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***THIS IS A CAPITAL CASE

***

No.

IÍn tÍSe åupreme [,ourt of tbe @níteù btuteø

JACK GORDON GREENE,

Petitioner
v

WENDY KELLEY, Director,
Arkansas Department of Correction,

Respondent

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

JnNNIr.n.nR HoRAN

Federal Public Defender
Eastern District of Arkansas

Josrrl C. Wlllnus
Counsel ofRecord
Ass't Federal Public Defender
1401 W. Capitol, Ste. 490
Little Rock, AR 7220I
(sot) 824-6tr4
j ohn_c_williams@fd. or g

Counsel for Petitioner
QunsrroNs PnnsrNrnn
***CAPITAL CASE***

Petitioner believes, in his words, that his "central nervous system is totally

destroyed" and that his attorneys have tried "to validate making me out to be a

retard just to try to cover it up." According to doctors who have examined him,

Petitioner is physically sound but has brain damage and a psychotic disorder. The

district court held Petitioner competent to waive a claim under Atkins v. Virginia,

536 U.S. 304 (2002); found "overwhelming evidence" he is not intellectually

disabled; and concluded he has no substantial claim that trial counsel was

ineffective for not presenting mental-health evidence during sentencing. The Eighth

Circuit denied a Certificate of Appealability ("CoA") in a three'line order issued

three days after briefing \Mas completed. The questions presented are:

1. Does the Eighth Circuit's unique practice of summarily denying CoA

applications-and of doing so in approximately half of the capital habeas

cases in which a CoA is requested-deviate from this Court's precedent?

2. Does a court depart from the accepted course of capital-habeas proceedings by

applying a competency'to'waive standard that discounts the petitioner's

delusional thinking and by determining the petitioner is not intellectually

disabled based on a single IQ score of 76 and mental evaluations that did not

assess intellectual disability?

3. Is there a substantial ineffective'counsel claim under Martinez v. Ryan,566
U.S. 1 QOIZ), where counsel presented no mental-health mitigation and

ignored expert advice to test for brain damage later shown to be present?

I
Tasr,p oF CoNrnNrs

Opinions Below 1

Jurisdiction 1

Constitutional and Statutory Provisions Involved 1

Statement of the Case... 2

A. State-courtproceedings... Õ

B. Federal habeas proceedings. I
Reasons for Granting the Petition....... 24

A. The Eighth Circuit's CoA practice diverges from that of
other courts of appeal and from this Court's precedent ......26

B. The lower courts' mishandling of Petitioner's
Atkins claims demands this Court's intervention....... ......29

C. The Court's precedent makes the
ineffectiveness claim clearly debatable ...,,,32

Conclusion ......36

Appendix A - Eighth Circuit Order Denying CoA (June 3, 2016) ... 1a

Appendix B - Eighth Circuit Order Denying
Petition for Rehearing (Aug. 31, 2016) 2a

Appendix C - District Court Order Requiring
Petitioner's Appearance (Nov. 30, 2009). ..3a

Appendix D - District Court Order for
Competency Evaluation (Feb. 26,2010) .... 13a

Appendix E - District CourtOrder Finding Petitioner
Competent to Waive Atkins Claim (Oct.25,2012) 16a

Appendix F - District Court Order Denying Petition for
Writ of Habeas Corpus (Corrected) (Mar. 30, 2015) 37a

11
Appendix G - District Court Order Denying
Certificate of Appeatability (tr'eb. 19, 2016) I40a

Appendix H - Petitioner's Statements During
Competency Hearing (Oct. 6-7, 20LI) .......147a

Appendix I - Review of Eighth Circuit CoA Practice 168a

Appendix J - Eighth Circuit CoA Orders 173a

u1
Te¡ln oFAurHoRrrrES
Cases Page(s)

Atkins v. Virginia,
536 U.S. 304 e002).............. passim

Brumfield v. Cain,
135 S. Ct.2269 (ZOrr) 32

Buck v. Davis,
No. 15-8049 (U.S.) 3,25,26
Chanthakoummane v. Stephens,
816 F.3d 62 (5rh Cir. 2016) 27 n.I2

CIay v. Bowersox,
628 F.3d 996 (8th Cir. 2011) 27 n.rr
Cox v. Norris,
No. 97-1280 (8th Cir.)... ......27

Dickens v. Ryan,
552F. App'x 770 (grh Cft.2014) ....27 n.L2

Gilmore v. Taylor,
50s u.s. 333 (1ee3)............. 27

Godinez v. Moran,
50e u.s. 38e (1ee3) 29

Greene v. State,
878 S.W.2d 384 Grk. 1994) ......3

Greene v. State,
933 S.W.2d 392 Grk. 1996) .......7

Greene v. State,
939 S.W.2d 834 (Art<. 1997) t-7
I

Greene v. State,
941 S.W.2 d 428 Grt<. 1997).
t-7
I

Greene v. State,
949 S.W.2d 894 (Ark. 1997).....

1V
Greene v. State,
977 S.W.2dI92 Grt<. 1993) .......3

Greene v. State,
1 S.W.3d 442 (/,Jk.1999)
t1
I

Greene v. State,
37 S.W.3d 57e (Ark. 2001) 4,7

Greene v. State,
146 S.W.3d 871 (Ark. 2004) 4

Griffinv. Sec'y,
787 F.3d 1086 (1lrh Cir. 20rÛ. 27 n.I2
HaII v. -Florida,
134 S. Cr. 1e86 Q\t+) 29,3r,32
fn re l{eidnik,
112 F.3d 105 (3d Cir. 1997) 29,30

Ifohn v. United States,
524 U.S. 236 (leeS)... 28

Ifohn v. United States,
99 F.3d 892 (8rh Cir. 1996) 28 n.13

Lafferty v. Cook,
949 F.2d 1546 (10rh Cir. 1991). 29,30

Martinez v. Ryan,
566 U.S. r (2012) passlm

McGonagle v. United States,
137 F. App'x 373 (1st Cir.2005). 27 n.72

Middleton v. Attorneys General,
396 F.3d 207 (2d Cir. 2005).. 27 n.72

MiIler-EI v. Cockrell,
537 U.S. 322 (20æ) .26,27,28
Moore v. Texas,
No. 15-7e7 (U.S.) 32 n.I7

Nelson v. United States,
No. 07-3071 (8rh cir.). 27 n.II
V
Pickens v. Workman,
373 F. App'x 847 (10rh Cir. 2010) .....27 n.72

Porter v. McCollum,
55S U.S. 30 (2009) 35 n.19

ßees v. Peyton,
384 U.S. 312 (1e66).. 13,21

Ritchie v. Neal,
No. 15-1925 Qth Ctu.) 27 n.I2

Rompilla v. Beard,
545 U.S. 374 (2005) 33, 35

Sears v. Upton,
561 U.S. 946 Q010).............. 34,35

Slack v. McDaniel
52e U.S. 473 e00ù. 24

Smith v. Armontrout,
8r2F.2d 1050 (Sth cir. 1987) .................30

Strickland v. Washington,
466 U.S. 668 (1e84)..... 33, 35

Swisher v. True,
325 F.3d 22õ Øth Cir. 2003) ....27 n.I2

Treesh v. Robinson,
No. 12-4539, 2013 U.S. App. Lexis 3878 (eth Cir. Feb. 13, 2013) .27 n.I2

Trevino v. Thaler,
133 S. Cr. 1911 (ZOrs). 22

Webster v. Adm'r N.J. State Prison,
No. 13-3381, 2013 U.S. App. Lexis 25719 (gd Clr. Oct.25,2013) ....27 n.I2

Wiggins v. Smith,
539 U.S. 510 (2003).............. .......33, 34,35

Williams v. Taylor,
52e U.S. 362 (2000) 35 n.19

Woods v. Buss,
234F. App'* 409 Qth Cir. 2007) 27 n.72

V}
Statutes

2s u.s.c. s 1254(1).... 1

28 U.S.C. $ 2253(c).... 2

2s u.s.c. s 2254(d).... 32,3õ

28 U.S.C. $ zzs4(e)Q) 23,23 n.9

Other Authorities

Gary B. Melton, et al., Psychological Evaluations for the Courts (Z¿ e¿.
1ee7) 5 n.3

Geraldine W. Young, Note, A More Intelligent and /uslAtkins:
Adjusting for the -Flynn Effect in Capital Determinations of Mental
Retardation or Intelhectual Disability,G5 VaNt. L. Rsv. 6L6 (2012).. ..L4 n.4

v11
Pnrrrro¡¡ nona Wnrr op Cpnrronanr

Jack Gordon Greene respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Eighth Circuit.

OprNroxs Bplow

The order of the Court of Appeals denying a CoA (,A.pp. la) is unreported. The

order of the Court of Appeals denying a petition for rehearing (,A.pp. 2a) is available

at 2016 U.S. App. Lexis 16179 (gth Clr. Aug. 31, 2016). The order of the United

States District Court for the Eastern District of Arkansas requiring Petitioner to

appear for the purpose of determining whether he wishes to waive lnis Atkins claim

(App. 3a-I2ù is unreported. The district court's order sending Petitioner for a

competency evaluation (App. 13a-15a) is unreported. The district court's order

finding Petitioner competent to waive hís Atkins claim (.,A.pp. 16a-36a), its order

denying the writ of habeas corpus (,A.pp. 37a-I39a), and its order denying a CoA

Gpp. I40a-746a) are also unreported.

JunrsnrcrroN

The Court of Appeals entered its judgment denying a CoA on June 3, 2016. App.

la. The Court of Appeals denied a timely petition for rehearing on August 31, 2016.

App. 2a. On November L7 , 2016, Justice Alito extended the time to file this Petition

until December 29, 2016. This Court has jurisdiction under 28 U.S.C. S 1254(1).

C oNsrrturroNar, aNn Srarurony Pnovrsr oNs ltwor,vgo

U.S. Const. amend. VI:

In all criminal prosecutions, the accused shall have the Assistance
of Counsel for his defence.

1
U.S. Const. amend. VIII
Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.

28 U.S.C. \ 2253(c)

(t) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals
from . . . the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court . . . .

Q) A certificate of appealability may issue under paragraph (1) onty
if the applicant has made a substantial showing of the denial of a
constitutional right.

Starntmur op rHp Casp

Petitioner is under sentence of death in Arkansas. In these federal habeas

proceedings, the district court sua sponte called Petitioner before it to determine
whether he wished. to drop hís Atkins claim and ordered a hearing on his

competency to do so. Evidence at the hearing showed Petitioner has a 76 IQ and

suffers from brain damage and a psychotic disorder. The district court concluded, as

is relevant here, that Petitioner (1) was competent to drop tlne Atkins claim and (2)

had no substantial claim to ineffective assistance of sentencing counsel. The court

further concluded reasonable jurists cannot debate these points and denied a CoA.

Petitioner then asked the Eighth Circuit for a CoA. Three days after completion of

briefing in the Eighth Circuit, that court denied a CoA in a three-sentence order.

This case raises important questions concerning the standards that apply to

capital defendants who are mentally ill or show signs of intellectual disability.
Technically speaking, however, this Petition presents a narrower issue: are those

2
questions even debatable? As exhibited below, the Eighth Circuit has strayed from

this Court's precedent and the practice of other circuits by denying CoAs in capital

cases at an excessively high rate and by doing so with a minimal amount of process

The Court should hold this Petition for Buck v. Davis, No. 15'8049, a case that

exhibits a similar problem in the Fifth Circuit and in which the Court is considering

the proper standard for granting a CoA. If the Court concludes plenary review is

un\Marranted, at a minimum it should grant, vacate, and remand to the Eighth

Circuit for a proper CoA analysis

A. State-court proceedings.

1. On October 15, 1992, Petitioner was convicted of the capital murder of

Sidney Jethro Burnett and sentenced to death ("1992 trial"). The Arkansas

Supreme Court affirmed the conviction but reversed the sentence. Greene v. State,

87S S.W.2d 384 (Ark. 1994). Represented by new counsel, Petitioner received a

second death sentence ("1996 resentencing"), which was also reversed. Greene v.

state, 977 S.W.2d 192 (erk. 1998).

At the third sentencing ("1999 resentencing"), Petitioner was represented by the

same attorney who handled the 1996 resentencing. Most of the testimony-thirty'
three pages of transcript-was read from the 7992 trial record. ECF No. 9F18, 3d

Tr. R. at 476. These witnesses were family members who testified about Petitioner's

past.1 Counsel also presented live testimony from an acquaintance, who said

I Leola Minton, Petitioner's former mother-in-law, testified that she loved Petitioner, that
he "was very nice," that he "treated us with respect," but that he sometimes "seemed
depressed." ECF No. 944, 1st Tr. R. at 699-704. Danny Greene, Petitioner's brother,
testified about their father's suicide, Petitioner's physical abuse at the hands of his
o
ù
Petitioner showed kindness to two strangers in the 1980s, and from an employee of

Petitioner's former attorney, who said Petitioner was remorseful. This testimony

consumed thirteen pages of transcript. Id. at 477-90. Counsel presented no evidence

regarding Petitioner's mental health or intellectual capabilities. The prosecution's

case for aggravation focused on the heinousness of the crime, in which Petitioner

bound and gagged the victim, beat him, stomped him, stabbed him, and cut his face

before shooting him in the chest and head. The jury sentenced Petitioner to death

after finding a single aggravating factor-the murder's cruelty-outweighed two

proven mitigating factors: Petitioner's grandfather abused him and he had a

turbulent childhood. ECF No. 9F15, 3d Tr. R. at 87-98. The Arkansas Supreme

Court left this third death sentence undisturbed. Greene v. State, 37 S.W.3d 579

(Ark. 2001).

Petitioner next filed a petition for state postconviction relief. As to the sentence,

he alleged ineffective assistance of counsel on four grounds unrelated to mental

health.z The trial court denied the postconviction petition without a hearing. The

Arkansas Supreme Court affirmed. Greene v. State,146 S.W.3d 871 (ark. 200Ð.

grandfather, Petitioner's sexual abuse at a military training school, Petitioner's self-
commitment to a mental hospital, and the circumstances of their mother's death, for which
Petitioner blamed another of his brothers. Id. at 705-19. Georgia Pearl Caudill, Petitioner's
sister, testified about their grandfather and the circumstances of their mother's death. -Id.
at 720-25. Karen Eller, Petitioner's ex-wife, testified that, though Petitioner had a problem
with drinking and drugs, he was an "excellent father" who "loved his mother to no end" and
was devastated by her death. Id. at726-32.

2 The alleged grounds were that resentencing counsel was ineffective for (1) using
transcript testimony from the 1992 trial instead of live testimonyi (2) failing to object to the
state's closing argument, (3) failing to object to comments about Petitioner's possible release
from prisoni and (+) failing to adequately chailenge the testimony of the state medical
examiner. ECF No. 9J, Postconviction R. at 14-18.
4
2. Trial counsel's efforts to develop mental-health evidence rù¡ere limited to the

1992 trial. In that proceeding, Petitioner offered the testimony of Dr. John Frank

Warren, a psychologist, who saw Petitioner for sixteen hours, reviewed his records,

and administered a test called the Minnesota Multiphasic Personality Inventory

("MMPI").3 Dr. Warren explained that Petitioner had substance-abuse and

personality disorders. ECF No. 944, lst Tr. R. at 646-64. On cross-examination,

when asked about a head injury Petitioner suffered in a car accident as a teen, Dr.

Warren explained: "I know of no permanent medical injury from that, although that

has not been assessed. One of my earlier recommendations was neurological

evaluation because he does show frontal lobe impairment." Id. at 672. Counsel

presented no further evidence of brain damage.

Based on this testimony, Petitioner offered two disorders in mitigation: (1)

"substance abuse disorder, mixed: cocaine, alcohol, cannabis" and (2) "mental

disorder: mixed personality disorder: paranoid-antisocial with borderline structure."

ECF No. 941, 1st Tr. R. at 86. The jury concluded there was evidence that

Petitioner had been diagnosed with mixed personality disorder, but this mitigating

circumstance "did not exist at the time of the murder." fd. at92

At the 1996 resentencing, defense counsel read Dr. Warren's prior testimony into

the record. ECF No. 9F8, 2d Tr. R. at I27I. There was no additional testimony on

3The MMPI is a personality test. As a category, personality tests are "best used to assess
mental disorders that are not usually accompanied by impaired consciousness or significant
deficits in cognitive functioning." Gary B. Melton, et al., Psychological Evaluations for the
Courts 46 Qd ed. 1997). Brain injury and deficits in intelligence and cognitive functioning
are discerned through other sorts of tests. .1d.
5
Petitioner's mental health. In mitigation, counsel specified the same two mental

disorders submitted at the 1992 triali the jury found neither. ECF No. 9F4, 2d Tr.

R. at 434-45.

At the 1999 resentencing, counsel offered no evidence about mental health at all

and didn't submit mental disorders as a mitigating factor. ECF No. 9F15, 3d Tr. R.

at 88-96.

3. The Arkansas State Hospital issued four reports on Petitioner's mental

status during the course of his trials.

. In a four-page report before the 1992 trial, the State Hospital diagnosed

Petitioner with alcohol abuse, cocaine abuse, and personality disorder not otherwise

specified. ECF No. 941, lst Tr. R. at 49. Doctors noted that Petitioner "appeared to

be of at least average intelligence," though "formal intellectual testing was not

done." fd.

. In a two-page report issued before the 1996 resentencing, the State Hospital

diagnosed Petitioner with "Personality Disorder, Not Otherwise Specified (with

Antisocial and Narcissistic Traits)." ECF No. 9F2, 2d Tr. R. at 237 . The report noted

Petitioner's belief that his "life was in immediate danger if he remained at Tucker

Prison" and that his attorney vras in a "conspiracy" against hím. Id. The doctors

chalked this belief up to Petitioner's "narcissistic personality traits" rather than

"any type of mental disease or defect" (though they performed no testing). 1d.

o Petitioner refused to cooperate with an evaluation before the 1999

resentencing, but the State's doctor nevertheless diagnosed Petitioner with

6
Antisocial Personality Disorder and concluded, based on a review of Petitioner's

written requests for medical care, that Petitioner is not intellectually disabled and

that his "intellectual abilities [are] in the average range." ECtr'No. 9F15, 3d Tr. R.

at 54-55.
o Petitioner cooperated with a fourth evaluation when he sought to waive his

appeal from the 1999 resentencing. Id. at II2-I3. The trial court found Petitioner

competent to waive, and the Arkansas Supreme Court affirmed. Greene v. State,I

S.W.3d 442 (/,rk.1999). Petitioner later revoked his waiver and asked for counsel.

Greene v. State,37 S.W.3d 579 Grk. 2001) (supplemental opinion).
This waiver \Mas the last in a series of Petitioner's attempted waivers and

conflicts with counsel during the state proceedings. He clashed with multiple

attorneys over their failure to pursue the theory that he was being illegally tried in

Arkansas because an extradition agreement between Arkansas and North Carolina

required him to be returned to North Carolina for trial on the murder of his brother.

See, e.g., ECF No. 9F4,2d Tr. R. at 531-39. His attempts to waive his second appeal

engendered multiple hearings-at which Petitioner said he was waiving because

"them people down there have relentlessly dogged me" with "constant insults" and

"constant threats," ECF No. 9F10, Supp. 2dTr. R. at 18-before the Arkansas

Supreme Court ordered the case to proceed. See Greene v. State,933 S.W.zd 392

Grt<. 1996); Greene v. State,939 S.W.2d 834 (erk. 1997); Greene v. State,94l

S.W.zd 428 (Ark. 1997); Greene v. State,949 S.W.2d 894 (Ark. 1997).

7
B. Federal habeas proceedings.

1. Petitioner filed his federal habeas petition on October 20,2004. He asserted

two claims relevant here. First, he alleged intellectual disability. ECF No. 1 at 92-

94. Second, he alleged that counsel at the 1999 resentencing was ineffective for

failing to adequately investigate and present evidence of his mental health, and

that an adequate investigation would have shown major psychiatric illness, severe

damage to his brain's frontal lobes, and intellectual disability. Id. at 67-74.

In September 2006, Petitioner sent the court a letter he had recently written to

the Governor of Arkansas complaining about:

the prolong and repeated injuries inflicted on me by the same means
since July 5, 2004 by staff of the Ark. Dept. of Corrections with the
deliberate permanent destruction of such vital bodily functioning organs
that's caused injuries so severe and traumaticly inflicted to my brain,
head, left inner ear etc. with such neurological spinal system nervous
and other trauma brain damage that I suffer as well with a deadly and
severe concussion for all of which is so painfully torturing and inhumane
I can no longer humanly function properly and live with.
ECF No. 12 at 5. This complaint echoed others in which Petitioner alleged, for

example, that "permanent destruction of these vital bodily functioning organs was

orchestrated/conspired criminally by the following and in this chronological order,

fired ex-attorney Jeff Rosenzweig, warden Grant Harris, unit medical dept. nurse

Connie Hubbard, and prison guard Sgt. V. Morris." ECF No. 61-5 at 6.

The district court scheduled a hearing on Petitioner's intellectual-disability

claim. Four months before the hearing, Petitioner's counsel moved to suspend the

proceedings pending adjudication of Petitioner's competence to proceed. ECF No. 51

Counsel supported the request with an affidavit from Dr. Dale Watson, a

8
neuropsychologist. ECF No. 6I'2. The affidavit noted Petitioner's poor performance

on neuropsychological testing-though not for lack of effort-and his somatic

delusion that, contrary to the results of medical examinations, he suffered from

injuries to his ear and spine.

After the case was transferred to a different judge, the district court cancelled

t}rre Atkins hearing. The same day, Petitioner wrote a letter to the clerk of the

Eastern District of Arkansas objecting to the evidentiary hearing as follows:

Clerk, the enclosed documents need to be given to the judge that has
ordered this "Evidentiary Hearing" and since the attorneys of the Ark.
Fed. Public Defenders office have never shared nothing with me about
my case, not even this "Evidentiary Hearing" order, except face page,
after making me out to be some kind of incompetent retard to get their
office appointed to my case and try and cover up crimes of inhumane
injuries maim and torture, and now try and give some kind of validation
by hiring and flying two neurologist from out of state to come and give
me an exam for about 3 hr each on dates etc. Iisted below to try and
validate such brain neurological injuries
***

at a cost of un-toll thousands of fed. tax dollars for which I can still
receive no meaningful medical treatment for which I have been forced
to live with such endlessly inflicted re-injuries by the same means I now
have a hernia from my body from being so physically broken down as
described in enclosed documents.

ECF No. 64'2 at 2

Finding that Petitioner "disapproves of efforts to show that he is mentally

retarded" and that, contrary to Dr. Watson's opinion, "it is possible that

[Petitioner's] withdrawal from neuropsychological testing is based on a rational

choice to abandon a claim that he is mentally retarded," the district court concluded

I
that "the most efficient course is to convene a hearing to determine whether

[Petitioner] wants to proceed with a claim that he is mentally retarded." App. 9a.

2. Petitioner's counsel entered an objection to the Atkins colloquy and

submitted a declaration from Dr. George Woods, a psychiatrist, giving a preliminary

assessment of Petitioner's mental status based on written records. Dr. Woods noted

that (1) Petitioner had consistent academic difficulties and failed to progress past

eighth grade, ECF No. 84-2 at 8; (2) though Petitioner had never received proper

intelligence testing, he scored 78 on an IQ equivalency test at age Iõ, id.; ß)

Petitioner could never hold a job for more than several months at a time, id. at g; Ø)

besides the car accident noted at trial, Petitioner suffered another head injury in

another car accident for which he was hospitalized in 1984, id. at 10-11; and (5)

Petitioner was hospitalized once in 1984 with a self-inflicted gunshot wound to the

foot and twice in 1982 with self-inflicted knife wounds, to the leg on the first

occasion and to the wrists on the second, id. at 9-11.

The district court overruled counsel's objection and conducted the Atkins

colloquy. Unprompted, Petitioner began by explaining his physical conditionl "Your

Honor, I have to contort myself like this here just to deal with the pain. My central

nervous system is destroyed because of all the injuries constantly inflicted to my

brain and inner ear." ECF No. 105 at 3. Upon the court's questioning, Petitioner

said he did not want to pursue the Atkins claim. The following exchange ensued:

THn Counr Do you understand that this is a valuable constitutionai
right?

10
PprrrroNnn: Your Honor, like I just stated, this organization has had
my case for all these years. They have-between the
Department of Corrections and this Federal Public
Defender's Office, they have wasted hundreds of thousands
of dollars trying to cover up these crimes against humanity
here.

Tup Count: What crimes against humanity?

PprltloNnn: To inflict a person with such injuries that force a person to
Iive with such injuries, and then spend untold thousands
and thousands of dollars to try to validate making me out
to be a retard just to try to cover it up. I live like this every
moment of the day,2417.It's all I can do to keep from dying
from these injuries to my brain that has destroyed my
central nervous system. I filed complaints four, five years
ago on Judge Wilson even for having my case. I tried to file
complaints through the bar association on these lawyers
that took over my case without my authorization. And
instead of helping me get medical treatment, they fly in a
neurologist and try to use it-try to use my injuries that
has been inflicted upon me like this to validate making me
out to be a retard.

Tun Counr: All right. Is there anything else you want to say?

PputIoNpn: Ido not wish to pursue on the grounds of-they have no
authorization to represent me, period. They never have.
The only reason I signed a release form last year is to get
the neurologist to come in so they could give me an exam. I
can't even get a copy of the exam reports. They came over
to the Varner Max Unit and examined me for about three
hours eachi one \Mas from Houston, Texas, and the other
one \Ã/as from Pinole, California. That's taxpayers' money.
That's hundreds of thousands of dollars.

THp Count: Well, go ahead Mr. Greene. I'm listenÍng

PrrtttoNpn: I can't talk

Id. at 6-7. The court announced its intention to send Petitioner to a federal medical

center for evaluation and asked Petitioner to cooperate. He responded:

11
PprIrIo¡¡nn Your Honor-yes ma'am. I accept full responsibility for
everything. But this right here, this here, aII this is over a
three-page legal document. I'm from the state of North
Carolina. I pushed the issues of making the Department of
Correction take me back to the state of North Carolina,
which is in the executive agreement between the State of
North Carolina and the State of Arkansas. Instead, they
left me here in the Department of Correction, resentenced
me to death, not once, not twice, but three times, and here
we are like this now. This is a disgrace. I mean, I'm okay
with being put to death. Like I said, I accept full
responsibility. But to be injured, maimed, and tortured like
this for years to this-

THn Counr: WeIl, Mr. Greene, how are they injuring and maiming and
torturing you?

PprruoNpn Your Honor, back ín 2004, covering a heat vent up, I tore
the rotator cuff in my right shoulder. After weeks of
complaining, they take me over to Pine Bluff and x-ray me.
I got a torn rotator cuff in my right shoulder. Brung me
back and drugged me, drugged me so much, and have an
officer make her sergeant-and I've got all this
documented all the way to the Eighth Circuit Court of
Appeals from the complaint I filed on Judge lVilson.
Slammed the trap door over and over repeatedly for about
eight to ten times a day until finally my inner ear gave way.
And since then, any sound-I have to wear an earplug2417,
and whenever f'm around any kind of noise, I still have to
cover my ear. I can't protect myself. I'm like a fish in a
barrel being shot with a shotgun. This has been going on
for years.

Id. at 19-20. Petitioner then asked if he could fire his attorneys and proceed to

litigate the petition alone, which triggered the following conversation

Tup Counr Do you understand that most habeas petitions are based
on the record in the case and it takes someone with legal
training to appreciate the intricacies of what might be
there by way of constitutional violations?

PsrrrroNan: Your Honor, I totally understand that, Your Honor. But I
live with so much torture and pain that I welcome death,

T2
but I'm not just going to give it to the state. I'm not going
to let the State Department of Correction or State of
Arkansas get away with doing me this way. It cost me and
my deceased relatives almost a half million dollars to get
to this point. And the best I can estimate, between the
Department of Correction and this Federal Public
Defender's Office, they have wasted well over $250,000 of
the taxpayers'money to try to cover this here up. This is no
front here. I live like this every moment of my life. I
couldn't get up here and disrespect this Court like this and
say what I'm saying without being able to prove it. I can
prove everything I say.
Id. at 2l

3. On authority of Rees v. Peyton,384 U.S. 312 (1966), the district court ordered
Petitioner transported to a federal medical center in Springfield, Missouri, "for the

purpose of psychiatric or psychological evaluation." App. 14a. The court told the

center to determine, among other things, whether Petitioner has a mental disease,

disorder, or defect that "may substantially affect Petitioner Greene's ability to make

rational decisions with respect to these habeas proceedings, in particular with

respect to pursuing or abandoning a claim that he is mentally retarded and

therefore ineligible for executíon." fd.

Dr. Christina Pietz evaluated Petitioner from May 27,2010, to June 27,2010

Petitioner actively participated in the evaluation for a time. During the period of

cooperation, he told Dr. Píetz of his maladies:

I have no desire to be executed but I have no desire to live like this for
the rest of my life either. . . . It is so loud inside my head. It feels like
electrical impulses are going through my head all the time. If you took
that pen and tapped it on the table I can feel it all the way down my
spinal column. It is so loud inside my head.

13
Competency Hr'g Resp't's Exh. 2, Forensic Report at 7 . Petitioner later informed Dr

Píetz he would no longer cooperate with the evaluation: "I feel confident that the

intelligence test you administered demonstrates I have above average intelligence

which should prove I am not mentally retarded as those lawyers in Arkansas

profess and therefore not competent." fd. at 15. In actual fact, the intelligence test

Dr. Pietz administered (the WAIS-IV) returned a full-scale IQ of 76. Id. at 17. Dr.

Píetz determined that, despite his stated desire to be deemed competent, Petitioner

didn't put in full effort so "a score of T6likely underestimates his overalllq." Id,

Assuming 76 was a valid score, Dr. Pietz concluded, without considering the

standard error of measurement or the "Flynn Effect,"a that Petitioner is not

intellectually disabled because his IQ is too high. Id. at 22. Dr. Pietz conducted no

testing of Petitioner's adaptive functioning, finding such testing unnecessary based

on her personal observation that Petitioner was able to communicate, "dress

himself, use the bathroom, complete basic hygiene, and feed himself." -Id.

Regarding the question of mental disease or disorder, medical staff reported that

Petitioner's "speech was erratic at times . . . thought processes was illogical." Id. at

a The "Flynn Effect" refers to score inflation that occurs because the norms upon which
scoring is based become obsolete over time. "[T]he Flynn Effect cal]s for a score reduction of
0.3 points for every year that has passed between the year the test publisher standardized
the test and the year the subject took the test." Geraldine W. Young, Note, A More
Intelligent and Just Atkins: Adjusting for the Flynn Effect in Capital Determinations of
Mental Retardation or fntuIhectuaL Disability,6ú VeNl. L. Rnv. 615,617 QOtù (citing
James R. tr'lynn, What is Intelligence? Beyond the Flynn Effect Il2-L4 (ZOOZ)). As the
WAIS-N was published in 2008 and Petitioner took it in 2010, a score reduction of at least
0.6 points is warranted. Dr. Watson critiqued this and other shortcomings of the test
administration in a letter provided to the court. ECF No. 178-1 at 2. For instance, a
measure within the test meant to assess effort showed "good effort" despite Dr. Pietz's
conclusion otherwise. Id. As Dr. Watson wrote, "even a minimal error in scoring could place
[Petitioner] within the range of scores consistent with Intellectual Disability." 1d.
74
16. Dr. Píetz nevertheless remarked that Petitioner "never appeared to be

experiencing . . . disorganized thinking" and "there was never any indication that

[Petitioner] was suffering from any symptoms of a mental illness." fd. Dr. Pietz

acknowledged that doctors had determined Petitioner's complained-of ear to be

normal and that Drs. Watson and Woods had diagnosed Petitioner with somatic

delusions. Id. at 19. She ultimately disagreed with that assessment:

lPetitioner's] belief that he is in constant pain is not a somatic delusion,
and he does not suffer from a mental illness. In my opinion, the most
important conclusion from my review of [Petitioner's] records involved
the absence of any mental health treatment from 1992 to the present
[-¡.e., during the period of his Arkansas incarceration]. . . . If lPetitioner]
r,lvere truly exhibiting symptoms of a psychotic disorder, it is highly
unlikely this would go unobserved in such a structured setting.

Id. at 20. Dr. Pietz also opined that "[t]here was absolutely nothing in lPetitioner's]

writings suggesting any cognitive slippage, disorganizatíon of thoughts, or bizarce

statements." fd. Ultimately she concluded , after administering the MMPI, that

Petitioner has Antisocial Personality Disorder and no mental disorder. Id. at 20-2L.

Shortly after returning to Arkansas, Petitioner asked the court for appointment

of an attorney who "will help me through the final process of my case who will do as

I instruct and not try and cover a case of maim and torture within the state of Ark.

and it's dept. of coruections by making me out to be retarted." ECF No. 127. He also

sent a number of affidavits to the court. For example:

U.S. Presidential Candidate prior Ark. gov. Mike Huckabee and prior
att. gen. Ark. gov. Mike Beebe, both with political knowledge of
appointed and retained attorney's prior of current in their illicit
infLuence of bias seniorArk. Dept. of Corrections staff to have expedited
by racial black staff of Ark. death'row to inflict constant re'injury to
brain with concussion destroying atl thirty one (31) paired neurological

15
spinal nerves through burst left inner ear etc. as initially described by
same means in eleven (11) sworn affidavits court filed in both Johnson
Co. Ark. Wilkes Co. N.C. in 2005.06 whereas through inhumane injuries
maim and torture I expose this state's appointee political officials.

ECF No. 136 at 5. The court denied Petitioner's request. ECF No. 142

4. A hearing on Petitioner's competence to waive the Atkins claim was held on

October 6-T,20IL Petitioner engaged the court immediately:
PrflfloNsn: I am far from being mentally retarded, Your Honor. My
brain is injured. My central nervous system is totally
destroyed. I have been-

Tsp Counr Iunderstand that you have said that, but let me proceed
without you interrupting me.

PprrrroNpn: Let me bring another thing to your attention. For the last
year I have been denied access to this court here. It's all
explained right there in those letters for which I got no
reply. And my last correspondence was a year ago, and it
was forwarded to the public defender's office. Now, I have
asked that the witnesses be brought up in here where I
could-
THs Counr: Now, Mr. Greene, you are jumping the gun on me.

PpuuoNpn: I have a right to defend myself against what I am being
accused of.

THp CouRr: Mr. Greene, at this point-
PnttttoNnn: It's my constitutional right

TsB Counr At this point you are not your own lawyer. That does not
mean that the Court will not eventually permit you to
represent yourself and excuse your lawyers, but at this
point in the proceedings, I am trying to determine your
competency. And so if I find that you are competent, I will
permit you to address the Court for yourself.

PputtoNnn: If I don't present these documents, how will you know that?

16
THr Counr: I can know that based on evidence that will be placed in
the record and some of which is already in the record.

PprmroNpn: Most of that evidence is lies made up to cover up for the
Arkansas Department of Correction. The Attorney
General's office has allowed the Federal Public Defender's
office over the years to spend hundreds of thousands of
dollars of taxpayers' money.

THp Counr Mr. Greene, if you do not be quiet, I am going to have to
ask that you be not allowed to speak or rendered unable to
speak to this Court.

ECF No. 188-1 at 4-5. After this exchange, there was the following testimony:

a Scott Braden, Petitioner's former attorney at the Federal Public Defender's

office, testified that Petitioner believed corrections officials intentionally injured

him because "he would not give up his insisting on being returned to North

Carolina." fd. at 17-18. On Petitioner's view, Braden ïr/as "in conspiracy with the

Department of Correction to cover up the damage or the injuries that they had

caused to him." Id. at 18. Petitioner had told Braden "he suffers horrible pain, that

he doesn't want to die, but that he can't live in this pain any longer and, if he can't

get whatever is wrong with him fixed, that he would just as soon die." Id. at 24
a Dr. Watson testified that Petitioner has a "psychotic disorder that is marked

by somatic delusion"-i.s., a "fixed false belief that is specifically referable to [his]

physical condition"-¿¡d "significant neuropsychological deficits." fd. at 50, 111. Dr

Watson based this conclusion on an evaluation of Petitioner and a review of records,

including medical records showing Petitioner does not actually suffer from the

physical ailments he complains of. Id. at 98-101. He conducted neuropsychological

testing that revealed damage to Petitioner's frontal lobes-¡.e., the "function of the

L7
brain lttrat] kind of organizes and directs behavior." fd. at 57 .5 These tests \¡/ere

corroborated by neurological testing done in 2009 by Dr. Pamela Blake, which

likewise showed frontal-lobe impairment. Id. at 83-88.6 Dr. Watson found Dr

Pietz's report unconvincing for its failure to account for the consistency of

Petitioner's complaints, its reliance on Petitioner's lack of mental-health care while

in prison, and Petitioner's demonstrated effort during testing. Id. at II7-32

Ultimately, Dr. Watson found Petitioner's waiver attributable to mental illness:

He has stated on multiple occasions that if he is forced to live in the kind
of pain he claims to be living with, that he would just as soon be dead.
And so I think it is a product of his mental illness, his delusional beliefs
about his treatment, and his judgment about what's happening with
him.

Id. at 135. Petitioner's behavior bolstered this conclusion. As Dr. Watson explained,

Petitioner's lack of inhibition-which he demonstrated repeatedly with his

outbursts throughout the hearingT-and his "focus on repetitive themes over and

over again" are "manifestationls] of underlying brain injury." Id. at 77 .

5Petitioner performed "equal to or less than the first percentile" on the Wisconsin Card
Sorting Test and "basically less than the first percentile" on the Twenty Questions Test-
each a measure of executive functioning. Id. at 61, 65.

6Dr. Blake found "abnormal neurological signs" that are "consistent with a specific
impairment in the frontal lobe." Id. at 83. Among other things, she found a "suck vsfls¡"-¿
"neurological sign that is common in individuals with frontal lobe dysfunction." Id. at 87.

7 Petitioner's comments at the hearing, while important for a complete picture of his mental
functioning, are too voluminous to include in this Petition. Most of them are reproduced in
the Appendix for the Court's consideration. App. H. The themes of Petitioner's interruptions
are his (delusional) injuries- e.g., "My frontal lobe hurts so bad I have to stick my finger in
the corner of my eye," App. l47a-and the (delusional) conspiracy against him-e.g., "These
attorneys have violated my constitutional rights and civil rights to cover up a felony," App.
149a.

18
a Dr. Woods testified that, based on his evaluation of Petitioner, review of

records, and observation of the hearing, Petitioner has a "psychotic disorder" and

"impairment of the frontal lobes." ECF No. 189'1 at259. He noted that a mentally

ill person can be competent if mental illness "does not substantially impact their

thinking process." Id. at 27 4. However, Petitioner's psychotic disorder did

substantially impact his thinking process by causing him to believe "the claims that

are being made by his attorneys are the tools of a conspiracy to prevent him from

getting the medical care that he needs." Id. at 276. As Dr. Woods explained:

lPetitioner'sl position is that he is being tortured-that's his own word-
that in fact he would rather die than to continue living under this kind
of torture. So [his psychotic disorder] impacts his appreciation of his
position because he is saying directly, "If I have to live under this type
of torture and pain and there is no one that's willing to help me, then I
would rather die."

Id. at 284. Like Dr. Watson and the district court,s Dr. Woods sa'w Petitioner's

behavior at the hearing as confirmation of his conclusions. Id. at 245-50.

a Dr. Pietz testified that Petitioner does not suffer from a mental illness or

mental defect. Id. at 370-73. She based this conclusion on the absence of an earlier

diagnosis of psychotic disorder and on the MMPI results. Id. On cross-examination,

Dr. Pietz admitted she is not a neuropsychologist, that she "didn't give any

neuropsychological tests" to assess the sort of frontal-lobe deficits Dr. Watson found,

and that "psychotic disorder can develop at arly age." Id. at 386,392,397

At the end of the hearing, the court again engaged Petitioner on his wishes

8 As the district court noted multiple times, Petitioner's outbursts "tend to in fact support
lthe doctors'l theory." App. I64ai see also App. I47a, I49a.

19
Tsp Counr: If you are successful on the Atkins claim, you know that
the Court would issue the writ because it's
unconstitutional to execute a mentally retarded person. So
why don't you pursue the claim?

PnrrnoNnn: If I were anywhere close to being mentally retarded,
incompetent, or anything that you are describing, I still
wouldn't go that route. I don't know. There is just a thing
about, you know, it-that's just-you know, that's just
wrong to me. I mean, if someone is competently sentenced
to death repeatedly, as I have been, and all ofa sudden, you
know-even if I do have a mental issue and it arises now,
why pursue such to prolong such, year after year after
year?

I mean, this is not only a cost of taxpayers'money-I mean,
that's what the Courts are clogged up with. This country is
in a recession, almost in default because of money being
spent. I think there should be a limit on appeals, and I
think, you know-this is just, to me, all this ridicule that I
have had to endure about me for the past couple of days, I
could turn that around on these lawyers and I could turn
that around on these doctors real easily. All the money that
has been spent here is ludicrous. And the Attorney
General's office has filed no objection to these attorneys
here spending this kind of money for one reason and one
reason only. The Attorney General's office has known about
these injuries for years. Right here, a draft copy of an
affidavit that I mailed, along with several affidavits. Draft
copy original letter in part from Arkansas Attorney
General Mike Beebe, 323 Center Street, Suite 1100, Little
Rock, Arkansas, 72-ít's got the date.

"May 23, 2005. Dear Mr. Greene, I have received your
letter on May 16th, 2005, accompanied by three affidavits
you have written regarding your treatment. I suggest that
you report your allegation to Mark Culvert, Compliance
Division Office, Post Office Box-Pine Bluff, Arkansas. I
am confident that Mr. Culvert will assist you in the extent
possible."

This had these affidavits, several of these affidavits,
accompanied it. I have written-this compliance attorney
never received that mail. I have put on this list to get these

20
people up in here. When I was in Tucker Max, I had the
compliance attorney, Sarah Rice over there, pertaining to
this lawsuit that I filed in federal court because I couldn't
get a verification ofcertificate ofservice. This started back
in the'90s, and these attorneys haven't did nothing.

THp Counr Iwant you to understand that this is not the problem
before-this is not the case you have before me.

PntItIoNpn: Everything I have described led up to this problem.

Tup Counr: Well, but I am just saying that I cannot do anything, even
if I wanted to help you in every way possible and grant your
petition and save you from execution, I could not address
these complaints.

PnrrrroNpR The only reason I present these complaints is that's what
has led up to this. You know, I didn't fire these attorneys.
I didn't let my family retain these attorneys to fire them
several weeks later. I gave them an ultimatum. You help
me hold the state to this executive agreement or you will
be fired. They would not provide me motions to file for a
speedy trial in North Carolina, which is what kept me here
using those same aggravating factors to get me this death
sentence repeatedly.

Id. at 452-54

5. On October 25,2012, the district court issued an order finding Petitioner

competent to waive his Atkins claim. The court first addressed whether Petitioner

has "the rational ability to understand the proceedings." App. 30a. On this issue,

the court purported to apply the Rees standard: whether Petitioner "has capacity to

appreciate his position and make a rational choice with respect to continuing or

abandoning further litigation or on the other hand whether he is suffering from a

mental disease, disorder, or defect which may substantially affect his capacity in

the premises." App. 3la (citing Rees,384 U.S. at 3I4). The court assumed that

2I
Petitioner "suffers from a mental defect or disease and has delusions about his

physical condition and whether attorneys and prison guards are working against

him." App. 31a-32a.It nevertheless held that Petitioner rwas competent because he

was "cognizant of and appreciates the practical consequences of abandoning his

Atkins claim." App. 32a. The court found that Petitioner "has a rational basis for

believing that he is not mentally retarded" because he "communicates with others

on an adult level, and he reads, writes, and speaks fluently ." fd. The court

concluded it "need not determine whether lPetitioner] is reasoning from premises or

values that are within the pale of those which our society accepts as rational" so

long as Petitioner's choice "is in fact the product of a rational thought process." 1d.

The court also addressed whether Petitioner's waiver was "knowing and

voluntary." App. 33a. It concluded the waiver \Mas knowing because Petitioner

understoo d an Atkins claim could bar his execution. Id.It concluded the waiver v¡as

not physically or mentally coerced, and thus was voluntary, for two reasons. First,

Petitioner's desire to waive did not abate when he was temporarily moved from

what he perceived as torturous confinement in Arkansas to the federal medical

center. App. 34a. Second, Petitioner had attempted to waive appeals "Iong before he

began complaining about his conditions of confinement." fd.

