Wooten v. Norris

• Decision Date: 26 August 2009
• Docket Number: No. 06-4068.,06-4068.
• Citation: 578 F.3d 767
• Parties: Jimmy Don WOOTEN, Petitioner-Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

578 F.3d 767

Jimmy Don WOOTEN, Petitioner-Appellant, v.Larry NORRIS, Director, Arkansas Department of Correction, Respondent-Appellee.

No. 06-4068.

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2008.

Filed: August 26, 2009.

Billy Nolas, AFPD, argued, Michael Wiseman, AFPD, Rebecca Blaskey, AFPD, on the brief, Philadelphia, PA, for appellant.

Pamela Rumpz, AAG, argued, Joseph V. Svoboda, AAG, and Kelly K. Hill, Sr., AAG, Little Rock, AR, on the brief, for appellee.

Before RILEY, BRIGHT, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Arkansas death-row inmate Jimmy Don Wooten appeals the district court's¹ denial of his 28 U.S.C. § 2254 petition for habeas relief.The district court and our court granted certificates of appealability regarding two ineffective assistance of counsel claims.Wooten alleges that his trial counsel was constitutionally ineffective during the guilt phase of his bifurcated trial for failing to argue that mental-health issues prevented Wooten from formulating the necessary mens rea for his capital offense.Wooten also alleges that trial counsel was constitutionally ineffective for failing to present mitigating evidence during the penalty-phase trial.Wooten argues that mitigation evidence regarding mental-health issues and a tragic personal history would have helped to disprove the applicability of a death-qualifying aggravator.He also argues this evidence would have swayed the jury as to the balancing of mitigating and aggravating circumstances in its ultimate decision to recommend the death penalty rather than life imprisonment.We affirm.

I.Background

The Arkansas Supreme Court set forth the details of Wooten's underlying offense as follows:

On August 5, 1994, David LaSalle, Henry Teb Porter, and Molly Porter were hiking on a forest trail near the Long Pool recreation area in Pope County when they encountered appellantJimmy Don Wooten.Wooten was riding a six-wheel all-terrain vehicle.At trial, Henry Porter testified that the group had three encounters with Wooten before he attacked them and shot David LaSalle.LaSalle died as a result of a single gunshot wound to the head.Porter also testified that Wooten shot him in the shoulder, forearm, and face, and that he was able to remove the key from Wooten's all-terrain vehicle before Wooten chased him into the woods.Molly Porter, Henry Porter's daughter, testified that Wooten shot LaSalle and shot her father and chased after him.

On the day of the shooting, Wooten reported that an assailant who looked just like him had stolen his six-wheel vehicle while he was fishing near Long Pool and had shot at him using the .22 caliber pistol he had in the vehicle.Wooten claimed that he later found the vehicle with the gun abandoned by the side of the road near his truck.A .22 caliber bullet was recovered from David LaSalle's body.It was determined that Wooten's gun fired a spent .22 caliber cartridge found at the location where LaSalle and Porter were shot.In addition, swimming trunks found at Wooten's home matched Henry and Molly Porter's description of trunks worn by the assailant.

Wooten v. State,325 Ark. 510, 931 S.W.2d 408, 409(1996)("Wooten I").Trial testimony from the surviving victims showed that, in the three encounters between the victims and Wooten prior to the shooting, Wooten's behavior was bizarre and erratic.He first passed the group at a high rate of speed without acknowledging them.He next stopped and talked to the group in a cordial fashion and gave them directions to Long Pool recreation area.He then departed, but a few minutes later he passed the group again on his ATV going "as fast as you could on that trail."Shortly thereafter, he shot at the hikers from a hidden position in the woods.Molly Porter was able to run away and hide in a rock formation, and David LaSalle died of his wounds.Henry Porter successfully chased Wooten from the scene despite the fact that Wooten shot him in the face and shoulder.

At the guilt-phase trial, Wooten's attorney, David Gibbons, pursued a theory of mistaken identity.The jury rejected this theory and found Wooten guilty of capital murder, criminal attempt to commit capital murder, and aggravated assault.Ample evidence, including eyewitness accounts from the victims and corroborating physical evidence, supported the state's case against Wooten.

