Anderson v. State

• Decision Date: 17 November 2011
• Docket Number: No. CR 08–1464.,CR 08–1464.
• Parties: Justin ANDERSON, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 488

385 S.W.3d 783

Justin ANDERSON, Appellant

v.STATE of Arkansas, Appellee.

No. CR 08–1464.

Supreme Court of Arkansas.

Nov. 17, 2011.

Jeffrey Marx Rosenzweig, Little Rock, for appellant.

Dustin McDaniel, Atty. Gen., David R. Raupp, Office of Atty. Gen., Little Rock, for appellee.

DONALD L. CORBIN, Justice.

Appellant Justin Anderson appeals the order of the Miller County Circuit Court denying his petition for postconviction relief pursuant to Ark. R.Crim. P. 37.5 (2011). We affirm the circuit court's decision to deny postconviction relief.

Anderson was tried, convicted, and sentenced to death for the murder of the elderly Clara Creech on her lawn in Lafayette County. Anderson was aged nineteen years at the time of the murder in October 2000. This court affirmed his conviction but reversed the death sentence and remanded due to errors in the jury's consideration of mitigating circumstances. Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004) (Anderson I ). Anderson obtained a change of venue to Miller County, where a jury again sentenced him to death. This court affirmed. Anderson v. State, 367 Ark. 536, 242 S.W.3d 229 (2006) (Anderson II ). This court recalled the mandate it issued in Anderson II to allow Anderson to file a petition for writ of certiorari in the United States Supreme Court. That petition was denied. Anderson v.Arkansas, 551 U.S. 1133, 127 S.Ct. 2973, 168 L.Ed.2d 707 (2007). This court reissued its mandate affirming Anderson's death sentence.

In July 2007, the circuit court stayed Anderson's execution and appointed Jeff Harrelson of Texarkana as counsel to seek postconviction relief for Anderson pursuant to Rule 37.5. With Harrelson as counsel, Anderson filed a petition and an amended petition pursuant to Rule 37.5. Harrelson also represented Anderson at the Rule 37.5 hearing held in June 2008. In August 2008, the circuit court denied the petition and entered an order reciting the court's findings of fact and conclusions of law.

Anderson timely appealed the denial of his petition, and Harrelson filed a brief that this court found to be “woefully deficient.” Accordingly, this court ordered rebriefing. Anderson v. State, 2010 Ark. 138, 2010 WL 987046 (per curiam). This court found the subsequent brief also to be deficient, removed Harrelson as counsel, and appointed Jeff Rosenzweig to serve as Anderson's new counsel. Anderson v. State, 2010 Ark. 375, 2010 WL 3915289 (per curiam).

With Rosenzweig as new counsel, Anderson then filed a motion to remand and reinvest the circuit court with jurisdiction to reconsider the issue of Anderson's mental retardation. In this motion, Anderson alleged that the finding that he was not mentally retarded relied extensively on the conclusions of Dr. Charles Mallory, whose work this court had since discredited in an unrelated case, Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. By letter order dated November 11, 2010, this court denied that motion without prejudice. By letter order dated September 8, 2011, this court also denied Anderson's subsequent motion to stay consideration of his appeal and to remand and expand appointment of counsel to pursue additional claims of ineffective assistance of counsel in the Rule 37.5 proceedings.

Rosenzweig has now filed a proper appellate brief on Anderson's behalf, pursuing three arguments for reversal. We now consider Anderson's appeal of the denial of his request for postconviction relief under Rule 37.5.

