Terrick Terrell Nooner
DOB: March 17, 1971
Race: African American
Crime and Trial
County of conviction: Pulaski
Number of counts: 1
Race of victim:
Gender of victim: Male
Date of crime: March 16, 1993
Date of sentencing: September 28, 1993
Herbert Wright, Jr.
Last judicial decision:
Arkansas Supreme Court held that pro se
petition for writ of mandamus was premature and that petitioner’s
status had not changed since the March 1, 2007 petition in Nooner
v. State, 2007 WL 10028796 (April 5, 2007) (unpublished).
Arkansas Supreme Court held that pro se
petition for writ of prohibition and for immediate execution of
sentence was premature in Nooner v. State, 2007 WL 616023 (March
1, 2007) (unpublished).
221 W. 2nd, Suite 408
Little Rock, AR 72201
Arkansas Supreme Court held that pro se
petition for writ of mandamus was premature and that petitioner’s
status had not changed since the March 1, 2007 petition in Nooner
v. State, 2007 WL 10028796 (April 5, 2007) (unpublished).
Arkansas Supreme Court held that pro se
petition for writ of prohibition and for immediate execution of
sentence was premature in Nooner v. State, 2007 WL 616023 (March
1, 2007) (unpublished).
Supreme Court held that petition for writ of
mandamus and motion for execution of sentence without delay was
premature in Nooner v. State, 2006 WL 1516411 (June. 1, 2006).
Affirmance in Eighth Circuit of the district
court's denial of habeas. Nooner v. Norris, 402 F.3d 802
(2005), rehearing denied, 11/18/2005.
Pro se motion to lift stay of execution denied as
moot (since no stay was in effect). See Nooner v. State, 101
S.W.3d 834 (Ark. 2003).
Sentence and conviction affirmed on direct appeal
by Nooner v. State, 907 S.W.2d 677 (Ark. 1995), cert. denied,
517 U.S. 1143 (1996).
Denial of post-conviction relief affirmed by
Nooner v. State, 4 S.W.3d 497 (Ark. 1999).
Significant legal issues:
trial counsel's failure to request a mental
evaluation, given Mr. Nooner's history of treatment at Rivendale
Witherspoon issue regarding an equivocating
prosecutor's improper argument that Mr. Nooner had
committed "another murder" as well as the one charged
trial judge's decision to allow Mr. Nooner to
represent himself, and the resulting absence of mitigating evidence
presented at trial.
ex post facto claim stemming from victim
impact evidence admitted under statute enacted after the crime in
question (i.e., state's aggravating circumstances constructively
Terrick Terrell Nooner
At approximately 1:30
am on March 16, 1993, Scott Stobaugh, a college student, was washing
clothes at the Funwash Laundromat on West Markham street in Little Rock.
An assailant, in an
apparent robbery attempt, shot Stobaugh seven times in the back at close
range with a .22-caliber pistol, causing his death. A surveillance
camera captured a portion of the incident on videotape. The videotape
showed the assailant and Stobaugh as Stobaugh raised his hands. Nooner
took $20 and a checkbook.
identified the person on the Laundromat video as Terrick Terrell Nooner,
by clothing and appearance. Other testimony and ballistics evidence tied
Nooner to the murder weapon. A Pulaski County Circuit Court jury
convicted Nooner of capital murder.
During the penalty
phase of his trial, the jury heard testimony from several witnesses,
including Stobaugh’s mother, who described the impact of Scot’s death on
his family. The jury also heard mitigation testimony from Nooner’s
The jury found two
aggravating circumstances (that Nooner had previously committed another
felony, an element of which was the use or threat of violence, and that
the murder was committed for pecuniary gain) and no mitigating
Nooner was sentenced to
death by lethal injection for the murder. Nooner's co-defendant, Robert
Rockett, pleaded guilty to first-degree murder in the slaying and was
sentenced to 65 years in prison. He is also serving a life sentence
without parole for a separate murder conviction.
federal judge has issued a stay in an execution scheduled next week for
an Arkansas death-row inmate convicted of killing a university student
at a coin-operated laundry in 1993.
Judge J. Leon Holmes
issued the stay for inmate Terrick Nooner, who faced a September 18,
2007, execution date. The stay comes after the 8th U.S. Circuit Court of
Appeals in St. Louis ruled last month that a request for mental-health
professionals to examine Nooner should be reconsidered in court.
Lawyers for Nooner have
argued their request for the mental examinations was not an appeal of
his original conviction in Pulaski County court. Instead, the lawyers
say, it was an attempt to get examinations the Arkansas Department of
Correction has denied over the last year and a half.
Since his incarceration,
Nooner has made a number of rambling legal filings and statements about
people poisoning his food, sexually assaulting him, performing
witchcraft and "shooting up my blood" with drugs and poisons. Julie
Brain, a federal public defender for Nooner, declined to comment on the
402 F.3d 801
Larry Norris, Director, Arkansas Department of Correction,
United States Court of Appeals, Eighth Circuit.
Submitted: January 12, 2004
Filed: April 4, 2005
Before WOLLMAN, LAY, and BYE, Circuit Judges.
WOLLMAN, Circuit Judge.
Nooner appeals from the district court's
dismissal of his petition for writ of habeas corpus under 28 U.S.C.
§ 2254. The district court found Nooner
competent to withdraw his petition and, in the alternative, held
that Nooner's substantive claims were
without merit. Although we conclude that the district court erred in
finding that Nooner's motion to dismiss his
petition was knowing and voluntary, we affirm the rejection of the
petition on the merits.1
Scot Stobaugh, a college student,
was washing clothes at a Little Rock laundromat at approximately
1:30 a.m. on March 16, 1993. Nooner
approached Stobaugh in an apparent robbery attempt and shot him
seven times at close range. A jury convicted
Nooner of capital murder. During the penalty phase of his
trial, the jury heard testimony from several witnesses, including
Stobaugh's mother, who described the impact of Scot's death on his
family. The jury also heard mitigation testimony from
Nooner's stepfather. The jury found two
aggravating circumstances (that Nooner had
previously committed another felony, an element of which was the use
or threat of violence, and that the murder was committed for
pecuniary gain) and no mitigating circumstances.
Nooner was sentenced to death by lethal injection.
appealed to the Arkansas Supreme Court, which affirmed his
conviction and death sentence. Nooner v.
State, 322 Ark. 87, 907 S.W.2d 677 (1995).
Nooner then sought post-conviction relief in the state courts.