6. On March 27 , 2015, the district court entered judgment dismissing the

remainder of the petition. The parties had previously briefed the relevance of

Trevino v. Thaler,133 S. Ct. 1911 (ZOtg), and Petitioner requested an evidentiary

hearing on whether ineffectiveness of postconviction counsel-specifically, complete

22
failure to develop or raise mental-health issues-forgave default of his ineffective'

counsel-at-sentencing claims. The court determined, however, that Petitioner was

not entitled to a hearing on this claim (or on any other claim) because he could not

satisfy 28 U.S.C. $ 225a(eX2).0 App. 38a n.2. The court then concluded that

Petitioner may not benefit from the Maúinez rule because "he cannot demonstrate

that the underlying, ineffective-assistance'of'penalty-phase-trial'counsel claims are

potentially meritorious." App. 116a. Regarding resentencing counsel's failure to

present or develop mental'health evidence, the court explained:

lCounsel] possessed Dr. Warren's testimony and two state forensic reports
assessing lPetitioner's] mental status, and lPetitioner] refused to
participate in additional mental evaluations. Given the strong evidence
that lPetitioner] committed Burnett's murder in an especially cruel or
depraved manner, it is speculative whether additional investigation into
lPetitioner'sJ past or additional testing and expert testimony would have
produced a different outcome.

App. 119a. As to the claim that counsel was ineffective for not investigating

intellectual disability,l0 the court held that, "liln light of overwhelming evidence

that lPetitioner] was not mentally retarded, including two state forensic reports

stating that lPetitioner] possessed at least average intelligence, the failure to

pursue such an argument \¡¡as unquestionably reasonable, and there is no merit to

this claim." App. I23a.

eAfter a motion for reconsideration, the Court clarified its decision was based on its own
discretion rather than on $ ZZS4(ò(2): "For reasons stated in the opinion and order denying
habeas relief, an evidentiary hearing would not have assisted the Court, nor would it have
enabled lPetitioner] to demonstrate an entitlement to relief." ECF No. 234 at 3.

10The district court had earlier clarified that, though Petitioner waived the Atkins claim,
he did not waive the claim that counsel was ineffective for failing to investigate intellectual
disability. ECF No. 2I9 at 6.
23
7. The district court denied a CoA. Regarding the intellectual-disability claim,

the court merely reiterated that it had previously found Petitioner competent to

waive the claim. App. I45a. Regarding the ineffectiveness claims, the court, without

elaboration, said it found "no debatable questions." App. I44a.

On April I5,2016, Petitioner filed an eighty-page motion in the Eighth Circuit
requesting a CoA on these and other claims. Respondent filed a response onMay 24,

2016; Petitioner filed a reply on May 31, 2016. The court denied a CoA on June 3,

2076.In its entirety, the order reads: "This appeal comes before the court on

appellant's application for a certificate of appealability. The court has carefully

reviewed the original file of the district court, and the application for a certificate of

appealability is denied. The appeal is dismissed." App. 1a.

Petitioner subsequently requested rehearing. After calling for a response on

whether "the district court applied the correct legal standard in determining

whether lPetitioner] was competent to waive an Atkins claim," Order, No. 16-1456

(Sth Clr. July 11, 2016), the court denied rehearing on August 31, 2016, with Judge

Kelly voting to grant rehearing en banc. App. 2a.

RsasoNs pon GnaNrrNc mro PnrrrroN

The Eighth Circuit has abdicated its basic duty to grant a CoA when "reasonable

jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner." Slack v. McDanie|, 529 U.S. 473, 484

(ZOOO). tr'or reasons discussed below, a CoA plainly should have issued here, but this

case highlights deeper problems with the Eighth Circuit's CoA practice. Unlike

24
every other court of appeals, the Eighth Circuit does not explain its reasons for

denying CoAs (even in capital cases). And its judgment in this case implicates a

circuit split currently under advisement in Buck v. Davis, No. 15'8049: tlnat

between courts that regularly deny CoAs in capital cases and those that do not. The

Eighth Circuit's routine rejection of a CoA on anyissue in capital cases-at a rate of

about fifty percent-indicates how far its CoA practice has departed from the

Court's precedent. At a minimum, the Court should grant the petition, vacate the

judgment below, and remand with instructions for the Eighth Circuit to issue a CoA

on at least the issues addressed herein.

The Court should not be satisfied with a simple remand, though. Plenary review

is warranted given the lower courts' grave departure from this Court's precedent

and from accepted judicial practice in capital cases. The district court mangled

Petitioner's Atkins claim, fi.rst by holding Petitioner need not be reasoning from

rational premises to waive the claim and then by finding-without a hearing on

intellectual disability-that there is "overwhelming evidence" Petitioner is not

intellectually disabled. The district court's handling of the Atkins claim, along with

the Eighth Circuit's tacit approval, "so far departed from the accepted and usual

course of judicial proceedings, [andJ sanctioned such a departure by a lower court,

as to call for an exercise of this Court's supervisory po\Mer." S. Ct. R. 10(a).

Additionally, the district court's conclusion that Petitioner's ineffective-assistance-

of-counsel claim is not debatable under Martínez-not to mention the Eighth

25
Circuit's judgment that the debatability of the claim is not debatable-cannot be

reconciled with this Court's cases granting relief in similar circumstances.

A. The Eighth Circuit's CoA practice diverges from that of other courts of appeal
and from this Court's precedent.

A CoA is required if "jurists of reason could disagree with the district court's

resolution of [the petitioner's] constitutional claims." MLIIeTEI v. CockreLL,537 U.S.

322, 327 (ZOOS). This standard is not burdensomel "[A] court of appeals should not

decline the application for a COA merely because it believes the applicant will not
demonstrate an entitlement to relief." fd. at 337. "Indeed, a claim can be debatable

even though every jurist of reason might agree, after the COA has been granted and

the case has received full consideration, that petitioner will not prevail." Id. at 338.

The Eighth Circuit routinely departs from this standard in capital cases-that is, in

those cases which require the most care in assessing CoA applications.

The Eighth Circuit's CoA practice is aberrant in three ways. First, and most

fundamental, is its high denial rate. For first-in-time capital habeas petitions

within the Eighth Circuit, the CoA denial rate is 47.6% since January I, 20IL-a

record that indicates deviation from the permissive CoA standard. App. 169a. This

statistic contributes to the circuit split notedin Buck v. Davis, No. 15-8049, which

addresses CoA denials in the Fifth Circuit and which the Court currently has under

advisement. The Eighth Circuit's denial rate is commensurate with that in the Fifth

Circuit, which denied a CoA at a 58.9% rate in capital cases during the same time

period. Pet'r's Br. App., Buck v. Davis, No. 15-8049 (U.S. JuIy 28, 2016), Contrast

that to denial rates in the Eleventh Circuit G.S'/r) and Fourth Circuit @Vù. Id.The

26
courts on one side of this split are in the wrong. Considering that a CoA may issue

even if the court of appeals "believes the applicant will not demonstrate an

entitlement to relief," MiIIer-EI, 537 U.S. at 337, and that a "greater degree of

accuracy" is required in death cases, Gilmore v. Taylor,508 U.S. 333,342 (tgga),

the demerit goes to the Fifth and Eighth Circuits.

Second, by at least one measure, the Eishth Circuit is worse than the Fifth: it
does not even attempt to explain to capital litigants why their claims are not

debatable. Indeed, when denying a CoA motion, the Eighth Circuit always issues a

uniform three-line summary order. App. J. The Eighth Circuit does not appear to

have explained its reasons for denying a CoA on a first'in-time capital habeas

petition since 1997 . See Order, Cox v. Norris, No. 9?-1230 (8th Cir. Dec. 29, 1997).11

This practice departs from that of every other court of appeals, with the possible

exception of the Seventh Circuit.l2 The Eighth Circuit's outlier approach is in

11Undersigned counsel has located two other CoA orders in capital cases that contain some
explanationi one denying a CoA to appeal a successor motion before a scheduled execution,
CIay v. Bowersox,628 F.3d 996 (Sth Cir. 2011), and one granting a CoA to require an
evidentiary hearing, Order, Nelson v. [Jnited Stales, No. 07-3071 (gth Cir. Oct.27,2008).

12Among those circuits for which undersigned counsel located capital-case CoA denials,
each (besides the Eighth) has used reasoned orders. Swisher v. True,325 F.3d 225 Øth Cir.
2003); Chanthakoummane v. Stephene 816 F.3d 62 (ftn Cir. 2016); Treesh v. Eobinson,No.
12-4539,2013 U.S. App. Lexis 3878 (6th Cir. Feb. 13, 2013); Woods v. Buss,234F. App'x
409 (7th Cir. 2OO7); Dickens v. .Eyan, 552F. App'x 770 @th Ctr. 2OIù; Griffin v. Secy,787
F.3d 1086 (f ftfr Cir. 2015). It's possible the Seventh Circuit has changed its practice, as it
recently denied a CoA in a capital case without explanation. See Order, Ritchie v. NeaI, No.
L5'1925 (Zth Cir. Feb. 24,2016). The remaining circuits have issued reasoned opinions
when denying CoAs in non-capital cases. McGonagle v. [Fnited States, lST F. App'x 373 (1st
Cir. 2005); Middleton v. Attorneys General,396 F.3d 207 Qd Cir. 2005); Webster v. Adm'r
N.J. State Prison, No. 13-338I,2013 U.S. App. Lexis 25719 (gA Cir. Oct.25,2013); Pickens
v. Workman,373 F. App'x 847 (10th Cir. 2010). There is no reason to think the process
would be less robust in a capital case.

27
tension wíth Hohn v. [Jnited States,524 U.S. 236 (1998), which holds this Court has

jurisdiction over appeals from denials of CoAs.13 An appellate court's obfuscation of

its reasons for denying merits review is a major impediment to this Court's ability

to exercise its jurisdiction. Silence is especially problematic where, as here, the

court of appeals sanctions a death sentence without giving full consideration to the

merits of the petitioner's constitutional claims

The third deviation also goes to limitations on process: the Eighth Circuit

considers capital cases for a remarkably short time before denying a CoA. In capital

cases, the Eighth Circuit denies a CoA, on average,22.4 days after the final CoA

filing (whether that filing be the CoA motion itself, the response, or the reply). App

172a.In this case, it denied a CoA on the issues discussed below, and on many other

issues, a mere three days after Petitioner filed his reply brief. CoA revrew rs

supposed to be a "threshold inquiry," MiIIerE!537 U.S. at 336, so a court of

appeals need not consider CoA motions for an eternity. Yet the Eighth Circuit's

rejection of an eighty-page CoA motion in a complex capital case three days after

completion of briefing raises serious questions about whether the Court gave the

motion adequate consideration

Here, these aberrations deprived Petitioner of an opportunity to appeal easily

debatable claims. Because, as discussed below, the district court deviated from this

Court's precedent and usual judicial practice, a CoA should have issued

13Ironically, I{ohn arose from a reasoned Eighth Circuit opinion denying a CoA. Ifohn v.
[lnited States, 99 F.3d 892 (eth Clr. 1996).
28
B. The lower courts'mishandling of Petitioner's Atkins claim demands this
Court's intervention.

"Persons with intellectual disability may not be executed." HaII v. Florid4 134 S.

Ct. 1986, 1992 Q074). There's a strong risk the prohibited outcome will occur here

unless this Court intervenes. It should do so because the Eighth Circuit sanctioned

the district court's gross departure from the accepted course of judicial proceedings

in capital habeas cases. In finding Petitioner competent to waive lnis Atkins claim,

the district court disregarded the widely accepted principle that rational conclusions

cannot be rooted in delusional premises. In finding Petitioner is not intellectually

disabled-and thus that trial counsel was not ineffective for failing to investigate

that condition-the district court rejected the type of scientific assessment this

Court has required.

1. To waive a habeas claim, a petitioner must have "a rational as weII as factual

understanding of the proceedings against him." Godinez v. Moran,509 U.S. 389,

396-98 (f gg3) (quoting Dusky v. [Jnited States,362 U.S. 402 (J960)).t¿ Sensibly, the

courts of appeal have understood this standard to require a "rational understanding

which is different from, and more than, factual understanding." Lafferty v. Cook,

949 F.2d 1546,1556 (10th Cir. 1991); accord In re Heidnik,112 F.3d 105, 111 (3d

Cir. 1997). Just as obvious is the notion that "sufficient contact with reality" is the

"touchstone for ascertaining the existence of a rational understanding." Lafferty,

ra This discussion assumes that a petitioner who exhibits indicia of intellectual disability
(such as a 76 IQ) is permitted to waive an Atkins claim, even though the trighth
Amendment prohibits punishment of the intellectually disabied "as a categorical matter."
Ifall, I34 S. Ct. at 1992.

29
949F.2d at 1551. The Eighth Circuit has itself recognized this: "[I]t is not sufficient

simply to determine whether a waiver decision has been arrived at logically." See

Smith v. Armontrout, SI2 F.2d 1050,7057 (Sth Cir. 1987).15

Application of this Court's competency standard has thus focused on the

premises for the defendant's course of action rather than the defendant's grasp of

facts or his mechanical process of reasoning. Accordingly, the courts of appeal have

rejected the idea that"a defendant who is unable to accurately perceive reality due

to a paranoid delusional system need only act consistently with his paranoid

delusion to be considered competent." Lafferty, 949 F.2d at 1554-55. For example,

in Heidnik,112 F.3d at LIL-12, the Third Circuit concluded that evidence the

petitioner was "cognitively intact, aware of his current situation and what he is

facing, and . . . able to make a decision regarding waiver of his further appeals" was

insufficient to show competency in light of the fact that petitioner rwas a "delusional

paranoid schizophrenic" who wished to die because he believed that "after his death

the public will become convinced that he was an innocent victim of a conspíracy."

The district court's opinion directly conflicts with this accepted notion of

competency. After assuming that Petitioner is indeed suffering from a mental

illness-an assumption with firm grounding in the record-the court relied on three

points. The first two-that Petitioner understands a successful Atkins claim would
block his execution and that he "has a rational basis for believing that he is not

mentally retarded" because he "reads, writes, and speaks fluently," App. 32a-

15The Eighth Circuit's failure to grant a CoA here flies in the face of its own precedent and
casts further doubt on its CoA practice. See supra Part A.

30
reflect only Petitioner's factual understanding of the proceedings.ta The third-that
Petitioner's decision was "in fact the product of a rational thought process," even if
that process lacked rational premises, id.-flatly contradicts the prevailing (and

correct) opinion that rational understanding cannot stem from a delusion (such as a

belief that one's attorneys are conspiring with the state to inflict nonexistent

"injuries"). ttre Eighth Circuit's failure to recognize the district court's holding as

even debatable requires, at the very least, a remand for a proper CoA inquiry.

2. Courts may not "disregard[ established medical practice" in assessing

intellectual disability. Ilall,134 S. Ct. at 1995. The district court violated this

command. Its conclusion that Petitioner is not intellectually disabled-one it
reached without a hearing on intellectual disability-rested primarily on two

forensic reports opining that Petitioner is of average intelligence. App. 123a. Yet

one report admitted that "formal intelligence testing was not done," ECF No. 941,

lst Tr. R. at 49, and the other found Petitioner's intelligence "average" based solely

on the evaluator's review of Petitioner's written requests for medical assistance,

ECF No. 9F15, 3d Tr. R. at 54-55. These assessments lacked any attempt to

measure Petitioner's intellectual capacity in a scientifically acceptable manner.

Petitioner exhibited obvious deficits in adaptive functioning, such as inability to

progress in school or to hold a job. ECF No. 84'2. And once formal intellectual

testing actually was done, the result-which did not adjust for either the standard

16The district court's opinion that a person can determine he is not intellectually disabled
based on self-assessment, and thus waive the claim, is a strong example of its anti-scientific
approach to intellectual disabilíty. See infra.

31
error of measurement or score inflation due to norm obsolescence, see supranote

4-indicated the serious possibility of intellectual disability. Cf Brumfield v. Cain,

135 S. Ct. 2269 (ZOf S) (denial of Atkins hearing was based on unreasonable

determination of the facts where petitioner had a 75 IQ score and deficits in

adaptive functioning). Only brazen disregard of HaII allowed the district court to

find "overwhelming evidence" Petitioner is not intellectually disabled. App. 123a.r7

C. The Court's precedent makes the ineffectiveness claim easily debatable.

Before the 1992 trial, Dr. Warren told counsel that Petitioner might have

frontal-lobe damage. At no point did any of Petitioner's attorneys act on that

information by having Petitioner tested. Indeed, counsel at the 1999 resentencing

neglected to raise Petitioner's mental health at all. Then state postconviction

counsel failed to raise resentencing counsel's ineffectiveness, thus defaulting the

claim. When testing was finally performed, it showed significant frontal'lobe

damage. Yet the district court concluded the ineffectiveness claim was insubstantial

for the purpose of overcoming postconviction counsel's default. Then the Eighth

Circuit concluded this finding of insubstantiality is not debatably wrong. In similar

circumstances, the Court has held ineffectiveness claims meritoriovs-even

applying deferential review under 28 U.S.C. S 22546).fne lower courts'conclusion

1? This Court is now considering whether judicial determinations of intellectual disability
must be based on current medical standards. Moore v. Texas, No. 15-797. Here, the district
court applied no medical standard at all in determining Petitioner is not intellectually
disabled (and thus that counsel was not ineffective for failing to investigate intellectuai
disability). The Court's concern for the proper assessment of intellectuai disability in Moore
offers another reason to grant this Petition, or at least to hold it for the decision in Moore.

32
that Petitioner can't pass the lax Maúineztest-as filtered through the equally lax

CoA test-is a severe misapplication of the Court's precedent.

To succeed on his ineffectiveness claim, Petitioner must show that counsel's

objectively unreasonable performance prejudiced him. Strickland v. Washington,

466 U.S. 668,694 (fgg¿). Regarding performance, Stricklandestablishes, and the

Court has repeated time and again, that "counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular

investigations unnecessary." Wiggins v. Smith, 539 U.S. 510, 521e0æ) (quoting

Strickland, 466 U.S. at 690-91). The need to have Petitioner assessed for frontal-

lobe impairments was patently obvious-Petitioner's own expert recommended the

testing, and that recommendation was on the face of the 1992 tríal record. Capital

defense attorneys must investigate potentially relevant mitigating evidence when it
stares them in the face. See Rompilla v. Beard,545 U.S. 374,383-90 (2005) (counsel

ineffective for failing to review obviously important court fites). An adequate

investigation here would have uncovered brain damage and additional evidence of

psychiatric hospitalizations and intellectual limitations. See ECF No. 84-2 at 8-11.

It was unreasonable for defense counsel to put on a mitigation case that did not

include mental-health evidence and that was uninformed by an assessment of

Petitioner's frontal'lobe impairments. 18

18 In concluding counsel "conducted an adequate and constitutionally sound investigation,"
the district court noted that "[CounselJ possessed Dr. Warren's testimony and two state
forensic reports assessing [Petitioner's] mental status, and lPetitioner] refused to
participate in additional mental evaluations." App. 119a. This finding simply highlights
counsel's inadequacy. Dr. Warren's testimony stated the (unmet) need for frontal-lobe
assessment, which the state forensic reports plainly did not provide. Besides that, the

33
The district court found no substantial case for prejudice because, in lisht of the

murder's cruelty, "it is speculative whether additional investigation into

[Petitioner'sl past or additional testing and expert testimony would have produced a

different outcome." App. 119a. The Court has condemned exactly this sort of

superficial prejudice inquiry. Prejudice analysis "will necessarily require a court to

'speculate'as to the effect of the new eviderÌce." Sears v. Upton,561 U.S. 945,956

(ZOfO). But the "speculative" nature of the analysis doesn't relieve a court of its

responsibility to "consider the totality of the available mitigation evidence-both

that adduced at trial, and the evidence adduced in the habeas proceeding-and

reweigh it against the evidence in aggravation." Id. at 955-56. When evidence of

Petitioner's brain damage-which offer a powerful explanation for Petitioner's

conduct-is weighed against the crime's cruelty, there's "a reasonable probability

that at least one juror would have struck a difference balance." Wiggin^s, 539 U.S. at

537. Indeed, this prejudice analysis is quite like that ín Sears, where the

petitioner's "substantial cognitive impairmenf,"-¿s shown by his "dismalfl"

performance on neuropsychological testing, Sears,561 U.S. at 949-50-would have

changed at least one juror's mind about death, even in the face of a "brutal" crime in

which the petitioner kidnaped the victim, punched her in the face with brass

record contradicts the notion that Petitioner "refused to participate in additional medical
evaluations." While Petitioner did not cooperate with a court-ordered State Hospital
evaluation before the 1999 resentencing-the third such State Hospital evaluation-there
is no evidence that he would have refused to cooperate with his own counsel's testing.
Petitioner cooperated with a State Hospital evaluation after the 1999 resentencing. He also
cooperated with Drs. Blake and Watson such that they could conclude what resentencing
counsel should have learned-Petitioner has significant frontal-lobe damage.
34
knuckles, raped her, and stabbed her in the neck as she begged for her Iife, id. at

963-64 (Scalia, J., dissenting).

Sears arrived at the Court on appeal from state postconviction, so the Court

reviewed the ineffectiveness claim de novo. See id. at 945.In other cases involving

an equally defective mitigation investigation, the Court has gone even further and

found the lower court's denial of relief an unreasonable application of. Strickland

under the deferential standard of 28 U.S.C. S 2254(d).ts The Court's analyses in

these cases stand in stark contrast to the analyses below. First, the district court

held that, under Martinez, default of Petitioner's claim could not be forgiven

because the claim is not substantial-i.e., it is not debatable under the standard
governing CoAs. Martinez,566 U.S. atL4 (citing MilIerEI,537 U.S. 32Ð. Then, by

denying a CoA, the Court of Appeals held no reasonable jurist could debate that

Petitioner's ineffectiveness claim is debatable.

The standard governing ineffectiveness claims "spawns few hard-edged rules,"

RompilIa,545 U.S. at 381, but something is obviously wrong here. The Court has

repeatedly held that a state court was unreasonable to reject a petitioner's

ls See Porter v. McColLum. 558 U.S. 30, 41 (ZOOS) (unreasonable prejudice ruling where jury
"heard almost nothing that would humanize" petitioner, including available evidence of
"brain abnormality, difficulty reading and writing, and limited schooling"), Rompilla,545
U.S. at 383-90 (unreasonable performance ruling where attorney skipped obvious
investigatíon); Wiggins, 539 U.S. at 525 (unreasonable performance ruling where "counsel
uncovered no evidence in their investigation to suggest that a mitigation case, in its own
right, would have been counterproductive, or that further investigation would have been
fruitless")i WiLliams v. Taylor,529 U.S. 362, 390-98 (2000) (unreasonable application of
both prongs where counsel "failed to conduct an investigation that would have uncovered
extensive records graphically describing Williams' nightmarish childhood" and where state
court failed to properly weigh this evidence against the aggravators).
35
ineffectiveness claim on facts not so different from those at issue here. Yet the

Eighth Circuit held Petitioner's claim is not even debatable-twice over. Petitioner

may ultimately lose his ineffectiveness claim, but at the very least he should have

the chance to present its debatability to the court of appeals.

Indeed, the Court would be justified in reversing and ordering a hearing in the

district court. Martinez allows petitioners to develop Sixth Amendment claims that

could not be developed in state court because of postconviction counsel's

ineffectiveness. These fact-intensive claims usually require a hearing, See Martinez,

566 U.S. at 13. The logic of Martinezís that a petitioner is entitled to a hearing in

federal habeas if he would have had one in state court but for postconviction

counsel's ineffectiveness. Rather than allowing Petitioner to develop these claims,

the district court ruled, based on a record devoid of factual development in state

court, that Petitioner's claim is not even potentially meritorious. For the reasons

stated above, that ruling cannot stand in the face of this Court's precedent. If
Petitioner's ineffectiveness claim is not debatable, Martinezís a very narro\M

remedy indeed.

CoNcr,usroN

The Court should grant the petition for a writ of certiorari and give plenary

consideration to the questions discussed herein. At a minimum, it should grant the

petition, vacate the judgment of the Eighth Circuit, and remand with instructions to

issue a CoA.

36
DpcnMepn29,2016 Respectfully submitted,

C. Wrlueus
s't Federal Public Defender
l-401 W. Capitol, Ste. 490
Little Rock, AR7220L
(sor) 824-6rL4
j ohn_c_william s@fd. or g

Counsel for Petitioner

37
***THIS IS A CAPITAL CASE***

No. __________________________________

In the Supreme Court of the United States

JACK GORDON GREENE,

Petitioner
v.

WENDY KELLEY, Director,
Arkansas Department of Correction,

Respondent

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Eighth Circuit

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

JENNIFFER HORAN

Federal Public Defender
Eastern District of Arkansas

JOHN C. WILLIAMS
Counsel of Record
Ass’t Federal Public Defender
1401 W. Capitol, Ste. 490
Little Rock, AR 72201
(501) 324-6114
john_c_williams@fd.org

Counsel for Petitioner
APPENDIX INDEX

Appendix A – Eighth Circuit Order Denying CoA (June 3, 2016) ............................. 1a

Appendix B – Eighth Circuit Order Denying
Petition for Rehearing (Aug. 31, 2016) ....................................... 2a

Appendix C – District Court Order Requiring
Petitioner’s Appearance (Nov. 30, 2009)..................................... 3a

Appendix D – District Court Order for
Competency Evaluation (Feb. 26, 2010) ................................... 13a

Appendix E – District Court Order Finding Petitioner
Competent to Waive Atkins Claim (Oct. 25, 2012) .................. 16a

Appendix F – District Court Order Denying Petition for
Writ of Habeas Corpus (Corrected) (Mar. 30, 2015) ................ 37a

Appendix G – District Court Order Denying
Certificate of Appealability (Feb. 19, 2016) ............................ 140a

Appendix H – Petitioner’s Statements During
Competency Hearing (Oct. 6–7, 2011) .................................... 147a

Appendix I – Review of Eighth Circuit CoA Practice ............................................. 168a

Appendix J – Eighth Circuit CoA Orders ............................................................... 173a
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

___________________

No: 16-1456
___________________

Jack Gordon Greene

Plaintiff - Appellant

v.

Wendy Kelley, Director, Arkansas Department of Correction

Defendant - Appellee
______________________________________________________________________________

Appeal from U.S. District Court for the Eastern District of Arkansas - Pine Bluff
(5:04-cv-00373-SWW)
______________________________________________________________________________

JUDGMENT

Before WOLLMAN, BOWMAN and SMITH, Circuit Judges.

This appeal comes before the court on appellant's application for a certificate of

appealability. The court has carefully reviewed the original file of the district court, and the

application for a certificate of appealability is denied. The appeal is dismissed.

June 03, 2016

Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans

1a
Appellate Case: 16-1456 Page: 1 Date Filed: 06/03/2016 Entry ID: 4407173
Appendix B
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No: 16-1456

Jack Gordon Greene

Appellant

v.

Wendy Kelley, Director, Arkansas Department of Correction

Appellee

______________________________________________________________________________

Appeal from U.S. District Court for the Eastern District of Arkansas - Pine Bluff
(5:04-cv-00373-SWW)
______________________________________________________________________________

ORDER

The petition for rehearing en banc is denied. The petition for panel rehearing is also

denied.

Judge Kelly would grant the petition for rehearing en banc.

August 31, 2016

Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans

2a
Appellate Case: 16-1456 Page: 1 Date Filed: 08/31/2016 Entry ID: 4443386
Appendix C
Case 5:04-cv-00373-SWW Document 66 Filed 11/30/2009 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

JACK GORDON GREENE *
*
Petitioner *
*
VS, * NO: 5:0400373 SWW
*
LARRY NORRIS *
*
Respondent *

ORDER

This is a capital habeas proceeding pursuant to 28 U,S,c. § 2254 by Petitioner Jack

Gordon Greene ("Greene'V Pending before the Court are (I) Respondent's motion for an

order pemlitting a psychological evaluation (docket entry #49) and Greene's response in

opposition (docket entry #52) and (2) Greene's motion to stay the proceedings pending

adjudication of competence to proceed and for an order permitting a psychological evaluation

(docket entry #51), Respondent's response in opposition (docket entry #53), and Greene's reply

(docket entry #57), After careful consideration, and for reasons that follow, both motions will

be denied, and the Court will schedule a hearing in this case for the purpose of determining

whether Greene desires to dismiss his claim that he is mentally retarded and therefore

categorically ineligible for execution,

I. Background

State Proceedings

IThis ease was originally assigned to United States District Judge William R, Wilson, and
was reassigned to this Court on August 20, 2009,

3a
Appendix C
Case 5:04-cv-00373-SWW Document 66 Filed 11/30/2009 Page 2 of 10

On October 15, 1992, Greene was convicted in Johnson County Circuit COUlt of capital

murder and sentenced to death by lethal injection. On June 20, 1994, the Arkansas Supreme

Court affinned Greene's conviction but reversed and remanded for resentencing. Greene v.

State, 317 Ark. 350, 878 S.W.2d 384 (1994).

On remand, a jUlY again imposed a death sentence. After Greene indicated that he wanted

to dismiss an appeal filed on his behalf, the Arkansas Supreme COUlt remanded the ease on two

separate occasions for hearings to detennine Greene's competency to waive appeal and elect

execution. See Greene v. State, 326 Ark. 822, 933 S.W.2d 392 (1996); Greene v. State, 327 Ark.

511, 939 S. W.2d 834 (1997). However, Greene refused to submit to a psychological

examination to determine competency, and the Arkansas Supreme Court denied his motion to

waive appeal. Greene v. State, 328 Ark. 218, 941 S. W.2d 428 (1997). On November 5, 1998,

the Court again reversed and remanded the ease for resentencing. Greene v. State, 335 Ark. I,

977 S.W.2d 192 (1998).

On July 1, 1999 Green was resentenced to death. The next day, Greene filed a waiver of

appeal, and the trial court ordered an evaluation by the Arkansas State Hospital for the purpose

of determining whether Greene was competent to waive appellate review and elect execution.

Doctors evaluated Greene, the trial court held a hearing and found Green competent to waive

appeal, and the Arkansas Supreme Court affinned the trial court's detennination. See State v.

Greene, 338 Ark. 806, I S.W.2d 442 (1999).

Pursuant to its duty to automatically review the record in all death penalty eases, even

when the defendant competently waives his right to appeal, the Arkansas Supreme Court

reviewed the record and found no reversible error. See Greene v. State, 343 Ark. 526, 542, 37

2

4a
Appendix C
Case 5:04-cv-00373-SWW Document 66 Filed 11/30/2009 Page 3 of 10

S. W.3d 579, 590 (2001). On October 1, 2001, the Supreme Court of the United States denied

certiorari. Greene v. Arkansas 534 U.S. 858,122 S. Ct. 135 (2001).

On October 25,2001, the trial court entered an order appointing counsel to represent

Greene in post-conviction proceedings under Rule 37 of the Arkansas Rules of Criminal

Procedure. The trial court denied Greene's petition for post conviction relief, and the Arkansas

Supreme Court affirmed. See Greene v. Siale, 356 Ark. 59,146 S.W.3d 871 (2004).

Federal Habeas Proceedings

On October 20, 2004, Greene, through appointed counsel,' filed this habeas action under

28 U.S.c. § 2254, asserting seventeen grounds for relief, including that he is mentally retarded

and therefore ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304,122 S. Ct.

2242 (2002).3

United States District Judge William R. Wilson scheduled the case for an evidentiary

hearing to being February 3, 2009 regarding Greene's Atkins claim, and he set January 2009

deadlines for expert disclosures. Greene moved for a continuance of the hearing, stating that

counsel had been unable to find a neuropsychologist available to evaluate him prior to the

deadline for expert disclosures. Judge Wilson continued the evidentiary hearing to August 13,

2009, and he extended the deadline for expert repOlts up to and including July 15, 2009.

'On November 23, 2004, the Court appointed Federal Public Defendant Jennifer Horan
and the Federal Public Defender's Office to represent Greene in this case. See Green v. Norris,
No. 4:04MC00025 GR.

3Since 1993, Arkansas law has provided criminal defendants a procedure to establish that
they are categorically ineligible for the death penalty due to mental retardation. See Ark. Code
Ann. § 5-4-618. Although Greene did not pursue such a defense in state court, the Eighth Circuit
has concluded that the existence of the state procedure is irrelevant to whether a habeas petitioner
has defaulted an Atkins claim. See Simpson v. Norris, 490 F.3d 1029, 1034-36 (8'h Cir. 2007).

3

5a
Appendix C
Case 5:04-cv-00373-SWW Document 66 Filed 11/30/2009 Page 4 of 10

Greene moved for an order directing the Arkansas Department of Con'ection ("ADC") to

permit evaluations of Green by Pamela Blake, M.D., a neurologist, and Dale Watson, Ph.D, a

neuropsychologist. Judge Wilson granted the motions.

On June 3, 2009, Greene moved for an extension of time to file expert disclosures, stating

that Dr. Watson was unable to conelude his examination because ADC officers shackled Greene,

which upset him and exacerbated his somatic delusions to the extent that he could not complete

testing. On June 10,2009, Judge Wilson continued the hearing to November 23, 2009 and

granted Greene's motion for an extension of the deadline for expert disclosures.

Judge Wilson also f,'fantcd Respondent's motion to pelmit Roger Moore, Jr., Ph.D. to

evaluate Greene on June 16 and 17, 2009 to determine whether he is mentally retarded. Greene,

however, filed a motion for reconsideration, arguing that he would be deprived of an opportunity

to prove his Atkins claim if Dr. Moore's evaluation came before Dr. Watson's. Judge Wilson

granted Greene's motion for reconsideration and advised Respondent that he could renew his

motion for psychological testing after detelmining a new exam date.

On July 1,2009, Greene moved for an order directing the ADC to allow Dr. Watson to

evaluate Petitioner on July 9 and 10, 2009. Judge Wilson granted the motion. On August 20,

2009, this habeas proceeding was transfelTed to the docket of United States District Judge Susan

Webber Wright, and on August 24, 2009, the Court canceled the evidentiary hearing set for

November 23,2009.

II. Greene's Motion for a Stay Pending Adjudication of Competence

Greene's counsel reports that Dr. Watson attempted to evaluate Greene on July 9,2009,

but Greene told correctional officers that he was physically unable to participate in testing, and

4

6a
Appendix C
Case 5:04-cv-00373-SWW Document 66 Filed 11/30/2009 Page 5 of 10

he declined to leave his cell. In support of the motion to stay the case pending adjudication of

competence, counsel states: "Counsel files the instant motion because Mr. Greene's evident

psychosis has progressively become so severe that he is now unable to provide the assistance

neeessary for counsel to effectively litigate any aspect of his Petition .... " Docket entry #51, at

3. Counsel asks the Court to stay this ease and allow Dr. Watson to assess Greene's competency

and conduct a "fOlmal evaluation for the presence of a major mental illness." !d. at 23.

By declaration dated August 20, 2009, Dr. Watson testifies that Greene suffers from

somatic delusions--firmly established yet false beliefs regarding the appearance or functioning of

his body-that prevent him from assisting his counsel and participating in the investigation and

development of his claim that he is mentally retarded. According to Dr. Watson, "Greene's

preoccupation with his physical pain is so all-consuming that it prevents him from focusing on

any aspect of his legal situation." Docket entry #61, '121. Dr. Watson opines that Greene's

inability to undcrgo a complete battery of neuropsychological tests is the direct result "not of any

volitional unwillingness to cooperate or of a desire to abandon his appeals but rather of his

mental disease." !d.

Respondent objects to staying the case and argues that Greene has no right to be

competent during the pendency of this habeas proceeding. Additionally, Respondent asserts that

Greene has indicated that it is not his desire to pursue the course of action his appointed counsel

proposes, and the Court has a duty to inquire of Greene whether it is his conscious choice to

forgo his consultations with Dr. Watson. Respondent proposes that the Court schedulc a hearing

to determine whether Greene understands the significance and the consequences of his decision

to refuse to see counselor their experts. Respondent further proposes that any competeney

5

7a
Appendix C
Case 5:04-cv-00373-SWW Document 66 Filed 11/30/2009 Page 6 of 10

evaluation be conducted by a neutral expeli selected by the Court.

On August 26,2009, the Court received a letter from Greene dated August 24, 2009,

which reads:

Clerk, the enclosed documents need to be given to the judge that has ordered this
'evidentiary hearing' and since the attorneys ofthe Ark. Fed. Public Defenders Office
have never shared nothing with me about my ease, not even this 'evidentiary hearing'
order, except face page, after making me out to be some kind of incompetent retard
to get that office appointed to my ease and try and cover up crimes of inhumane
injuries .. and tOliure, and now try and give some kind of validation by hiring and
flying two neurologists from out of state to come and give me an exam ... to try and
validate such brain neurological injuries ... at a cost of [untold] thousands offed, tax
dollars for which I can still receive no meaningful medical treatment for which I have
been forced to live with such endlessly inflicted re-injuries by the same means, I now
have a hernia ... from being so physically broken down as described in enclosed
documents,

Clerk ... , I request this office provide me a full copy of this evidentiary hearing
order, as well as a copy of the two diagnosing exams of me from these two out of
state neurologists.

Sincerely,

Jack Gordon Greene
Death Row #SK922

Docket entry #65, Attach. # l.

In Rees v. Peyton, 384 U.S. 312, 86 S. Ct. 1505 (1966), Rees, a habeas petitioner under a

sentence of death, sought to withdraw a petition for a writ of certiorari filed on his behalf

following denial of habeas relief. Subsequently, Rees's attorney filed a detailed psychiatrist's

report concluding that Rees was mentally incompetent, and the Supreme Court detennined that

Rees's mental competence was of prime importance to whether he would be allowed to withdraw

his petition.

The Supreme Court directed the district court to make a judicial detennination as to

6

8a
Appendix C
Case 5:04-cv-00373-SWW Document 66 Filed 11/30/2009 Page 7 of 10

Rees's mental competence "in the present posture of things, that is, whether he has the capacity

to appreciate his position and make a rational choice with respect to continuing or abandoning

further litigation or on the other hand whether he is suffering from a mental disease, disorder, or

defect which may substantially affect his capacity in the premises." Rees, 384 U.S. at 314,86 S.

Ct. at 1506. The Court advised: "To that end it will be appropriate for the District Court to

subject Rees to psychiatric and other appropriate medical examinations and, so far as necessary,

to temporary federal hospitalization for this purpose." Rees, 384 U.S. at 314,86 S. Ct. at 1506.

After ordering competency evaluations and holding an evidentiary hearing, the district

court found Rees incompetent. The Supreme Court then ordered the case "held without action on

the petition until further orders of the COUlt." Rees v. Peyton, 386 U.S. 989, 87 S. Ct. 1319

(1967). The case remained on the Supreme Court's docket until the writ was dismissed in 1995,

after Rees died at a federal medical center. See Rees v. Superintendent, 516 U.S. 802 (1995);

Phyllis L. Crocker, Not to Decide is to Decide: The u.s. Supreme court '.I' Thirty-Year Struggle
with One Case About Competency to Waive Death Penalty Appeals, 49 Wayne L. Rev. 885, 935.

In this case, although Greene has not requested to withdraw his Atkins claim, he indicates

in his letter to the COUlt that he disapproves of efforts to show that he is mentally retarded.

Additionally, although Dr. Watson opines otherwise, it is possible that Green's withdrawal from

neuropsychological testing is based on a rational choice to abandon a claim that he is mentally

retarded. Under the circumstances, the Court finds that the most efficient course is to convene a

hearing to determine whether Greene wants to proceed with a claim that he is mentally retarded.

In the event that Greene seeks dismissal of his Atkins claim, the Court will make a

competency determination. Specifically, after ordering an appropriate competency evaluation as

7

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Case 5:04-cv-00373-SWW Document 66 Filed 11/30/2009 Page 8 of 10

outlined in Rees, the Court will detennine (I) whether Greene possesses the rational ability to

understand the proeeedings and (2) whether Greene's waiver is knowing and voluntary, i.e.,

whether he understands the signifieance and consequences of forgoing a claim that he is mentally

retarded. See NOlmer v. Norris, 402 F.3d 80 1,804 (8'" Cir. 2005)' In the event that Greene

elects to proceed with his Atkins claim, the Court will consider temporary federal hospitalization

for the purpose of detennining whether he is capable of assisting in the development of his claim.

Whether Greene must be competent to litigate his Atkins claim is a question that need not

be answered at this juncture. Although the Ninth Circuit has held that a capital habeas petitioner

has a right to be competent during the proceedings when infonnation or cooperation from the

petitioner is necessary to pursue his claims,' see Rohan v. Woodford, 334 F.3d 803, 814 (9'" Cir.

'In NooneI' v. Norris, 402 F.3d 801 (8'" Cil'. 2005), Nooner, a death row inmate, sought
habeas relief in federal court through counsel. While Nooner's habeas petition was pending, he
filed a pro se motion to dismiss his petition. The district court rejected Nooner's request, and on
appeal, the Eighth Circuit remanded and directed the district court to detennine whether Nooner
was competent to withdraw his petition.

On remand, the district court hospitalized Nooner in a federal medical center for
evaluation, see NooneI' v. Norris, No. 5:96CY00495 SMR (Order entered August 20,2000), and
heard testimony from mental health experts who examined Nooner and detennined that he was
competent to withdraw his petition. Nooner, through counsel, appealed the district court's
competency detennination and dismissal of the petition on the merits. The Eighth Circuit ruled
that Nooner's motion to dismiss his petition was not knowing and voluntary; but the COUlt found
no error with the district court's finding that Nooner was competent and possessed the ability to
understand his request to withdraw his habeas petition. See NooneI' v. Norris, 402 F.3d 801,
805-06 (8'" Cir. 2005), cert. denied, 126 S. Ct. 2037 (2006).

'The Court stated its holding as follows:

Accordingly, we hold that, where an incompetent capital habeas petitioner raises
claims that could potcntially benefit from his ability to communicate rationally,
refusing to stay proceedings pending restoration of competence denies him his
statutory right to assistance of counsel, whether or not counsel can identify with
precision the information sought.

8

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Case 5:04-cv-00373-SWW Document 66 Filed 11/30/2009 Page 9 of 10

2003), the Eighth Circuit has "not yet had the oppOltunity to state whether competency on thc

part of the defendant is required at this level of review .... " Clayton v. Roper, 515 F.3d 784,

790 (8'h Cir. 2008)(assuming without deciding that competency is required but finding the

petitioner competent). Furthermore, even assuming that Greene is unable, rather than unwilling,

to undergo a complete battery of neuropsychological tests, it cannot be assumed that such

inability prevents him from establishing that he is mentally retarded. See Holmes v. Buss, 506

F.3d 576, 580 (7'h Cir. 2007)(stating that the test for competence to participate in post-trial

proceedings is whether the petitioner is competent to play whatever role in rclation to his case is

necessary to enable it to be adequately presented).

In sum, the Court finds no cause to stay the case at this time, and the Court will schedule

a hearing for the purpose of determining whether Greene desires to withdraw is Atkins claim.

IV. Respondent's Renewed Motion for a Psychological Evalnation

On July 6,2009, Respondent filed a renewed motion for a psychological evaluation by

Dr. Moore for the purpose of determining whether Green is mentally retarded. Because the status

of Greene's Atkins claim is uncertain at this time, Respondent's motion will be denied. If Greene

proceeds with an Atkins claim, Respondent may renew his motion.

IT IS THEREFORE ORDERED that Petitioner's motion to stay the proceedings pending

adjudication of competence to proceed and for an order permitting evaluation (docket entry #51)

is DENIED.

Rohan ex rei. Gates v. Woodfiml, 334 F.3d 803, 819 (9'h Cir. 2003).

9

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Case 5:04-cv-00373-8WW Document 66 Filed 11/30/2009 Page 10 of 10

IT IS FURTHER ORDERED that Respondent's renewed motion for a psyehological

evaluation (docket eutry #49) is DENIED. By separate notice, the Court will schedule a hearing

for the purpose stated in this order.

IT IS SO ORDERED THIS 30 TH DAY OF NOVEMBER, 2009.

IslSusan Webber Wright
UNITED STATES DISTRICT JUDGE

10

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Appendix D
Case 5:04-cv-00373-SWW Document 101 Filed 02/26/2010 Page 1 of 3

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

JACK GORDON GREENE *
*
Petitioner *
*
VS. * NO: 5:04CV00373 SWW
*
LARRY NORRIS *
*
Respondent *

ORDER

This is a capital habeas proeeeding pursuant to 28 U.s.C. § 2254 by Petitioner Jack

Gordon Greene, a death row inmate confined at the Val11er Supermax Unit of the Arkansas

Department of Correction. During a hearing held in this case on February 24, 2010, Petitioner

Greene testified, over his attorneys' objections, and stated that he desired to withdraw the claim

set forth in his petition that he is mentally retarded and thus ineligible for the death penalty under

Atkins 1'. Vi/'gi/lio, 536 U.S. 304,122 S. Ct. 2242 (2002). Counsel for Petitioner Greene

maintains that Greene lacks the capacity to appreciate his position and make a rational choice

with respect to pursuing or abandoning an Atkins claim and that Greene is incompetent to

proeeed with any aspect of this litigation. After careful consideration, the Court finds that the

issue of Greene's competency has been sufficiently raised such that Greene should be transferred

to a federal medical facility for evaluation. See flees v. Peyton, 384 U.S. 312, 314, 86 S. Ct.

