Full opinion text
MEMORANDUM OPINION FINDINGS OF FACT CONCLUSIONS OF LAW EISELE, Chief Judge. PRIOR PROCEEDINGS AND SUCCESSOR PETITION. Petitioner Barry Lee Fairchild was convicted of capita] murder and sentenced to death. The Arkansas Supreme Court affirmed the conviction and sentence on direct appeal, Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984) cert. denied, 471 U.S. 1111, 105 S.Ct. 2346, 85 L.Ed.2d 862 (1985), and denied Mr. Fairchild substantive relief on his petition for post-conviction relief. Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985). Petitioner then sought relief via petition for habeas corpus in this Court, electing to pursue only grounds which could potentially secure him a new trial, as opposed to those which might result in a different sentence. This Court rejected the two claims advanced in petitioner’s original petition, Fairchild v. Lockhart, 675 F.Supp. 469 (E.D.Ark.1987), aff’d 857 F.2d 1204 (8th Cir.1988), cert. denied, 488 U.S. 1051, 109 S.Ct. 884, 102 L.Ed.2d 1007 (1989). Petitioner has now filed what he denominates a Successor Petition for Writ of Ha-beas Corpus, seeking to raise two new grounds for reversal of his conviction. The factual basis for both of these new grounds is an IQ test recently administered to petitioner, on which petitioner registered a Full Scale IQ of 63, a Verbal IQ of 69, and a Performance IQ of 61. The petition alleges that those scores are consistent with a finding that petitioner is “mentally retarded.” Appended to the successor petition as supporting material are copies of the petitioner’s medical records from his evaluations by both the Arkansas State Hospital and the Medical Center for Federal Prisoners, affidavits from some of petitioner’s family and friends, petitioner’s school records, the state court order for psychiatric evaluation, the report concerning the latest testing of petitioner’s intelligence, and affidavits of his trial and habeas attorneys. For his first ground for habeas corpus relief, petitioner alleges that he did not intelligently and knowingly waive his Miranda rights before making the two confessions which were key evidence at his trial. Essentially, petitioner claims that he did not knowingly and intelligently waive his rights because he did not understand those rights or the consequences of his waiver thereof immediately before he made those confessions. Petitioner further claims that his inability to understand the rights as read and explained to him was compounded by the stressful situation in which he found himself at the time he was interrogated, stress to which he was espe-dally susceptible because of his retardation. The claim as pled is not that petitioner was incapable of understanding his rights under any circumstances, but rather that he did not understand them under the circumstances obtaining at the time of his confessions. See Successor Petition for Writ of Habeas Corpus, at 13-19. As a second ground for granting the writ, petitioner alleges that the state’s failure to provide a professionally adequate evaluation of petitioner’s mental condition denied him due process of law. Petitioner asserts that the state failed to perform an adequate review of his mental condition, and that it also denied him the means of obtaining an adequate independent evaluation. The result of these failures, according to petitioner, is that neither he, his counsel, nor the jury was advised of petitioner’s retardation. Petitioner further argues that, as a mentally retarded person, he was especially susceptible to being led to agree with statements and suggestions of the interrogating police officers. Also, it is contended that his statements are inherently more unreliable because his experiences and memory are “filtered” through his retardation. In other words, petitioner suggests that his retardation creates grounds for doubting the reliability of his confession, grounds which the jury was not allowed to consider because the state’s acts and omissions prevented petitioner from developing the relevant evidence. The respondent has moved to dismiss the successor petition on procedural grounds. Respondent asserts that this second petition constitutes abuse of the writ under Rule 9(b) of the Rules Governing Section 2254 Cases and 28 U.S.C. § 2244(b). Respondent also asserts that petitioner has proeedurally defaulted under the rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). THE STATE’S MOTION TO DISMISS. As stated above, the State raises two procedural grounds for dismissal. A. Abuse of the Writ The State’s first contention is that Mr. Fairchild’s Successor Petition for Habeas Corpus Relief constitutes an abuse of the writ. In essence, the State argues that the latest claims brought by petitioner’s counsel could have been asserted in the earlier petition—and that failure to do so then should preclude review of those claims now. The Court disagrees. First, it is important to recall the words of the United States Supreme Court in Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 1073, 10 L.Ed.2d 148 (1963): Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged. Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts requires that a successive petition be dismissed if “it fails to allege new or different grounds for relief and a prior determination was made on the merits.... ” If new and different grounds are alleged, the petition nonetheless may be dismissed “if the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.” The Rule is essentially a codification of the principles articulated in Sanders regarding denial of successive petitions. In trying to gives examples of what it thought constituted an abuse, the Court in that case said: [I]f a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one ..., he may be deemed to have waived his right to a hearing on a second application.... The same may be true if ... the prisoner deliberately abandons one of his grounds at the first hearing. Sanders at 18, 83 S.Ct. at 1078. There has been no showing by the State that Mr. Fairchild has deliberately withheld the current claims raised in the successor petition, or that he deliberately abandoned these claims in the earlier hearing before this court. Sanders relied on Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), where the Court laid out the limits of the writ abuse doctrine. In that case the Court held that because habeas corpus is governed by equitable principles, “a suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks.” Id. at 438, 83 S.Ct. at 848. Thus, according to Fay, a petitioner loses his right to have a new claim considered in a successor petition only if he “understandingly and knowingly” waived the privilege of seeking to vindicate his claims in the earlier proceeding for “strategic, [or] tactical” reasons. Id. Again, this is not the situation here. The burden is on the government to allege with particularity and clarity the abuse of the writ. Sanders, 373 U.S. at 17, 83 S.Ct. at 1078. Once the State has met this burden, the petitioner has the burden of answering the allegation and of proving by a preponderance of the evidence that he has not abused the writ. Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948). The petitioner may meet this burden by showing that the claim asserted for the first time in a successive petition is based on facts or legal theories of which the petitioner had no legal knowledge when making his first habeas petition. Williams v. Lockhart, 862 F.2d 155, 159 (8th Cir.1988). The State rests heavily upon the Williams case, in which the Eighth Circuit adopted a rule first articulated by the Fifth Circuit Court of Appeals in Jones v. Estelle, 722 F.2d 159 (1983). In that case, the Court held that when a petitioner was represented by competent counsel in a prior habeas proceeding, as was Mr. Fairchild, the petitioner cannot justify the omission of claims by asserting personal ignorance because awareness of a potential claim is chargeable to his counsel, and therefore, to the petitioner. The Court recognizes this to be a strong argument. Nevertheless, it is persuaded that that argument should not control here. In 1986, this Court appointed Mr. John Hall, petitioner’s present counsel, to advise Mr. Fairchild as to what issues might be raised if he chose to pursue his habeas remedies. Mr. Hall’s report was filed in September 24, 1986, and neither of the issues raised presently were included in that report. The present petition contends that these claims were not raised earlier because all the parties concerned were lead to believe, on the basis of psychiatric evaluations conducted by the state and the federal government, that Mr. Fairchild was mentally competent to waive his rights. It is further argued that the soundness of those findings have only recently been drawn into question by newly discovered facts following Mr. Fairchild’s performance on an IQ test conducted late last month. Nonetheless, the State argues that because many of the records which Mr. Hall relied upon in filing the successor petition were available to him when he made his previous report, or could have been discovered with reasonable diligence, his failure to raise these issues should preclude review now. Such a ruling would leave habe-as petitioners in an extremely precarious position—especially in cases such as this one where we are dealing with the death penalty, and the petitioner’s mental status is at issue. It should be noted that no such issue was raised in the Williams case. Additionally, adopting the State’s argument here would in no way serve the underlying purpose of the abuse of writ doctrine and of Rule 9(b) which is to avoid hearing successive claims “whose only purpose is to vex, harass, or delay.” Sanders, 373 U.S. at 18, 83 S.Ct. at 1078. As the Court in Sanders stated: The principles governing ... denial of a hearing on successive application are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits. Even as to such an application, the federal judge clearly has the power—and, if the ends of justice demand, the duty—to reach the merits. Sanders, at 18, 83 S.Ct. at 1078. The Court finds that the successor petition does not constitute an abuse of the writ of habeas corpus. Moreover, it is the judgment of this Court that the ends of justice require that we reach the merits of Mr. Fairchild’s present petition. B. Procedural Default The State’s second procedural argument is that the successor petition rests on grounds that were not presented at any time to the state courts, and are, therefore, procedurally defaulted. As such, the State contends, this Court is barred from reaching the merits of petitioner’s claim unless Mr. Fairchild establishes cause for default and prejudice arising therefrom as required by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). As the Eighth Circuit summarized in Smittie v. Lockhart, 843 F.2d 295 at 296 (1988), “Federal courts must conduct a four-step analysis to determine whether a petition may be considered when its claims have not been presented to a state court.” citing Laws v. Armontrout, 834 F.2d 1401, 1412-15 (8th Cir.1987). The first step is to determine if the petitioner “fairly presented the federal constitutional dimensions of his federal habeas corpus claim to state courts.” Smittie at 296. Since Mr. Fairchild did not bring the present claim before any Arkansas state court, the next step in the analysis requires that the federal court determine whether the petitioner has exhausted his state remedies, or if any existing state remedies are futile. Id. Following his conviction, Mr. Fairchild filed a post-conviction appeal pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. This appeal was denied in Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985). In Grooms v. State, 293 Ark. 358, 358, 737 S.W.2d 648 (1987), the Arkansas Supreme Court held “A successive Rule 37 petition will not be entertained unless the original petition was specifically dismissed without prejudice to filing a subsequent petition.” Since the Arkansas Supreme Court’s earlier denial of Mr. Fairchild’s appeal did not specify that it was without prejudice, this Court must conclude that all further State remedies would be futile. Having so found, the next step in the procedural default analysis is to determine whether the petitioner has demonstrated “adequate cause to excuse his failure to raise the claim in state court.” At least with respect to the procedural aspect of petitioner’s claim, the Court finds that adequate cause exists since at no time prior to this petition was it ever known that Mr. Fairchild possessed an IQ score which would arguably reveal him to be mentally retarded and, therefore, draw into question for the first time his ability to understand and thus intelligently waive those constitutional rights identified in the standard Miranda warnings. It does appear that there existed another low IQ report on the petitioner made in 1965-66, but this too was only recently discovered. The final step is to determine whether failure to address the merits of Mr. Fair-child’s claim in state court would result in “actual prejudice”. Laws, at 1415. Given the critical importance Mr. Fairchild’s confessions played in the prosecution of this case, it is obvious to this Court that failure to consider the merits of the claims in the successor petition would constitute actual prejudice. On December 30, 1988, the Eighth Circuit rendered its opinion in the case of Mercer v. Armontrout, 864 F.2d 1429. Judge Lay, writing for the Court in a section of the opinion dealing with granting a stay of execution, said: The initial point of inquiry in granting or denying a stay of execution in a death case must be whether the petition is frivolous. If the petition is not frivolous on its face, the very essence of this court’s duty is to study and research the points raised. The severity and finality of the death penalty requires the utmost diligence and scrutiny of the court. In capital cases the law is uniquely complex and difficult to understand. No judge can digest, retain, or apply these principles to a voluminous state court record without reflective study and analysis. To suggest that a life or death decision can be made by simply reading a petition is to advocate dereliction of judicial duty. The penalty has already been rendered and approved by the highest court of the state in which the crime has been committed. However, as worthy as state courts may be, the state process does not always ensure constitutional process. Experience has long demonstrated that human judgment rendered through judicial process is not infallible. As long as federal habeas review exists, it is the duty of federal judges to make certain that an