*1 killing Counsel’s inexcusable failure to investi- The wanton of the victim is not to gate prosecution the witnesses and realize excused. Couch’s intoxication and irra- defense, the the justify weakness of alibi there- tional not behavior do his criminal fore, prejudiced the defendant. recognizes While a conduct. But the state differ- jury likely degrees homicide, would not believe that just Couch ent it as eight witnesses, was not at the scene when unlawful subject as the crime itself to a including eyewitnesses, placed two him punishment defendant to a not warranted there, jury might persuaded undisputed have been facts of the crime. Our premeditate unpro- Couch did not system operates unfairly criminal law if killing stranger, voked of a total especially the state-furnished counsel makes little ef- considering drunken state. investigate Couch’s More- fort to indigent or defend the over, prove performance that counsel’s accused. Public defenders in Missouri are prejudicial, Supreme was Court does large burdened with a caseload and little require proof that the outcome would operate. funds with which to But the con- have been different but for counsel’s defi- requirement stitutional of effective assist- Rather, only proba- ciencies. a reasonable ance of trial counsel afforded the Sixth bility required. of a different outcome is Amendment of the United States Constitu- Washington, Strickland v. at meaning U.S. tion has little justify if we 104 S.Ct. at 2068. Here a prob- reasonable name “strategy” the conduct of counsel ability challenge exists that a to Couch’s here.

premeditation, or to the law that would

prevent jury hearing from of his intoxi-

cation, would led to a have different out-

come. my there misunderstanding,

So is no dis-

agreement majority with the is not that performance

counsel’s was deficient be- challenge cause he failed to the constitu- YOUNG, Appellee, James C. Rather, tionality of Missouri law. I consid- er performance totally counsel’s derelict LOCKHART, Director, Appellant. A.L. and deficient utterly because he failed to investigate prosecution witnesses and real- No. 88-2625. absurdity falsity ize the of the defense United Appeals, States Court of deficiency he chose. That prejudicial was Eighth Circuit. to the defendant because if counsel had recognized gravity 15,- his situation he Sept. Submitted 1989. explored could giv- have other avenues and Decided Dec. en fight premeditation a tenacious on the reasonably probable It is he could have achieved a different result with this

defense. Because counsel’s decision to

pursue an absurd alibi defense was not an choice,

informed it cannot be considered

strategic. Eldridge, 665 F.2d at 232-36 (counsel duty investigate; had failure to constitutionally

do so was ineffective as-

sistance).

justify barring negating charge prevented jury the evidence from considering from government’s Supreme abnormality case in chief. The evidence mental ing in determin- although Court proven has indicated that a state premedita- whether the state constitutionally proving beyond shift the burden of tion and deliberation a reasonable defendant, sanction, insanity to the it did not doubt. sanction, probably (citation omitted). would not Id. *2 ARNOLD, Judge,

Before Circuit BRIGHT, Judge, and Senior Circuit BEAM, Judge. Circuit BRIGHT, Judge. Senior Circuit Lockhart, A.L. Director of the Arkansas Corrections, Department appeals the dis- granting resentencing trict court’s order on post grounds corpus ex to habeas facto petitioner Young. Young James C. cross appeals the district court’s denial of his claims, corpus including other habeas invol- untary jeop- waiver of counsel and double below, ardy. For the reasons set forth we part part, directing affirm in reverse corpus that the writ of habeas issue unless Young is afforded new trial the State of Arkansas.

I. BACKGROUND 15, 1982, On November Ar- State of charged Young rapes, kansas with two one which occurred on November the other on June 1979. The State ini- tially prosecuted and convicted for rape. subsequent prosecution rape provides for the 1979 subject appeal. of this charged Young The State with class Y felony rape Rape for the 1979 offense. did Arkansas, felony Y not become class however, until 1981. Arkansas law 1979 A categorized rape felony. as a class On days July four before the sched- rape, uled start of the trial for the 1979 requesting he filed a motion and that a declared co-counsel substitute be appointed place appointed counsel Fikes, Horace who had served as Young’s counsel at first trial. The court gave Young the rejected this motion and accepting of either Fikes as counsel choice rep- proceeding pro se. chose to pro himself se and the court re- resent scheduled the trial. pretrial filed a motion for dismis- charge, arguing