1505, 1506 (1966)(pennitting a district court to order psychiatrie and other appropriate medical

examinations and temporary federal hospitalization for the purpose of determining whether a

habeas petitioner "has the capaeity to appreciate his position and make a rational choice with

respect to continuing or abandoning further litigation or on the other hand whether he is

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Appendix D
Case 5:04-cv-00373-SWW Document 101 Filed 02/26/2010 Page 2 of 3

suffering a mental disease, disorder, or defect which may substantially affect his capacity in the

premises") .

IT IS THEREFORE ORDERED that:

(I) Petitioner Jack Gordon Greene is hereby committed to the custody of the Attorney

General or his authorized representative for a reasonable period of time during which Petitioner

Greene shall be transported from his CUlTent place of confinement to a federal medical center for

the purpose of psychiatric or psychological evaluation.

(2) Respondent is ordered to deliver the custody and control of Petitioner Greene to the

United States Marshal for the Eastern District of Arkansas, who shall transport Petitioner Greene

from his place of confinement to a federal medical center designated by the Bureau of Prisons.

(3) Petitioner Greene shall undergo psychiatric or psychological examination at said

facility to determine the following:

(A) whether Petitioner Greene is suffering from a mental disease, disorder, or
defect and, if so,

(I) whether such mental disease, disorder, or defect renders Petitioner
Greene incapable of a rational understanding of these habeas proceedings;

(ii) whether such mental disease, disorder, or defect renders Petitioner
Greene incapable of communicating with and assisting his attorneys;

(iii) whether such mental disease, disorder, or defect may substantially
affect Petitioner Greene's ability to make rational decisions with respect to
these habeas proceedings, in particular with respect to pursuing or
abandoning a claim that he is mentally retarded and therefore ineligible for
execution.

(B) whether Petitioner Greene understands that he is to be executed and the reason
for his execution (i. e., the killing of Sidney Burnett);

(C) Petitioner Greene's intelligence quotient and an opinion as to whether
Petitioner Greene is mentally retarded as detined under Ark. Code Ann. § 5-4-

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Case 5:04-cv-00373-SWW Document 101 Filed 02/26/2010 Page 3 of 3

(4) In addition to evaluations necessary to obtain answers to tbe foregoing inquiries,

Petitioner Greene will be physically examined and evaluated, as petitioner complains that

constant physical pain interferes with his ability to function. The Court infers from petitioner's

statements that this pain interferes with his ability to cooperate in testing.

(5) Upon the completion of Petitioner Greene's examination and evaluation, the evaluators

shall submit a report to the COUlt, with copies to counsel for Petitioner Greene and Respondent.

It is further ordered that upon completion of said evaluation, Petitioner Greene shall be promptly

returned to the custody of the United States Marshal for the Eastern District of Arkansas, who

shall then deliver Petitioner Greene to Respondent's custody.

(6) The United States Marshal shall notify the Court upon Petitioner Greene's return to

Respondent's eustody.

IT IS SO ORDERED THIS 26 T1l DAY OF FEBRUARY, 2010.

Is/Susan Webber Wright

UNITED STATES DISTRICT JUDGE

I Arkansas Code § 5-4-618 defines mental retardation as follows:

As used in this section, "mental retardation" means:
(A) Significantly subaverage general intellectual funetioning
aeeompanied by a signifieant defieit or impairment in adaptive
functioning manifest in the developmental period, but no later than
age eighteen (I 8) years of age; and
(B) A deficit in adaptive behavior.

3

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Appendix E
Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 1 of 21

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

THIS IS A CAPITAL CASE

JACK GORDON GREENE *
*
Petitioner *
*
vs. * NO: 5:04CV00373 sww
*
LARRY NORRIS *
*
Respondent *

MEMORANDUM OPINION AND ORDER

This is a capital habeas proceeding pursuant to 28 U.S.C. § 2254 by Petitioner Jack

Gordon Greene ("Greene"). Against the advice of habeas counsel, Greene moved to withdraw a

claim that he is mentally retarded and therefore ineligible for the death penalty under Atkins v.

Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002). For the purpose of determining whether Greene

is competent to withdraw his Atkins claim, the Court ordered that he undergo evaluation at a

federal medical facility. Additionally, the Court permitted habeas counsel to conduct discovery

on the competency issue, and held a two-day evidentiary hearing. After careful consideration,

and for reasons that follow, the Court finds that Greene is competent to waive his Atkins claim

and further that his waiver is both knowing and voluntary. Greene's request to waive his Atkins

claim is granted, and the case will proceed on the remaining claims.

I. Background

On October 15, 1992, Greene was convicted in Johnson County Circuit Court of capital

murder and sentenced to death by lethal injection. Green appealed, arguing inter alia that his

death sentence was wrongly predicated on evidence of an aggravating circumstance-a North

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Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 2 of 21

Carolina conviction for a prior violent felony that was later reversed by the North Carolina

Supreme Court. On June 20, 1994, the Arkansas Supreme Court affirmed Greene's conviction

but set aside his death sentence based on the reversal of the North Carolina conviction and the

trail court's failure to allow presentation of certain mitigating circumstances. See Greene v.

State, 317 Ark. 350, 878 S.W.2d 384 (1994).

On remand, a jury again imposed a death sentence. After Greene indicated that he

wanted to dismiss an appeal filed on his behalf, the Arkansas Supreme Court remanded the case

on two occasions for hearings to determine Greene's competency to waive appeal and elect

execution. See Greene v. State, 326 Ark. 822, 933 S.W.2d 392 (1996); Greene v. State, 327 Ark.

511, 939 S.W.2d 834 (1997). However, Greene refused to submit to a psychological

examination to determine competency, and the Arkansas Supreme Court denied his motion to

waive appeal. Greene v. State, 328 Ark. 218,941 S.W.2d 428 (1997).

Again, the Arkansas Supreme Court reversed and remanded for resentencing-this time,

because the State failed to offer proof that Greene's conduct in North Carolina constituted a

felony. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998).

On July 1, 1999 Green was resentenced to death. The next day, Greene filed a waiver of

appeal, and the trial court ordered an evaluation by the Arkansas State Hospital for the purpose

of determining whether Greene was competent to waive appellate review and elect execution.

Doctors evaluated Greene, the trial court held a hearing and found Green competent to waive

appeal, and the Arkansas Supreme Court affirmed the trial court's determination. See State v.

Greene, 338 Ark. 806, 1 S.W.2d 442 (1999).

Pursuant to its duty to automatically review the record in all death penalty cases, even

2

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when the defendant competently waives his right to appeal, the Arkansas Supreme Court

reviewed the record and found no reversible error. See Greene v. State, 343 Ark. 526, 542, 37

S.W.3d 579, 590 (2001). On October 1, 2001, the Supreme Court of the United States denied

certiorari. Greene v. Arkansas 534 U.S. 858, 122 S. Ct. 135 (2001).

On October 25, 2001, the trial court entered an order appointing counsel to represent

Greene in post-conviction proceedings under Rule 3 7 of the Arkansas Rules of Criminal

Procedure. The trial court denied Greene's petition for post conviction relief, and the Arkansas

Supreme Court affirmed. See Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004).

On October 20, 2004, Greene filed this habeas action under 28 U.S .C. § 2254, through

counsel, 1 asserting seventeen grounds for relief, including that he is mentally retarded and

therefore ineligible for the death penalty under Atki11s v. Virginia, 536 U.S. 304, 122 S. Ct. 2242

(2002).

The Court scheduled an evidentiary hearing with respect to Greene's Atkins claim. 2

However, habeas counsee filed a motion to suspend the proceedings pending adjudication of

1
0n October 12, 2004, the Federal Public Defendant filed a motion for appointment of
counsel, asserting that Greene indicated his desire that the Federal Public Defender be appointed
to represent him. See Green v. Norris, No. 4:04MC00025 GH, docket entry #2. The motion to
appoint counsel states: "Due to mental incompetence, Mr. Greene is unable at this time to
complete an Application to Proceed Without Prepayment of Fees .... "Id., <j[ 4. On November
23, 2004, the Court appointed Jennifer Horan and the Federal Public Defender's Office to
represent Greene. See Green v. Norris, No. 4:04MC00025 GH, docket entry #3.
2
Since 1993, Arkansas law has provided criminal defendants a procedure to establish that
they are categorically ineligible for the death penalty due to mental retardation. See Ark. Code
Ann. § 5-4-618. Greene did not pursue such a defense in state court, and the Eighth Circuit has
concluded that the existence of the state procedure is irrelevant to whether a habeas petitioner
has defaulted an Atkins claim. See Simpson v. Norris, 490 F.3d 1029, 1034-36 (8th Cir. 2007).
3
The Court recognizes that motions filed by appointed counsel are filed on Greene's
behalf. However, because Greene opposes the pursuit of an Atkins claim, the Court will

3

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Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 4 of 21

Greene's competence to proceed. See docket entry #51. Habeas counsel reported that Dale G.

Watson, Ph.D., a neuropsychologist, attempted to evaluate Greene on July 9, 2009, but Greene

told correctional officers that he was physically unable to participate in testing, and he declined

to leave his cell. Habeas counsel stated that Greene's mental state had deteriorated to the point

that he was unable to participate in neuropsychological testing and communicate with counsel.

On August 20, 2009, the case was transferred to this Court, and for scheduling reasons, the Court

cancelled the Atkins hearing.

On August 26, 2009, the Court received a letter from Greene, complaining that his

attorneys were "trying to make [him] out to be some kind of an incompetent retard to get that

office appointed to my case .... " Docket entry #64, Attach. #1. In his letter, Greene expressed

disapproval of tests "to try and validate such brain neurological injuries .... " !d.

By order entered November 30, 2009, the Court denied habeas counsel's motion to stay

the case pending adjudication of Greene's competence to proceed. In light of Greene's letter

indicating that he disapproved of efforts to show that he is mentally retarded and his apparent

refusal to cooperate with neuropsychological testing, the Court determined that the most efficient

course was to convene a hearing in which Greene could state on the record whether he wanted to

abandon his Atkins claim.

During a hearing held in this case on February 24, 2010, Petitioner Greene testified, over

habeas counsel's objections, that he desired to withdraw his Atkins claim. Greene was

transported to the courtroom in a wheelchair. Greene's body appeared contorted, and he had

distinguish between Greene's prose submissions and motions filed by habeas counsel on his
behalf.

4

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Appendix E
Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 5 of 21

enormous difficulty standing and controlling his body movements. Greene has written affidavits

and other writings, some dated as early as 2005, complaining that prison employees torture him

by constantly slamming the trap door to his cell. See Pet'r Ex. #9. According to Greene's

writings, the constant slamming causes him to suffer intense ear pain and has damaged his

nervous system and spinal cord.

Despite Greene's apparent pain and physical problems, he had no difficulty responding

to the Court's questions:

Court: [Your lawyers] have filed a lengthy petition for habeas corpus in your
case. Do you understand that you are likely to be executed unless the
Court grants the petition?

Greene: Yes, I understand, Your Honor.

Court: Do you understand that in that petition they have asserted that you are
incompetent?

Greene: That is an outright lie.

Court: All right. Well, do you understand that they have asserted that on your
behalf?

Greene: Oh, yes, yes. They had to do that just to get their office appointed to my
case seven years ago, almost. Six years ago.

Court: Well, I don't know that that's true, that they had to assert that, but are you
aware that they did assert that?

Greene: Yes.

Court: Are you also aware that they are claiming that you are mentally retarded
and, therefore, it would be unconstitutional for you to be executed?

Greene: I'm aware of it, but that's far from the case.

Court: All right. Is it your desire to pursue the claim of mental retardation?

5

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Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 6 of 21

Greene: No, ma'am.

Court: Do you understand -- it is not your desire?

Greene: No, ma'am.

Court: Do you understand that this is a valuable constitutional right?

Greene: Your Honor, like I just stated, this organization has had my case for all
these years. They have --between the Department of Corrections and this
Federal Public Defender's Office, they have wasted hundreds of thousands
of dollars to try to cover up these crimes against humanity here.

Court: What crimes against humanity?

Greene: To inflict a person with such injuries that force a person to live with such
injuries, and then spend untold thousands and thousands of dollars to try
to validate making me out to be a retard just to try to cover it up. I live
like this every moment of the day, 24/7. It's all I can do to keep from
dying from these injuries to my brain that has destroyed my central
nervous system. I filed complaints four, five years ago on Judge Wilson
even for having my case. I tried to file complaints through the bar
association on these lawyers that took over my case without my
authorization. And instead of helping me get medical treatment, they fly in
a neurologist and try to use it -- try to use my injuries that has been
inflicted upon me like this to validate making me out to be a retard.

Court: All right. Is there anything else you want to say?

Greene: I do not wish to pursue on the grounds of-- they have no authorization to
represent me, period.

During the hearing, habeas counsel argued that Greene lacks the capacity to appreciate

his position and make a rational choice with respect to pursuing or abandoning an Atkins claim

and that he is incompetent to proceed with any aspect of this litigation. Finding that the issue of

Greene's competency to waive his Atkins claim had been sufficiently raised, the Court ordered

that he be transferred to a federal medical facility for evaluation. See Rees v. Peyton, 384 U.S.

312, 314, 86 S. Ct. 1505, 1506 (1966)(permitting a district court to order psychiatric and other

6

21a
Appendix E
Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 7 of 21

appropriate medical examinations and temporary federal hospitalization for the purpose of

determining whether a habeas petitioner "has the capacity to appreciate his position and make a

rational choice with respect to continuing or abandoning further litigation or on the other hand

whether he is suffering a mental disease, disorder, or defect which may substantially affect his

capacity in the premises").

Pursuant to the Court's order, Greene was assessed by Dr. Christina A. Pietz at the

United States Medical Center for Prisoners in Springfield, Missouri, where he remained from

May 16 to July 30, 2010. Dr. Pietz issued a forensic report stating her conclusion that Greene is

competent to make a rational decision as to whether he will abandon a claim that he is mentally

retarded and therefore ineligible for execution.

Following Greene's return to the Arkansas Department of Correction, the Court

permitted habeas counsel to conduct discovery and permitted Dr. George Woods, a

neuropsychiatrist retained by counsel on Greene's behalf, to visit Greene in person for the

purpose of evaluation.

II. Competency Hearing

On October 6-7,2011, the Court conducted an evidentiary hearing to determine whether

Greene is competent to waive his Atkins claim and whether his waiver is knowing and voluntary.

Habeas counsel presented expert testimony from Dale Watson, Ph.D. , a neuropsychologist; and

George Woods, M.D., a neuropsychiatrist. Both experts testified that Greene suffers from both a

mental defect and a mental disease, which render him incompetent to waive his Atkins claim.

Dr. Watson opines that Greene suffers from neuropsychological deficits and an

unspecified psychotic disorder marked by somatic delusions, or false beliefs regarding his body

7

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Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 8 of 21

function. According to Dr. Watson, Greene's neuropsychological deficits involve significant

deficits in executive functions 4 resulting from damage to or abnormal development of the frontal

lobes of the brain. Hr'g Tr. at 50. Dr. Watson opines that Greene's frontal lobe dysfunction and

psychotic disorder are "two sides of the same coin" and that problems with Greene's executive

functions serve as a substrate for his psychotic disorder. Hr'g Tr. at 116.

In Dr. Watson's opinion, Greene's mental disorders render him incapable of assisting and

"communicating substantively" with his attorneys, and they "impede" his ability to make

rational decisions with respect to pursuing or abandoning a claim that he is mentally retarded.

Hr'g Tr. at 51.

Because Greene refused to permit Dr. Watson to perform a comprehensive neurological

evaluation, Dr. Watson's opinion is based on limited testing he performed, his observation of

Greene's appearance and demeanor, and a review of records. Dr. Watson testified that the

results of a Wisconsin card sort test he performed indicate that Greene displays perseveration--a

manifestation of frontal lobe brain dysfunction "where somebody gets stuck in a mental rut."

Hr'g Tr. 63. Dr. Watson explained that people displaying perseveration "become bound to kind

of these ideas that they cany with them, and they just kind of go over the same thing over and

over again." !d. Dr. Watson testified that the results of other tests he performed showed that

Greene has deficits in problem solving and verbal fluency. Dr. Watson also reported that Greene

has a reduced sense of smell, which Dr. Watson testified is a marker for frontal lobe brain

4
Dr. Watson testified that executive functions "are brain-related abilities that have
to do with the initiation ofbehavior, with the inhibition of the behavior, with monitoring of
behavior, with shifting of sets from one thing to another." Hr' g Tr. at 57. Dr. Watson
commented: "We kind of think of it as the frontal lobe being the conductor of the orchestra, if
you will. So that function of the brain kind of organizes and directs behavior." Hr'g Tr. at 57.

8

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Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 9 of 21

deficit.

Dr. Watson testified that the results of a neurological evaluation by Dr. Pamela Blake, a

neurologist, support his opinion that Greene suffers from executive functioning deficits. By

affidavit dated September 12, 2011, Dr. Blake states that she was retained by habeas counsel to

evaluate Greene, and she performed a physical evaluation in March 2009. Pet'r Ex. #33.

Dr. Blake reports that when she evaluated Greene, he had no history of a known medical

or neurological disorder, but over "several previous years," Greene had developed symptoms

including diffuse pain, sensitivity to sound, and the sensation that his spinal cord was being

severed. Dr. Blake states that Greene began suffering chronic pain and an inability to stand fully

erect in May 2006.

Dr. Blake recalls that Greene held his index finger in his left ear, moved with great

difficulty, and he "maintained an almost constant state of 75 degrees of bend at the waist to the

right." Pet'r Ex. #33, at 1. Dr. Blake also notes that Greene was pleasant and cooperative, and

he focused on the examination and was able to participate.

During Dr. Blake's examination, Greene demonstrated yoga movements that he performs

to reduce stress, which according to Dr. Blake strongly suggests that his inner ear and

neurological motor functions are normal. However, Dr. Blake states that "there were several

abnormal neurological signs consistent with frontal lobe function including paratonia (an

inability to voluntarily relax muscle tone), an inability to perform Luria hand movements,

inability to perform abstract thinking, and impaired verbal fluency. Dr. Blake concludes that

Green's impaired functioning is consistent with a psychiatric disorder, and she recommends

assessment by a psychiatrist.

9

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Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 10 of 21

Dr. Woods, a neuropsychiatrist, opines that Greene suffers from a psychotic disorder.

Dr. Woods interviewed Greene briefly in April2010, and he reviewed documents including Dr.

Watson's test results, medical and mental health records for Greene and his family members, Dr.

Blake's affidavit, and declarations by Greene's family members and attorneys.

Dr. Woods opines that Greene's reported pain and physical problems, his belief that

prison employees torture him, and his perception that habeas counsel are working against him

are delusional. Dr. Woods notes in his forensic report that Greene's belief that his spinal cord is

not functioning is realistically untenable and not consistent with his degree of bodily control and

flexibility. Dr. Woods also notes that Greene believes that his left eardrum is burst, but medical

examinations have shown an intact eardrum.5

Dr. Woods also testified that Greene's social history reveals several key risk factors for

the development of a psychotic disorder, including a family history of mental illness and seizure

disorder, advanced paternal age, poverty, childhood trauma, early marijuana use, and traumatic

brain injury.

Dr. Woods concludes that Greene's delusions evidence a psychotic disorder, which

"renders him unable to focus on, and accurately communicate about, substantive matters." Pet'r

Ex. E2, at 10. Dr. Woods opines that Greene's "primary" delusions regarding pain and physical

5
In January 2006, Greene presented at the University of Arkansas Medical Center, Ear
Nose and Throat Clinic, complaining of left ear pain. See docket entry #61, Ex. #3 . Greene told
medical personnel that his pain started in July 2004, after he felt a pop in his left ear and that the
pain was caused by purposeful and repeated slamming of his cell door. An attending physician's
report states that Greene's severe ear pain was probably due to temporomandibular joint
dysfunction. The report notes that an examination of Greene's left ear was completely normal
with no middle ear effusion or tympanic membrane abnormal. The attending physician also
reported that an MRI of Greene's brain was completely normal, but an MRI of the spine showed
degenerative changes and spurs.

10

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Appendix E
Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 11 of 21

maladies undermine his motivation to assist his attorney. Woods states: "Indeed, he recently

expressed the desire to have his death sentence carried out and attached in support of that request

a series of writings detailing the torture that he believes is being inflicted upon him. !d. at 10-11.

Dr. Woods states that Greene's "secondary, persecutory" delusions regarding his attorneys and

prison employees undermine his trust in his attorneys and cause him to refuse to cooperate with

investigative efforts and testing.

In his forensic report, Dr. Woods concludes that Greene's preoccupation with somatic

and persecutory delusions impair his ability to gain accurate information about his case, and

without accurate information, he cannot make rational decisions. See Pet'r Ex. #2. Dr. Woods

states: "Mr. Greene's mental illness prevents him from consulting appropriately with his

attorney, who could disabuse him ofhis inaccurate understanding of his legal situation." !d. at

12.

Habeas counsel also presented testimony by Assistant Federal Defender Scott Braden,

who represented Greene from early 2008 until one week before the hearing. Braden testified that

Greene is unable to cooperate with counsel because of his preoccupation with physical

complaints and paranoid beliefs.

Braden stated that Greene refused to talk to him because he believed that he was in

league with the Arkansas Department of Correction. According to Braden, Greene believes that

his attorneys want to make him out to be mentally retarded "so that nobody would believe him

when he finally had an opportunity to tell somebody how he had been injured by the Department

of Correction." Hr'g Tr. at 19. Braden recounted that Greene has stated that he cannot live in

pain any longer, and if he cannot get help, he would just as soon die. Hr' g Tr. at 24.

11

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Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 12 of 21

Respondent takes the position that Greene is does not suffer from a mental disease,

disorder or defect and that he is competent to waive his Atkins claim. Respondent presented

expert testimony from Dr. Cluistina Pietz, a psychologist employed by the United States Medical

Center for Prisoners in Springfield, Missouri, who evaluated Greene pursuant to the Court's

order.

Dr. Pietz reports that during her first meeting with Greene on May 27, 2010, Greene

contorted his body and had difficulty walking and moving, but he was cooperative and answered

her questions. The next day, Dr. Pietz visited Greene after she learned that he had been in a

headstand position for a significant period of time, and Greene did not respond to her questions.

However, during Dr. Pietz's next meeting with Greene, he told her that he practices yoga in

order to soothe pain he experiences from central nervous system damage. In subsequent

meetings, Dr. Pietz administered the Wechsler Adult Intelligence Scale-Fourth Addition

(WAIS-IV) and Greene completed the Minnesota Multiphasic Personality Inventory-2 (MMPI-

2). Additionally, Greene cooperated in providing his social history.

In her forensic report, Dr. Pietz states that Greene initially put forth a diligent effort in

taking the WAIS-IV. However, within forty minutes, Greene wanted to discontinue the test

because he was tired. With encouragement from Dr. Pietz, Greene agreed to finish the test, but

his effort waned and he was unwilling to attempt a subtest involving visual puzzles. The test

results show that Greene's full scale IQ is 76, in the borderline range, and his general ability

score is 80, within the low average range. Dr. Pietz reports that Greene's WAIS-IV score for

verbal comprehension, which measures verbal reasoning and concept formation, fell within the

low average range, which indicates that he should have no difficulty expressing himself in social

12

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Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 13 of 21

situations requiring verbal skills. Dr. Pietz notes that Greene did not perform well on some

nonverbal tasks to which he did not put forth his best effort, and she notes that Greene's ability

to process simple visual material fell within the borderline range. In Dr. Pietz's opinion, because

Greene was unwilling to attempt the visual puzzle subtest, a score of 76 likely underestimates his

overall IQ.

Green spent approximately two hours completing a MMPI-2, which involved reading

337 questions and providing answers by filling in dots. Dr. Pietz reports that the results of

Greene's MMPI-2 assessment showed elevated scores for somatic complaints and antisocial

behavior but did not indicate a psychotic disorder, schizophrenia, or a delusional disorder.

Dr. Pietz testified that she wanted to administer additional tests, including a competency

interview. However, after Greene completed the MMPI-2 and the WAIS-IV, he stated his desire

to return to Arkansas. Dr. Pietz testified that from Greene's perspective, he had cooperated with

tests that the Court had ordered, and he was unwilling to do more. According to Dr. Pietz 's

notes, Greene stated the following:

I feel confident that the intelligence test you administered demonstrates that I
have above-average intelligence, which should prove that I am not mentally
retarded as those lawyers in Arkansas profess and, therefore, not incompetent.
That has never been the issue, yet they continue to - - they continue to argue it is.

Hr'g Tr. at 367.

Dr. Pietz met with Greene several times after he refused further testing. She recounted

that she met with Greene on June 29, 2010, and he was lying on his bed reading the book

American Caesar. Greene told Dr. Pietz that the book was about General Douglas MacArthur,

and it was fascinating.

In her forensic report, Dr. Pietz notes that in 1992, 1995, and 1999, two evaluators at the

13

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Appendix E
Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 14 of 21

Arkansas State Hospital determined that Greene did not suffer from a mental illness. Dr. Pietz

acknowledges that in the 1980's, emergency room personnel were concerned that Green had

injured himself, and in 1985, Greene admitted himself to a mental health facility because he had

thoughts of harming his bother. However, Pietz notes that records of the events occurring in the

1980's do not suggest a psychotic disorder, and Greene was diagnosed with substance abuse and

personalty disorder.

Dr. Pietz testified that her experiences with Greene revealed that he "picks and chooses"

his activities, and he independently determines his level of cooperation. She agreed that Greene

does not have a meaningful relationship with his attorneys, but she opined that Greene has a

rationale basis for refusing to work with habeas counsel. During Greene's discussions with Dr.

Pietz, he explained:

Look, this is my life not theirs. The direction they are going makes no sense. I am
not mentally retarded. There is no way anyone with sense will go for that. They
have had my case for seven years and [have] done nothing to help me. They've
never shown [me] any documents, motions, nothing. Why would I choose to work
with them[?]

Resp't Ex. #2, Pietz Forensic Report, at 24.

Dr. Pietz stated: "He doesn't want them arguing mental retardation. He doesn't want to

appear mentally ill, but he doesn't feel that argument is going to work. He wants them to use the

argument [that] he wants them to use." Hr'g Tr. 379. Dr. Pietz provided a specific example of

Greene's capacity to weigh the potential risks and benefits of various courses of action. In

describing his appeal, Greene stated:

When they convicted me in Arkansas and gave me the death penalty, they used the

14

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Appendix E
Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 15 of 21

conviction from North Carolina as a mitigating circumstance. 6 You can't do that.
Once I won my appeal, the state of Arkansas had no leg to stand on. Don't get me
wrong. I believe in capital punishment and I did kill two men. That's not what this
is about. I know the law. I filed the appeal on my own. I don't need and attorney
saying I'm mentally retarded. That's bogus. If you want to appeal my case, appeal
it based on something that's accurate. Not this bullshit.

Resp't Ex. #2, Pietz Forensic Report, at 25.

Dr. Pietz found nothing delusional about Greene's understanding of his habeas claims.

She also addressed Greene's behavior of twisting and contorting his body, standing on his head,

and plugging his ear. Acknowledging the behavior as atypical, Dr. Pietz found that Greene was

capable of adequately answering questions and providing details, even when he was contorting

his body. !d. at p. 26.

III. Discussion

A habeas petitioner is entitled to guide the course of his litigation and withdraw a

particular claim, provided that he is competent to do so. The Court' s competency inquiry is two-

fold. First, the Court must determine whether Greene has the rational ability to understand the

proceedings. See Nooner v. Norris, 402 F.3d 801, 804 (8th Cir. 2005)(citing O'Rourke v. Endel/,

153 F.3d 560, 567-68 (8 1h Cir. 1998)(quoting Godinez v. Moran, 509 U.S. 389, 401 n.12, 113 S.

Ct. 2680 (1993)). Second, the Court must determine whether Greene's waiver is knowing and

voluntary. !d.

A. Competency to Waive

In Rees v. Peyton, 384 U.S. 312, 86 S. Ct. 1505 (1966), the Supreme Court stated the

6
The Court finds that Greene was actually referring to an "aggravating circumstance."
See Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994)(finding death sentence wrongfully
predicated on aggravating circumstance evidence of North Carolina conviction that was later
reversed by the North Carolina Supreme Court).

15

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Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 16 of 21

standard for competence to abandon habeas relief:

whether [the petitioner] has capacity to appreciate his position and make a
rational choice7 with respect to continuing or abandoning further litigation or on
the other hand whether he is suffering from a mental disease, disorder, or defect
which may
substantially affect his capacity in the premises.

Rees, 384 U.S. at 314, 86 S. Ct. 1505(emphasis added).

In determining competence to waive habeas review, the focus is whether the decision is

based on a rational thought process or whether it is the product of a mental disease, defect, or

disorder. The mere possibility that the decision is a product of a mental disorder is not enough to

preclude waiver. As noted by the Eighth Circuit in Smith By and Through Missouri Public

Defender Com'n v. Armantrout, 812 F.2d 1050, 1057 (8th Cir. 1987), although the two portions

of the Rees standard appear as disjunctive alternatives, "there is necessarily an area of overlap

between the category of cases in which at the threshold we see a possibility that a decision is

substantially affected by a mental disorder, disease, or defect, and that of cases in which, after

proceeding further, we conclude that the decision is in fact the product of a rational thought

process."

Whether Greene is competent to waive his Atkins claim is ultimately a question for the

Court. After carefully considering the evidence, the Court is not persuaded by the testimony and

opinions of Drs. Watson and Woods. Even assuming that Greene suffers from a mental defect

or disease and has delusions about his physical condition and whether attorneys and prison

7
The phrase "rational choice" in this context means "rational understanding." See
Godinez v. Moran, 509 U.S. 389, 398 n. 9, 113 S. Ct. 2680 (1993); see also Whitmore v.
Arkansas, 495 U.S. 149, 166, 110 S. Ct. 1717 (1990) (asking in "next friend" case whether the
prisoner has capacity to have a rational understanding with respect to continuing or abandoning
further litigation).

16

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Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 17 of 21

guards are working against him, the Court finds that he is cognizant of and appreciates the

practical consequences of abandoning his Atkins claim. Greene has clearly expressed his strong

conviction that he is not mentally retarded and that he does not want his attorneys to assert such

a claim. Greene has also testified that he understands that he would not be executed if his Atkins

claim were successful.

Despite his physical problems, whether real or delusional, and his belief that his attorneys

are not working in his best interest, Greene has a rational basis for believing that he is not

mentally retarded. Green communicates with others on an adult level, and he reads, writes, and

speaks fluently. Furthermore, at the close of the competency hearing, Greene testified that even

if he were "anywhere close" to being mentally retarded, he would not pursue an Atkins claim,

Greene explained:

If I were anywhere close to being mentally retarded, incompetent, or anything that
you are describing, I still wouldn't go that route. I don't know. There is just a thing
about, you know, it-- that's just-- you know, that's just wrong to me. I mean, if
someone is competently sentenced to death repeatedly, as I have been, and all of a
sudden, you know-- even ifl do have a mental issue and it arises now, why pursue
such to prolong such, year after year after year? I mean, this is not only a cost of
taxpayer's money -- I mean, that's what the Court's are clogged up with. This
country is in a recession, almost in default because of money being spent. I think
there should be a limit on appeals, and I think, you know -- this is just, to me, all this
ridicule that I have had to endure about me for the past couple of days, I could tum
that around on these lawyers and I could tum that around on these doctors real easily.
All the money that has been spent here is ludicrous.

Hr'g Tr. at 452-53. The Court need not determine whether Greene is reasoning from "premises

or values that are within the pale of those which our society accepts as rational." See Smith, 812

F.2d at 1059. It is sufficient that the Court finds, as it does, that Greene's decision is in fact the

product of a rational thought process.

17

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Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 18 of 21

B. Knowing and Voluntary

In determining whether a waiver is knowing, a court should inquire (1) whether the

petitioner understands the consequences and significance of his waiver and (2) whether he

understands the possible results if his petition were successful. See Nooner v. Norris, 402 F.3d

801, 806 (8 1h Cir. 2005). At the close of the hearing, the Court questioned Greene directly:

Court: You keep saying that you want to waive your Atkins claim. Do you know
what that means?

Greene: Yes, I do.

Court: What does it mean to you?

Greene: From the documents I have read recently, it's the claim that these attorneys
have made, against my consent, that I am incompetent and retarded. I
never asked these -

Court: If I end up saying you are competent and letting you waive that, what do
you think might happen to you?

Greene: Well, I hope my execution date will be set as soon as possible as I have
described in these documents.

Court: And what happens when you are executed?

Greene: You are put to death.

Hr'g Tr. at 447. The Court also explained to Greene that if he were successful with a claim that

he is mentally retarded, he would not be executed; but Greene maintained his steadfast position

that he does not want to proceed with an Atkins claim. See Hr'g Tr. at 452. The Court finds that

Greene understands the consequences and significance of his waiver.

A waiver is involuntary if it stems from coercion-either mental or physical. See Brady v.

United States, 397 U.S. 742, 754, 90S. Ct. 1463. Poor conditions of confinement may play a

18

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Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 19 of 21

role in whether the decision to forgo collateral review and face a death sentence is voluntary.

Greene has described his conditions of confinement as torture, and he believes that correctional

officers torment him by slamming doors, which causes him to suffer pain. However, even during

Greene's two and one-half month stay at the federal medical center and during his time in Court,

when he was not subject to the complained-of prison conditions, he maintained his steady

position that he does not want to pursue a claim that he is mentally retarded. See Smith, 812 F .2d

at 1058 -1059("We think that the District Court was justified in concluding that, even if death

row's conditions were in violation of the Eighth Amendment, the fact that Smith continued to

adhere to his decision over the months between his transfer to SMU and the District Court

hearing negated any inference of coercion."). Furthermore, Greene indicated a desire to waive

appeals in state court, long before he began complaining about his conditions of confinement.

The Court finds that Greene's decision to withdraw his Atkins claim is both knowing and

voluntary.

In addition to maintaining that Greene is incompetent to withdraw his Atkins claim,

habeas counsel assert that this case should be stayed indefinitely because Greene is incompetent

to proceed with any aspect of this proceeding. Although the Ninth Circuit has held that a capital

habeas petitioner has a right to be competent during the proceedings when information or

cooperation from the petitioner is necessary to pursue his claims, 8 see Rohan v. rVooc{fbrd. 334

8
The Ninth Circuit stated its holding as follows:

Accordingly, we hold that, where an incompetent capital habeas petitioner raises
claims that could potentially benefit from his ability to communicate rationally,
refusing to stay proceedings pending restoration of competence denies him his
statutory right to assistance of counsel, whether or not counsel can identify with
precision the information sought.

19

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Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 20 of 21

F.3d 803, 814 (9 111 Cir. 2003), the Eighth Circuit has "not yet had the opportunity to state whether

competency on the part of the defendant is required at this level of review .... " C lc~vton v.

Roper, 515 F.3d 784, 790 (8'h Cir. 2008)(assuming without deciding that competency is required

but finding the petitioner competent).

On March 19, 2012, the Supreme Court granted certiorari in two cases: In re Gonzales,

623 F.3d 1242 (9 1h Cir. 2010), cert. granted sub nom., Ryan v. Gonzales,- U.S.-, 132 S. Ct.

1738 (March 19, 2012) (No. 10-930) and Carter v. Bradshaw, 644 F.3d 329 (6th Cir. 2011), cert.

granted sub nom., Tibblas v. Carter,- U.S.-, 132 S. Ct. 1738 (March 19, 2012) (No. 11-218).

The questions presented in Gonzales are whether under Rees, a capital prisoner has a right to

competence in federal habeas proceedings and whether a district court can order an indefinite

stay of federal habeas proceedings. The question presented in Carter is whether 18 U.S.C.

§ 3 5999 carries with it an implied right to stay federal habeas proceedings if the petitioner is not

competent to assist counsel.

Even assuming that a capital habeas petitioner has a right to competence in federal

habeas proceedings, the "the scope of that right must correspond to what mental capabilities the

litigant needs to assist in the conduct of the litigation." Paul v. United States, 5 34 F.3d 832, 84 7

(81h Cir. 2009)(citing Holmes v. Buss, 506 FJd 576. 581 (7th Cir. 2007)). Here, the Court finds

Rohan ex ref. Gates v. Woodford, 334 F.3d 803, 819 (9th Cir. 2003).

9
18 U.S.C. § 3599(2) provides that "[i]n any post conviction proceeding under section
2254 or 2255 of Title 28, seeking to vacate or set aside a death sentence, any defendant who is or
becomes financially unable to obtain adequate representation ... shall be entitled to the
appointment of one or more attorney."

20

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Case 5:04-cv-00373-SWW Document 196 Filed 10/25/12 Page 21 of 21

no evidence that Greene's assistance is needed to develop the remainder of his claims or that he

is incompetent to provide assistance if it is needed.

For the reasons stated, Petitioner Greene's prose, oral motion to waive a claim that he is

mentally retarded and therefore ineligible for execution is GRANTED. The case will proceed on

the remainder of claims set forth in the petition.

IT IS SO ORDERED THIS 25th DAY OF OCTOBER, 2012.

Is/Susan Webber Wright

UNITED STATES DISTRICT JUDGE

21

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Appendix F
Case 5:04-cv-00373-SWW Document 224 Filed 03/30/15 Page 1 of 103

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

THIS IS A CAPITAL CASE

JACK GORDON GREENE *
*
Petitioner *
*
VS. * NO: 5:04CV00373 SWW
*
LARRY NORRIS *
*
Respondent *

OPINION and ORDER of DISMISSAL

Petitioner Jack Gordon Greene, an inmate in the custody of the Arkansas Department of

Correction, is under a sentence of death for the 1991 murder of Sidney Jethro Burnett.1 Greene

seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the ground that his conviction and

sentence are in violation of multiple provisions of the United States Constitution. Before the

Court are Greene’s original and supplemental petitions for writ of habeas corpus (ECF Nos. 1,

200), the State’s amended response (ECF No. 11), Greene’s traverse (ECF No. 198), and the

State’s response (ECF No. 208). After careful consideration, and for reasons that follow, the

1
The state court record in this case is somewhat complicated. Greene was sentenced to
death three times, and he appealed each sentence. The appeal record associated with Greene’s
1992 conviction for capital murder and his initial death sentence is contained in volumes bearing
the case number CR 93-523, and the record associated with Greene’s first resentencing trial is
contained in volumes bearing the case number CR 96-362. However, the appeal record
associated with Greene’s second resentencing trial, which occurred in 1999, was misfiled under
case number CR 96-262. Fortunately, Respondent’s notice of filing the state court record (ECF
No. 9) clearly separates portions of the record associated with the 1996 and 1999 trials.

37a
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Case 5:04-cv-00373-SWW Document 224 Filed 03/30/15 Page 2 of 103

petition will be denied.2

I. Background

Sidney Jethro Burnett (“Burnett”) and his wife Edna lived in Johnson County, Arkansas,

and they helped people in need through an organization called Ministries Aflame. In 1987, the

Burnetts befriended Jack Gordon Greene (“Greene”) and his wife Donna, and they provided the

Greenes employment, a place to live, and money that allowed Greene to have needed surgery. A

few months after the Greenes met the Burnetts, Donna Greene left Arkansas and returned to her

home in North Carolina. Greene, distraught over his wife’s absence, returned home to North

Carolina shortly after Christmas 1987.

After Greene’s departure, the Burnetts had no contact with him, with the exception of one

phone call. Then in July 1991, Greene appeared at the Burnetts’ doorstep, stating that he needed

work, and the next morning, he showed up at the Burnetts’ church with a hitchhiker. While

Greene was present at the church, Burnett beckoned Edna Burnett outside for a private

conversation. Burnett, who did not want to help Greene, was without his hearing aid and spoke

2
The Court addresses Greene’s asserted grounds for habeas relief without holding an
evidentiary hearing. Title 28 U.S.C. § 2254(e)(2) provides that “a court shall not conduct an
evidentiary hearing unless a petitioner failed to develop a claim in state court, provided that the
claim relies on a new rule of constitutional law or on ‘a factual predicate that could not have
been previously discovered through the exercise of due diligence[,]’ and the facts [underlying the
constitutional claim] would ‘establish by clear and convincing evidence’ the petitioner's actual
innocence.” Morris v. Dormire, 217 F.3d 556, 560 (8th Cir.), cert. denied, 531 U.S. 984
(2000)(citing Williams v. Taylor, 529 U.S. 420, 433-37 (2000)); see also Hatcher v. Hopkins,
256 F.3d 761, 764 (8th Cir. 2001), cert. denied, 536 U.S. 926 (2002). The Court finds that
Greene fails to satisfy the statutory requirements for an evidentiary hearing as to all grounds for
habeas relief asserted in the petition.

2

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loudly, and Mrs. Burnett suspected that Greene overheard what her husband said.3 Mrs. Burnett

headed back to the church, intending to give Greene money for gasoline, but Greene ran out of

the building with the hitchhiker following, and the two drove away. According to Mrs.

Burnett’s testimony, Greene exited the church “like a bat out of hell,” and she did not see him

again until after her husband’s murder.

On July 23, 1991, Mrs. Burnett returned home from church and discovered her husband’s

lifeless body. Bill Burgess, a Johnson County Sheriff’s Deputy, testified during the guilt phase

of Greene’s 1992 capital murder trial and described what he saw when he arrived at the scene:

Burnett’s body was on the floor, leaned against a couch in the living room; his hands and legs

were bound; and a blood-soaked cloth encircled his neck and mouth. Burgess recounted that

Greene had bruises on the right side of his forehead and a stab wound in his back, he had been

shot in the chest and head, his forehead was cut, and the right side of his face had been cut open

from mouth to ear. See Resp’t Ex. A3 at 473.

Johnson County Sheriff Eddie King testified about his crime-scene observations, which

matched Burgess’s. King added that the cut extending from Burnett’s mouth to his ear was deep,

there was “a lot” of blood on the floor, and he could not make out the color of Burnett’s clothing

because it was too bloody. See Resp’t Ex. A3 at 512. Officers at the scene found two expended

.25 caliber shell casings–one behind Burnett’s body and another between a chair and the wall,

and can of hominy in the kitchen sink that was damaged and bloody. Officers also located

Burnett’s billfold, which contained $460, lying under a chair next to his body.

3
The record contains no evidence regarding the content of the Burnetts’ conversation
outside the church, but during the guilt phase of Greene’s 1992 capital murder trial, Mrs. Burnett
testified that Mr. Burnett did not want to help Greene.

3

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Burnett’s son alerted officers at the scene that his father’s truck was missing, and

information about the missing truck and the homicide was entered into a national crime

database. Sheriff King testified that after he interviewed Mrs. Burnett, Greene was identified as

a suspect. King testified that there “were some other names,” but those individuals were

eliminated as suspects. See Resp’t Ex. A3 at 512-513.

On July 25, 1991, two days after Burnett’s murder, police officers located his missing

truck, abandoned under a bridge in Jones, Oklahoma. Evidence at trial revealed that the vehicle

had been hidden from open view and that officers spotted it while searching a debris-covered

area on foot. Oklahoma investigators testified that they found a fresh palm print on the truck,

which was later identified as Greene’s.

On July 26, 1991, Toby Taylor, a Norman, Oklahoma police officer, observed Greene

walking down a street near a mental institution. Taylor suspected that Greene could have

wandered from the institution, and he stopped to talk to him. Greene produced identification,

showing that he was Jack Gordon Greene, and Taylor ended the encounter. However, after

returning to his vehicle and conducting a warrant check, Taylor located Greene and arrested him.

During a pat-down search, Taylor discovered that Greene possessed a loaded .25 caliber pistol, a

pocket knife, and ammunition.

Oklahoma authorities notified Sheriff King that Burnett’s truck had been abandoned and

recovered by law enforcement and that Greene had been arrested and was detained in Norman,

Oklahoma at the Cleveland County Jail. King requested that the sheriff’s office in Oklahoma

City process the truck for fingerprints, and King and Burgess traveled to Oklahoma.

King and Burgess had two meetings with Greene at the Cleveland County Jail. The first

4

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meeting occurred on July 26, 1991. After King read Greene his Miranda rights from a form,

which Greene signed, Greene made statements that King recorded in handwritten notes. Greene

told King that the Burnetts had accused him of arson and that Mrs. Burnett convinced Donna

Greene to leave him. Greene stated: “You know what happened, but I’m not going to tell you.”

Resp’t Ex. A3 at 518-519; Ex. A5 at 800. Greene told King that he would talk about what

happened in Arkansas after he “took care” of North Carolina, referring to charges pending

against him in North Carolina for the murder of his brother, Tommy Greene. King told Greene

that people had expressed to him that they did not think that Greene “would do something like

that.” Greene responded: “Well, they didn’t think I would kill my brother. I’m tired of being

treated like shit. I was going to take out people that fucked with me. It’s like chaining up a dog

and treating it like shit. Sooner or later, he goes crazy.” Resp’t Ex. A3 at 520, Ex. A5 at 800.

Greene added, “But I can’t tell you anything. You know what happened.” Id.

The next day, King and Burgess returned to the Cleveland County Jail after Greene

requested a meeting. King read Greene his Miranda rights from a form, which Greene signed,

and Greene stated: “Let’s see if we can’t get this settled today. You wouldn’t be here if you

didn’t know something. You know I’m your man.” Resp’t Ex. A3 at 522-523, Ex. A5 at 802.

