Fairchild v. Norris

• Decision Date: 13 May 1994
• Docket Number: No. 93-3325,93-3325
• Citation: 21 F.3d 799
• Parties: Barry Lee FAIRCHILD, Appellee, v. Larry NORRIS, Acting Director, Arkansas Department of Correction, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 799

21 F.3d 799

Barry Lee FAIRCHILD, Appellee, v. Larry NORRIS, Acting Director, Arkansas Department of Correction, Appellant.

No. 93-3325.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 14, 1993.

Decided April 8, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied May 13, 1994.

Olan Reeves, Little Rock, AR, argued, for appellant.

Steven Hawkins, New York City, argued (Elaine R. Jones, Theodore M. Shaw and Richard H. Burr, New York City, Herbert C. Rull, III, Charles W. Baker and P.A. Hollingsworth, Little Rock, AR, on brief), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, ROSS, Senior Circuit Judge, and MAGILL, Circuit Judge.

RICHARD S. ARNOLD, Chief Judge.

This petition is Barry Lee Fairchild's fourth for federal habeas corpus relief. The murder of which he was convicted occurred ten years ago, on February 26, 1983, in Arkansas. The police arrested Fairchild on March 4, 1983, and early on the morning of March 5, he made two videotaped confessions. Between the two confessions, he took the police on a tour, showing them where he and his accomplice kidnapped, raped, and killed the victim, Marjorie Mason. An Arkansas jury convicted him of felony murder and sentenced him to death on August 2, 1983. The issue in this petition is whether the evidence before the jury was sufficient for it to sentence Fairchild to death. The District Court held that the evidence at trial was insufficient for a reasonable jury to find that Fairchild possessed the requisite mental state, extreme indifference to human life, to justify the imposition of the death penalty. The District Court directed that Fairchild's sentence of death be reduced to life imprisonment without parole. The State of Arkansas, acting through the Interim Director of its Department of Correction, appeals and argues that Fairchild has not met the actual-innocence standard. We agree, and now reverse.

I.

Fairchild's case has a ten-year history in the state and federal courts. After a jury convicted him in 1983, the Arkansas Supreme Court affirmed Fairchild's 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 postconviction relief. Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985). Fairchild then filed his first petition for writ of habeas corpus in federal district court. The District Court denied that petition, Fairchild v. Lockhart, 675 F.Supp. 469 (E.D.Ark.1987), and we affirmed. Fairchild v. Lockhart, 857 F.2d 1204 (8th Cir.1988), cert. denied, 488 U.S. 1051, 109 S.Ct. 884, 102 L.Ed.2d 1007 (1989). The District Court also denied Fairchild's second petition for a writ of habeas corpus. Fairchild v. Lockhart, 744 F.Supp. 1429 (E.D.Ark.1989). We affirmed that decision as well. Fairchild v. Lockhart, 900 F.2d 1292 (8th Cir.), cert. denied, 497 U.S. 1052, 111 S.Ct. 21, 111 L.Ed.2d 833 (1990). The District Court dismissed Fairchild's third petition for habeas corpus, and we remanded for an evidentiary hearing. Fairchild v. Lockhart, 912 F.2d 269 (8th Cir.1990). The District Court then concluded that Fairchild was not entitled to relief, and Fairchild appealed that decision. Fairchild v. Lockhart, No. PB-C-85-282 (E.D.Ark., June 4, 1991). We affirmed the District Court's order, Fairchild v. Lockhart, 979 F.2d 636 (8th Cir.1992), cert denied, --- U.S. ----, 113 S.Ct. 3051, 125 L.Ed.2d 735 (1993). Finally, Fairchild filed the petition at issue in this case. The District Court directed that his death sentence be changed to life in prison without parole, Fairchild v. Norris, No. PB-C-85-282, mem. op. (E.D.Ark. Sept. 22, 1993). This Court denied summary reversal and ordered an expedited appeal. Fairchild v. Norris, 5 F.3d 1124 (8th Cir.1993). The District Court entered a later order further explaining its reasoning. Fairchild v. Lockhart, No. PB-C-85-282, Addendum to mem. op. (E.D.Ark. Sept. 24, 1993). We now address the State's appeal.

We forego a complete recitation of the facts in this opinion, because our prior opinions provide them in detail. Instead, in our analysis, we focus only on those facts relevant to the issue on appeal.

II.

A.