individual does not forfeit his life at the hands of the state unless the state process lawfully rendered the punishment, it complied with federal constitutional standards, and the defendant was furnished with competent and effective representation within the norms required by the sixth amendment. Regardless of how heinous the crime, no one may reasonably question that a predicate to carrying out a death sentence is careful review of the constitutionality of the defendant’s conviction and sentence. Mercer v. Armontrout, supra, 864 F.2d at 1431-32. (Emphasis in the original) The Court will deny the State’s motion to dismiss on procedural default grounds, and move to the merits of the claim. ANALYSIS OF NEW PETITION. It is important to break down, and separately analyze, the two differing thrusts of Mr. Fairchild’s new “Successor Petition for Writ of Habeas Corpus.” It is alleged that a new and recent IQ test fixes his IQ at 63. It is contended that both the jury and the courts have heretofore operated upon the assumption that “Mr. Fairchild was a person of average intelligence.” The petition goes on to state that, “The validity of his waiver of constitutional rights and the reliability of his confession were assessed on the basis of this assumption.” p. 2 Writ. It argues that the state failed to provide a professionally competent evaluation of Mr. Fairchild’s mental condition before his trial, and that this, “precluded the defense from discovering and presenting to the jury the substantial doubt about the accuracy and reliability of Mr. Fairchild’s confessions which was interjected by his retardation and the stressful circumstances in which the confessions were given.” Petitioner contends that “his mental retardation profoundly affected his ability to make an intelligent waiver of his Miranda rights, and if known to the jury, likely would have raised substantial doubts about the reliability and accuracy of his confessions.” It is clear that petitioner is not dealing here with one, but two separate questions: (1) whether petitioner’s IQ on March 5, 1983, was such that he could not, or did not, knowingly and intelligently waive his Miranda rights, and (2) whether the level of his IQ on March 5, 1983, could reasonably “raise substantial doubts about the reliability and accuracy of his confessions.” Before dealing with the question of the effect, if any, of petitioner’s IQ upon his ability to make an intelligent waiver of his Miranda rights, the Court first wants to make it clear that, on the basis of the facts previously found and reaffirmed below, no reasonable argument can be made that petitioner’s IQ—whether 63 or 87 or some other number—could in this case raise “substantial doubts about the reliability or accuracy of his confessions.” While it is quite probable—indeed, obvious —that Mr. Fairchild in his videotaped confessions did not tell “the whole truth and nothing but the truth," the Court is convinced that, in material respects, they reflect Mr. Fair-child’s recollection of the events of February 26, 1983, and his involvement in those ugly and tragic events. This Court has previously dealt with the issue of the voluntariness of Mr. Fairchild’s confessions. The Court’s finding of fact and conclusions of law are set forth in a 51-page memorandum dated September 11, 1987. The Court also had some comments to make on the videotaped confessions early on during the course of the hearing: THE COURT: Let’s see. This is being tried to the Court and I think some feedback from the Court as we go along would not be inappropriate and would not, in effect, be considered as pre-judg-ing any of the issues. One of the points that you’ve made is that if we just look at the video tape, that we’ll be able to draw certain inferences and one of the inferences was the suggestion that there had been a lot of coaching and that the man had memorized his statement and so forth. Another inference is that the officers must have talked to him beforehand because they had substantial information or that their questions revealved [sic] that they ■ had some prior information. * * sfs Sfc * jfi I do not think it’s obvious at all that the confession was coached or memorized or whatnot. I watched Mr. Fairchild making his statements and when he—His statements give the feeling of truth to me because particularly when he is using his hands to describe on the right-hand side or the left or whatever. ‘And we went up this and down this hill,’ he’s making an uphill or downhill with his hands just automatically as he talks. All of the incidental body language is corroborative, it seems to me, of what is being said. And what is being said is also not—did not given me the impression that it had been rehearsed. Now, there may have been some little feeling about, you know, ‘Be sure that you tell them about the Toyota car having a red stripe.’ You know, you can kind of get that impression that maybe someone knew about that and wanted to be sure that he remembered that. Not only that, there are a few things they kind of wanted him to remember. But the broad thrust of his confession gives me the impression that it is an honest statement of what happened as he recalled it, and that’s why I’m telling you, you know, that something could come along and maybe change that but I do not agree that looking at those video tapes by themselves would give me cause to believe that this was a hoked up, rehearsed, memorized sort of a packaged type of confession. Rather, it seems to have the indicia of spontaneity and truth. There are a few little incidents in which I gather he’s trying to put into it what the police want him to in terms of a detail here and a detail there. But on the whole it seems to me to have that ring. That comment was made early on during the two-day hearing. After hearing all of the witnesses and reviewing all of the evidence, the Court made the following findings: It appears that Mr. Fairchild and the officers left Russellville around 11:30 p.m. and arrived in Little Rock close to 1:30 a.m. When Fairchild arrived at the Pulaski County Correctional Facility, he was turned over to Major Dill, and then possibly to Sheriff Robinson. Mr. Fairchild was read his rights and Officer Waggoner, Major Dill, and others talked with him. Mr. Fairchild talked freely about his involvement in the murder of Ms. Mason. Some notes were taken on Mr. Fairchild’s admissions and then arrangements were made to videotape his statement or confession. There was a casual atmosphere. Coffee and doughnuts were brought in and consumed by the officers and Mr. Fairchild. The Court estimates that Mr. Fairchild was at the Pulaski County Correctional Facility for approximately an hour prior to the time of the commencement of the videotaped interview. A good part of that hour was taken up with Mr. Fairchild’s explaining his role in the crime, but there were also periods when everyone just sat around waiting for the videotape arrangements to be made. The force to which Fairchild was subjected at Russellville was necessary and incidental to the arrest. No force or threats or physical coercion were used against Mr. Fairchild on the trip back from Russellville to Little Rock, or at the Little Rock facility. Fairchild’s attitude was: “You got me!” He was willing to talk. Officer Tom Waggoner was with Mr. Fairchild in the interview room. He had worked on the