Sasser v. Hobbs

• Decision Date: 15 November 2013
• Docket Number: 11–3346.,Nos. 02–3103,s. 02–3103
• Citation: 735 F.3d 833
• Parties: Andrew SASSER, Petitioner–Appellant v. Ray HOBBS, Director, Arkansas Department of Corrections, Respondent–Appellee. Andrew Sasser, Petitioner–Appellant v. Ray Hobbs, Director, Arkansas Department of Corrections, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

735 F.3d 833

Andrew SASSER, Petitioner–Appellant

v.Ray HOBBS, Director, Arkansas Department of Corrections, Respondent–Appellee.

Andrew Sasser, Petitioner–Appellant

v.Ray Hobbs, Director, Arkansas Department of Corrections, Respondent–Appellee.

Nos. 02–3103, 11–3346.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 14, 2012.

Filed: Nov. 15, 2013.

Scott Braden, AFPD, of Little Rock, AR, (Deborah Ann Czuba, AFPD, on the brief), for appellant.

Kelly Hook Fields, AAG, of Little Rock, AR, for appellee.

Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.

RILEY, Chief Judge.

We consider Andrew Sasser's death penalty appeal for the third time. After an Arkansas jury sentenced Sasser to death in 1994 for capital murder, he lost his Arkansas direct appeal in 1995 and his effort to obtain postconviction relief in Arkansasstate court in 1999. See Sasser v. State, 338 Ark. 375, 993 S.W.2d 901, 903 (1999) (per curiam) (Sasser 1999 ); Sasser v. State, 321 Ark. 438, 902 S.W.2d 773, 774, 779 (1995) (Sasser 1995 ). In 2000, Sasser filed the federal habeas petition from which this appeal arises. The district court dismissed the petition, but granted Sasser a certificate of appealability on several issues.

While Sasser's initial appeal to our court was pending, the Supreme Court decided in Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), that the Eighth Amendment prohibits the execution of mentally retarded individuals. Retaining jurisdiction over the bulk of Sasser's case, we ordered the district court to determine in the first instance whether Atkins made Sasser ineligible for the death penalty. Without an evidentiary hearing, the district court denied Sasser relief, finding he had procedurally defaulted on his Eighth Amendment mental retardation claim. Considering Sasser's case for the second time, we reversed and remanded “for an Atkins evidentiary hearing to adjudicate the merits of Sasser's mental retardation claim.” Sasser v. Norris, 553 F.3d 1121, 1122 (8th Cir.2009) ( Sasser I ), abrogated on other grounds by Wood v. Milyard, 566 U.S. ––––, ––––, 132 S.Ct. 1826, 1834, 182 L.Ed.2d 733 (2012). The district court held a two-day evidentiary hearing and found Sasser was not mentally retarded under Arkansas law and Atkins. Sasser again appeals and, resolving all outstanding issues presented by Sasser's original and subsequent habeas appeals, we affirm in part, dismiss in part, reverse in part, vacate in part, and remand.

I. BACKGROUNDA. Arkansas Proceedings

Shortly after midnight on July 12, 1993, Sasser brutally murdered Jo Ann Kennedy while she worked as a clerk at a Garland City, Arkansas, E–Z Mart convenience store. See Sasser 1995, 902 S.W.2d at 774–75. The State of Arkansas charged Sasser with capital felony murder. See id. at 774. In an effort to avoid the death penalty, Sasser's counsel attempted to plead Sasser guilty. See id. at 775. Because the State had not waived capital punishment—a predicate in Arkansas to acceptance of a guilty plea in a capital case—the trial court refused to accept the plea. See id. Proceeding to trial, Sasser stipulated to the following facts:

1. Sasser “caused the death of the victim while in the possession of and while driving his brother's pickup truck”;

2. Sasser “stopped at the E–Z Mart in Garland City two or three times to buy chips and to use the telephone between the hours of 3:00 p.m. on July 11, 1993 and approximately 12:00 a.m. on July 12, 1993”;

3. “[T]he victim was discovered nude from the waist down”; and

4. “[T]he pants and panties found in the E–Z Mart's men's bathroom were hers.”

Id. At trial, in addition to evidence which overwhelmingly established Sasser's guilt, the State presented testimony from another E–Z Mart clerk, Jackie Carter, whom Sasser had attacked and raped on April 22, 1988. See id. at 776. The trial court admitted the testimony under the Arkansas equivalent of Federal Rule of Evidence 404(b). See id. at 777. After the State rested, Sasser's counsel presented no witnesses. See id. at 776. Without specifying which underlying felony or felonies Sasser committed, the jury found Sasser guilty of capital felony murder. See id. at 776–77.