The Arkansas Supreme Court affirmed the trial court's denial of
post-conviction relief. Nooner v. State,
339 Ark. 253, 4 S.W.3d 497 (1999). Nooner's
attorney filed a subsequently amended petition for writ of habeas
corpus with the district court. While the petition was pending,
Nooner, acting pro se, requested
that the district court dismiss his petition. After the district
court rejected this request, we directed the district court to
reexamine its decision and determine whether
Nooner was competent to withdraw his petition. After hearing
testimony from three mental-health experts who had examined
Nooner, the district court determined that
Nooner was competent to withdraw his
petition and granted his request. The district court also addressed
the merits of Nooner's petition and
concluded that his stated claims were without merit.
through counsel, now appeals from the district court's competency
determination. Nooner also raises three
collateral challenges to his sentence: (1) that the admission of
victim impact evidence pursuant to Arkansas' victim impact statute
violated the ex post facto clause of the Federal Constitution; (2)
that Arkansas' victim impact statute is constitutionally infirm; and
(3) that Nooner's trial counsel rendered
ineffective assistance by failing to investigate and present
mitigating evidence at sentencing.
We first examine the district
court's factual finding that Nooner was
competent to withdraw his habeas petition, which we review for clear
error. Taylor v. Bowersox, 329 F.3d 963, 968 (8th Cir.2003).
We evaluate Nooner's competency to withdraw
his habeas petition as we would evaluate competency to waive appeal
of a state post-conviction proceeding because both actions bar
further federal court review. Our inquiry is two-fold. First, we
examine whether the defendant has the rational ability to understand
the proceedings. O'Rourke v. Endell, 153 F.3d 560, 567-68
(8th Cir.1998) (quoting Godinez v. Moran, 509 U.S. 389, 401
n. 12, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993)).2
Second, we consider whether the defendant's waiver was knowing and
voluntary, i.e., whether the defendant actually understood
the significance and consequences of his waiver and whether the
waiver was uncoerced. Id.
Dr. Richart L. DeMier of the
United States Medical Center in Springfield, Missouri, evaluated
Nooner and found him not competent.3
Dr. DeMier based his conclusion on two subjective indicators:
Nooner's disorganized speech (which
presented only when Nooner discussed his
legal situation) and Nooner's illogical
belief that he would be exonerated by a "hidden or removed lawsuit"
after he appeared before the clemency board. Dr. DeMier testified,
however, that he did not hold his opinion with his usual degree of
confidence because Nooner was malingering
to some extent.
Dr. Charles Mallory and Dr. Oliver
W. Hall III of the Arkansas State Hospital also evaluated
Nooner, and both of these doctors found him
Dr. Mallory confirmed Dr. DeMier's impression of
Nooner's strange speech patterns, and, like Dr. DeMier, he
observed that they occurred only when Nooner
discussed his legal situation.5
Dr. Mallory also noted that Nooner realized
that his ideas were strange, an uncommon awareness in most
delusional people. Both Dr. Mallory and Dr. Hall agreed that
Nooner was malingering.
From the reports of the doctors,
their testimony at the competency hearing, and its own observations,
the district court concluded that Nooner
was competent, finding that he was able to "make a rational choice
among his options" and understood "his legal positions and options
available to him."
We find no clear error in the
district court's determination that Nooner
had the ability to understand his request to withdraw his petition.
All three experts concluded that Nooner was
feigning some aspects of mental illness. All three agreed that
Nooner's odd speech patterns manifested
only when he spoke of his legal situation. Their only disagreement
concerned whether these speech patterns were evidence of a mental
condition that prevented Nooner from being
aware of his legal position and making rational choices among his
legal options: Dr. DeMier found evidence of a delusional thought
process; conversely, Dr. Mallory and Dr. Hall thought that
Nooner's speech patterns were further
evidence of his malingering. We conclude that the district court
reasonably assessed the strengths and weaknesses of the conflicting
expert testimony. See Smith v. Armontrout, 812 F.2d 1050,
1058 (8th Cir.1987).
The question remains whether
Nooner knowingly and voluntarily sought
withdrawal of his petition. O'Rourke provides some indicia of
when a waiver is not knowing and voluntary. 153 F.3d at 568.
Specifically, we observed in O'Rourke that: (1) the
petitioner's testimony failed to demonstrate that he fully
understood the consequences of his waiver; (2) the court never
explained to the petitioner the significance of his waiver; and (3)
no one questioned the petitioner as to his understanding of the
possible results of a successful appeal. Id. We noted that "the
record as a whole demonstrates that it cannot be said with any
satisfactory degree of confidence that O'Rourke's waiver of his Rule
37 appeal was knowing and voluntary." Id. at 569.
The circumstances that we
identified in O'Rourke are present here. Moreover, in
O'Rourke, the court specifically asked the defendant whether he
desired to be executed and the defendant stated that he did. Id.
at 568. See also Smith v. Armontrout, 812 F.2d 1050, 1053
(8th Cir.1987) (Smith testified that he wanted to be executed
because "he hated confinement and preferred death to life
imprisonment"). Here, the district court made no such inquiry, and
two doctors testified that Nooner did not
want to be executed.6
Nooner believed that withdrawing his habeas
petition would trigger a series of events (the setting of an
execution date and his appearance before a clemency board) that
would result in a "hidden or removed lawsuit" that would exonerate
In other words, Nooner believed, however
illogically, that withdrawing his petition would lead to freedom,
not death. Under these circumstances, we conclude that the record
does not support the district court's finding that
Nooner's withdrawal was knowing and voluntary.
habeas petition should not have been dismissed, we agree with the
district court that the petition fails on the merits. All three
issues raised in the petition were adjudicated in state court.
Accordingly, we must deny the petition unless the state court
disposition "resulted in a decision contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States" or "resulted
in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceedings." 28 U.S.C. § 2254(d); see also Williams v. Taylor,
529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). When a
state court correctly identifies the controlling Supreme Court
authority, we address the "unreasonable application" clause of
section 2254(d). See Colvin v. Taylor, 324 F.3d 583, 587 (8th
Cir.2003). We observed in Colvin that "the Supreme Court has
repeatedly stressed that an unreasonable application is different
from an incorrect one." Id. We may not grant a writ of habeas
corpus unless the relevant state court decision is both wrong and
first argues that the Arkansas victim impact evidence statute, as
applied in his case, is an impermissible ex post facto law. U.S.
Const. art. I, § 10. The Arkansas legislature enacted Ark.Code. Ann.
§ 5-4-602(4) in response to the United States Supreme Court's
decision in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597,
115 L.Ed.2d 720 (1991), which allowed admission of victim impact
evidence during the sentencing phase of a capital trial. The statute
was enacted after Stobaugh's murder but prior to
It is well settled that the "ex
post facto [clause] does not give a criminal a right to be tried, in
all respects, by the law in force when the crime charged was
committed." Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct.
2290, 53 L.Ed.2d 344 (1977). Rather, a change in the law that is "procedural...
is not ex post facto." Id."Statutes which simply enlarge the
class of persons who may be competent to testify in criminal cases
are not ex post facto in their application to prosecutions for
crimes committed prior to their passage." Hopt v. Territory of
Utah, 110 U.S. 574, 589-590, 4 S.Ct. 202, 28 L.Ed. 262 (1884).
