Starr v. Lockhart

Decision Date10 June 1994
Docket NumberNo. 92-1466,92-1466
PartiesDavid Lee STARR, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Jack Lassiter, Little Rock, AR, argued, for appellant.

Kyle R. Wilson, Little Rock, AR, argued, for appellee.

Before MCMILLIAN and BEAM, Circuit Judges, and HAMILTON, ** District Judge.

BEAM, Circuit Judge.

David Lee Starr was convicted of capital murder and sentenced to death by the State of Arkansas. After exhausting his state remedies, he filed a petition for a writ of habeas corpus under 28 U.S.C. Sec. 2554. The district court denied Starr's petition without holding an evidentiary hearing. We find that Starr was denied Sixth and Fourteenth Amendment rights at the sentencing phase of his trial. As a result, his death sentence is based on an aggravating factor which is impermissibly vague under the Eighth Amendment. We also find that Starr was sentenced in violation of his right to due process of law. We therefore reverse and remand with instructions to the district court to issue the writ.

I. BACKGROUND

David Lee Starr attacked seventy-six year-old Gladys Ford while she was sweeping her sidewalk on a June morning in 1985. He struck her on the head with an iron pipe and then "helped" her into her home, where he struck her again. The two blows shattered Mrs. Ford's skull in five places and caused her midbrain to separate from her mainbrain, rendering her unconscious. Starr proceeded to search each room of Mrs. Ford's home for money but found only a pistol. He then carried Mrs. Ford into her bedroom and raped her. Starr attempted to hide his crime by covering the trail of Mrs. Ford's blood with bedding and then fled through a window. Mrs. Ford died shortly thereafter.

Immediately after his arrest, Starr denied any involvement in Mrs. Ford's murder. Later, he asked to speak with the police. After accompanying police to the murder scene, Starr gave a statement and admitted being at the crime scene. He indicated that his girlfriend had been the murderer and told police where the murder weapon was hidden. Shortly thereafter, Starr confessed, step-by-step, to the entire crime. In addition, Starr's palm print was found next to Mrs. Ford's body, Mrs. Ford's pistol was found at the house where Starr was arrested, Starr knew intimate details of the crime, and the semen recovered from Mrs. Ford is of a type found in only eight percent of the male population which includes Starr. In short, the evidence against Starr was overwhelming.

In October of 1986, Starr was convicted of capital murder and sentenced to death. His strategy at trial, and at his sentencing, was to present evidence of diminished capacity based on his mental retardation. This strategy failed. After receiving the death sentence, Starr appealed to the Arkansas Supreme Court which affirmed his conviction and sentence. Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1578, 103 L.Ed.2d 944 (1989). Subsequently, Starr petitioned for collateral relief from his conviction and sentence under Rule 37 of the Arkansas Rules of Criminal Procedure. Starr's petition was denied. Starr v. State, 1989 WL 136313 1989 Ark. LEXIS 517 (Ark. Nov. 13, 1989) (per curiam), cert. denied, 494 U.S. 1020, 110 S.Ct. 1327, 108 L.Ed.2d 502 (1990). Starr then filed his federal petition for a writ of habeas corpus in the district court and requested an evidentiary hearing on four issues. The district court denied Starr's request for an evidentiary hearing and denied his petition. Starr appeals.

II. DISCUSSION

We must reverse the district court's denial of the writ although there is no doubt that David Lee Starr committed the acts which resulted in Mrs. Ford's death. We reverse on two grounds, either of which would independently support reversal. That being true, we note that the combination of these grounds, together with other troubling aspects of the proceedings against Starr, render Starr's death sentence infirm.

A. SIXTH AND FOURTEENTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

Starr was entitled to effective assistance of counsel at his trial, sentencing, and at his appeal of right. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984); Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985). Starr alleges that his counsel's failure to object to either the "pecuniary gain" or the "heinous, atrocious, or cruel" aggravating circumstances instruction at the sentencing stage constituted ineffective performance. We agree.

Because the facts are not in dispute, the district court, as it is permitted to do, decided this ineffective assistance claim on the record. See Chandler v. Armontrout, 940 F.2d 363, 366 (8th Cir.1991). We review questions of ineffective assistance based on an undisputed factual record de novo. See Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir.1988), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989).