One aspect of the trial judge's instructions to the jury was concededly erroneous. See Sasser 1999, 993 S.W.2d at 905. The prosecution based its felony murder charge on “four possible underlying felonies: kidnapping, attempted kidnapping, rape, or attempted rape.” Id. The trial judge correctly instructed the jurors that to reach a guilty verdict, they had to find Sasser committed at least one of the underlying felonies. See id. But the trial judge incorrectly defined the elements of attempted kidnapping and attempted rape, instructing the jury that either attempt crime was completed when Sasser formed the mental state to commit the corresponding offense. See id. at 905–06. The trial judge thus omitted the actus reus (i.e., the requirement that Sasser take a “substantial step” toward completing the crime) from the instructions related to the attempt felonies. Id. at 906.

In the penalty phase, the State introduced a certified copy of Sasser's 1988 conviction for the second-degree battery, kidnapping, and rape of Ms. Carter. See Sasser 1995, 902 S.W.2d at 777. Sasser's counsel called two witnesses during the penalty phase: a licensed professional counselor (LPC) and Sasser's older brother, Hollis. The LPC testified, “Sasser, in all probability, will always be a very dangerous man,” but he “could probably function in the penitentiary.” Hollis expressed his “sorrow and ... deepest, deepest sympathy for” the victim's family, and testified Sasser “was a hard worker.” Hollis had received reports from prison about Sasser that “were good.” The State called a psychologist and a psychiatrist to rebut the LPC's testimony. The psychologist testified Sasser's IQ was “dull normal.”

The jury imposed the death penalty, finding a single aggravating circumstance outweighed three mitigating circumstances. See id. The aggravating circumstance was Sasser's previous felony involving “the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person.” Id. The three mitigating circumstances were that Sasser (1) “would be a productive inmate, [ (2) ] had a supporting family of him as an inmate, and [ (3) ] had stipulated he caused the victim's death.” Id.

Sasser's trial counsel appealed, challenging only the admission of Ms. Carter's testimony. See id. at 774. On July 17, 1995, the Arkansas Supreme Court, with three justices dissenting, rejected this claim and affirmed the judgment and penalty. See id. at 779. Sasser next sought postconviction relief in Arkansas state court under Arkansas Rule of Criminal Procedure 37. See Sasser 1999, 993 S.W.2d at 903. In his Arkansas Rule 37 petition, Sasser raised five ineffective assistance claims and argued the incorrect jury instruction violated his Sixth Amendment right to a trial by jury. See id. at 905, 909–12. On July 8, 1999, the Arkansas Supreme Court affirmed the Arkansas circuit court's denial of relief on all claims. See id. at 912.

B. Federal Habeas Proceedings

On July 7, 2000, Sasser petitioned for a writ of habeas corpus in the Western District of Arkansas. Sasser amended his petition on July 17, 2001. In all, Sasser raised eight grounds for relief. The district court determined seven of Sasser's grounds were procedurally barred because he had not raised them in state court. Sasser had raised the eighth ground in the Arkansas Rule 37 proceeding—alleging Sasser's trial counsel provided ineffective assistance by failing to request a limiting instruction as to Ms. Carter's testimony. The district court found neither an evidentiary hearing nor relief were warranted because the decision “not to seek a limiting instruction was a plausible trial strategy” and the Arkansas court did not misapply clearly established federal law. The district court dismissed the petition on May 23, 2002. Sasser requested a certificate of appealability.

On August 14, 2002, the district court certified appealability on four of the eight grounds raised in Sasser's amended petition for writ of habeas corpus:

1. Petitioner was deprived of his rights under the U.S. Constitution ... by the improper jury instructions given in both the guilt and penalty phases of the trial.

....

[2.] Sasser's conviction should be set aside because he was deprived of his right to effective assistance of counsel as guaranteed by the U.S. Constitution.

....

[3.] The additional oath administered to jurors who were questioned about their attitudes toward the death penalty [is unconstitutional].

[4.] The Arkansas death penalty is unconstitutional.

Sasser filed his first appeal to our court.

1. First and Second Appeals

On August 15, 2003, in light of the Supreme Court's decision in Atkins, 536 U.S. at 321, 122 S.Ct. 2242, we granted Sasser's motion to remand on “the question of whether [he] is mentally retarded and whether pursuant to Atkins ... the Eighth Amendment prohibits his execution.” In that judgment, we also granted Sasser permission “to file ... a successive petition” “[t]o the extent the request for remand is the functional equivalent to an application to file a successive habeas petition.” The State petitioned for rehearing, and on March 9, 2004, our court

issued an amended judgment directing the district court to first determine whether Sasser had exhausted his claim in Arkansas state court and, if the district court determined Sasser had a viable state court remedy, to consider holding the remanded petition in abeyance pending resolution of the claim by the Arkansas state courts.

Sasser I, 553 F.3d at 1123.

On remand, after the district court ordered Sasser to file an amended petition setting forth his mental retardation claim, the district court dismissed the petition without a hearing, finding that Sasser...