Roberts v. Norris

Filing 307

ORDER granting in part, but mostly denying 294 Motion for Certificate of Appealability. Signed by Judge James M. Moody Jr. on 5/4/2022. (jbh)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

CAPITAL CASE
KARL ROBERTS
v.

PETITIONER
5:04-cv-00004-JM

DEXTER PAYNE, Director,
Arkansas Division of Correction

RESPONDENT
ORDER

1. Roberts seeks to expand the certificate of appealability on ten points. He mostly makes
the same arguments raised in his amended petition and rejected by this Court.1 With constitutional
claims denied on the merits, Roberts must show “reasonable jurists would find [this Court’s]
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). With respect to procedurally-barred claims, he must satisfy two elements: “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right, and that jurists of reason would find it debatable whether [this Court] was
correct in its procedural ruling.” Id. (emphasis supplied). Roberts has made the requisite showing
for a certificate of appealability on one point. His motion therefore is granted in part, but mostly
denied. No. 294.
2. A certificate of appealability is not warranted on Roberts’s ineffectiveness-of-trialcounsel points. The familiar Strickland standard applies. Roberts was required to demonstrate that,

1
Roberts filed his original habeas petition on July 16, 2004. No. 19. In May 2007, the Circuit designated the Honorable
Richard G. Kopf of the District Court of Nebraska to preside over the case to its completion. At that time, all judges
in this District had two capital habeas cases on their dockets. No. 38. Following a lengthy stay for exhaustion of claims
in state court, Roberts filed an amended petition on October 22, 2020. No. 266. Judge Kopf denied that petition on
September 20, 2021. Nos. 287 & 288. The Chief Judge of the Circuit thereafter relieved Judge Kopf of his intra-circuit
service. No. 296. And the case was reassigned. No. 299.

under the circumstances, his lawyers’ work was “outside the wide range of professionally
competent assistance,” and that there is a reasonable probability that, absent the alleged error, the
result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687–
997 (1984). This Court denied each of these claims with 28 U.S.C. § 2254(d) deference to the
Arkansas Supreme Court’s denial of relief in Roberts v. State, 2020 Ark. 45, *8, 9–10, 13.
Roberts repeats his argument that, because trial lawyers knew of his hallucinations, they
should have pursued a schizophrenia diagnosis, or informed the experts, for presentation of that
evidence in the guilt and penalty phases. Reasonable jurists, however, would not debate this
Court’s finding under deference review that state courts “dissected the performance of counsel
under the proper standard,” and that Roberts did not demonstrate his trial lawyers’ performance
was constitutionally deficient. No. 287 at 66.
Roberts also argues actual prejudice resulted when his lawyers did not pursue a change of
venue; he says it is debatable whether a biased juror was seated due to the alleged error. The
purportedly biased juror is Vickie Denton. No. 286 at 71–74. Denton’s juror questionnaire and
voir dire responses, however, did not establish bias. Nos. 245-12 at 20–25 & 243-3 at 279–311.
Her Rule 37 hearing testimony, offered seventeen years after the trial, did not establish bias either.
No. 245-3 at 18–27. And based on overwhelming evidence of guilt and the strength of the
aggravator (the capital murder was committed in an especially cruel or depraved manner), Roberts
did not demonstrate a reasonable probability that, but for the lawyers’ alleged venue-related error,
the result at the guilt or penalty phase would have been different if the trial had been held in another
county. Cox v. Norris, 133 F.3d 565, 573 (8th Cir. 1997). Reasonable jurists would not debate this
Court’s assessment that Roberts failed to demonstrate actual prejudice to support his
ineffectiveness claim. Roberts also says this Court should have considered whether prejudice must

