Simmons v. Lockhart

• Decision Date: 27 September 1990
• Docket Number: No. 86-1177,86-1177
• Citation: 915 F.2d 372
• Parties: Thomas Winford SIMMONS, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 372

915 F.2d 372

Thomas Winford SIMMONS, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.

No. 86-1177.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 12, 1990.

Decided Sept. 27, 1990.

Jim H. Birch, Little Rock, Ark., for appellant.

Jack Gillean, Little Rock, Ark., for appellee.

Before McMILLIAN, ARNOLD and FAGG, Circuit Judges.

ARNOLD, Circuit Judge.

This is a death-penalty case. It comes before us again on what is essentially a successive petition for federal habeas corpus. In Simmons v. Lockhart, 814 F.2d 504 (8th Cir.1987), cert. denied, 485 U.S. 1015, 108 S.Ct. 1489, 99 L.Ed.2d 717 (1988), we affirmed the District Court's denial of habeas corpus. In due course, the District Court dissolved a stay of execution that had been in effect during the habeas proceeding. Simmons, the petitioner, then filed with us a motion to recall the mandate, grant rehearing, and stay his execution in order to permit him to assert grounds for constitutional relief that had not previously been raised. We granted his request, again stayed the execution, and remanded the case to the District Court for certain findings of fact. Simmons v. Lockhart, 856 F.2d 1144 (8th Cir.1988). The District Court ¹ has now made its findings and has certified them to us. 709 F.Supp. 1457 (E.D.Ark.1989). After fully considering these findings and the arguments that Simmons poses against them, we again hold that no federal constitutional error affecting Simmons's rights has occurred in this case. Although our reasoning differs somewhat from that of the District Court, we agree with it that Simmons is not entitled to federal habeas corpus relief. Accordingly, on reconsideration, our previous judgment, affirming the dismissal of Simmons's petition, is reinstated. The stay of execution will remain in effect to allow Simmons to seek review of our holding on certiorari.

I.

The facts of the case and the details of prior proceedings are fully recounted in our two previous opinions, which we have cited above. We will not repeat them here. It will be sufficient, in order to set the stage for this opinion, to restate briefly the questions that we asked the District Court to answer on remand. These questions had to do with two grounds for habeas relief newly asserted by Simmons. The first ground is that he was convicted under a statutory scheme for murder which is so vague as to violate the Eighth Amendment. The claim is that the capital-murder and first-degree-murder statutes in Arkansas overlap impermissibly, giving the jury unbridled discretion to select between these two penalties, in violation of Eighth Amendment principles requiring certainty and reliability in death cases. This claim was raised in the District Court in Simmons's original habeas petition, but his appointed counsel did not press it on appeal to this Court. We instructed the District Court to determine the reasons for this failure to press the issue. We stated: "[The District] Court should make findings as to why previous counsel failed to press the statutory-overlap issue on appeal, and decide whether that choice constituted ineffective assistance of counsel.... The District Court must determine ... why counsel failed to raise the issue, and whether a reasonably competent lawyer could have made such a decision." 856 F.2d at 1145-46.

The second issue has to do with a claim of ineffective assistance of counsel at Simmons's trial in the Circuit Court of Crawford County, Arkansas. In our previous opinion, we described this issue as follows:

Next Simmons contends he was denied the effective assistance of counsel because his trial attorneys were hampered by a conflict of interest. One of the lawyers who represented Simmons also represented one of the State's key witnesses against Simmons, James Davis, on an unrelated matter. Simmons claims that because the lawyer had earlier represented Davis, the lawyer could not vigorously cross-examine the witness on matters that had come to his attention through the attorney-client relationship.

Id. at 1146. With respect to this issue, we directed the District Court to make findings of fact as to why it had not been raised before the Arkansas courts, and, in addition, as to why it had not been raised in Simmons's original habeas petition. We explained that the attempt to raise the issue now would "constitute[ ] an abuse of the writ, ... unless Simmons can show a good enough reason why this issue was not presented before." Ibid (citation omitted).

