Roberts v. Norris, Case No. 5:04CV00004.

• Decision Date: 13 December 2007
• Docket Number: Case No. 5:04CV00004.
• Citation: 526 F.Supp.2d 926
• Parties: Karl ROBERTS, Petitioner, v. Larry NORRIS, Director of the Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

526 F.Supp.2d 926

Karl ROBERTS, Petitioner, v.Larry NORRIS, Director of the Arkansas Department of Correction, Respondent.

Case No. 5:04CV00004.

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

December 13, 2007.

Bruce D. Eddy, Jennifer Morris Horan, Julie C. Brain, Federal Public Defender's Office, Little Rock, AR, for Petitioner.

Brent P. Gasper, Kelly K. Hill, Arkansas Attorney General's Office, Jeffrey A. Weber, Gary Eubanks & Associates, Little Rock, AR, for Respondent.

MEMORANDUM AND ORDER

RICHARD G. KOPF, District Judge.

Presenting a fascinating "exhaustion" issue, this is a case brought by Karl Douglas Roberts("Roberts") under the federal habeas corpus statute.He seeks to avoid the death penalty.Roberts raises several arguments that he did not present to the Arkansas courts.

Impressed by the fact that Roberts suffered a serious injury to his brain (with a resultant loss of cerebral tissue) when he was a child, and applying Rhines v. Weber,544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440(2005), I have decided to grant Roberts' motion to "stay and abey."¹In short, Roberts will be given an opportunity to convince the state courts that he did not competently waive his right to appeal and to seek state post-conviction relief.²If he is successful, he may then be able to "exhaust" the "unexhausted" claims he presents here by fairly presenting them to the Arkansas courts.

As a result, this federal action will be stayed and not dismissed while Roberts tries to "exhaust" his claims.Here is why.

I.Background

Much of the essential background is found in two published opinions of the Arkansas Supreme Court.SeeRoberts v. State,352 Ark. 489, 102 S.W.3d 482(2003)("Roberts I")andState v. Roberts,354 Ark. 399, 123 S.W.3d 881(2003)("Roberts II").Other information must be dredged from the records.³Omitting details that are not pertinent to the "exhaustion" issue, the following is the most significant.

A.The Murder

It is important not to forget the child that Roberts killed.Because he confessed, and that confession was corroborated, there is little doubt: (1) that Roberts abducted his 12-year-old niece, Andria Brewer, from her parents' residence when they were away; (2) that Roberts drove the child to a secluded spot despite her terrified pleas to be taken home; (3) that he told her that he was going to "fuck her"; (4) that he held her down as she struggled; (5) that he raped her (causing significant bruising to her vagina); (6) that Roberts decided to kill the child because he knew that she could identify him; (7) that he strangled her; (8) that Roberts covered up her body; and (9) that he threw her clothes away.Roberts I,102 S.W.3d at 485-86, 494-495.⁴

As a result of Roberts' confession, the investigators were able to locate the child's body in a secluded spot; Roberts' ability to tell law enforcement where to find the missing girl confirmed the truth of his confession.(Transcripts submitted at filing 28;Respondent's 15 of 22at page 2262 and Respondent's 16 of 22 at page 2305.)Physical evidence also linked Roberts to the murder.For example, Roberts' green tank top had blood on it.(Transcript submitted at filing 28;Respondent's 16 of 22at pages 2371-72).According to DNA analysis, the blood on Roberts' tank top matched the victim's blood with a very high degree of confidence.(Id. at 2378.)⁵

B. Roberts' Mental Capacity As Described By the Arkansas Supreme Court

Regarding Roberts' mental capacity, the following information is presented in the opinion of the Arkansas Supreme Court in Roberts I:

* At the time of the murder, Roberts was thirty-one years old.Roberts I,102 S.W.3d at 490.

* Testing done by a psychologist for the prosecution(Dr. Mallory) revealed that Roberts had a full-scale I.Q. of seventy-six.Id. at 487.That score placed Roberts within the borderline range of intellectual functioning.Id.

* According to defense witnesses, Dr. Lee Archer, a neurologist from the University of Arkansas Medical center, and Dr. Mary Wetherby, a neuropsychologist from Texarkana, Arkansas, Roberts had experienced damage to the frontal lobes of his brain when he was hit by a dump truck at age 12.Id.Both doctors stated that as a result of the brain injury, Roberts suffered from hallucinations.Id.Regarding the specifics of the brain injury, magnetic resonance imaging (MRI) revealed that the accident destroyed one-fifth of Roberts' right frontal lobe and damaged other parts of his brain.Id. at 499(dissent).A significant part of his right frontal lobe, as well as the medial aspect of his left frontal lobe, and part of his temporal lobe, were missing.Id.(dissent).While these defense doctors conceded that Roberts knew right from wrong, they believed that Roberts was unable to control his emotions and that lack of emotional control was directly responsible for Roberts raping and murdering the victim.Id. at 487.