2

be presumed. But he made no argument that presumed prejudice was appropriate in evaluating an
ineffectiveness-of-counsel claim. In any event, a certificate is not warranted on that point. Roberts
did not raise a presumed-prejudice argument in state court. And this is not one of those rare cases
where pretrial publicity was so extreme that prejudice can be presumed. Skilling v. United States,
561 U.S. 358, 377–81 (2010). There was not a televised confession amounting to “kangaroo court
proceedings.” Rideau v. Louisiana, 373 U.S. 723, 726 (1963). A “carnival atmosphere” did not
pervade the trial. Sheppard v. Maxwell, 384 U.S. 333, 358 (1966).
3. A certificate on Roberts’s procedurally defaulted juror-bias claim is not warranted
either. The Arkansas Supreme Court determined the claim was defaulted because it was first raised
in the Rule 37 proceeding when the state-court remedy was to request a new trial. Roberts, 2020
Ark. 45, *10. This Court found there was no cause and prejudice, or actual innocence, to overcome
that default. Murray v. Carrier, 477 U.S. 478, 495–96 (1986). Reasonable jurists would not debate
whether Roberts’s alleged incompetency hindered his ability to raise the juror-bias claim during
the post-trial period. Ervin v. Delo, 194 F.3d 908, 916 (8th Cir. 1999); Holt v. Bowersox, 191 F.3d
970, 974 (8th Cir. 1999). He was represented by counsel through the thirty-day period. Ark. R.
Crim. P. 33.3(b). There was no evidence that Roberts was not able to consult with them. Ervin,
194 F.3d at 916. Reasonable jurists, moreover, would not debate whether trial lawyers’ alleged
error “worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimension.” Murray, 477 U.S. at 494 (emphasis original) (quotations omitted).
Roberts says that, based on their Rule 37 testimony, seated jurors, Denton and Dennie Wornick,
were biased. For the same reasons a certificate is denied on the venue-related ineffectiveness claim,
Roberts did not demonstrate Denton was a biased juror. He did not show Wornick was biased
either. Wornick responded in his juror questionnaire and voir dire responses that he would not

3

automatically vote for a death sentence in a capital-murder case; he said that he could follow the
law that aggravators and mitigating circumstances, particularly mental disease or defect, must be
weighed in determining whether life imprisonment or a death sentence was the appropriate
punishment in a capital-murder case. Nos. 245-12 at 50–56 & 243-3 at 493–518. Wornick did an
about-face seventeen years later at the Rule 37 hearing, testifying that he believed the law required
a death sentence if a defendant is proven guilty of premeditated murder beyond a reasonable doubt.
No. 245-3 at 28–34. Roberts gave no reason to credit Wornick’s Rule 37 hearing testimony over
his juror questionnaire and voir dire responses. Opinions, moreover, can change with time and life
experiences. And this Court must assume Wornick followed the trial court’s death-penalty
instructions. Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985). Reasonable jurists also would not
debate whether the procedural default was overcome based on actual innocence. Roberts did not
show with clear and convincing evidence that, but for a constitutional error, no reasonable juror
would have found him eligible for the death penalty based on intellectual disability. Sawyer v.
Whitley, 505 U.S. 333, 336 (1992). Based on this Court’s analysis of the intellectual-disability
claim, No. 287 at 58–60, Roberts did not satisfy the Sawyer actual-innocence standard. And
Roberts’s reliance on Sasser v. Norris is misplaced; the Sasser issue was whether the petitioner’s
Eighth Amendment intellectual-disability claim was unavailable at the time of the state-court
proceedings and therefore eligible for merits adjudication on habeas review. 553 F.3d 1121, 1124–
27 (8th Cir. 2009).
Roberts also contends this Court, in the alternative merits analysis, erred in applying 28
U.S.C. § 2254(d) deference to the state circuit-court decision on a related ineffectiveness claim.
Roberts is correct. The Arkansas Supreme Court rejected the juror-bias claim because Roberts
failed to meet a state procedural requirement; habeas review was barred because Roberts did not

