Ward v. Norris

Decision Date24 August 2009
Docket NumberNo. 05-4381.,No. 07-2015.,05-4381.,07-2015.
PartiesBruce Earl WARD, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Joseph W. Luby, argued, Kansas City, MO, Nicolas J. Trenticosta, on the brief, New Orleans, LA, for appellant.

Lauren Elizabeth Heil, AAG, argued, Kelly K. Hill, AAG, on the brief, Little Rock, AR, for appellee.

Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.

WOLLMAN, Circuit Judge.

Bruce Earl Ward was convicted of capital murder and sentenced to death. After exhausting his state court remedies, Ward petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, arguing, among other things, that he was denied his Sixth Amendment right to effective assistance of counsel at the guilt phase of his trial. The district court1 denied his petition and granted a certificate of appealability to this court to determine whether counsel was ineffective for failing to seek the recusal of the state court trial judge. While that appeal was pending, Ward's counsel moved for relief from the district court's judgment on the basis that Ward lacked capacity to proceed on his petition for writ of habeas corpus. The district court determined that the motion was a second or successive habeas petition under 28 U.S.C. § 2244 and concluded that it lacked jurisdiction to consider the motion. Ward's later motion to alter or amend judgment was also denied. The district court then certified the following issue for review: whether the district court erred in ruling that Ward's motion for relief from judgment and motion to alter or amend the judgment were second or successive petitions pursuant to 28 U.S.C. § 2244. The appeals have been consolidated, and we affirm.

I.

On August 11, 1989, Ward murdered Rebecca Doss at the Jackpot Gas Station in Little Rock, Arkansas. Before trial, Ward was evaluated at the state hospital and diagnosed with antisocial personality disorder. The supervising forensic psychologist concluded that Ward was aware of the charges against him and that he was capable of cooperating effectively with an attorney in preparation of his defense. Ward's social history was not fully developed because Ward asked the state hospital to not contact his family. On January 18, 1990, the trial court held a competency hearing, at which the state doctors who had evaluated Ward testified. Both doctors opined that Ward was competent and able to stand trial. The trial court agreed and denied Ward's counsel's request for funding to pay for an independent evaluation.

Throughout the trial, the judge denied defense counsel's requests to make sidebar objections, but allowed the prosecution to do so. A jury convicted Ward of capital murder and found that he should be sentenced to death by lethal injection. Ward was sentenced to death on October 18, 1990, and he appealed his conviction and his sentence. A divided Arkansas Supreme Court narrowly affirmed his conviction, but reversed the death sentence and remanded the case for a second sentencing trial. Ward v. Arkansas, 308 Ark. 415, 827 S.W.2d 110 (1992); Ward v. Arkansas, 308 Ark. 415, 831 S.W.2d 100 (1992) (dissent). Following that trial, Ward was again sentenced to death. Because the court reporter failed to accurately record the proceedings and failed to record a number of bench conferences, however, the record on appeal could not be settled. Ward v. Arkansas, 321 Ark. 659, 906 S.W.2d 685 (1995) (per curiam). Accordingly, the case was remanded for a third sentencing trial.

Before the final sentencing trial, defense counsel moved to stay the proceedings and requested an inpatient mental health evaluation because Ward's mental condition "ha[d] deteriorated to the point that he can not or will not cooperate with present counsel." The motion listed several demands that Ward had made on the court, including a "full blanket presidential pardon" and an absolute expungement, a new Social Security number that could not be traced to his original number, a vehicle of his choosing, a valid driver's license, and $1 million for every year he had been incarcerated. The court granted the motion for a mental health evaluation, even though Ward claimed sanity throughout the pretrial hearing and stated that "I will not say a word, I will not comply." During the hearing, Ward repeatedly stated that he did not want a life sentence. Rather, if the charges against him were not dropped, he wanted to be executed.