case and was also familiar with Fairchild. He secured the “rights” forms and advised Fairchild of his rights. Fairchild signed the forms and then freely discussed his involvement in the murder of Ms. Mason. When Mr. Fairchild agreed to give a videotaped interview, it was decided to move from the interview room into a larger office for that purpose. None of the officers who were with Mr. Fairchild suggested to him what his testimony should be. After the first videotaped statement was completed, Mr. Fairchild agreed to go with Major Dill, Sheriff Robinson and other officers on a “tour,” starting at a point where Mr. Fairchild and his companion kidnapped Ms. Mason on Washington Street in North Little Rock and proceeding to the abandoned farm area near Scott. They then followed the route Mr. Fairchild and his companion traversed in leaving the area to the point where Fairchild’s car ran off the road while being chased by an Arkansas State Police unit. Mr. Fairchild gave the directions which brought them all to the scene where Ms. Mason’s body had earlier been found. He pointed out where they left the body. The Court did not, in the slightest, credit Mr. Fairchild’s statements that the police officers were showing him the route taken and identifying for him the crime scene. At one point on the way back from the murder scene, Mr. Fairchild pointed out where he had thrown his gloves away. The officers stopped the cars and searched for the gloves but were unable to find them. During this “tour,” the officers asked Fairchild about jewelry that they understood was taken from Ms. Mason’s body. Mr. Fairchild told the officers that he had taken a watch from Ms. Mason but had sold it or given it away. When the officers asked who had it, he inquired if that person would get in trouble and was advised that such person would not get in trouble if he or she were not involved with the kidnapping or murder. Fair-child then told the officers that his sister had the watch. The officers then drove to Mr. Fairchild’s house where they obtained the watch. They then returned to the Pulaski County Correctional Facility. Shortly thereafter, a deputy prosecuting attorney, Mr. Dale Adams, came to the facility and took another videotaped statement from Mr. Fairchild. A little later, -officers from the Little Rock Police Department arrived and questioned Fair-child about his involvement in the assault on Officer Oberle. So the Court has already found that, “no force or threats or physical coercion were used against Mr. Fairchild on the trip back from Russellville to Little Rock, or at the Little Rock facility.” Mr. Fairchild’s attitude was: “You got me!” He was willing to talk. And the Court has further found that: “None of the officers who were with Mr. Fairchild suggested to him what his testimony should be.” After having been advised of his rights, Mr. Fairchild talked freely with the officers about his involvement in the rape and murder of Ms. Mason. As found, “there was a casual atmosphere, coffee and doughnuts were brought in and consumed by the officers and Mr. Fairchild.” Mr. Fairchild had fully confessed his involvement prior to the making of the two videotaped confessions. The officers were aware of the facts and circumstances because Mr. Fairchild had informed them thereof. So, petitioner’s argument, that his mental retardation makes him more susceptible to suggestion, goes nowhere. The officers made no suggestions. Mr. Fairchild's statements were simply a recitation of facts within his memory or, at least, so much of those facts as he chose to reveal. This is a death penalty case. It deserves the most careful and serious consideration possible. Back at the time of the hearing in 1987, the Court carefully observed and listened to the videotaped confessions — not once but several times. In the light of the new issues now being raised by the “successor petition,” the Court has viewed those videotapes yet again and has also reviewed the transcript of the two-day hearing. It finds no reason to depart from the factual findings that it made then. On the contrary, that review has reenforced the Court’s confidence in those findings. The Court is convinced that no reasonable person could listen to the evidence presented at the two-day hearing and view the videotaped confessions and still have any doubt about the involvement of Mr. Fair-child in the rape and murder of Ms. Mason. Whether a judge or a jury knew that Mr. Fairchild’s IQ was 50, or 60, or 80, or 100 would in no way shake the confidence of the court or jury in that factual conclusion. (NOTE: Whether the jury might have been influenced by specific evidence of low IQ in assessing the punishment is a different question which will be discussed later.) This is not to say that the petitioner has not raised a serious issue. But that issue is whether the level of his mental condition was such on March 5, 1983, that he could not, or did not, “knowingly and intelligently waive his Miranda rights," and not whether the level of his mental condition could affect the confidence of any trier of fact in the finding that Mr. Fairchild was involved in the rape and murder of Ms. Mason. The Court’s prior findings and conclusions filed September 11, 1987, remove the possible predicate for this latter contention. Since the petitioner has, by his new allegations and by the testimony of certain witnesses during the March 1989 hearing, particularly that of Ms. Luckasson, again attacked the voluntariness and reliability of Mr. Fairchild’s video confessions, the Court has reviewed its prior fact-findings and attached the results thereof to this Opinion as Appendix A. PAST INQUIRIES INTO MR. FAIR-CHILD’S COMPETENCY. As everyone knows, who is familiar with this case, the Court has already gone to considerable lengths in an effort to determine Mr. Fairchild’s competency. The issue was first thrust into the limelight when the Court received a letter in June 1986 written by Mr. Darrell Richley on behalf of Mr. Fairchild. It advised that Mr. Fairchild had decided not to continue with his federal habeas corpus case. The letter expressed that Mr. Fairchild’s “feeling is one way or the other he will die at prison, either now or fifty years from now, and he would rather it be now.” The letter inquired as to “what documents the court may require to enable Mr. Fairchild’s execution to be carried out.” The Court concluded that, under the law, if Mr. Fairchild was competent, he had the right to waive his federal habeas corpus rights. The Court held a hearing on August 15, 1986, for the purpose of advising Mr. Fairchild of his rights and assessing his competency. A transcript of that hearing is in the file. After interrogating Mr. Fairchild at some length and going over with him the possible results of his habeas petition, the Court asked Mr. Fairchild if he had thought about these things: MR. FAIRCHILD: Yes, sir, I’ve thought about it. THE COURT: But you still want to abandon the writ and go ahead with the execution? MR. FAIRCHILD: Yes, sir. THE COURT: Mr. O’Bryan, in your dealings with your client over the years here, do you have any opinion as to his competence, his mental state? Is there anything to suggest to you that he is incompetent or that he has any mental problems or any difficulties that should be explored perhaps before making a determination as to his competency to make this