Anderson v. Kelley

• Citation: 938 F.3d 949
• Decision Date: 11 September 2019
• Docket Number: No. 17-2456,17-2456
• Parties: Justin ANDERSON, Plaintiff - Appellant v. Wendy KELLEY, Director, Arkansas Department of Correction, originally identified as Ray Hobbs Defendant - Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

938 F.3d 949

Justin ANDERSON, Plaintiff - Appellant

v.Wendy KELLEY, Director, Arkansas Department of Correction, originally identified as Ray Hobbs Defendant - Appellee

No. 17-2456

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2019

Filed: September 11, 2019

Rehearing and Rehearing En Banc Denied October 25, 2019

Justin Anderson, Arkansas Department of Corrections - Varner Supermax, Grady, AR, Pro Se.

John Charles Williams, Assistant Federal Public Defender, Federal Public Defender's Office, Little Rock, AR, for Plaintiff - Appellant.

Kent G. Holt, Assistant Attorney General, Jacob Helderman Jones, Assistant Attorney General, Attorney General's Office, Little Rock, AR, for Defendant - Appellee.

Before GRUENDER, STRAS, and KOBES, Circuit Judges.

GRUENDER, Circuit Judge.

Justin Anderson appeals the district court's¹ denial of his petition for habeas corpus. He argues that his counsel was ineffective for failing to investigate and present mental health evidence and for giving the jury an expert report which included information that Anderson was on death row, that a mid-deliberation jury instruction was improper, and that he is categorically exempt from the death penalty. We affirm.

I.

Anderson was nineteen when he broke into a truck occupied by Roger Solvey in October 2000. Anderson shot Solvey, but he survived. Six days later, Anderson shot and killed eighty-seven-year-old Clara Creech while she was gardening in her yard. Anderson admitted to shooting Solvey, and he was convicted of attempted capital murder. A jury then convicted Anderson of capital murder for killing Creech.

Latrece Gray represented Anderson during the penalty phase. She testified that the focus of her defense was "childhood matters." The defense presented eighteen witnesses, including psychiatric expert Dr. Andre Derdeyn, who testified about Anderson's abusive childhood. Dr. Derdeyn diagnosed Anderson with a "major depressive episode

" and agreed that Anderson had anti-social personality disorder.

The jury was instructed on forty-two mitigating factors and told it could consider any other mitigating circumstance. It found that none of the mitigating factors "probably existed," and it found one aggravating circumstance—that Anderson "previously committed another felony," the attempted murder of Solvey, "an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person." The jury sentenced him to death in 2002. The Arkansas Supreme Court reversed and remanded for resentencing because it determined that the jury "eliminated from its consideration all evidence presented of mitigating circumstances." Anderson v. State , 357 Ark. 180, 163 S.W.3d 333, 360 (2004).

The second penalty phase team included Gray, a mitigation specialist, a paralegal, and several other attorneys. The team also consulted other attorneys at various points. They concluded that their initial strategy had not worked because the jury found no mitigating factors and decided to go "back to the drawing board." As Gray later testified, she and her team "presented the mitigation in a different fashion in the hopes to drive home to the jury that there were mitigating factors." The team prepared a twenty-four-page mitigation table that detailed the potential witnesses to testify on Anderson's behalf, a summary of their expected testimony, and the relevant exhibits to each witness. They presented thirteen witnesses, including Anderson, who had not testified during his first penalty phase.² He admitted to and took responsibility for killing Creech. He also testified about a letter he had written to his father while in prison and highlighted his personal accomplishments in prison, such as earning a GED.

The team consulted several experts, including psychologists and psychiatrists. They hired Dr. Rebecca Caperton, who specialized in mental functioning and IQ testing, and Dr. Elizabeth Speck-Kern, who specialized in neuropsychology and learning disabilities. The team otherwise did not request neuropsychological testing, did not have Anderson screened for post traumatic stress disorder

("PTSD"), and did not consult with an expert about the biological limitations of teenage brain development.