sal of that he was prejudiced by preindictment delay Gen., Knight, Atty. F. William Asst. Lit- years, more than three that the victim nev- Rock, Ark., appellant. tle er identified him and that he had been Hall, Jr., Rock, Ark., Wesley charged felony, though Little with a class Y even John appellee. felony had been a class A in 1979. The trial court overruled the motion as to objections magistrate’s to the re- preindictment rejected delay and the identi- port, Lockhart for the first time asserted challenge, fication did but not address proce- claim was Young’s contention that he had durally been specific argu- barred because the *3 charged wrong under the by statute. ment Young raised had never been raised before the state courts. Lockhart trial, Young represented himself at also asserted that an Arkansas statute place September which took of 1988. 41-1201(1) effect in Ark.Stat.Ann. § hours, deliberating After for several the (Repl.1977)(now codified at Ark.Code Ann. jury reported that it was deadlocked ten to 5-4-301(a)(l) (1987)),prohibited probation § two and the trial court declared a mistrial. suspended or sentences for those convicted jurors Affidavits later submitted the first-degree rape, prohibi- and that this they indicated that had deliberated for be- applied Young, tion notwithstanding that hours, tween two and jurors four that ten charge the State did Young with first- acquittal split favored and that the was degree rape. prosecuting made known to the The district court remanded attorney. the case to magistrate the with instructions to address Young represented again himself at the the statutory issue raised Lockhart. In second held in March of 1984. This proposed his second findings, magis- the time the Young convicted and he re- trate 1201(1) determined that the section year prison ceived a fourteen sentence. prohibition against probation suspended The Appeals Arkansas Court of affirmed first-degree sentences for rape ap- did not conviction, State, Ark.App. ply Young degrees (1985), 685 S.W.2d 823 and the Arkan- been eliminated legisla- Arkansas Supreme sas Young’s petition Court denied parties ture 1976. Both objections filed post-conviction relief, Young v. report. to this adopted The district court (1985). 287 Ark. 699 S.W.2d 398 magistrate’s findings and recommenda- In January filed the in- tions and ruled that the writ of habeas corpus petition. stant habeas ap- After corpus would issue unless the state trial pointment counsel, Young amended his court resentenced days within 120 petition, asserting seven arising claims Young represented by appointed coun- from his conviction for rape, only the 1979 sel. parties appealed. Both Additional five of which are ap- before this court on below, facts will be set forth as necessary. 1) peal: counsel; involuntary 2) waiver of prejudicial preindictment 3) delay; double II. DISCUSSION 4) jeopardy; post violation of the ex facto A. Waiver of Counsel clause; 5) denial of counsel at sentenc- ing. magistrate The hearing, held a made We first address the waiver of coun proposed findings and recommended that sel Young argues that the district sentencing granted Young’s relief be on court erred in voluntarily, that he magistrate claim. The knowingly found intelligently waived his ineligible proba- had been right to counsel at trial. contends suspended tion or a sentence as a class Y that the trial attempt court did not to deter felon options and that these would have mine competent whether he was repre himself, been available had he been sentenced as a sent did not caution him that he A magistrate class felon. The recom- was waiving a right basic constitutional mended that all of other claims be and did not him advise of the hazards of denied. self-representation,1 all in violation of the questioned Young 1. The trial court first about fication and that he had a list of alibi witnesses. moving his reasons for for substitute counsel. following colloquy place: then took particular, Young why In the court asked he Young, you going giv- COURT: Mr. are to be long waited so to tell counsel Fikes option today going en the of either to trial that he wished his defense to be alibi/misidenti- to an at that provide he could accused ruling in Faretta v. Cali- anee Supreme Court’s scope of the Sixth stage determine 95 S.Ct. fornia, —to counsel, type and the right to Amendment L.Ed.2d Moltke In fits associated with defense, himself, For this U.S., tual quished benefits. Johnson (plurality [68 skill and competently and When defendant need Faretta, S.Ct. matter, many intelligently” ^[458] 82 L.Ed. v. he an accused the accused must experience opinion of reason, Gillies, relinquishes, as a at 464-465 1461 Supreme Court intelligently to choose in order to not himself have 92 L.Ed. Black, J.). Although of a forgo those manages his own (1938)]. traditional bene [58 lawyer v. “knowingly S.Ct. 304 Zerbst, purely fac to counsel. in order 723-724 (1948)] stated: *4 relin 1019, Von the required before a waiver Moreover, conduct of wards record of the look at sity (quoting “including the the defendant from other sources.” Patterson v. S.Ct. self-representation is not an absolute neces- (1988)). warnings 854 F.2d at Meyer, recognized.” in 1880, 1883, 68 L.Ed.2d 378 v. every case Arizona, Id. the accused.” “a making this