important decision? MR. O’BRYAN: I can’t say anything that’s occurred in my dealings with Mr. Fairchild to lead me to believe that he’s not competent. THE COURT: Does the State, Mr. Miller, have any information that would lead it or suggest to it that there is any problem about Mr. Fairchild’s present competence to make this decision? MR. MILLER: No, Your Honor, we have no such information. >}! # * Of * * THE COURT: Well, let me hear from your attorney and then from the State what you think the Court should do in the light of this record. Mr. O’Bryan, first you. MR. O’BRYAN: Your Honor, my feeling is that the Court ought to do what Mr. Fairchild is asking. I think he is competent to request his petition be dismissed. And, certainly, if I was in his shoes, I wouldn’t be asking for that — I don’t think I would — but he does explain rational, logical reasons for his decision. It makes sense to me that he could come to that conclusion. As I say, I'm satisfied that he’s competent. Of course, I’m not a psychologist, but he has been examined by the State Hospital and the psychiatrist at the Department of Correction, and I don’t think he’s ever been found to be incompetent. * * * * Jf * THE COURT: (addressing petitioner) What weighs on your mind? What is it saying to you, “I want to stop all this. I want to get it over with.” Just the best you can, again, tell me what it is that’s making you come to that conclusion. MR. FAIRCHILD: Just like I said, I have this death sentence and I’m ready to get it over with. THE COURT: Well, I think what I’m going to do — I’m watching. Let me ask you this: Have you in the past ever had any problems with any drugs? Has drugs been a problem for you? MR. FAIRCHILD: Not serious. Not really no problem. THE COURT: You have used drugs in the past? MR. FAIRCHILD: I have used drugs, yes. THE COURT: But you haven’t had any recently, of course. MR. FAIRCHILD: No. No, sir. THE COURT: Well, I hesitate to delay in letting you carry out your intentions, but I have sufficient concern and hesitation to feel that it might be to everybody’s advantage if you had the opportunity to be evaluated briefly by professionals and have an opportunity to talk to them about your decision so we can all be satisfied that you’re making — that it’s a firm decision. It’s not one that’s transient; that when you feel and understand everything that there is to be said about it that you still are convinced. So, out of an abundance of caution, the Court decided to send Mr. Fairchild to the Medical Center at Springfield, Missouri for a professional evaluation before making its final decision with respect to Mr. Fair-child’s competency to waive his federal ha-beas corpus rights. On October 2, 1986, the Springfield authorities advised that the psychiatric evaluation had been completed. The Court was further advised “in the opinion of our clinical staff, the above named individual [Mr. Fairchild] is mentally competent to waive his right to habeas corpus relief.” A report was enclosed. Mr. Fairchild was admitted to the medical center at Springfield on August 21, 1986. He was under observation for over a month. The “Report of Final Forensic Psychiatry Staff Evaluation,” dated September 22, 1986, states, inter alia: EVALUATION: Upon admission to the Forensic Psychiatry Unit, the defendant was oriented to the unit rules, regulations, and the policies of the U.S. Medical Center by a correctional counselor. He was seen by the examining psychiatrist and psychologist, as well as the unit manager and case manager. A preliminary physical examination was completed. During the course of the evaluation, a complete psychiatric examination was conducted. A complete physical examination with x-rays as indicated, and complete laboratory examination, was performed. Appropriate consultations by specialists were obtained when indicated. In addition to being seen on a daily basis by the correctional officers and correctional counselors, he was reviewed periodically by the Forensic staff. Correctional officers and correctional counselors observed interpersonal relationships with other patients and staff, and recorded the observations on the clinical chart. STAFF CONFERENCE: At the staff conference, directed by the examining psychiatrist, the clinical chart was reviewed. All reports were carefully evaluated, including background information furnished by the Court. The defendant was personally interviewed by various members of the staff. Special consideration was given to reports of behavior and clinical observation while in the institution. After the review of all data, comments and opinions were given by members of the staff, and a final opinion was decided by the examining psychiatrist. OPINION: It is the opinion of the examining psychiatrist that the defendant is MENTALLY COMPETENT TO WAIVE HIS RIGHT TO HABEAS CORPUS, in that he has a factual understanding of legal proceedings, including the ramifications of dismissing said habeas corpus. That report was signed for the staff by Dr. Donald R. Butts, Forensic Psychiatrist. Also attached is the “Final Psychiatric Evaluation” in five pages dated September 29, 1986, also signed by Dr. Butts. Some of the pertinent excerpts are: OCCUPATIONAL HISTORY: The patient said that he had worked in construction at times in the Little Rock area. EDUCATIONAL BACKGROUND: The patient dropped out of school in the ninth grade in North Little Rock and went to work. He stated that he had a lot of problems reading in school. This affected all of his other subjects. MEDICAL HISTORY: The patient denies any significant medical history and says that he is in excellent health. MARITAL HISTORY: The patient states that he has never been married and has no children. FAMILY BACKGROUND: The patient’s father died in 1969 at the age of 95 years of cancer. The patient’s mother is 51 years of age and apparently is in good health. He has one brother and two sisters. He is the second oldest of the siblings. Regarding his educational background, the patient says that he, after nine years in public schools, can neither read nor write. PSYCHIATRIC HISTORY: The patient states that his only psychiatric history is a 30 day observation that was performed on him in 1983 at Rogers Hall on the grounds of the State Hospital in Little Rock, Arkansas. He was evaluated by Dr. Rosendale and the other staff at that facility secondary to his instant offense which is that of robbery, rape, kidnapping and murder. The patient and his records have revealed that he was found to be competent, and he received a diagnostic category of antisocial personality. The patient was subsequently evaluated by Dr. Dolph Ogelsby who performed a psychiatric evaluation in the Maximum Security Unit at the Tucker Unit of the Arkansas Department of Correction after the patient had been on death row for a number of months. Mr. Fairchild at that time had been having some sleep difficulties and these were taken care of with the elimination of caffeine from his diet. ARREST HISTORY: Mr. Fairchild states that he has had trouble with the law since he was 11 years old at which point he was apprehended for “chunking rocks at police cars in North Little Rock.” In 1971 he was incarcerated at the Cummings [sic] Unit of the State Prison System for robbery of a filling station. This sentence was for one year. In 1974 he again was sent to the Cummings Unit