In her closing statement, Gray emphasized Anderson's humanity and told the jury that there are "redeeming qualities worth saving in [Anderson]." She said that Anderson was "damaged" but not "unsalvageable." Gray reminded the jury that the law did not require them to "kill" Anderson, and she argued that he had taken full responsibility for what he did and "doesn't deserve to die." After hearing the evidence, the jury found the same aggravating circumstance as that found at Anderson's first sentencing—the attempted murder of Solvey. The jury also found thirty mitigating circumstances. Nevertheless, after weighing the factors, it sentenced Anderson to death.

The Arkansas Supreme Court affirmed the sentence. Anderson v. State , 367 Ark. 536, 242 S.W.3d 229 (2006). Anderson pursued post-conviction relief in Arkansas, and the Arkansas Supreme Court affirmed the denial of Anderson's petition for post-conviction relief. Anderson v. State , 2011 Ark. 488, 385 S.W.3d 783 (Ark. 2011).

Anderson then filed a petition for federal habeas corpus relief in the United States District Court for the Eastern District of Arkansas. See 28 U.S.C. § 2254. The district court dismissed Anderson's petition and granted him a certificate of appealability on two of his claims. We later expanded his certificate of appealability to include the two additional claims he now raises on appeal. We consider each in turn.

II.

Anderson claims that his counsel ineffectively failed to present or investigate certain mental health limitations. He argues that his counsel "unreasonably failed to present expert testimony" on the biological limitations of the teenage brain. He also argues that his counsel "unreasonably failed to identify" PTSD despite "ample evidence" of childhood abuse. Finally, he argues that his counsel "ignored obvious signs" of fetal alcohol spectrum disorder ("FASD") and that they should have requested neuropsychological testing, which would have revealed FASD.

During his § 2254 proceedings, Anderson presented an expert witness who testified that Anderson has "developmental" brain damage, which occurs "either perinatally or during development, fetal development, or early in childhood." Another expert testified that Anderson has partial fetal alcohol syndrome. Anderson also presented an expert witness who diagnosed him with PTSD. Anderson claims that the fact that the jury did not have this information "undermines confidence in the verdict" because "the actions of others changed him physically in a way that's central to his moral culpability."

The district court held a four-day evidentiary hearing on Anderson's mental health claims and dismissed them as procedurally defaulted because he did not present them in state court and because it concluded that the claims were not substantial. We review "the factual findings of the district court for clear error" and "a finding of procedural default de novo." Oglesby v. Bowersox , 592 F.3d 922, 924 (8th Cir. 2010). On appeal, the parties agree that Anderson has procedurally defaulted his mental health claims. "If a petitioner has not presented his habeas corpus claim to the state court, the claim is generally defaulted. We will not review a procedurally defaulted habeas claim because the state has been deprived of an opportunity to address the claim in the first instance." Barrett v. Acevedo , 169 F.3d 1155, 1161 (8th Cir. 1999) (en banc) (citation omitted).

The Supreme Court announced a narrow exception to this rule in Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). Substantial claims of ineffective assistance of counsel may overcome procedural default when the habeas claim arose in a state whose "procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal." Trevino v. Thaler , 569 U.S. 413, 429, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). A claim is substantial if it "has some merit." Martinez , 566 U.S. at 14, 132 S.Ct. 1309. We previously concluded that Arkansas does not afford "meaningful review of a claim of ineffective assistance of trial counsel on direct appeal." Sasser v. Hobbs , 735 F.3d 833, 853 (8th Cir. 2013) (internal quotation marks omitted). We assume that Anderson has presented a substantial claim that excuses his procedural default and proceed to the merits.

"When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington , 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must also demonstrate that he was prejudiced. Id . at 692, 104 S.Ct. 2052. Anderson's counsel's representation did not fall below an objective standard of reasonableness, and even if it did, Anderson has not demonstrated that he was prejudiced.

A.

Under Strickland , we first consider whether Anderson's counsel's representation fell below an objective standard of reasonableness. "An attorney's performance is deficient when he makes errors so serious that counsel was not functioning as the counsel guaranteed ... by the Sixth Amendment." Holder v. United States , 721 F.3d 979, 987 (8th Cir. 2013) (internal quotation marks omitted and alteration in original).

Anderson argues that his counsel should have presented more evidence on the biological limitations of the teenage brain. But Anderson's team offered Anderson's "youth ... at the time of Clara Creech's murder" as a mitigating circumstance. And Dr. Speck-Kern testified to the jury that before the...