King took custody of the .25 caliber pistol that Greene possessed at the time of his arrest,

and he submitted it to the Arkansas Crime Laboratory for testing. The physical evidence at trial

showed that the pistol taken from Greene imparted markings on two .25 caliber shell casings

found at the crime scene. Additionally, evidence showed that bullet fragments removed from

Burnett’s back and head were fired from the pistol seized from Greene at the time of his arrest.

5

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Initial Trial

Attorneys Gary Vannoy and J.M. Holman represented Greene at his first trial, and the

guilt phase began on October 12, 1992. In addition to testimony by Mrs. Burnett, King,

Burgess, Taylor and others, the State introduced the incriminating statements Greene made to

King and Burgess, with the exception of Greene’s references to North Carolina and his

admission that he killed his brother. The State also presented crime-scene and autopsy

photographs and the deposition testimony of Dr. Fahmy Malak, a state forensic examiner.

Defense counsel presented no evidence during the guilt-phase. On October 14, 1992, the jury

found Greene guilty of capital murder.

During the penalty phase, the State presented evidence that Greene had a prior

conviction for the murder of his brother, Tommy Greene, who had been killed in North Carolina

on July 18, 1991--five days before Burnett was murdered. On October 15, 1992, the jury

returned a sentence of death based on two aggravating circumstances: that Green had previously

committed another felony, involving the use or threat of violence, and that Greene committed

Burnett’s murder in an especially cruel or depraved manner.

Direct Appeal from Capital Murder Conviction and First Death Sentence

Still represented by trial counsel,4 Greene appealed his conviction and sentence. He

asserted nine claims on appeal, two of which concerned guilt-phase errors. First, he argued that

the trial court erred in admitting crime-scene and autopsy photographs. Finding no evidence that

defense counsel had objected to the photographs at trial, the Arkansas Supreme Court declined to

4
At some point during Greene’s first appeal, the Arkansas Supreme Court appointed Didi
Sallings, who served as the director of the Arkansas Public Defenders Commission, to represent
Greene on appeal.

6

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address the issue on appeal. See Greene v. State, 317 Ark. 350, 353, 878 S.W.2d 384, 386

(1994)(citing Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990) and Walker v. State, 301 Ark.

218, 783 S.W.2d 44 (1990)).

Second, Greene argued that the trial court erred in admitting evidence about a tee-shirt

that he possessed when Taylor apprehended him in Oklahoma. The tee-shirt bore the message:

“If you love someone, set them free. If they don’t come back, hunt them down and shoot them.”

In guilt-phase closing arguments, the prosecutor argued that the tee-shirt was evidence of

premeditation and deliberation, and in his penalty-phase closing, he argued that Greene’s

possession of the tee-shirt was evidence of his “murderous mindset.”

Defense counsel had objected at trial that the tee-shirt evidence was not relevant and that

any probative value was substantially outweighed by the danger of unfair prejudice, and counsel

noted the absence of any evidence as to how, when, or where Greene came to possess the shirt.

The trial court questioned whether the tee-shirt evidence was relevant, but it ultimately overruled

Greene’s objection. On appeal, the Arkansas Supreme Court held that the trial court abused its

discretion by admitting the tee-shirt evidence, but after a detailed review of the record, the

appellate court held that “the evidence of guilt of capital murder was overwhelming, and in view

of that evidence, the [evidentiary] error was slight.” Greene, 317 Ark. at 357-358, 878 S.W.2d at

389.

After affirming Greene’s conviction for capital murder, the state supreme court

considered Greene’s penalty-phase claims and found two trial errors. First, the court held that

the trial court erred in refusing to admit mitigation testimony by a jailer, who would have

testified that Greene exhibited good behavior while in custody and that he expressed remorse for

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his actions.

Second, the court held that remand for resentencing was required because during the

pendency of Greene’s direct appeal in Arkansas, his North Carolina murder conviction had been

reversed. A death sentence that is predicated upon proof of the defendant's conviction of an

unrelated, prior violent felony must be vacated if the prior violent felony is, subsequent to the

imposition of the death penalty, reversed. See Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct.

1981 (1988); Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992). The Arkansas Supreme

Court was precluded from performing harmless-error analysis because Greene’s jury found four

mitigating circumstances. See Greene v. State, 317 Ark. 350, 358, 878 S.W.2d 384, 389

(1994)(citing Ark. Code Ann. § 5–4–603(d)). Accordingly, the court vacated Greene’s death

sentence and remanded for re-sentencing–with instructions that the trial court should exclude

evidence of the aforementioned tee-shirt.

First Re-sentencing Trial

Greene’s first re-sentencing trial took place in February 1996. The State introduced

evidence that Greene had committed a prior violent felony, constituting an aggravating

circumstance. Angela Dawn Blankenship, Greene’s niece, testified that on July 18, 1991,

Greene abducted her in North Carolina and took her to the home of his brother, Tommy Greene.

Blankenship told the jury that she witnessed Greene shoot his brother, and the State introduced

Tommy Greene's death certificate, showing that he died from five gunshot wounds on July 18,

1991. On February 29, 1996, the jury imposed a death sentence.

Direct Appeal from Second Death Sentence

Attorney William M. Pearson lodged an appeal on Greene’s behalf, but Greene sought to

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waive appeal.5 The Arkansas Supreme Court remanded the case on two occasions for hearings

to determine Greene's competency to waive appeal and elect execution. See Greene v. State, 326

Ark. 822, 933 S.W.2d 392 (1996); Greene v. State, 327 Ark. 511, 939 S.W.2d 834 (1997).

Greene, however, refused to submit to a psychological examination, and the Arkansas Supreme

Court denied his request to waive appeal. Greene v. State, 328 Ark. 218, 941 S.W.2d 428

(1997). On appeal, the Arkansas Supreme Court reversed and remanded for re-sentencing; this

time, because the State failed to offer proof that the acts committed by Greene in North Carolina

constituted felonious conduct under North Carolina law. Greene v. State, 335 Ark. 1, 977

S.W.2d 192 (1998).

Second and Final Re-sentencing Trial

On July 1, 1999, Greene was sentenced to death a third time based on the aggravating

circumstance that he committed capital murder in an especially cruel or depraved manner.

Greene filed a waiver of appeal, and the trial court ordered an evaluation by the Arkansas State

Hospital to determine whether he was competent to waive appellate review and elect execution.

Doctors evaluated Greene, the trial court held a hearing and found him competent to waive

appeal, and the Arkansas Supreme Court affirmed the trial court’s determination. See State v.

Greene, 338 Ark. 806, 1 S.W.2d 442 (1999).

5
The Arkansas Supreme Court denied Greene’s first motion to waive appeal. The court
found that Greene’s motion was equivocal because he insisted that he was being held in
Arkansas in violation of his due process rights and an Arkansas-North Carolina extradition
agreement. See Greene v. State, 326 Ark. 179, 183, 929 S.W.2d 157, 158 (1996). Greene
moved a second time to dismiss the appeal, and the Arkansas Supreme Court found that his
second motion was unequivocal. See Greene v. State, 326 Ark. 822, 933 S.W.2d 392 (1996).

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Direct Appeal from Third and Final Death Sentence

Because Greene received the death penalty, Arkansas law mandated that the Arkansas

Supreme Court review the record for all errors raised in the trial court that were prejudicial to

Greene, notwithstanding his competent waiver of appeal. See State v. Robbins, 339 Ark. 379,

387, 5 S.W.3d 51, 56 (1999). The Arkansas Supreme Court was also required to consider

whether the evidence presented was sufficient to allow the jury to consider a statutory

aggravating circumstance. Id. Accordingly, even though Greene had waived appeal, the

Arkansas Supreme Court ordered preparation of the record for mandatory review.

On December 2, 1999, Greene rescinded his appeal waiver and requested that the

Arkansas Public Defender Commission be entered as his counsel on appeal. See Greene v. State,

343 Ark. 526, 541, 37 S.W.3d 579, 590 (2001)(Supplemental Opinion). Greene, through

counsel, asserted seven points of error:

1. The trial court erred in refusing to admit mitigation or victim-impact evidence

that Greene received a letter from Edna Burnett expressing her forgiveness of

Greene and her desire that he receive a life sentence, rather then the death penalty.

2. The prosecutor’s closing argument that the death penalty was justified because

Burnett was sixty-nine years old was calculated to inflame the juror’s passions

and required a mistrial.

3. The use of Dr. Malak’s videotaped deposition, also introduced during the guilt

phase of Greene’s initial trial, and the transcribed testimony of Edna Burnett’s

testimony from the 1996 re-sentencing violated the rule against hearsay, and

Greene received untimely notice that such evidence would be offered at re-

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sentencing.

4. A comment by the prosecutor regarding the potential for Greene’s release from

prison was highly prejudicial.

5. The record contained insufficient evidence establishing an aggravating

circumstance.

6. A prospective juror was improperly excused for cause because she stated that she

could not sign a verdict form assessing the death penalty.

The Arkansas Supreme Court found no reversible error, Greene v. State, 343 Ark. 526, 542, 37

S.W.3d 579, 590 (2001), and on October 1, 2001, the Supreme Court of the United States denied

certiorari. Greene v. Arkansas 534 U.S. 858, 122 S. Ct. 135 (2001).

Post-Conviction Review in State Court

On October 25, 2001, the trial court appointed counsel to represent Greene in post-

conviction proceedings under Rule 37 of the Arkansas Rules of Criminal Procedure. In his

petition, Greene asserted seven instances of ineffective assistance of counsel:

1. Guilt-phase counsel failed to object to the introduction of gruesome and

inflammatory photographs of the victim.

2. Guilt-phase counsel failed to frame in constitutional terms Greene’s objection to

introduction of a tee-shirt reading: “If you love someone, set them free. If they

don’t come back, hunt them down and shoot them.”

3. Guilt-phase counsel failed to cross examine forensic pathologist Dr. Fahmy

Malak or present expert testimony to impeachment his testimony.

4. Sentencing counsel failed to seek live testimony and relied on depositions and

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prior testimony.

5. Sentencing counsel failed to object to improper closing statements, which

violated Greene’s constitutional rights.

6. Sentencing counsel failed to make a proper objection to the court’s finding, stated

in the presence of the jury, regarding the possibility that Greene could be released

from prison if he received a life sentence without the possibility of parole.

7. Sentencing counsel failed to seek and present impeachment evidence regarding

Dr. Fahmy Malak.

The trial court denied Greene’s petition for post conviction relief, and the Arkansas Supreme

Court affirmed. See Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004).

Federal Habeas Proceedings under 28 U.S.C. § 2254

On October 20, 2004, Greene filed this habeas action under 28 U.S.C. § 2254, through

counsel,6 asserting nineteen grounds for relief,7 including that he is mentally retarded and

6
On October 12, 2004, the Federal Public Defender for the Eastern District of Arkansas
filed a motion for appointment of counsel, stating: “Mr. Greene has indicated that he desires that
the Federal Public Defender Office be appointed to represent him [in a proceeding under 28
U.S.C. § 2254].” See Greene v. Norris, No. 4:04MC00025 GH, docket entry #2, at 2. The
motion to appoint states: “Due to mental incompetence, Mr. Greene is unable at this time to
complete an Application to Proceed Without Prepayment of Fees . . . . ” Id., ¶ 4 (emphasis
added).

Generally, a “next friend” appears in court on behalf of a prisoner who is unable because
of mental incompetence to seek relief for himself. See Whitmore v. Arkansas, 495 U.S. 149, 162,
110 S. Ct. 1717 (1990). Despite counsel’s representation that Greene was mentally incompetent,
counsel did not seek to file a “next friend” petition on his behalf, and on October 20, 2004,
counsel filed a habeas petition on Greene’s behalf.
7
Greene sets forth nineteen general claims for relief, but the parts and sub-parts of these
general claims contain numerous individual claims, most of which “incorporate by reference”
parts and sub-parts of other claims, resulting in a tangled and complex pleading.

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therefore ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242

(2002). Greene moved against the advice of habeas counsel to withdraw his Atkins claim. The

Court ordered that Greene be transferred to a federal medical facility for a competency

evaluation,8 and the parties conducted discovery on the competency issue. Following an

evidentiary hearing, the Court found that Greene was competent to waive his Atkins claim and

that his waiver was knowing and voluntary, and the Court granted Greene’s motion to withdraw

the Atkins claim.

II. Standard of Review

AEDPA Standard

Title 28 U.S.C. § 2254 permits a prisoner in state custody to petition a federal court for a

writ of habeas corpus “only on the ground that he is in custody in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C. § 2254(a). The extent to which a federal court

may actually consider a petitioner’s federal claims is tightly circumscribed by provisions of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

Under the AEDPA, when a state prisoner’s claim has been adjudicated on the merits in

state court, a federal court “shall not” grant an application for habeas relief unless the state

courts’ adjudication of the claim “(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme

8
Greene was assessed by Dr. Christina A. Pietz at the United States Medical Center for
Prisoners in Springfield, Missouri, where he remained from May 16 to July 30, 2010. Dr. Pietz
issued a forensic report stating her conclusion that Greene is competent to make a rational
decision as to whether he will abandon a claim that he is mentally retarded and therefore
ineligible for execution.

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Court of the United States; or (2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d).

A state court decision is “contrary to” clearly established federal law if the state court

either “arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of

law” or “decides a case differently than [the Supreme Court] has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523 (2000). A

state court decision is an “unreasonable application” of Supreme Court precedent if it “identifies

the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably

applies that principle to the facts of the prisoner’s case.” Id. “A federal court may not issue the

writ simply because it ‘concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly. Rather, that

application must also be unreasonable.’” Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir.

2005)(quoting Williams, 529 U.S. at 411, 120 S.Ct. at 1522).

A habeas petitioner may also seek relief on the ground that the state court made an

unreasonable determination of the facts. However, the state court's findings are subject to a

deferential standard of review and are presumed correct unless the petitioner can rebut those

findings through “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also James v.

Bowersox, 187 F.3d 866, 871 (8th Cir.1999).

Exhaustion and Procedural Default

The exhaustion requirement mandates that an application for a writ of habeas corpus

“shall not be granted unless it appears that the applicant has exhausted the remedies available” in

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state court.9 28 U.S.C. § 2254(b)(1)(A); Krimmel v. Hopkins, 56 F.3d 873, 875-76 (8th Cir.

1995). The exhaustion requirement may be excused only where it appears that “there is an

absence of available State corrective process” or “circumstances exist that render such process

ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i)-(ii).

A habeas petitioner who has defaulted his federal claims in state court meets the technical

requirements for exhaustion because there are no longer any state remedies “available” to him.

However, a federal court may still be prevented from considering a petitioner’s federal habeas

claim if the claim is procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 729-32,

111 S. Ct. 2546, 2554(1991)(“[A] habeas petitioner who has failed to meet the State’s procedural

requirements for presenting his federal claims has deprived the state courts of an opportunity to

address those claims in the first instance.”); see also Krimmel, 56 F.3d at 875. A claim may be

lost due to procedural default at any level of state court review: at trial, on direct appeal, or in

9
To satisfy the exhaustion requirement, a petitioner must “fairly present” his claims to the
state courts. Krimmel v. Hopkins, 56 F.3d 873, 875-76 (8th Cir. 1995). A claim is “fairly
presented” and preserved for federal habeas review when the petitioner has properly raised both
the factual and legal premises of the claim in state court proceedings. Krimmel, 56 F.3d at 876.
The petitioner must afford the highest state court “a fair opportunity to rule on the factual and
theoretical substance of his claim.” Id.

“In order to fairly present a federal claim to the state courts, the petitioner must have
referred to a specific federal constitutional right, a particular constitutional provision, a federal
constitutional case, or a state case raising a pertinent federal constitutional issue in a claim
before the state courts.” McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997) (internal quotation
omitted). It is not necessary to cite “book and verse” on the federal constitution— it is sufficient
that the constitutional substance of a claim is apparent. Wyldes v. Hundley, 69 F.3d 247, 251 (8th
Cir. 1995). However, the substance of a habeas claim, the same factual arguments and legal
theories, must be present in both the state and federal claims. Schneider v. Delo, 85 F.3d 335,
339 (8th Cir. 1996); see, e.g., Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513
(1982)(“The claim that an indictment is invalid is not the substantial equivalent of a claim that it
results in an unconstitutional discrimination.”).

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the course of state post-conviction proceedings. Kilmartin v. Kemna, 253 F.3d 1087, 1088 (8th

Cir. 2001).

The procedural default doctrine is premised, in part, on the principle that a federal court

is precluded from considering the federal legal or federal constitutional dimensions of any claim

that a state court previously resolved on an independent and adequate state ground. Murray v.

Hvass, 269 F.3d 896, 898 (8th Cir. 2001). An independent and adequate state ground may

include an “independent and adequate state procedural ground,” for example, a state court

determination that a claim has been lost due to default. Id.

A petitioner’s claim may also be procedurally defaulted for failure to present the claim to

the state courts entirely. “[W]here a federal habeas petitioner raises a claim which has never

been presented in any state forum, a federal court may properly determine whether the claim has

been procedurally defaulted under state law, such that a remedy in state court is unavailable . . .

.” Harris v. Reed, 489 U.S. 255, 268-270, 109 S.Ct. 1038, 1046 (1989)(O’Connor, J.,

concurring); 28 U.S.C. § 2254(c). In other words, if the petitioner “failed to exhaust state

remedies and the [state] court to which the petitioner would be required to present his claims in

order to meet the exhaustion requirement would now find the claims procedurally barred[,]” for

purposes of federal habeas review, the petitioner’s claim is considered procedurally defaulted.

Coleman, 501 U.S. at 735 n.1, 111 S.Ct. at 2257 n.1. Here, too, the federal court cannot consider

the petitioner’s claim unless the petitioner can “excuse” the procedural default.

A petitioner can “excuse” the procedural default of his claims in state court and obtain

federal habeas review of those claims only if the petitioner can demonstrate either: (1) cause for

the default and actual prejudice as a result of the alleged violation of federal law; or (2) that the

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failure to consider the claim will result in a fundamental miscarriage of justice, such as the

conviction of one who is actually innocent. See Murray v. Hvass, 269 F.3d 896, 898 (8th Cir.

2001).

“Cause” for procedural default exists, for example, when counsel has been

constitutionally ineffective or when an objective, external impediment prevented counsel from

complying with the state’s procedural rule. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct.

2639, 2645 (1986). To demonstrate prejudice, a petitioner must show “not merely that the errors

at trial created a possibility of prejudice, but that they worked to his actual and substantial

disadvantage, infecting the entire trial with error of constitutional dimensions . . . [such that he]

was denied fundamental fairness at trial.” Murray, 477 U.S. at 494, 106 S.Ct. at 2648 (internal

quotation and punctuation omitted).

III. Discussion - Arguments Raised in Traverse

The State asserts the defense of procedural default in response to the majority of

Greene’s claims.10 Greene filed a traverse, identifying a portion claims that he contends were

fairly presented in state court or preserved by a state court decision on the merits. Additionally,

Greene presents numerous arguments aimed at overcoming the procedural default rule as to

10
The State asserts that the sole claims presented in Greene’s petition that he fairly
presented in state court are the following: Claim I(5)(d), claiming ineffective assistance of trial
counsel for failure to impeach Dr. Malak; Claim I(6)(a), claiming ineffective assistance of trial
counsel for failure to object to the prosecutor’s “send-a-message” comment in closing argument;
Claim I(7), claiming that trial counsel failed to “federalize” his objection to the admission of
evidence regarding a tee-shirt; Claim VI(2), claiming deprivation of a fair and impartial jury
based on the improper removal of a potential juror, who expressed qualms about imposing the
death penalty; Claim X(2), claiming deprivation of a fair trial because the trial court refused the
introduction of evidence that Mrs. Burnett had forgiven Greene and desired that he receive life
imprisonment, not the death penalty; and Claim XVII, claiming that Arkansas’s capital murder
statutes violate the United States Constitution.

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claims that he implicitly concedes were never presented in state court. A portion of those

arguments concern all or several of Greene’s substantive claims, and the Court finds it efficient

to address them now. Exhaustion Requirement Excused

According to Greene, any failure to exhaust state remedies in his case should be excused

because Arkansas’s corrective process is inadequate. He contends that Arkansas courts

systematically fail to appoint qualified and effective counsel to represent petitioners in state post-

conviction proceedings, the Arkansas Supreme Court has placed severe restrictions on the types

of claims cognizable and evidence admissible in proceedings under Arkansas Rule of Criminal

Procedure 37, and rules governing the State’s post-conviction remedies are so complex that a

petitioner cannot be expected to “choose the right one.”

Under 28 U.S.C. § 2254(b)(1)(B), the exhaustion is excused when “there is an absence of

available State corrective process[,]” 28 U.S.C. § 2254(b)(1)(B)(i), or “circumstances exist that

render such process ineffective to protect the rights of the applicant.” Id. § 2254(b)(1)(B)(ii). A

state prisoner must give the state courts “one full opportunity to resolve any constitutional issues

by invoking one complete round of the State’s established appellate review process[,]”

O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732 (1999), and “[a]n exception is

made only if there is no opportunity to obtain redress in state court or the corrective process is so

clearly deficient as to render futile any effort to obtain relief.” Duckworth v. Serrano, 454 U.S. 1,

3-4, 102 S.Ct. 18, 19 (1981). For example, the state corrective process may be ineffective in a

particular case when an inordinate and unjustifiable delay renders the state’s process ineffective

to protect the petitioner's rights. See Welch v. Lund 616 F.3d 756, 760 (8th Cir. 2010)(citing

Jackson v. Duckworth, 112 F.3d 878, 881 (7th Cir.1997)).

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The Court finds that Greene’s generalized, critical appraisal of Arkansas’s post-

conviction remedies fails to constitute the type of unusual and exceptional circumstances that

would excuse the exhaustion requirement.11 Furthermore, Greene cannot invoke statutory

provisions that excuse the exhaustion requirement for claims that he has technically exhausted

and procedurally defaulted. For such claims, the proper inquiry is whether the procedural default

is excused by an adequate showing of cause and prejudice.

Available State Remedies

Claim II of the Petition charges that Greene was tried while mentally incompetent, and

Claim VIII charges prosecutorial misconduct. Greene argues that these claims may still be heard

in state court through a petition for writ of error coram nobis. While Arkansas law imposes no

specific time limit for seeking a writ of error coram nobis, due diligence is required in filing a

petition, and in the absence of a valid excuse for delay, the petition will be denied. See Howard

v. State, No. CR 00-803, 2012 Ark. 177, 13, 2012 WL 1436570, *7 (2012). “Due diligence

requires that (1) the defendant be unaware of the fact at the time of trial; (2) the defendant could

not have, in the exercise of due diligence, presented the fact at trial; and (3) upon discovering the

11
Greene makes a more specific argument in connection with Subclaim VIII(4), in which
he claims that prosecutors failed to disclose material exculpatory evidence in violation of Brady
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). Greene argues that this claim was not a record-
based claim that he was able to raise on direct appeal, and at the time of his post-conviction
proceedings, the notion that an Arkansas state post-conviction petition could be used to raise a
prosecutorial misconduct claim was merely conjectural. See Howard v. State, 367 Ark. 18, 27,
238 S.W.3d 24, 32 (2006)(holding that a prosecutorial misconduct claim is “an issue that should
[be] raised on direct appeal, and is not a claim that may be raised for the first time in a Rule 37
petition”). However, it is undisputed that Greene’s Brady claim is technically exhausted and
procedurally defaulted, and the question is whether the default can be excused by an adequate
showing of cause and prejudice. See Strickler v. Greene, 527 U.S. 263, 282, 119 S.Ct. 1936,
1949 (1999).

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fact, the defendant did not delay bringing the petition.” Id. (citation omitted).

Greene has not been diligent in seeking coram nobis relief, and it is most unlikely that the

Arkansas Supreme Court would grant him permission to pursue such relief now. Furthermore,

the stay and abeyance procedure, which allows a petitioner to return to state court and present

unexhausted claims, is only available when the federal habeas court determines there was good

cause for the petitioner’s failure to exhaust. See Rhines v. Weber, 544 U.S. 269, 277, 125 S. Ct.

1528, 1535 (2005). Here, the Court finds that Greene is unable to show good cause for his

failure to exhaust and that the stay and abeyance procedure is unavailable.

Greene further argues that he has available remedies in state court by way of a motion to

recall the mandate. “A motion to recall the mandate is not a part of Arkansas’s standard review

process; it is ‘extraordinary rather than routine.’” Dansby v. Hobbs, 766 F.3d 809, 829 (8th Cir.

2014)(quoting Wooten v. Norris, 578 F.3d 767, 784-86 (8th Cir. 2009)). A motion to recall the

mandate, if granted, “allows further review of otherwise final cases where a petitioner shows that

his initial post-conviction proceedings broke down.” Wooten, 578 F.3d at 783. For example,

the Arkansas Supreme Court has recalled the mandate based in cases where post-conviction

counsel was impaired by alcohol, see Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997), and

where the post-conviction petition was not verified as required under state law. See Wooten v.

State, 2010 Ark. 467, 370 S.W.3d 475 (2010).

Greene asserts that “all of the errors that should have been noticed by the Arkansas

Supreme Court through the mandatory review practices . . . may still be heard in state court

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through a motion to recall the mandate.”12 ECF No. 198, at 14. Greene cites the Arkansas

Supreme Court’s decisions to recall the mandate in Williams v. State, No. CR93-988, 2011 Ark.

534, 2011 WL 6275536 (Ark. Dec. 15, 2011), as authority that the aforementioned claims may

still be heard in state court. “The Arkansas Supreme Court, however, recently overruled

Williams ‘in its entirety,’ concluding that it was premised on multiple legal errors.” Dansby v.

Hobbs, 766 F.3d 809, 826 (8th Cir. 2014)(citing Nooner v. State, 2014 Ark. 296, 438 S.W.3d 233,

240–42, 2014 WL 2932282 at **6–8 (2014)). Furthermore, Greene alleges no errors on the part

of the Arkansas Supreme Court in his case akin those in Williams,13 and the Arkansas Supreme

12
Specifically, Greene contends that the Arkansas Supreme Court should have intuited the
following claims: Claim III, asserting admission of illegally-obtained inculpatory statements;
Claim IV, asserting deprivation of competent mental health professionals; Claim VIII, asserting
prosecutorial misconduct; Claim X, asserting erroneous exclusion of mitigating evidence; Claim
XIII, asserting trial counsel’s conflict of interest; and a portion of Claim II, asserting that the trial
court failed to hold a hearing regarding Greene’s competence.
13
In Williams v. State, No. CR93-988, 2011 Ark. 534, 2011 WL 6275536 (Ark. Dec. 15,
2011), the sentencing verdict form erroneously indicated that the defense presented no evidence
of mitigation, even though it was clear from the record that the trial court admitted unrebutted
mitigation evidence. Because the verdict form indicated that no evidence of mitigation had been
offered, “the jury eliminated from its consideration all evidence presented of mitigating
circumstances and sentenced Williams to death solely based on the aggravating circumstances,
which is reversible error.” Williams, 2011 WL 6275536, at *6. And, in carrying out its
statutory duty to review the death sentence, the Arkansas Supreme Court failed to detect the
reversible error.

Pursuant to Ark. Code Ann. § 5-4-603(d), when a jury finds no mitigating circumstance,
the Arkansas Supreme Court conducts a harmless error review to determine whether a remaining
aggravating circumstance exists beyond a reasonable doubt and justifies the death sentence
beyond a reasonable doubt. On direct appeal, the state supreme court upheld Williams’s death
sentence based on the erroneous finding that the jury found one aggravating circumstance and
that the jury had considered mitigating evidence but found “no mitigating circumstances
probably existed at the time of the murder.” Id. In granting Williams’s motion to recall the
mandate, the Arkansas Supreme Court acknowledged that it had erred when it found that the
sentencing jury had considered mitigating evidence. The Court concluded that its failure to
detect the fundamental, reversible sentencing error in Williams, which should have been detected

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Court’s inability to divine the claims that Greene would eventually assert in a federal habeas

petition does not amount to a breakdown of the state appellate process.

Greene next contends that his ineffective assistance of counsel claims may be heard in

state court through a motion to recall the mandate because his post-conviction counsel was

ineffective. The Arkansas Supreme Court has recalled the mandate when the representation

provided by post-conviction counsel was so egregious that the defendant was effectively left

without counsel during post-conviction review, see Lee v. State, 367 Ark. 84, 238 S.W.3d 52

(2006)(recalling the mandate where defendant was essentially left without competent counsel

because his attorney was intoxicated); see also Wooten v. Norris, 578 F.3d 767, 784 (8th Cir.

2009)(noting that motions to recall the mandate are not proper vehicles for exhausting state

remedies in Arkansas or creating a state record that might support federal habeas claims).

Greene fails to allege facts showing that his post-conviction representation was so egregiously

deficient that he was effectively left without counsel.

Finally, Greene argues that the State shoulders the burden and has failed to show that no

state court remedies remain available to him. See ECF No. 198, at 13. Greene further contends

that the State has affirmatively waived the “alternative defense” of nonexhaustion. The Court

finds no merit to these arguments. First, the State has specifically asserted that Greene failed to

present the majority of his claims in state court and has not waived the exhaustion requirement.

See 28 U.S.C. § 2254(a)(3)(“A State shall not be deemed to have waived the exhaustion

requirement . . . unless the State . . . expressly waives the requirement).

as part of its mandatory review, amounted to a breakdown of the appellate process.

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Second, Greene shoulders the burden to show that all available state remedies have been

exhausted. See Darr v. Burford, 339 U.S. 200, 218–19, 70 S.Ct. 587 (1950), overruled in part

on other grounds, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822 (1963).

Third, when a habeas petitioner has not fairly presented the federal constitutional

dimensions of his federal habeas corpus claim to the state courts, the federal habeas court must

determine if the exhaustion requirement has nonetheless been met because there are no currently

available, non-futile state remedies by which he could present his claims in state court. See

Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir. 1988)(setting forth four-step analysis that a

federal court must conduct to determine whether a habeas petition may be considered when a

claim has not been presented in state court); see also Peters v. Norris, No. 2476, 2001 WL

370469 (April 16, 2001)(reversing and remanding for a determination of whether any non-futile

remedies remained for habeas petitioner as required under Smittie).

Here, the State asserts and the Court agrees that Greene has no currently available, non-

futile state remedies. Greene’s conviction for capital murder concluded on October 1, 2001, and

Rule 37 of the Arkansas Rules of Criminal Procedure provides no remedy for claims that might

have been raised at trial or argued on appeal, unless they are so fundamental as to render the

judgment void and open to collateral attack. See Johnson v. State, 356 Ark. 534, 558, 157

S.W.3d 151, 169 (2004). More important, Arkansas rules prohibit a rehearing or successive

petition in state collateral proceedings unless the first petition was specifically dismissed without

prejudice, see Ark. R. Crim. P. 37.2(b), which is not the case here. Any further post-conviction

proceedings in state court would require a recall of the mandate affirming the denial of Greene’s

motion for post-conviction relief. The Arkansas Supreme Court has recalled the mandate and

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excused the successive-petition bar only in rare cases where exceptional and unusual

circumstances led to a complete breakdown of the post-conviction process, and Greene fails to

present a plausible argument that such relief is available to him.14

“Hypothesized” Bars Inadequate

Greene asserts that any state procedural bar he may face is inadequate because

Arkansas’s post-conviction procedural rules are so demanding that they foreclose a reasonable

opportunity to have federal claims heard in state court. Greene repeats that Arkansas courts

systematically fail to appoint qualified and effective counsel to represent petitioners and that

time limitations, procedural rules, and other restrictions render the post-conviction remedy

inadequate.

In deciding whether state rules purporting to bar federal review meet due process

requirements, it must be determined whether the bar rests on adequate and independent15 state

grounds. See Ford v. Georgia, 498 U.S. 411, 422-24, 111 S.Ct. 850, 856-58 (1991). The

independent-and-adequate-state-ground doctrine is founded on comity and federalism concerns,

and it prevents habeas petitioners from avoiding the exhaustion requirement by defaulting a

federal claim in state court. See Coleman v. Thompson, 501 U.S. 722, 730-31, 111 S.Ct. 2546

14
Because the Court finds that there are no currently available, non-futile state remedies
by which Greene could present his claims, Greene has technically met the exhaustion
requirement, and his additional arguments--that the Court must consider his unexhausted claims
because the State has waived the exhaustion requirement and that his petition should be stayed
and held in abeyance while he pursues state remedies–are moot.
15
Because Ark. Rule of Criminal Procedure 37 is in no way linked to or dependent on any
federal law, it qualifies as an independent state ground. See Easter v. Endell, 37 F.3d 1343, 1345
(8th Cir. 1994).

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(1991). However, “only a firmly established and regularly followed state practice” is a

procedural bar to federal habeas review. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850

(1991). “[S]tate procedural rules not strictly or regularly followed may not bar our review.”

Dixon v. Dormire, 263 F.3d 774, 781 (8th Cir. 2001)(quoting Ford, 498 U.S. at 424, 111 S. Ct.

850).

Here, there is no question that when Greene filed his petition for post-conviction relief in

state court, Arkansas’s rule barring successive Rule 37 petitions was firmly established and

regularly followed. See Kindall v. State, No. CR 86-222, 2001 WL 669772, *1 (Ark. June 14,

2001); Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981). A defendant’s failure to comply

with a firmly-established and regularly-followed state rule has been deemed an inadequate state

ground when the State had no legitimate interest in the rule’s enforcement, see Osborne v. Ohio,

495 U.S. 103, 124, 110 S.Ct. 1691 (1990), or in rare circumstances where, “exorbitant

application of a generally sound rule renders the state ground inadequate to stop consideration of

a federal question.” Lee v. Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 885 (2002). The rule

against successive petitions serves the State’s legitimate interest in prompt review of post-

conviction claims, the conservation and efficient use of judicial resources, and the finality of

criminal convictions, and nothing in the record indicates that application of the rule in Greene’s

case would be exorbitant or unjust.

Miscarriage of Justice through Actual Innocence

Greene invokes the fundamental miscarriage of justice exception--that in light of new

evidence, a constitutional violation has resulted in the conviction of someone who is “actually

innocent.” A claim of “actual innocence” in this context is procedural, not a substantive, and it

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serves as “‘a gateway through which a habeas petitioner must pass to have his otherwise barred

constitutional claim considered on the merits.’” Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct.

851, 861 (1995)(quoting Herrera v. Collins, 506 U.S. 309, 404, 113 S. Ct. 853, 862 (1993)). To

benefit from the actual-innocence gateway, Greene must produce “new reliable evidence ... not

presented at trial,” Schlup, 513 U.S. at 324, 115 S.Ct. at 130, showing “that it is more likely than

not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup,

513 U.S. at 327, 115 S.Ct. 851. Under the Supreme Court’s demanding standard, “[t]he gateway

should open only when a petition presents ‘evidence of innocence so strong that a court cannot

have confidence in the outcome of the trial unless the court is also satisfied that the trial was free

of nonharmless constitutional error.’” McQuiggin v. Perkins, — U.S. —, 133 S.Ct. 1924, 1936

(2013)(quoting Schlup, 513 U.S. at 316, 115 S.Ct. at 861)).

Greene does not claim that he did not murder Jethro Burnett. Instead, he claims actual

innocence with respect to his conviction for capital murder and his death sentence16 because (1)

he is not guilty by reason of insanity; (2) he lacked the requisite mens rea for capital murder; (3)

he is actually innocent of the sole aggravating factor supporting his death sentence–that he

committed capital murder in an especially cruel or depraved manner; and (4) he is “actually

innocent of the death penalty because his is severely mentally disordered.” ECF No. 198, at 31.

In support of his invocation of the miscarriage of justice exception, Green proffers a 2010

16
In a capital case, the miscarriage of justice exception is not limited to “actual
innocence” of the capital offense itself; a petitioner may also demonstrate that no aggravating
circumstance existed or that some other condition of eligibility for the death penalty was not met.
Lingar v. Bowersox, 176 F.3d 453, 462 (8th Cir.1999)(citing Sawyer v. Whitley, 505 U.S. 333,
347, 112 S.Ct. 2514 (1992)).

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declaration by George Woods, Jr., M.D., a neuropsychiatrist, and a 2011 report Dale G. Watson,

Ph.D., a neuropsychologist. Doctors Woods and Watson testified in this habeas proceeding

regarding their opinions that Greene suffers from both a mental defect and a mental disease that

rendered him incompetent to waive his Atkins claim. The documents prepared by Drs. Woods

and Watson concern Greene’s competency to waive his Atkins claim–they do not qualify as new,

reliable evidence of innocence. Neither doctor evaluated Greene close to the time of Burnett’s

murder,17 and neither provides an opinion or any insight as to Greene’s mental status at the time

of the crime. Furthermore, the Court finds no federal or state law that categorically exempts

“mentally disordered” individuals from the death penalty.18 Viewing the materials prepared by

Drs. Woods and Watson against the backdrop of the evidence supporting Greene’s conviction

and death sentence, the Court finds that Greene is unable to persuade the Court that, in light of

new and reliable evidence, no reasonable juror would have voted to find him guilty of capital

murder or found the aggravating factor that makes him eligible for the death penalty.

Mental Illness as Cause for Default

Greene asserts that none of his constitutional claims are barred from habeas review

because he was suffering from severe mental illness and profound cognitive limitations during

the relevant time periods. He contends that his mental state interfered with his ability to

appreciate his position and make rational decisions, and it impeded his ability to comply with

17
Dr. Watson conducted an interview and brief evaluation of Greene in May 2009, and
Dr. Woods interviewed Greene in April 2011.
18
A claim of actual innocence based on newly discovered evidence is not grounds for
federal habeas relief absent some underlying constitutional violation occurring in the state
criminal proceeding. See Herrera v. Collins, 506 U.S. 390, 391, 113 S.Ct. 853, 855 (1993).

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state procedural requirements. Greene further asserts that his mental condition prevented him

from maintaining an agency relationship with his trial, re-sentencing, and post-conviction

attorneys.

In order for mental illness to constitute cause and prejudice to excuse procedural default,

there must be a conclusive showing that mental illness interfered with Greene’s ability to

appreciate his position and make rational decisions regarding his case at the time during which

he could have pursued post-conviction relief. See Holt v. Bowersox, 191 F.3d 970, 974 (8th Cir.

1999). The existing record convinces the Court that Greene is unable to make the required

showing and that an evidentiary hearing on the matter is unwarranted. The record shows that

the state trial court found Greene competent to stand trial prior to his initial trial and his first re-

sentencing trial. See Greene v. State, 327 Ark. 511, 512, 939 S.W.2d 834 (1997). Subsequently,

Greene attempted to waive appeal from his final death sentence, and the trial court ordered a

competency evaluation. In a forensic report dated August 12, 1999, doctors from the Arkansas

State Hospital informed the trial court that Greene was “capable of weighing his legal options in

a rational manner” and was competent to waive his rights to post-conviction remedies and

appointment of counsel. Resp’t Ex. F15, at 112-113. Additionally, the report recounts detailed

information that Greene provided evaluators regarding his case,19 demonstrating that he had a

19
The report reads in part as follows:

Mr. Greene demonstrated a factual and rational understanding of his current
situation. He reported that since 1993 he has been sentenced to death for Capital
Murder in three separate court trials[,] and that “it’s time to go. It’s time for closure:
for me, for the Burnett (victim’s) family and for my family.” He was asked about his
understanding of his choice to receive the death penalty and to waive his rights to
appeal the death sentence. He stated that he is religious and believes that he will find
“peace” when he is executed.

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firm grasp of his legal position and possessed the ability to make rational decisions.

The trial court held an evidentiary hearing and found Green competent to waive appeal,

and the Arkansas Supreme Court affirmed the trial court’s ruling. See State v. Greene, 338 Ark.

806, 1 S.W.2d 442 (1999). However, in a communication with his trial attorney on December 2,

1999, Greene rescinded his appeal waiver and requested that the Arkansas Public Defender

Commission be entered as his counsel on appeal. See Greene v. State, 343 Ark. 526, 541, 37

S.W.3d 579, 590 (2001)(Supplemental Opinion).

Following direct review of Greene’s final death sentence, the trial court appointed Jeff

Rosenzweig to represent Greene in post-conviction proceedings. On January 18, 2002 Greene

affirmatively sought post-conviction relief through counsel, and he personally signed and

verified his Rule 37 petition. Nothing in the record indicates that Greene’s mental state had

deteriorated to such an extent that he was unable to consult with Rosenzweig, make rational

decisions regarding his case, or comply with state procedural rules. In sum, the Court finds that

When he was asked what his legal situation was, he replied: “I know there’s a
mandatory appeal of the death penalty[,] and I have to talk to you guys to go through
this process.” He stated that he is now seeking to be executed and does not want to
appeal his death sentence further. He said that he has appealed his death sentence
before and that the appeals process was meant to bring up “issues to get your case
overturned, or to get resentenced.” He also said, “They (my lawyers) have tried to
keep me from being executed, with three ‘legal-technical’ grounds for appeal.” He
described the grounds for appeals as having been: 1) the presence/absence of a prior,
violent felony, 2) presence/absence of interstate flight and 3) whether the crime was
committed in a cruel and depraved manner.

He reported that he is acting as “co-counsel” with Bill Pearson, a public defender
from Clarksville. He said that his next court hearing is on August 19 and . . at that
hearing he did not want to enter or continue any appeal of his death sentence.

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Greene’s mental status did not hinder his ability to appreciate his position or make rational

decisions regarding his case at any time during which he could have pursued post-conviction

relief.

IV. Discussion - Claims for Relief

Claim I - Ineffective Assistance of Trial Counsel, Guilt Phase

Greene brings numerous claims and subclaims charging that errors and omissions by

defense counsel during the guilt phase of his initial trial deprived him of the right to effective

assistance of counsel. With the exception of three claims noted below, the State asserts

procedural default. Greene asserts that pursuant to Martinez v. Ryan, 556 U.S. —, 132 S.Ct.

1309 (2012), his ineffective-assistance-of-trial-counsel claims are not barred because

postconviction counsel failed to raise them in state court.

In Martinez, the Supreme Court fashioned a “narrow” equitable exception to the rule

announced in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546 (1991)–that inadequate

assistance of counsel at initial-review collateral proceedings does not qualify as cause to excuse

a procedural default.20 The Martinez exception applies only if Greene can establish that his

20
In Martinez v. Ryan, 556 U.S. —, 132 S.Ct. 1309 (2012), Supreme Court held that when
a state requires a prisoner to raise an ineffective-assistance-of-counsel claim in a collateral
proceeding, “a procedural default will not bar a federal habeas court from hearing a substantial
claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.” Martinez, 132 S. Ct. at 1320 (emphasis
added). The Martinez Court explicitly declined to base its decision on constitutional grounds,
such as a right to counsel in collateral proceedings, and described its decision as an “equitable
ruling.” Martinez, — U.S. at —, 132 S. Ct. at 1319.

In Trevino v. Thaler, — U.S. —, 133 S. Ct. 1911 (2013), the question presented was
whether the equitable rule announced in Martinez applies when a state does not require a
defendant to raise his ineffective-assistance claim in a collateral proceeding but nevertheless
imposes a procedural framework that makes it “highly unlikely in a typical case that a defendant

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underlying ineffective-assistance-of-trial-counsel claims are substantial and have merit. If such a

claim “does not have any merit or ... is wholly without factual support,” the procedural default

rule precludes federal habeas review. See Martinez, 132 S. Ct. at 1319. For reasons that follow,

the Court finds that none of Greene’s underlying, ineffective-assistance-of-trial-counsel claims

have merit. Thus the Martinez exception does not apply, and the claims are procedurally barred.

To prevail on a claim of ineffective assistance of counsel, Greene must demonstrate that

counsel’s performance was deficient, that is, that counsel failed to exercise the customary skills

and diligence of a reasonable attorney in similar situations, and that the deficiency prejudiced the

defense. See Strickland v. Washington, 466 U.S. 668, 688-694, 104 S. Ct. 2052, 2064-2068

(1984). Deficient performance means representation that falls “outside the wide range of

professionally competent assistance.” Id. at 690, 104 S. Ct. 2052. “Judicial scrutiny of

counsel’s performance must be highly deferential . . . [and the court] must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689. To establish prejudice, Greene must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. Id.

will have a meaningful opportunity to raise an ineffective-assistance-of-trial-counsel claim on
direct appeal.” Trevino, — U.S. at —, 133 S. Ct. at 1921 (2013). The Supreme Court answered
the foregoing question in the affirmative, and the Eighth Circuit subsequently held that Martinez
and Trevino apply to cases arising in Arkansas. See Sasser v. Hobbs, 735 F.3d 833, 853 (8th Cir.
2013)(finding the Arkansas’s post-conviction appeal process does not “as a systematic matter,”
afford indigent defendants a “meaningful review of a claim of ineffective assistance of counsel”
on direct appeal.”).