The Tenth Circuit has held that
victim impact evidence "does not violate the ex post facto
prohibition ... because it neither changes the quantum of proof nor
otherwise subverts the presumption of innocence." Neill v. Gibson,
278 F.3d 1044, 1053 (10th Cir.2001). Similarly, the Fourth Circuit
has concluded that admission of victim impact evidence in a
sentencing conducted prior to Payne was not prejudicial
because the rule in Payne would properly apply at any
resentencing. Washington v. Murray, 952 F.2d 1472, 1480 (4th
Cir. 1991). We agree with our sister circuits and conclude that the
Arkansas victim impact evidence statute is procedural in nature and
does not offend the ex post facto clause.8
Arkansas's statute does not alter the potential penalty faced by any
defendant, nor does it alter the state's burden of proof. Cf.
Payne, 501 U.S. at 825, 111 S.Ct. 2597 ("Victim impact evidence
is simply another form or method of informing the sentencing
authority about the specific harm caused by the crime in question,
evidence of a general type long considered by sentencing authorities.").
Accordingly, the state court's determination that the Arkansas
statute does not violate the ex post facto clause was not contrary
to Supreme Court precedent.
argues that without guidance to the jury on how to consider victim
impact evidence, the Arkansas statute is void for vagueness,
violates the Eighth Amendment, and otherwise offends due process. We
evaluate vagueness challenges to statutes not involving First
Amendment rights based on the particular facts of the case. U.S.
v. Maull, 806 F.2d 1340, 1344 (8th Cir.1986).
The Constitution does not require
that a state ascribe specific weight to aggravating or mitigating
factors in a capital sentencing proceeding. Harris v. Alabama,
513 U.S. 504, 512, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995). "There
is nothing unfair about allowing the jury to bear in mind the harm [caused
by the crime] at the same time as it considers the mitigating
evidence introduced by the defendant." Payne, 501 U.S. at
826, 111 S.Ct. 2597. Here, the evidence admitted against
Nooner is the same kind of evidence
admitted in Payne: a family member of the victim explaining
to the jury the impact the murder has had on the victim's family.
Nooner has failed to show how this
testimony differs from that in Payne or how it unduly
prejudices him. He fares no better in his due process and Eighth
Amendment arguments, and we thus conclude that the state court's
rejection of these arguments comports with Supreme Court precedent.
argues that his two trial counsel were ineffective in failing to
develop and present mitigation evidence at sentencing.
Nooner contends that his counsel: (1) never
sought to have a psychiatric expert appointed; (2) never obtained
school or hospital records; and (3) never interviewed
Nooner's family members, social workers, or
foster parents. The district court, presented with the same three
alleged deficiencies, held that Nooner had
procedurally defaulted on all claims that counsel "failed to gather,
develop, and present mitigation evidence" except for the claim
related to "the psychiatric evidence."9
We agree with the district court, and thus we address only
Nooner's allegation that counsel failed to
pursue psychiatric testimony or a mental examination.
The Arkansas Supreme Court
correctly identified Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as the controlling authority
for ineffective assistance of counsel claims. Strickland
requires that an ineffective assistance of counsel claim establish
both deficient performance and prejudice to require reversal of a
death sentence. Id. at 687, 104 S.Ct. 2052.
Our first inquiry is whether the
Arkansas Supreme Court unreasonably applied Strickland in
concluding that trial counsel were not ineffective. When strategic
choices are made "after less than complete investigation [they] are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation." Id. at
690-91, 104 S.Ct. 2052. A particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel's
judgments. Id. at 691, 104 S.Ct. 2052. Accordingly, our
review under 28 U.S.C. § 2254 of a state court's application of
Strickland is twice deferential: we apply a highly deferential
review to the state court decision; the state court, in turn, is
highly deferential to the judgments of trial counsel.
The Arkansas trial court held a
multi-day hearing on Nooner's ineffective
assistance of counsel claims (the "Rule 37 hearing"), the transcript
of which spans 269 pages. When asked whether she had presented
mitigating circumstances to the jury, Lea Ellen Fowler, one of
Nooner's trial counsel, responded:
[T]hat was something that we
looked long and hard to find things and ... as the Court is aware,
there are some statutory criteria and Mr. Nooner
did not meet any of those criteria. He was not from a broken home.
Even though the ... man that raised him was not his biological
father, that was the man that had raised him from, I believe, the
time that he was two (2) years old. And ... his parents had done all
they could to provide for him. He didn't suffer from alcoholism10
or drug abuse, or you know, any of those standard mitigating
circumstances. The fact that he spent time in Rivendell; I believe
that we went into that. I believe that his parents testified about
the troubles that he had had in school and ... any possible
circumstance that could be raised.
Rule 37 Hearing Transcript at
13-14 (Testimony of Lea Ellen Fowler). Nooner
cross-examined Ms. Fowler,11
asking her whether the records from Rivendell were "disclosed in the
closing arguments for mitigating circumstances." Id. at
25:19-21. She responded:
There was not anything in this to
be mitigating towards you, Mr. Nooner.
This was detrimental to you. The ... doctors at Rivendell
concluded that you were the cause of all of your problems and it was
your unwillingness to adapt your behavior to societal norms that was
causing you these problems. I ... don't think that that was of any
benefit to you and ... we discussed whether or not to bring somebody
from Rivendell and it was the opinion of all of us that that would
be detrimental to you.
Id. at 25:22-26:5 (emphasis
The conclusions of the doctors at
Rivendell are summarized in a five-page document (the "Report") that
was generated when Nooner was discharged
from the facility in 1986. A copy of the Report was introduced
during the Rule 37 hearing and was included as part of the record in
Nooner's appeal to the Arkansas Supreme
Court. The Report uses mostly non-clinical terms to describe
relatively straightforward observations. It states that
Nooner was "referred [to Rivendell] for
increasing oppositional behavior, running away from home, and
violent outbursts." According to the Report,
Nooner's parents had informed the staff at Rivendell that
Nooner had been in "numerous fights" and
Nooner's parents "felt that he was rude,
disruptive, disobedient, and disrespectful."
At the time of his admission to
Rivendell, Nooner's mood "was one of mild
depression, indignation, anger, and resentment." Emotionally, he
appeared to be "very narcissistic, egocentric, and self-centered
with very little feeling or regard for the welfare of others."
Nooner told the staff at Rivendell that he
"usually resort[ed] to aggression and anger to get his way when
things [didn't] work out."
