Collins v. Lockhart

• Decision Date: 24 April 1985
• Docket Number: No. 83-2607,83-2607
• Citation: 754 F.2d 258
• Parties: Carl Albert COLLINS, Appellant, v. A.L. LOCKHART, Director of the Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 258

754 F.2d 258

Carl Albert COLLINS, Appellant, v. A.L. LOCKHART, Director of the Arkansas Department of Correction, Appellee.

No. 83-2607.

United States Court of Appeals Eighth Circuit.

Submitted May 15, 1984.

Decided Jan. 31, 1985.

Rehearing and Rehearing En Banc Denied April 24, 1985.

Lessenberry & Carpenter by Thomas M. Carpenter, Little Rock, Ark., for appellant.

Steve Clark, Atty. Gen. by Victra L. Fewell, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before McMILLIAN, BENNETT ^* and ARNOLD, Circuit Judges.

ARNOLD, Circuit Judge.

Carl Albert Collins was convicted by a jury of capital felony murder and sentenced to death. The District Court ¹ dismissed his petition for habeas corpus, and he appeals. We affirm the District Court's holding that Collins's conviction was valid. But as to the sentence of death, we agree with Collins that one of the aggravating circumstances found by the jury (that the murder was committed for pecuniary gain) duplicated one of the elements of the crime itself (that the murder was committed in the course of a robbery). This double counting of one aspect of the evidence, in our view, violates the Eighth and Fourteenth Amendments, because the pecuniary-gain aggravating circumstance fails to narrow the class of persons already guilty of robbery murder, as required by Supreme Court opinions before the penalty of death may be imposed. Insofar as the District Court rejected Collins's challenge to his sentence, therefore, its judgment will be vacated, and the cause remanded with instructions. On remand, the District Court will enter judgment reducing Collins's sentence to life imprisonment without parole (the only sentence other than death possible under Arkansas law for capital felony murder), unless the State, within such reasonable time as the District Court may fix, commences proceedings to retry the question of Collins's punishment. In any event, the conviction will stand.

I.

Collins was convicted in 1974 in the Circuit Court of Washington County, Arkansas. On direct appeal, the Supreme Court of Arkansas affirmed, Collins v. State, 259 Ark. 8, 531 S.W.2d 13 (1975). On certiorari, 429 U.S. 808, 97 S.Ct. 44, 50 L.Ed.2d 69 (1976), the United States Supreme Court vacated and remanded to the Supreme Court of Arkansas for reconsideration in light of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and companion cases. On reconsideration, the conviction and sentence were again affirmed. 261 Ark. 195, 548 S.W.2d 106 (en banc), cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977). A petition for post-conviction relief under Ark.R.Crim.P. 37 was denied. Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (per curiam), cert. denied, 452 U.S. 973, 101 S.Ct. 3127, 69 L.Ed.2d 984 (1981).

Collins then filed his petition for federal habeas corpus in the District Court. That court, in a thorough published opinion, Collins v. Lockhart, 545 F.Supp. 83 (E.D.Ark.1982), rejected all of Collins's arguments and dismissed the petition. On appeal, we held that the Supreme Court of Arkansas should be given an opportunity to compare Collins's sentence to those imposed in similar cases, in order to determine whether the death penalty in his case was disproportionate. We directed the District Court to hold the habeas petition in abeyance until this proportionality issue could be presented to the State Supreme Court, along with any other federal claims as to which state remedies might not have been exhausted. 707 F.2d 341, 343-44 (8th Cir.1983). Collins accordingly filed a second Rule 37 petition with the Supreme Court of Arkansas. It was denied, Collins v. State, 280 Ark. 312, 657 S.W.2d 546 (1983) (per curiam), the Court stating that "in comparison with [other capital] cases, we find no basis to alter [the] view" that the death penalty was properly imposed on Collins. Id. at 315, 657 S.W.2d at 548. Collins then returned to the District Court, which again dismissed his petition. This appeal followed.

Collins's brief in this Court presents four main points: (1) that counsel was ineffective at the guilt stage of his trial; (2) that counsel was ineffective at the penalty stage of his trial; (3) that the death penalty should be vacated because of the "overbroad" application of the pecuniary-gain aggravating circumstance; and (4) that the proportionality review conducted by the Supreme Court of Arkansas did not comply with due process. The last three points go only to the validity of the death sentence; only the first argument calls in question the conviction itself.