for robbery and he was sentenced for seven years. He did four of these years and had three suspended. In 1979 he was again returned to prison for theft of property for two years and in 1983 he again was returned to prison on his instant offense. The patient, throughout his history of incarceration has never made any suicidal attempts or gestures and apparently has not been thought to be psychotic. sf: * s}: s*s 4s MENTAL STATUS AT THE TIME OF ADMISSION: Appearance, Behavior, and Attitude: The patient is a young black male who is pleasant appearing and was very cooperative and docile in his demeanor. He appears his stated age and was relatively well groomed and clean in prison attire. He appeared to be healthy and in good contact with reality. His speech was coherent and he related in a very appropriate manner. Affect and Mood: The patient was neither elated or depressed. He seemed somewhat sad, however. He spoke in a coherent manner and he understood why he was at our facility. Stream of Mental Activity: The patient’s associations were good. His speech was appropriate and he reached goal ideas readily. Sensorium: The patient was oriented to time, place, person, and situation. His memory for remote and recent material was good. His general fund of knowledge was quite limited, however. Thought Processes: At the present time there did not appear to be any hallucinations or thoughts of mind control. He had no particular ideas of reference and did not feel victimized by the Arkansas Penal System. He seemed rather matter of fact when discussing his situation. Thought Content: There was no evidence of delusions or illusions, no evidence of overt neurotic symptoms. Cognition: The patient’s IQ was estimated to be in the low-average to average range on mental status evaluation. His judgment and insight seem intact. His interpretation of proverbs was rather concrete. He did not use any particular rationalizations of his behavior and was very straightforward in describing his background. There were no loose associations and no circumstantial or tangential thinking. There was no bizarre mental content nor suicidal ideation noted. The patient does not give a significant history of head injuries and he has never been significantly ill in his life. He expressed no particular anxiety except that he made it rather clear that he did not prefer to be in our facility and would rather be back in Arkansas where he could at least communicate and perhaps receive visitation from his family members. COURSE IN HOSPITAL: The patient was very cooperative in all respects. He was kept on maximum security, however, on Ward 10-D, due to his status in the Arkansas State System. While he was at our facility he had an initial psychiatric evaluation and was observed daily in all aspects on the closed unit of 10-Build-ing. He had medical, psychological, and psychiatric workups with appropriate consultations prior to the final staffing by the Unit Team. The Unit Team consists of one Psychiatrist, one Psychologist, one Unit Manager, one Case Manager, two Counselors, plus several Nurses and the usual number of Correctional Officers. All of these staff members had observational and other appropriate input into the initial, periodic, and final team staffings. The patient had an initial history and physical, chemistry panel, blood count, orinalisis, serology, and chest Xray, all of which were reported as being within normal limits. No consultations were found necessary, as the patient did not have specific medical symptoms. He was not given psychotropic or antidepressant medications during his hospitalization. Psychological evaluation was done and interpreted by Dr. Richard D’Andrea, and his report accompanies mine. FORMULATION AND CLINICAL IMPRESSION: This is a young, black male who is from North Little Rock, Arkansas. He has had a poor experience in the Educational Systems and this resulted in him not being able to read or write. He apparently started with antisocial behavior quite young in life and had had altercations with the North Little Rock Police as early as 11 years of age. He has spent the majority of his adult life incarcerated in the Arkansas Penal System for primarily robbery charges. His last charge in 1983, however, was of a much more serious nature, that of a capital murder. He has never had a significant psychiatric history and his only other evaluation at Rogers Hall in Little Rock revealed him to be competent. The patient is very plain about his desires now that he does not wish to appeal his death sentence on the capital murder offense. On the other hand, he believes that his chances for obtaining a new trial or of having his sentence reduced to life in prison are remote. Even with the latter option he does not wish to spend his life in prison and as he has had more than an adequate exposure to life in the State Prison System, it can be considered that his opinion was formed after significant experience. Mr. Fairchild was very cooperative and was not a discipline problem at our facility. He was quite plain spoken and matter of fact about his point of view and in no way revealed significant psychopathology or any evidence of incompetency. DIAGNOSTIC IMPRESSION: AXIS I: No mental disorder. AXIS II: 1. Antisocial personality by history. OPINION: In answering the questions asked by the Court, it is my opinion that Mr. Fairchild has no evidence of a significant mental disorder that would adversely affect his competency or capacity to appreciate the legal position that he is in. He is capable of making rational decisions and cooperating with his attorneys. He is capable of making decisions regarding whether to continue or not with further appeals or procedures relating to his rights to appeal his death sentence for a capital murder offense. He is very capable of making the decision to waive his rights if he so chooses. He seemed to understand quite fully the ramifications of continuing with an appeal and he is not interested in the possibilities that could result, particularly that of the death sentence being reduced to life in prison without parole. He has no optimism for obtaining a new trial either and even if he did he doesn’t think the outcome would be any different for him. As stated previously, the patient is quite aware of the day by day existence of life in prison. He quite simply does not wish to receive a long term sentence. He appears in no way impulsive in making these decisions and is under no pressure from anyone else to take this legal stance. He is not an apparently hysterical individual and has no evidence of any irrational thought processes. Whereas Mr. Fairchild was not suffering from an Axis I type mental condition, it is fair to say that he does at times become anxious and the potential for him to be depressed is there although he seems to be remarkably intact thus far. He seems to be a person who could become easily frustrated as he is not an extremely talkative or articulate person and is hampered by his inability to read or write. A recommendation of supportive counselling wherein he could cathect his feelings regarding the above would be a humane endeavor. Also attached is a four-page Psychological Report, dated September 16, 1986, and signed by Richard J. D’Andrea, Ph.D., Staff Psychologist. That report states, inter alia: TESTS ADMINISTERED: Revised Beta Examination, Visual Motor