Nooner v. State

Citation2014 Ark. 296,438 S.W.3d 233
Decision Date26 June 2014
Docket NumberNo. CR–94–358.,CR–94–358.
PartiesTerrick Terrell NOONER, Appellant v. STATE of Arkansas, Appellee.
CourtArkansas Supreme Court

OPINION TEXT STARTS HERE

Jennifer Horan, Federal Defender, by: Josh Lee and Scott W. Braden, Ass't Federal Defenders, for appellant.

Dustin McDaniel, Att'y Gen., by: Kelly Hook Fields, Sr. Ass't Att'y Gen., for appellee.

DONALD L. CORBIN, Justice.

Appellant, Terrick Terrell Nooner, moves this court to recall the mandate that this court issued on direct appeal affirming his conviction for capital murder and his sentence of death by lethal injection. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), cert. denied,517 U.S. 1143, 116 S.Ct. 1436, 134 L.Ed.2d 558 (1996). Nooner asks this court to vacate his death sentence and remand for resentencing on the ground that this court failed to sua sponte discover on direct appeal two fundamental errors that occurred at trial on matters essential to the consideration of the death penalty, thereby amounting to a defect or breakdown in the appellate process. Nooner contends that both the Eighth Amendment to the United States Constitution and this court's precedent independently require recall of the mandate with respect to the jury's special verdict on mitigating evidence. In addition, Nooner contends that the interests of justice favor recalling his mandate. Because this case involves a sentence of death, jurisdiction is properly in this court pursuant to Arkansas Supreme Court Rule 1–2(a)(2) (2013). We conclude that Nooner fails to demonstrate extraordinary circumstances to justify recall of the direct-appeal mandate; therefore, we deny his motion.

I. Facts and Procedural History

The procedural history of Nooner's case spans over a twenty-year period and encompasses numerous decisions on direct and collateral review from this court and the federal courts on multiple issues. We recite the procedural history here as it relates specifically to the issues of mitigating evidence raised in the instant motion, and as it relates generally to our later discussion of what Nooner terms an equitable claim to recall the mandate based on the interests of justice.

A. Trial

Nooner was tried by a jury for capital murder committed during the course of an aggravated robbery and theft of property at a laundromat in Little Rock during the early morning hours of March 16, 1993. Evidence at trial showed that Scot Stobaugh was found, with the contents of his pockets emptied, lying face down in a pool of blood. He had been shot seven times at close range, twice in the arm and five times in the back. During the guilt phase of the trial, Nooner's stepfather, Terry Hendricks, testified that Nooner had spent the night at home with him on the night of the murder. Despite this alibi testimony from Hendricks, the jury found Nooner guilty.

During the penalty phase, Nooner called Hendricks as his only witness. Hendricks testified that Nooner was twenty-two years old at the time of the murder and had been removed from home when he was fourteen as a result of child-abuse charges brought against Nooner's mother. He stated that Nooner was placed in various foster homes and was eventually sent to Rivendell psychiatric clinic for several months. Hendricks stated that Nooner had a tenth-grade education, began abusing alcohol when he left home, and had a two-year-old son. Hendricks explained that he was just beginning to redevelop a relationship with Nooner since his removal from the home. He stated that he and his wife provided approximately eighty percent of the support for Nooner's child, but that Nooner “was crazy about his son.” In sum, Hendricks testified that Nooner had a troubled childhood, that he abused alcohol, and that he had recently become a father. Despite this testimony, the jury unanimously found that, while two aggravating circumstances existed beyond a reasonable doubt, there was no evidence of any mitigating circumstances. The jury unanimously found further that the aggravating circumstances justified beyond a reasonable doubt a sentence of death.

B. Subsequent Procedural History

This court affirmed Nooner's conviction and death sentence on direct appeal. Nooner, 322 Ark. 87, 907 S.W.2d 677, cert. denied,517 U.S. 1143, 116 S.Ct. 1436, 134 L.Ed.2d 558 (1996).