determination we particular dangers had this background, experience, and specific procedures that should be if the required facts of each Id. Illinois, record shows warning on the of that disadvantages 477, (quoting knowledge right 482, (1981)). that Ed- will 101 of Id. McCann, will establish doing and his choice open.” self-representation, aware self-representation, so that U.S. of the Adams United 87 L.Ed. 268 at dangers and that U.S., v. “he 95 S.Ct. at ^[269] he should be is made with knows (1942)]. at 279 disadvantages States what he is the record [63 ex rel. made S.Ct. eyes by intending to obstruct The trial court proceed stitute counsel ing resentation. sent himself Meyer filed a habeas that he Meyer, with did not waive counsel the pro After midway through required Meyer either to defendant moved for sub- se. conviction corpus petition assert- Meyer counsel the trial chose or to knowing- process. self-rep- appeal, repre- there- judge the trial ly intelligently because principles govern- the court outlined This dangers self-rep- him of the did not warn Meyer Sargent, ing waiver of counsel the court held that resentation. This (8th Cir.1988). In all waiver F.2d 1110 that a whole demonstrated record as purposes a counsel cases we ask “what intelligent- knowingly and occurred particular stage of waiver lawyer can serve at the Meyer’s obstructive ly, largely question, and what assist- proceeding Fikes, You will be denied. COURT: Your motion the Court will relieve Mr. with Mr. or Fikes, yourself. you go you represent accept can to Fikes and can Mr. can either recognize that Does the Court attorney. MR. YOUNG: your own trial as illegal in a case of this effect? I cannot that is Well, giving the Court is MR. YOUNG: before—I realize stand before—I can stand subpoena opportunity the witnesses. to me the things, pro later se—or co-counsel on it is go your you trial as want to COURT: If Felony before a Class Y but to stand —the attorney, Young, con- the Court will Mr. own thing asking only am the Court to do— that I give you opportunity to your tinue case to asking they well, I would like I am not that — your get subpoenas witnesses. out I do believe this case dismissed because to see I will do. Then that is what MR. YOUNG: very that it is unfair. I that —I do believe leave a list— You will COURT: mean, pretty all this it would be a sad—is said, go rather I I would MR. YOUNG: —like record, by way? going illegal have me stand and it is I do believe Yes, everything being made a is COURT: However, myself this. in a case like record, Young. part Mr. of the accept it at time I will Court orders this if the transcript, my correct? Part of MR. YOUNG: my will act as want Mr. Fikes. I it. I do not transcript part of the COURT: It would counsel, give the Court to but I do ask own right. that is subpoena my witnesses. time to me only thing am ask- that I MR. YOUNG: The ing give you oppor- Court will COURT: The appoint me other coun- the Court to do tunity. as co-counsel. sel and let me act “ moving experience system, with the ‘even motive in for substitute counsel. some help 1114-15. We also considered that gifted layman’ requires Id. at the most thoroughly explained the trial had proce- of counsel to ‘adhere to the rules of throughout Meyer’s rights to him the trial evidence, comprehend the dure and subtle- Meyer acquired extensive ex- and that dire, of voir examine and cross exam- ties justice system. perience the criminal im- effectively, object ine witnesses ... Further, Meyer’s conduct we observed much proper prosecution questions, and ” good indicated a throughout the trial Berry, (quoting more.’ 873 F.2d at 1171 knowledge system. Patterson, 13). at 2398 n. however, Ordinarily, imposed “we have appeal unfortunately This demonstrates on the rigorous the most restrictions infor- many problems may fair-trial arise conveyed to a defen- mation that must be self-representation. from forced The ma dant, procedures that must be ob- and the jority jurors Young’s first trial served, permitting him before waive [sic] acquittal have favored at the time the court Patterson, at trial.” to counsel declared a mistrial. But had no Faretta, (citing at 2398 U.S. request counsel to that the be ordered 2541-42). Thus, 835-36, Mey- 95 S.Ct. at deliberating. to continue Further delibera *5 exception general to the er stands as an Thus, acquittal.2 tion in have resulted a valid waiver rule that to constitute Young suffered the risk of conviction with judge apprise trial must counsel the trials, out counsel in not one but two inas advantages defendant on the record of the represented much as he also himself at the disadvantages self-representation. and rape charge. second trial on the 1979 Lockhart, (8th 873 F.2d 1168 Berry v. See Accordingly, Young we hold that did not case, Cir.1989). corpus Berry, In a habeas knowingly intelligently.3 waive counsel and ruling the district court’s that we affirmed The case should be retried or else the writ knowingly intelligently Berry did not should issue. counsel, despite Berry evidence that waive college had some education and extensive experience justice system. criminal with the Jeopardy B. Double 1170-71. Id. at Young argues that the trial court distinguishable The case at hand is from declaring abused its discretion a mistrial Young that