In an appeal from a trial court's denial of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel's performance was not ineffective. Clarks v. State, 2011 Ark. 296, 2011 WL 3136042 (per curiam); Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. A petitioner attempting to demonstrate ineffective assistance of counsel must show that counsel's performance was deficient and that the deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Id., 466 U.S. 668, 104 S.Ct. 2052. This means that there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, in that the decision reached would have been different absent the errors. Id.;State v. Cantrell, 2011 Ark. 449, 2011 WL 5112842. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. 668, 104 S.Ct. 2052;Sparkman, 373 Ark. 45, 281 S.W.3d 277. “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

As his first point for reversal, Anderson contends that his trial counsel was ineffective for failing to properly pursue the issue of his mental retardation. Anderson asserts that he is mentally retarded and thus ineligible for the death penalty under the Eighth Amendment to the United States Constitution, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Ark.Code Ann. § 5–4–618 (Repl.2006). If counsel was not ineffective, Anderson argues alternatively that subsequent developments in the unrelated case of Newman, 2009 Ark. 539, 354 S.W.3d 61, warrant a remand for further development of the mental-retardation issue.

The circuit court ruled that the issue of Anderson's mental retardation was rejected by the jury in his first trial and affirmed by this court in Anderson I. The circuit court ruled further that section 5–4–618(a)(2) and constitutional requirements were fully met. As for the allegation that counsel failed to properly investigate and present mitigation evidence, the circuit court ruled that the allegation was not supported by the record because mitigation evidence was presented at the first trial and at the resentencing and that both were quantitatively and qualitatively adequate. Finally, with respect to the allegation that counsel was ineffective for failing to properly investigate mental-health issues, the circuit court ruled that no proof was offered in this regard at the Rule 37.5 hearing.

At the outset, we note that Anderson does not explain in what specific way trial counsel's performance was deficient, nor does he attempt to show how such a deficient performance prejudiced his defense to such an extent that he did not receive a fair trial, both of which are required to demonstrate ineffective assistance of counsel under Strickland, 466 U.S. 668, 104 S.Ct. 2052. We also note that Anderson does not allege in what regard the circuit court's rulings were clearly erroneous. There is a strong presumption that the trial counsel's representation falls within the wide range of reasonable professional assistance. Lee v. State, 2009 Ark. 255, 308 S.W.3d 596. As the petitioner, Anderson had the burden of overcoming this presumption by identifying specific acts and omissions that, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.;Sparkman, 373 Ark. 45, 281 S.W.3d 277. Conclusory statements cannot be the basis of postconviction relief. Sparkman, 373 Ark. 45, 281 S.W.3d 277. Anderson has alleged only bare conclusions and has not overcome the presumption of trial counsel's competence by identifying specific acts and omissions that, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment.

We acknowledge that what Anderson does argue on appeal is that this court should have no confidence that the Rule 37 issues were handled properly below given this court's findings that the appellate briefs submitted by previous Rule 37 counsel were deficient. We, in effect, rejected this argument when we denied Anderson's motion to reinvest the circuit court with jurisdiction to reconsider the issue of Anderson's mental retardation. We expressly reject the argument now because it is a premature allegation of the ineffectiveness of Anderson's previous Rule 37.5 counsel. What is at issue in the present appeal is the effectiveness of Anderson's trial counsel; the issue of just how effective Anderson's previous Rule 37.5 counsel was at demonstrating trial counsel's ineffectiveness is not presently before us. While we are cognizant of Anderson's argument that a comprehensive state-court review warrants our consideration of this issue now, there has simply been no determination by the fact-finder below on the issue of previous Rule 37.5 counsel's effectiveness at the Rule 37.5 hearing for us to review on this appeal.

Alternatively, Anderson argues that the issue of his mental retardation was “tainted by the participation of Dr. Charles Mallory, who had been subsequently discredited in Newman v. State, 2009 Ark. 539, 354 S.W.3d 61.” Based on this alleged “taint,” as well as the “rather meager” references to the retardation issue at the Rule 37.5 hearing, Anderson contends the particular circumstances of this case warrant a remand for a full factual and legal development of the retardation issue. In support of this alternative argument concerning the “taint” of Dr. Mallory in Anderson's case, Anderson contends that at his trial he presented evidence from Dr. Paul Deyoub that his IQ was 65, that the only evidence challenging or...