Nooner then filed a petition for postconviction relief pursuant to Rule 37 wherein he asserted fundamental error in his trial as well as ineffective assistance of counsel for, among other things, failure to pursue a mental evaluation that would have produced mitigating evidence for the penalty phase of his trial. This court affirmed the circuit court's denial of postconviction relief. Nooner v. State, 339 Ark. 253, 4 S.W.3d 497 (1999). In so doing, this court noted that the trial court carefully considered the testimony of Nooner's trial counsel that they had carefully contemplated whether to request a mental evaluation and that they did, in fact, present mitigating evidence of Nooner's troubled past through the testimony of Nooner's stepfather. Id. This court therefore concluded that Nooner had not established that trial counsels' decision not to request a mental evaluation constituted ineffective assistance of counsel. Id.

Nooner filed a federal habeas petition challenging, among other things, the effectiveness of his trial counsel for failing to seek a mental evaluation that would have produced evidence of mitigating circumstances. On appeal, the Eighth Circuit Court of Appeals affirmed the district court's denial of the petition, determining that the record supported trial counsels' judgment not to pursue psychiatric testing for purposes of mitigation and that this court's conclusion that trial counsels' judgment did not render counsel ineffective was not an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Nooner v. Norris, 402 F.3d 801 (8th Cir.2005), cert. denied,547 U.S. 1137, 126 S.Ct. 2037, 164 L.Ed.2d 794 (2006).

Nooner filed a subsequent petition for writ of habeas corpus, seeking an order permitting him to undergo a complete mental-health evaluation. The Eighth Circuit Court of Appeals granted a certificate of appealability and reversed and remanded the district court's determination that Nooner's petition was a second, or successive, petition under 28 U.S.C. § 2244(b). The Eighth Circuit found that the bar on a second, or subsequent, habeas petition did not apply to a petition raising claims of incompetency based on Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), and of mental retardation based on Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), if the petition was filed as soon as the claims were ripe. Nooner v. Norris, 499 F.3d 831 (2007) citing Stewart v. Martinez–Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), and Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007)). On remand to the district court, Nooner's petition was dismissed without prejudice, based on the State's agreement to a court-ordered mental evaluation. Nooner v. Norris, No. 5:96–cv–00495–JLH (E.D.Ark. Nov. 16, 2007) ECF No. 138.

Nooner later sought and received permission to file a second federal-habeas petition, wherein he alleged for the first time his actual innocence, among other grounds for relief. His claim of innocence was based, in part, on (1) the recantation of trial testimony from one witness; (2) the recantation of statements that his accomplice, who did not testify at trial, made to police at the time of the murder; and (3) expert evidence measuring an individual's height captured on crime-scene-surveillance video. The Eighth Circuit Court of Appeals affirmed the federal district court's denial of Nooner's second habeas petition, rejecting the theory that the expert evidence was new evidence and emphasizing the internal inconsistencies in both recantations as well as the general skepticism with which courts view recantations made long after the fact. Nooner v. Hobbs, 689 F.3d 921 (8th Cir.2012), cert. denied, ––– U.S. ––––, 134 S.Ct. 58, 187 L.Ed.2d 50 (2013).

Nooner filed the instant motion to recall his direct-appeal mandate on December 13, 2012, just a few weeks after the Eighth Circuit Court of Appeals had affirmed the denial of his second habeas petition. While the instant motion was pending in this court, the Eighth Circuit Court of Appeals entered a written order on May 28, 2013, granting the State's motion to dissolve the stay of execution that had been entered on September 14, 2007, in Nooner v. Norris, No. 5:08–cv–00003–JLH (8th Cir. May 28, 2013) ECF No. 120.

II. Motion to Recall Direct–Appeal Mandate

In the present motion, Nooner contends that both the Eighth Amendment and this court's precedent independently require recall of the mandate that this court issued in 1995 in Nooner's direct appeal. Nooner asserts that there are two instances of a breakdown in the appellate process that he contends would justify recalling the mandate. First, based on Williams v. State, 2011 Ark. 534, 2011 WL 6275536, and the case on which it relied, Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004), Nooner asserts that the jury in his case committed reversible error when it marked the special-verdict forms to indicate that there was no evidence of mitigating circumstances because he did present mitigating evidence through his stepfather's testimony that Nooner was twenty-two years of age at the time of the offense, that he had a troubled childhood, that he had abused alcohol, and that he had family ties and responsibilities. Second, Nooner asserts that the verdict forms and the prosecutor's argument impermissibly instructed and directed the jury to evaluate the existence of mitigating circumstances only if they existed “at the time of the murder.” Additionally, Nooner asserts that the interests of justice and strong equitable considerations favor recall of...

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