962 F.2d 1315 (8th Cir. 1992), 90-2211, Singleton v. Lockhart

Docket Nº:90-2211.
Citation:962 F.2d 1315
Party Name:Charles L. SINGLETON, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.
Case Date:May 01, 1992
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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962 F.2d 1315 (8th Cir. 1992)

Charles L. SINGLETON, Appellant,

v.

A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.

No. 90-2211.

United States Court of Appeals, Eighth Circuit

May 1, 1992

Submitted April 11, 1991.

Rehearing and Rehearing En Banc

Denied July 2, 1992.

Jeffrey M. Rosenzweig, Little Rock, Ark., argued, for appellant.

Clint Eugene Miller, Little Rock, Ark., argued, for appellee.

Before WOLLMAN, Circuit Judge, ROSS and HENLEY, Senior Circuit Judges.

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WOLLMAN, Circuit Judge.

Charles Laverne Singleton appeals from the district court's 1 order dismissing his petition for habeas corpus relief under 28 U.S.C. § 2254. 2 We affirm.

I.

On October 30, 1979, an Arkansas jury convicted Singleton of capital murder for the June 1, 1979, killing of Mary Lou York, the owner/operator of a grocery store in Hamburg, Arkansas. After stabbing Mrs. York twice in the neck, Singleton absconded with an undetermined amount of money. The jury sentenced Singleton to death by electrocution.

After exhausting his state remedies, Singleton filed a petition for federal habeas corpus relief. The district court upheld the conviction, but set aside the death sentence. Singleton v. Lockhart, 653 F.Supp. 1114 (E.D.Ark.1986). In Singleton v. Lockhart (Singleton I), 871 F.2d 1395 (8th Cir.1989), we affirmed the district court's decision to uphold Singleton's conviction for capital murder. We reversed the district court's order vacating Singleton's death sentence, however, and remanded the case to the district court for reinstatement of the sentence. 3

On remand, Singleton challenged the reinstatement of the death sentence. The district court, however, rejected Singleton's challenge, dismissed his habeas petition, and dissolved the stay of execution.

On appeal, Singleton argues that (1) he received ineffective assistance of counsel during the penalty phase of his trial, and (2) that the Arkansas death penalty statute is unconstitutional.

II.

Singleton argues that he received ineffective assistance of counsel because his defense counsel failed to introduce any mitigating evidence during the penalty phase of his trial, notwithstanding Singleton's insistence that he not offer such evidence. Singleton also challenges the district court's finding that he knowingly and intelligently waived his right to present such evidence.

Robert B. Wellenberger was appointed to represent Singleton on June 12, 1979. Wellenberger had been practicing law about three years at the time of the appointment, having been admitted to the bar in March of 1976. Prior to his appointment in this case, Wellenberger had defended several murder cases, including cases involving defendants and victims of different races, the situation in the present case (Singleton is black, Mrs. York was white). He had been successful in some of those murder cases.

Wellenberger testified that he had begun preparing for the penalty phase of Singleton's trial from the time of his first meeting with Singleton, which occurred on or about June 14, 1979. As a part of that preparation, he asked Singleton to prepare a personal history, including such things as the name of his minister. Wellenberger testified that Singleton prepared a very complete and thorough personal history, which Wellenberger believed would make an excellent basis for an argument during the penalty phase and which Wellenberger wanted to expand upon.

Wellenberger testified that Singleton consistently maintained the attitude through Wellenberger's representation of him that he would not accept a plea offer calling for a sentence of more than seven years in the penitentiary. Singleton was of the opinion that the state would be unable to convict him of the murder charge and that the state and the jury had no right to be so upset with him. Wellenberger told Singleton that in view of the fact that the state had two eyewitnesses, plus the victim's dying declarations to a police officer

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and to a doctor that Singleton had stabbed her, the evidence was more than sufficient to support a conviction and that it was highly probable that the jury would convict him of capital murder.

Wellenberger explained to Singleton the role of the penalty phase of the trial. He explained to Singleton that the fact that there was evidence that Singleton had been under the influence of drugs and alcohol at the time of the killing would constitute a mitigating circumstance under Arkansas law. Wellenberger intended to establish this fact through the testimony of Gary Tippie, who had been with Singleton prior to the killing and who would have testified that Singleton had been smoking marijuana and drinking beer and whiskey prior to the murder.

