Engram v. State

• Decision Date: 16 December 2004
• Docket Number: No. CR 99-928.,CR 99-928.
• Parties: Andrew R. ENGRAM, Petitioner, v. STATE of Arkansas, Respondent.
• Court: Arkansas Supreme Court

Page 367

200 S.W.3d 367

Andrew R. ENGRAM, Petitioner, v. STATE of Arkansas, Respondent.

No. CR 99-928.

Supreme Court of Arkansas.

December 16, 2004.

Bruce D. Eddy; and Montgomery, Adams & Wyatt, PLC, by: Dale E. Adams, for petitioner.

Mike Beebe, Att'y Gen., by: Jeffrey A. Weber, Ass't Att'y Gen., for respondent.

TOM GLAZE, Associate Justice.

Petitioner Andrew Engram has filed a motion to recall the mandate and reopen his case. Engram was charged in the June 10, 1997, capital murder and rape of Laura White, a security guard working at Sears in North Little Rock. A jury convicted him on both counts on January 28, 1999, and sentenced him to death. His conviction and sentence were affirmed by this court on May 4, 2000. See Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000). Engram then petitioned to the United States Supreme Court for a writ of certiorari, which the Court denied, see Engram v. Arkansas, 531 U.S. 1081, 121 S.Ct. 783, 148 L.Ed.2d 679 (2001); this court's mandate issued on January 12, 2001. On January 22, 2001, an attorney was appointed to represent Engram in postconviction proceedings, but, at a hearing before the circuit court, the attorney opined that there was nothing that merited Rule 37 relief. Engram then, on January 9, 2002, filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas.

On April 18, 2003, Engram requested leave from the federal court to file an amended habeas corpus petition in order to raise additional grounds for relief, including a claim that he is mentally retarded and that his execution is barred under the Supreme Court's holding in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The federal district court granted Engram's motion to amend, but also raised sua sponte the question of whether Engram had presented his mental retardation claim in state court. After briefing by both Engram and the State, the federal court determined that Engram "did not present the federal constitutional dimensions of his Atkins claim to the state courts." Further, the federal court disagreed with the State's contention that Engram was procedurally barred from raising the mental retardation claim, ruling that there was "no question that the legal basis for [Engram's] Atkins claim was unavailable to him during the state proceedings." Citing Robbins v. State, 353 Ark. 556, 354 Ark.1, 114 S.W.3d 217 (2003), the federal district court concluded that "a substantial possibility exists that the Arkansas Supreme Court will recall the mandate in this case to consider [Engram's] Atkins claim." Thus, the court directed Engram to move to dismiss his amended petition without prejudice, and granted him leave to file a second amended petition that would relate back to his original, timely-filed petition.

Engram filed a motion to dismiss his amended petition, and the federal court granted his motion on October 7, 2003. Following entry of the federal court's order, Engram filed in this court a "Motion to Recall the Mandate and Reopen the Case and Brief in Support," on November 5, 2003. Our court directed that Engram's motion be submitted as a case, and a briefing schedule was established.

The most recent case in which this court has been asked to recall its mandate and reopen the case under similar circumstances was Robbins v. State, 353 Ark. 556, 354 Ark. 1, 114 S.W.3d 217 (2003). In that death-penalty case, Robbins asked this court to recall its mandate in order to address an error alleged to have occurred in the jury's completion of the sentencing verdict forms. In agreeing that the mandate should be recalled and the case reopened, the Robbins court noted that it was doing so for three reasons: 1) a decision had been cited to the court that was legally on all fours with the issue presented by Robbins; 2) the federal district court had dismissed Robbins's federal habeas corpus petition because that issue had not been addressed in state court; and 3) it was "a death case where heightened scrutiny is required." Robbins, 353 Ark. at 564, 114 S.W.3d 217. However, the Robbins court expressed its belief that its holding was "sui generis . . . [and] one of a kind, not to be repeated." Id. at 564-65, 114 S.W.3d 217 (emphasis added).