On October 17, 1997, Ward was sent to the Arkansas State Hospital to be evaluated by a forensic evaluation team. According to the letter from the supervising forensic psychologist and the medical director, Ward told the team that he was competent, that he would not submit to the evaluation, and that he tried to remove his attorney's request for an evaluation.2 Ward's evaluation was terminated, and the letter concluded that although Ward refused to cooperate with his evaluation, there was no indication that the uncooperativeness was due to any Axis I mental disorder.3 This observation was based on the team's brief interaction with Ward. No documents were mentioned in the letter, and the evaluation team did not render an opinion based on the record. Defense counsel submitted the letter to the court immediately before trial and did not raise any further motions or objections regarding Ward's competency to stand trial. Following the third trial, a jury recommended the death sentence. Ward was sentenced to death on October 28, 1997, and the Arkansas Supreme Court affirmed. Ward v. Arkansas, 338 Ark. 619, 1 S.W.3d 1 (1999).

Ward sought post-conviction relief under Rule 37.1 of the Arkansas Rules of Criminal Procedure, alleging a number of errors, including ineffective assistance of counsel for failing to seek the recusal of the judge who presided over the guilt phase of Ward's trial. Ward argued that the judge demonstrated partiality to the prosecution and was biased because he did not allow defense counsel to approach the bench to make objections, but did allow the state's attorney to approach. Specifically, Ward alleged:

Trial counsel was ineffective by not seeking recusal of the trial judge or a mistrial when the trial judge demonstrated partiality to the prosecution. During the course of the trial the trial judge permitted the prosecution to have side bar conferences but refused to allow the defense to have side bar conferences thereby intentionally or unintentionally communicating judicial bias in the presence of the jury.

Ward's post-conviction hearing was held on June 30, 2000. Against his counsel's advice, Ward waived his right to be present at the hearing. The only witness called was Tom Devine, Ward's counsel for the guilt phase of the trial. With respect to failing to seek the recusal of the trial judge, Devine testified that the trial judge was not defense oriented and did not appreciate the importance of preserving the record for appeal. Devine did not, however, seek recusal or a mistrial on the basis of the trial judge's bias. Ward's counsel's questions and Devine's testimony focused on an incident in which Devine's attempt to approach the bench to object to the introduction of certain evidence was denied. Devine testified that throughout the trial he was not permitted to approach the bench, whereas the prosecutor was allowed to approach. According to Devine, the trial judge reasoned that the state could not create a mistrial by approaching, but that the defense could, an analysis that Devine disagreed with. Devine further testified that he briefed this issue on direct appeal, noting that three members of the Arkansas Supreme Court had dissented from the affirmance of the conviction.

The post-conviction court denied Ward's petition. On appeal to the state supreme court, Ward renewed his argument that his trial counsel was ineffective for failing to seek the recusal of the trial judge. The court held that the issue was not properly before it, noting that Ward did not argue that the failure to seek recusal prejudiced him, but instead asked the court to reconsider the issue in light of the dissenting opinion in Ward's direct appeal. Ward v. Arkansas, 350 Ark. 69, 84 S.W.3d 863, 866 (2002). Because Ward did not present a convincing argument and did not cite any convincing legal authority, the court declined to reconsider the argument. Id. The Arkansas Supreme Court concluded that even if the issue were properly before it, the argument would still fail in light of its determination on direct appeal that no prejudice resulted from the trial court's actions. Id.

On May 27, 2003, Ward filed his petition for writ of habeas corpus in the United States District Court for the Eastern District of Arkansas, alleging that trial counsel was ineffective for failing to seek the trial judge's recusal.4 Ward's petition was filed by his state habeas counsel, acting pro bono after he discovered that Ward did not have federal habeas counsel and that the one-year statute of limitations was about to expire. The petition was described as a "placeholder" in motions made to the district court and to this court, but no amended petition was ever filed.5

On September 14, 2004, Ward's counsel moved for funds for investigation and mitigation assistance, stating that he had serious questions regarding Ward's mental health and that "[i]t may well be that Ward is actively psychotic." The motion was granted, and counsel hired an investigator/mitigation specialist. Ward, however, refused to cooperate with the investigation. In a letter to counsel, Ward stated that "there will be no life sentence, no plea bargains—I have proof they framed me and the charges will be dropped." Ward went on to write:

I've never killed anyone in my life and after a quarter of a century of having bogus murder charges encroached upon me, I'm not going to tolerate it anymore. That's why I'm...

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