4

overcome that default. Coleman v. Thompson, 501 U.S. 722, 729–32, 750 (1991). Because the
claim is procedurally defaulted, any alternative merits analysis must be conducted under de novo
rather than deference review. The outcome, however, is the same under either review standard.
The two jurors’ Rule 37 hearing testimony, offered seventeen years after the trial, did not establish
that that they failed to disclose bias during voir dire; reasonable jurists would not debate that
conclusion.
4. The Court also denies a certificate on Roberts’s due-process claim based on a
prejudicial courtroom atmosphere. Roberts repeats his argument that buttons depicting the victim
worn in the courtroom created a risk that jurors would consider improper factors. He says the
buttons were approved by the prosecutor, apparently based on a photograph of the county’s victim
services coordinator wearing one, No. 286 at 84–85. The Arkansas Supreme Court held there was
“no clear error” in the circuit court’s determination that Roberts’s “bare allegations . . . could not
sustain a finding that he was deprived of his fundamental right to a fair trial.” Roberts, 2020 Ark.
45, *11. In denying habeas relief under 28 U.S.C. § 2254(d) deference, this Court found “[v]arious
spectators wore small buttons with the face of the victim, although the trial judge observed that
the jury was not paying attention to them.” No. 287 at 69. Roberts contends reasonable jurists
would debate whether the Arkansas Supreme Court’s decision was based on an unreasonable
determination of the facts thereby warranting de novo review. See 28 U.S.C. § 2254(d)(2). He
references his traverse argument: The Arkansas Supreme Court incorrectly affirmed the finding
that the claim was supported by only “bare allegations”; the claim was well-supported in the statecourt record, including evidence that the buttons were worn in the courtroom and may have been
visible to jurors. No. 286 at 82–84. Roberts also argues this Court erroneously analyzed the claim
with deference to the circuit court’s adjudication of the related ineffectiveness claim, No. 245-2 at

5

364–66. Both the Arkansas Supreme Court and this Court addressed the buttons in assessing the
due-process claim; reasonable jurors would not debate whether the Supreme Court made an
unreasonable determination of the facts. To the extent this Court deferred to the circuit-court’s
related ineffectiveness decision instead of the Arkansas Supreme Court’s adjudication of the dueprocess claim, the outcome is the same; a certificate therefore is not warranted.
5. Roberts also contends reasonable jurists would debate this Court’s assessment that the
prosecutor’s closing argument did not violate due process; he questions whether review pursuant
to 28 U.S.C. § 2254(d) deference was appropriate. This Court denied the due-process claim on the
merits, deferring to circuit-court findings on a related ineffectiveness claim abandoned on appeal
and the Arkansas Supreme Court’s automatic review of “fundamental safeguards” in death-penalty
cases. No. 287 at 69–70 (citing No. 245-2 at 374–79 & Roberts v. State, 352 Ark. 489, 508–09
(2003)). Assuming the claim is procedurally defaulted, reasonable jurists would not debate the
denial of the due-process claim; Roberts did not overcome the default by demonstrating cause for
the default and actual prejudice stemming from the alleged constitutional violation. Murray, 477
U.S. at 495–96. And the claim fares no better with an alternative merits analysis under de novo
review than it did under deference review. Habeas relief is warranted only if the alleged
constitutional violations in the prosecutor’s closing argument had a “substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht v. Abramson, 507 U.S. 619, 623
(1993). A “substantial and injurious effect” occurs when there is a finding of “grave doubt about
the effect on the jury of this kind of error.” O’Neal v. McAninch, 513 U.S. 432, 436 (1995). “Grave
doubt” exists when the issue of harmlessness is “so evenly balanced that [the court] feels in virtual
equipoise as to the error’s harmlessness.” Id. When the prosecutor’s alleged missteps are
considered in the context of the prosecutor’s closing argument and the strength of the aggravator,