Meyer. No evidence indicates and that retrial therefore violated the con moving intended to obstruct trial in for prohibition against jeop stitutional double Appointed substitute counsel. counsel had ardy. following The standard review for almost six months visited applies: judge’s “The trial decision to de prior days to his visit five before trial. jury clare a mistrial when he considers the necessarily reflect on the This does not great deadlocked is ... accorded deference adequacy preparation of counsel’s for by reviewing court.” Arizona v. Wash Young may it demonstrates that have but ington, 434 U.S. 98 S.Ct. counsel, cause to anxious about had (1978). already especially had been inadequate The record in this case is rape repre- of a different while to convicted demonstrate that the trial court sented the same counsel. abused its Moreover, declaring while it is true that discretion a mistrial.4 sense, Meyer, satisfy 2. The court found that the trial court see F.2d district appointed stand-by Young. counsel for It is requirements forego constitutional the choice to record, however, unclear from the whether "knowingly intelligent- counsel must also be stand-by Young was made aware that counsel ly Berry, made.” F.2d at 1170. appointed. any the record had been In stand-by objected indicate that counsel does not transcript following 4.The trial reflects that the anything point throughout at this crucial or did dialogue occurred: Young. the course of the trial to assist jury COURT: Would the foreman of the Henderson, please I am Although Young's rise. Mr. advised him- decision that, you “voluntary” have advised her self can be construed to be in a the Clerk that 41-1201(1) just jury (Repl.1977)) that the deliberated for Ark.Stat.Ann. asserts § hours, and one half but we can find no provides person two that a convicted of “first support record for that amount of time. degree rape” may probation not receive or length The record also does not disclose suspended sentence. The district court trial, except it exceed a of the did not rejected contention, reasoning this that de- day. grees were eliminated the Ar- from has filed identical affidavits January legislature in of 1976 and kansas jurors stating judge three trial prohibition against suspended that the sen- prosecuting attorney prior received knowl probation first-degree rapist tences or edge split jury. The affidavits apply did not to this case. prosecutor suggest also that the appeal, On Lockhart concedes that the jury acquittal, but knew that the favored applied retroactively. State the law Lock- point ambiguous. The effect of such asserts, however, hart prejudice did existed, knowledge, presents if it in fact an application not result from this retroactive open question. Wyrick, Holt v. of the law because class A felons are not (8th Cir.1981), denied, F.2d cert. eligible probation suspended sen- 1002, 71 L.Ed.2d pursuant tences to the in Harris v. (1982). record, however, trial con Ark.App. 689 S.W.2d tains no disclosure whether 354-55 acquittal. favored conviction or Given court, the trial deference that we accord to Harris, Appeals Arkansas Court of say cannot that the trial court abused we sentencing power held that a court has no declaring a mistrial. its discretion grant probation suspended or a sentence *6 rape to a defendant convicted of as a class C. Ex Post Facto Violation felony. Y The Harris court was not argues Lockhart that the district presented post argument with an ex facto granting sentencing court erred in relief to and did not address the a issue whether Young grounds. post on ex This facto defendant convicted of as a class A issue be moot because of our felony qualifies probation suspend- or a validly that did not waive counsel. Thus, not ad- ed sentence. Harris does Nevertheless, reject we Lockhart’s conten dress the issue before us. ruling tion and affirm the district court’s consistently apply We as our standard of on this issue. interpretation review that “the of state law sentencing The district court held that sitting in a federal trial the forum Young as a class Y felon the trial court is entitled to substantial deference.” Pa applied retroactively. law court Supply Prestige Agri- Farm v. ton Co. prejudice also held that resulted because 88-2144, (8th Inc., slip op. 2 Group, No. at Young would have been entitled to the 21, (Table)]) Sept. F.2d 1090 Cir. 1989 [889 possibility probation suspended or a sen- curiam) (per (citing Liberty v. Mutu A tence if he had been sentenced as a class Kifer 1325, (8th Co., 777 F.2d 1330 Cir. al Ins. argued felon. that would Lockhart 1985)). We affirm the district court’s inter possibility not have been entitled to the pretation agree of Arkansas law probation suspended or a sentence as a felon, post applica suffered an A ex class because Ark.Code Ann. facto (1987) 5-4-301(a)(l) (formerly codified at tion of the law. § your judgment, you going position are able to their that further deliberations would not to be reach a decision in this case. Is that correct? be fruitless? Yes, Yes, MR. HENDERSON: sir. sir. MR. HENDERSON: COURT: I am interested in numbers and not gentlemen, the Court is COURT: Ladies guilty guilty. whether it is for or for not But going to declare a mistrial the case.... split jury? what is the numerical going Young, Mr. the Court is to declare MR. Ten-two. HENDERSON: mistrial in this case.... you COURT: Do feel that those individuals minority are in the are so adamant in who 1354 Glass,