The rules governing writs of habeas corpus bar most successive petitions. 28 U.S.C. Sec. 2254, Rule 9(b). Therefore, because this petition is Fairchild's fourth, we must address whether the petition should be barred as an abuse of the writ, before reaching the merits of his argument. Although the government bears the burden of pleading an abuse of the writ, once it does so, the petitioner bears the burden of proving that his petition is not an abuse of the writ. Sanders v. United States, 373 U.S. 1, 10-11, 83 S.Ct. 1068, 1075, 10 L.Ed.2d 148 (1963). Unless the petitioner meets this burden, a court cannot proceed to the merits of his claim. See McCleskey v. Zant, 499 U.S. 467, 477, 111 S.Ct. 1454, 1461, 113 L.Ed.2d 517 (1991). The general bar against abusive or successive claims extends to new claims which could have been raised or developed in an earlier petition, Sawyer v. Whitley, --- U.S. ----, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), and to successive claims which raise grounds identical to those heard and decided on the merits in a previous petition, Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986).

Fairchild argues in his present petition that the evidence presented against him at trial was legally insufficient to justify the death penalty. This argument was not raised in any of his previous petitions, though it clearly could have been. We cannot reach the merits of Fairchild's contention unless he qualifies for some exception to normal abuse-of-the-writ principles.

The Supreme Court has carved out two types of exceptions to the general bar against successive writs. To qualify for the first exception, a petitioner must show cause and prejudice. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); McCleskey v. Zant, supra, 499 U.S. at 493, 111 S.Ct. at 1469-70. Simply put, this standard requires the petitioner to show cause for failing to raise the claim in an earlier petition and prejudice resulting from that failure. Fairchild cannot qualify for the cause-and-prejudice exception, and he does not argue that he can. Under the second exception, a court may decide the claim on the merits if the defendant is actually innocent of the crime itself or of the death-penalty sentence. Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993); Sawyer v. Whitley, --- U.S. ----, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). A defendant can be actually innocent of the death penalty if the evidence at trial failed to establish the existence of an aggravating circumstance or another condition of eligibility. Sawyer v. Whitley, supra, --- U.S. at ----, 112 S.Ct. at 2522. To qualify for this "actual innocence" exception, the defendant must show "by clear and convincing evidence that but for the constitutional error, no reasonable juror" would have found him eligible for the death penalty. Id. at ----, 112 S.Ct. at 2524. The inquiry is not "whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit." Herrera v. Collins, supra, --- U.S. at ----, 113 S.Ct. at 861.

The Supreme Court has considered and rejected several proposed applications of the actual-innocence exception, repeatedly emphasizing the narrowness of its scope. See Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989), and McCleskey v. Zant, supra. Moreover, the Court has "refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus." Herrera v. Collins, supra, --- U.S. at ----, 113 S.Ct. at 863, citing Murray v. Giarratano, 492 U.S. 1, 9, 109 S.Ct. 2765, 2770, 106 L.Ed.2d 1 (1989) (plurality opinion).

We consider Fairchild's claim under the actual-innocence exception, because Fairchild argues that he lacked the required mental state to be sentenced to death. The District Court agreed, finding that the evidence at trial was insufficient to support the jury's sentence of the death penalty. Therefore, we must review the evidence to determine whether Fairchild has proved by clear and convincing evidence that no reasonable juror could have found him eligible for the death penalty under accepted Eighth Amendment principles.

B.

Fairchild argues that his conviction violated the Eighth Amendment prohibition against cruel and unusual punishment, because the evidence on which the jury based its conviction was insufficient to support a finding, under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), that the death penalty was an appropriate sentence. The District Court held that Fairchild's Eighth Amendment rights were violated because the trial court's instructions to the jury did not specify that the jury had to find that Fairchild had the mental intent required when imposing a death sentence. More importantly, the District Court specifically held that no reasonable jury could have so found.

Before a defendant can be sentenced to death, our Constitution requires that he be guilty of a certain degree of culpable conduct. In Enmund v. Florida, supra, and Tison v. Arizona, supra, the Supreme Court elaborated on the necessary mental state in the felony-murder context. In Enmund, the Court held that states could not impose the death penalty on an accomplice to a felony murder who "[did] not himself kill, attempt to kill, or intend that a killing take place or that lethal force [would] be employed." Enmund v. Florida, supra, 458 U.S. at 797, 102 S.Ct. at 3377. The defendant in Enmund was the driver of a getaway car whose codefendants had entered a house to commit an armed robbery. Those...