Fairchild v. Lockhart, 89-1552

• Decision Date: 25 June 1990
• Docket Number: No. 89-1552,89-1552
• Parties: Barry Lee FAIRCHILD, Appellant, v. A.L. LOCKHART, Director, Department of Correction, State of Arkansas, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1292

900 F.2d 1292

Barry Lee FAIRCHILD, Appellant, v. A.L. LOCKHART, Director, Department of Correction, State of

Arkansas, Appellee.

No. 89-1552.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 15, 1989.

Decided April 17, 1990.

Opinion on Denial of Rehearing and Rehearing En Banc June 25, 1990.

Richard H. Burr, New York City, for appellant.

Jack Gillean, Little Rock, Ark., for appellee.

Before ARNOLD and MAGILL Circuit Judges, and ROSS, Senior Circuit Judge.

ARNOLD, Circuit Judge.

Barry Lee Fairchild is under sentence of death for the 1983 murder of Marjorie Mason. His conviction was affirmed on direct and collateral review by the Arkansas Supreme Court. He then petitioned the federal courts for habeas corpus relief. His petition was denied, and we affirmed. Fairchild v. Lockhart, 857 F.2d 1204 (8th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 884, 102 L.Ed.2d 1007 (1989).

Fairchild has now filed a second petition. Originally, he offered two new grounds for relief. First, he claimed that his alleged mental retardation prevented an intelligent and knowing waiver of his constitutional rights before he made the video-taped confessions used against him at trial. Therefore, he argued, the confessions were inadmissible. The District Court rejected this claim, and Fairchild has abandoned it on appeal. We shall therefore not discuss it. Second, Fairchild claimed that Arkansas's failure to discover his mental retardation rendered its pre-trial evaluation of his mental condition professionally inadequate. This failure, he continues, denied him due process of law because it prevented his jury from fully considering evidence of his mental retardation in their evaluation of whether to believe his confessions.

This second claim is the only one now before us. In a thorough opinion, the District Court ¹ analyzed and rejected both of Fairchild's new contentions. ² Fairchild v. Lockhart, No. PB-C-85-282, slip op., 1989 WL 48894 (E.D.Ark. April 4, 1989). This is Fairchild's appeal from the District Court's dismissal of his habeas petition. We affirm that dismissal on both procedural and substantive grounds. Fairchild's successive petition fails because he is procedurally barred from forwarding his new claim, and because it abuses the writ of habeas corpus. Fairchild's petition also fails on the merits: he received due process of law.

I.

Fairchild's second habeas petition stumbles at the threshold; he cannot overcome the procedural obstacles facing his new claim. First, the issue raised in Fairchild's successive petition is procedurally barred. He failed to make his due-process claim in the Arkansas courts and is precluded from doing so now under their procedural rules. Fairchild is likewise precluded from arguing this point in his federal habeas petition--unless he can show "cause" for his procedural default in the state courts and "prejudice" resulting from that default. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). We find no objective cause in this record to excuse Fairchild's default. Nor is there any basis for an exception to the Wainwright rule.

The District Court erred in holding that the lack of discovered evidence about Fairchild's retardation at the time of his direct appeal and state collateral attack satisfied the cause requirement. Evidence of Fairchild's mental condition was available at trial (and after) from his school records, and there is no reason why the same evidence now urged in his favor could not have been offered then. Not discovering that information was counsel's omission, and there is no claim that this omission rises to the level of ineffective assistance of counsel. Compare Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (constitutionally ineffective assistance of counsel establishes cause).

There are excellent reasons for the rule that claims not properly preserved in the state courts are normally not open on habeas. The trial in the state court should be the main judicial event. "Society's resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens." Wainwright, 433 U.S. at 90, 97 S.Ct. at 2508. Because Fairchild has no legally sufficient cause to excuse his failure to argue his new contention before the Arkansas courts, he is barred from arguing the point now.