Nevertheless, Cir.1985); United v. argues States Lockhart 720 F.2d 21, (8th Cir.1983)). Wainwright v. procedural doctrine of 23 As this court stated bar 72, 2497, rule, Sykes, v. Lockhart: general 97 “The Beavers 53 (1977), course, ex precludes Young’s appellate L.Ed.2d 594 is federal courts post Lockhart, According claim. to will not consider issues not raised in the facto Young’s failure to follow Arkansas law and district court.” 755 F.2d at 662. post ex specific objection make a at facto argument properly if Even were be- corpus trial bars habeas review of the court, Young fore this could still make a claim. While our examination of Arkansas under Mur- showing prejudice of cause and objection law discloses that must be “[a]n ray Carrier, v. 478, sufficiently specific apprise the trial 2639, exist- “[T]he particular complained court as to the error procedural ence of cause for a default must preserve appel- of in order to ordinarily prisoner turn on whether the can State, v. review,” 75, Horn late Ark. 282 objective show that some factor external to 880, (1984) 665 S.W.2d Tosh v. (citing impeded the defense counsel’s efforts to State, 377, 6, (1983)); 278 Ark. 646 S.W.2d comply procedural with the state’s rule.” State, see also v. 274 Ark. Crafton Id. at 106 S.Ct. at 2645. Invalid waiv- (1981) (containing S.W.2d cita- provides er of counsel cause this case. tions), Young’s pre- we convinced that are Prejudice demonstrated ineli- objecting application trial motion to the gibility probation suspended or a sen- wrong apprised law the trial court of Wainwright pro- Accordingly, tence. post ex Rowland v. violation. facto apply cedural bar doctrine does to the State, 262 Ark. 561 S.W.2d (1978) (objection grounds on of relevance sufficiently specific preserve was not III. CONCLUSION objection Fitz- appeal); of remoteness on Because validly did not waive patrick Ark.App. 647 counsel, we reverse the order of the district (1983) (hearsay objection S.W.2d court and direct the district court to issue trial preserve was not sufficient to confron- the writ unless the State of af Arkansas objection appeal). tation clause on fords trial representa new *7 argues that Wain Lockhart further by appropriate tion counsel. In all other wright precludes review of the respects, we affirm the order of the district Supreme claim because the Arkansas court.5 procedural Court held that errors on Young’s part post-conviction barred relief. BEAM, Judge, concurring in Circuit 361, Young v. Ark. 287 699 S.W.2d part dissenting part. and 398, (1985). argu 399 Lockhart raised this majority opinion I concur in the with By ment for the first time to this court. regard However, to Parts IIB and IIC. I neglecting to raise it before the district respectfully disagree conclusions court, however, Lockhart has waived this reached in Part majority IIA. Smith, 454, argument. Estelle v. 451 U.S. my In view this case is controlled 12, 1866, 12, 468 n. 101 n. S.Ct. 1876 68 holding in Meyer Sargent, v. 854 F.2d 1110 Anderson, (1981); v. Jenkins L.Ed.2d 359 (8th Cir.1988). Thus, the writ should not 231, 1, 2124, 234 n. 2127 1, v. (1980); n. Beavers Lock 65 L.Ed.2d 86 hart, 657, (8th Cir.1985) (cit February petitioner’s 755 F.2d 662 On case Helvering, Hormel v. ing 552, 312 U.S. was set for trial. It was scheduled to 556, (1941); 61 July July S.Ct. 85 L.Ed. 1037 commence on 1983. On Morris, Ryder v. (8th day F.2d begin, peti- before the trial was to delay 5. Our on the waiver of counsel issue has not demonstrated that the resulted any improper purpose. renders moot claim of denial of counsel from Lovasco, United States v. 790-96, sentencing. Young’s prejudicial claim of 2048-52, preindictment delay lacks merit because court-appointed coun- his tioner asked with a prepared for trial sel, fully Royce Kenneth who was MORGAN William defense, theory of agreed upon previously Graphic Lipps, H. Ozark d/b/a be de- petitioner discharged and that Appellees, Merilyn Royce Morgan, newly ap- along with a clared co-counsel v. Understandably, the trial lawyer. pointed Dorothy K. L. request and PONDER minute Chester this last