Although the Report suggested that
Nooner had "considerable family dysfunction,
as evidenced by multiple family conflicts" and that he was "somewhat
depressed," there is no indication that he had any mental or
psychological problems. The Report also made clear that
Nooner "did not take any psychotropic
The Rivendell Report, like the
testimony at the Rule 37 hearing, supports trial counsels' judgment
not to pursue psychiatric testing for purposes of mitigation. The
Arkansas Supreme Court's conclusion that these judgments did not
render counsel ineffective was not an unreasonable application of
Even if we were to determine that
the Arkansas Supreme Court unreasonably applied Strickland in
concluding that Nooner's trial counsel were
not ineffective, we could not grant the habeas petition unless we
determined that Nooner's constitutional
rights were violated. 28 U.S.C. § 2254(a). To reach this conclusion,
we would have to determine that Nooner has
satisfied the prejudice prong of Strickland. See Wiggins v. Smith,
539 U.S. 510, 525, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ("In order
for counsel's inadequate performance to constitute a Sixth Amendment
violation, petitioner must show that counsel's failures prejudiced
his defense."). Because the Arkansas Supreme Court never reached the
prejudice issue, we review that issue de novo. See id. at
534, 123 S.Ct. 2527 ("... our review is not circumscribed by a state
court conclusion with respect to prejudice, as neither of the state
courts below reached this prong of the Strickland analysis").
asserted to the Arkansas Supreme Court that his trial counsels'
failure to secure psychiatric testing and testimony meant that his "difficult
childhood and his psychiatric and mental problems" were not
presented to the jury. He fails to establish prejudice with regard
to either aspect of this contention.
As to Nooner's
"difficult childhood," the record reflects that
Nooner's mother was acquitted of a single charge that she had
physically abused Nooner, that
Nooner had been placed in several foster
homes, that Nooner had behavioral problems,
that Nooner had a tenth grade education,
and that Nooner had developed a problem
with alcohol abuse in his teenage years. Nooner's
stepfather testified as to all of this information during the
penalty phase. Nooner has offered no
evidence about his childhood that was not presented to the jury but
that would have been uncovered through psychological testing. Cf.
Williams, 529 U.S. at 395-96, 120 S.Ct. 1495 (counsel failed to
present evidence to jury that Williams's parents had been imprisoned
for the criminal neglect of Williams and his siblings; that Williams
had been severely and repeatedly beaten by his father; that Williams
had been placed in an abusive foster home; and that Williams was "borderline
mentally retarded"); Wiggins, 539 U.S. at 516-17, 123 S.Ct.
2527 (counsel failed to present evidence to the jury that Wiggins's
alcoholic mother frequently left him and his siblings alone for days,
forcing them to beg for food and to eat paint chips and garbage;
that Wiggins's mother had sex with men while her children slept in
the same bed and that she had once forced Wiggins's hand against a
hot stove, causing him to be hospitalized; that Wiggins was
physically abused by two foster mothers, raped by a foster father,
and gang-raped by boys in another foster home; and that Wiggins was
sexually abused by a supervisor in his Job Corps program).
It is similarly difficult to
ascertain what "psychiatric and mental problems" were not presented
to the jury. The jury heard testimony from Nooner's
stepfather that Nooner spent several months
at Rivendell. The Rivendell Report indicates that
Nooner was not diagnosed with any psychiatric disorder and
that he never received psychotropic medication during his stay. The
Rule 37 transcript contains several oblique references to a stay in
a second hospital, Bridgeway, but Nooner
has offered no details about this second hospitalization and there
is no indication that it was the result of psychiatric or mental
problems. As to Nooner's behavioral and
emotional problems, the Rivendell Report indicated that
Nooner was narcissistic, egocentric, self-centered,
and "somewhat depressed." During his stay at Rivendell,
Nooner showed a "dramatic" response to
treatment and a "marked" ability to overcome his behavioral problems.
There is simply no evidence in the Rivendell Report or elsewhere to
support Nooner's bare allegations that he
suffered from psychiatric and mental problems.
We conclude that the state court's
disposition of Nooner's ineffectiveness
claim was not an unreasonable application of Strickland.
dismissing the petition for habeas corpus on its merits is affirmed.
LAY, Circuit Judge concurring in
part and dissenting in part.
I concur with Part II of Judge
Wollman's opinion finding that Terrick
Nooner's request to withdraw his habeas
petition is not knowing and voluntary. I further concur that
Arkansas's victim impact is constitutional. However, I respectfully
dissent from Part III-C of the majority's opinion regarding
Nooner's ineffective assistance of counsel
As part of their preparation for
the trial, Nooner's two appointed counsel
learned that Nooner experienced a turbulent
and troubled childhood which included child abuse, foster home
placements, severe emotional and behavioral problems, school
problems, substance abuse, and two hospitalizations at psychiatric
institutions during Nooner's early teenage
years. Based on their observations of Nooner's
behavior, Nooner's attorneys determined
that he was competent to stand trial and did not request a
competency evaluation. Likewise, relying upon their own observations
of Nooner's current behavior and their
reading of a six-year old discharge report from one of the
psychiatric institutions, Nooner's
attorneys did not request assistance of a psychiatric expert to
examine Nooner for the purpose of preparing
mitigating evidence during the penalty phase of the trial.
In the state court, the victim's
mother testified during the penalty phase of the trial and described
the impact the murder had on her family. Nooner's
stepfather also gave testimony about Nooner's
troubled childhood, and to a lesser extent, about
Nooner's emotional problems. Nooner's
trial counsel attempted to persuade the jury that severe stress and
his young age of twenty-two mitigated the crime. The jury heard no
presented twelve independent claims of ineffective assistance of
counsel at his post-conviction proceeding in state district court.
Among other things, Nooner claimed
ineffective assistance because his attorneys failed to request a
psychiatric evaluation to assess his competency to stand trial (the
so-called "Act III" evaluation). Nooner
also included a similar but independent claim of ineffective
assistance based on his attorneys' failure to request a
psychological examination for the purpose of developing and
presenting mitigating evidence during the penalty phase of his trial
(the so-called "mitigation evaluation").
appeal to the Arkansas Supreme Court, Nooner
abandoned his claim of ineffective assistance of counsel based on
failure to request the Act III evaluation, but pursued his claim of
ineffective assistance of counsel based on a failure to request a
mitigation evaluation. Then in his federal habeas petition,
Nooner asserted five independent claims of
ineffective assistance of counsel including failure to secure a
mitigation evaluation. The district court held that, except for the
failure to secure a mitigation evaluation, Nooner
had procedurally defaulted on all of his ineffective assistance of
counsel claims. Nooner now appeals only
that portion of his ineffective assistance claim related to the
mitigation evaluation. I agree with the district court that
Nooner procedurally defaulted on all of his
ineffective assistance claims except for the one based on mitigation
"An ineffective assistance claim
has two components: A petitioner must show that counsel's
performance was deficient, and that the deficiency prejudiced the
defense." Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct.
2527, 156 L.Ed.2d 471 (2003). To establish deficient performance, a
petitioner must demonstrate that counsel's representation "fell
below an objective standard of reasonableness." Strickland v.
Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). In order to establish prejudice, "[t]he defendant must show
that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine the confidence in the outcome." Id. at 694, 104
In evaluating whether counsels'
performance fell below an objective standard of reasonableness, it
is necessary to first identify the relevant professional standard of
care. While Strickland counsels that no particular set of
rules can satisfactorily govern the myriad of unique circumstances
facing defense counsel, "[p]revailing norms of practice as reflected
in the American Bar Association standards and the like ... are
guides to determining what is reasonable...." Id. at 688, 104
S.Ct. 2052. The Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases (February 1989) ("Guidelines") state
that "[c]ounsel should conduct independent investigations relating
to the guilt/innocence phase and to the penalty phase of a capital
trial. Both investigations should begin immediately ... and should
be pursued expeditiously." Guideline 11.4.1 at A. The Guidelines
further explain that when selecting witnesses or evidence to present
counsel should consider the
following: 1) Witnesses familiar with and evidence relating to the
client's life and development, from birth to the time of sentencing,
who would be favorable to the client, explicative of the offense(s)
for which the client is being sentenced, or would contravene
evidence presented by the prosecutor; 2) Expert witnesses to
provide medical, psychological, sociological or other explanations
for the offense(s) for which the client is being sentenced ....
Guideline 11.8.3 at F. (emphasis
Attorneys representing clients who
face the death penalty are specifically advised to consider all
reasonably available evidence, including expert testimony.
Counsel should present to the
sentencing entity or entities all reasonably available evidence in
mitigation unless there are strong strategic reasons to forego some
portion of such evidence. Among the topics counsel should consider
presenting are: 1) Medical history (including mental and physical
illness or injury, alcohol and drug use, birth trauma and
developmental delays); 2) Educational history (including achievement,
performance and behavior), special educational needs (including
cognitive limitations and learning disabilities) and opportunity or
lack thereof; ... 5) Family, and social history (including physical,
sexual or emotional abuse, neighborhood surroundings and peer
influence); and other cultural or religion [sic] influence,
professional intervention (by medical personnel, social workers ...)
or lack thereof; prior correctional experience (including conduct on
supervision and in institutions, education or training, and clinical
services); ... 8) Expert testimony concerning any of the above
and the resulting impact on the client, relating to the offense
and to the client's potential at the time of sentencing.
Guideline 11.8.6 at A. and B. (emphasis
added). With the appropriate professional standards of care
established, I turn to the performance of Nooner's
two attorneys at trial.
In preparation for trial, defense
counsel engaged an investigator who interviewed
Nooner's mother about his history. These conversations
revealed that, during Nooner's early
teenage years, he was placed in foster care after his mother was
charged with child abuse and placed in two separate psychiatric
institutions for severe emotional and behavioral problems. This
preliminary investigation also revealed that
Nooner experienced substance abuse problems. Trial counsel
obtained records from Rivendell which indicated that
Nooner was under socialized, and
experienced "considerable family dysfunction, as evidenced by
multiple family conflicts." Abstract of Exhibits to Rule 37 Hearing
at 248 (Nooner's brief to the Arkansas
Supreme Court) (the "Rivendell Report"). The Rivendell Report
further identified that his reading skills were four years behind
placement, his math and written skills were five years behind
placement, his knowledge was three years behind placement, and even
though he was fourteen years old, his education level was that of a
third grader. Id. at 249. This report concluded that
Nooner's behavioral problems were not
caused by psychosis. Trial counsel terminated their investigation
without obtaining school records, medical records, or records from
child protection services. Trial counsel did not contact
Nooner's treating psychiatrists or request
any type of sociological or psychiatric expert to assist them in
developing or presenting a mitigation case.
Nooner faced the death penalty, developing this line of
mitigating evidence was his best, and perhaps only, possibility of
avoiding death. While the decision not to challenge
Nooner's competency to stand trial appears
sound, I take issue with his attorneys' decision not to secure a
psychiatric expert to evaluate Nooner for
purposes of developing mitigating evidence. The Guidelines advise
defense counsel to "present to the sentencing entity or entities all
reasonably available evidence in mitigation unless there are strong
strategic reasons to forego some portion of such evidence."
Guideline 11.8.6 at A. The Guidelines further advise trial counsel
to consider "[e]xpert testimony concerning any [mitigating evidence]
and the resulting impact on the client, relating to the offense and
to the client's potential at the time of sentencing." Id.
One of Nooner's
attorneys testified at the Rule 37 post-conviction hearing that the
introduction of the Rivendell Report would not help
Nooner's case and that its contents
foreclosed the need for further psychiatric investigation. Testimony
of Ms. Lea Ellen Fowler, Rule 37 Hearing Transcript at 25-26. Trial
counsels' characterization at the Rule 37 hearing of their potential
mitigation case suggests they discounted too quickly potential
mitigating evidence. In contrast to Ms. Fowler's testimony at the
Rule 37 hearing, the record shows that Nooner
was indeed from a broken home: by the age of fourteen, he had been
removed from his home by the state, had been transferred from foster
home to foster home, and subsequently institutionalized for several
months at Rivendell. Additionally, in contrast to Ms. Fowler's
testimony, the record shows that Nooner did
indeed suffer from substance abuse.
The information available to
Nooner's trial counsel indicated
significant childhood disturbances that merited further
investigation. While the Rivendell Report may have reasonably
foreclosed psychosis itself as a mitigating circumstance, it did not
foreclose an investigation into reasons for Nooner's
multiple foster home placements, investigation into his low
educational achievements, or an investigation into his substance
abuse. Most importantly, it did not foreclose the potential value of
engaging a psychiatric expert to evaluate Nooner
and to explain to the jury the resulting impact these experiences
had on Nooner. See Guideline 11.8.6
"[C]ounsel has a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary." Strickland, 466
U.S. at 691, 104 S.Ct. 2052. "[S]trategic choices made after less
than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on
investigation." Id. Nooner's trial
counsels'"strategic" decision not to pursue expert psychiatric
assistance for the penalty phase was simply premature based on the
initial information available to counsel. Under the facts of this
case, I conclude that this failure to request a psychiatric expert
to examine Nooner for the purpose of
developing and presenting mitigating evidence constituted
ineffective assistance of counsel under the Sixth Amendment.13
In addition to deficient
performance, Nooner must also establish
prejudice to obtain relief. "In assessing prejudice, we reweigh the
evidence in aggravation against the totality of available mitigating
evidence." Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. Because
Arkansas required juror unanimity to impose the death sentence,
trial counsel only had to persuade one juror that there was a
reasonable doubt whether the aggravating factors outweighed the
mitigating factors, persuade a single juror that
Nooner deserved mercy, or persuade a single juror to spare
his life. See Ark. Code Ann. § 5-4-603 (1987).
stepfather testified during the penalty phase about
Nooner's troubled childhood and, to a
limited extent, about his behavioral and emotional problems, without
the testimony from a psychiatric expert, "the jurors were left with
no guidance concerning how they might take such facts into
consideration in mitigation of punishment." Stephens v. Kemp,
846 F.2d 642, 655 (11th Cir.1988). The fact that no one other than
Nooner's obviously biased stepfather
presented this mitigating evidence "diminished the impact on the
jury of the facts [he] described."14
Id. at 654. A psychiatric expert could have provided
invaluable corroborating evidence strengthening the stepfather's
emotional testimony. I conclude that, given the scope and nature of
Nooner's troubled childhood, a psychiatric
expert could have developed and presented potentially powerful
As the record stands, we lack
enough information to determine whether the psychiatric evidence
would have changed the verdict of death. No lower court has
conducted any meaningful assessment of this evidence. I would
therefore remand this case to the district court for a plenary
hearing to evaluate Nooner's expert
psychiatric evidence to make this determination of prejudice in the
may have been prejudiced by ineffective assistance of counsel during
the penalty phase of his trial, prior to issuing relief it is also
necessary to find that the adjudication of Nooner's
claim by the Arkansas Supreme Court "resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States...." 28 U.S.C. § 2254(d)(1). "[A] state-court decision
involves an unreasonable application of [Supreme Court] precedent if
the state court identifies the correct governing legal rule from [Supreme
Court] cases but unreasonably applies it to the facts of the
particular state prisoner's case." Williams v. Taylor, 529
U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
The Arkansas Supreme Court
resolved Nooner's claim as follows:
alleges ineffective assistance of counsel because defense counsel
did not request a mental evaluation as allowed under Ark. Code Ann.
