Wooten v. State

• Decision Date: 02 December 2010
• Docket Number: No. CR 95–975.,CR 95–975.
• Citation: 370 S.W.3d 475,2010 Ark. 467
• Parties: Jimmy Don WOOTEN, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2010 Ark. 467

370 S.W.3d 475

Jimmy Don WOOTEN, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 95–975.

Supreme Court of Arkansas.

Dec. 2, 2010.

Billy H. Nolas, Michael Wiseman, and Rebecca Blaskey, Federal Community Defender Office Eastern District of Pennsylvania, and J. Blake Hendrix, Little Rock, for movant.

Dustin McDaniel, Att'y Gen., by: Pamela A. Rumpz, Ass't Att'y Gen., for appellee.

JIM GUNTER, Justice.

Wooten asks this court to recall our mandate and allow him to pursue a second Rule 37 proceeding. He asserts that he meets this court's stringent criteria for providing this extraordinary relief. Because this is a criminal appeal in which the death penalty has been imposed, and the petitioner is asking this court to recall our mandate, we have jurisdiction pursuant to Ark. Sup.Ct. R. 1–2(a)(2) & 5–3(d). We grant the motion to recall the mandate.

Wooten was convicted of capital murder, criminal attempt to commit capital murder, and aggravated assault, and was sentenced to death, thirty years, and six years, respectively. This court affirmed those convictions in Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996) (Wooten I ). Wooten then hired James Clawson to represent him in postconviction proceedings. On April 21, 1997, Clawson filed on Wooten's behalf a petition for postconviction relief that was not verified by Wooten. This petition was denied by the circuit court, but this court reversed and remanded for appropriate written findings and an evidentiary hearing if necessary pursuant to Rule 37.3. Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999) (Wooten II ). In June 2000, the circuit court again denied postconviction relief, and no appeal from that order was filed by Clawson. James Clawson surrendered his law license on June 7, 2001. In re Clawson, 49 S.W.3d 99 (Ark.2001) (per curiam). Alvin Schay was then appointed to represent Wooten, and we granted Wooten's motion for rule on clerk in his appeal of his denial of postconviction relief. See Wooten v. State, 347 Ark. 370, 64 S.W.3d 708 (2002) (Wooten III ). This court subsequently affirmed the denial of postconviction relief in Wooten v. State, 351 Ark. 241, 91 S.W.3d 63 (2002) (Wooten IV ).

On October 2, 2003, Wooten filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Arkansas, alleging that both his convictions and sentence were in violation of various provisions of the United States Constitution. Specifically, Wooten asserted that his trial counsel had been constitutionally ineffective for (1) failing to argue, during the guilt phase of his trial, that mental health issues prevented him from formulating the necessary mens rea for capital murder, and (2) failing to present certain mitigating evidence during the sentencing phase of his trial. In an opinion issued September 19, 2006, the district court found Wooten's arguments without merit and denied the petition for writ of habeas corpus. Wooten v. Norris, No. 5:03cv00370, 2006 WL 2686925 (E.D.Ark. Sept. 19, 2006).

In March 2007, attorney J. Blake Hendrix filed a motion with this court to appear as counsel and also tendered a motion to recall the mandate in Wooten's case. We denied the motion to appear as counsel on April 26, 2007, and made no mention of the tendered motion to recall the mandate. No further action was taken on the case in this court until October 2009; meanwhile, the judgment of the federal district court was affirmed by the Eighth Circuit Court of Appeals on August 26, 2009. Wooten v. Norris, 578 F.3d 767 (8th Cir.2009). In its opinion, the Eighth Circuit noted that the district court had declined to stay the federal case and hold federal proceedings in abeyance pending further exhaustion of state remedies. The court also found that Wooten's claims in his federal appeal were procedurally defaulted because they had not been presented to the state courts. In sum, the Eighth Circuit found that, while Wooten may be entitled to relief in the form of a recall of the mandate from this court, “this is a case for which the federal courts can provide no relief because of post-conviction counsel's failure to exhaust the allegedly meritorious claims.” Id. at 785. The court concluded: “Because Wooten's Motion to Recall and Reopen is not a proper vehicle for exhausting state remedies in Arkansas or creating a state record that might support federal habeas claims, it was proper for the district court to reject his Rule 59(e) motion and his motion to stay federal proceedings.” Id. at 786.