Wellenberger explained to Singleton the aggravating and mitigating circumstances set forth in the Arkansas death penalty statutes. He explained that Singleton could not rely on a lack of a significant prior criminal history as a mitigating circumstance. Singleton had been convicted of burglary at age fifteen, had served two years, eight months of his ten-year sentence, and was on parole at the time of the killing. (Wellenberger had some doubt whether the state would be able to rely upon this conviction in view of the fact that Singleton had waived appointment of counsel prior to entering his guilty plea to the burglary charge.)

Wellenberger explained that Singleton could rely upon his youthful age (Singleton was born on March 29, 1959, and thus had turned twenty only two months before the murder), the fact that he was under the influence of drugs and alcohol at the time of the killing, and upon the facts set forth in the personal history statement that Singleton had prepared at Wellenberger's request.

Wellenberger discussed the penalty phase with Singleton at length at least three times prior to the commencement of the trial. Throughout these discussions, Singleton maintained that if it came to a decision of whether he would spend the rest of his life in prison without parole or be sentenced to death by electrocution, he did not desire to put on any evidence. He told Wellenberger that he had been to prison and indicated that he did not want to spend the rest of his life in prison. Wellenberger explained to Singleton that that was not the way Wellenberger wanted to present the case. Singleton told Wellenberger that he would plead guilty in exchange for a prison term of not more than seven years. At one point prior to trial the deputy prosecuting attorney asked Wellenberger to find out whether Singleton would plead guilty in exchange for a sentence of life imprisonment without parole. The deputy prosecutor did not couch this inquiry in the terms of an offer and later called Wellenberger and said that he would be unable to accept such a plea. No further plea offers were made, and Wellenberger's several inquiries about the possibility of a negotiated plea were met with the response that a life sentence without parole was not a possibility and that the case would be tried. Contrary to Singleton's testimony, Wellenberger testified that there were never any discussions between himself and Singleton about a twenty-one year sentence because no such offer was ever made by the state.

In preparation for the penalty phase, Wellenberger discussed with Singleton the ministers at the churches that Singleton had attended earlier in his life (he had not attended church for a long time prior to the killing) as well as Singleton's school records (Singleton had dropped out of school and had had some problems while in school). Wellenberger visited with Mildred Howard, Singleton's mother, about Singleton's background and the matter of how Wellenberger intended to proceed if the jury found Singleton guilty. Wellenberger found that Mrs. Howard could not bring herself to admit that her son was guilty, notwithstanding the fact that Wellenberger let her read Singleton's handwritten statement in which he acknowledged having stabbed the victim. Based upon his discussion with Mrs. Howard, Wellenberger concluded that she would not be an effective witness during the penalty phase.

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In further preparation for the penalty phase, Wellenberger had a subpoena served on Gary Tippie; and Tippie was present and available to testify at the penalty phase.

Prior to trial, Wellenberger requested that Singleton be given a psychiatric examination. Accordingly, Singleton was sent to the Arkansas State Hospital, where he was administered a battery of tests and was examined by a psychologist and a psychiatrist. The results of the tests and the examination revealed that Singleton has a full scale IQ of 83, which places him within the dull normal range of intellectual functioning. He appeared to be reading at nearly a seventh grade level. There were no gross signs of organicity present, and his short term memory appeared to be adequate. The summary of the report prepared by the examining psychologist stated:

While Mr. Singleton was very uncooperative throughout the evaluation, he does not appear to be overtly psychotic or out of contact with reality at this time. Rather, he appears to be an impulsive, unpredictable, and somewhat hostile individual who is quite resentful at finding himself in his current situation. He certainly appears capable of understanding the charges against him and aiding his attorney with his defense and should be returned to the court for trial.

The examining psychiatrist's report concluded that:

It is the opinion of the examining psychiatrist that Charles Lavern Singleton is not mentally ill to the degree of legal irresponsibility at the time of this examination and probably was not at the time of the commission of the alleged offense.

It is further the opinion of the examining psychiatrist that Mr. Singleton has the mental capacity to understand the proceedings aginist [sic] him and has the mental capacity to...

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