Roberts v. Payne

CAPITAL CASE KARL ROBERTS PETITIONER v. DEXTER PAYNE, Director, Arkansas Division of Correction RESPONDENT

No. 5:04-cv-00004-JM

United States District Court, E.D. Arkansas, Pine Bluff Division

May 4, 2022

ORDER

JAMES M. MOODY, JR. UNITED STATES DISTRICT JUDGE

1. Roberts seeks to expand the certificate of appealability on ten points. He mostly makes the same arguments raised in his amended petition and rejected by this Court.^[1] With constitutional claims denied on the merits, Roberts must show “reasonable jurists would find [this Court's] assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). With respect to procedurally-barred claims, he must satisfy two elements: “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether [this Court] was correct in its procedural ruling.” Id. (emphasis supplied). Roberts has made the requisite showing for a certificate of appealability on one point. His motion therefore is granted in part, but mostly denied. No. 294.

2. A certificate of appealability is not warranted on Roberts's ineffectiveness-of-trial-counsel points. The familiar Strickland standard applies. Roberts was required to demonstrate that under the circumstances, his lawyers' work was “outside the wide range of professionally competent assistance, ” and that there is a reasonable probability that, absent the alleged error, the result of the proceeding would have been different. Strickland v Washington, 466 U.S. 668, 687997 (1984). This Court denied each of these claims with 28 U.S.C. § 2254(d) deference to the Arkansas Supreme Court's denial of relief in Roberts v. State, 2020 Ark. 45, *8, 9-10 13.

Roberts repeats his argument that, because trial lawyers knew of his hallucinations, they should have pursued a schizophrenia diagnosis, or informed the experts, for presentation of that evidence in the guilt and penalty phases. Reasonable jurists however, would not debate this Court's finding under deference review that state courts “dissected the performance of counsel under the proper standard, ” and that Roberts did not demonstrate his trial lawyers' performance was constitutionally deficient. No. 287 at 66.

Roberts also argues actual prejudice resulted when his lawyers did not pursue a change of venue; he says it is debatable whether a biased juror was seated due to the alleged error. The purportedly biased juror is Vickie Denton. No. 286 at 71-74. Denton's juror questionnaire and voir dire responses, however, did not establish bias. Nos. 245-12 at 20-25 & 243-3 at 279-311. Her Rule 37 hearing testimony, offered seventeen years after the trial, did not establish bias either. No. 245-3 at 18-27. And based on overwhelming evidence of guilt and the strength of the aggravator (the capital murder was committed in an especially cruel or depraved manner), Roberts did not demonstrate a reasonable probability that, but for the lawyers' alleged venue-related error, the result at the guilt or penalty phase would have been different if the trial had been held in another county. Cox v. Norris, 133 F.3d 565, 573 (8th Cir. 1997). Reasonable jurists would not debate this Court's assessment that Roberts failed to demonstrate actual prejudice to support his ineffectiveness claim. Roberts also says this Court should have considered whether prejudice must be presumed. But he made no argument that presumed prejudice was appropriate in evaluating an ineffectiveness-of-counsel claim. In any event, a certificate is not warranted on that point. Roberts did not raise a presumed-prejudice argument in state court. And this is not one of those rare cases where pretrial publicity was so extreme that prejudice can be presumed. Skilling v. United States, 561 U.S. 358, 377-81 (2010). There was not a televised confession amounting to “kangaroo court proceedings.” Rideau v. Louisiana, 373 U.S. 723, 726 (1963). A “carnival atmosphere” did not pervade the trial. Sheppard v. Maxwell, 384 U.S. 333, 358 (1966).

