Pickens v. Lockhart

• Decision Date: 29 October 1993
• Docket Number: No. 92-3135,92-3135
• Citation: 4 F.3d 1446
• Parties: Edward Charles PICKENS, Appellant, v. A.L. LOCKHART, Director, ADC, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1446

4 F.3d 1446

Edward Charles PICKENS, Appellant, v. A.L. LOCKHART, Director, ADC, Appellee.

No. 92-3135.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1993.

Decided Sept. 24, 1993.

Rehearing and Suggestion for

Rehearing En Banc Denied Oct. 29, 1993.

Jeff Rosenzweig, Little Rock, AR, argued, for appellant.

Olan W. Reeves, Little Rock, AR, argued, for appellee.

Before McMILLIAN and BEAM, Circuit Judges, and HAMILTON, ^* District Judge.

McMILLIAN, Circuit Judge.

Petitioner Edward Charles Pickens appeals from a final judgment entered in the United States District Court ¹ for the Eastern District of Arkansas denying his second petition of writ of habeas corpus. Pickens v. Lockhart, 802 F.Supp. 208 (E.D.Ark.1992). For reversal petitioner argues the district court erred in (1) holding that habeas review of his coerced confession claim was procedurally barred, (2) denying his due process claim that he was improperly denied his peremptory challenges, (3) denying his claim that a prospective juror was improperly excluded because of her views against the death penalty, (4) denying his claim that one of the prosecutors told a key state witness to commit perjury, (5) holding the verdict forms did not require unanimity on mitigating circumstances, (6) holding that the state resentencing statute did not violate the ex post facto clause, (7) denying his due process claim that the prosecutor made improper statements during the opening and closing arguments, (8) denying his due process claim that a witness was improperly impeached, and (9) denying his claim that the jury improperly ignored evidence of certain mitigating circumstances and that his death sentence was disproportionate to other death sentences. For the reasons discussed below, we affirm the judgment of the district court.

BACKGROUND FACTS

Petitioner was convicted of capital felony murder in 1976 and has been on death row for almost 18 years. This is his second federal habeas corpus petition. The underlying facts are not disputed. The following statement of facts is taken from this court's earlier opinion. Pickens v. Lockhart, 714 F.2d 1455, 1459 (8th Cir.1983) (Lay, C.J.). ²

On October 20, 1975, in the afternoon, petitioner, Antonio Clark and Sherwood Gooch entered a rural grocery store in Casscoe, Arkansas, armed with a sawed-off shotgun and a .22 caliber pistol. During the robbery of the store owner, the female store clerk and seven customers, two of the robbers sexually assaulted the female store clerk. After the robbers made all of the victims lie face down on the floor, they shot them. Seven of the victims were shot in the back of the head with the pistol; several of the victims were shot a second time after the shooter reloaded the pistol. Two of the victims died, including Wesley Noble, who had been shot a second time. Petitioner and Clark were dark-complexioned black men; however, Gooch was a light-complexioned, "Spanish-appearing" man. The store owner implicated petitioner and Clark in the shootings. He testified that the dark-complexioned men did the shooting, not the light-complexioned man. Another witness testified, however, that petitioner had the shotgun during the robbery. The female store clerk testified that petitioner had the pistol; however, she did not know whether he fired the shots.

Later that day Memphis police, acting on a tip, chased and stopped a stolen vehicle carrying petitioner, Clark and Gooch. Although the occupants of the car fled, petitioner and Gooch were quickly apprehended. The car contained items taken during the grocery store robbery. Petitioner was found wearing the female store clerk's wedding ring when he was arrested. When petitioner was interrogated by Memphis and Arkansas police officers, he admitted to participating in the grocery store robbery, but he identified Clark as the shooter and denied that he fired any of the shots. Petitioner was convicted of capital felony murder and sentenced to death. Proceedings on direct appeal and for state and federal post-conviction relief followed.

LITIGATION HISTORY

The following litigation history is taken from the district court's memorandum opinion. Pickens v. Lockhart, 802 F.Supp. at 210. On direct appeal the state supreme court affirmed the conviction and sentence. Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977), cert. denied, 435 U.S. 909, 98 S.Ct. 1459, 55 L.Ed.2d 500 (1978). Post-conviction relief was also denied. Pickens v. State, 266 Ark. 486, 586 S.W.2d 1 (1979), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981). Afterwards petitioner filed his first habeas corpus petition in federal district court, alleging some twenty claims for relief. The district court denied this petition. Pickens v. Lockhart, 542 F.Supp. 585 (E.D.Ark.1982) (first habeas petition). On appeal this court refused to set aside the conviction but ordered a new penalty phase proceeding because trial counsel was ineffective for failing to present evidence of mitigating circumstances and for failing to object to an erroneous instruction. Pickens v. Lockhart, 714 F.2d at 1465-69.

