The premise that verification assures this court that the petitioner has seen the petition and confirmed agreement with its contents raises a rather thorny question that threatens longstanding precedent regarding an attorney, as an officer of the court, and his or her representation of a client. The rule is that an attorney who appears in court is presumed to represent the client, and the client bears the burden of proving this not to be the case. Shields v. QHG of Springdale, Inc.,