Bender Gestalt Test, and Minnesota Multiphasic Personality Inventory. MENTAL STATUS: Mr. Fairchild was friendly and cooperative during his present study. He was oriented to time, place, person, and situation as evidenced by his understanding of his present legal predicament and the reason for his psychological evaluation. His flow of speech was coherent and his responses were relevant. There were no loosening of associations or circumstantial or tangential thinking. Affect was appropriate and mood was sad. Concentration and attention span were adequate, and there was no disturbance in recent or remote memory. Hallucinations, delusions, or bizarre mental content were denied. Significant head injuries were denied. He was neither clinically depressed nor elated. Suicide thoughts or attempts were denied. He did not indicate any disturbance in eating or sleeping behavior. Alcohol or drug abuse was denied. Mr. Fairchild made an adequate adjustment to the unit during his evaluation. Other than expressing a desire to return to Arkansas where he could be close to his family, he did not appear to be under any immediate distress. PSYCHOLOGICAL TESTING: Psychological testing indicated that Mr. Fair-child received a Revised Beta Examination IQ score of 87, which places him at the upper limits of the Dull Normal range of intellectual ability. Since Mr. Fairchild was unable to read or write, this test was administered due to its nonreliance on verbal skills. There was no evidence of any motor-perceptual difficulties indicative of any organic brain impairments, as measured by the Visual Motor Bender Gestalt Test. The MMPI indicated a significant need to appear in a favorable light and to give socially approved answers regarding self-control and moral values. Lack of flexibility in adapting and a poor tolerance for stress and pressure is suggested. Similar individuals are seen as evasive, defensive about admitting to problems, and handling anxiety and conflicts by refusing to recognize their presence. They are described as hostile, irritable, demanding, argumentative, resentful, suspicious, immature, narcissistic, egocentric, and self-indulgent. Rationalization and projection are noted defense mechanisms. These individuals are often seen as impulsive and manipulative and are often in conflicts with authority figures. Poor sexual and marital adjustments are often noted. There was no evidence of the distress signs of anxiety or depression, nor was there any evidence of bizarre mental content which would be suggestive of any psychosis. DIAGNOSTIC IMPRESSION: Axis I: No Mental Disorder Axis II: Antisocial Personality SUMMARY AND CONCLUSIONS: In regard to the question asked by the court, Mr. Fairchild is not suffering from a mental disorder that would adversely affect his capacity to appreciate his legal position and make a rational choice with respect to continuing or abandoning further litigation in regard to his decision to waive his rights to appeal his death sentence for a capital murder offense. He fully understands that if he were to continue with the appeal, there exists the possibility that he may receive a new trial, and secondly, the possibility that the death sentence could be reduced to life in prison without parole. In regard to the first possibility, he believes that the chances of obtaining a new trial and also being found not guilty are so remote that his efforts would be futile. In regard to the second possibility, he adamantly stated that he does not want to spend the rest of his life incarcerated. In regard to this issue, he speaks from experience since he has spent most of his adult life in prison. In addition, the decision to waive his rights to appeal has not been impulsive in nature and has existed for over six months. RECOMMENDATIONS: Mr. Fairchild is not suffering from a mental disorder requiring psychiatric hospitalization or treatment. However, due to the uniqueness of his present legal predicament, he could benefit from counseling which can offer support and help him vent his frustrations and anxieties concerning the future. ANALYSIS OF DATA SUPPLIED WITH NEW PETITION. Petitioner attaches nine appendices to his new “Successor Petition”: A Arkansas State Hospital Records on Petitioner B Medical Center for Federal Prisoners Records on Petitioner from 1986 C Affidavot of Merdine Fairchild, Petitioner’s Mother D Affidavits of Family and Friends E Petitioner’s School Records F State Court Order for Psychiatric Evaluation at Arkansas State Hospital G Report of Ruth Luckasson and Denis Keyes H Affidavit of Joe O’Bryan I Affidavit of John Wesley Hall, Jr. We have already discussed the report from the Medical Center for Federal Prisoners and we have referred to comments made on the record by Mr. Fairchild’s lawyers concerning his competence. Mr. Joe O’Bryan in a new affidavit states: “I had my own doubts as to Mr. Fairchild’s mental abilities ...” and felt he needed expert evaluation. However, the state court denied his request for adequate funds to employ an independent expert. He further states: “After the State Hospital did its evaluation and found Mr. Fairchild competent, I had no reason to believe that it had done an inadequate evaluation of his mental capabilities.” Mr. John Wesley Hall, Jr. has also prepared and filed a new affidavit which states that: “At the time I got into the case, the MCFP had determined Mr. Fairchild’s IQ to be 87. I understood from other sources that his IQ had also been determined to be about 80. Based on the apparent thoroughness of the report from MCFP and the court’s own assessment of that in its letter to the attorneys, I felt that I had no legitimate reason to question that finding.” Mr. Hall goes on to state: I have had frequent contact with Mr. Fairchild during the last two and a half years. My personal belief was that the MCFP finding of an 87 IQ was somewhat higher than Mr. Fairchild really was, but not so substantially off as it was found to be in February 1989 by Ms. Luckasson and Mr. Keyes. Mr. Fairchild sometimes has a difficult time communicating, and he has to think hard to articulate what he feels and thinks. Nevertheless, when I was informed that his IQ in 1989 was only 63 and that he is qualified as mentally retarded, I was surprised. Based on that, I obtained his school records. We thus found that in 1966, his IQ was tested at 65 by Jacksonville school officials. The affidavits of petitioner’s mother and of “family and friends” attached to the petition do not, frankly, appear to add anything new or significant to the information already possessed by the professionals who examined Mr. Fairchild at the Arkansas State Hospital or those who examined him at the Medical Center for Federal Prisoners at Springfield, Missouri. For example, Mrs. Fairchild provided a great amount of information by her answers to a questionnaire used by the Arkansas State Hospital experts back in 1983. Petitioner’s school records, although not specifically brought to the attention of the Court before, are not surprising, being consistent with other history heretofore available including the circumstance that Mr. Fairchild cannot, for practical purposes, read or write. Mr. Fairchild was under observation at the Arkansas State Hospital for nearly three weeks in April 1983. Some additional excerpts from the various reports of the Arkansas State Hospital