Our scrutiny of defense counsel's performance is deferential. We presume counsel's conduct to be within the range of competence demanded of attorneys under like circumstances. Strickland, 466 U.S. at 687-89, 104 S.Ct. at 2064-65. However, when the appellant shows that defense counsel "failed to exercise the customary skills and diligence that a reasonably competent attorney would exhibit under similar circumstances," that presumption must fail. Hayes v. Lockhart, 766 F.2d 1247, 1251 (8th Cir.) (emphasis added), cert. denied, 474 U.S. 922, 106 S.Ct. 256, 88 L.Ed.2d 263 (1985).

In evaluating counsel's performance, we must take into consideration all the circumstances, including the fact that this was a capital sentencing proceeding. The basic concerns of counsel during a capital sentencing proceeding are to neutralize the aggravating circumstances advanced by the state, and to present mitigating evidence. The state asserted two aggravating circumstances at Starr's sentencing hearing. They were: 1) "[t]he capital murder was committed for pecuniary gain;" and 2) "[t]he capital murder was committed in an especially heinous, atrocious, or cruel manner." The jury was instructed that it must find that either one or the other of the aggravating circumstances existed beyond a reasonable doubt in order to sentence Starr to death. At the time of Starr's sentencing, both of these aggravating factors had been found to be unconstitutional. See Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (outrageously or wantonly vile, horrible or inhuman is an unconstitutionally vague aggravating circumstance); Collins v. Lockhart, 754 F.2d 258 (8th Cir.) (pecuniary gain aggravating circumstance in burglary context is impermissible double counting), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). Despite the fact that a minimum of research would have revealed these cases, counsel failed to object to either aggravating factor as unconstitutional.

Since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), constitutional concern has been directed toward whether the aggravating circumstances used by states in death penalty proceedings adequately prevent the substantial risk of arbitrary and capricious imposition of the death penalty prohibited by the Eighth Amendment. Failure to investigate the constitutionality of the aggravating circumstances under which one's client is to be put in jeopardy of the death penalty falls well below the standard of representation required for capital defendants. See Lockhart v. Fretwell, --- U.S. ----, ---- n. 1, 113 S.Ct. 838, 842 n. 1, 122 L.Ed.2d 180 (1993).

1. Pecuniary Gain Aggravating Circumstance

In order to prevail on his ineffective assistance claim, Starr must also show prejudice in addition to deficient performance. Fretwell, --- U.S. at ----, 113 S.Ct. at 842. The failure to discover that a likely meritorious objection could have been made to the pecuniary gain aggravating factor did not prejudice Starr because that factor was subsequently found to be constitutional. Perry v. Lockhart, 871 F.2d 1384 (8th Cir.), cert. denied, 493 U.S. 959, 110 S.Ct. 378, 107 L.Ed.2d 363 (1989). As the Court explained in Fretwell, the failure to object to an aggravating circumstance which, at the time of trial, had been held unconstitutional by the relevant circuit court, but which was later deemed constitutional, does not result in ineffective assistance of counsel because there has been no prejudice to the defendant. Fretwell, --- U.S. at ---- - ----, 113 S.Ct. at 843-44. In such a case, counsel's deficient performance merely results in the defendant losing a legal windfall rather than a constitutional right to which he or she was entitled. Loss of a windfall does not constitute prejudice. Id. Thus, Starr cannot show prejudice by his counsel's failure to object to the pecuniary gain instruction.

2. Heinous, Atrocious, or Cruel Aggravating Circumstance

The district court found that Starr's counsel did not perform deficiently in failing to object to the "heinous, atrocious, or cruel" aggravating circumstance, on the ground that the impermissible vagueness of that instruction was a new rule that counsel was not required to foresee. We disagree.

In 1980, six years before Starr's sentencing proceeding, the Supreme Court reversed a jury's imposition of a death sentence which was based on the aggravating circumstance that the crime was "outrageously or wantonly vile, horrible, and inhuman." Godfrey, 446 U.S. at 428-29, 100 S.Ct. at 1764-65. In Godfrey, the Court explained that such an aggravating circumstance instruction could not prevent a substantial risk of the arbitrary and capricious imposition of the death penalty. Such standardless discretion in the imposition of the...

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