* Despite the foregoing, Roberts had graduated high school, could read and write on a high school level, held the same job for the six years preceding the murder, and had a wife of ten years and a family.Id.

* Dr. Charles Mallory, a psychologist from the Arkansas State Hospital, interviewed Roberts, tested him, and reviewed his medical and psychological records.Id.Among other things, Roberts did very well on the Georgia Court Competency Test administered by Dr. Mallory, which measures if a person understands the legal system and the procedures of the trial.Id.Dr. Mallory believed that Roberts knew the difference between right and wrong and that he had the ability to conform his conduct to the law.In particular, Mallory came to these conclusions because Roberts was aware of his actions and because he took steps both before and after the killing to avoid apprehension (by driving the girl to a remote location, by raping and killing her, and then covering her body and throwing away her clothes).Id.In addition, Mallory also pointed to Roberts' statement that he decided to kill the child because he knew that she could identify him.Id.

* Dr. Reginald Rutherford, a clinical neurologist called by the prosecution, gave an opinion that Roberts' brain injury did not cause him to do what he did.Id.The doctor explained that Roberts had no dramatic behavioral problems, that Roberts was involved in a complex series of actions that culminated in the crime, and that Roberts' actions demonstrated that he appreciated the criminality of his conduct.Id.

In Roberts II, the Arkansas Supreme Court reviewed Roberts' waiver as it pertained to post-conviction relief.Roberts II,123 S.W.3d at 881-883.No additional neurologic, psychiatric or psychological information regarding Roberts' mental ... capacity is presented in that opinion.Id.

C.State Court Time-Line

A time-line, concentrating particularly on the doctors and when certain state court legal proceedings took place, is helpful when addressing issues related to the motion to "stay and abey."Therefore, the following chronology is provided.

May 15, 1999: Roberts abducted, raped and killed Andria.Roberts I,102 S.W.3d at 485.

May 17, 1999: Roberts went to the Polk County Police Station to take a polygraph examination.Id. at 498(dissent).After receiving his Miranda warnings, and about four hours after arriving at the police station, Roberts confessed.Id.Before he confessed, but after he had been told that a polygraph indicated that he had been deceptive, Roberts began to cry and told the police "he had done something terrible."Id. at 488.A police officer responded, "Get if off your chest, we'll help."Id.Roberts' confession followed.

May 18, 1999: Roberts was charged with "capital murder."(Transcript submitted at filing 28; Respondent's 1 of 22 at an unnumbered page near the beginning of the transcript and immediately following hand-written docket sheets ("Criminal Information").)

August 9, 1999 through August 12, 1999: Roberts was examined at the Arkansas State Hospital.(Transcript submitted at filing 28; Respondent's 3 of 22 at an unnumbered page near the end of the transcript ("Forensic Report" at first page of report).)The examination was primarily conducted by Dr. Mallory, a staff psychologist holding a Ph.D. Id.(at first page of report under "Sources of Information" and tenth page of report under "Conclusion").While a neurologist saw Roberts, no imaging studies were conducted.Id.(at first and second pages of report under "Sources of Information").

In addition to clinical interviews and other efforts, Mallory administered a variety of psychological tests, including an MMPI.⁶Although the MMPI results suggested bizarre thinking and experiences, depressed mood, anxiety and social avoidance, Mallory did not rely upon the results of that test.Id.(at fifth and sixth page of report under "Summary of Psychological Testing").He did not rely upon the MMPI because validity scales showed that Roberts appeared to be over-reporting psychological problems, appeared to over-endorse personal virtues, and because one scale showed "dissimulation."⁷Id.(at sixth page of report under "Summary of Psychological Testing").

Dr. Mallory found that: (1) at the time of the examination, Roberts was competent to participate in court proceedings and to assist his counsel; (2) at the time of the offense, Roberts had the capacity for purposeful conduct, an element of the offense charged; (3) Roberts had the capacity to appreciate the criminality of his behavior; and (4) Roberts had the capacity to conform his conduct to the requirements of the law.Id.(at first page of report under "Summary of Opinion").

Dr. Mallory declined to provide an Axis I or II diagnosis and listed "History of Closed Head Injury at age 12" for the Axis Ill diagnosis.Id.In that regard, Dr. Mallory noted and reviewed Roberts' medical history.Id.(under "Relevant Medical History" at the third page of the report).Dr. Mallory...