Newman v. Norris

• Decision Date: 03 February 2009
• Docket Number: Case No. 05-2107.
• Citation: 597 F.Supp.2d 890
• Parties: Rickey Dale NEWMAN, Petitioner v. Larry NORRIS, Director, Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Western District of Arkansas

597 F.Supp.2d 890

Rickey Dale NEWMAN, Petitioner v. Larry NORRIS, Director, Arkansas Department of Correction, Respondent.

Case No. 05-2107.

United States District Court, W.D. Arkansas, Fort Smith Division.

February 3, 2009.

Bruce D. Eddy, Julie Brain, Federal Public Defender, Little Rock, AR, for Petitioner.

Darnisa Evans Johnson, Mike D. Beebe, Arkansas Attorney General, Little Rock, AR, for Respondent.

MEMORANDUM OPINION AND ORDER

ROBERT T. DAWSON, District Judge.

Petitioner was convicted of capital murder by a jury in Crawford County, Arkansas in 2002. Petitioner now seeks habeas relief on 15 separate grounds. Before the Court are Petitioner's Petition for Writ of Habeas Corpus (Doc. 13) and Respondent's Response (Doc. 20). Petitioner claims that his custody and pending sentence of death violate the rights accorded to him as a United States citizen under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. He requests that this Court (1) order his unconditional release, (2) order retrial by the State of Arkansas, or (3) order resentencing by the State of Arkansas. As reflected below, the Court finds that the Petition presents both exhausted and unexhausted claims for relief. Furthermore, the Court finds that the Petition presents exceptional circumstances that warrant dismissal of only the unexhausted claims and a stay of the remaining exhausted claims. Because a stay is an extraordinary measure, the Court finds that the stay can only be predicated upon (1) the condition that Petitioner seek prompt relief on the unexhausted claims from the State of Arkansas and (2) the condition that, once relief has been exhausted in State court, he promptly return to this Court and request that the stay be lifted as to the remaining exhausted claims.

I. FACTUAL BACKGROUND

The facts of this case were set out in detail in a previously reported decision, Newman v. Arkansas, 353 Ark. 258, 106 S.W.3d 438 (2003). No defense was lodged on Petitioner's behalf; thus, the theory of the prosecution was the only set of facts heard by the jury. The State presented the theory that Petitioner went to a liquor store with Marie Cholette (the decedent) to obtain alcohol. The State theorized that Petitioner only intended to get the decedent drunk and have sex, then things went awry. After sex became a non-event, Petitioner became so enraged that he murdered the decedent and the rage continued after her death which caused him to mutilate the body. The medical examiner testified that the decedent's body was mutilated to a greater degree than he had seen in his ten years as the medical examiner in Arkansas. The decedent suffered a deep slicing wound around her neck, her nipples had been cut off (one post-mortem), she suffered stab wounds to the left lung, she was sliced open from her sternum down to her pelvic bone where her intestines were protruding and half of her liver had been cut out, part of her vagina had been removed while she was alive, and she sustained injuries to the anal area. Id. at 446.

II. PROCEDURAL HISTORY

Petitioner was charged with capital murder in the Circuit Court of Crawford County, Arkansas for the violent murder. After a capital murder trial that began and ended on June 10, 2002, Petitioner was convicted and sentenced to death.

Following the verdict, Petitioner attempted to waive his direct appeal, but this was denied by the Arkansas Supreme Court. Petitioner then attempted to have the mandatory direct appeal dismissed while it was pending, and this was likewise denied on January 30, 2003, 2003 WL 204501 (Counsel was appointed and a 7-page brief filed). On May 22, 2003, the Arkansas Supreme Court affirmed the verdict and death sentence.

On July 30, 2003, Petitioner requested to waive the appointment of post-conviction counsel and to abandon all post-conviction remedies. He further requested that an execution date be set as soon as possible. Crawford County Circuit Court found that Petitioner had entered a valid waiver of his rights to counsel and to seek post-conviction relief. However, the Arkansas Supreme Court reversed this order as it appeared that Petitioner could have been on psychotropic medication during the time he requested the waivers. The case was remanded to the circuit court and a mental health evaluation ordered.

After receiving a report from Dr. Charles Mallory, a psychologist with the Arkansas State Hospital, the Crawford County Circuit Court again accepted Petitioner's waivers and found him competent to waive his rights. On April 15, 2004, 357 Ark. 39, 159 S.W.3d 309, the Arkansas Supreme Court affirmed the competency finding.