Engram contends that this court should recall its mandate and reopen his case based on the fact that, in 2002, the Supreme Court decided the case of Atkins v. Virginia, supra, wherein the Court held that the execution of mentally retarded individuals violates the Eighth Amendment's prohibition on cruel and unusual punishment. The Atkins Court noted that the practice of executing the mentally retarded had "become truly unusual, and it is fair to say that a national consensus has developed against it." Atkins, 536 U.S. at 316, 122 S.Ct. 2242. In addition, the Court held that, given the diminished reasoning capacity of those with mental retardation, neither the retributive nor the deterrent purposes of the death penalty would be served by executing the mentally retarded: "Unless the imposition of the death penalty on a mentally retarded person measurably contributes to one or both of these goals, it is nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment." Id. at 319, 122 S.Ct. 2242 (quotations and citation omitted).

Although the Atkins decision came down after Engram's conviction and after the mandate issued in his case, the rule announced in Atkins is retroactive, according to the Supreme Court's reasoning set out in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In Penry, the Court held that, when a new rule places a certain class of individuals beyond the State's power to punish, "the Constitution itself deprives the State of the power to impose a certain penalty," and the new rule should be applied retroactively. Penry, 492 U.S. at 330, 109 S.Ct. 2934. Thus, although the Penry Court concluded that executing the mentally retarded was not constitutionally prohibited, it noted that, if a case in the future were to reach that conclusion, the prohibition should be applied retroactively and would apply to defendants on collateral review. Id.

In the present case, Engram argues that this court should read Atkins, as applied retroactively under the reasoning of Penry, in such a way that would permit reopening his case in order for him to raise and address the issue of his alleged mental retardation. Engram concedes that sentencing, this court's mandate, and the time for postconviction remedies are all long past. Nevertheless, Engram argues that this court can reopen his case under Robbins, because the three factors set out in Robbins have been met, as follows: 1) Atkins is on all fours with his case; 2) the federal court dismissed his habeas petition because the mental retardation issue has not yet been addressed by the state courts; and 3) this is a death case requiring heightened scrutiny.

However, Robbins is significantly distinguishable from Engram's case. The purpose of recalling the mandate and reopening the case in Robbins was in order to correct an error in the appellate process. For clarity, we briefly address the facts and history of the Robbins case at this stage. First, after Robbins was convicted, he waived his right to direct appeal, and this court subsequently affirmed the trial court's determination that Robbins was competent to make such a waiver. State v. Robbins, 335 Ark. 380, 985 S.W.2d 293 (1998) (per curiam) (Robbins I). Next, we further held that Robbins properly waived his right to seek Rule 37 postconviction relief. State v. Robbins, 336 Ark. 377, 985 S.W.2d 296 (1999) (per curiam) (Robbins II). However, Robbins's mother filed a next-friend petition asking this court to recall the mandate and re-examine Robbins's case; we granted her motion recalled the mandate, stayed the execution, and ordered briefing on the issues raised by Robbins's mother. State v. Robbins, 337 Ark. 227, 987 S.W.2d 709 (1999) (per curiam) (Robbins III).

After considering the arguments raised as a result of that briefing, this court held that it was the court's duty to conduct an independent examination of the record to determine whether prejudicial error occurred under Ark. Sup.Ct. R. 4-3(h), whether any Wicks violations occurred during trial, and whether "fundamental safeguards" were in place during the trial. State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (Robbins IV). In order to accomplish this task, this court appointed amicus counsel to review the record and assist this court in its review, which counsel did.

In Robbins v. State, 342 Ark. 262, 27 S.W.3d 419 (2000) (Robbins V), this court held that no Rule 4-3(h) errors, Wicks errors, or errors implicating "other fundamental safeguards" occurred during the trial. This court affirmed Robbins's capital murder conviction and death sentence and dissolved the stay of execution. Following Robbins V, Robbins began, for the first time, to contest his death sentence, and he engaged legal counsel to pursue habeas corpus relief in federal district court. Robbins argued in the subsequent federal proceeding on his habeas corpus petition that an inconsistency in the jury's verdict forms violated his constitutional rights under this court's decision in Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). The State responded that Robbins had exhausted his state remedies by not pursuing a petition for rehearing and that the mandate in the case had issued, foreclosing additional review. The federal district court dismissed Robbins's habeas corpus petition without prejudice on the basis that Robbins had not exhausted his state remedies. Specifically, the federal district court noted that state courts had not examined Robbins's inconsistency-in-the-verdict-forms argument under Willett v. State, supra, and that he could "pursue his state remedies, if any."

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