On October 1, 2009, Wooten's current counsel, which includes three out-of-state attorneys from the Federal Community Defender Office of the Eastern District of Pennsylvania, and local attorney J. Blake Hendrix, filed an application for permission to be appointed as counsel in Wooten's case. Counsel also tendered a “Motion to Clarify Status of Motion to Recall the Mandate.” We granted counsels' application for permission to be appointed as counsel on Wooten's behalf on November 5, 2009, and on December 10, 2009, we denied the motion to recall the mandate without prejudice and with the right to refile a motion to recall the mandate. On December 28, 2009, another motion to recall the mandate was filed on Wooten's behalf, and this court decided to submit the motion as a case, which is now presently before the court.

Wooten asserts that this court should recall the mandate in his case and allow him to pursue a second Rule 37 proceeding. He claims that his case satisfies the criteria for recalling the mandate under this court's precedents in Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003), Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006), and Collins v. State, 365 Ark. 411, 231 S.W.3d 717 (2006). In Robbins, the defendant was convicted of capital murder and given the death sentence. Nearly two years after this court affirmed his conviction and sentence, Robbins petitioned this court to reopen his case and alleged that a mistake was made by this court in failing to recognize that the jury was inconsistent in its completion of Verdict Form 2, which deals with mitigating circumstances. According to Robbins, this court reversed a death sentence and remanded for resentencing for precisely the same inconsistency in Verdict Form 2 in Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). This court explained that we will recall a mandate and reopen a case only in extraordinary circumstances, and in Robbins's case, there were three specific factors that prompted the decision to recall the mandate: (1) a decision had been cited to the court which was on all fours legally with the issue presented; (2) the dismissal of proceedings in federal court because of unexhausted state-court claims; (3) the appeal was a death case that required heightened scrutiny. The Robbins opinion stressed that the situation was “one of a kind, not to be repeated.” 353 Ark. at 564, 114 S.W.3d at 223.

Wooten argues that the same three considerations enumerated in Robbins require a finding of “extraordinary circumstances” and a recall of the mandate in his case. First, he argues that, like Robbins, he has “arguably meritorious” claims that have not been reviewed by this court, and he has cited this court to a decision, namely the Eighth Circuit opinion discussed above, that shows he has compelling claims for relief. Second, he, like Robbins, was unable to obtain a review of his claims in federal court because his claims had not been addressed in state court. And third, his case, like Robbins, is a death-penalty case where heightened scrutiny is required.

We find that Wooten has misconstrued the meaning of the Robbins criteria for recalling the mandate. First, Wooten misunderstands the first factor, which is a case cited to this court that is “on all fours legally with the issue presented.” Wooten cites the Eighth Circuit opinion as fulfilling this requirement, but Robbins was referring to a recent case handed down by this court, prior to the affirmance of Robbins's case, that is directly contrary to Robbins's death sentence. See Robbins, 353 Ark. at 565, 114 S.W.3d at 223. Even the Eighth Circuit opinion explained that, in Robbins, this court “determined that it had the inherent authority and jurisdiction to recall its own mandate in a death-penalty case where a defendant alleged an error that was identical to an error in another capital case for which the same court had recently granted relief.” Wooten v. Norris, 578 F.3d at 783 (emphasis added).

Wooten has also misconstrued the second criteria in Robbins, which is that federal proceedings have been dismissed because of unexhausted state claims. Robbins's habeas corpus petition was dismissed by the federal district court without prejudice on the basis that Robbins had not exhausted his state remedies, specifically noting that state courts had not examined his inconsistency-in-the-verdicts argument under Willett.¹ In the present case, however, the federal district court denied Wooten's request to hold federal proceedings in abeyance, and the Eighth Circuit affirmed both that decision and the denial of Wooten's petition for writ of habeas corpus. So Wooten has clearly failed to meet the second criteria in Robbins. Indeed, the only criteria that Wooten has successfully met under Robbins is that his case is a death-penalty case that requires heightened scrutiny.

In Lee, the defendant was convicted of capital murder and sentenced to death. His conviction and sentence were affirmed by this court, and we also affirmed the circuit court's later denial of Lee's petition for postconviction relief under Rule 37. Lee then filed for habeas corpus relief in federal court, and the federal district court determined that it was necessary to hold the petition in abeyance to allow Lee to seek additional recourse in state court. This decision was based on the district court's concern over possible impairment of Lee's counsel during the ...