Henderson v. Sargent

• Decision Date: 19 February 1991
• Docket Number: No. 90-1550,90-1550
• Citation: 926 F.2d 706
• Parties: Wilburn A. HENDERSON, Appellee, v. Willis SARGENT, Warden, Arkansas Department of Correction, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 706

926 F.2d 706

Wilburn A. HENDERSON, Appellee, v. Willis SARGENT, Warden, Arkansas Department of Correction, Appellant.

No. 90-1550.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 26, 1990.

Decided Feb. 19, 1991.

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

Gerald Coleman, West Memphis, Ark., for appellee.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

LAY, Chief Judge.

The State of Arkansas appeals the district court's ¹ order granting a writ of habeas corpus. The petitioner, Wilburn Henderson, challenges his conviction for capital murder on the grounds that his trial counsel was ineffective in both the guilt and penalty phases of his trial. The court found that trial counsel failed to investigate and develop evidence implicating other suspects in the murder. This evidence, available to counsel at the time of trial, creates significant doubt about Henderson's guilt. The court also found that trial counsel failed to present mitigating evidence in the penalty phase of the trial that indicated Henderson had suffered from mental illness and possibly was not in complete control of his actions when he evaded police and confessed to witnessing the murder. The district court ordered the state to either retry Henderson or release him. We affirm with regard to the guilt phase claim, and therefore do not reach the penalty phase claim.

I.

Henderson was convicted of the capital murder of Willa Dean O'Neal on February 2, 1982, and was sentenced to death. ² His first trial was declared a mistrial when several jurors admitted they had seen the extensive media publicity about the case. At the second trial, the prosecution presented evidence showing that the victim was found shot to death behind the counter of the furniture store she owned and operated with her husband. The police established she was murdered between 1:40 p.m., when her husband Bob O'Neal, daughter Glenda Fleetwood, and son-in-law Ricky Fleetwood last saw her, and approximately 2:00 p.m., when a mail carrier and several customers discovered the body. The cash register was found open and at least $41 was missing.

A key piece of evidence implicating Henderson was a folded sheet of yellow paper found on the floor of the furniture store. ³ The victim's daughter testified she had not seen the paper there earlier in the day. On the paper were two telephone numbers, the name of a real estate agent, and a description of a lake cabin. Police contacted the real estate agent who stated Henderson had made an appointment to discuss the lake cabin described on the sheet of paper. Henderson did not keep the appointment. This paper was the sole physical evidence connecting Henderson with the scene of the murder.

Henderson, aware he was a suspect, fled to Houston where he was arrested by Houston police. Police by then had discovered that Henderson had taken a .22 caliber pistol out of pawn a few days before the murder, and had returned it after the murder. Ballistics evidence at trial indicated O'Neal was killed by a .22 caliber pistol, but the ballistics expert could not conclusively match the bullet to Henderson's gun.

Arkansas police traveled to Houston to question Henderson, who confessed he was at the murder scene and claimed he had seen Ollie Brown kill O'Neal. Henderson later recanted the confession and stated he confessed only because he feared the police would harm him. At trial, Henderson testified that he was in Springdale, Arkansas, at 12:00 noon the day of the murder and could not possibly have driven to the murder site in Fort Smith in time to commit the murder. His alibi was corroborated by Selena Henderson, his wife at the time, who claimed to have been with him in Springdale on that day. Henderson explained that he must have dropped the yellow sheet of paper when he was shopping in the O'Neals' store a few days before the murder.

Based on this evidence the jury found Henderson guilty of the murder. At the penalty phase, Henderson's mother testified that he was a loving son, and another witness testified that he had been doing good Christian work while in jail. Defense counsel presented no other mitigating evidence. The jury sentenced him to death.

II.

A.

In considering Henderson's petition, the district court first considered whether Henderson had procedurally preserved his claims of ineffective assistance of counsel under Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The state concedes Henderson raised his claim of ineffectiveness of counsel with regard to the penalty phase in his Rule 37 petition. ⁴ Thus, the issue of procedural bar relates only to Henderson's claim of ineffectiveness of counsel during the guilt phase.