Fairchild's successive petition is also an abuse of the writ. While 28 U.S.C. Sec. 2244(b) clearly contemplates that there can be legally sufficient reasons to entertain a successive petition, no such reason has been offered here. The District Court relied on the fact that Fairchild's life was at stake, and his mental capacity at issue, in agreeing to consider his successive petition. That is not the law. In death-penalty cases, as in all cases, it is, with some exceptions, an abuse of the Great Writ to assert new grounds for relief that were available at the time of an initial petition. Woodard v. Hutchins, 464 U.S. 377, 380, 104 S.Ct. 752, 753, 78 L.Ed.2d 541 (1984) (per curiam) (Powell, J., concurring, joined by a majority of the Court); Smith v. Armontrout, 888 F.2d 530, 540 (8th Cir.1989).

Fairchild's case does not fit within any of the narrow exceptions allowing such a previously available claim to be raised in a successive petition. Our cases teach that the procedural-bar "cause" and "prejudice" analysis of Wainwright, and the "factual innocence" exception to that analysis, also apply to a state's abuse-of-the-writ defense. Harper v. Nix, 867 F.2d 455 (8th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3194, 105 L.Ed.2d 702 (1989); Smith, 888 F.2d at 541. But, as we indicated above, the Wainwright analysis and its exceptions offer no ground for Fairchild's new contentions. Moreover, Fairchild was represented by counsel in his first petition, and there is no claim of ineffective assistance at any stage in the state or federal review of his conviction. (Indeed, the same lawyer who brought Fairchild's first petition is one of counsel for him in this proceeding.) Because Fairchild's new claim and the evidence to support it were previously available, and because none of the recognized exceptions applies, considering the new claim now would abuse the writ. Williams v. Lockhart, 862 F.2d 155 (8th Cir.1988).

II.

What we have said up to now is sufficient to dispose of the case on procedural grounds. We choose nevertheless to discuss the merits also. This case will no doubt go to the Supreme Court after it leaves us, and a discussion by us of the merits may aid full appellate review. We briefly restate Fairchild's argument for the convenience of the reader: If the jury that tried him had known what is now known about his mental retardation, it would or might have disbelieved his confessions, and might therefore have acquitted him. The argument is not that the confessions were wrongly admitted, but rather that a fully informed jury would have given them less weight. This conclusion follows, so his argument runs, because of the deficiencies of retarded individuals: they are unreliable reporters because they are suggestible, and because their perceptions are filtered through (and clouded by) their mental retardation. This state of affairs, we are told, violates the Due Process Clause of the Fourteenth Amendment. The argument suffers from multiple infirmities, any one of which would be fatal.

The District Court relied on three factual findings in rejecting this due-process claim. In the first place, the Court found that Fairchild had failed to prove that Arkansas's pre-trial evaluation of his mental condition was not "professionally adequate." Second, the Court found that Fairchild was not in fact retarded. And finally, the Court credited Fairchild's confessions. That is, relying upon corroborating facts and circumstances, the District Court concluded that the appellant's confessions were reliable. The finding of reliability effectively removed the precondition--shaken confidence in his trial's outcome--of Fairchild's due-process challenge. Because it believed that there was no significant chance that a reasonable fact-finder would doubt the core of truth in Fairchild's confessions, irrespective of his mental condition, the District Court held that Fairchild received due process. Fairchild v. Lockhart, No. PB-C-85-282, slip op. 15-16.

Fairchild argues that the District Court clearly erred in finding that he was not retarded, and that Arkansas's pre-trial mental evaluation of him was adequate. Relying on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), Fairchild argues further that the Court erred as a matter of law in holding that he received due process. He claims he did not, because Arkansas's constitutionally inadequate pre-trial mental evaluation deprived his jury of evidence that he was retarded. We review the first two findings, as factual determinations, under the clearly erroneous standard. We review the District Court's holding on Fairchild's due-process rights de novo.

We affirm the District Court's finding that Fairchild was not retarded in 1983, and is not retarded now. We cannot say this conclusion was clearly erroneous. On the contrary, the evidence here was mixed. The appellant has undergone a vast array of tests to ascertain his competence. The scores on those tests are contradictory; with 70 serving as the threshold of retardation, his IQ has been scored as low as 60 and as high as 87. And even if all the tests agreed, that would not settle the question. Being retarded means more than scoring low on IQ tests. It also means functioning ineffectively in society. The District Court correctly noted that here the evidence weighs against finding that the appellant is retarded. His interactions with others undermine such a claim. For example, the trial court allowed Fairchild to act as co-counsel...