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Under Claim I(2),21 Greene alleges that trial counsel failed to fully investigate and

present “readily available mental state defenses and abundant evidence in support thereof.” Pet.

at 9. Greene claims that an adequate investigation would have uncovered evidence that at the

time of the crime, he was unable to conform his conduct to the requirements of the law or

appreciate the criminality of his conduct and that he lacked the capacity to premeditate his

actions or form the intent to kill because of mental illness, organic brain damage, past trauma,

and substance abuse. Greene charges that counsel failed to adequately interview him, his family,

and acquaintances; obtain all records regarding his psycho-social and family history; and arrange

for qualified mental health professionals to conduct all appropriate tests.

Defense counsel has a “duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary. In any ineffectiveness case, 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.” Strickland, 466

U.S. at 691, 104 S.Ct. 2052. In making this assessment, the Court looks to the facts of the

particular case, “viewed as of the time of counsel’s conduct.” Id. at 690, 104 S.Ct. 2052.

The facts of this case are as follows. On August 6, 1992, Greene’s trial counsel filed

notice that he intended to raise the defense of mental disease or defect, and he moved for an

order committing Greene to a facility for a psychiatric evaluation. Resp’t Ex. A1, at 20, 22. The

trial court ordered that Greene be transported to the Arkansas State Hospital for a mental

examination to determine competence to stand trial and whether at the time of the alleged

offense, or at any time thereafter, he suffered from a mental disease or defect.

21
The petition does not include a substantive claim identified as Claim I(1).

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A forensic report filed with the trial court on September 24, 1992 reported that Greene

was competent to stand trial and that he was able to appreciate the criminality of his conduct and

conform his conduct to the requirements of the law at the time of the alleged crime. These

findings were based on a cell-side interview by a forensic team, which included a psychiatrist, a

psychologist, and a social worker, and a review of historical data from outside sources.

According to the report, Greene was verbal and cooperative throughout the interview, and

information obtained from him and outside sources indicated that he had never suffered from a

psychotic illness and that his problems were mainly caused by alcohol and drug abuse. The

forensic report listed Greene’s diagnosis as alcohol and cocaine abuse and a non-specified

personality disorder.

Regarding Greene’s background, the report referred to records showing that Greene had

received psychiatric treatment at Broughton Hospital in North Carolina on May 30, 1985.

Greene voluntarily presented at the North Carolina facility and reported that he had been abusing

alcohol and marijuana, and he feared that he would hurt his brother. According to the report,

Greene calmed down during his hospitalization, showed no signs of psychosis, and he was

discharged with a diagnosis of substance abuse and personality disorder.

On September 24, 1992, defense counsel moved for a supplemental psychiatric

evaluation, including commitment to the Arkansas State Hospital for examination and

observation. Counsel argued that the first evaluation consisted of a cursory cell-side interview

and that evaluators sought but apparently never obtained background information from Greene’s

family members. See Resp’t Ex. A-1 at 52, 190-192. The trial court denied a supplemental

evaluation, stating that it would not “second-guess professionals” unless “there is something that

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they need or don’t feel that they have enough time or that they were rushed . . . . ” Id. at 193.

Immediately before Green’s initial trial in October 1992, defense counsel announced that

he would not offer evidence of mental impairment during the guilt phase of the trial but that

mitigating evidence of Greene’s mental state would be presented during the penalty phase.

During the penalty phase, John Frank Warren, a psychologist from North Carolina testified for

the defense. He testified that he had examined Greene over the course of six, in-person meetings

beginning in February 1992, which consumed sixteen hours.22 Dr. Warren also reviewed

Greene’s highschool records and records documenting his 1985 admission to Broughton

Hospital, he interviewed Greene’s relatives, and he conducted a personality inventory test

designed to identify mental illness.

Dr. Warren testified that his examination revealed that Greene suffered from personality

and substance abuse disorders, and he also provided the following details about Greene’s past:

• Greene’s father, an alcoholic, committed suicide when Greene was an infant, and
Greene’s maternal grandfather took the family into his home. Greene’s grandfather
abused Greene and enrolled him in a training school, where a teacher sexually abused
him.

• Greene’s mother died in 1983. Greene was deeply troubled by his mother’s passing, and
he believed that his grandfather and oldest brother, Tommy, were responsible for her
death.

• In 1985, Greene was experiencing tremendous grief over his mother’s death, and he
voluntarily presented himself to the emergency room at Broughton Hospital and reported

22
Dr. Warren’s testimony from the 1992 penalty phase is contained in Resp’t Ex. A4, at
646-697, and defense counsel read the same testimony, in its entirety, into the record during
Greene’s first re-sentencing in 1996. See Resp’t Ex. F9, at 1271-1328. Defense counsel
attempted to introduce a redacted version of Dr. Warren’s 1992 testimony at Greene’s final re-
sentencing trial in 1999. However, the trial court ruled that the State could introduce portions of
Dr. Warren’s testimony that defense counsel sought to exclude, and neither side presented Dr.
Warren’s testimony to the jury.

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that he feared he would hurt his brother, Tommy. Greene was admitted to a state mental
hospital, where he was diagnosed with substance abuse and personality disorders.

• In the spring of 1991, immediately before the murders of Tommy Greene and Jethro
Burnett, Greene’s marriage failed and his estranged wife took his youngest daughter from
him. Greene quickly sought out and married a woman, knowing that she had terminal
cancer. Subsequently, Greene’s terminally-ill wife sent him away, and Greene dealt with
the rejection by consuming marijuana, alcohol and, for the first time in his life, crack
cocaine.

Dr. Warren testified that in addition to engaging in “drinking and drugging” prior to

Burnett’s murder, Greene was not eating and sleeping very little, and he was “really a mess.”

Dr. Warren explained that “the combination of these things, combined with the historical

trauma” led to a crime spree that occurred between July 18 and July 23, 1991. However, Dr.

Warren opined that Greene’s impaired mental state did not rise to the level of insanity, that he

knew what he was doing and the wrongfulness of his actions at the time of the crime, and that he

understood the legal proceedings against him and had the ability to assist effectively in his

defense. According to Dr. Warren’s testimony, Greene’s substance abuse and personality

disorder were mitigating circumstances that impaired his thinking, emotions, and ability to use

good judgment at the time of the crime.

On cross examination, Dr. Warren testified that when Greene was a teenager, he

sustained a head injury in an automobile accident. He stated that as far as he knew, Greene’s

head injury healed, and he was unaware of permanent brain damage. However, Dr. Warren

testified: “One of my earlier recommendations was neurological evaluation because he does

show frontal lobe impairment.” Resp’t Ex. A4, at 672(emphasis added). According to Greene,

this testimony supports a finding that Dr. Warren informed counsel that Greene “likely had brain

damage and . . . needed an evaluation specifically for brain damage.” ECF No. 200, ¶ 1.

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Greene alleges that if counsel had conducted an adequate investigation, they would have

“readily discerned the necessity for the administration of a full and complete battery of

neuropsychological testing by an experienced neuropsychologist, with special emphasis on

testing designed to reveal deficits in the functioning of the frontal lobes of the brain” among

other things. Pet. at 11. Greene points to the reports by Drs. Watson and Woods, which concern

Greene’s competence to waive his Atkins claim, in support of the proposition that he suffers from

frontal-lobe deficits.

In determining the reasonableness of trial counsel’s decisions regarding the extent of

neuropsychological examination, the Court must consider the challenged conduct from counsel’s

perspective at the time. The Court finds that trial counsel fulfilled the obligation to make a

reasonable investigation into potential guilt-phase defenses regarding mental disease or defect.

In addition to requesting a court-ordered mental evaluation and seeking but not obtaining a

supplemental evaluation, counsel obtained Dr. Warren’s expert opinion, which was identical to

the diagnoses rendered by the State’s mental health professionals, that Greene suffered from

substance abuse and personality disorders. And despite Dr. Warren’s penalty-phase testimony

regarding his “earlier” recommendation regarding neurological testing, he did not qualify his

opinions that Greene was not insane at the time of the offense and that he knew what he was

doing and the wrongfulness of his actions.

Given these circumstances, counsel’s decision not to pursue further testing or mount a

defense based on diminished capacity or mental disease or defect was objectively reasonable.

Furthermore, as noted in the by the Arkansas Supreme Court, the evidence of premeditated and

deliberated murder was overwhelming, see Greene v. State, 317 Ark. 350, 357-358, 878 S.W.2d

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384, 389 (1994), and Greene is unable to show that the outcome of the guilt phase would have

been different if counsel had pursued a defense based on diminished capacity or lack of a

culpable mental state.

Under Claim I(3), Greene charges that counsel failed to move for an evaluation of and a

hearing regarding his competency to stand trial. Because defense counsel gave notice that

Greene intended to rely upon the defense of mental disease or defect, the trial court was required

under Arkansas Code § 5-2-305 to suspend the proceedings and order that Greene undergo a

forensic mental evaluation. Arkansas law also required that the report of the examination

include an opinion as to whether Greene had the capacity to understand the proceedings against

him and assist effectively in his own defense.

The forensic psychologist’s report filed on September 24, 1992 stated that Greene was

then able to understand rationally and factually the criminal proceedings against him and to

assist effectively in his own defense. The report states that Greene was “well aware” of the

charges he was facing and that he has “a very good understanding of the legal system.” Resp’t

Ex. A1, at 48-49. The report reads:

[Greene] appeared well aware of the seriousness of the present charges against him,
and the fact that he could receive the death penalty if found guilty. He clearly
displayed that he has the ability to cooperate with his attorney if he chooses to do so.
While formal intellectual testing was not done, he clearly appeared to be of at least
average intelligence.

Id., at 49. Like the State’s psychologist, Dr. Warren independently determined that Greene was

competent to stand trial, see Resp’t Ex. A4, at 685, and he testified at trial that he agreed “one

hundred percent” that Greene was competent to stand trial. See Resp’t Ex. A4, at 697.

Additional factors indicated that Greene was competent to understand the proceedings

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against him and assist in his own defense. Defense counsel moved to dismiss the Arkansas

criminal proceedings on the ground that Greene had been extradited to Arkansas from North

Carolina without a hearing and without appointment of counsel. During a hearing on the motion,

the trial court received evidence showing that before Greene was extradited to Arkansas, he filed

an exceptionally coherent pro se motion requesting an extradition hearing and appointment of

counsel. In view of the opinions of two psychologists, that Greene was competent to stand trial,

and the evident ability of Greene to understand the proceedings against him, communicate with

counsel, and assist in his defense, the failure to request a competency hearing was reasonable

and did not constitute ineffective assistance.

Under Claim I(4)(a), Greene asserts that trial counsel failed to conduct an adequate voir

dire examination aimed at identifying and removing jurors who were unable to be fair and

impartial. Greene claims that his guilt-phase jury had been exposed to an inordinate amount of

highly prejudicial pretrial publicity surrounding his case, which had saturated the community

and tainted the jurors to such an extent that they could decide the case based on the evidence

presented at trial.

The record lends no support to Greene’s claim. Voir dire examination began on October

12, 1992, and the trial judge addressed the venire panel first. The judge noted that the case had

been reported in the media, and he inquired whether the panel members had read or heard

anything about the case that would cause any one of them to form an opinion. The judge

emphasized: “You know, it is important that our system of justice works within the context of a

courtroom and not what you hear outside the courtroom or what you may read in the papers.”

Resp’t Ex. A-2, at 235.

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After questioning the jury panel as a group, the trial court questioned two potential jurors

at a time, outside the presence of other panel members. During this phase, either the trial judge

or counsel asked each potential juror whether he or she had read or heard anything about the case

and, if so, whether he or she had formed an opinion about the case. In response to these queries,

each of the twelve jurors who served at trial denied having formed an opinion about Greene’s

guilt.23 Six of the jurors commented that they did not recall what they had read or heard about

the crime, and all stated that they could decide the case based solely on the facts presented at

trial.

The record clearly shows that Greene’s claim is without merit. Even if Greene could

show deficient performance with respect to voir dire, which he cannot, he is unable to show

prejudice. The constitutional standard of fairness requires that a defendant have a panel of

impartial jurors, but jurors need not be totally ignorant of the facts and issues involved. See

Murphy v. Florida 421 U.S. 794, 799-800, 95 S. Ct. 2031, 2036 (1975). Prejudice from pretrial

publicity can be presumptive or actual. Generally, a petitioner must show actual prejudice to

prove he was denied a fair trial, and a presumption of prejudice attends on the extreme case,

where the “trial atmosphere [is] utterly corrupted by press coverage.” Murphy, 421 at 798, 95 S.

Ct. at 2035.24 Here, Greene fails to allege facts demonstrating actual or presumptive prejudice.

23
One potential juror admitted to disqualifying prejudice and was eliminated for cause
after she admitted that she had read everything available about the crime and that she had formed
an opinion which she feared could not be set aside.
24
Cases in which the Supreme Court has presumed juror prejudice include Rideau v.
Louisiana, 373 U.S. 723, 83 S.Ct. 1417 (1963), in which a local television station broadcast the
defendant’s filmed confession repeatedly before trial, and Sheppard v. Maxwell, 384 U.S. 333,
86 S.Ct. 1507 (1966), where “months [of] virulent publicity about Sheppard and the murder
made . . . made the case notorious, id., at 354, 86 S. Ct. at 1518, a carnival atmosphere pervaded

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Under Claim I(4)(b), Greene asserts that trial counsel was derelict in failing to move for a

change of venue. Even if Greene could demonstrate that counsel’s failure to move for a change

in venue fell below an objective standard of reasonableness, any contention that the result of the

proceeding would have been different in another venue is entirely speculative and cannot serve

as the basis for a claim of ineffective assistance of counsel.

Next, Greene charges that counsel failed in multiple ways to “subject the State’s guilt-

phase evidence to meaningful adversarial testing.” Pet. at 17. Under Claim I(5)(a), Greene

claims that trial counsel failed to mount even the slightest challenge to the State’s case and

conceded at the outset that he was guilty of capital murder. A review of the state transcript

reveals that counsel did not concede Greene’s guilt. Instead, defense counsel urged the jury to

keep an open mind and emphasized that the State had the burden to prove guilt beyond a

reasonable doubt. Furthermore, counsel interposed appropriate objections throughout the guilt

phase25 and conducted effective cross examination.26 Greene’s guilt-phase attorneys acted as his

advocates, and the record does not support Greene’s claim that they conceded his guilt.

Under Claims I(5)(b) and (c), Greene faults counsel for failing to present evidence

the trial, and “bedlam reigned at the courthouse . . . ” id., at 355, 86 S. Ct. at 1518.

25
For example, counsel argued that evidence of the “hunt them down and shoot them”
tee-shirt was not relevant and that any probative value was substantially outweighed by the
danger of unfair prejudice. On appeal, the Arkansas Supreme Court agreed that the tee-shirt
evidence was inadmissible but found that the error was harmless because the evidence of
premeditated and deliberated murder was overwhelming.
26
For example, the fingerprint technician who testified that a partial palm print from
Burnett’s truck matched Greene’s palm print acknowledged on cross examination that she found
no fingerprints inside the truck and that several fingerprints on the exterior that did not match
Greene’s.

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regarding a third cartridge casing and the “third-party culpability” of Kerry Wiggins

(“Wiggins”). After Burnett’s body was discovered, law enforcement subjected Wiggins to a

gunshot residue test, which returned positive results. Greene alleges that his trial attorney, who

had previously represented Wiggins in criminal cases, failed to present evidence of the gunshot

residue test out of loyalty to Wiggins. Greene asserts: “It is readily apparent from the fact that

[Wiggins] was given a gunshot residue test that the police believed he was involved in the

shooting of the decedent.” Pet. at 63. Greene speculates: “Perhaps [Wiggins] fired the gun

found in [Greene’s] possession, or another gun or maybe both guns.” Pet. at 64. Greene

contends that evidence of a third cartridge casing obtained from the murder scene, which was not

fired from the pistol seized from Greene, “magnifies the exculpatory value of Kerry Wiggins.”

Pet. at 64

Greene’s theory that Wiggins was at the murder scene and fired a gun is speculative, and

even if defense counsel was deficient for failing to present evidence regarding the residue test

and a third cartridge casing, Greene cannot show that his defense was prejudiced. The evidence

showed that all bullet fragments removed from Burnett’s back and head were fired from the

pistol taken from Greene at the time of his arrest and that shortly after his arrest, Greene told

Sheriff King and Deputy Burgess, “I’m your man.”

With Claim I(5)(d), Greene charges that trial counsel rendered ineffective assistance by

failing to challenge the testimony of Dr. Fahmy Malak, a forensic pathologist. During the guilt

phase of Greene’s initial trial and at his final re-sentencing trial, the prosecution presented Dr.

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Malak’s video-taped deposition testimony.27 At the time of his deposition, Dr. Malak worked as

a forensic pathologist for the Arkansas Department of Health, and he testified that on July 25,

1991, when he served as the State’s chief medical examiner, he performed Burnett’s autopsy.

Dr. Malak opined that Burnett died from combined injuries that he sustained in the course of

being beaten, stabbed, and shot and that the manner of death was homicide. He further opined

that while Burnett was still alive, he sustained a knife wound, which extended from his mouth to

his ear, a stab wound to his back, and gunshot wounds to his chest and head.

On post-conviction review, Greene asserted the same claims that he advances in this

habeas proceeding: that counsel rendered ineffective assistance by failing to impeach Dr.

Malak’s testimony on cross-examination, with evidence that he had a history of controversial

and inaccurate determinations, and failing to use expert testimony to counter Dr. Malak’s

testimony regarding aspects of Burnett’s death. In his post-conviction petition filed in state

court, Greene argued:

Had there been cross-examination or impeachment, the jury would have learned that
Dr. Malak had a history of controversial and inaccurate determinations.
Furthermore, there is a reasonable probability that another examiner would have
disagreed with Dr. Malak’s conclusions that Mr. Burnett was alive at the time of
infliction of certain of the injuries. Had this been properly handled, there is a
reasonable probability that Greene would have been convicted of a lesser offense.

27
On direct appeal from his final sentence, Greene argued that Dr. Malak’s videotaped
deposition from the guilt phase of the 1992 trial was inadmissible because the prosecution failed
to give timely notice that Dr. Malak’s former testimony would be used at trial and the
prosecution failed to show that Dr. Malak was unavailable to testify. The Arkansas Supreme
Court held that Dr. Malak’s testimony was properly admitted under Ark. Code Ann.
§ 5-4-616(a)(4); that Greene should have known of the existence of § 5-4-616(a)(4) regarding
prior testimony; and that Greene had a right, under Ark. R. Crim. P. 17.1, to inquire whether Dr.
Malak’s former testimony would be used at trial. See Greene v. State, 343 Ark. 526, 538, 37
S.W.3d 579, 588 (2001).

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Resp’t Ex. J at 14.

The trial court rejected Greene’s post-conviction claims, finding that whether to cross

examine a witness was a matter of trial strategy and that Greene failed to show that Dr. Malak’s

conclusions and opinions could have been successfully discredited by cross examination. The

court further found that Greene failed to specify the portions of Dr. Malak’s testimony that

lacked credibility and that he failed to show the substance of another expert’s testimony.

Greene appealed, arguing inter alia that the trial court erred in denying his petition

without a hearing. The Supreme Court of Arkansas disagreed, noting that “conclusory

allegations that are unsupported by facts do not provide a basis for either an evidentiary hearing

or post conviction relief[,] and “[a] Rule 37 hearing is not available to a petitioner in hopes of

finding grounds for relief.” Greene v. State, 356 Ark. 59, 67, 146 S.W.3d 871, 877 (2004)(citing

Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983)). The Supreme Court of Arkansas

affirmed the post-conviction court in all respects, stating as follows:

[N]either Greene's Rule 37 petition, nor his argument on appeal identify a doctor that
would have disagreed with Dr. Malak, or even the evidence that would indicate Dr.
Malak's determinations were faulty and subject to different interpretation. When an
allegation rests on whether a witness should have been called, it is incumbent on the
petitioner to name the witness, provide a summary of the testimony, and establish
that the testimony would have been admissible into evidence. Malone v. State, 294
Ark. 127, 132, 741 S.W.2d 246, 249 (1987).

Greene fails to cite one piece of authority for the proposition that counsel was
ineffective in this case. Greene merely makes conclusory allegations that there may
have been some medical examiner that would have disagreed with Dr. Malak.
Conclusory statements cannot be the basis of post-conviction relief. Jackson v.
State, 352 Ark. 359, 105 S.W.3d 352 (2003). This court will not grant post-
conviction relief for ineffective assistance of counsel where the petitioner fails to
show what the omitted testimony or other evidence was, and how it would have
changed the outcome. Id. In the absence of any showing of what the evidence
concerning Dr. Malak’s examination might have proven, this court affirms.

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Greene v. State, 356 Ark. 59, 74, 146 S.W.3d 871, 882 (2004).

Respondent asserts that Greene’s Claim I(5)(d) fails under the AEDPA’s deferential

standard of review for state court decisions. Under that standard, Greene must establish that the

state court proceedings resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court. See 28

U.S.C. § 2254(d)(1)). Greene argues that the deferential standard is inapplicable because his

claim was rejected on state procedural grounds. See Brown v. Luebbers, 371 F.3d 458, 460–61

(8th Cir.2004)(explaining that AEDPA deferential review only applies where a claim has been

adjudicated on the merits by the state court).

The Court finds that the state supreme court decided Greene’s ineffective-assistance-of-

counsel claim based on the merits of the constitutional claim advanced, not a procedural rule.

The Arkansas Supreme Court has consistently held that it will not grant post-conviction relief for

ineffective assistance of counsel where the petitioner fails to show what the omitted testimony

was and how it could have changed the outcome, see Williams v. Norris, 576 F.3d 850, 859 n.2

(8th Cir. 2009)(citing cases), and such a showing is necessary to establish Strickland prejudice.

The Supreme Court of Arkansas prefaced its review of Greene’s ineffective-assistance-of-

counsel claims by stating the Strickland standard precisely. Additionally, the court found that

Greene failed to show what the omitted testimony or other evidence was and how it would have

changed the outcome, which subsumes a finding that Greene failed to show a reasonable

probability that jury’s verdict would have been different absent counsel’s allegedly deficient

performance. The Court finds that the Supreme Court of Arkansas’s “no-prejudice ruling, based

on the state-post conviction record, was not contrary to nor an unreasonable application of

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Strickland.” Williams, 576 F.3d at 859.

Greene contends that his Claim I(5)(d) allegations warrant an evidentiary hearing, and he

incorporates allegations set forth under Claim VII–asserting that Dr. Malak’s videotaped

testimony “multiply violated his constitutional rights.” Under Claim VII, Greene cites examples

of Dr. Malak’s “lack of honesty” and “incompetence” in other cases. He charges that Dr. Malak

was biased in favor of the State at the time he performed Burnett’s autopsy because it occurred

when Malak was “literally fighting for his professional life, and . . . had an overwhelming

motivation to curry favor with the State . . . ” Pet. at 48.

Greene also attacks the substance of Dr. Malak’s testimony. He contends that no

competent forensic pathologist would have concluded that Burnett died from combined injuries

“in the presence of the clearly fatal head wound.” Id. According to Greene, no evidence

supports a conclusion that Burnett was alive when his wrists and ankles were bound or when he

sustained certain injuries. Although Greene acknowledges that it “is within the realm of

possibility” that Burnett was restrained before he sustained injuries, he opines that it was more

likely that Burnett was engaged in a struggle and sustained blunt force injuries by knocking into

a wall or furniture. Greene also suggests that Burnett hit and injured his assailant with the can of

hominy that was covered with blood at the murder scene, that Burnett was cut and stabbed in the

course of struggling for a knife, and Burnett was “finally restrained and then shot, or even shot

and then tied up.” Pet. at 54.

“If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner

must overcome the limitation of § 2254(d)(1) on the record that was before that state court.”

Cullen v. Pinholster, — U.S. —, 131 S.Ct. 1388, 1400 (2011). And even if Greene’s ineffective

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assistance claim had not been adjudicated on the merits, which it was, an evidentiary hearing is

barred under § 2254(e)(2) unless Greene “was unable to develop his claim in state court despite

diligent effort.” Williams v. Taylor, 529 U.S. 420, 437, 120 S.Ct. 1479 (2000). Greene claims

that the post-conviction court “refused” to provide him with time to investigate and funds to

retain a forensic pathologist, but a careful review of the record shows otherwise.

Greene filed his post-conviction petition on January 22, 2002, and in a footnote, he

stated: “Greene will file a motion seeking funds for an expert witness to analyze autopsy

materials.” Id. at 14 n.1. However, Greene never filed such a motion. In his appeal from denial

of post-conviction relief, Greene stated: “In the petition, Greene said that he would file a motion

seeking funds for an expert witness to analyze the autopsy materials . . . . However, before he

could do so, the trial court short circuited the process by denying Greene a hearing and held that

Green had presented no evidence that Dr. Malak’s testimony was flawed.” Resp’t Ex. K,

(appellant’s brief at 229). The post-conviction court entered its order denying Greene’s petition

on April 10, 2002, almost three months after Greene indicated in a footnote that he would file a

motion seeking funds for an expert. The record reveals no state court ruling or impediment that

prevented Greene from filing a motion for funds within that three-month period.

Because Greene failed to develop the factual basis for his claim in state court, this Court

is precluded from holding an evidentiary hearing unless Greene meets the narrow exceptions

under 28 U.S.C. § 2254(e)(2)(A) and (B). The Court finds that Greene cannot satisfy the

requirements under § 2254(e)(2)(A): His claim does not rely on a new rule of constitutional law

or a factual predicate that could not have been previously discovered through the exercise of due

diligence, and Greene cannot satisfy § 2254(e)(2)(B), which requires that the facts supporting his

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claim are sufficient to establish by clear and convincing evidence that but for constitutional

error, no reasonable factfinder would have found him guilty of capital murder.

Under Claim 1(5)(e), Greene charges that trial counsel failed to challenge “the

conclusory and unreliable” testimony of the State’s firearms examiner, Ronald Anderjack, who

testified that bullet fragments retrieved from Burnett’s body retained markings showing that they

had passed through the barrel of the gun that Greene possessed at the time of his arrest. Defense

counsel declined to cross examine Anderjack and offered no evidence to contradict his

testimony.

Greene fails to point out any inconsistencies or weaknesses in Anderjack’s testimony that

rendered it susceptible to effective cross examination, nor does claim that defense counsel had

reason to believe that cross examination or counter evidence would have been useful to his

defense. Greene’s conclusory allegations on this claim are insufficient to establish deficient

performance by counsel or prejudice. See Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir.

1990)(“We hold that in order to substantially comply with the Section 2254 Rule 2(c), a

petitioner must state specific, particularized facts which entitle him or her to habeas corpus relief

for each ground specified. These facts must consist of sufficient detail to enable the court to

determine, from the face of the petition alone, whether the petition merits further habeas corpus

review.”).

Under Claim I(5)(f), Greene charges that counsel failed to challenge testimony by Silvia

Newcomb, a fingerprint technician who testified that a partial palm print lifted from the exterior

of Burnett’s pickup truck matched Greene’s. Newcomb testified that when she compared the

partial print with a print of Greene’s left palm, she found thirty points of comparison that were

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common to both prints, and a chart showing the thirty points of comparison was received into

evidence. Newcomb also testified that “fresh” prints contain sweat and acids, which effect

brighter images, and she opined that the partial palm print lifted from the truck was fresh

because the image of the print was bright. On cross examination, defense counsel elicited

testimony that Greene’s prints did not appear on the interior surfaces of the truck and that several

latent prints were lifted from the truck, but only one matched Greene’s.

Greene contends that Newcomb’s testimony was subject to challenge on a number of

grounds that his attorney failed to pursue. He faults counsel for failing to attack Newcomb’s

testimony regarding the freshness of the partial palm print lifted from truck. Greene claims that

there is no scientific way of assessing the age of print and that counsel should have retained an

expert to rebut Newcomb’s “false and misleading” testimony. He also claims that contrary to

Newcomb’s testimony, a report she prepared recorded only twenty-three points of comparison.

Greene does not claim that his attorneys had reason to anticipate and prepare for

Newcomb’s testimony regarding print freshness, which is crucial to a finding of unreasonable

performance. Furthermore, other evidence at trial connected Greene to the truck that was

missing from the murder scene: officers discovered Burnett’s truck hidden from plain view

under a bridge in Jones, Oklahoma on July 25, 1991--two days after Burnett’s murder and one

day before Green was arrested in nearby Norman, Oklahoma. Greene is unable to show that

additional efforts to rebut Newcomb’s testimony would have changed the outcome of his trial,

thus his claim fails.

Under Claim I(5)(g), Greene faults counsel for failing to point out, through evidence and

argument, the lack of fingerprint or trace evidence linking him to the crime scene. However,

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substantial evidence linked Greene to the crime scene. Evidence showed that Greene suddenly

appeared at the Burnett’s house days before the murder, that he took Burnett’s truck from the

murder scene, and that after the murder, he possessed the gun that was used to shoot Burnett.

Furthermore, Greene made highly incriminating statements after Burnett’s murder, which were

tantamount to a confession. Without question, Greene is unable to show that the outcome of his

trial would have been different had counsel emphasized a lack of trace evidence linking him to

the crime scene.

Under Claim I(6), Greene argues that counsel failed to object to several instances

“prosecutorial misconduct” that occurred during the guilt phase.28 First, he faults counsel for

failing to object when prosecutors elicited “victim-impact” testimony from Edna Burnett. The

testimony at issue imparted information about the Burnetts’ children and their church and

ministry. Mrs. Burnett did not describe Mr. Burnett’s personal characteristics or the harm

inflicted upon his family as a result of his murder, and the Court finds that her testimony served

as contextual background evidence and did not amount to victim-impact testimony. Testimony

regarding the Burnett’s church and ministry was particularly relevant to explain how the

Burnetts met and formed a relationship with Greene, and testimony about the Burnetts’ children

was relevant to events that occurred after the murder. Mrs. Burnett testified that after she

discovered her husband’s body, she called a son who lived in Arkansas, and he told her to call an

ambulance.

28
In support of Claim I(6), Greene references Claim VIII, a omnibus prosecutorial
misconduct claim, which includes the allegations related to the guilt phase of his trial.
Additionally, under Claim VIII, Greene incorporates the facts alleged under Claims I, III, V, VI,
VII, IX, and XI, leaving it to the Court to spend hours parsing the tangled and complicated 150-
page petition to discern the substance Greene’s claims.

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Even assuming that counsel should have objected to the aforementioned testimony, and

assuming that the trial court would have sustained such objections, overwhelming evidence

supported Greene’s conviction for capital murder, and he is unable to show prejudice under

Strickland.

Second, Greene charges that counsel failed to object when prosecutors knowingly elicited

false and misleading testimony from Dr. Malak and Sylvia Newcomb. Greene fails to allege

facts showing that a witness’s testimony was false or misleading or known to the prosecution to

be false or misleading, and the failure to raise a baseless objection does not amount to

constitutionally deficient performance. This claim is without merit.

With claim I(7)(a), Greene restates a claim that he presented as part of his state petition

for post-conviction review: that trial counsel failed to “federalize” his objection to the admission

of evidence regarding a tee-shirt he was carrying when officer Taylor arrested him in Oklahoma

on July 26, 1991. A message on the tee-shirt read: “If you love someone, set them free. If they

don’t come back, hunt them down and shoot them.” Defense counsel objected to admission of

the tee-shirt during the guilt phase on grounds of relevancy and undue prejudice. The trial court

overruled the objection, noting that Greene possessed the tee-shirt three days after Burnett’s

murder. At the direction of the prosecutor, Taylor read the tee-shirt message aloud to the jury,

and in closing argument, the prosecutor argued that the message was evidence of Greene’s state

of mind.

On direct appeal, Greene argued that the trial court erred in failing to exclude the tee-

shirt evidence under Rules 401 and 403 of the Arkansas Rules of Evidence. The Arkansas

Supreme Court concluded that even if the evidence were marginally relevant, its effect was

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clearly prejudicial, and the trial court abused its discretion. See Greene v. State, 317 Ark. 350,

355, 878 S.W.2d 384, 387 (1994). However, in light of the overwhelming evidence of guilt

presented, the state supreme court declared that the trial court’s error was harmless.29 See

29
The Arkansas Supreme Court recounted the evidence of premeditated and deliberated
murder as follows:

Edna Burnett . . . testified that [Greene] returned to the Burnett's home about one
week before the July 23, 1991, murder of Sidney Burnett. At the time, appellant had
a hitchhiker with him. He left abruptly, and Edna Burnett did not see appellant again
until after the murder.

Sheriff Eddie King testified that after appellant's arrest, he went to Norman to bring
appellant back to stand trial. While still in Norman, appellant told the Sheriff that the
Burnetts had earlier accused him of burning one of their buildings and that Edna
Burnett had talked his wife into leaving him. Appellant told the sheriff, “I'm your
man” and “No one else was involved.” He also said, “I'm tired of being treated like
shit. I was going to take out people that fucked with me. It's like chaining up a dog
and treating it like shit. Sooner or later he goes crazy.” Other testimony revealed that
the victim's pickup truck was recovered in Oklahoma with appellant's palm print on
it.

A few days after being returned to Arkansas, while appellant was in jail, he said he
had killed his brother in North Carolina and then had come to Arkansas. He said he
wished he could have attended his brother's funeral “so he could piss on his grave.”

The physical evidence was as follows. Two .25 caliber shell casings were found at
the crime scene. A firearms-toolmark examiner testified that the .25 caliber pistol
taken from appellant in Norman was the same pistol that imparted the markings on
the casings found at the crime scene. Even more important, two bullet fragments
were taken out of the victim, and the one fired into the victim's left back and the one
fired into the victim's head were both fired from the pistol recovered from appellant.
A dented can of hominy with blood on it was found at the crime scene. Four
hundred and sixty dollars remained in the victim's billfold that was found under a
chair by the corpse, and two hundred dollars in cash was found in a nearby bedroom.

When the sheriff first arrived at the Burnett home, he found Sidney Burnett's corpse
with the head and shoulders propped up against a chair. His legs were on the floor.
His hands were bound behind his back. He had handcuffs on his right arm, and his
feet were bound together. Cloth was wrapped around his mouth. He had bruises on
the right side of his forehead and on his back. He had been stabbed in the back. He
had been shot in the chest and just above the right ear. The former state medical

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Greene, 317 Ark. at 355, 878 S.W.2d at 387(“After a detailed review of the evidence, we hold

that the evidence of guilt of capital murder was overwhelming, and, in view of that evidence, the

error was slight.”).

In his post-conviction petition, Greene argued that trial counsel rendered ineffective

assistance by failing to frame his objection to the tee-shirt evidence in constitutional terms. He

examiner testified that when he received the corpse the hands were restrained behind
the back with fiber filament tape and there were imprints from the restraint of the
hands and legs. There was bleeding around the edges of the compression marks, and
this indicated that the victim was alive while being restrained. The appellant's
forehead was cut, probably when appellant struck the victim with the can of hominy,
and a bruise in the back was consistent with the heel of a stomping shoe. The
medical examiner testified that the victim was alive at the time these blows were
struck because the areas bled and swelled. A stab wound in the left back was strong
enough to go through the lung a distance of about four inches and to pierce the whole
thickness of the muscles of the left mid back. The right side of the victim's face had
been cut from the mouth to the ear, and the cut was so deep that it severed the entire
thickness of the facial muscles. The medical examiner testified that Sidney Burnett
was alive when this was committed because he inhaled blood from the facial cut into
his lungs, and blood was circulating when the stab into the back was made. The
victim was shot with appellant's .25 caliber pistol in the right chest and the right
crown of the head. The high degree of bleeding indicated that Sidney Burnett was
alive when shot.

The facts show that appellant knew the Burnetts and was familiar with their home.
He went to their home with handcuffs, a .25 caliber pistol, and filament tape. He
bound Sidney Burnett's hands, feet, and mouth. Over a period of time, appellant beat
Burnett in the head, probably with a can of hominy; bruised his back, probably by
stomping him with his heel; brutally stabbed him in the back; committed even more
horrible torture when he cut the victim from mouth to ear; and ultimately shot him
in the chest and in the head. Even though this description of butchery and torture
sounds horrible, it does not fully describe the effect of macabre horror shown in the
photographs of the crime scene. Appellant said, “I'm tired of being treated like shit.
I was going to take out people that fucked with me. It's like chaining up a dog and
treating it like shit. Sooner or later he goes crazy.”

Greene v. State, 317 Ark. 350, 355-358, 878 S.W.2d 384, 388- 389 (1994),

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argued that admission of the tee-shirt was clear First Amendment error under Dawson v.

Delaware, 503 U.S. 159, 112 S. Ct. 1093 (1992),30 and that an objection on constitutional

grounds would have triggered a stricter standard of review, that the constitutional error was

harmless beyond a reasonable doubt.31 Greene further argued that even if the trial court had

overruled an objection framed in constitutional terms, the Arkansas Supreme Court would have

reversed his conviction.

The trial court rejected Greene’s post-conviction claim, stating: “This Court cannot

conclude that, had trial counsel objected on constitutional arguments, a different result would

have been reached by the jury.” Resp’t Ex. J, at 45. In its written decision affirming the trial

court, the Arkansas Supreme Court properly identified and stated the Strickland standard. The

state supreme court noted that Greene shouldered the burden to demonstrate that counsel’s

representation fell below an objective standard of reasonableness and that there was a

“reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable

30
In Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093 (1992), a capital defendant
appealed his death sentence on the ground that it was constitutional error to admit evidence of
his membership in a white, racist prison gang where that evidence was not relevant to any issue
decided at the sentencing phase of his trial. The Supreme Court rejected the assertion that the
Constitution erects a per se barrier to the admission of evidence concerning one’s beliefs and
associations simply because they are protected by the First Amendment. See Dawson, 503 U.S.
at 165, 112 S.Ct. at 1097. The Supreme Court noted that a sentencing jury is free to consider a
wide range of relevant material, including evidence of the defendant’s racial intolerance and
subversive advocacy where such evidence is relevant to the issues involved. But because the
particular evidence at issue in Dawson was unaccompanied by any showing that the crime was
racially motivated or relevant to rebut any mitigating evidence proffered by the defense, the
Court held that admission of the evidence violated the First and Fourteenth Amendments of the
United States Constitution. See Dawson, 503 U.S. at 168, 112 S. Ct. at 1099.
31
See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824 (1967)(holding that, on direct
review, constitutional error requires reversal unless the reviewing court concludes that the error
was harmless beyond a reasonable doubt).

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doubt respecting guilt, i.e., that the decision reached would have been different absent the

errors.” Greene v. State, 356 Ark. 59, 64, 146 S.W.3d 871, 875-76 (2004)(citation omitted).

The state supreme court did not explicitly couch its analysis in terms of the Strickland standard.

Instead, it concluded that Greene’s ineffective-assistance-of-counsel claim lacked merit because

“[t]he United States Supreme Court has concluded that the First Amendment does not prohibit

the evidentiary use of speech to establish the elements of a crime or to prove motive of intent.”

Greene v. State, 356 Ark. at 75, 146 S.W.3d at 883/71, 875-76 (2004)(citing Wisconsin v.

Mitchell, 508 U.S. 476, 113 S.Ct. 2194 (1993).8

Greene argues that the Arkansas Supreme Court’s determination was contrary to and an

unreasonable application of clearly established federal law as determined by the United States

Supreme Court. The Court disagrees. The Arkansas Supreme Court correctly identified the

Strickland standard as the controlling legal authority governing Greene’s ineffective-assistance-

of-counsel claims, and Greene points to no instance where the Supreme Court decided a case

differently on “materially indistinguishable” facts. Furthermore, for reasons that follow, the

Court finds that the state court decision was not an unreasonable application of relevant Supreme

Court precedent.

“In reviewing whether the state court's decision involved an unreasonable application of

clearly established federal law, we examine the ultimate legal conclusion reached by the court,

not merely the statement of reasons explaining the state court's decision.” Williams v. Roper

8
In Wisconsin v. Mitchell, 508 U.S. 476, 113 S.Ct. 2194 (1993), the Supreme Court held
that a state statute providing for enhancement of a defendant’s sentence whenever he
intentionally selects his victim based on race did not violate the defendant’s free speech rights.
The Court noted that “[t]he First Amendment . . . does not prohibit the evidentiary use of speech
to establish the elements of a crime or to prove motive or intent.” Wisconsin v. Mitchell, 508
U.S. at 489, 113 S. Ct. at 2201.

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695 F.3d 825, 831-832 (8th Cir. 2012)(citations omitted). The proper inquiry is “whether there is

‘any reasonable argument’ that the state court's judgment is consistent with Strickland.

Id.(quoting Harrington v. Richter, ---- U.S. ----, 131 S. Ct. 770, 788 (2011)). “If the state court

‘reasonably could have concluded that [the petitioner] was not prejudiced by counsel’s actions,’

then federal review under AEDPA is at an end.” Id. (quoting Premo v. Moore, ---- U.S. ----,

131 S.Ct. 733, 740 (2011)). Given the overwhelming evidence of a premeditated and

deliberated murder, which the Arkansas Supreme Court recited in affirming Greene’s conviction

on direct appeal and in affirming the denial of post-conviction relief, the Court finds that the

state court reasonably could have concluded that Greene suffered no prejudice from counsel’s

failure to “federalize” his objection to the tee-shirt evidence.

With Claim I(7)(b), Greene faults counsel for failing to object to a statement by the

prosecutor: that if Greene received a sentence of life without parole, he could be released from

prison pursuant to a commutation, pardon, or reprieve by the governor. Greene raises this claim

under the heading “errors and omissions by trial counsel during the guilt phase,” but the

prosecutor uttered the statement in the course of objecting to defense counsel’s closing argument

during the 1999 re-sentencing trial.

On direct appeal from his final death sentence, Greene contested the prosecutor’s

statement and argued that the trial court had a duty to intervene and correct the serious error.

The Arkansas Supreme Court noted that in closing argument, defense counsel stated that Greene

would never be released from prison, which prompted the prosecution to object and argue that

under state law, an inmate sentenced to life without parole may still be released pursuant to

commutation, pardon, or reprieve by the governor. The state supreme court held that the trial

court did not commit serious error and that the prosecutor provided a correct and full statement

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of Arkansas law. See Greene v. State, 343 Ark. 526, 587 (2001).

On appeal from the denial of post-conviction relief, Greene asserted the same claim that

he brings here: that his attorney was ineffective for failing to object to the prosecutor’s

statement. The Arkansas Supreme Court again noted that the prosecutor uttered a correct

statement of law, and held that counsel was not ineffective for failing to make a meritless

argument. The Arkansas Supreme Court based its decision on a finding that is immune from

federal habeas review: that the prosecutor provided a correct and full statement of Arkansas law.

Additionally, the state court’s determination that counsel’s performance was not deficient was a

reasonable application of the Strickland standard.

For Claim I(8), Greene claims that counsel failed to move to suppress the custodial

statements that he made to King and Burgess on July 26 and 27, 1991. The record shows,

however, that defense counsel moved for suppression of the inculpatory statements two times,

with limited but significant success. On August 28, 1992, defense counsel moved for the

suppression of three inculpatory statements made by Greene to law enforcement officers:

Greene’s statements to Sheriff King and Deputy Burgess on July 26 and 27, 1991, during

Greene’s confinement at the Cleveland County Jail in Oklahoma, and a statement Greene made

on July 9, 1992, when he was confined at the Johnson County Jail in Arkansas. See Resp’t Ex.

A1, at 30.

During a suppression hearing, defense counsel conceded that he had no argument

regarding the admissibility of Greene's July 26, 1991 statement, and the trial court agreed.

However, the court granted Greene's motion to the extent that it excluded from evidence part of

Greene's July 27, 1991 statement and the entirety of his July 9, 1992 statement.

Regarding the July 27, 1991 statement, the trial court declined to exclude Greene’s

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voluntary, unsolicited statements made at the beginning of his meeting with King and Burgess:

“Let’s see if we can’t get this settled today. You wouldn’t be here if you didn’t know something.

You know I’m your man.” However, the evidence revealed that after Greene made the foregoing

statements, a defense attorney obtained by jail personnel met with Greene privately. After his

meeting with Greene, the defense attorney asked whether King could guarantee that Greene

would not receive the death penalty. King responded that he could make no such guarantee, and

the attorney told King that Greene did not want to make a statement. The trial court ruled that

under the totality of the circumstances, highly incriminating statements that Greene uttered after

his attorney announced that he did not want to talk were involuntary and inadmissible. The

excluded portion of Greene’s July 27, 1991 statement included Greene’s statements that King

didn’t have to look any further and that no one else was involved.

As for the July 9, 1992 statement, King testified that he met with Greene that day at

Greene’s request at the Johnson County Jail. King’s notes from the meeting record that Greene,

without his counsel present, admitted that he hit, cut, stabbed, restrained, shot and killed Burnett

after Burnett refused to give him his vehicle. The trial court held that the absence of Greene’s

attorney rendered his July 1992 statement inadmissible.

Immediately before the commencement of Greene’s 1992 trial, defense counsel objected

to the introduction of portions of Greene’s July 26, 1991 statement: Greene’s statements that he

would tell King what happened after he “took care” of North Carolina and his comment that

people didn’t think he would kill his brother. Defense counsel took the position that the

foregoing statements did not meet the standard for admission under Arkansas Rule of Evidence

404(b), and the trial court agreed.

