Nooner v. Norris

• Decision Date: 04 April 2005
• Docket Number: No. 03-2103.,03-2103.
• Citation: 402 F.3d 801
• Parties: Terrick Terrell NOONER, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

402 F.3d 801

Terrick Terrell NOONER, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

No. 03-2103.

United States Court of Appeals, Eighth Circuit.

Submitted: January 12, 2004.

Filed: April 4, 2005.

COPYRIGHT MATERIAL OMITTED

Dale E. Adams, argued, Little Rock, AR, for appellant.

Counsel who presented argument on behalf of the appellee was Joseph V. Svoboda, Assistant Arkansas Attorney General, Little Rock, AR.

Before WOLLMAN, LAY, and BYE, Circuit Judges.

WOLLMAN, Circuit Judge.

Terrick Terrell Nooner appeals from the district court's dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254. The district court found Nooner competent to withdraw his petition and, in the alternative, held that Nooner's substantive claims were without merit. Although we conclude that the district court erred in finding that Nooner's motion to dismiss his petition was knowing and voluntary, we affirm the rejection of the petition on the merits.¹

I.

Scot Stobaugh, a college student, was washing clothes at a Little Rock laundromat at approximately 1:30 a.m. on March 16, 1993. Nooner approached Stobaugh in an apparent robbery attempt and shot him seven times at close range. A jury convicted Nooner of capital murder. During the penalty phase of his trial, the jury heard testimony from several witnesses, including Stobaugh's mother, who described the impact of Scot's death on his family. The jury also heard mitigation testimony from Nooner's stepfather. The jury found two aggravating circumstances (that Nooner had previously committed another felony, an element of which was the use or threat of violence, and that the murder was committed for pecuniary gain) and no mitigating circumstances. Nooner was sentenced to death by lethal injection.

Nooner appealed to the Arkansas Supreme Court, which affirmed his conviction and death sentence. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). Nooner then sought post-conviction relief in the state courts. The Arkansas Supreme Court affirmed the trial court's denial of post-conviction relief. Nooner v. State, 339 Ark. 253, 4 S.W.3d 497 (1999). Nooner's attorney filed a subsequently amended petition for writ of habeas corpus with the district court. While the petition was pending, Nooner, acting pro se, requested that the district court dismiss his petition. After the district court rejected this request, we directed the district court to reexamine its decision and determine whether Nooner was competent to withdraw his petition. After hearing testimony from three mental-health experts who had examined Nooner, the district court determined that Nooner was competent to withdraw his petition and granted his request. The district court also addressed the merits of Nooner's petition and concluded that his stated claims were without merit.

Nooner, through counsel, now appeals from the district court's competency determination. Nooner also raises three collateral challenges to his sentence: (1) that the admission of victim impact evidence pursuant to Arkansas' victim impact statute violated the ex post facto clause of the Federal Constitution; (2) that Arkansas' victim impact statute is constitutionally infirm; and (3) that Nooner's trial counsel rendered ineffective assistance by failing to investigate and present mitigating evidence at sentencing.

II.

We first examine the district court's factual finding that Nooner was competent to withdraw his habeas petition, which we review for clear error. Taylor v. Bowersox, 329 F.3d 963, 968 (8th Cir.2003). We evaluate Nooner's competency to withdraw his habeas petition as we would evaluate competency to waive appeal of a state post-conviction proceeding because both actions bar further federal court review. Our inquiry is two-fold. First, we examine whether the defendant has the rational ability to understand the proceedings. O'Rourke v. Endell, 153 F.3d 560, 567-68 (8th Cir.1998) (quoting Godinez v. Moran, 509 U.S. 389, 401 n. 12, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993)).² Second, we consider whether the defendant's waiver was knowing and voluntary, i.e., whether the defendant actually understood the significance and consequences of his waiver and whether the waiver was uncoerced. Id.

A.

Dr. Richart L. DeMier of the United States Medical Center in Springfield, Missouri, evaluated Nooner and found him not competent.³ Dr. DeMier based his conclusion on two subjective indicators: Nooner's disorganized speech (which presented only when Nooner discussed his legal situation) and Nooner's illogical belief that he would be exonerated by a "hidden or removed lawsuit" after he appeared before the clemency board. Dr. DeMier testified, however, that he did not hold his opinion with his usual degree of confidence because Nooner was malingering to some extent.

