Hill v. Lockhart, PB-C-92-240.

• Citation: 791 F. Supp. 1388
• Decision Date: 30 April 1992
• Docket Number: No. PB-C-92-240.,PB-C-92-240.
• Parties: Steven Douglas HILL, Plaintiff/Petitioner, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Defendant/Respondent.
• Court: United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas

791 F. Supp. 1388

Steven Douglas HILL, Plaintiff/Petitioner, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Defendant/Respondent.

No. PB-C-92-240.

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

April 30, 1992.

Mark Cambiano, Morrilton, Ark., for plaintiff/petitioner.

Jack Gillean, Asst. Atty. Gen., State of Ark., Little Rock, Ark., for defendant/respondent.

MEMORANDUM OPINION

HENRY WOODS, District Judge.

I. PROCEDURAL HISTORY

Petitioner Stephen Douglas Hill was convicted of capital murder and sentenced to death by a jury in Pulaski County on March 8, 1985. His conviction was affirmed by the Arkansas Supreme Court, Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1331, 94 L.Ed.2d 182 (1987). He subsequently filed a Rule 37 request for post-conviction relief, which was denied. Hill v. State, 292 Ark. 144, 728 S.W.2d 510 (1987). Review was again denied by the Supreme Court of the United States. 484 U.S. 873, 108 S.Ct. 208, 98 L.Ed.2d 159 (1987).

Hill then filed a federal habeas corpus petition asserting the following grounds:

(1) Hill's video statement given to the state police was not voluntary;

(2) the jury was permitted to ignore evidence of mitigation;

(3) the jury was permitted to consider an impermissibly vague, aggravating factor alleging prior acts of violence;

(4) the prosecuting attorney's demonstration of how Hill had reloaded the shotgun after killing Klein constituted prosecutorial misconduct;

(5) while the appeal was pending, Cox had submitted a written statement alleging that he, not Hill, had killed Klein; and

(6) counsel was ineffective.

After a full evidentiary hearing, I denied the first habeas petition in a lengthy opinion. Hill v. Lockhart, 719 F.Supp. 1469 (E.D.Ark.1989). The Court of Appeals affirmed. Hill v. Lockhart, 927 F.2d 340 (8th Cir.1991), and the Supreme Court denied certiorari, ___ U.S. ___, 112 S.Ct. 344, 116 L.Ed.2d 283 (1991). The State sought revocation of the stay of execution which I had placed in effect pending appellate review. The stay has been dissolved, and the Governor of the State of Arkansas has now set an execution date of May 7, 1992.

The petitioner Hill has filed a second successive habeas corpus petition and has contemporaneously filed an application for a stay of his execution. A second or successive writ is governed by Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts. This rule reads as follows:

(b) Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

Each of the petitioner's contentions, infra, are embraced within its ambit. For the most part he fails to allege new or different grounds for relief. He simply restates the same grounds by altered terminology. The new grounds could have been asserted in the prior petition and thus constitute an abuse of the writ.

In his second habeas petition, Mr. Hill asserts four grounds for relief:

(1) violation of due process when the District Court erred in applying the presumption of correctness to the state court findings regarding the presentation of mitigating (youthfulness) circumstances at petitioner's trial;

(2) denial of right to effective assistance of counsel when his trial attorneys allowed him to plead guilty to the two violent felonies charged after his escape from prison which were then used as aggravating circumstances during the penalty phase of the trial;

(3) denial of due process when the Arkansas Supreme Court failed to search the record for errors under state procedure, and failed to conduct adequate comparative review; and

(4) denial of due process and equal protection when the Arkansas Supreme Court denied petitioner permission to proceed with his writ of error coram nobis regarding the newly discovered evidence.