§ 5-2-309. Nooner contends the results
could have produced evidence that may have gone toward establishing
some mitigating circumstance in sentencing. He argues that his
counsel's failure to request an evaluation prevented the judge and
jury from having critical evidence showing a limited capacity.
Competency to stand trial has not been raised as an issue.
Nooner's counsel did not request a mental
evaluation. At the hearing below, Nooner's
trial counsel testified that they saw no reason for an evaluation at
the time of trial. They reported that Nooner
involved himself intimately in his defense. He did legal research,
participated in strategy discussions, and was articulate and able to
convey his concerns and wishes. They also reported that
Nooner behaved significantly different in
the Rule 37 hearing than he did during his trial.
Nooner offered testimony from his mother15
that he had behavioral problems and emotional problems which they
had shared with his trial counsel. However, she acknowledged that
although he had been treated at Rivendale [sic], he had not been
treated at a psychiatric facility nor prescribed anti-psychotic
Our review of the record indicates
that the trial court thoroughly evaluated Nooner's
claim and reasonably believed the testimony of trial counsel that
they carefully considered whether to request an evaluation but
discerned no good-faith basis for doing so.
Nooner's trial counsel also presented evidence that they had
adduced evidence of Nooner's troubled past
and treatment through his stepfather during the penalty phase of his
trial. We hold Nooner has not established
that trial counsel's decision not to request a psychiatric
evaluation constituted ineffective assistance.
v. State, 339 Ark. 253, 4 S.W.3d 497, 500 (1999) (emphasis added).
Although the Arkansas Supreme Court identified the correct Supreme
Court precedent under Strickland, it performed an
unreasonable application of the governing legal rules to the facts
of the case.
First, the Arkansas Supreme Court
incorrectly characterized Nooner's claim as
one of competency to stand trial, when in fact
Nooner's claim was about failure to investigate and present
mitigating evidence. On appeal to that court,
Nooner was not attempting to resurrect the competency issue,
he was claiming "ineffective assistance of counsel as a result of
the failure to seek psychiatric testimony for the penalty phase and
to present the evidence thereon." Abstract and Brief for Appellant
at 356 (Nooner's appellate brief before the
Arkansas Supreme Court). However, when reviewing
Nooner's ineffective assistance claim, the Arkansas Supreme
Court interjected issues only relevant to the competency issue which
was not appealed. For example, the Arkansas Supreme Court's opinion,
supra, states that Nooner's claim is
based on a failure to "request a mental evaluation as allowed under
Ark.Code Ann. § 5-2-309." Nooner, 4
S.W.3d at 500. However, this cited statute is specific to "Determination
of fitness to proceed." See Ark.Code Ann. § 5-2-309 (1987).
Furthermore, the Arkansas Supreme Court's discussion of
Nooner's behavior at his trial and at the
post-conviction hearing in state court (as a valid reason for not
requesting an evaluation) demonstrates that the issue of competency
to stand trial was conflated with the issue of a mitigation
Second, the Arkansas Supreme
Court's conflation of the distinct claims of competency to stand
trial with mitigation at sentencing caused that court to apply the
wrong standard of care in evaluating defense counsels' professional
conduct. The Arkansas Supreme Court identified the statutory
authority which governs competency to stand trial, see ark.
Code Ann. § 5-2-309 (1987), and then applied the corresponding "good
faith" basis professional standard from the ABA Criminal Justice
Mental Health Standards16
to evaluate trial counsels' performance. However, the good faith
standard from the ABA Criminal Justice Mental Health Standards does
not apply to conduct during the penalty phase of capital cases. The
standard that should have been applied appears in The Guidelines for
the Appointment and Performance of Counsel in Death Penalty Cases (February
1989). No United States Supreme Court case holds, or even suggests,
that a good faith basis to question the defendant's competency to
stand trial is required prior to investigating or presenting
psychologically-based mitigating evidence.
The application of the
wrong standard meant that the Arkansas Supreme Court failed to evaluate
Nooner's trial counsels' performance for
reasonableness under prevailing professional norms of practice.
Strickland, 466 U.S. at 688, 104 S.Ct. 2052. This was an objectively
unreasonable application of clearly established Supreme Court precedent.
28 U.S.C. § 2254(d).
I would hold that
Nooner's allegation of ineffective assistance
of counsel is sufficient to require a federal district court to evaluate
the expert psychiatric evidence and determine whether a new trial before
a jury on the penalty phase of Nooner's trial
should be held.
BYE, Circuit Judge,
dissenting in part and concurring in part.
Both my colleagues
conclude Terrick Nooner
was incompetent to request the dismissal of his habeas petition. Because
the record shows Nooner understood the
significance of his decision and its consequences, I respectfully
disagree and would honor Mr. Nooner's request
to dismiss his petition.
* We apply a clearly
erroneous standard to the district court's determination
Nooner was competent to dismiss his federal
habeas petition, Smith v. Armontrout, 812 F.2d 1050, 1058 (8th
Cir.1987), and thus I begin with a discussion of the record the district
court considered. Pursuant to an order of an administrative panel of
this court, the district court had Nooner
undergo a mental competency evaluation at the United States Medical
Center for Federal Prisoners in Springfield, Missouri. Dr. Richart
DeMier evaluated Nooner, and subsequently filed
a report opining Nooner lacked the competency
to dismiss his petition. Dr. DeMier concluded Nooner
was feigning mental illness, but nevertheless believed
Nooner was incompetent based on two factors.
First, Dr. DeMier based
his opinion regarding Nooner's incompetency on
Nooner's disorganized pattern of speaking when
discussing his legal case. In Dr. DeMier's opinion, this exhibited a
disordered thought process in which Nooner's
ideas and statement were not linked together in a rational way.
Second, Dr. DeMier did
not believe Nooner could articulate a rational
reason for wanting his habeas petition dismissed.