Greene faults counsel for failing to argue that his July 1991 statements were inadmissible

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because they were recorded after he invoked his right to counsel. He alleges that shortly after his

arrest on July 26, 1991, but before King and Burgess arrived to interview him, a Norman police

detective attempted to interrogate him about the Burnett and Tommy Greene homicides.

According to the petition allegations, at approximately 9:00 a.m., the Norman detective read

Greene his Miranda rights, and Greene agreed to talk about his brother’s homicide, but he

“clearly and unequivocally invoked his right to an attorney in connection with the Arkansas

case.” Pet. at 27. Greene alleges that King and Burgess met with him at 6:45 p.m. on July 26,

1991 and informed him of his Miranda rights, which he initially waived. However, Greene

claims that he “ultimately refused to answer questions about the Burnett incident and asked again

that he be allowed to contact an attorney, but not before Sheriff King had extracted information

from him that was used against him at trial and resentencing to highly prejudicial effect.” Pet. at

28.

In Edwards v. Arizona, the Supreme Court held that once the accused invokes his Fifth

Amendment right to counsel, interrogation must cease until “counsel has been made available to

him, unless the accused himself initiates further communication, exchanges, or conversation with

the police.” 451 U.S. 477, 484–85, 101 S.Ct. 1880 (1981); see also Michigan v. Jackson, 475

U.S. 625, 106 S.Ct. 1404 (1986)(extending the Edwards rule to the Sixth Amendment context).

Once the accused has invoked the right to counsel, “a valid waiver of that right cannot be

established by showing only that he responded to further police-initiated custodial interrogation

even if he has been advised of his rights.” Id. at 484, 101 S.Ct. 1880.

Where an ineffective assistance of counsel claim is premised on counsel’s failure to file a

meritorious suppression motion, the petitioner must show that he would have likely prevailed on

the motion and that, having prevailed, the verdict would have been different. See Kimmelman v.

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Morrison, 477 U.S. 365, 106 S.Ct. 2574, 2582-87 (1986). Here, even assuming that trial counsel

could have shown that Greene unambiguously invoked his right to counsel before King and

Burgess interrogated him on July 26, 1991, he cannot show that counsel’s failure to move for

suppression under Edwards altered the outcome of the trial. The invocation of the right to

counsel bars subsequent interrogation by law enforcement officers without the presence of an

attorney unless the accused initiates succeeding conversation. See Edward, 451 U.S. 477, 485,

101 S.Ct. 1880 (1981). On July 27, 1991, Greene requested a meeting with King and Burgess,

and when they arrived, he voluntarily stated: “Let’s see if we can’t get this settled today. You

wouldn’t be here if you didn’t know something. You know I’m your man.” Greene is unable to

show that a motion to suppress the voluntary, inculpatory statements he made on July 27, 1991

would have been granted.

Under Claim I(9), Greene argues that individually and cumulatively, counsel’s errors

during the guilt phase deprived him of effective assistance of counsel. For reasons previously

stated, the Court finds that Greene’s individual ineffective-assistance-of-guilt-phase-counsel

claims lack merit. Accordingly, his cumulative error argument fails. See Hall v. Luebbers, 296

F.3d 685, 692 (8th Cir. 2002)(“In our circuit a habeas petitioner cannot build a showing of

prejudice on a series of errors, none of which would by itself meet the prejudice test.”).

Claim II - Incompetency at Trial

Under Claim II, Greene asserts that he was mentally incompetent to stand trial at the time

of his initial trial in 1992 and at the time of his final re-sentencing in 1999. Respondent asserts

that this claim is procedurally defaulted, but Greene contends that a portion of Claim II was

fairly presented in state court–specifically, his claim that the trial court had a constitutional

obligation to “sua sponte declare a doubt as to [his] competence and hold a hearing to determine

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[the] same.” Pet. at 25. According to Greene, the trial court had notice of facts that raised a

bona fide doubt about his competence, which triggered the obligation to conduct a hearing. He

further argues that this claim is preserved for federal review because, under Rule 10(b)(iv) of the

Arkansas Rules of Appellate Procedure–Criminal, the Supreme Court of Arkansas was

automatically presented with the issue of whether the trial court failed to intervene without

objection to correct a serious error.

The Court disagrees that Greene’s claim was implicitly presented in state court by virtue

of the automatic review procedure mandated under Rule 10 of the Arkansas Rules of Appellate

Procedure-Criminal. Rule 10 implements the mandatory review announced in State v. Robbins,

339 Ark. 379, 5 S.W.3d 51 (1999), an opinion that was issued on December 2, 1999, several

months after the imposition of Greene’s final death sentence. On July 9, 2001, the Supreme

Court of Arkansas codified the mandatory review procedures announced in Robbins by

amending Rule 10, and automatic review in death cases pursuant to Rule 10 is applicable only to

cases in which a sentence of death was imposed after August 1, 2001. Nooner v. State, No. CR-

94-358, 2014 Ark. 296, 23, 2014 WL 2932282, *12 (June 26, 2014)(citing Newman v. State, 350

Ark. 51, 84 S.W.3d 443 (2002) and State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999)).

The review mandated by Arkansas Supreme Court Rule 4-3(h), now Rule 4-3(i),

governed the review of Greene’s direct appeals, and the scope of that review was limited to

“rulings on objections decided adversely to him” and “presupposed a contemporaneous objection

at trial.” Id. Furthermore, even if the state supreme court could have identified and addressed a

federal question sua sponte, the burden was on Greene to fairly present his federal claim in state

court at a time when the state procedural rules permit its consideration on the merits. See

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Baldwin v. Reese, 541 U.S. 27, 30-32, 124 S. Ct. 1347 (2004).9

Greene failed to exhaust his state remedies as to Claim II, and pursuit of the claim in state

court would now be futile. Accordingly, habeas review is precluded unless Greene can show

cause for his default and prejudice resulting from the alleged constitutional deprivation. Greene

argues that any procedural default is excused based on ineffective assistance of counsel.

However, given the results of the competency evaluations that defense counsel requested at the

guilt stage and the final re-sentencing, and other substantial evidence of Greene’s competency to

stand trial at the time of counsel’s representation, as detailed in connection with Claims I(3) and

IX, any failure on the part of counsel to argue incompetence to stand trial was reasonable and not

prejudicial to Greene.

Claim III - Admission of Incriminating Custodial Statements

For Claim III, Greene charges that the incriminating custodial statements he made to

King and Burgess on July 26 and 27, 1991 were involuntary and illegally obtained. He argues

that admitting the statements into evidence during the guilt phase of his initial trial and his final

re-sentencing trial violated his constitutional rights and caused him to suffer great prejudice.

Respondent asserts procedural default, but Greene contends that Claim III was preserved

because “[t]he abstract of [his] appellate brief to the Arkansas Supreme Court [contained] a

9
In Starr v. Lockhart, 23 F.3d 1280, 1287 (8th Cir.), cert. denied, 513 U.S. 995, 115 S.Ct.
499 (1994), the Eighth Circuit held that the Arkansas Supreme Court’s automatic review
preserved the petitioner’s Ake claim, even though the petitioner failed to raise the argument in
state proceedings. However, in Williams v. Norris, 576 F.3d 850 (8th Cir. 2009), the Court of
Appeals noted that Starr was overruled by the AEDPA, as applied in Baldwin v. Reese, 541 U.S.
27, 124 S.Ct. 1347 (2004).

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claim that the circuit court was required to suppress as evidence all oral and written statements

illegally obtained from him, citing Miranda v. Arizona, 384 U.S. 436 (1966).” Traverse at 4

(citing 1993 Appellant’s Br. at 9-10). The “abstract of pleadings” presented on appeal sets forth

the contents of Greene’s motion to suppress filed in the trial court, which states that Greene “is

mentally incompetent to knowingly and understandingly waive his Miranda rights.”10 Resp’t

Ex. B at 10. The appellate brief is void of any argument regarding the admissibility of Greene’s

custodial statements, and the allegation presented in this proceeding--that Greene invoked the

right to an attorney before he met with King and Burgess on July 26, 1991--was never presented

in state court.

In order to preserve a claim for federal habeas review, the petitioner must alert the

appropriate state appellate court to the federal nature of his claim in his brief on appeal. See

Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 1351 (2004)(holding that “ordinarily a state

prisoner does not ‘fairly present’ a claim to a state court if that court must read beyond a petition

or brief (or a similar document) that does not alert it to the presence of a federal claim in order to

find material, such as a lower opinion in the case, that does so”). Furthermore, a petitioner must

present “‘both the factual and legal premises’” of his claims to the state courts in order to

exhaust the claims properly. Flieger v. Delo, 16 F.3d 878, 884 (8th Cir.1994)(quoting Cox v.

Lockhart, 970 F.2d 448, 454 (8th Cir.1992)). “The legal aspect of this requirement is satisfied if

the petitioner’s argument to the state court ‘refer[s] to a specific federal constitutional right, a

particular constitutional provision, a federal constitutional case, or a state case raising a pertinent

10
Resp’t Ex. B at 10. Both the abstract and the motion to suppress inaccurately report
that King obtained Greene’s inculpatory statements in July 1992. The statements in question
were made on July 26 and 27, 1991. See Resp’t Ex. A1, at 35-38.

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federal constitutional issue.’” Dansby v. Hobbs, 766 F.3d 809, 823 (8th Cir. 2014)(quoting

Abdullah v. Groose, 75 F.3d 408, 412 (8th Cir.1996).

It is clear that Greene failed to fairly present Claim III in state court, and Greene has

failed to establish cause and prejudice for the procedural default.11

Claim IV- Denial of Assistance from Mental Health Professionals

Under Claim IV, Greene charges that the trial court’s denial of his motion for a

supplemental psychiatric evaluation, prior to his initial trial, violated his constitutional right to

the assistance of competent mental health professionals in preparing and presenting his guilt and

penalty phase defenses. The State asserts that this claim is procedurally defaulted because

Greene failed to raise it in state court, but Greene contends that he presented the claim on appeal

by operation of Ark. Code Ann. § 16-91-113(a), which, in capital cases, requires automatic

appellate review of all errors prejudicial to the defendant.12

11
In his traverse, Greene asserts ineffective assistance of trial and appellate counsel as
cause for failure to present Claim III in state court. However, for reasons explained in
connection with Claims I(8) and XIX, Greene cannot succeed with the underlying, ineffective-
assistance-of-counsel claims, thus he is unable to show cause and prejudice based on ineffective
assistance.
12
Greene also argues that he was not required to present Claim IV in state court because
the Arkansas Supreme Court has repeatedly rejected similar claims. When the highest state
court has previously addressed decided a dispositive issue raised in a federal habeas petition, and
there is no signal that the state court will depart from its prior decision, the exhaustion doctrine
does not require the petitioner to raise his claim in state court. See Piercy v. Black, 801 F.2d
1075, 1077-78 (8th Cir.1986). However, the Court disagrees that this narrow futility exception
applies here. The Arkansas Supreme Court has held that in the absence of “some evidence” that
additional mental evaluation was needed, a trial court commits no error in failing to obtain
further evaluation. See Dunn v. State, 291 Ark. 131, 722 S.W.2d 595 (1987). Arguably,
Greene’s trial counsel presented “some evidence” in support of his motion that further evaluation
was needed in Greene’s case, and the Court refrains from predicting the Arkansas Supreme
Court’s probable determination as to the merits of Claim IV. See Snethen v. Nix, 736 F.2d 1241,
1245 -1246 (8th Cir. 1984).

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In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087 (1985), the Supreme Court held that

due process requires that an indigent defendant be provided access to a psychiatrist to assist in

the evaluation, preparation, and presentation of a defense or mitigating evidence when the

defendant's mental condition is a serious issue. And in Starr v. Lockhart, 23 F.3d 1280, 1287 (8th

Cir.), cert. denied, 513 U.S. 995, 115 S.Ct. 499 (1994), the Eighth Circuit held that the Arkansas

Supreme Court’s automatic review rule preserved the petitioner’s claim pursuant to Ake v.

Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 (1985). However, in Williams v. Norris, 576 F.3d

850 (8th Cir. 2009), the Court of Appeals acknowledged that its holding in Starr was overruled

by the AEDPA as applied in Baldwin v. Reese, 54 U.S. 27, 124 S.Ct. 1347 (2004). See

Williams, 576 F.3d at 865; see also McGehee v. Norris, 588 F.3d 1185, 1198 n.3 (8th Cir. 2009)).

Even assuming that the state’s automatic review rule preserved Greene’s claim, the Court

finds that the claim fails on the merits. Under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087

(1985), “a defendant’s threshold showing that his mental state at the time of the offense is likely

to be a significant factor at trial requires the state to provide access to a psychiatrist’s assistance

if the defendant cannot otherwise afford to pay for his own expert.” McGehee v. Norris, 588

F.3d 1185, 1198 -1199 (8th Cir. 2009)(citing Ake, 470 U.S. at 74, 105 S.Ct. 1087). “Ake requires

more than the mere possibility that an expert might be of some assistance to a defendant's case.

‘Rather, the defendant must show a reasonable probability that an expert would aid in his

defense, and that denial of expert assistance would result in an unfair trial.’” McGehee v. Norris,

588 F.3d 1185, 1199 (8th Cir. 2009))(quoting Little v. Armontrout, 835 F.2d 1240, 1244 (8th

Cir.1987)).

In support of his motion for a supplemental evaluation, Greene merely argued that his

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initial evaluation by the state forensic team was insufficient. The trial court was without

information as to how a supplemental evaluation would assist Greene’s defense, and nothing

before the court indicated that denial of a supplemental evaluation would result in a

fundamentally unfair trial. The record demonstrates that Greene failed to make a preliminary

showing that his mental state was likely to be a significant factor at trial, thus his claim for relief

must be denied.

Claim V–Admission of Tee-Shirt Evidence

Under Claim V, Greene asserts that his constitutional rights were violated by the

introduction of evidence during the guilt phase of his initial trial regarding the “hunt-them-down-

and-shoot-them” tee-shirt that he was carrying at the time of his July 26, 1991 arrest in

Oklahoma. On direct appeal, Greene argued that evidence of the tee-shirt was inadmissible

under Arkansas Rules of Evidence 401 and 403. However, he failed to present his constitutional

claim in state court, and Respondent asserts procedural default. Respondent also agues that

given the overwhelming evidence of Greene’s guilt, it is implausible that the verdict would have

been different absent the tee-shirt evidence. It is undisputed that Greene failed to present this

claim in state court, and the Court finds that he is unable to satisfy the cause and prejudice

standard.

Claim VI - Right to Fair and Impartial Jury

With Claim VI, Greene asserts that his right to due process and a fair jury was violated in

“multiple respects.” In support of this claim, Greene alleges the following: (1) at re-sentencing,

the trial court improperly excluded two venire members, Betty Dodge and Robert Cook, who

expressed reservations about the death penalty; (2) re-sentencing jurors were aware, through

media reports and community gossip, that Greene had been convicted of murdering his brother;

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(3) re-sentencing jurors failed to disclose that they had relationships with Burnett and his family;

(4) re-sentencing jurors possessed highly prejudicial information about the case; (5) guilt and re-

sentencing jurors were exposed to prejudicial pretrial publicity about the case; and (6) Burnett’s

family was present during voir dire at re-sentencing.

Respondent asserts procedural default, with the exception of Greene’s claim that the re-

sentencing court improperly excused venire member Betty Dodge because she expressed

reservations about the death penalty. On direct appeal from his final death sentence, Greene

argued that Dodge was improperly excluded for cause because she said she could not sign a

verdict form assessing the death penalty. See Greene v. State, 343 Ark. 526, 542, 37 S.W.3d

579, 590 (2001). The Arkansas Supreme Court found that the trial court properly excluded

Dodge based on her answers to questions regarding the death penalty. Id.

In Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844 (1985), the Supreme Court

delineated the standard under the Sixth and Fourteenth Amendments for determining whether a

juror may be excused for cause because of his views on the death penalty. Under that standard, a

venire person may be excluded when his views on capital punishment “would prevent or

substantially impair the performance of his duties as a juror in accordance with his instructions

and his oath.” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852 (1985). The Supreme

Court’s standard for striking a juror does not require that juror bias be proved with

“unmistakable clarity” because “determinations of juror bias cannot be reduced to question-and-

answer sessions which obtain results in the manner of a catechism.” Id. A potential juror “may

not know how they will react when faced with imposing the death sentence, or may be unable to

articulate, or may wish to hide their true feelings.” Id. at 425, 105 S. Ct. at 852. “Despite this

lack of clarity in the printed record, however, there will be situations where the trial judge is left

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with the definite impression that a prospective juror would be unable to faithfully and impartially

apply the law.” Accordingly, “deference must be paid to the trial judge who sees and hears the

juror.” Id. at 426, 105 S. Ct. at 853. Witt also holds that pursuant to 28 U.S.C. § 2254(d), federal

courts must accord a presumption of correctness to state court findings of juror bias. Id. at 426-

430, 105 S. Ct. at 853-855.

During voir dire, Dodge repeatedly answered “I don’t know” when asked whether she

held any beliefs that would prevent her from considering the death penalty. Subsequently, the

trial judge asked Dodge whether she could sign a verdict form imposing the death penalty if she

and the other jurors made the requisite findings. In answer to this question, Dodge repeatedly

answered “I don’t know” and expressed that it would be hard to sign the verdict form. Finally,

in an effort to elicit a more definite answer as to whether Dodge could sign a verdict form

imposing the death penalty, the trial judge questioned Dodge as follows:

Court: If that’s what you in your own mind and the other members have resolved to do,
can you do it:

Dodge: I guess I can do it; but it would be hard to do.

Court: Can I say by guess that you can do it?

Dodge: I don’t know. That’s - -

Court: You’re the only one that can tell me that.

Dodge: I just don’t know.

Court: And, it needs to be either I can or I can’t.

Dodge: I guess I’d say I can’t. I just don’t - -

Court: I didn’t - -

Dodge: It’s kind of hard for me to - -

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Court: Did you say you can’t?

Dodge: I just don’t believe I’d want to.

Court: I’m going to take that as a “can’t.” Mrs. Dodge, I’m going to let you go. You’re
free to go, ma’am.

Resp’t Ex. F16, at 307-309.

The Court finds that the trial court had ample basis to conclude that Dodge’s views

would have prevented or substantially impaired her duties as a juror in accordance with her

instructions and oath and that the Arkansas Supreme Court’s decision was a reasonable

application of clearly established federal law.

Furthermore, Greene’s claim regarding the exclusion of venire person Robert Cook is

procedurally defaulted, and the voir dire record certainly supports the trial court’s decision to

exclude him for cause. Cook stated that the jury that convicted Greene should decide his

sentence, and he stated, “It’s hard to make a decision about somebody’s life when you don’t

know yourself for sure that they are guilty or innocent.” Resp’t Ex. F16, at 291. When asked

whether he could carry out his obligations as a juror, Cook answered, “I don’t know that I can.”

Id. at 294.

Greene’s remaining allegations in support of Claim VI are procedurally defaulted, and

the Court finds that he has failed to establish cause or prejudice to excuse his default. Greene

cites ineffective-assistance-of-trial counsel as cause, but for reasons stated in connection with

Greene’s related ineffective assistance claims, Claims I(4)(a) and IX, the underlying ineffective-

assistance-of-counsel claims are procedurally defaulted and without merit.

Claim VII - Videotaped Testimony of Dr. Fahmy Malak

The State introduced Dr. Malak’s videotaped testimony during the guilt phase of

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Greene’s initial trial in 1992 and at the final re-sentencing trial in 1999. Greene argues that

introduction the deposition video “multiply” violated his constitutional rights. Respondent

asserts that the claim is procedurally defaulted and that it fails on the merits.

Guilt Phase

Greene failed to present a claim in state court challenging the admission of Dr. Malak’s

deposition testimony during the guilt phase, and he asserts ineffective assistance of trial counsel

as cause for procedural default. The sole ineffective- assistance-of-trial-counsel claim raised in

the petition, related to the use of Dr. Malak’s deposition testimony at the guilt phase, is Greene’s

Claim that counsel rendered ineffective assistance by failing to impeach Dr. Malak’s testimony.

For reasons previously stated, the Court finds that the state supreme court rejected Greene’s

ineffective-assistance-of-trial-counsel claim on the merits and that the decision was not contrary

to nor an unreasonable application of Strickland. Accordingly, Greene’s ineffective-assistance-

of-trial counsel claim fails, both as a stand-alone claim and as cause for default.

Sentencing Phase

During a pretrial conference held immediately before Greene’s final re-sentencing,

defense counsel argued that Dr. Malak’s deposition testimony was inadmissible because the

State failed to show that the witness was unavailable to testify. Counsel argued that such a

showing was required under the former testimony exception to the hearsay rule, set forth under

Rule 804(b)(1) of the Arkansas Rules of Evidence, and that the use of Dr. Malak’s deposition

testimony would violate Greene’s right to confront and cross examine witnesses. The trial court

overruled counsel’s objection and admitted the video pursuant to Ark. Code Ann.

§ 5-4-616(a)(4), which provided that any evidence properly admitted in a prior trial is admissible

in a new sentencing proceeding.

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On direct appeal from his final death sentence, Greene argued that the trial court erred by

admitting Dr. Malak’s testimony. Although Greene’s appellate brief focused mainly on the

standard for the admissibility under Rule 804(b)(1),13 he also argued that admission of the

deposition video deprived him of his right to confront witnesses as guaranteed by the Sixth

Amendment. See Resp’t Ex. G at 156, 158. Greene specifically raised his Confrontation Clause

claim on direct appeal, and the Court finds that he fairly presented and preserved the claim for

federal review.

The Supreme Court of Arkansas did not expressly address Greene’s constitutional claim

on the merits. Instead, it held that Dr. Malak’s testimony was properly admitted under Ark.

Code Ann. § 5-4-616(a)(4); that Greene should have known of the existence of § 5-4-616(a)(4)

regarding prior testimony; and that Greene had a right, under Ark. R. Crim. P. 17.1, to inquire

whether Dr. Malak’s former testimony would be used at trial. See Greene v. State, 343 Ark. 526,

538, 37 S.W.3d 579, 588 (2001). Although the state supreme court’s opinion does not

expressly address Greene’s Confrontation Clause claim, this Court must presume that it was

adjudicated on the merits and apply the restrictive standard of review under § 2254(d). See

Johnson v. Williams, — U.S.—, 133 S.Ct. 1088, 1092 (2013).

Greene cannot meet the requisites for relief under § 2254(d). The United States Supreme

Court has never addressed whether the Confrontation Clause applies at sentencing, or capital

13
The trial court ruled that Dr. Malak’s deposition video was admissible under Ark. Code
Ann. § 5-4-616(a)(4), which provided that any evidence properly admitted in a prior trial is
admissible in a new sentencing proceeding. On appeal, Greene argued that § 5-4-616(a)(4)
conflicted with the former testimony exception to the hearsay rule, which required that Dr.
Malak be unavailable as a witness.

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sentencing in particular,14 nor has the Court addressed the specific facts presented by Greene:

Whether the admission of videotaped prior testimony at a capital sentencing, without a showing

of witness unavailability, violates the defendant’s confrontation rights. Furthermore, Greene

does not contend, and the record does not establish, that the state court’s decision was based on

an unreasonable determination of the facts presented in state court.

Even assuming that sentencing proceedings are “criminal prosecutions” for Sixth

Amendment purposes,15 habeas relief is not available unless the admission of Dr. Malak’s

deposition “had a substantial and injurious effect or influence in determining the jury’s verdict.”

See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also Fry v. Pliler, 127 S.Ct. 2321,

14
In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079 (1949), the Supreme Court
considered whether, under the Due Process Clause of the Fourteenth Amendment, a sentencing
judge in a capital case may consider information from sources whom a defendant has not been
permitted to confront or cross examine. The Court held the Due Process Clause does not
“render [ ] a sentence void merely because a judge gets additional out-of-court information to
assist him in [sentencing][,]” 337 U.S. 241, 252, 69 S.Ct. 1079 (1949). Many federal appellate
courts cite Williams for the proposition that the Confrontation Clause does not apply at
sentencing. See Muhammad v. Secretary, Florida Dept. of Corrections, 733 F.3d 1065,
1074-1075 (11th Cir. 2013); United States v. Fields, 483 F.3d 313, 326 (5th Cir. 2007); Szabo v.
Walls, 313 F.3d 392, 398 (7th Cir. 2002); see also United States v. Barrett, 496 F.3d 1079, 1100
(10th Cir. 2007)(“It is far from clear that the Confrontation Clause applies to a capital sentencing
proceeding.”).

The Eighth Circuit has held, in the context of a non-capital federal criminal case that the
Confrontation Clause does not apply in sentencing proceedings, see United States v. Wallace,
408 F.3d 1046, 1048 (8th Cir. 2005), cert. denied, 546 U.S. 1069. 126 S. Ct. 816 (2005), and it
has refrained from addressing whether confrontation rights apply in capital sentencing
proceedings. United States v. Johnson 495 F.3d 951, 976 (8th Cir. 2007).

Recently, the Supreme Court of Arkansas held the Confrontation Clause of the United
States and Arkansas Constitutions applies in all sentencing hearings where evidence is presented
to a jury. See Vankirk v. State, 2011 Ark. 428, 385 S.W.3d 144 (2011).
15
The Confrontation Clause of the Sixth amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” U.S. CONST. amend. VI.

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2328 (2007)(requiring federal habeas court to assess constitutional trial error under the Brecht

“actual prejudice” standard “whether or not the state appellate court recognized the error and

reviewed it for harmlessness”). In the context of a Confrontation Clause error, “[a]n assessment

of harmlessness cannot include consideration of whether the witness’ testimony would have been

unchanged, or the jury’s assessment unaltered, had there been confrontation; such an inquiry

would obviously involve pure speculation, and harmlessness must therefore be determined on the

basis of the remaining evidence.” Coy v. Iowa, 487 U.S. 1012, 1022, 108 S. Ct. 2798,

2803-2804 (1988).

Even without Dr. Malak’s testimony, there was sufficient evidence about the

circumstances of Burnett’s death and Greene’s intent for the jury to establish the statutory

aggravator–that Burnett’s murder was committed in an especially cruel or depraved manner.

Under Arkansas law, murder is committed in an “especially cruel manner” when the defendant

intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to

death, and mental anguish, physical abuse, or torture must have been inflicted. See Green v.

State, 317 Ark. 350, 878 S.W.2d 384 (1994)(citing Ark. Code Ann. § 5–4–604(8)(B)). “The

manner in which the murder was committed qualifies as in an especially cruel manner based on

either the serious physical abuse circumstance or the mental anguish circumstance.” Id. The

statute defines “mental anguish” as “the victim's uncertainty as to his ultimate fate[,]” Ark. Code.

Ann. § 5-4-604(8)(b)(ii)(a), and “serious physical abuse” is “physical abuse that creates a

substantial risk of death or that causes protracted impairment of health, or loss or protracted

impairment of the function of any bodily member or organ.” Ark. Code Ann.

§ 5-4-604(8)(b)(ii)(b). A murder is committed in an “especially depraved manner” when the

defendant “relishes the murder, evidencing debasement or perversion, or shows and indifference

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to the suffering of the victim and evidences a sense of pleasure in committing the murder.”

Intent may be inferred from the circumstances of the crime, and there was substantial

evidence, apart from Dr. Malak’s testimony, that Burnett endured torture and suffered mental

anguish and uncertainty as to his ultimate fate before he died.16 Burnett’s bound hands and feet

indicated that he was conscious for at least a portion of the brutal attack, and the numerous

violent injuries sustained to Burnett’s blood-soaked body indicated that the murder was

perpetrated in an especially cruel manner.

Claim VIII - Prosecutorial Misconduct

Under Claim VIII, Greene sets forth several subclaims alleging prosecutorial misconduct,

and he argues that separately and cumulatively, the complained-of conduct requires reversal of

his conviction and death sentence. Respondent assert that the claims are barred from review

because none were raised in state court.

16
King testified at the final re-sentencing and recalled what he observed when he arrived
at the crime scene, including the following:

• Burnett’s body was in a sitting position on the floor, leaned against a couch, with
blood “pooled all around him.” Resp’t F17 at 448.

• Burnett’s mouth was taped, his feet and hands were bound behind him, his arms
were taped, and he had a handcuff on one hand.

• Burnett’s face had been battered, and “from the mouth all the way up to the ear
there was a cut where it had just been sliced open and blood everywhere.” Id. at
451.

• Burnett’s eyes were swollen shut, there was a gunshot wound to his head, and his
clothes were covered with blood.

King also recalled the statement that Greene made when King interviewed him on July 26, 1991:
“I was going to take out people that fucked with me. It’s like chaining up a dog and treating it
like shit. Sooner or later he’s going - - he goes crazy.” Id. at 458.

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Under Subclaim VIII(2)(a), Greene charges that the prosecutor elicited victim-impact

testimony from Mrs. Burnett during the guilt phase of his initial trial. Greene argues that his

claim was automatically presented to the Supreme Court of Arkansas by operation under Rule

10(b)(iv) of the Arkansas Rules of Appellate Procedure–Criminal, but as previously explained,

mandatory review in death cases pursuant to Rule 10 is applicable only to cases in which a

sentence of death was imposed after August 1, 2001. See Nooner v. State, No. CR-94-358, 2014

Ark. 296, 23, 2014 WL 2932282, *12 (Ark. June 26, 2014). The review mandated by Arkansas

Supreme Court Rule 4-3(h), now Rule 4-3(i), was applicable to Greene’s direct appeals of his

capital murder conviction, and the scope of that review was limited to issues actually raised in

the trial court. Id. Furthermore, notwithstanding a state’s mandatory-review process, a habeas

petitioner must raise constitutional claim in state court in order to preserve it for federal review,

see Baldwin v. Reese, 541 U.S. 27, 30-32, 124 S. Ct. 1347, 1350 (2004), which Greene failed to

do.17

Greene asserts ineffective assistance of counsel as cause for procedural default.

However, Greene did not exhaust this ineffective-assistance claim in state court, and for reasons

previously explained in connection with Greene’s Claim I(6), it fails as an independent claim.18

17
Greene asserts the same unmeritorious, “automatic presentation” argument with respect
to Subclaims VIII(2)(d), (3)(a), (3)(b), 3(c), 3(d) and 3(e). See Traverse (ECF No. 198), ¶ 9.
18
Ineffective assistance of counsel may serve as cause to excuse procedural default.
However, “the exhaustion doctrine requires that a claim for ineffective assistance of counsel be
initially ‘presented to the state courts as an independent claim before it may be used to establish
cause for a procedural default’ in a federal habeas proceeding.” Taylor v. Bowersox, 329 F.3d
963, 971 (8th Cir. 2003)(quoting Murray v. Carrier, 477 U.S. 478, 489, 106 S.Ct. 2639 (1986)).
Furthermore, in order to constitute cause to excuse procedural default, counsel’s “assistance
must have been so ineffective as to violation the Federal Constitution.” Edwards v. Carpenter,
529 U.S. 446, 451-52, 120 S. Ct. 1587 (2000).

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The Court finds that Greene’s claim of prosecutorial conduct based on so-called, victim-impact

testimony is procedurally defaulted, and Greene has failed to demonstrate grounds to excuse the

default.

Under Subclaims VIII(2)(b) & (c), Greene charges that the prosecutor knowingly elicited

false and misleading testimony from Dr. Malak and Sylvia Newcomb during the guilt phase of

his initial trial. Greene contends that Dr. Malak and Newcomb gave testimony that was

“scientifically indefensible,” but he fails to allege facts showing that his conviction was obtained

by material evidence that the government knew or should have known to be false. In any event,

these claims are procedurally defaulted, and Greene fails to demonstrate cause and prejudice to

excuse the default or that a miscarriage of justice will result from application of the procedural

bar.

Under Subclaim VIII(2)(d), Greene claims that in guilt-phase closing arguments, the

prosecutor improperly argued that the tee-shirt he carried when he was arrested in Oklahoma

showed his state of mind at the time of the killing.19 Greene failed to raise this claim in state

court, and he fails to demonstrate any basis for overcoming procedural default.

Under Subclaim VIII(3)(a), Greene claims prosecutorial misconduct with respect to the

introduction of Dr. Malak’s videotaped deposition during his final re-sentencing. He claims that

the State’s witness list did not indicate that the prosecution would introduce deposition testimony

19
As previously stated, the tee-shirt bore the message: “If you love someone, set them
free. If they don’t come back, hunt them down and shoot them.” On direct appeal from his
conviction, Greene argued that the trial court erred in admitting evidence regarding a tee-shirt
that Greene possessed when Taylor apprehended him in Oklahoma. The Supreme Court of
Arkansas agreed that the trial court erred in admitting the tee-shirt evidence but found that “the
evidence of guilt of capital murder was overwhelming, and in view of that evidence, the
[evidentiary] error was slight.” Greene v. State, 317 Ark. 350, 357-358, 878 S.W.2d 384, 389
(1994).

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and that the prosecution indicated to defense counsel that Dr. Malak would provide live

testimony. Greene states: “Certainly when the prosecutor identified the witnesses that the state

would call, it gave the impression that the witnesses would be live in the courtroom and subject

to cross-examination.” Pet., 59. Although Greene presented a related claim on direct appeal, that

the trial court erred by admitting Dr. Malak’s testimony, he did not present this prosecutorial

misconduct claim in state court, and he is unable to establish cause or prejudice required to

overcome procedural default.

With Subclaims VIII(3)(b),(c),(d), and (e), Greene charges that several of the

prosecutor’s closing arguments were improper. The arguments at issue include statements about

the mental anguish that Burnett suffered before his death and the amount of time he suffered;

that Greene was responsible for his own actions and mitigating circumstances are only designed

to confuse and muddy the water; that the death penalty should be imposed to deter others from

“drinking at sixteen and using cocaine and going crazy;” and that the jury should send the

message that “[i]f someone comes into our community from off somewhere and does this to one

of our citizens, I think we should tell them, ‘you get the maximum penalty here.’” Pet. at 62.

Greene failed to present these claims in state court,20 and he is unable to demonstrate cause for

his default.

Under Subclaim VIII(4), Greene claims that the prosecution failed to disclose several

20
In support of his state petition for post-conviction relief, Greene argued that this trial
counsel rendered ineffective assistance for failing to object to the “send-a-message” argument
referenced in Claim VIII(3)(d). The Supreme Court of Arkansas rejected the claim, finding that
the “prosecutor’s comments were nothing more than a call to the jury to enforce the law, which
is permissible.” Greene v. State, 356 Ark. 59, 70, 146 S.W.3d 871, 800 (2004). The state
supreme court held that Greene could not show that he was prejudiced by counsel’s decision not
to object and that the failure to make a meritless objections failed as a ground for ineffective
assistance of counsel. See id.

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items of material, exculpatory evidence in violation Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194 (1963). It is undisputed that Greene failed to present his Brady claim in state court, thus

Court must determine whether the default is excused by an adequate showing of cause and

prejudice. The elements of a Brady claim21 subsume a showing of cause and prejudice sufficient

to overcome a procedural bar, provided that the material in question was not discovered until

after the deadline for presenting the claim to the state courts. See Hall v. Luebbers, 296 F.3d

685, 699 (8th Cir. 2002). The cause and prejudice required to excuse procedural default

generally matches the elements of a Brady claim: Cause is shown by the suppression of

exculpatory evidence, and prejudice is shown if the suppressed evidence was material for Brady

purposes. See Strickler v. Greene, 527 U.S. 263, 281-282, 119 S. Ct. 1936 (1999).

Greene claims that the prosecution suppressed exculpatory evidence related to four

subjects. First, he charges that the prosecution suppressed a litany of cases and controversies

that call into question Dr. Malak’s integrity and competence as a medical examiner.22 Second,

Greene claims that the prosecution failed to disclose that “Kerry Wiggins was a prime suspect

and that his hands were tested for the presence of gunshot residue.” Pet. at 63. Nothing in the

record indicates that Kerry Wiggins was a “prime suspect,” and it appears that Greene had access

21
There are three essential components of a Brady violation: (1) the evidence at issue
must have been favorable to the excused, either because it is exculpatory or because it is
impeaching; (2) the evidence must have been suppressed by the State, either willfully or
inadvertently; and (3) prejudice must have ensued. See Strickler v. Greene, 527 U.S. 263, 281-
282, 119 S. Ct. 1936 (1999).
22
Greene also claims that the prosecution knew that Dr. Malak’s testimony was false,
misleading and unreliable and allowed it to go uncorrected. However, the petition allegations
reveal that Greene does not claim that Malak’s testimony was actually false; he merely attacks
the quality and accuracy of Dr. Malak’s opinions and interpretation of physical evidence.

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to information about the gunshot residue test prior to his first trial.23 Third, Greene claims that

prosecutors failed to disclose that Johnson County officers interviewed Michael James Guthrie

on August 35, 1991. According to the petition allegations, Guthrie told officers that Greene had

offered to take him to North Carolina, but Guthrie declined the invitation because he thought

Greene was crazy. It is further alleged that Guthrie was the hitchhiker, referenced in Mrs.

Burnett’s testimony, who accompanied Greene before Burnett’s murder. Greene speculates that

Guthrie had exculpatory information about his mental condition and state of mind. Fourth,

Greene claims that prosecutors failed to disclose that law enforcement recovered a third cartridge

casing from the murder scene, which did not match the gun that Greene possessed when he was

arrested on July 26, 1991. Contrary to Greene’s allegations, the record shows that evidence of a

third cartridge casing found at the scene, which did not exit the pistol seized from Greene, was

available to him.24

23
A bill of particulars filed on July 29, 1992, approximately two and one-half months
before the commencement of Greene’s initial trial, lists documents that “may be used by the
State at any hearing or trial” including a crime lab report, dated April 24, 1992. The lab report,
in turn, lists items submitted by Johnson County investigator Jerry Dorney on July 25, 1991,
including hand swab samples taken from Kerry Wiggins. See Resp’t Ex. F2, at 177. The report
records the results of the analysis of the samples as follows: “Analysis of the gunshot residue kit
resulted in the detection of these elements at levels consistent with gunshot residue on the right
and left hand samples. The presence of this residue could be the result of discharging a firearm
or being in contact with a gunshot residue environment. The results of this test are considered
positive.” Id., at 178.
24
A bill of particulars (“BOP”) filed in state court on July 29, 1992 lists the State’s
evidence and provides that upon timely request, defense counsel would have the right to inspect
items, including evidence sent to the state crime lab. See Resp’t Ex. A1, at 16-19. Exhibit C of
the BOP lists items obtained from the crime scene that were sent to the state crime lab, and the
BOP also includes a copy of a state crime lab report dated August 5, 1991. Exhibit C records
that items sent to the crime lab included three .25 caliber cartridge casings, see See Resp’t Ex.
F2, at 163, 164, and the August 5, 1991 lab report records that a firearms examiner tested three
.25 caliber expended cartridge casings and determined that only two of the casings were fired
from the pistol seized from Petitioner. See Resp’t Ex. F2, at 204.

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Even assuming that Greene can establish cause by showing that the prosecution

suppressed the foregoing evidence,25 he is unable to show prejudice. “[E]vidence is material

only if there is a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682,

105 S.Ct. 3375 (1985). “‘The question is not whether [Greene] would more likely than not have

received a different verdict with the suppressed evidence, but whether in its absence he received

a fair trial, understood as a trial resulting in a verdict worthy of confidence.’” Strickler v.

Greene, 527 U.S. 263, 289-290, 119 S.Ct. 1936, 1952 (1999)(quoting Kyles v. Whitley, 514 U.S.

419, 115 S. Ct. 1555 (1995).

For reasons previously explained, Greene’s third-party culpability theory regarding

Wiggins and a third cartridge casing is entirely speculative, and evidence showed that the bullet

pieces removed from Burnett’s body were fired from the pistol taken from Greene. Furthermore,

even if the defense had successfully discredited Dr. Malak’s testimony in its entirety, the

prosecution presented additional evidence sufficient to establish guilt on the murder charge and

that Burnett’s murder was committed in an especially cruel or depraved manner.

Claim IX - Ineffective Assistance of Trial Counsel, Penalty Phase

Attorney William M. Pearson represented Greene at his final re-sentencing in 1999, and

Greene claims that errors and omissions on Pearson’s part deprived him of effective assistance of

counsel and a fair trial. The State contends that Greene’s ineffective-assistance-of-penalty-

counsel claims are procedurally defaulted, and Greene invokes Martinez, claiming that deficient

25
Although the Court assumes, for the purpose of review, that the prosecution suppressed
the evidence at issue, the Court notes that “[e]vidence is not suppressed [for Brady purposes] if
the defendant has access to the evidence prior to trial by the exercise of reasonable diligence.”
United States v. Stuart, 150 F.3d 935, 937 (8th Cir. 1998).

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performance by post-conviction counsel establishes cause to excuse his default. After careful

consideration, and for reasons that follow, the Court finds that Greene is unable to utilize the

Martinez exception because he cannot demonstrate that the underlying, ineffective-assistance-of

penalty-phase-trial-counsel claims are potentially meritorious.

First, Greene charges that Pearson failed to investigate and present mitigation evidence.

According to Greene, if Pearson had explored his life history more thoroughly, identified and

interviewed all potential witnesses, obtained neuropsychological testing, and retained expert

witnesses, he would have uncovered “abundant and powerfully mitigating evidence” that would

have changed the outcome of his trial.

The record shows that Pearson investigated and presented evidence regarding Greene’s

mental condition, substance abuse, and family history. Well in advance of the final re-

sentencing trial, Pearson requested and received an order committing Greene to the Arkansas

State Hospital for a psychological evaluation. According to a forensic report dated March 8,

1999, evaluators were unable to formally assess Greene’s mental status because he chose not to

participate in testing. However, a forensic psychologist interviewed Greene and reviewed his

prison files and previous mental evaluations conducted in 1992 and 1995. The psychologist

reported that Greene possessed high school level grammar and language skills, and he estimated

that Greene’s intellectual abilities fell within the average range. The evaluator reported that he

observed no symptoms of mental disease or defect and no signs that Greene’s mental status had

changed during the intervening periods between his 1992 and 1995 state hospital mental

evaluations the 1999 evaluation.

Pearson sought to introduce a redacted version of Dr. Warren’s 1992 testimony from the

penalty phase of Greene’s initial trial. See Resp’t Ex. F17, at 408-410. Pearson’s redactions

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included any references to North Carolina and Tommy Greene’s murder. Additionally,

Pearson’s proffer was limited to Dr. Warren’s testimony on direct and cross-examination, and he

sought to exclude redirect and recross testimony. During the 1992 recross, the prosecutor

introduced a state hospital forensic report that contained details of Burnett’s murder, as

recounted by Greene, which revealed that Burnett was alive and bound when Greene cut his

face. See Resp’t Ex. F, at 820-21. The prosecutor agreed that any references to North Carolina

should be redacted, but he insisted that the State was entitled to have all other portions of Dr.

Warren’s testimony presented to the jury, and the trial court agreed. Ultimately, neither the

prosecution nor the defense introduced Dr. Warren’s testimony at the final re-sentencing.

Pearson sought and obtained funds to locate out-of-state witnesses, including Greene’s

family members, to testify at the final re-sentencing. His efforts to secure in-person testimony

were mostly unsuccessful, but he presented live testimony from two witnesses.26 Stephen

Holloway testified that in 1985, Greene provided assistance and compassion to an elderly man

and a disabled woman, and Sue Ellen Van Raalte testified that Greene told her that he was very

sorry about Burnett’s murder, and he wished that it had not happened. Pearson also presented

1992 penalty-phase testimony by Leola Minton, the mother of Greene’s first wife; Danny Greene

and Georgia Pearl Caudill, Greene’s siblings; and Karen Eller, Greene’s second wife. This prior

26
In support of his petition for postconviction relief in state court, Greene argued that
Pearson’s decision to use prior testimony and his failure to present live witnesses amounted to
ineffective assistance of counsel. The Supreme Court of Arkansas affirmed the trial court’s
finding that the decision to use prior testimony was a matter of trial strategy and that there was
no reasonable probability that live testimony would have resulted in a different outcome. See
Greene v. State, 356 Ark. 59, 67, 146 S.W.3d 871, 878 (2004). The state supreme court also
noted that Pearson had attempted to obtain live testimony from the witnesses and that the jury’s
unanimous finding that some mitigating circumstances probably existed confirmed that jurors
considered the mitigation evidence despite the lack of live testimony from all witnesses.

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testimony included information about the severe abuse Greene endured as a child; his problems

with depression, emotional problems, and substance abuse; the devotion and love he had for his

mother; and the downward spiral that Greene experienced after his mother died.

In his closing argument, Pearson recounted the mitigating evidence, and he asserted that

the State had failed to prove beyond a reasonable doubt that Greene committed the murder in an

especially cruel or depraved manner. Pearson also argued that the jurors could only speculate as

to whether Burnett was conscious when he received injuries or whether he was rendered

unconscious at the beginning of the attack.