II.

Collins argues that counsel was ineffective at the guilt stage of his trial in two respects: (1) in not challenging the "death-qualified jury,"--an argument that, we have held in Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985) (en banc), would have been well taken; and (2) in not requesting that an instruction on the lesser included offense of first-degree murder be given. (Counsel did ask that another lesser included offense, second-degree murder, be submitted, and this instruction was given.) The District Court has persuasively explained why these arguments lack merit, 545 F.Supp. at 88, 89-90, and we add only a few words to its discussion.

As to the lesser included offense of first-degree murder, counsel explained that he made a tactical choice to go to the jury on capital felony murder and second-degree murder only. The submission of a first-degree-murder instruction would have required counsel to discuss the issues of premeditation and deliberation. At the time this case was tried, deliberate, premeditated murder was murder in the first degree. Some special circumstance had to be shown (e.g., killing in the course of robbery) to make the crime a capital one. In order to present the first-degree-murder option effectively, counsel might have actually had to argue to the jury that his client was a deliberate and premeditated killer. We can understand why counsel chose not to do so. Giving his choice the heavy measure of deference it deserves under Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we do not find that counsel made an unreasonable decision.

As to the Grigsby point, it has never been raised in the state courts, either directly or in terms of an ineffective-assistance-of-counsel argument. See Stipulation, R. 85-89. ² Nor could it be raised now. The Supreme Court of Arkansas has now made it quite clear that it will not entertain a second or subsequent petition under Rule 37 unless the first petition was specifically denied without prejudice to filing a subsequent petition. Collins v. State, supra, 280 Ark. at 315, 657 S.W.2d at 548. Thus, Collins has exhausted his state remedies on this issue, there being no currently available vehicle by which he can now raise the point in the state courts. But since he has failed to raise it there, and since the state courts would treat that failure as a procedural bar to considering the point on its merits now, he is also barred on federal habeas unless he can show both "cause" and "prejudice." We need not discuss the issue of cause, because Collins is utterly unable to show prejudice. We have examined the entire transcript of the testimony at the trial, and we agree with the Supreme Court of Arkansas and with the District Court that the evidence of guilt was overwhelming. As we specifically held in Pickens v. Lockhart, 714 F.2d 1455, 1458 n. 2 (8th Cir.1983), the Grigsby argument is therefore unavailing.

III.

We next address the arguments that Collins's counsel was ineffective at the penalty stage, and that the proportionality review conducted by the Supreme Court of Arkansas was legally insufficient. The District Court's discussion of these issues is completely satisfactory. In short, we agree that counsel made a reasonable judgment that no evidence available for introduction at the penalty stage would have helped Collins. The Supreme Court has now held that comparative proportionality review is not constitutionally required, Pulley v. Harris, --- U.S. ----, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), and the Arkansas Supreme Court has, in any event, now given Collins's case this type of review.

IV.

A.

Defendant's final argument is that one of the statutory aggravating circumstances found by the jury in his case--that the killing was committed for pecuniary gain--is "overbroad," in the sense that it applies to every case of robbery murder (the species of capital felony murder of which defendant was convicted) and therefore fails to distinguish those robber-murderers who deserve the death penalty from those who do not. Thus, the jury is left without sufficient standards to ensure that the death penalty is not freakishly, wantonly, or arbitrarily imposed, in violation of the principles first laid down in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and later elaborated somewhat in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and companion cases.

Collins was charged under Act 438 of 1973, the first capital-punishment statute enacted in Arkansas after Furman. Ark.Stat.Ann. Sec. 41-4701 et seq. (Supp.1973). The information, set out in full on page 2 of the record that was before the Supreme Court of Arkansas on direct appeal charged that Collins killed John Welch "while engaged in the attempt and perpetration of robbery of John Welch...." The jury found Collins guilty of this offense, defined by the General Assembly as capital felony murder, Sec. 41-4702(A), and he is therefore among the class of persons on whom the death penalty may be imposed under state law. In addition, the jury found beyond a reasonable doubt that three aggravating circumstances existed in Collins's case: (1) that Collins had committed a prior crime of violence; (2) that Collins had created a substantial risk of death or serious physical injury to a person other than the victim; and (3) that...