Nooner indicated, however, the dismissal of his habeas petition
will trigger an execution date, which in turn will trigger an
opportunity to appear before an executive clemency board. Dr. DeMier
reports Nooner "explained that, by Arkansas law,
once an execution date is set, he has the opportunity to appear before
an `executive clemency board.'" Nooner further
explained he will then have a hearing and an opportunity to call
witnesses — an opportunity he feels has been denied him in his
habeas proceedings. Specifically, Dr. DeMier's report indicates
Nooner said "[a]ll I need is an opportunity for
a hearing and to call witnesses."
Nooner believes the murder charge against him in the state
proceeding underlying this habeas petition is unlawful because, although
he was initially arrested for possessing stolen property, he was never
charged with and proven guilty of that crime. Specifically, Dr. DeMier's
report indicates Nooner said "[t]hey never
arrested me for the charge I'm doing." Nooner
believes Arkansas's failure to charge him with the crime for which he
was arrested invalidates the arrest as well as the subsequent murder
charge — because the murder charge followed from the initial
arrest. Dr. DeMier indicated Nooner "focus[ed]
on allegations that he was not detained, arrested, charged, tried or
convicted in the proper manner," and said "[t]he source of where these
murder charges came from were never proven.... It's a poisonous fruit
tree." Nooner wants the opportunity to present
these arguments to the executive clemency board.
Nooner confused Dr. DeMier, however, by describing his theories
about the unlawful arrest as a "removed lawsuit" (that is, the
possession of stolen property charge) being "concealed" by the courts,
because the courts never charged Nooner with
that crime. Dr. DeMier misunderstood Nooner to
believe this "hidden" or "removed" lawsuit would be revealed by a judge
or judges at the executive clemency hearing. Dr. DeMier candidly
admitted "I was never able to understand his rationale for this reported
belief." On the basis of his inability to understand
Nooner's theory, Dr. DeMier concluded Nooner
was delusional and engaged in "magical thinking," because everyone knows
judges do not conceal or reveal hidden lawsuits.
After Dr. DeMier
provided his report, the state deposed Dr. DeMier and sought their own
experts to address Nooner's competency. Before
the competency hearing was held, two doctors from the Arkansas State
Hospital provided reports opining Nooner was
competent to dismiss his habeas petition. Dr. Charles Mallory, the
forensic staff psychologist at the state hospital, concluded
Nooner was a competent malingerer. He disputed
both points upon which Dr. DeMier based his finding of incompetence.
First, with respect to
the disorganized pattern of speaking Nooner
exhibited when discussing his case, Dr. Mallory believed there was a
method to Nooner's madness. Dr. Mallory cited
several examples where Nooner would start with
a logical response to a question, then add a delusional ideation or
irrational statement. For example, when Dr. Mallory asked
Nooner what happened during his evaluation at
the Springfield Medical Center, Nooner replied:
"Dr. DeMier, he said I was delusional, seeing things that aren't true. I
don't know if he found me incompetent." That was a logical and rational
response to the question posed by Dr. Mallory. But
Nooner then added a delusional ideation to his statement: "I got
air bubbles in my body." Dr. Mallory cited another specific example.
When asked if he had any mental problems, Nooner
said: "No. The only problem I have is being toyed with when I know my
rights." Again, a logical and rational response to the question.
Nooner then added: "I'm suffering from anguish
because I have glands on my penis." Again, a delusion ideation or
irrational ending. Dr. Mallory cited other examples of this pattern as
well. In Dr. Mallory's opinion, this pattern of starting with a logical
response, but ending with an irrational statement, coupled with the fact
Nooner's statements were always grammatically
comprehensible, was simply further evidence Nooner
was feigning mental illness.
Second, with respect to
Dr. DeMier's belief Nooner could not articulate
a rational reason for wanting his habeas petition dismissed, Dr. Mallory
opined Nooner correctly understood the
consequences and significance of his decision. Nooner
understood an execution date would be set if his habeas petition were
dismissed, which would in turn trigger a hearing before the clemency
board. Dr. Mallory expressed his understanding of
Nooner's theories regarding the "hidden" or "removed" lawsuit
much differently than Dr. DeMier had. Dr. Mallory understood
Nooner believed his arrest on the murder charge
was illegal because he was never prosecuted for the charge for which he
was initially arrested, theft of a motor vehicle, i.e., the "hidden"
lawsuit. Nooner planned to reveal this "hidden"
lawsuit at the clemency hearing by calling witnesses, including the
judge who presided over the underlying state charges. Dr. Mallory
explained Nooner's argument showed an
unsophisticated understanding of the legal process, but a rational
desire to present his theories to a clemency board because
Nooner believed he had "messed up" his habeas
The state respondents
also obtained the opinion of Dr. Oliver Hall, the medical director of
forensic services at the Arkansas State Hospital. Dr. Hall essentially
agreed with Dr. Mallory's opinions in all respects.
When the district court
held the competency hearing, all three doctors testified and were
subject to cross-examination. Dr. Mallory thoroughly discussed and
explained Nooner's supposedly delusional ideas
about the "hidden" or "removed" lawsuit. Specifically, Dr. Mallory
showed that he wants to present this information in some kind of forum,
maybe the clemency board or review board. He has an idea, among others,
that because he and another man were caught in a stolen car —
that's when he was arrested — that he wasn't charged with car
theft or anything else, he was just charged with murder — first
of all, he thinks there's something wrong with the justice system and he
should have been charged with murder — I mean, of car theft or
something else first, and since he wasn't, they've concealed this
App. at 439. Dr.
Mallory further opined that Nooner's desire to
present this information to an executive clemency board showed an "inadequate
comprehension of certain legal procedures or processes," id. at
437-38, and "lack[ed] legal sophistication," id. at 439, but was
logical and understandable. Id.
Based on the record
presented to the district court, I find nothing clearly erroneous about
the district court's conclusion Nooner was
competent to request the dismissal of his habeas petition. The record
shows Nooner made a knowing and voluntary
decision. In reviewing the testimony and reports of the three experts
who testified regarding Nooner's competency, I
believe the record shows Nooner articulated a
rational reason for wanting to dismiss the petition.
Nooner understands an execution date will not be set until his
habeas proceedings are complete. He understands a hearing before the
executive clemency board will not be set until an execution date is set.
Nooner first moved this court to dismiss his
habeas petition on April 30, 2003, the day after the appeal was docketed.
His desire to have the petition dismissed — so he could have a
clemency hearing sooner rather than later — is understandable.
Witnesses get older and memories fade, evidence is lost or becomes stale.
Nooner can not pursue his theory about his
unlawful arrest in this habeas proceeding (the claim was never raised in
state court and would be procedurally barred), believes that to be his
best argument, and wants the chance to present the argument before an
executive clemency board. Now, two years later, Nooner
still has not had that chance.