II. THE YOUTH ISSUE

Petitioner's youth was an important feature of his defense during the jury trial and in the state appellate proceedings. It was argued thoroughly at the time of the first habeas hearing and on appeal to the Court of Appeals. Petitioner claims that the jury's finding that "there was no evidence of any mitigating circumstances" was ambiguous and that the reviewing federal courts applied an incorrect presumption of correctness to the jury's finding. I find this argument to be without merit, as noted in my opinion denying the first habeas petition:

I am in agreement with the Supreme Court of Arkansas with reference to this issue. The trial court properly instructed the jury that form (2) of the verdict forms listed some mitigating factors it could consider. (Trial Tr. 95, 1720). The youth of the defendant was specifically included on this form. (Trial Tr. 84, 1765). See A.C.A. § 5-4-605(4) (1987). The jury was told it could find other mitigating circumstances, and space was provided for their listing. (Trial Tr. 1720, 84-86, 1764-65). In closing for the defense in the penalty phase, the youth of the defendant was repeatedly stressed. (Trial Tr. 1742, 1743, 1744, 1745, 1747).

Nothing in the record suggests that the jury disregarded petitioner's youth or failed to give it consideration. It was repeatedly placed before the jury in the verdict forms and closing argument. The jury simply rejected his youth as a mitigating factor, which was clearly within its province.

Hill v. Lockhart, 719 F.Supp. 1469, 1473 (E.D.Ark.1989).

The Court of Appeals made similar comments:

Hill first argues that his sentence should be set aside because the jury found no mitigating factors despite the fact that Hill was only eighteen at the time of the murder and the youth of the defendant is set out by statute as a mitigating factor to be considered in imposing the death sentence. Ark. Code Ann. § 5-4-605(4) (1987).

The jury verdict form concerning mitigating circumstances gave the jury four choices.... The jury selected the fourth option, indicating that they found no evidence of any mitigating circumstance. In rejecting Hill's argument that the jury's selection demonstrates that it improperly ignored the evidence of youth placed before it, the Arkansas Supreme Court stated:

We do not interpret the jury's action to mean that they did not consider the evidence of mitigation that was offered. Rather we find the jury determined that the appellant's youth was not a mitigating factor, as they were entitled to do, and so indicated that no mitigating circumstances were found.

Hill, 289 Ark. at 396, 713 S.W.2d at 238. We find this interpretation entirely persuasive.

Hill v. Lockhart, 927 F.2d 340, 342 (8th Cir.1991).

The first ground raised in Hill's second habeas petition, which was thoroughly argued in the first habeas petition and rejected both by this court and the Court of Appeals, is clearly in violation of Rule 9(b) set out, supra.

III. PREVIOUS CONDUCT AS AGGRAVATING CIRCUMSTANCE

The second ground raised in the present petition is that trial counsel was ineffective for allowing petitioner to plead guilty to two felonies involving force or violence prior to his capital murder trial. Petitioner now also contends that counsel should have challenged the procedure which allowed aggravating circumstances to be proved with unadjudicated conduct. He also attacks this procedure directly. These issues had not been raised previously and are therefore procedurally defaulted and are an abuse of the writ of habeas corpus. See Rule 9(b), supra.

There have been three recent definitive opinions of the U.S. Court of Appeals for the Eighth Circuit on the subject of successive habeas petitions.

In Fairchild v. Lockhart, 900 F.2d 1292 (8th Cir.1990) the Court of Appeals held that the district judge abused his discretion in entertaining Fairchild's second petition. In his second habeas petition, Fairchild made a due process claim which could have been raised in the Arkansas courts. Fairchild was likewise barred from urging the due process point in his federal habeas petition since he was unable to 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). "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 state court should be the main judicial event." Fairchild v. Lockhart, supra at 1294.

The Court of Appeals also held that "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." Id., citing 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) and Smith v. Armontrout, 888 F.2d 530, 540 (8th Cir.1989). Fairchild abused the writ because his new claim and the evidence to support it were previously available and because none of the recognized exceptions applied.

Smith v. Armontrout, contains a cogent analysis of the limitations on successive habeas petitions. Judge Arnold summarized the governing principles: "An attempt to raise claims omitted from a previous petition should be rejected as an abuse of the writ if (1) the previous omission was the deliberate choice of the petitioner or (2) the previous omission is not excusable under the cause-prejudice-innocence approach of Wainwright and Murray v. Carrier, 477 U.S. 478 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)." Smith, 888 F.2d at 545.

The Court of Appeals affirmed the refusal of the district court to entertain a second habeas petition in Wilson v. Lockhart, 892 F.2d 754 (8th Cir.1990), citing Sanders v. United States, 373 U.S. 1, 15, 83...