Dr. Charles Mallory and Dr. Oliver W. Hall III of the Arkansas State Hospital also evaluated Nooner, and both of these doctors found him competent.⁴ Dr. Mallory confirmed Dr. DeMier's impression of Nooner's strange speech patterns, and, like Dr. DeMier, he observed that they occurred only when Nooner discussed his legal situation.⁵ Dr. Mallory also noted that Nooner realized that his ideas were strange, an uncommon awareness in most delusional people. Both Dr. Mallory and Dr. Hall agreed that Nooner was malingering.

From the reports of the doctors, their testimony at the competency hearing, and its own observations, the district court concluded that Nooner was competent, finding that he was able to "make a rational choice among his options" and understood "his legal positions and options available to him."

B.

We find no clear error in the district court's determination that Nooner had the ability to understand his request to withdraw his petition. All three experts concluded that Nooner was feigning some aspects of mental illness. All three agreed that Nooner's odd speech patterns manifested only when he spoke of his legal situation. Their only disagreement concerned whether these speech patterns were evidence of a mental condition that prevented Nooner from being aware of his legal position and making rational choices among his legal options: Dr. DeMier found evidence of a delusional thought process; conversely, Dr. Mallory and Dr. Hall thought that Nooner's speech patterns were further evidence of his malingering. We conclude that the district court reasonably assessed the strengths and weaknesses of the conflicting expert testimony. See Smith v. Armontrout, 812 F.2d 1050, 1058 (8th Cir.1987).

C.

The question remains whether Nooner knowingly and voluntarily sought withdrawal of his petition. O'Rourke provides some indicia of when a waiver is not knowing and voluntary. 153 F.3d at 568. Specifically, we observed in O'Rourke that: (1) the petitioner's testimony failed to demonstrate that he fully understood the consequences of his waiver; (2) the court never explained to the petitioner the significance of his waiver; and (3) no one questioned the petitioner as to his understanding of the possible results of a successful appeal. Id. We noted that "the record as a whole demonstrates that it cannot be said with any satisfactory degree of confidence that O'Rourke's waiver of his Rule 37 appeal was knowing and voluntary." Id. at 569.

The circumstances that we identified in O'Rourke are present here. Moreover, in O'Rourke, the court specifically asked the defendant whether he desired to be executed and the defendant stated that he did. Id. at 568. See also Smith v. Armontrout, 812 F.2d 1050, 1053 (8th Cir.1987) (Smith testified that he wanted to be executed because "he hated confinement and preferred death to life imprisonment"). Here, the district court made no such inquiry, and two doctors testified that Nooner did not want to be executed.⁶ Nooner believed that withdrawing his habeas petition would trigger a series of events (the setting of an execution date and his appearance before a clemency board) that would result in a "hidden or removed lawsuit" that would exonerate him.⁷ In other words, Nooner believed, however illogically, that withdrawing his petition would lead to freedom, not death. Under these circumstances, we conclude that the record does not support the district court's finding that Nooner's withdrawal was knowing and voluntary.

III.

Although Nooner's habeas petition should not have been dismissed, we agree with the district court that the petition fails on the merits. All three issues raised in the petition were adjudicated in state court. Accordingly, we must deny the petition unless the state court disposition "resulted in a decision contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings." 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). When a state court correctly identifies the controlling Supreme Court authority, we address the "unreasonable application" clause of section 2254(d). See Colvin v. Taylor, 324 F.3d 583, 587 (8th Cir.2003). We observed in Colvin that "the Supreme Court has repeatedly stressed that an unreasonable application is different from an incorrect one." Id. We may not grant a writ of habeas corpus unless the relevant state court decision is both wrong and unreasonable. Id.

A.

Nooner first argues that the Arkansas victim impact evidence statute, as applied in his case, is an impermissible ex post facto law. U.S. Const. art. I, § 10. The Arkansas legislature enacted Ark.Code. Ann. § 5-4-602(4) in response to the United States Supreme Court's decision in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), which allowed admission of victim impact evidence during the sentencing phase...