We further directed the District Court, if it should find that Simmons is not procedurally barred from pressing this new issue at this time, to decide the legal questions that would then be raised:

Should [the District] Court find that Simmons clears [these] ... procedural hurdles, then it should resolve whether Simmons's lawyer was faced with an actual conflict of interest that prevented him from vigorously cross-examining Davis on his military record, psychiatric problems, and any deals Davis made with the prosecution. If an actual conflict is found, then Simmons was afforded ineffective assistance of counsel at his trial, and is entitled to habeas relief. In such a conflict-of-interest situation, prejudice is presumed.

Ibid (citations omitted).

On remand, the District Court held an evidentiary hearing and filed a thorough and comprehensive opinion, setting out its findings on the issues that we had posed. As to the statutory-overlap question, it held that Simmons's appointed counsel's failure to press it on the initial appeal to this Court was not ineffective assistance of counsel. It was, rather, simply the exercise of a reasoned professional judgment to limit the appeal to issues that counsel considered more likely to succeed. The District Court, citing Stokes v. Armontrout, 851 F.2d 1085, 1088 (8th Cir.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 823, 102 L.Ed.2d 812 (1989), held that "[t]he selective process of winnowing and focusing is the hallmark of effective appellate advocacy." 709 F.Supp. at 1463 (internal quotations omitted). Accordingly, there was no reason to allow new counsel to press the statutory-overlap issue now. It had been, in effect, competently waived by counsel on the previous appeal.

As to the other question, the alleged conflict of interest arising from Simmons's trial counsel's previous representation of a prosecution witness on an unrelated matter, the District Court held Simmons procedurally barred. His previous appointed counsel had not raised this issue in the state courts in a post-conviction proceeding under Ark.R.Crim.P. 37 (now repealed), and his failure to do so did not amount to the ineffective assistance of counsel. Further, according to the District Court, to entertain the argument now would amount to an abuse of the writ. The argument had not been included in Simmons's original habeas petition, and counsel's decision not to include it was a reasonable one, not amounting to a violation of the Sixth Amendment right to representation by effective counsel. In the alternative, the District Court found that there was no actual conflict of interest on the part of Simmons's trial counsel. The fact that counsel had previously represented a prosecution witness did not at all affect the vigor of cross-examination. No actual adverse effect was present, and therefore there was no real conflict of interest. Accordingly, the District Court recommended that all relief be denied.

II.

We discuss first the statutory-overlap question. We agree with the District Court and adopt its reasoning on this point. Certainly previously appointed counsel might have chosen to press this issue on appeal, and such a choice would have been reasonable. It does not follow that the opposite choice--to drop the issue--was unreasonable. Law is an art, not a science, and many questions that attorneys must decide are questions of judgment and degree. Among the most difficult are decisions as to what issues to press on appeal. Lawyers have often been told that it is not good strategy to argue on appeal every conceivable point contained in a record. We believe Simmons's habeas counsel, in deciding not to argue the statutory-overlap question, was merely following this advice. It is possible to criticize his choice in hindsight. Perhaps a choice to press the issue would have been better. But we are dealing, after all, with fallible human beings, and a demand for perfection, even in death-penalty cases, cannot be met. The statutory-overlap issue was an arguable one, but certainly by no means ironclad, and our sense is that the decision to omit it was reasonable. The chances that the argument would succeed were not great, though they were greater than negligible, and we cannot say that counsel was ineffective because he decided to concentrate his time and energy on other points.

It is worth noting, in addition, that even if Simmons were to succeed on the merits of this question, and we were to hold the Arkansas capital-sentencing scheme unconstitutional on the overlap ground asserted, Simmons would still be under sentence of death. He has been convicted of killing four people and is under four separate death sentences. The statutory-overlap issue pertains only to three of these death sentences--cases in which the first-degree-murder instruction that Simmons claims is indistinguishable from the capital-murder instruction was given. The allegedly offending instruction was not given in the fourth case, and the death sentence in this case would stand, whatever resolution we made of the overlap issue.

III.

The conflict-of-interest question is another matter. The parties have expended much time and energy--and we understand why--debating whether the argument is procedurally barred, either by the failure to raise it in the state courts, or by the failure to include it in the original habeas petition. We deem it appropriate and prudent to resolve...