After hearing the evidence, the jury unanimously found that two mitigating

circumstances probably existed: that Greene’s grandfather served as his father figure and was

excessively punitive and utilized physical punishment that caused physical injuries and that

Greene’s developmental years could be characterized as chaotic, turbulent, and unpredictable.

One or more jury members believed that the following mitigating circumstance probably existed:

that Greene sought help for substance abuse and emotional problems. Finally, the jury found

that “some” evidence was presented to support seven additional mitigating circumstances, but

the jurors unanimously agreed that such evidence was insufficient to establish that such

circumstances probably existed.27

27
Specifically, the jury found “some” evidence to support the following circumstances:
(1) Greene’s family origin was very poor; (2) Greene’s father died by shooting himself when
Greene was only 18 months old; (3) Greene’s mother died in 1983 under strange circumstances,
Greene and others believed that she sustained an injury in an altercation with Greene’s
grandfather, and because his mother was his primary attachment, Greene was very distraught and
continued to believe there was a conspiracy regarding his mother’s death; (4) Greene’s mother’s
death lead him to further estrangement from his older sibling; (5) prior to Burnett’s murder,
Greene’s third wife was diagnosed with terminal cancer; (6) prior to the offense Greene was
using alcohol and crack cocaine, a combination associated with violent outbursts; and (7) prior to
the offense, Greene helped an elderly handicapped woman on a regular basis.

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The Court finds that Pearson conducted an adequate and constitutionally sound

investigation and that he exercised reasonable professional judgment in determining the

mitigating evidence presented at trial. Pearson possessed Dr. Warren’s testimony and two state

forensic reports assessing Greene’s mental status, and Greene refused to participate in additional

mental evaluations. Given the strong evidence that Greene committed Burnett’s murder in an

especially cruel or depraved manner, it is speculative whether additional investigation into

Greene’s past or additional testing and expert testimony would have produced a different

outcome. In sum, the Court finds that Greene’s claim that Pearson failed in his duty to conduct a

thorough investigation is not substantial or potentially meritorious.

In addition to claiming that Pearson failed to investigate and present mitigating evidence,

Greene faults Pearson for a multitude of purported errors. First, he blames Pearson for failing to

present documents and/or live testimony necessary to prove that mitigating circumstances, for

which the jury found “some” evidence, probably existed. Because the Court finds no merit to

Greene’s claim regarding inadequate investigation and presentation of mitigation evidence, this

claim is also without merit.

Second, Green charges that Pearson unreasonably failed to change the defense strategy

for the final penalty phase. Greene fails to suggest an alternative strategy that would have had

better results, and he is simply unable to show that Pearson’s trial strategy was so unreasonable

that it fell below an objective standard of reasonable competence.

Third, Greene claims that Pearson unreasonably failed to make proper objections

regarding Edna Burnett’s prior testimony. The record confirms that Pearson moved for the

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exclusion of Mrs. Burnett’s testimony on the ground that the State had not demonstrated that she

was unavailable to testify. Furthermore, as explained in connection with Claim XI , Greene’s

claim that Mrs. Burnett’s testimony was inadmissible on constitutional grounds is without merit.

Accordingly, a claim of ineffective assistance is not viable. See Gray v. Bowersox, 281 F.3d

609, 756 n.3 (8th Cir. 2002)(noting that ineffective assistance of counsel claim cannot succeed

when the “underlying objection would have been without merit”).

Fourth, Greene faults Pearson for failing to object to the Burnett family’s close proximity

to potential jurors during voir dire. Voir dire at Greene’s final re-sentencing consisted of two

phases: a brief initial phase conducted in open court, during which the judge questioned the

entire venire panel as a group, and a second phase conducted in a jury room, during which the

court and the attorneys examined prospective jurors two or three at a time, outside the presence

of others. During the initial phase, members of Burnett’s family were present in the courtroom.

Pursuant to the trial court’s direction, each family member rose and stated his or her name, and

the judge inquired whether any of the prospective jurors had any connection with the family

members. At the conclusion of the initial phase, the trial court instructed venire members to

avoid contact with Burnett’s family members and not to talk to them, and the judge, court

personnel, attorneys, and Greene relocated to a jury room. The record is void of any evidence

that Burnett’s family members were present in the jury room during the second phase of the voir

dire proceedings. Given the requirement of a public trial, and the lack of fact-specific

allegations that the presence of Burnett’s family members in open court impinged Greene’s right

to a fair trial, counsel’s failure to object to their presence did not amount to ineffective assistance

of counsel.

Fifth, Greene claims that Pearson rendered ineffective assistance by failing to seek

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further evaluation of Greene’s competency to stand trial. A review of the record confirms that

this claim is without merit. As previously mentioned, prior to the final re-sentencing trial, the

trial court granted Pearson’s motion for order committing Greene to the state hospital for a

mental evaluation, including a competency assessment.28 See Resp’t Ex. F15, at 48. Greene

refused to cooperate with a formal examination, but he talked to the examiners, who described

him as angry but “highly articulate.” Resp’t Ex. F15, at 51. Although a formal mental

evaluation was not possible, the psychologist who interviewed Greene and reviewed his records

opined that Greene’s decision to refuse additional testing was voluntary and not caused by a

28
In reversing Greene’s second death sentence, the Arkansas Supreme Court instructed:
“We remand this case for a hearing to be held as required by Ark. Code Ann. § 5–2–309(c), and,
should the State continue its pursuit of the death penalty, for a subsequent re-sentencing
proceeding consistent with this opinion.” Greene v. State, 335 Ark. 1, 34, 977 S.W.2d 192, 208
(1998).

By way of background, Greene discharged attorneys he retained to represent him during
his first re-sentencing proceedings, and on January 31, 1996, the trial court appointed Pearson as
defense counsel. With the February 26, 1996 trial date fast approaching, Pearson moved for a
continuance, which was denied. Pearson was unaware that a public defender who had
represented Greene lodged an objection to a state report, dated July 31, 1995, finding Greene
competent to stand trial. See Resp’t Ex. F2, at 236 (report) and 242 (order setting hearing). The
public defender argued that the underlying mental evaluation, ordered by the trial court pursuant
to Ark. Code. Ann. § 5-2-305, was cursory and inadequate. Arkansas law provides that if a
report filed under § 5-2-305 is contested, the trial court “shall” hold a hearing on the issue. See
Ark. Code Ann. § 5-2-3-9(c). The trial court scheduled such a hearing, which was never held.
As noted by the Arkansas Supreme Court, the matter “may simply have gotten lost in the wake
of Mr. Greene’s switching lawyers shortly before the hearing was to have been held.” Greene v.
State, 335 Ark. 1, 27, 977 S.W.2d 192, 205 (1998).

The final re-sentencing trial court held a hearing on April 16, 1999 to take up the issue of
objections to the July 1995 mental evaluation, but Pearson reported that he was not prepared to
go forward because he had not had an opportunity to speak with Greene. See Resp’t Ex. F15, at
135. The Court rescheduled the hearing for May 13, 1999, but the matter was not addressed
during that hearing. See Resp’t Ex. F15, at 148-152. In any case, Pearson requested and
received an additional mental assessment and competency evaluation prior to the final re-
sentencing trial, which ostensibly rendered moot the need for a hearing regarding the July 1995
evaluation.

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mental disease or defect and that Greene appeared to be aware of the nature of the criminal

proceedings against him. See id.

Pearson had ample reason to believe that Greene was competent to stand trial. The

record contained two state hospital forensic reports finding Greene competent to stand trial in

1992 and 1995, and Greene had personally demonstrated that he was aware of the nature of

proceedings against him and that he was capable of assisting his attorney. For example, on

March 26, 1999, Greene filed an affidavit with the trial court, stating that he would be acting as

co-counsel and that the State was obligated to bear the expenses associated with twelve

witnesses that he described as vital to his defense.29 See Resp’t Ex. F15, at 60. In light of the

evidence indicating that Greene was competent to stand trial and Greene’s refusal to cooperate

with additional testing, Pearson’s failure to pursue additional competency evaluation did not

constitute ineffective assistance of counsel.

Sixth, Greene claims ineffective assistance based on Pearson’s failure to move for the

suppression of incriminating custodial statements that Greene made to King and Burgess on July

26 and 27, 1991. For reasons discussed in connection with Claims (I)(8) and III, Greene is

unable to show that he would have likely prevailed with a motion to suppress or that a successful

29
Greene’s actual participation at trial confirmed that he understood the proceedings and
was able to assist his attorney. For example, during voir dire but outside the presence of
potential jurors, Greene stated:

Your Honor, I have a question here and an objection to the prosecution here. When
they . . . instruct the jury as to the two punishments that I can receive, they are
incorrect when they describe life in prison. The only punishment I can receive is life
in prison without the possibility of parole or death. Either way, whether its sooner
or later, I’m gonna die in prison . . .

Resp’t Ex. F16, at 251.

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motion would have altered the outcome of his trial.

Seventh, Greene claims that Pearson unreasonably failed to investigate and present

evidence that he was mentally retarded and thus ineligible for the death penalty. In light of

overwhelming evidence that Greene was not mentally retarded, including two state forensic

reports stating that Greene possessed at least average intelligence, the failure to pursue such an

argument was unquestionably reasonable, and there is no merit to this claim.

Eighth, Greene faults Pearson for failing to investigate and present evidence that he was

mentally disordered and thus ineligible for the death penalty. Given the absence of any federal

or state law that categorically exempted mentally disordered individuals from the death penalty,

this claim is without merit.

Ninth, Greene claims that Pearson unreasonably failed to object to closing arguments that

he contends reflected the prosecutor’s personal opinion regarding mental anguish that Burnett

endured before his death and the duration of his suffering. Dr. Malak testified that Burnett was

alive when he was beaten, stabbed, and shot, and the prosecutor argued that Burnett endured

mental anguish when he received those injuries. Additionally, photographs of the crime scene

showed two pools of blood, and the prosecutor commented that Burnett was present and bleeding

in two different areas. The prosecutor stated that Burnett “had to be suffering greatly for a

prolonged period” and that he was sure that Burnett suffered “for what [to Burnett] seemed like

an eternity.” Resp’t Ex. F18, at 512-513. The prosecutor also suggested that Burnett suffered

the entire time that Mrs. Burnett was away, from 5:00 p.m. to 11:00 p.m.

A prosecutor may urge the jury to draw certain conclusions based on the evidence

presented, and the majority of the statements at issue fall within the realm of permissible

argument. Furthermore, Pearson’s decision to refrain from objecting during closing argument

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was a reasonable, tactical decision. A successful objection would have likely resulted in a

curative instruction, repeating the trial court’s previous instruction that closing arguments do not

qualify as evidence and that any attorney statement having no basis in the evidence should be

disregarded. In his rebuttal, Pearson argued that it was pure speculation that Burnett suffered the

entire time that his wife was away, and he noted that the evidence did not foreclose the

possibility that Burnett was rendered unconscious early on, sparing him prolonged suffering.

The Court finds that Greene is unable to show that Pearson’s performance was deficient. Nor

can he demonstrate a reasonable probability that, but for the failure to object, the result of the

proceeding would have been different.

Tenth, Greene argues that Pearson should have moved for prosecutor Gibbons’s recusal.

For reasons explained in connection with Greene’s related Claim XIII, his claim that Gibbons

operated under a conflict of interest is without merit. Consequently, counsel’s failure to object

to Gibbons’s participation at trial did not amount to incompetent representation, nor did it

prejudice Greene’s defense.

Finally, Greene argues that Pearson failed to protect his right to a fair trial by conducting

inadequate voir dire, failing to move for a change of venue, and failing to object to the exclusion

of venire members Betty Dodge and Robert Cook.

Regarding the charge that Pearson conducted inadequate voir dire, Greene contends that

he should have inquired whether potential jurors were aware that Greene had been convicted of

murdering his brother and whether they had any knowledge about Greene, Burnett and his

family, or law enforcement officials connected with the case. Both the trial judge and Pearson

inquired whether potential jurors were acquainted with Burnett’s family or defense witnesses,

and the decision of whether to draw attention to Greene’s prior murder conviction was a matter

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of trial strategy. Additionally, the judge asked the venire panel whether any member had seen,

heard, or read anything that caused them to form an opinion about the case, with no response,

and Pearson asked jurors individually whether they had prior knowledge about the case via word

of mouth, the media, or any other means. In response to Pearson’s inquiry, a few venire

members stated that they had read about murder when it first happened but that they did not

recall any details. Furthermore, each juror confirmed that he or she could give Greene a fair trial

and would follow the instructions of the court. Greene is unable to show that Pearson rendered

deficient performance as to his voir dire examination, and Greene fails to allege specific facts

showing that Pearson’s representation at voir dire negatively affected the outcome of his trial.

On the related clam that Pearson rendered ineffective assistance by failing to pursue a

change of venue, Greene fails to allege facts demonstrating that Pearson’s decision fell below an

objective standard of reasonableness. “Mere exposure to publicity or the formation of tentative

impressions by some jurors is not enough to require a change of venue.” United States v. Brown,

540 F.2d 364, 378 (8th Cir. 1976). The question is whether a juror can set aside any impression

or opinion from that exposure and render a verdict based solely on the evidence presented at

trial. Here, each juror confirmed that he or she could give Greene a fair trial and render a verdict

based solely on the evidence.

Finally, as explained in connection with Claim VI, Greene’s claim that the exclusion of

Betty Dodge and Robert Cook amounted to constitutional error is without merit. Accordingly,

his related ineffective-assistance-of-counsel claim is also without merit. For the reasons stated,

the Court finds that Greene’s ineffective-assistance-of-trial-counsel claims are not potentially

meritorious, and they are procedurally barred.

Claim X - Exclusion of Evidence

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As explained in connection with Claim IX, defense counsel Pearson sought to introduce

only a portion of Dr. Warren’s 1992 testimony at the final re-sentencing trial. However, the trial

court ruled that the State was entitled to introduce the entirety of Dr. Warren’s testimony, which

included information that was arguably devastating to Greene’s defense, and neither side

introduced Dr. Warren’s testimony.

Greene claims that the trial court’s “exclusion” of Dr. Warren’s testimony violated his

constitutional rights,30 and the State asserts that this claim is procedurally barred. Greene argues

that the trial court’s ruling regarding Dr. Warren’s testimony was “properly abstracted” on

appeal and that he did everything necessary under state law to obtain a ruling from the Arkansas

Supreme Court as to the admissibility of the partial transcript of Dr. Warren’s testimony.

Although Greene included the trial court’s ruling in his appeal abstract, he failed to assert at trial,

on appeal, or on post-conviction review that the trial court’s ruling deprived him of a

constitutional right. The fair presentation requirement is not met merely because the facts

related to a federal claim were before the state courts. Greene was required to refer to a specific

federal constitutional right, a particular constitutional provision, a federal constitutional case, or

a state case raising a pertinent federal constitutional issue in a claim before the state courts[,]”

McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997)(internal quotation omitted), and he failed to

do so.

30
Greene fails to specify the precise federal constitutional rights that were violated as a
result of the trial court’s ruling, but in the initial paragraph under Claim X, he states that his
death sentence was “obtained in violation of his federal constitutional rights to due process, to
counsel and the effective assistance thereof, to a fair and impartial jury, to present a defense, to
confrontation, to compulsory process, to freedom from cruel and unusual punishment and to a
fair, reliable and accurate determination of penalty as guaranteed by the Sixth, Eighth and
Fourteenth amendments because of the trial court’s erroneous refusal to permit him to introduce
relevant, compelling mitigating evidence at his resentencing proceeding.” Pet. at 80.

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The Court finds that Greene’s claim was never presented in state court and that state

procedural rules prevent him from presenting the claim now. The Court further finds that

Greene has failed to demonstrate cause and prejudice, or that failure to consider the claim would

result in a fundamental miscarriage of justice. Accordingly, the claim may not be reviewed by

this Court.

Next, Greene raises a claim that he did present in state court: that the trial court erred in

refusing to admit a letter that Greene received from Mrs. Burnett, or related testimony by Mrs.

Burnett, stating that she forgave Greene and desired that he receive a life sentence and be spared

the death penalty. The content of Mrs. Burnett’s letter to Greene reveals that she forgave Greene

with the hope that it would “release” him to be saved, and she wanted him to receive a life

sentence so that he could give his life to God. See Resp’t Ex. F18, at 573.

On direct appeal, Greene argued that the trial court’s exclusion of the letter and related

testimony prevented the jury from considering relevant mitigating evidence proffered in support

of a sentence less than death. He also argued that “forgiveness testimony” constitutes

admissible, victim-impact evidence. In his appeal brief, Greene emphasized that during voir

dire, venire members were asked whether forgiveness by Burnett’s family would matter to them,

and two venire members who served as jurors answered the question in the affirmative.

The Arkansas Supreme Court disagreed that evidence of Mrs. Burnett’s forgiveness and

preference that Greene receive a sentence of life imprisonment qualified as relevant, mitigating

evidence because it did not concern Greene’s character or history or the circumstances of his

offense. See Greene v. State, 343 Ark. 526, 532, 37 S.W.3d 579, 584 (2001). The state court

further found that Mrs. Burnett’s penalty recommendation did not qualify as relevant victim-

impact evidence, and it noted that the admission of such evidence would interfere with and be

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irrelevant to a jury’s decision on punishment.

Greene argues that the state supreme court’s decision was contrary to or an unreasonable

application of Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597 (1991), Skipper v. South

Carolina, 476 U.S. 1, 106 S.Ct. 1669 (1986), Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869

(1982), and Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954 (1978). In Lockett, the Supreme Court

held that the Eighth and Fourteenth Amendments require that the sentencer in a capital case “not

be precluded from considering, as a mitigating factor, any aspect of [the] defendant's character or

record and any of the circumstances of the offense that the defendant proffers as a basis for a

sentence less than death.” Lockett, 738 U.S. at 604, 98 S.Ct. at 2964-2965(emphasis in original).

In Skipper, the Court stated “the corollary rule that the sentencer may not refuse to consider or be

precluded from considering ‘any relevant mitigating evidence,’” Skipper, 476 U.S. at 4, 106

S.Ct. at 1671(quoting Eddings, 455 U.S. at 114, 102 S.Ct. at 874). The Supreme Court has

explained that “relevant mitigating evidence” is “evidence which tends logically to prove or

disprove some fact or circumstance which a fact-finder could reasonably deem to have

mitigating value.” Tennard v. Dretke, 542 U.S. 274, 284, 124 S.Ct. 2562, 2570 (2004)(quoting

McKoy v. North Carolina, 494 U.S. 433, 440, 110 S.Ct. 1227, 1232 (1990)).

As the state supreme court noted, evidence that Mrs. Burnett forgave Greene and desired

that he receive a life sentence cast no light on Greene’s persona or the fabric of his crime.

Because the proffered evidence shed no light on Greene’s character, record, or the

circumstances of his offense, it was properly excluded. See Simpson v. Norris, 490 F.3d 1029,

1033 (8th Cir.2007)(rejecting claim that trial court defied the principles established under Lockett

and Eddings by excluding a proffered jury instruction that shed no light on the defendant’s

character, record or the circumstances of the offense).

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Nor did the state court err in rejecting the argument that Mrs. Burnett’s letter qualified as

admissible, victim-impact evidence. Family members of a victim may testify about the victim

and the emotional impact of the victim’s death on the family, but they may not state

“characterizations and opinions about the crime, the defendant, and the appropriate sentence.”

Payne v. Tennessee, 501 U.S. 808, 830 n.2, 111 S.Ct. 2597, 2611 n.2 (1991). Mrs. Burnett’s

letter of forgiveness did not relate to the emotional impact of her husband’s death on the family,

and her preference for a sentence of life imprisonment was irrelevant and did not qualify as a

permissible sentencing consideration. In sum, the Arkansas Supreme Court correctly applied

federal law when it rejected Greene’s arguments, and Greene is not entitled to habeas relief on

this claim.

Claim XI - Admission of Evidence

During Greene’s final re-sentencing trial, the State read into evidence Mrs. Burnett’s

testimony from Greene’s first re-sentencing trial. Mrs. Burnett testified about what she saw

when she discovered her husband’s body, and she answered questions about Greene’s

relationship with Donna Greene. She testified that after Donna left Arkansas in 1987, Greene

was very upset and he would drink and talk to Mrs. Burnett on the telephone all night long,

lamenting Donna’s absence. Mrs. Burnett recalled that when Greene was drunk, he would say,

“I just had to fall in love with a damned whore.” Mrs. Burnett also testified that she once

observed cuts on Donna Greene’s hand and a scratch on her torso and that she helped Donna

leave Arkansas because she appeared to be afraid of Greene. Under Claim XI, Greene claims

that he was denied the right to confront and cross-examine Mrs. Burnett and that the prejudicial

and inflammatory nature of her testimony rendered his trial fundamentally unfair. The State

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asserts that these claims are procedurally defaulted31 and that the trial court committed no error.

Greene asserts ineffective assistance of trial counsel as cause for default, but the Court

finds it more efficient to resolve Greene’s claims on the merits. See 28 U.S.C.

§ 2254(b)(2)(permitting federal court to deny habeas petition on merits notwithstanding

applicant's failure to exhaust state remedies); Lambrix v. Singletary, 520 U.S. 518, 525, 117 S.Ct.

1517 (1997)(“We do not mean to suggest that the procedural bar issue must invariably be

resolved first [given constraints of judicial economy.]”). Pursuant to the Confrontation Clause,

“[a] witness’s testimony against a defendant is . . . inadmissible unless the witness appears at

trial or, if the witness is unavailable, the defendant had a prior opportunity for

cross-examination.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309, 129 S.Ct. 2527, 2531

(2009)(citing Crawford v. Washington, 541 U.S. 36, 54, 124 S.Ct. 1354 (2004)). Here, Mrs.

Burnett was present at the final re-sentencing hearing, and when defense counsel objected to the

31
On direct appeal from his final death sentence, Greene claimed that the trial court erred
in admitting Mrs. Burnett’s 1996 testimony over the objections of defense counsel. He argued
that Mrs. Burnett’s testimony did not meet the standard for admissibility under Ark. R. Evid.
804(b)(1) and (a)(5) and that the prosecutor did not prove Mrs. Burnett’s unavailability or
provide defense counsel a copy of Mrs. Burnett’s testimony. Greene did not, however, present a
Confrontation Clause claim or an ineffective-assistance-of-trial counsel claim regarding Mrs.
Burnett’s testimony.

The Supreme Court of Arkansas held that Mrs. Burnett’s previous testimony was
properly admitted under Ark. Code Ann. § 5-4-616(a)(4), which provides that any evidence
properly
admitted in a prior trial is admissible in a new sentencing proceeding. The state supreme court
further held that Greene should have known of the existence of the statute regarding prior
testimony, and that he failed to exercise his right to inquire whether Mrs. Burnett’s previously
transcribed testimony would be used at trial.

The factual arguments and legal theories that Greene presented in state court, challenging
the admission of Mrs. Burnett’s testimony, are not the substantial equivalent of the claims he
presents now.

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admission of her prior testimony, the trial court stated: “She’s here and [you all] can use her. It’s

just that simple.” Resp’t Ex. F17, at 413. Furthermore, defense counsel cross examined Mrs.

Burnett at the first re-sentencing trial, and her testimony was not so prejudicial as to deny Greene

a fair trial, which requires a showing of gross or conspicuous prejudice. See Warden v. Wyrick,

770 F.2d 112, 116 (8th Cir. 1985). Greene’s own witness, his second wife Karen Eller, testified

that after Greene’s mother died, he became violent when he was drinking. For all of these

reasons, the Court finds that Claim XI fails on the merits.

Claim XII - Proof of Aggravator

With Claim XII, Greene challenges the jury’s unanimous finding that Burnett’s capital

murder was committed “in an especially cruel or depraved manner.” Greene attempts to conflate

this insufficient-evidence-of-aggravator claim with other claims presented in his petition.

Specifically, he incorporates allegations set forth in support of Claim VII, challenging the

admission of Dr. Malak’s deposition testimony, and Claim VIII, charging prosecutorial

misconduct, and he argues: “It is abundantly clear that, absent the multiple constitutional errors

of omission and commission that permeated [the final] re-sentencing proceeding, [the]

aggravating circumstance would never have been found because its absence is apparent once the

true facts of the case are taken into account.” Pet at 87. The Court declines to assess Greene’s

claim regarding insufficient evidence of an aggravating circumstance against the backdrop of

other claims, as each habeas claim must stand or fall on its own. Middleton v. Roper, 455 F.3d

838, 851 (8th Cir. 2006)(citations omitted).

On direct appeal from his final sentence, Greene argued that the State failed to present

substantial evidence to prove that he committed Burnett’s murder in an especially cruel or

depraved manner. Greene argued that the only evidence indicating that Burnett endured mental

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anguish, abuse, or torture was Dr. Malak’s testimony, which Greene argued had been improperly

admitted, and he also argued that there was no state-of-mind evidence proving that he committed

the murder in an especially depraved manner. The Arkansas Supreme Court held that Dr.

Malak’s testimony provided substantial proof of depraved intent and noted that such intent must

usually be inferred from the circumstances surrounding the killing.32 Greene v. State, 343 Ark.

526, 541, 37 S.W.3d 579, 589 - 590 (2001).

A federal court’s review of a state court’s finding of facially-constitutional aggravating

circumstance is governed by the “rational factfinder” standard, which inquires whether, viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the existence of the aggravating circumstance beyond a reasonable doubt. See Lewis v.

Jeffers, 497 U.S. 764, 781-782, 110 S.Ct. 3092, 3102-3103 (1990). “[A] federal habeas corpus

court faced with a record of historical facts that supports conflicting inferences must

presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any

such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson v. Virginia,

443 U.S. 307, 326, 99 S.Ct. 2781, 2793 (1979). Applying this standard, the Court finds that

any rational trier of fact could have found that Greene committed Burnett’s murder in an

especially cruel or depraved manner.

Claim XIII - Prosecutor’s Conflict of Interest

With Claim XIII, Greene claims that he was denied a fair final re-sentencing trial

32
Greene contends that the state supreme court “agreed” that there was insufficient
evidence that he murdered Burnett in an especially cruel manner, but the court made no such
finding and simply did not address the issue.

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because the prosecuting attorney had a conflict of interest, which arose from events that occurred

during the pretrial phase of the first re-sentencing trial.

Greene discharged the first attorney that he retained to represent him at his first re-

sentencing, and he indicated that he did not want the assistance of a public defender. As a stop-

gap measure, on October 10, 1995, the trial court appointed public defenders Pearson and David

Gibbons (“Gibbons”) to represent Greene in the event that he needed them. See Resp’t Ex. F2 at

265, see also Greene v. State, 335 Ark. 1, 27-28, 977 S.W.2d 192, 205 (1998). Subsequently,

Greene retained attorney Dale Adams (“Adams”) to represent him, and on November 9, 1995,

Adams entered an appearance on Greene’s behalf and filed a motion for a continuance, which

was granted. In an order entered January 31, 1996, the trial court stated that Greene had

discharged Adams, and it reappointed Pearson, but not Gibbons, to represent Greene. See Resp’t

Ex. F4 at 427.

Gibbons served as a prosecutor in Greene’s final re-sentencing trial, and Pearson served

as defense counsel. During a pretrial hearing held April 16, 1999, Gibbons alerted the trial court

that he had been appointed to represent Greene in the first re-sentencing proceedings. Gibbons

told the trial court that he had no involvement in the case before Greene retained Adams, and

Pearson corroborated Gibbons’s account and stated that Gibbons took no part in Greene’s

defense. See Resp’t Ex. F15 at 144.

In support of his conflict-of-interest claim, Greene charges that Gibbons violated a duty

of loyalty to him and “created the potential for the improper use of confidential information

gleaned during his representation of Petitioner.” Pet. at 91. The State argues that Greene’s

failure to pursue this claim in state court creates a procedural bar to federal habeas review, and

Greene asserts ineffective assistance of trial and appellate counsel as cause for his procedural

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default.

The undisputed facts confirm that Gibbons did not actively represent Greene during his

first re-sentencing proceedings. Furthermore, Greene alleges no facts indicating that Gibbons

engaged in misconduct that infected his final re-sentencing proceedings with such unfairness as

to render his sentence a denial of due process. Greene’s claim that Gibbons operated under a

conflict of interest is without merit, and counsel’s failure to object to Gibbons’s participation at

trial or present the issue on appeal did not amount to incompetent representation.

Claim XIV - Mental Retardation Precludes Execution

Greene withdrew the claim that he is ineligible for the death penalty under Atkins v.

Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002).

Claim XV - Mental Impairments Preclude Execution

Under Claim XV, Greene argues that he suffers from a combination of mental

impairments that render him ineligible for capital punishment, and he seeks “ an extension of

Roper v. Simmons, 543 U.S. 551, 568, 125 S. Ct. 1183, 1194 (2005), and Atkins v. Virginia, 536

U.S. 304, 321, 122 S. Ct. 2242, 2254 (2002), to claims of mental illness.” Traverse at 20. In

Atkins, the Supreme Court held that the execution of a mentally retarded criminal is cruel and

unusual punishment precluded under the Eighth Amendment, and in Roper, the Court held that

the Eighth Amendment forbids the execution of a person for conduct that occurred before the

offender was eighteen years old.

Respondent asserts procedural default, and Greene contends that default is excused

because “[n]either Roper nor Atkins had been decided at the time of . . . trial, direct appeal, or

state postconviction proceedings.” Traverse at 20-21. In Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct.

2901, 2910 (1984), the Supreme Court held that a claim that “is so novel that its legal basis is not

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reasonably available to counsel” may constitute cause for a procedural default. Under Reed,

“when . . . later-adopted . . . rules of constitutional law give rise to a claim cognizable in habeas

corpus proceedings, a federal court is not precluded from considering an issue that the defendant

defaulted in the state courts . . . ” Ashker v. Class, 152 F.3d 863, 871 (8th Cir. 1998). Here,

Greene cannot show cause under Reed because neither Atkins nor Roper, which prohibit the

execution of specific categories of offenders,33 address whether executing a person with a

combination of mental impairments violates the Eighth Amendment’s prohibition of cruel and

unusual punishment. Even if Greene’s claim were properly exhausted, which it is not, the

Supreme Court has never held that the Constitution prohibits the execution of the mentally ill,

and Greene’s claim is without merit.

Claim XVI - Customary International Law

With Claim XVI, Greene argues that his death sentence was obtained in violation of

customary international law, or the customs and usages of civilized nations, which prohibits the

execution of mentally disordered individuals. Respondent asserts, and the Court agrees, that this

claim is procedurally barred and completely without merit.

Claim XVII - Constitutionality of Sentencing Provision

Under Claim XVII, Greene argues, as he did in state court, that the capital sentencing

scheme in Arkansas is unconstitutional because is constrains the jury’s ability fully consider all

33
In Graham v. Florida, 560 U.S. 48, 60-61, 130 S.Ct. 2011, 2022 (2010), the Supreme
Court explained that the “categorical rules” prohibiting the death penalty for defendants who are
mentally retarded (Atkins) or who committed their crimes before the age of eighteen (Roper)are
premised on the specific characteristics of the offender.

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mitigating evidence and show mercy to a defendant. Greene also argues that the sentencing

statute fails to distinguish between capital and first degree murder, risking an arbitrary

sentencing decision.

The Arkansas Supreme Court correctly rejected Greene’s first argument, see Greene v.

State, 335 Ark. 1, 32, 977 S.W.2d 192, 207 (1998), which has also been rejected by the Eighth

Circuit. See Williams v. Norris, 576 F.3d 850, 869 (8th Cir. 2009); Singleton v. Lockhart, 962

F.2d 1315, 1323 (8th Cir.1992); Simpson v. Lockhart, 942 F.2d 493, 49697 (8th Cir.1991). As

for Greene’s second point, it is unclear how the argument is applicable to his case, and in any

event, he failed to present it in state court. For these reasons, Claim XVII will be dismissed.

Claim XVIII - Cumulative Effect of Errors

For Claim XVIII, Greene asks the Court to “examine the errors set forth above

cumulatively, and cumulatively assess their prejudicial effect.” Pet. at 107. The Eighth Circuit

has unequivocally held that “cumulative error does not call for habeas relief, as each habeas

claim must stand and fall on its own.” Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir. 1990)(citing

Byrd v. Armontrout, 880 F.2d 1, 11 (8th Cir.1989)). The Court of Appeals has repeatedly

recognized that “‘a habeas petitioner cannot build a showing of prejudice on a series of errors,

none of which would by itself meet the prejudice test.’” Middleton v. Roper, 455 F.3d 838, 851

(8th Cir. 2006)(quoting Hall v. Luebbers, 296 F.3d 685, 692 (8th Cir.2002)). Given this

precedent, Greene’s claim fails as a matter of law.

Claim XIX - Ineffective Assistance of Appellate and Post-Conviction Counsel

Under Claim XIX, Greene claims that he received ineffective assistance of appellate and

postconviction counsel. He argues that counsel’s errors, separately and cumulatively, excuse

any failure to comply state procedural requirements and entitle him to a second chance at a direct

100

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appeal and postconviction review in state court.

Ineffective Assistance of Post-conviction Counsel. To the extent that Greene invokes

ineffective assistance of postconviction counsel as an independent ground for habeas relief, the

AEDPA expressly prohibits a federal habeas court from granting substantive relief on the basis

of a lawyer’s ineffectiveness in post-conviction proceedings. See 28 U.S.C. § 2254(i).

To the extent that Greene relies on the ineffectiveness of post-conviction counsel to

excuse his failure to comply with state procedural rules, his argument fails. Greene faults post-

conviction counsel, Jeff Rosenzweig, for failing to conduct a thorough investigation regarding all

possible grounds for postconviction relief, and he cites Rosenzweig’s performance as cause for

the procedural default of his claims for ineffective assistance of guilt-phase counsel (Claim I),

ineffective assistance of sentencing-phase counsel (Claim IX), and ineffective assistance of

direct-appeal counsel (Claim XIX). For reasons previously explained, Greene’s ineffective-

assistance-of- trial-counsel claims, Claims I and IX, are without merit and do not warrant an

evidentiary hearing. Furthermore, the Martinez equitable exception to the procedural default

rule is limited to claims of ineffective assistance at the trial level, and it does not extend to

claims of deficient performance by appellate counsel.34 See Dansby v. Hobbs, 766 F.3d 809, 833

(8th Cir. 2014); Reed v. Stephens 739 F.3d 753, 778 n.16 (5th Cir. 2014)(declining to extend

34
The equitable rule announced in Martinez is aimed at protecting a criminal defendant’s
Sixth Amendment right to effective assistance of counsel at trial, before judgment is entered.
See Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012)(noting that the limited nature of the
qualification to Coleman adopted in Martinez “reflects the importance of the right to the
effective assistance of trial counsel”). The Martinez Court noted the “inability to present a claim
of trial error is of particular concern when the claim is one of ineffective assistance of counsel”
and that the “right to effective assistance of counsel at trial is a bedrock principle in our justice
system.” Martinez, 132 S.Ct. at 1317.

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Martinez to ineffective-assistance-of-appellate-counsel claims); Hodges v. Colson, 727 F.3d 517,

531 (6th Cir.2013)(“Under Martinez’s unambiguous holding . . . ineffective assistance of

post-conviction counsel cannot supply cause for procedural default of a claim of ineffective

assistance of appellate counsel.”); Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir.

2012)(stating that Martinez does not apply to deficient performance by appellate counsel). But

see Ha Van Nguyen v. Curry, 736 F.3d 1287, 1296 (9th Cir. 2013)(holding that Martinez extends

to ineffective-assistance-of-appellate-counsel claims).

Ineffective Assistance of Appellate Counsel. In his traverse, Greene charges that his state

appellate counsel failed to fully brief the following claims set forth in his federal habeas petition:

Claim II (Greene’s claim that the trial court failed to sua sponte declare a doubt as to his

competency); Claim III (suppression of illegally-obtained statements), Claim IV (deprivation of

competent expert assistance), Claim VIII (prosecutorial misconduct), Claim X (specifically,

Greene’s claim regarding the exclusion of mitigating evidence), and Claim XIII (prosecutor’s

conflict of interest). Greene argues that the aforementioned claims were plainly meritorious such

that counsel’s failure to pursue them amounted to constitutionally deficient performance.

Greene fails to satisfy the elements of a Sixth Amendment claim based on ineffective

assistance of appellate counsel. “Where, as here, ‘appellate counsel competently asserts some

claims on a defendant's behalf, it is difficult to sustain a[n] ineffective assistance claim based on

allegations that counsel was deficient for failing to assert some other claims.’” Gray v. Norman,

739 F.3d 1113, 1117-1118 (8th Cir. 2014)(quoting Link v. Luebbers, 469 F.3d 1197, 1205 (8th

Cir. 2006)). The role of appellate counsel is to “winnow the available arguments and exercise

judgment about which are most likely to succeed on appeal.” Id. “‘Generally, only when ignored

issues are clearly stronger than those presented, will the presumption of effective assistance of

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counsel be overcome.’” Id.(quoting Link, 469 F.3d at 1205).

Green does not compare the strength of the claims raised on appeal with the claims he

now says counsel should have raised; he merely contends that the claims not presented were

“were plainly meritorious.” Gray v. Norman 739 F.3d 1113, 1118 (8th Cir. 2014)(“Gray does

not support his challenge to counsel's performance by comparing the claims raised on appeal

with the claim that he now says should have been raised, so we have no basis to say that

counsel's winnowing process was performed incompetently.”). And, for reasons previously

explained, the Court finds that the claims at issue are without merit. Accordingly, Greene is

unable to demonstrate deficient performance or prejudice under the Strickland standard.

V. Conclusion

For the reasons stated, the Court finds that Greene’s petition for writ of habeas corpus

should be and it is hereby denied in its entirety. Judgment will be entered accordingly.

IT IS SO ORDERED THIS 27th DAY OF MARCH, 2015.

/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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

THIS IS A CAPITAL CASE

JACK GORDON GREENE *
*
Petitioner *
*
VS. * NO: 5:04CV00373 SWW
*
LARRY NORRIS *
*
Respondent *

ORDER

Petitioner Jack Gordon Greene (“Greene”), a death row inmate in the custody of

the Arkansas Department of Correction, brought this action seeking habeas corpus relief

pursuant to 28 U.S.C. § 2254. By opinion and order of dismissal and judgment entered

March 27, 2015, the Court dismissed Greene’s petition in its entirety, and by order

entered October 20, 2015, the Court denied Greene’s motions to vacate and set aside.

Greene has filed a notice of appeal [ECF No. 237] and a motion for a certificate of

appealability [ECF No. 236], and Respondent has filed a response in opposition [ECF No.

240]. After careful consideration, and for reasons that follow, the motion for a certificate

of appealability is denied.

This Court’s order of dismissal and judgment denying habeas relief is subject to

review on appeal. See 28 U.S.C. § 2253(a). However, unless this Court or the Court of

Appeals issues a certificate of appealability, an appeal may not be taken. See 28 U.S.C.

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§ 2253(c)(1)(A). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability will issue

only where a petitioner has made a “substantial showing of the denial of a constitutional

right.” See Miller–El v. Cockrell, 537 U.S. 322, 335–36, 123 S.Ct. 1029 (2003). Where a

district court has rejected the constitutional claims on the merits, the showing required is

straightforward: “The petitioner must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000).

With respect to claims that are procedurally barred, the petitioner must

demonstrate both “‘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 the district court was correct in its procedural ruling.’” Khaimov

v. Crist, 297 F.3d 783, 785(8th Cir. 2002)(emphasis in original)(quoting Slack v.

McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595 (2000)). In determining whether a

certificate of appealability should issue in this context, a district court must consider the

following factors: “(1) if the claim is clearly procedurally defaulted, the certificate should

not be issued; (2) even if the procedural default is not clear, if there is no merit to the

substantive constitutional claims, the certificate should not be issued; but, (3) if the

procedural default is not clear and the substantive constitutional claims are debatable

among jurists of reason, the certificate should be granted.” Khaimov, 297 F.3d at

786(citing Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)).

Greene seeks a certificate of appealability on the following claims:

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• Claim I(2), that trial counsel rendered ineffective assistance by failing to fully
investigate and present defenses based on diminished capacity or mental disease or
defect;1

• Claim I(3), that trial counsel rendered ineffective assistance by failing to move for
an evaluation of and a hearing regarding Greene’s competency to stand trial;2

• Claim I(5)(d) (which incorporates allegations set forth under Claim VII, numbered
paragraphs 3 and 11), that trial counsel rendered ineffective assistance by failing to
impeach the testimony of the State’s forensic pathologist, Dr. Fahmy Malak;3

• Claim I(8), that trial counsel rendered ineffective assistance by failing to move for
suppression of Greene’s custodial statements made to law enforcement officers;4

• Claim II, that Greene was mentally incompetent to stand trial at the time of his
initial trial in 1992 and at the time of his final re-sentencing in 1999;5

• Claim III, that the incriminating custodial statements Greene made to law
enforcement officers were involuntary and illegally obtained and that admission of
the statements at guilt and sentencing phases violated Greene’s constitutional
rights;6

• Claim VI(2)(a), that the trial court at resentencing improperly excluded venire
member Betty Dodge;7

1
See Pet. 9-16, Order of Dismissal 31-36.
2
See Pet. 16, Order of Dismissal 37-38.
3
See Pet. 19, Order of Dismissal 43-46 (Claim I(5)(d)). Greene contends that allegations
set forth in the Petition under Claim VII, numbered paragraphs 3 and 11, serve as separate,
stand-alone, ineffective-assistance-of-counsel claims. However, for reasons stated in this order,
the Court finds that those allegations are part of Claim I(5)(b).
4
See Pet. 21, Order of Dismissal 56-59.
5
See Pet. 23-26, Order of Dismissal 59-61.
6
See Pet. 26-29, Order of Dismissal 61-63.
7
See Pet. 35-36, Order of Dismissal 65-68.

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• Claim VII(6), that the admission of Dr. Malak’s deposition testimony at
resentencing violated Greene’s right to confront witnesses against him;8

• Claim VIII(4)(a), that the prosecution failed to disclose material exculpatory and
impeachment evidence regarding Dr. Malak;9

• Claim IX(5)-(7), that resentencing trial counsel provided ineffective assistance by
failing to adequately investigate and present evidence regarding Greene’s mental
health;10

• Claim IX(8)(a), that resentencing trial counsel rendered ineffective assistance by
failing to investigate and present mitigation evidence;11

• Claim IX(8)(c), that resentencing trial counsel rendered ineffective assistance by
failing to make proper objections regarding the testimony of Edna Burnett;12

• Claim IX(8)(e), that resentencing trial counsel rendered ineffective assistance by
failing to move for an evaluation and hearing regarding Greene’s competency to
stand trial;13

• Claim IX(8)(f), that resentencing trial counsel rendered ineffective assistance by
failing to move for suppression of Greene’s custodial statements;14

• Claim IX(8)(g), that resentencing trial counsel rendered ineffective assistance by
failing to investigate Greene’s intellectual disability and seek preclusion of the
death penalty on that ground;15

8
See Pet. 43, Order of Dismissal 69-73.
9
See Pet. 62-65, Order of Dismissal 77-79.
10
See Pet. 67-74, Order of Dismissal 85-87.
11
See Pet. 74-75,Order of Dismissal 80-83.
12
See Pet. 75, Order of Dismissal 84.
13
See Pet. 75-76, Order of Dismissal 85-87.
14
See Pet. 76, Order of Dismissal 87.
15
See Pet. 76, Order of Dismissal 87.

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• Claim X(5), that the trial court at resentencing erred in refusing to admit evidence
regarding a letter to Greene from the victim’s wife, Edna Burnett, stating that she
forgave Greene and desired that he be spared the death penalty;16

• Claim XI(3), that at resentencing, Greene was denied the right to confront and
cross-examine Mrs. Burnett, and the prejudicial and inflammatory nature of her
testimony rendered his trial fundamentally unfair;17

• Claim XIV, that Greene is intellectually disabled and therefore exempt from the
death penalty;18 and

• Claim XVIII, that the Court should conduct a cumulative assessment of whether
constitutional errors occurred and whether such errors were prejudicial.19

Having thoroughly reviewed the record in this case, the Court finds that Greene

has failed to make the requisite showing for a certificate of appealability. First, Claims

I(2), I(3), I(8), IX(5)-(7), IX(8)(a), IX(8)(c), IX(8)(e), IX(8)(f), and IX(8)(g) assert

ineffective-assistance-of-trial-counsel claims which are procedurally defaulted, and after

thorough consideration, the Court found that they lacked potential merit and did not

qualify for the equitable exception under Martinez v. Ryan, 556 U.S. —, 132 S.Ct. 1309

(2012). The Court finds no debatable questions with respect to the Court’s procedural

ruling or findings as to the merit of these claims.

Second, Greene’s Claims II, III, and VIII(4)(a) are procedurally defaulted and

16
See Pet. 82, Order of Dismissal 91-94.
17
See Pet. 84, Order of Dismissal 94-95.
18
See Pet. 92-94, Order of Dismissal 98-99.
19
See Pet. 107-108, Order of Dismissal 101.

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Greene failed to demonstrate cause and prejudice excusing the default or that he is

actually innocent. Because the claims are clearly procedurally defaulted, there is no

basis for a certificate of appealability.