6

reasonable jurists would not debate this Court’s denial of the due-process claim.
6. Roberts next seeks a certificate on his claim related to victim-impact testimony.
He challenged the same testimony in his motion to recall the mandatory-review mandate, arguing
there was a breakdown in the appellate process stemming from the admission of improper victimimpact testimony. Roberts v. State, 2013 Ark. 56, *2. The Arkansas Supreme Court held there was
no extraordinary circumstance resulting in a defect in the appellate process warranting recall of
the mandatory-review mandate. The Supreme Court determined “family members were testifying
about the effects that [the victim’s] murder had on the family.” Id. at *8. The Court found the
family members “did not request the death penalty,” and their testimony did not “inflame[] the
passions of the juror, such that it calls into question the imposition of the death sentence.” Id. In
that same order, the Supreme Court denied Roberts’s petition to reinvest jurisdiction in the circuit
court to consider a writ of error coram nobis, finding Roberts failed to act diligently in bringing
those claims. Id. at *10–14. Roberts raised the victim-impact claim on habeas review for the first
time in his amended petition in October 2020. No. 266. This Court found the claim was barred by
the AEDPA one-year statute of limitations because it did not relate back to the original habeas
petition. For the same reasons stated in Paragraph No. 3, reasonable jurists would not debate
whether the untimeliness is excused based on Roberts’s alleged intellectual disability.
On alternative merits review, this Court applied § 2254(d) deference to the Arkansas
Supreme Court opinion denying recall of the mandatory-review mandate. Roberts says deference
review was inappropriate because the Arkansas Supreme Court unreasonably applied Payne v.
Tennessee, 501 U.S. 808 (1991). On review, a motion to recall the mandate seeks “extraordinary”
relief and therefore is not “a proper vehicle for exhausting state remedies in Arkansas or creating
a state record that might support federal habeas claims. Wooten v. Norris, 578 F.3d 767, 786 (8th

7

Cir. 2009). Roberts, however, fares no better under de novo review. Reasonable jurists would not
debate whether there is a reasonable probability that his sentence would have been different absent
the complained of victim-impact testimony. Williams v. Norris, 612 F.3d 941, 952 (8th Cir. 2010).
It is not debatable that any error did not have a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht, 507 U.S. at 623.
7. Roberts also says a certificate is warranted on his exhausted claim related to the
involuntariness of his confession. Reasonable jurists would not debate this Court’s denial of the
claim pursuant to § 2254(d) deference review. Roberts contends the Arkansas Supreme Court
erroneously included an additional element in its involuntary-confession analysis, requiring him
to demonstrate that the confession was false. The Supreme Court’s rejection of the point, however,
did not hinge on that finding. Roberts, 352 Ark. at 497–503.
8. Roberts’s argument about his ineffective-of-appellate-counsel claim—based on the
failure to raise the prosecutor’s closing-argument misconduct and the prejudicial courtroom
environment—fares no better. He challenges this Court’s procedural rulings and merits review.
The Arkansas Supreme Court held appellate counsel’s work was not constitutionally deficient.
Roberts, 2020 Ark. 45, *11. This Court denied the claim under deference review; and stated that
it would come to the same conclusions under de novo review. Reasonable jurists would not debate
the conclusion that merits relief is not warranted under either standard of review. Appellate counsel
is not constitutionally required to “raise every nonfrivolous argument on appeal.” Sidebottom v.
Nixon, 46 F.3d 744, 759 (8th Cir. 1995). And “[t]he mere failure of appellate counsel to brief every
conceivable issue for appeal does not render appellate counsel ineffective.” Whitmill v.
Armontrout, 42 F.3d 1154, 1156 (8th Cir. 1994). The “process of winnowing out weaker arguments
on appeal and focusing on those more likely to prevail, far from being evidence of incompetence,

8

is the hallmark of effective appellate advocacy.” Otey v. Grammer, 859 F.2d 575, 580 (8th Cir.
1988) (quotations omitted). Roberts, moreover, did not demonstrate that he “would have been
likely to prevail had counsel advanced these additional claims.” Whitmill, 42 F.3d at 1156.
9. Roberts contends that, based on this Court’s granting of a certificate on his competency
to stand trial, the certificate should be expanded to include the issue of his competency to waive
the direct appeal. Roberts is entitled to present this claim for appellate review. Arkansas courts
considered the same evidence in assessing both claims; a short time elapsed between the hearing
on competency to stand trial and the hearing on Roberts’s appeal waiver. Roberts, 352 Ark. at
495–97. The certificate is expanded to include the issue of whether Roberts was competent to
waive direct appeal.
SO ORDERED this 4th day of May, 2022.

____________________________________
JAMES M. MOODY, JR.
UNITED STATES DISTRICT JUDGE

9