It may be misguided,
perhaps even desperate, for Nooner to believe
he has a better chance of exoneration before the clemency board than he
has in this habeas proceeding, but I see nothing delusional about that
belief. As Dr. Mallory indicated in the district court proceedings,
Nooner's misconception of the strength of his
legal position does not equate with incompetence — otherwise we
would have to conclude many habeas petitioners who appear before us are
incompetent. Nor does Dr. DeMier's inability to understand
Nooner's inartful references to a "hidden" or
"removed" lawsuit mean Nooner was delusional. I
suggest that merely means the good doctor failed to understand
Nooner's "jailhouse" theory.
temptation to believe we know better than Nooner
what is in his best interests is strong, particularly because this is a
death penalty case. I find it necessary to set aside that temptation,
however, in order to honor Nooner's right to
control the course of this litigation as he sees fit. In the absence of
clear record evidence Nooner failed to
understand the significance and consequences of his decision, I would
respect Nooner's right of self-determination
and grant his request to dismiss this petition.
Although I would grant
Nooner's request to dismiss this habeas
petition, I must decide the merits of one of the claims raised in the
petition on which my colleagues disagree because we could not issue a
mandate otherwise. My colleagues disagree on whether
Nooner's trial counsel was ineffective in failing to present
psychiatric mitigation evidence during the penalty phase of
Nooner's trial. After carefully considering the
arguments presented by both my colleagues, I conclude
Nooner failed to establish the Arkansas Supreme Court's
resolution of his ineffective assistance of counsel claim was contrary
to or an unreasonable application of clearly established Federal law, as
determined by the Supreme Court. I therefore concur in denying the
We deny Nooner'spro se
motions dated December 27, 2004.
The United States Supreme Court first addressed
competency to waive habeas corpus rights inRees v. Peyton, 384
U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966) (per curiam). The
standard in Rees was clarified as a two-pronged inquiry in
Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321
(1993); accordingly, we cite the Godinez standard as discussed in
O'Rourke v. Endell, 153 F.3d 560, 567 (8th Cir.1998).
Dr. DeMier testified that he conducted personal
observations of Nooner, performed nine
psychological tests on him, and reviewed numerous documents
Dr. Mallory testified that he conducted personal
observations of Nooner, reviewed his prison
records, and reviewed Dr. DeMier's report and deposition testimony. Dr.
Hall testified that he performed a similar review
Dr. DeMier testified that Nooner
"seemed either unable or unwilling to discuss [the competency issues]
without spontaneously interjecting lots of ideas about his various
delusional beliefs." Mot. Hrg. Tr. at 25. Dr. Mallory provided an
example: "[Nooner] said, `Dr. DeMier, he said I
was delusional, seeing things that aren't true. I don't know if he found
me competent. I got air bubbles in my body.'"Id. at 43. Dr.
Mallory testified that this "rational start and irrational ending" was "highly
unusual, if not improbable in a person with genuine delusional illness."
Id. at 44.
Dr. DeMier testified that "What [Nooner]
told me very clearly is that he never asked to be executed. He did not
want to be executed." Mot. Hrg. Tr. at 19. Dr. Mallory testified
similarlyId. at 58 ("He's told Dr. Simon, `I don't want to die.'
And he's indicated that in other ways, too.").
Dr. DeMier testified that Nooner
was unable "to give a rational explanation for what he thought would
happen" at the clemency hearing. Mot. Hrg. Tr. at 27. "It was almost as
though he were employing what we sometimes call magical thinking. That's
a trait you see in two and three year-olds. They think that because they
want something to happen, it will happen. And he wasn't able to tell me
in any detail or in any what that I can understand what would transpire
InState v. Metz, 162 Or.App. 448, 986 P.2d 714
(Or.Ct.App.1999), petition for review denied, 330 Or. 331, 6 P.3d
1101 (Or.2000), the question was whether a change in the state's victim
impact evidence statute was "a general change in evidentiary law that
affects the way something is proved, but that does not affect the nature
of what is proved...." Id. at 457, 986 P.2d 714. The court held
that because the statutory change made victim impact evidence relevant
where it previously had not been, the revision "changed the fundamental
nature of the question the jury was to answer" and therefore violated
the ex post facto provision of the Oregon Constitution. Id. at
460, 986 P.2d 714. We decline to extend this reasoning to our
interpretation of the United States Constitution.
The district court's analysis on the merits made
clear that "psychiatric evidence" referred to trial counsel's decision
not to pursue or offer psychiatric testimony
Although the record reflects that
Nooner had a problem with alcohol abuse during his teenage years,
this fact was presented to the jury during the penalty phase through
testimony from Nooner's stepfather
After testimony from Nooner's
witnesses, Nooner fired his appointed counsel
and was permitted to proceedpro se for the duration of the
hearing. We agree with the district court's determination that the
record was fully developed on the relevant claims at the time that
Nooner undertook his self-representation.
The defaulted claim of ineffective assistance based
on the attorneys' failure to fully investigate Nooner's
troubled childhood may share a factual background with the claim of
ineffective counsel based on a failure to secure a psychiatric expert to
present mitigating evidence at the penalty phase. For instance, at a new
sentencing hearing, a psychiatric expert might delve into
Nooner's troubled childhood and testify about
those experiences in an attempt to mitigate the sentence. Such testimony
would be wholly appropriate. A psychiatric expert should not be
prevented from testifying about Nooner's
troubled childhood and dysfunctional social behavior if the psychiatric
expert determined they were relevant for the purpose of presenting
mitigating psychiatric evidence. This is a death penalty case and
Nooner is entitled to every benefit of a
I do not suggest that trial counsel had a duty to
present such testimony if, after adequate investigation, it appeared
that it would be harmful to Nooner's mitigation
case. I simply conclude that failure to pursue such evidence, based on
the information available to them at the time, was unreasonable under
the circumstancesWiggins v. Smith, 539 U.S. 510, 523-24, 123 S.Ct.
2527, 156 L.Ed.2d 471 (2003); Pickens v. Lockhart, 714 F.2d 1455,
1466-67 (8th Cir.1983).
During the guilt phase, Nooner's
stepfather (Mr. Hendricks) testified as Nooner's
alibi witness that Nooner was home at the time
of the murder. Considering the jury convicted Nooner,
they obviously found Mr. Hendricks' testimony less than credible.
Nonetheless, Nooner's attorneys put the same
discredited witness on the stand as the sole witness presenting
mitigating evidence. Nooner's mother was unable
to testify at trial. Apparently, her doctor considered the emotional
stress too great and advised her not to testify
This testimony occurred after the trial in the Rule
37 post-conviction proceeding in the state district court
The relevant guideline states:
In the absence of good faith
doubt that the defendant is competent to stand trial it is improper for
either party to move for evaluation. It is improper for either party to
use the incompetence process for purposes unrelated to incompetence to
stand trial such as to obtain information for mitigation of sentence, to
obtain favorable plea negotiation, or to delay the proceedings against
ABA Criminal Justice Mental Health
Standard 7-4.2(e) (1989) (emphasis added).
inmate Terrick Nooner, 36, appears before the state Parole Board
during a clemency hearing at the Varner Unit of the Arkansas
Department of Correction in Varner in this August 2007 file photo