The district court analyzed the question whether Henderson's guilt phase claim was procedurally barred under the test we established in Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir.1988). ⁵ The court first found that Henderson did not raise his guilt phase claim before the state court. [T.459] Henderson met the exhaustion requirement, however, because there were no non-futile state remedies available to him. [T.460] Rule 37.2 of the Arkansas Rules of Criminal Procedure requires Henderson to bring any claim for collateral review of his conviction "within three (3) years of the date of commitment, unless the ground for relief would render the judgment of conviction absolutely void." The types of claims that would render a conviction void are very limited, and none are raised here. See Smittie, 843 F.2d at 297-98. Thus, the district court correctly found that Henderson could not bring another petition under this rule, as the petition would be time-barred.

Before moving past the exhaustion requirement to cause and prejudice, we note that the Supreme Court "generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for procedural default." Carrier, 477 U.S. at 489, 106 S.Ct. at 2646; see also Leggins v. Lockhart, 822 F.2d 764, 768 n. 5 (8th Cir.1987), cert. denied, 485 U.S. 907, 108 S.Ct. 1080, 99 L.Ed.2d 239 (1988). Because Henderson alleges as cause the ineffectiveness of counsel in a state collateral proceeding, the state conceded at oral argument that there is no forum for review of this claim in state court. Arkansas rules prohibit a rehearing or successive petition in state collateral proceedings unless the first petition was specifically dismissed without prejudice. Ark.R.Crim.P. 37.2(b), (d); Grooms v. State, 293 Ark. 358, 737 S.W.2d 648, 649 (1987); Williams v. State, 273 Ark. 315, 619 S.W.2d 628, 629 (1981). Because Henderson's Rule 37 petition was not dismissed without prejudice, we find he substantially complied with the requirement to present this claim to the state courts.

Having met the exhaustion requirement, Henderson must show sufficient cause for not bringing his guilt phase claim before the state court. The district court found cause in the ineffectiveness of Henderson's counsel in Henderson's state collateral challenge to his conviction brought under Rule 37 (Rule 37 counsel). [T.460] In Carrier, the Supreme Court held that ineffectiveness of counsel can constitute cause. 477 U.S. at 488, 497, 106 S.Ct. at 2645, 2650. Although the Supreme Court has "declined ... to essay a comprehensive catalog of the circumstances that would justify a finding of cause," Smith v. Murray, 477 U.S. 527, 533-34, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986), this court has determined that ineffectiveness of counsel in a state collateral proceeding can constitute cause. See Simmons v. Lockhart, 915 F.2d 372, 376 (8th Cir.1990); Bliss v. Lockhart, 891 F.2d 1335, 1339 (8th Cir.1989); Stokes v. Armontrout, 851 F.2d 1085, 1092 n. 8 (8th Cir.), cert. denied, 488 U.S. 1019, 109 S.Ct. 823, 102 L.Ed.2d 812 (1988). ⁶ Ineffectiveness of appellate counsel is measured under the standard set out in Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). ⁷ Bell v. Lockhart, 795 F.2d 655, 657 (8th Cir.1986).

Under Strickland, ineffectiveness of counsel is proven when the defendant can show that "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." 466 U.S. at 686, 104 S.Ct. at 2064. Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. at 2064. Although a court must endeavor to avoid "the distorting effects of hindsight," id. at 689, 104 S.Ct. at 2065, its ultimate inquiry must be to determine "whether counsel's assistance was reasonable considering all the circumstances," id. at 688, 104 S.Ct. at 2065. Specifically, the defendant must show that counsel's performance fell below an "objective standard of reasonableness," id. at 688, 104 S.Ct. at 2064, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S.Ct. at 2068.

The district court found Henderson's trial counsel and Rule 37 counsel ineffective after hearing testimony that cast significant doubt about whether Henderson was rightly convicted. This testimony, which was not presented in any of Henderson's previous trials or appeals, demonstrated that at least three other persons, particularly Bob O'Neal, had motive, opportunity and ability to kill Willa Dean O'Neal.

The record demonstrated that the victim wanted a divorce from Bob O'Neal, and Mr. O'Neal was "mad" about it. [T.36] The victim told Glenda Fleetwood that Bob had been threatening her about the divorce. [T.37] He allegedly stated that if the victim divorced him "he'd make sure no other man ever had her." [T.37] Bob O'Neal had been intimately...