On September 20, 2004, federal public defenders filed a motion in Crawford County Circuit Court requesting forensic DNA testing. On February 3, 2005, the Crawford County Circuit Court held an Inquiry Hearing as to legal representation of Petitioner and concluded that the federal public defenders, Bruce Eddy and Julie Brain, had not been appointed to represent Petitioner. Therefore, the court terminated Eddy and Brain from further representation of Petitioner and dismissed all pending motions (specifically the request for DNA testing) filed on behalf of Petitioner. The federal public defenders then filed a reconsideration motion regarding the request for forensic DNA testing and a request to proceed through Next-Friend Betty Moore. These were denied on May 2, 2005.

In the Arkansas Supreme Court, on September 21, 2004, the federal public defenders filed a Motion to Recall the Mandate and For a Stay of Execution. The Arkansas Supreme Court issued a stay and set a briefing schedule to assist with the decision to recall the mandate. Petitioner then requested the Arkansas Supreme Court to vacate its briefing schedule to allow him to proceed with his post-conviction appeal in Crawford County Circuit Court. The Arkansas Supreme Court granted the request to vacate the briefing schedule on December 9, 2004. On June 2, 2005, the Arkansas Supreme Court granted a pro se motion to dissolve Petitioner's stay of execution. On September 8, 2005, the Arkansas Supreme Court declared the Motion to Recall the Mandate to be moot.

III. DISCUSSION

Before a federal court will review the merits of a petitioner's habeas claims, the petitioner must normally exhaust available state judicial remedies. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). State courts should have a proper opportunity to address a petitioner's claims of constitutional error before those claims are presented to the federal court. Coleman v. Thompson, 501 U.S. 722, 729-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The exhaustion doctrine has been codified in the federal habeas statute. 28 U.S.C. § 2254(b)(1). The requirement of exhaustion of remedies is satisfied if the petitioner has "fairly presented" his claims to the state court, thus preserving those claims for federal review, by properly raising both the factual and legal bases of the claim in state court proceedings, affording that court "a fair opportunity to rule on the factual and theoretical substance of [the] claim." Krimmel v. Hopkins, 56 F.3d 873, 876 (8th Cir.1995). "In order to fairly present a federal claim to the state courts, the petitioner must have referred to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue in a claim before the state courts." McCall v. Benson, 114 F.3d 754, 757 (8th Cir.1997) (citations omitted).

However, "[t]he question of exhaustion `refers only to remedies still available at the time of the federal petition;' it requires federal courts to ask whether an applicant for federal relief could still get the relief he seeks in the state system." O'Sullivan v. Boerckel, 526 U.S. 838, 851, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (Stevens, J., dissenting) (quoting Engle v. Isaac, 456 U.S. 107, 125-26 n. 28, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)); see O'Sullivan, 526 U.S. at 848, 119 S.Ct. 1728 (Court's opinion) (agreeing with the dissent's description of the law of exhaustion). "In habeas, state-court remedies are described as having been `exhausted' when they are no longer available, regardless of the reason for their unavailability," including a petitioner's failure "to comply with the deadline for seeking state-court review or for taking an appeal." Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (citing O'Sullivan, 526 U.S. at 845, 119 S.Ct. 1728); see also Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996).

A. Mixed Petition

The United States Supreme Court has recognized that a petitioner risks losing the right to federal habeas review by application of the statute of limitations when a mixed petition is dismissed due to unexhausted claims. Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). The petition before us is a mixed petition, as it contains both exhausted and unexhausted claims.

1. Petitioner's Exhausted Claims

During the mandatory direct review, the Arkansas Supreme Court reviewed several claims identical to or closely related to Petitioner's current federal habeas claims. Specifically, Petitioner has raised the following claims:

(a) That the prosecutor committed misconduct during his closing argument to the jury at the conclusion of the guilt phase by expressing his personal opinion that Petitioner killed the victim as a sex crime (Claim 4, Section 3, Sub-Section A);

(b) That the first statement given to law enforcement on February 15, 2001, violated his constitutional rights as Petitioner lacked the capacity to knowingly and intelligently waive his Miranda rights (Claim 5, Section 2, Sub-Section A);

(c) That allowing Petitioner to appear before the jury in jail clothing and physical restraints violated his constitutional rights (Claim 6); and

(d)...