Fairchild v. Lockhart, PB-C-85-282.

• Decision Date: 04 April 1989
• Docket Number: No. PB-C-85-282.,PB-C-85-282.
• Parties: Barry Lee FAIRCHILD, Petitioner, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

744 F. Supp. 1429

Barry Lee FAIRCHILD, Petitioner, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Respondent.

No. PB-C-85-282.

United States District Court, E.D. Arkansas, Pine Bluff Division.

April 4, 1989.

John Wesley Hall, Jr., Little Rock, Ark., Richard H. Burr, New York City, for petitioner.

Jack Gillean, Office of the Atty. Gen., Little Rock, Ark., for respondent.

MEMORANDUM OPINION

FINDINGS OF FACT

CONCLUSIONS OF LAW

EISELE, Chief Judge.

PRIOR PROCEEDINGS AND SUCCESSOR PETITION.

Petitioner Barry Lee Fairchild was convicted of capital murder and sentenced to death. The Arkansas Supreme Court affirmed the conviction and sentence on direct appeal, Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984) cert. denied, 471 U.S. 1111, 105 S.Ct. 2346, 85 L.Ed.2d 862 (1985), and denied Mr. Fairchild substantive relief on his petition for post-conviction relief. Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985). Petitioner then sought relief via petition for habeas corpus in this Court, electing to pursue only grounds which could potentially secure him a new trial, as opposed to those which might result in a different sentence. This Court rejected the two claims advanced in petitioner's original petition, Fairchild v. Lockhart, 675 F.Supp. 469 (E.D.Ark.1987), aff'd 857 F.2d 1204 (8th Cir.1988), cert. denied, 488 U.S. 1051, 109 S.Ct. 884, 102 L.Ed.2d 1007 (1989).

Petitioner has now filed what he denominates a Successor Petition for Writ of Habeas Corpus, seeking to raise two new grounds for reversal of his conviction. The factual basis for both of these new grounds is an IQ test recently administered to petitioner, on which petitioner registered a Full Scale IQ of 63, a Verbal IQ of 69, and a Performance IQ of 61. The petition alleges that those scores are consistent with a finding that petitioner is "mentally retarded." Appended to the successor petition as supporting material are copies of the petitioner's medical records from his evaluations by both the Arkansas State Hospital and the Medical Center for Federal Prisoners, affidavits from some of petitioner's family and friends, petitioner's school records, the state court order for psychiatric evaluation, the report concerning the latest testing of petitioner's intelligence, and affidavits of his trial and habeas attorneys.

For his first ground for habeas corpus relief, petitioner alleges that he did not intelligently and knowingly waive his Miranda rights before making the two confessions which were key evidence at his trial. Essentially, petitioner claims that he did not knowingly and intelligently waive his rights because he did not understand those rights or the consequences of his waiver thereof immediately before he made those confessions. Petitioner further claims that his inability to understand the rights as read and explained to him was compounded by the stressful situation in which he found himself at the time he was interrogated, stress to which he was especially susceptible because of his retardation. The claim as pled is not that petitioner was incapable of understanding his rights under any circumstances, but rather that he did not understand them under the circumstances obtaining at the time of his confessions. See Successor Petition for Writ of Habeas Corpus, at 13-19.

As a second ground for granting the writ, petitioner alleges that the state's failure to provide a professionally adequate evaluation of petitioner's mental condition denied him due process of law. Petitioner asserts that the state failed to perform an adequate review of his mental condition, and that it also denied him the means of obtaining an adequate independent evaluation. The result of these failures, according to petitioner, is that neither he, his counsel, nor the jury was advised of petitioner's retardation. Petitioner further argues that, as a mentally retarded person, he was especially susceptible to being led to agree with statements and suggestions of the interrogating police officers. Also, it is contended that his statements are inherently more unreliable because his experiences and memory are "filtered" through his retardation. In other words, petitioner suggests that his retardation creates grounds for doubting the reliability of his confession, grounds which the jury was not allowed to consider because the state's acts and omissions prevented petitioner from developing the relevant evidence.