3. A certificate on Roberts's procedurally defaulted juror-bias claim is not warranted either. The Arkansas Supreme Court determined the claim was defaulted because it was first raised in the Rule 37 proceeding when the state-court remedy was to request a new trial. Roberts, 2020 Ark. 45, *10. This Court found there was no cause and prejudice, or actual innocence, to overcome that default. Murray v. Carrier, 477 U.S. 478, 495-96 (1986). Reasonable jurists would not debate whether Roberts's alleged incompetency hindered his ability to raise the juror-bias claim during the post-trial period. Ervin v. Delo, 194 F.3d 908, 916 (8th Cir. 1999); Holt v. Bowersox, 191 F.3d 970, 974 (8th Cir. 1999). He was represented by counsel through the thirty-day period. Ark. R. Crim. P. 33.3(b). There was no evidence that Roberts was not able to consult with them. Ervin, 194 F.3d at 916. Reasonable jurists, moreover, would not debate whether trial lawyers' alleged error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimension.” Murray, 477 U.S. at 494 (emphasis original) (quotations omitted). Roberts says that, based on their Rule 37 testimony, seated jurors, Denton and Dennie Wornick, were biased. For the same reasons a certificate is denied on the venue-related ineffectiveness claim, Roberts did not demonstrate Denton was a biased juror. He did not show Wornick was biased either. Wornick responded in his juror questionnaire and voir dire responses that he would not automatically vote for a death sentence in a capital-murder case; he said that he could follow the law that aggravators and mitigating circumstances, particularly mental disease or defect, must be weighed in determining whether life imprisonment or a death sentence was the appropriate punishment in a capital-murder case. Nos. 245-12 at 50-56 & 243-3 at 493-518. Wornick did an about-face seventeen years later at the Rule 37 hearing, testifying that he believed the law required a death sentence if a defendant is proven guilty of premeditated murder beyond a reasonable doubt. No. 245-3 at 28-34. Roberts gave no reason to credit Wornick's Rule 37 hearing testimony over his juror questionnaire and voir dire responses. Opinions, moreover, can change with time and life experiences. And this Court must assume Wornick followed the trial court's death-penalty instructions. Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985). Reasonable jurists also would not debate whether the procedural default was overcome based on actual innocence. Roberts did not show with clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found him eligible for the death penalty based on intellectual disability. Sawyer v. Whitley, 505 U.S. 333, 336 (1992). Based on this Court's analysis of the intellectual-disability claim, No. 287 at 58-60, Roberts did not satisfy the Sawyer actual-innocence standard. And Roberts's reliance on Sasser v. Norris is misplaced; the Sasser issue was whether the petitioner's Eighth Amendment intellectual-disability claim was unavailable at the time of the state-court proceedings and therefore eligible for merits adjudication on habeas review. 553 F.3d 1121, 112427 (8th Cir. 2009).

Roberts also contends this Court, in the alternative merits analysis, erred in applying 28 U.S.C. § 2254(d) deference to the state circuit-court decision on a related ineffectiveness claim. Roberts is correct. The Arkansas Supreme Court rejected the juror-bias claim because Roberts failed to meet a state procedural requirement; habeas review was barred because Roberts did not overcome that default. Coleman v. Thompson, 501 U.S. 722, 729-32, 750 (1991). Because the claim is procedurally defaulted, any alternative merits analysis must be conducted under de novo rather than deference review. The outcome, however, is the same under either review standard. The two jurors' Rule 37 hearing testimony, offered seventeen years after the trial, did not establish that that they failed to disclose bias during voir dire; reasonable jurists would not debate that conclusion.

4. The Court also denies a certificate on Roberts's due-process claim based on a prejudicial courtroom atmosphere. Roberts repeats his argument that buttons depicting the victim worn in the courtroom created a risk that jurors would consider improper factors. He says the buttons were approved by the prosecutor, apparently based on a photograph of the county's victim services coordinator wearing one, No. 286 at 84-85. The Arkansas Supreme Court held there was “no clear error” in the circuit court's determination that Roberts's “bare allegations . . . could not sustain a finding that he was deprived of his fundamental right to a fair trial.” Roberts, 2020 Ark. 45, *11. In denying habeas relief under 28 U.S.C. § 2254(d) deference, this Court found “[v]arious spectators wore small buttons with the face of the victim, although the trial judge observed that the jury was not paying attention to them.” No. 287 at 69. Roberts contends reasonable jurists would debate whether the Arkansas Supreme Court's decision was based on an unreasonable determination of the facts thereby warranting de novo review. See 28 U.S.C. § 2254(d)(2). He references his traverse argument: The Arkansas Supreme Court incorrectly affirmed the finding that the claim was supported by only “bare allegations”; the claim was well-supported in the statecourt record, including evidence that the buttons were worn in the courtroom and may have been visible to jurors. No. 286 at 82-84. Roberts also argues this Court erroneously analyzed the...