judge refused Ponder, Prospect News him- option The gave petitioner d/b/a Co., his current counsel. Publishing Appellants. continue with self or to self-representation. Petitioner decided on and 89-1309. Nos. 88-1364 lawyer, even newly Obviously, a requested as functioning as co-counsel Appeals, Court of United States trial prepared for could not be petitioner, Eighth Circuit. reasonably de- even as as scheduled or Sept. 1989. Submitted layed. 29, 1989. Decided Dec. a “defen- held that this court Meyer right manipulate his no dant has purpose delaying for the

[to counsel] (quoting trial.” Id. at disrupting the White, F.2d United States Cir.1976)). during (8th Meyer, attorney dismissed.

sought to have option to given the petitioner, he was

Like or on his appointed counsel

proceed with He, petitioner, elect- also like behalf.

own court, in Mey- represent himself. ed to the dis-

er, unanimously determined its discretion court acted within

trict provide substitute motion to

denying the Id. at

counsel. petition here that also be noted

It should at a trial at which represented himself

er though a re

“hung” jury resulted. Even later, there is several months

trial occurred petitioner

no indication record lawyer for the appointment

sought this, petition clear that From it is

retrial. *8 se, proceed, pro in the second

er wanted Therefore, circum under the

proceeding. knowingly, petitioner

stances of his intelligentlv waived

voluntarily and right. See was This

right to counsel. Arizona,

Edwards L.Ed.2d 378 part of the

Accordingly, I to that dissent requires retrial or opinion

majority which self- custody from

release

representation by petitioner.