The respondent has moved to dismiss the successor petition on procedural grounds. Respondent asserts that this second petition constitutes abuse of the writ under Rule 9(b) of the Rules Governing Section 2254 Cases and 28 U.S.C. § 2244(b). Respondent also asserts that petitioner has procedurally defaulted under the rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

THE STATE'S MOTION TO DISMISS.

As stated above, the State raises two procedural grounds for dismissal.

A. Abuse of the Writ

The State's first contention is that Mr. Fairchild's Successor Petition for Habeas Corpus Relief constitutes an abuse of the writ. In essence, the State argues that the latest claims brought by petitioner's counsel could have been asserted in the earlier petition — and that failure to do so then should preclude review of those claims now. The Court disagrees.

First, it is important to recall the words of the United States Supreme Court in Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 1073, 10 L.Ed.2d 148 (1963):

Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged.

Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts requires that a successive petition be dismissed if "it fails to allege new or different grounds for relief and a prior determination was made on the merits...." If new and different grounds are alleged, the petition nonetheless may be dismissed "if the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ."

The Rule is essentially a codification of the principles articulated in Sanders regarding denial of successive petitions. In trying to gives examples of what it thought constituted an abuse, the Court in that case said:

If a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one ..., he may be deemed to have waived his right to a hearing on a second application.... The same may be true if ... the prisoner deliberately abandons one of his grounds at the first hearing.

Sanders at 18, 83 S.Ct. at 1078.

There has been no showing by the State that Mr. Fairchild has deliberately withheld the current claims raised in the successor petition, or that he deliberately abandoned these claims in the earlier hearing before this court.

Sanders relied on Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), where the Court laid out the limits of the writ abuse doctrine. In that case the Court held that because habeas corpus is governed by equitable principles, "a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." Id. at 438, 83 S.Ct. at 848. Thus, according to Fay, a petitioner loses his right to have a new claim considered in a successor petition only if he "understandingly and knowingly" waived the privilege of seeking to vindicate his claims in the earlier proceeding for "strategic, or tactical" reasons. Id. Again, this is not the situation here.

The burden is on the government to allege with particularity and clarity the abuse of the writ. Sanders, 373 U.S. at 17, 83 S.Ct. at 1078. Once the State has met this burden, the petitioner has the burden of answering the allegation and of proving by a preponderance of the evidence that he has not abused the writ. Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948). The petitioner may meet this burden by showing that the claim asserted for the first time in a successive petition is based on facts or legal theories of which the petitioner had no legal knowledge when making his first habeas petition. Williams v. Lockhart, 862 F.2d 155, 159 (8th Cir.1988).

The State rests heavily upon the Williams case, in which the Eighth Circuit adopted a rule first articulated by the Fifth Circuit Court of Appeals in Jones v. Estelle, 722 F.2d 159 (1983). In that case, the Court held that when a petitioner was represented by competent counsel in a prior habeas proceeding, as was Mr. Fairchild, the petitioner cannot justify the omission of claims by asserting personal ignorance because awareness of a potential claim is chargeable to his counsel, and therefore, to the petitioner. The Court recognizes this to be a strong argument. Nevertheless, it is persuaded that that argument should not control here.

In 1986, this Court appointed Mr. John Hall, petitioner's present counsel, to advise Mr. Fairchild as to what issues might be raised if he chose to pursue his habeas remedies. Mr. Hall's report was filed in September 24, 1986, and neither of the issues raised presently were included in that report. The present petition contends that these claims were not raised earlier because all the parties concerned were lead to believe, on the basis of psychiatric evaluations conducted by the state and the federal government, that Mr. Fairchild was mentally competent to waive his rights. It is further argued that the soundness of those findings have only recently been drawn into question by newly discovered facts following Mr. Fairchild's performance on an IQ test conducted late last month.

Nonetheless, the State argues that because many of the records which Mr. Hall relied upon in filing the successor petition were available to him when he made his previous report, or could have...