Gibbons's entire penalty-phase presentation filled fewer than ten full pages of trial transcript, including his opening and closing arguments.He presented only two witnesses, an officer from the jail where Wooten was housed prior to and during the trial and one of Wooten's former co-workers.The officer testified that Wooten had no criminal record, was a "good prisoner," and could work in prison if sentenced to life imprisonment.The co-worker testified that Wooten was a good worker.In closing, Gibbons told the jury that they would "have to" find the aggravating circumstance asserted by the state, namely, that "the person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim."Gibbons told the jury he did not intend to appeal to emotion, and, in fact, he presented no evidence of personal history or testimony from family members to humanize Wooten.

The jury found the "knowingly created a great risk of death" aggravator.The jury also found several mitigating circumstances: Wooten had no prior criminal record, he had an "exemplary work ethic,"he had "more than one job skill" that he could use in prison, he had adapted to prison and was a good prisoner, and he"did not take the life of ... Molly Porter."The jury then weighed the aggravator against the mitigating circumstances and recommended the death penalty.

On direct appeal, Gibbons continued his representation of Wooten and presented three arguments to the Arkansas Supreme Court.First, he argued that Wooten's trial was tainted by a violation of Batson v. Kentucky,476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986), because the state exercised a peremptory strike to exclude the sole African-American member of the jury panel.Wooten I,931 S.W.2d at 409-10.Second, he argued that the district court erred by permitting the state to present victim-impact testimony in its initial presentation during the penalty-phase trial.Id. at 411.Gibbons asserted that such testimony could only be used as rebuttal against Wooten's mitigation evidence.Finally, Gibbons argued that the trial court erred in denying a motion to exclude identification evidence from what he characterized as an unduly suggestive lineup.Id. at 412.In an opinion issued in September 1996, the Arkansas Supreme Court rejected these arguments.Id. at 413.A separate attorney then represented Wooten for the limited purpose of filing an unsuccessful petition for certiorari with the U.S. Supreme Court.Wooten v. Arkansas,519 U.S. 1125, 117 S.Ct. 979, 136 L.Ed.2d 862(1997).

After the denial of certiorari, Wooten's wife hired attorney James O. Clawson to represent Wooten for the purpose of state post-conviction proceedings.This proved to be an unfortunate selection.As of 1990, Clawson was a licensed attorney in Oklahoma and Arkansas.In 1993, he was disbarred in Oklahoma, and in 1994, he was convicted in Oklahoma and sentenced to two years' imprisonment on two felony counts of uttering forged instruments.Upon release from prison, he moved to Arkansas.The parties dispute the extent to which his disbarment and felony convictions in Oklahoma should have automatically disqualified him from practicing law in Arkansas.It is beyond dispute, however, that Clawson had a duty to disclose these facts to the Arkansas courts and that this information would have been material not only to the court but also to persons hiring Clawson to assist in a death-penalty matter.

Clawson did not disclose his convictions or disbarment, and he continued to practice law in Arkansas for several years, during which time he represented Wooten.As such, we find it easy to adopt Wooten's characterization of Clawson's concealment as a fraud upon Wooten and upon the courts of Arkansas.As explained below, Clawson ran afoul of the law and breached the Rules of Professional Conduct on several occasions after he moved to Arkansas.His status as a felon, however, did not come to light in Arkansas until well into Wooten's post-conviction proceedings.

On April 21, 1997, Clawson filed an initial petition for post-conviction relief in the state trial court on Wooten's behalf.The petition was ten pages long, and in the second paragraph Clawson asserted that, despite the exercise of due diligence, it was not possible to complete an adequate investigation.As such, he requested "leave to amend to provide additional facts and/or claims as they are discovered."

As relevant to the issues currently before our court, Clawson alleged in subparagraph (4)(C) of the initial petition that trial counsel was ineffective for "failing to employ the services of any expert witnesses, or request funds to do so as allowed under Arkansas law."The petition did not specifically identify the missing expert witnesses as psychiatrists or psychologists; rather, the petition discussed ballistics experts.The petition did reference the U.S. Supreme Court case, Ake v. Oklahoma,470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53(1985), which dealt with the availability of state funds for a psychiatrist, but the petition cited this case in reference to funding for a ballistics expert.In fact, nothing in the petition for state post-conviction relief suggests that mental-health issues were the focus of Clawson's argument regarding ineffective assistance of trial counsel.

In subparagraph (4)(F) of the petition, Clawson alleged:

Counsel did not, in voir dire, opening statement or closing arguments, attempt to educate the jury on the issues involved in a capitol [sic] sentencing; he did not...