should be noted: CIRCUMSTANCES SURROUNDING ADMISSION: “I didn’t did it. My lawyer told me not to talk about it.” He states that he was arrested on March 5, 1983 in Russellville. “I was on a bus. I was going to California. They stopped the bus in Russellville and took me off.” He states this was some two weeks after the alleged crime occured [sic]. He states that he is charged with Murder, Rape, and Robbery, and when asked what type of charge this would be, he answered “capital felony.” He was asked if he knew the possible penalty, and he replied, “death or life without parole.” PREVIOUS LEGAL DIFFICULTY: He has had one previous conviction for Theft of Property, and was sentenced to two (2) years and served 18 months, this was in 199 [sic]. He states that he was assigned in the Vo-Tech area and he learned welding, and was given a certificate. He states he never worked in this area because he did not particularly like welding. He states that he has probably been arrested 10 to 12 times, but other than the aforesaid, these arrests have been the result of misdemeanors. FAMILY HISTORY: His father is dead, he died at the age of 95 in 1959. His mother is 50. He has four brothers and five sisters. One brother and two sisters are at home. He is single. He has been living commonlaw and has four children, 3 boys and one girl, ages 12, 14, 17, and 9. PAST HISTORY: He was born in Little Rock, at the University Hospital, on March 5, 1954. He started school at about the age_, and went to the 11th grade in the Jacksonville Public School System. He stated that he repeated no grades. He considered himself an average student, he made B’s and C’s. He states that he quit to go to work. He states that he has followed the construction trade for the most part. He has never been in any military service. It is noted that he apparently told the hospital authorities, just as he did the Pulaski County officers, that he had an eleventh grade education. But he went even further when he stated that he considered himself an average student who made B’s and C’s. (He also told the police officers on the night he confessed that he had eleven years of school and could read and write.) But the staff at the Arkansas State Hospital independently obtained information from Mr. Fairchild’s mother and through their staff social workers that the last grade he attended was the ninth grade, that he never enjoyed school, but always skipped school. See Social Service Report of April 28, 1983, “Educational History.” And in 1986, he told the authorities at Springfield the truth: that he had a ninth grade education but could not, for practical purposes, read or write. Another Arkansas State Hospital report states, inter alia: CONTENT & TREND OF THOUGHT: OBSESSIONS & COMPULSIONS: Nothing can be obtained concerning obsessional thinking or compulsive actions as such. During the last interview, which was conducted this date, he spent the majority of the time trying to convince the examiner that he is hallucinating. He says that he is hearing voices, but he cannot identify the voices, and the voices seem to be originating from his head. He cannot identify what the voices are saying. He claims that he has been hallucinating all of his life and he has wanted to get help in the past, but was too scared to ask for same. He says that he now realizes that he needs help, and wants same. When he was informed that under circumstances that during the period of observation and evaluation he was not to receive medicine, there was a sudden flash of anger across his face as evidenced by a very hostile look, but he immediately controlled same. DELUSIONS & HALLUCINATIONS: There is nothing listed suggestive of delusional thinking, and in spite of his allegations, it is the examiner’s opinion that he is not hallucinating. PARANOID IDEATION: He makes the statement that he feels that the police unduly arrested him. JUDGMENT & INSIGHT: The defendant’s judgment is grossly intact. His attorney told him not to discuss his case, and he certainly has been able to follow this advice. He claims that he was not read the miranda rights when he was arrested, but when asked to recite these rights, he rapidly goes though the four steps. He claims that he has not made a statement to the police. He is competent to stand trial. SUMMARY Barry Lee Fairchild is a 29-year old, black male, who is charged with Capital Felony Murder. He claims that he is innocent, but his lawyer told him not to discuss the case. During the initial interview, he was in contact, he gave the date of his arrest, and the circumstances surrounding arrest. He is single, he lives in commonlaw status and claims that he has four children. He has served one sentence in prison, of 18 months. He claims that he has been arrested 10 to 12 times, but usually a result of misdemeanors. His father is dead and his mother is living. He has one brother and two sisters at home. He was born in Little Rock, Arkansas. He went to the 11th Grade in school at Jacksonville Public School system. He repeated no grades. He claims that he has had no fulltime jobs with any degree of regularity. He has worked as busboy at restaurants. He has done construction work. He claims that he was a patient at the Benton Unit of the state hospital in 1974 for 7 to 8 months. During the period of observation, he has not been overly cooperative with the examiner, claiming that he cannot remember. Although he can give a good account of several incidents that happened in the past. On initial interview, he was in contact. He said that his lawyer told him not to discuss the case, even though he alleges that he had nothing to do with the alleged crime, and that the police are unduly arresting him. He is now complaining of auditory hallucinations, which he says are imminating from inside his head, but he cannot describe the voices or identify what is being said to him. In spite of his allegations, his affect does not register the concern expected from auditory hallucinations. There is no evidence of delusional thinking. He has refused to cooperate with the psychologist, Dr. Dave Pritchard. He has refused to cooperate with the examiner in a brief intellectual assessment. It is thought that at the time of the commission of the alleged crime, he was responsible, and further, that he is competent to stand trial. He will have no difficulty in assisting his attorney in a court of law. DIAGNOSIS: Axis I Malingering Axis II Personality Disorder, mixed, Passive-Aggressive and Antisocial features Axis III None Particularly important to the issue before the Court is Dr. Rosendale’s statement that Mr. Fairchild “claims that he was not read the Miranda rights when he was arrested, but, when asked to recite these rights, he rapidly goes through the four steps.” Mr. Fairchild contends that the state should have properly examined him and provided a competent and professional evaluation of his mental condition. The “Psychological Evaluation” submitted April 29, 1983, includes the following: BEHAVIORAL OBSERVATIONS: Mr. Fairchild sat with his head bowed and gaze averted during most of the evaluation. Mr. Fairchild appeared to be hostile and uncooperative in the examination. PROCEDURES: Interview April 28, 1983 Wechsler Memory Scale April 28, 1983 Memory Malingering Test April 28, 1983 INTELLECTUAL NEUROPSYCHO-LOGICAL FUNCTIONING: Mr. Fair-child’s responses to the We