The first resentencing proceeding ended in a mistrial because, after the voir dire examination had begun, one of the key state's witnesses at the original trial, Harold Goacher, the store owner, informed special prosecutor Jack Lassiter that everything that he had testified petitioner had done during the robbery, Clark did, and everything that he had testified Clark had done, petitioner did. Petitioner moved for a hearing to place Goacher under oath to explore the matter, but the state trial court refused. Petitioner then filed applications for writs of mandamus, certiorari and error coram nobis in the state supreme court. All these writs were denied. Pickens v. State, 284 Ark. 506, 683 S.W.2d 614 (1985). In 1985 the resentencing jury sentenced petitioner to death. The state supreme court reversed because the state trial court had erroneously limited the proof of mitigating circumstances to a time period before the murder was committed. Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, 232, cert. denied, 484 U.S. 917, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987).

In 1988 a second resentencing jury again imposed the death penalty. The state supreme court affirmed. Pickens v. State, 301 Ark. 244, 783 S.W.2d 341, cert. denied, 497 U.S. 1011, 110 S.Ct. 3257, 111 L.Ed.2d 766 (1990). Post-conviction relief was denied. Pickens v. State, No. CR 89-94, 1990 WL 210641 (Ark.Sup.Ct. Dec. 17, 1990) (per curiam), cert. denied, --- U.S. ----, 111 S.Ct. 2044, 114 L.Ed.2d 128 (1991). Thereafter, petitioner filed his second habeas corpus petition. The district court held an evidentiary hearing and denied habeas relief. Pickens v. Lockhart, 802 F.Supp. at 211-19. This appeal followed.

COERCED CONFESSION

Petitioner first argues that the district court erred in holding that habeas review of his coerced confession claim was procedurally barred. He argues that his confession, which was admitted against him, was coerced by certain racial threats made by one of the interrogating police officers, R.D. Oliver, now deceased. Petitioner argues that his claim of coercion is supported by the 1984 affidavit of special prosecutor Lassiter in which Lassiter stated that R.D. Oliver had admitted coercing petitioner's confession. The district court did not reach the merits of petitioner's coerced confession claim and held that habeas review of petitioner's coerced confession claim was procedurally barred either because it was a successive claim, id. at 224 (order of May 22, 1992), or, in the alternative, an abuse of the writ, id. at 225 (order of May 22, 1992). Petitioner argues the Lassiter affidavit is newly discovered evidence which excused his failure to raise this claim in his first habeas petition in 1981. We disagree.

We agree with the district court that habeas review of petitioner's coerced confession claim is procedurally barred. Rule 9(b) of the Rules Governing Sec. 2254 Cases permits dismissal of a successive petition either if it fails to allege a new claim and the prior determination was on the merits or if the second petition alleges a new claim which was available at the time of the first petition. We agree with the district court that petitioner's coerced confession claim was a successive claim and not a "new" claim. In his first petition petitioner alleged that his confession was not voluntary because his fifth amendment right against self-incrimination and his sixth amendment right to counsel were violated when an interrogating officer failed "to scrupulously adhere to [his] assertion of his right under Miranda to talk to an attorney." Id. at 223 (order of May 22, 1992), citing Respondent's Exhibit G at 14-15. This claim was resolved on the merits. In the present petition, which is petitioner's second petition, petitioner alleged that his confession was not voluntary because one of the interrogating officers threatened him. Even though the underlying facts were different, the legal basis for both coerced confession claims was the same--violation of the fifth amendment by an interrogating officer. Id. at 224 (order of May 22, 1992).

A successive claim may be relitigated if the "ends of justice," such as new facts, so require. Sanders v. United States, 373 U.S. 1, 15-17, 83 S.Ct. 1068, 1077-78, 10 L.Ed.2d 148 (1963). Petitioner argues the Lassiter affidavit is newly discovered evidence which excused his failure to raise his claim that his confession was coerced by police threats in his first habeas petition. We agree with the district court that the Lassiter affidavit was not newly discovered evidence because petitioner knew of the factual basis for the claim at least by 1981, the year he filed his first habeas petition. "In fact, [petitioner] knew of the basis for the claim the day it arose because he was the person to whom the [threatening] remark by the interrogating officer was made."...