Third, the Court finds that no reasonable jurist would debate the Court’s

conclusion that the Arkansas Supreme Court’s adjudication of Claims VI(2)(a), VII(6),

and X(5) passes scrutiny under 28 U.S.C. § 2254(d).

Fourth, the Court rejected Claim XI(3) on the merits and found that Claim XVIII

fails as a matter of law, and Greene has failed to demonstrate that reasonable jurists

would find this Court’s assessment of these constitutional claims debatable or wrong.

Fifth, the Court finds no basis for a certificate of appealability as to Claim XIV.

For reasons explained at length in the order and opinion entered on October 25, 2012, the

Court found that Greene was competent to withdraw his Atkins claim.

Finally, with Claim VII, Greene charged that the admission of the videotaped

deposition of Dr. Fahmy Malak at his initial trial and resentencing “multiply” violated

his constitutional rights. Greene now contends that Claim VII contains a stand-alone

ineffective assistance of counsel claim based on counsel’s failure to cross-examine Dr.

Malak during the pretrial, videotaped deposition. He asks the Court to “rule on the claim

now and issue a [certificate of appealability] in the event the claim is denied.”20

The Court finds that Claim I(5)(d) subsumes the purported stand-alone ineffective

20
ECF No. 236, at 40.

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assistance claim under Claim VII. Under Claim I(5)(d), Greene specifically incorporated

allegations set forth under Claim VII,21 and he charged that his trial counsel failed to

impeach Dr. Malak’s testimony. As stated in the Court’s order of dismissal, Greene

presented the same claim with his motion for post-conviction review filed in state court,22

where he argued: “Had there been cross-examination or impeachment, the jury would

have learned that Dr. Malak had a history of controversial and inaccurate

determinations.”23 On appeal, the Supreme Court of Arkansas affirmed. See Greene v.

State, 356 Ark. 59, 73-74, 146 S.W.3d 871, 882 (2004). In denying relief under Claim

(1)(5)(d), this Court found that the claim had been adjudicated and denied on the merits in

state court and that the state court decision was neither contrary to, nor an unreasonable

application of, clearly established federal law, as determined by the Supreme Court. The

Court finds no grounds for a certificate of appealability on this claim.

IT IS THEREFORE ORDERED that Petitioner’s motion for a certificate of

appealability [ECF No. 236] is DENIED.

IT IS SO ORDERED THIS 19TH DAY OF FEBRUARY, 2016.

/s/Susan Webber Wright

UNITED STATES DISTRICT JUDGE

21
As suggested in the order of dismissal, the Petition is complicated. Greene’s various
claims and subclaims reference and incorporate other portions of the Petition, making the job of
discerning the precise contours of Greene’s claims unnecessarily difficult.
22
ECF No. 222-1, at 42.
23
Resp’t Ex. J at 14.

7

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PETITIONER’S STATEMENTS DURING COMPETENCY HEARING

During the competency hearing held on October 6–7, 2011, Petitioner

interrupted the proceedings repeatedly. Statements that could not be included in

the Petition are reproduced from the hearing transcripts below.

*****

PETITIONER: Excuse me, Your Honor. Would you ask Dr. Watson to
explain to you what I asked him about a concussion? I
asked him about has he ever treated anybody with
concussion and he said, “Yes. Many times.” I asked him,
“Have you ever treated anybody with percussion
concussion?” No, of course not. That’s what I suffer from, a
percussion concussion.

THE COURT: I am aware that that’s what you say.

PETITIONER: That’s the truth.

THE COURT: And, again, I want you to be quiet, please. When you
interrupt, it shows that you—I mean, you give—let me tell
you this Mr. Greene. When you interrupt, it gives credence
to what Dr. Watson says.

PETITIONER: Whenever you suffer with brain injury as long as I have—
of course Dr. Watson is right on a lot of aspects, but it’s for
brain injury, not from mental illness. He kept describing
the frontal lobe. My frontal lobe hurts so bad I have to stick
my finger in the corner of my eye. I live like that 24/7. I am
not trying to be difficult here, Your Honor, but I can’t just
sit here and, you know, do like this.

THE COURT: I don’t know what will happen in the future with respect to
this proceeding.

PETITIONER: I know what’s going to happen. It’s going to go on with the
Eighth Circuit court.

THE COURT: No. Now, listen. I don’t know what’s going to happen, but
it could—if I rule that you are competent—

1

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PETITIONER: I am competent.

THE COURT: I could rule that you are competent to fire your attorneys,
and that’s what you want to do.

PETITIONER: I tried to fire my attorneys years ago, and you wouldn’t let
me.

THE COURT: Well, I—I had not ruled on your competency, and I still
haven’t. We are not there yet, and we have to proceed. And
I am going to let your lawyers make their record, and I am
going to let the state make its record. And we really don’t—
we don’t have to have you here for that. If you continue to
interrupt—

PETITIONER: Like I said, don’t bring me back because this is entirely a
violation of my constitutional rights.

THE COURT: You have said that on the record, and you will have an
opportunity to take that up later if I permit you to. But I
will direct now that you sit down, if you can, or at least just
be quiet.

PETITIONER: I live like this 24/7, Your Honor.

THE COURT: I don’t care if you stand on your head. Just be quiet, please.

PETITIONER: I have to. I do it about six hours a day to stay this
functional.

ECF No. 188-1 at 75–77.

*****

PETITIONER: Dr. Christina, if I could have provided her with these legal
documents, copies of these legal documents right here, the
evaluation that she gave me would have been pretty
accurate. And these doctors here have just shot her down
like she is nothing.

THE COURT: Well, that’s—actually, this is an adversary proceeding, and
I would expect them to do that. But I have not made a
ruling with respect to the issue of your competency, and
so—and I am not going to make the ruling today.

2

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PETITIONER: I know you’re not. This Court was never provided a copy of
my education, my high school diploma, my—I went to vo-
tech school for several years. Doctor—the doctor up at
Springfield, Missouri, was not provided this information.

THE COURT: Well, that is an argument that you cannot make at this
time. And, again, I direct you just be patient. And you know
when you get up here and act this way, it leads credence to
what Dr. Watson is saying that you—

PETITIONER: Your Honor, this is not an act. This is how I live 24/7.

THE COURT: All right, Mr. Greene, I let you—

PETITIONER: There is not enough delusion, not enough paranoid—

THE COURT: I let you file these documents today.

PETITIONER: —to validate what these people are saying about me.

THE COURT: I think I totally understand your position, and I do think
it’s been consistent throughout the course of your
incarceration.

PETITIONER: So you will understand why I present myself with you
verbally. I have to say something.

THE COURT: You are saying something. Please be quiet so we can get
out of here eventually.

PETITIONER: Please don’t bring me back. And I would like to reiterate
while we are talking here that I be allowed to withdraw my
appeals and have this execution be carried out. These
attorneys have violated my constitutional rights and civil
rights to cover up a felony.

THE COURT: We have to take things a step at a time, and I want you to
understand something.

PETITIONER: I am trying to get you to understand something.

THE COURT: I know you are, but anyway, if you are being mistreated by
the Arkansas Department of Correction with respect to the

3

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way they’re keeping you, this is not the proper forum. The
habeas case is not the proper forum.

PETITIONER: If my lawyers don’t help me, who will? I have to try to help
myself.

Id. at 101–03.

*****

PETITIONER: Let me interrupt you here a minute. In other words, what
this attorney is saying is he can take a deposition in
another case and use it against me to give validation here.
Is that basically what he is saying?

THE COURT: Yeah, that’s what he is saying.

PETITIONER: What part of that is legal?

THE COURT: You are not representing yourself, and so I am not going to
consider what you say at this time. Now, if later on the
Court rules that you are competent and grants your motion
to proceed on your own, if that’s what you file—if you file
that kind of motion.

PETITIONER: Since I have you on the mike here, I need to bring
something to you. I thought about it at recess. I need to
bring it to your attention. Right before you had me sent up
to Springfield, Missouri, I had my sister send you about 45
legal documents—copies of complaints I filed against these
attorneys, copies of grievances I filed with the Department
of Correction, the whole 9 yards of sworn affidavits that I
provided these doctors for them to acknowledge the injuries
to my brain like this. They just—if I had a severed spinal
cord, I wouldn’t be standing here. They just twist things
around. This was referred to my North Carolina case as
being in the aggravated factors, says that there was one
aggravated factor used.

THE COURT: That is a point that you may make.

PETITION: This just goes on and on, Your Honor. If you won’t allow me
to file those documents that my sister sent you, I would like
to have them back before we leave here today.

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THE COURT: I don’t know where they are. I assume that the clerk’s
office—

PETITIONER: I have a letter here saying that she sent them to you. I ask
that they be filed:

THE COURT: I will ask my law clerks to find out where they are if we
have them, but please keep in mind that—and I have said
this a dozen times.

PETITIONER: And I—I am not trying to disrespect you or this Court, Your
Honor.

THE COURT: We are trying to determine your competency.

PETITIONER: But it’s hard to sit here and listen to this go on and on like
this. Nobody will acknowledge me like this. And the
Attorney General’s office, in order to allow these public
defenders to spend this kind of money, has had knowledge
of this for years. Mike Beebe, when he was the Attorney
General, sent me a letter and you have a copy of the sworn
affidavit and a copy of the letter from Mike Beebe sending
me the address to the compliance attorney’s office. I have
written—

THE COURT: I am sure you have, but this is—you are deviating from the
focus of this case.

PETITIONER: I am not deviating from anything.

THE COURT: Yes, sir, you are. And you may not speak in this proceeding.
I keep explaining that to you.

Id. at 126–28.

*****

PETITIONER: Nobody will acknowledge that I am injured here. I am not
mentally incompetent. I am mentally injured. My brain has
been injured for so long, everything is destroyed. I have no
human, physical, or mental function normally left. I live
like this.

5

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THE COURT: All right. Please don’t talk anymore. Let’s proceed. I am
trying to—

PETITIONER: I get the impression that you don’t want to accept the fact.
I have been on the Arkansas death row 20 years. I have
spent 20 years in the North Carolina Department of
Correction before I ever got here. There is no record of me
ever being incompetent up until I got injured and this
Federal Public Defender’s Office took over my case, saying
I am retarded. Excuse me, but I do get angry.

Id. at 140.

*****

PETITIONER: Your Honor, I need to interrupt you here. Shortly before
you sent me to federal prison up in Springfield, Missouri,
my equilibrium was so destroyed that I fell and fractured
my hip and tailbone. It’s still fractured, my hip and
tailbone.

THE COURT: Mr. Greene, I think you told me about that the last time we
were together, and I ask again that you not interrupt this
proceeding.

PETITIONER: I need to—let me confide with my self-appointed attorney
here for a second. May I?

THE COURT: Who is your attorney?

Petitioner: Mr. Lee is.

THE COURT: Well, you said self-employed attorney. I thought if you had
someone you are paying and I didn’t know about it—

PETITIONER: Ask him if he ever treated anybody with percussion
concussion. That’s what I said. Ask him if he ever treated
anybody or diagnosed anybody with brain injury from
percussion concussion.

Id. at 193.

*****

6

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Appendix H

PETITIONER: Your Honor, could I get you to have this doctor read this?
I am not quite sure what he is talking about here. I need
to hear what he has to say about me, especially if I wrote
it.

THE COURT: Well, it’s exhibit—

PETITIONER: I don’t write garbage. Everything I write is in graphic
detail.

THE COURT: Well, I believe that Mr. Braden will show you—or Mr. Lee
will show you—

PETITIONER: Nobody has showed me anything.

THE COURT: —Exhibits 8 and 9, and some of these are probably some of
the things you wanted me to see or ask me about. While
you are looking at them, we are going to have a ten-minute
break.

PETITIONER: If you can finish these proceedings without me, please do
so. I don’t wish to participate in this.

THE COURT: Your lawyers want you here and I might—

PETITIONER: My lawyers are the reason we are here, not because I am
incompetent.

Id. at 207–08.

*****

PETITIONER: I have to interrupt this. You can kick me out if you like, but
Timothy Steven Greene is my eldest son, I haven’t seen him
since he was a child. He is a high school teacher. He has
been a high school teacher for many years. This right here,
I find it just ludicrous, you know? I don’t think a high
school—I don’t think the state board of education out of
North Carolina would allow a person to teach high school
as described by this doctor here, do you? I tried to get these
people subpoenaed out here, but—

DR. WOODS: I am not here to make any comments really on the
evidence.

7

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PETITIONER: This is my family.

THE COURT: Right. And I understand that you object to any evidence
being brought in about your family and I understand that
completely and I know you object to it and—but right now
this is a competency hearing, and I am permitting your
attorneys who actually are trying to work on your behalf.

PETITIONER: No, they’re not.

THE COURT: Well, legally—

PETITIONER: Again, they have never shared nothing with me.

THE COURT: And I understand what you are saying, Mr. Greene, and,
again, please—we need to make a record and I will rule
later, but we need to make a record on this.

PETITIONER: I am trying to make a record, but how can I, how can I not—
how can I sit here and not object to these things?

THE COURT: Personally—not as a judge, but I personally understand.

PETITIONER: If I did that, I really would be incompetent.

THE COURT: I personally understand that you are offended by this.

PETITIONER: It is not a matter of being offended. It’s not being able to
contradict everything that’s being said here. I could do it
really easy if I could get these people on the stand and
present my documentation that I have filed and put
together over the last seven or eight years about these
injuries of mine. A person don’t just get up and become
mentally retarded, incompetent, and the same time I get
injured like this. The Department of Correction has did
nothing to get me medical attention. They did everything
to keep me from getting medical attention.

THE COURT: Please don’t speak any more so we can finish this hearing.

Id. at 219–20.

*****

8

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PETITIONER: I don’t—Your Honor, I got to interrupt again. I don’t get
this. I mean, my father died. He left us all about 40 acres
of land. Where does this chicken coop come from? Where
does this—I mean, I know where it comes from. These
attorneys went into North Carolina and confronted my
family and said, “They’re probably getting ready to kill
Jack. We need to come up with some strategy to save his
life.” And they seem to be starting on some kind of mental
problems. We will dig up all this and all that and this is the
result here, to cover up this crime against me.

THE COURT: Well, I—again—

PETITIONER: This is ridiculous.

THE COURT: —you are not a lawyer in this matter, and I am going—

PETITIONER: But I am very competent.

THE COURT: I am going to let the lawyers make their record.

PETITIONER: (Addressing corrections officers) Don’t bother me. You can
take me out of here if you like.

THE COURT: Go ahead, Mr. Lee. We’re almost through. We are going to
have to leave in a minute—few minutes.

PETITIONER: Please don’t bring me back.

THE COURT: I want you to come back.

PETITIONER: I don’t want to come back. I can’t confront these people. I
have a constitutional right to be able to confront these
people accusing me of these things.

THE COURT: I tell you why I want you to come back. I am not going to
make a ruling from the bench tomorrow, but I want to ask
you some questions about what will happen in the event I
find that you are competent because I need to ask you if I
find that you are competent, I am going to have to make
sure that you are making an intelligent waiver of this right.
And so that is why I want you back here.

9

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Appendix H

PETITIONER: I made that choice when I wrote you that letter and sent
you those documents about a year or so ago requesting that
you allow me to withdraw all these appeals and set my
execution date.

THE COURT: You are putting the cart before the horse.

PETITIONER: I was competent then, and I am competent now.

THE COURT: In the event I find that you are competent—there are a lot
of documents I need to go through and a lot of things I need
to think about, but I want you to be here tomorrow so that
you can assist your lawyers as necessary.

PETITIONER: I can contradict through these documents here and through
the documents I had sent to you. I can contradict
everything these doctors have said and everything these
lawyers have filed. I can contradict it all. Through the ADC
Department of Correction, medical, John Bias ADC
medical director, my correspondence with him, my
correspondence—

THE COURT: If I find you are competent we will proceed to other things.

PETITIONER: I took the right channels to try to get medical treatment, to
try to bring to attention how I had been injured, but that
was just shot off to the wayside. This has gone on for seven
years, Your Honor.

THE COURT: Mr. Greene, I realize that.

PETITIONER: I live like this in so much pain. There is nothing delusional
here. I don’t get paranoid, and I haven’t been delusional
since the mid ’70s since I was experimenting with
hallucinogenic drugs like psilocybin mushrooms and
peyote.

THE COURT: Well, let’s finish this hearing.

Id. at 228–30.

*****

10

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PETITIONER: Your Honor, before we continue here, I need to interrupt
you. I don’t mean no disrespect to this Court. An incident
occurred and I brought it to this attorney’s attention and I
asked him to bring it to your attention first and foremost
and here we are. May I speak? This morning when the
guards came to my cell to get me, Sergeant Jackson and
another officer made the comment about I need to wash the
blood off my face. I made the comment back—I want this
on the record.

THE COURT: It’s on the record.

PETITIONER: I made the comment that I’m not going to help the
Department of Correction validate or cover up the crimes
you people have inflicted against me for the past seven
years. So he leaves, not to bring me to court. Comes back a
little while later, as I knew he would. Hauls me out to the
sallyport and, once we get to the sallyport, there is about
eight or ten officers out there laughing and mocking at me,
all contorted over like you witness in this courtroom. This
black officer makes the comment, “He has got a percussion
concussion,” over and over. Sergeant Jackson speaks up
real loudly and says, “We’re going to send you to hell, and
you are going to be just like that whenever we do.” And I
said, “Not before I make you pay for what you did to me, all
of you, the Department of Correction and the State.”

Well, the van is about 20 yards away. They don’t give me a
wheelchair. This officer here grabs me by the left shoulder,
and Sergeant Jackson grabbed me by the right shoulder,
for which I have a torn rotator cuff and I bring it to his
attention. And he says, “I don’t give a damn about your torn
rotator cuff.” I get to the van, and they make a sexual
gesture as I try to get in the van. This is the Department of
Correction. I just want to bring that to your attention, and
I will do my best not to interrupt today.

THE COURT: All right.

PETITIONER: One more thing and I’ll do my best to do right today. Before
we leave today, I need them documents back, those 45 or
50 documents that my sister sent to you before I was sent
up to Springfield, Missouri. I brought it to your attention—

11

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before we leave here today, that I brought to your attention
yesterday. And you said you would give—

THE COURT: I will ask about that. I will. Let’s make a note of that. Some
of these might be part of this file.

PETITIONER: Part of it is, but all this was sent together. And a lot is not
part of this file. A lot is correspondence and grievances I
filed through the Department of Correction,
correspondence with the ADC medical director and the
medical department, trying to get medical attention.

THE COURT: I am not promising you I am going to be able to find them,
but we are going to look. All right?

PETITIONER: I need them, and the reason I am kind of insistent on it
today is for years my legal outgoing and incoming mail has
been destroyed. And right back there, she has copies of it
that never even make it out of the penitentiary. And I want
to bring this to your attention. I do need those documents.

THE COURT: All right. Well, listen. One thing now that you are talking
to me and before we get started, I have asked you this
before, but I am going to ask you again. If the Court finds
you are competent—

PETITIONER: Yes, ma’am.

THE COURT: —to drop your claim—we call it the Atkins claim; that is,
the claim that you are mentally retarded.

PETITIONER: I am well aware of it.

THE COURT: Okay. Do you understand that if you are mentally—if the
Court finds a defendant mentally retarded, the Court can
grant the petition because it’s unconstitutional to execute
someone who is mentally retarded. Do you understand
that?

PETITIONER: Your Honor—

THE COURT: And this is a big claim to drop. Do you understand?

12

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Appendix H

PETITIONER: I am well aware of all this. I know from the inside out. I am
so competent here, you know—as I have expressed
repeatedly, to be forced to live with such injuries, to be
ridiculed and dehumanized by the state of Arkansas, the
Department of Correction, and these attorneys spend
hundreds of thousands of dollars of the taxpayers’ money—
I would rather be dead by any means necessary than be
forced to live so inhumanely.

THE COURT: May I explain another thing to you, and I know I have said
this before. You are complaining about the way the officers
are treating you. You have complained about it to me
earlier and you complained yesterday and you have
complained about what happened this morning. Do you
understand that this proceeding is not about the conditions
of confinement?

PETITIONER: Yes, ma’am, I do.

THE COURT: So do you understand there are remedies that you could
pursue for unconstitutional conditions of confinement?

PETITIONER: Your Honor, I don’t have means to explore these remedies.
My attorneys have never did anything.

THE COURT: Do you understand these lawyers are not the ones who
would pursue that remedy? They cannot do it.

PETITIONER: That’s my point. I don’t have family out here. I don’t have
any way—I don’t never get a visit. All these lawyers—these
lawyers know this. The Department of Correction knows
this. A lot of the things that these doctors have testified to
actually exist, but they exist from brain injury that I have
suffered five years before I ever talked with them. A lot of
this, these doctors is true, but a lot of it is not because no
one will ever investigate. I could never get an investigation
started on how I got injured like this. I didn’t just get up
one morning. Where was all this when I was being
sentenced to death, not once, not twice, but three times
competently? Where was all this then? It didn’t exist.

THE COURT: I understand what you are saying; however, I am not going
to listen to your complaints now. I have tried to listen to
you.

13

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Appendix H

PETITIONER: I understand.

THE COURT: This is not the proper forum to listen to your complaints
about treatment, and you should not complain about this
lawyer. There is only one in the courtroom because Mr.
Braden no longer represents you. You can’t complain about
Mr. Lee not filing lawsuits about conditions of confinement
because he is paid by the United States to represent you in
this proceeding, and he is not to represent you in what we
call a Section 1983 case, but there are ways you can file
something on your own if you think your—if this is the
case, you may file a lawsuit on your own. We call it pro se.

PETITIONER: I have filed those lawsuits 20 years ago in the state of
North Carolina. The Department of Correction wouldn’t
even provide me with the certificate of service and
verification form that you have to attach to such
documents. My lawyer, the Federal Public Defender’s
office, Didi Sallings, would not provide me with such
document. And she typed it up for me because it has to be
typed. I filed this and paid for it myself. I am just now, 20
years later, getting a copy of why it was all denied.

THE COURT: Okay. I can’t get into that. I want to focus on this matter,
which is your competency to waive your constitutional
rights.

PETITIONER: To waive my rights. It’s my constitutional rights to
withdraw these ludicrous claims of being retarded,
incompetent, and all that, and to have this execution date
set as soon as possible. That’s my request. That’s my
request since Day 1.

THE COURT: Do you understand if you withdraw—

PETITIONER: Completely.

THE COURT: —you will not be able to file it again?

PETITIONER: With all my heart, with all my mind. I understand
completely.

THE COURT: Do you understand the statute of limitations will have run?

14

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Appendix H

PETITIONER: Yes, ma’am.

THE COURT: And you will not be able to file successive—

PETITIONER: Completely, completely.

THE COURT: And do you understand that you might have some
meritorious claims in your habeas petition?

PETITIONER: I understand this completely, Your Honor.

THE COURT: And that you will—the state of Arkansas will be able to set
your execution date, and there will be absolutely no
recourse?

PETITIONER: Yes, ma’am. I understand all this completely.

THE COURT: All right. Well, we are going to get going and determine the
competency then.

PETITIONER: I will do my best not to interrupt. Thank you.

ECF No. 189-1 at 239–45.

*****

PETITIONER: Your Honor, I have to interrupt here. This attorney, Dale
Adams, was retained for a cost of $50,000 to represent me
out here. He was given an ultimatum, “You either help me
extradite—help the state—force the state to live up to the
extradition that got me here, which states on the second
page that I would be transferred back to North Carolina
once my death sentence was set aside, or he would be fired.
I fired him. Another lawyer was retained for a cost of
$10,000. I did the same thing to him. This was after I fired
Didi Sallings for the same thing, and it’s all in the record
affidavit and complaints that I have filed. This is big money
my family paid to those lawyers, and these lawyers aren’t
here where I can confront them over this issue. This is—

THE COURT: All right. Again, we’re talking about competence. We’re not
talking about your relationship—

15

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Appendix H

PETITIONER: We’re talking about my competency before I got injured like
this. There is no—

THE COURT: I am here to hear evidence of your competence.

PETITIONER: I apologize for interrupting, but I had to speak. I had to
speak on this issue.

Id. at 254.

*****

PETITIONER: I have to interrupt here. As I have expressed in this court
repeatedly, the Federal Public Defender’s office up until
just recently has never shared any information about my
case with me. They took over my case without my
authorization and my—made me out to be an incompetent
retard and the Eighth Circuit sent all this back five years
later,1 while I am constantly being injured after initially
being injured through my burst in my ear for repeated
slamming of the trap door, until it injured my brain so
severely that my central nervous system has been
destroyed. It took me months to get like this, where I had
to self-contort myself. I have been taken on eight or ten
medical runs to no prevail.

This just goes on and on. What this doctor here is saying,
these lawyers have never shared anything with me. I would
cooperate with these lawyers 100 percent if they would just
investigate something with me instead of making me out
to be something that I am not and using my injuries to do
so.

I apologize, Your Honor. I don’t mean to interrupt, but I
can’t sit here and listen to this.

1Petitioner apparently referred to the return of letters he sent to the Eighth Circuit. The
Eighth Circuit has only been asked to consider Petitioner’s case twice. In 2010, the Eighth
Circuit dismissed an interlocutory appeal from the district court’s order sending Petitioner
to the federal medical center. ECF No. 113. And in 2016 it declined to issue a CoA. The
Eighth Circuit has never considered the merits of Petitioner’s habeas claims.

16

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Appendix H

THE COURT: Okay. We’re going to have a break for ten minutes.

Id. at 276–77.
*****

PETITIONER: Your Honor, I have to object.

THE COURT: Please don’t—don’t interrupt.

PETITIONER: As I expressed before, I fired all these attorneys for one
reason and one reason only. They would not help me force
the state of the Arkansas Department of Correction to live
up to the executive agreement of my extradition hearing
which states clearly on the second page once my sentence
of death is overturned, I am supposed to be transferred
back to the state of North Carolina. I was kept here, and
they used the same aggravating factors that these doctors
have disputed all along through the reports to sentence me
to death competently—not once, not twice, but three times.

THE COURT: I must ask that you be quiet. Go ahead.

PETITIONER: I have to interfere here.

THE COURT: I understand your frustration.

PETITIONER: It’s not frustration. It’s factual. It’s evidence. It’s
documents.

THE COURT: Well, I am not talking about that now. We are talking about
something else.

Id. at 278.

*****

PETITIONER: Your Honor, you will have to remove me. I can’t—here is a
letter, a certified mail, return receipt request, from an
attorney in Fayetteville, Arkansas, sent me several years
ago with a legal deadline of about three or four days to
reply, signed for by the Department of Correction, signed
for—this return receipt was never sent back to this
attorney. I still have it right here, signed. This is how they
do my legal mail. This was pertaining to my kid that lives

17

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Appendix H

in Arkansas, in Fayetteville, has been up there for
something like 15 years. This is how they destroy my legal
mail. I got this back five days later, when it was too late,
off the floor in the Department of Correction.

THE COURT: Let me explain something to you. I want Dr. Woods to
testify without your interrupting him. And quite frankly,
your interruptions tend to in fact support his theory.

PETITIONER: But right here dissupports his theory. This is legal mail,
signed legal mail from an attorney with a return receipt
that’s certified, registered mail.

THE COURT: And I understand what you are saying. Go ahead.

PETITIONER: And the fact that this was destroyed by the Department of
Correction and just tossed in the trash, for which the guard
and I signed for, my kids—I lost all parental rights to my
kids three or four days later. This was on a deadline. They
was going to have to take me up to Fayetteville. So this is
how they do my legal mail, Dr. Woods.

Id. at 280–81.

*****

PETITIONER: Your Honor, my North Carolina case was used to sentence
me to death the first time as well as the second time. As a
matter of fact, the prosecution in Arkansas brought family
members out here unknowingly what—to testify against
me—not knowing that they had a choice. They didn’t have
to testify.

THE COURT: Whether it is or not is something that—it’s up to me to look
at the record and determine because I am going to rely on
the record.

PETITIONER: The prosecution led my family to believe they had to come
testify against me, and by law no family member is
obligated to testify against another family member.
Besides, they had nothing to do with this case out here, but
yet they led my family to believe—

THE COURT: Mr. Greene—

18

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Appendix H

PETITIONER: Just like the attorneys led my family to believe they could
go in there and make me out to be all this, and I am not.

THE COURT: I must ask you to be quiet. I don’t need to worry about that
point today. It’s being used in examination of Dr. Woods to
make—

PETITIONER: All these allegations that are being used against me here
are absolutely false. I mean, the records show differently.
They jump from the first death sentence to the last death
sentence. I have been competently sentenced three times. I
repeat that over and over. North Carolina was used to get
me the death sentence the first time. That’s when my death
sentence was overturned because my North Carolina case
was overturned. It automatically overturned my death
sentence out here. I was supposed to be taken back to North
Carolina, but instead, I was kept here to be sentenced
repeatedly, competently.

THE COURT: This can be something the Court could look at perhaps in
examining—in determining your petition on other grounds.
Right now we’re here and I have told you this a dozen
times—

PETITIONER: If I have anything to do with it, there are not going to be
any more grounds.

THE COURT: We are here on your competence, and I will have to ask you
to be quiet. I am losing patience with you.

PETITIONER: I asked you yesterday not to bring me here. It is impossible
to sit here and listen to this. These attorneys are supposed
to be helping me. (Addressing guards) Don’t bother me.

THE COURT: I know that you disagree, but they think that they are
helping you because they’re trying to save you from
execution because, if they’re successful in getting the Court
to grant your habeas petition—

PETITIONER: The only reason I was taken on all these medical runs Dr.
Woods just described is because of the complaints I filed
with the equivalents of the bar association on these
attorneys. They would never properly diagnose me. They

19

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Appendix H

would never give me an MRI scan correctly and forward it
to UAMS.

THE COURT: Would it help you be quiet if I explained to you that what
you are doing is really, by these outbursts, is really lending
some credibility to Dr. Woods’ testimony.

PETITIONER: I apologize, Your Honor. That’s—that’s not my intentions
here. My intentions is to expose this for what it is. I can’t
just sit here and let this go on like this. This is all incorrect.

THE COURT: Do you want to be excused?

PETITIONER: I would like to be able to stay here and hear what Dr. Pietz
has to say.

THE COURT: If you want to do that, please be quiet.

Id. at 287–89.

*****

PETITIONER: Your Honor, may I weigh in here just for a second, please?
Dr. Pietz will validate what I am saying here. The question
that my attorney is asking her is what evidence was I able
to provide this doctor of these injuries that I have been
complaining about for the last seven years. As I explained
to this doctor, the reason that I didn’t finish these tests that
she was asking me to do is because I had nothing
whatsoever to substantiate the claims that I was saying
about the Department of Correction and these attorneys.
And the reason that is, I was not allowed to take any
documentation with me whatsoever to the federal prison
up there, and I expressed this to the doctor several times. I
would be glad to take these tests, anything you have if I
had the proof, which is in these documents, to substantiate
the claim that I was making against why I was contorted
and all that.

THE COURT: Well, you are not here to testify right now. Now, if you want
to testify—

PETITIONER: I just—

20

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Appendix H

THE COURT: —and your lawyers agree that you should, we will put you
under oath and let you testify if that’s—but, again, you are
really not in control of this proceeding. Your attorneys are
in control of the evidence you present and the state is in
control of the evidence it presents and I try to control the
flow of the evidence. But you cannot testify in this right
now.

PETITIONER: I just wanted to substantiate, get the doctor to substantiate
what I was saying as to why I would not finish those tests
that she was asking because I didn’t have any evidence
with me and I didn’t want to exaggerate what—the reason
that I was there because I had nothing to validate it with.

THE COURT: Well, we can’t—I am going to consider the evidence in this
case, and what you are telling me now is not evidence in
the case.

PETITIONER: I am just—I am trying to get—I am trying to get you to
understand that this is what I shared with the doctor as to
why I couldn’t finish, and this is why I am objecting to
the—

THE COURT: And she has testified why she thought you refused further
tests and so—I have to—I have to go on the tests that you
did complete.

PETITIONER: Well, this is why I didn’t complete them because I didn’t
have anything to substantiate what I was saying about my
injuries.

THE COURT: All right. Thank you.

Id. at 409–11.

21

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Appendix I

REVIEW OF EIGHTH CIRCUIT COA PRACTICE

To determine the rate of CoA denials within the Eighth Circuit, undersigned

counsel and Frankie Alford, a research assistant within the Federal Public

Defender’s Office, reviewed all capital cases within the Eighth Circuit in the

AEDPA era. Because the Eighth Circuit uses only summary orders to grant or deny

CoAs, and because these orders do not appear on Lexis or Westlaw, the researchers

identified the universe of cases by accessing Pacer sites for the district courts within

the Eighth Circuit and entering the Nature of Suit Code for “Habeas Corpus –

Death Penalty” (535). This universe of cases was cross-checked against a list

consisting of (1) known state prisoners who are currently on death row, who have

been removed from death row, or who have been executed in states within the

Eighth Circuit that have the death penalty (Arkansas, Missouri, Nebraska, North

Dakota) and (2) known federal prisoners who have received the federal death

penalty in a state within the Eighth Circuit.

Once they identified the cases, the researchers searched each docket for

“certificate of appealability” to determine whether the district court ruled on a CoA.

The researchers then followed the case to the related Eighth Circuit docket, where

they once again searched “certificate of appealability” to determine whether the

Eighth Circuit ruled on a CoA. Only CoAs from denials of first petitions was

included. Thus, if the prisoner requested a CoA from denial of a successive petition

that the Eighth Circuit had not authorized—for example, a Rule 60(b) motion in

1

168a
Appendix I

advance of the prisoner’s execution—that ruling was excluded from the calculation.1

Nor does the tally include requests for CoA expansion, whether in the district court

or the Court of Appeals, after a CoA was granted. If the Eighth Circuit remanded

for further proceedings on an initial habeas petition, any subsequent CoA order was

included.

As noted in the appendix to the petitioner’s brief in Buck v. Davis, No. 15-8049,

among CoA rulings issued since January 1, 2011, a CoA was denied on all claims in

58.9% of cases (76 out of 129) in the Fifth Circuit; 6.3% of cases (7 out of 111) in the

Eleventh Circuit; and 0% of cases (0 of 12) in the Fourth Circuit. As shown by the

chart below, a CoA was denied in 10 out of 21 cases, or 47.6%, in the Eighth Circuit.

When federal death-penalty cases are removed from the equation, the denial rate

declines marginally: among § 2254 petitions, there was a denial in 7 out of 15 cases,

or 46.7%, in the Eighth Circuit.

Movant Jurisdiction Case Numbers Result of Motion
Billie Allen Federal 07-27 (E.D. Mo.) Granted, Circuit
(Missouri) 14-3495 (8th Cir.)
Roger Coulter Arkansas 01-1125 (W.D. Ark.) Granted, District
16-1488 (8th Cir.)
Kimber Edwards Missouri 06-1419 (E.D. Mo.) Granted, District
11-1092 (8th Cir.)
Earl Forrest Missouri 09-8002 (W.D. Mo.) Granted, District
12-2888 (8th Cir.)
Paul Goodwin Missouri 06-848 (E.D. Mo.) Denied2
10-2816 (8th Cir.)

1 See, e.g., Clay v. Bowersox, 628 F.3d 996 (8th Cir. 2011) (denying CoA to appeal denial of
pre-execution “supplemental petition”).

2In Goodwin’s case, the Eighth Circuit initially granted a CoA on one claim but quashed
the CoA before the appeal was briefed. See Order, Goodwin v. Roper, No. 10-2816 (8th Cir.
Feb. 28, 2011).

2

169a
Appendix I

Jack Greene Arkansas 04-373 (E.D. Ark.) Denied
16-1456 (8th Cir.)
Dustin Honken Federal (Iowa) 10-3074 (N.D. Iowa) Denied
14-1329 (8th Cir.)
Alvin Jackson Arkansas 03-405 (E.D. Ark.) Granted, District
16-1847 (8th Cir.)
Ernest Johnson Missouri 11-8001 (W.D. Mo.) Denied
13-3162 (8th Cir.)
Tim Kemp Arkansas 03-55 (E.D. Ark.) Granted, District
15-3849 (8th Cir.)
Danny Lee Federal 06-1608 (E.D. Ark.) Granted, District
(Arkansas) 11-1380 (8th Cir.)
Ledell Lee Arkansas 01-377 (E.D. Ark.) Denied
14-1363 (8th Cir.)
John Lotter Nebraska 04-3187 (D. Neb.) Denied
11-2223 (8th Cir.)
Scott McLaughlin Missouri 12-1464 (E.D. Mo.) Denied3
Keith Nelson Federal 04-8005 (W.D. Mo.) Denied4
(Missouri) 15-3160 (8th Cir.)
Arboleda Ortiz Federal 04-8001 (W.D. Mo.) Denied5
(Missouri) 13-3399 (8th Cir.)
Wesley Purkey Federal 06-8001 (W.D. Mo.) Granted, Circuit
(Missouri) 10-3462 (8th Cir.)
Charles Rhines South Dakota 00-5020 (D.S.D.) Granted, District
16-3360 (8th Cir.)
Andrew Sasser Arkansas 00-4036 (W.D. Ark.) Granted, District
11-3346 (8th Cir.)
Richard Strong Missouri 08-1917 (E.D. Mo.) Granted, Circuit
11-3046 (8th Cir.)
David Zink Missouri 09-8001 (W.D. Mo.) Denied
11-1641 (8th Cir.)

3 The district court granted McLaughlin penalty-phase relief on two claims and denied the
petition and a CoA on all other claims. As of December 21, 2016, appellate proceedings
(including any request for a CoA on cross-appealed claims) hadn’t begun.

4As of December 21, 2016, Nelson’s petition for rehearing from the order denying a CoA is
pending in the court of appeals.

5 Ortiz filed a petition for a writ of certiorari on Dec. 4, 2014. The government has received
sixteen extensions of time in which to file its brief in opposition, which is currently due
January 19, 2017. See Ortiz v. United States, No. 14-7506 (U.S.).

3

170a
Appendix I

The researchers reviewed each Eighth Circuit order denying a CoA where the

district court had also denied a CoA. With the exceptions noted below, each order is

identical: “This appeal comes before the court on appellant’s application for a

certificate of appealability. The court has carefully reviewed the original file of the

district court, and the application for a certificate of appealability is denied. The

appeal is dismissed.”6

In cases where the Eighth Circuit denied a CoA, the researchers also reviewed

the dates between the Eighth Circuit’s order and the initial CoA motion, the

respondent’s response brief (if any), and the petitioner’s reply brief (if any):

Movant Filing Dates Time from Time from Time from
Motion to Response to Reply to
Denial Denial Denial
Jack Greene Motion: 4/15/16
Response: 5/24/16
Reply: 5/31/16 49 days 10 days 3 days
Denial: 6/3/16
Dustin Honken Motion: 4/4/14
Response: None
Reply: None 28 days N/A N/A
Denial: 5/2/14
Ernest Johnson Motion: 10/22/13
Response: 10/24/13
Reply: 10/31/13 50 days 48 days 41 days
Denial: 12/11/13
Ledell Lee Motion: 6/17/14
Response: 7/30/14
Reply: 9/3/14 97 days 54 days 19 days
Denial: 9/22/14

6In John Lotter’s case, one judge appended a dissent noting that he would have granted a
CoA on five issues. In Dustin Honken’s case, the court of appeals noted at the end of the
order’s second sentence that the CoA was denied “in its entirety.” And, as previously noted,
the order in Paul Goodwin’s arose from a motion to quash rather than from a CoA motion.
The Eighth Circuit’s denial orders are attached as Appendix J.

4

171a
Appendix I

John Lotter Motion: 7/5/11
Response: 7/22/11
Reply: 7/29/11 49 days 32 days 25 days
Denial: 8/23/11
Keith Nelson Motion: 2/29/16
Response: 6/27/16
Reply: 8/18/16 199 days 80 days 28 days
Denial: 9/15/16
Arboleda Ortiz Motion: 1/15/14
Response: 2/26/14
Reply: None 57 days 15 days N/A
Denial: 3/13/14
David Zink Motion: 5/24/11
Response: 7/1/11
Reply: None 58 days 20 days N/A
Denial: 7/21/11

These numbers produce the following averages: 73.4 days from the date the CoA

motion was filed to the date a CoA was denied; in cases where the respondent filed a

response, 37 days from the date the response was filed to the date a CoA was

denied; in cases where a reply was filed, 23.2 days from the date the reply was filed

to the date a CoA was denied; and, in all cases, 22.4 days from the date of the final

filing—whether that filing was the motion, the response, or the reply—and the date

a CoA was denied.

5

172a
Appendix J
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

___________________

No: 10-2816
___________________

Paul T. Goodwin

Petitioner - Appellant

v.

Donald P. Roper

Respondent - Appellee
______________________________________________________________________________

Appeal from U.S. District Court for the Eastern District of Missouri - St. Louis
(4:06-cv-00848-HEA)
______________________________________________________________________________

JUDGMENT

Before MURPHY, COLLOTON and GRUENDER, Circuit Judges

The state’s motion to quash the certificate of appealability has been considered by the

court and is granted.

Appellant’s motion to expand the certificate of appealability is denied.

February 28, 2011

Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans

173a
Appellate Case: 10-2816 Page: 1 Date Filed: 02/28/2011 Entry ID: 3760558
Appendix J
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

___________________

No: 11-1641
___________________

David Zink

Petitioner - Appellant

v.

Troy Steele

Respondent - Appellee
______________________________________________________________________________

Appeal from U.S. District Court for the Western District of Missouri - Kansas City
(4:09-cv-08001-RED)
______________________________________________________________________________

JUDGMENT

Before MURPHY, ARNOLD, and SHEPHERD, Circuit Judges

This appeal comes before the court on appellant's application for a certificate of

appealability. The court has carefully reviewed the original file of the district court, and the

application for a certificate of appealability is denied. The appeal is dismissed.

July 21, 2011

Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans

174a
Appellate Case: 11-1641 Page: 1 Date Filed: 07/21/2011 Entry ID: 3809780
Appendix J
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

___________________

No: 11-2223
___________________

John L. Lotter

Petitioner - Appellant

v.

Robert Houston, Warden, Tecumseh State Correctional Center

Respondent - Appellee
______________________________________________________________________________

Appeal from U.S. District Court for the District of Nebraska - Lincoln
(4:04-cv-03187-RGK)
______________________________________________________________________________

JUDGMENT

Before WOLLMAN, MURPHY and BYE, Circuit Judges

This appeal comes before the court on appellant's application for a certificate of

appealability. The court has carefully reviewed the original file of the district court, and the

application for a certificate of appealability is denied. The appeal is dismissed.

Judge Bye would grant a certificate of appealability on the following claims:

1. The ex parte communication between the trial judge, the prosecutor,
and Thomas Nissen’s attorney;

2. The prosecution’s representations concerning whether it had reached
a plea agreement with Nissen on the first day of trial;

3. The trial court’s denial of Lotter’s motion for a continuance;

6. Whether Lotter’s post-conviction counsel provided ineffective
assistance; and

7. Lotter’s actual innocence claims.

August 23, 2011

175a
Appellate Case: 11-2223 Page: 1 Date Filed: 08/23/2011 Entry ID: 3821252
Appendix J

Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans

176a
Appellate Case: 11-2223 Page: 2 Date Filed: 08/23/2011 Entry ID: 3821252
Appendix J
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

___________________

No: 13-3162
___________________

Ernest Johnson

Petitioner - Appellant

v.

Troy Steele

Respondent - Appellee
______________________________________________________________________________

Appeal from U.S. District Court for the Western District of Missouri - Kansas City
(4:11-cv-08001-DGK)
______________________________________________________________________________

JUDGMENT

Before BYE, SMITH, and COLLOTON, Circuit Judges

This appeal comes before the court on appellant's application for a certificate of

appealability. The court has carefully reviewed the original file of the district court, and the

application for a certificate of appealability is denied. The appeal is dismissed.

December 11, 2013

Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans

177a
Appellate Case: 13-3162 Page: 1 Date Filed: 12/11/2013 Entry ID: 4104703
Appendix J
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

___________________

No: 13-3399
___________________

Arboleda A. Ortiz

Movant - Appellant

v.

United States of America

Respondent - Appellee
______________________________________________________________________________

Appeal from U.S. District Court for the Western District of Missouri - Kansas City
(4:04-cv-08001-GAF)
______________________________________________________________________________

JUDGMENT

Before RILEY, BENTON and SHEPHERD, Circuit Judges

This appeal comes before the court on appellant's application for a certificate of

appealability. The court has carefully reviewed the original file of the district court, and the

application for a certificate of appealability is denied. The appeal is dismissed.

March 13, 2014

Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans

178a
Appellate Case: 13-3399 Page: 1 Date Filed: 03/13/2014 Entry ID: 4132992
Appendix J
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

___________________

No: 14-1329
___________________

Dustin Lee Honken

Petitioner - Appellant

v.

United States of America

Respondent - Appellee
______________________________________________________________________________

Appeal from U.S. District Court for the Northern District of Iowa - Ft. Dodge
(3:10-cv-03074-LRR)
______________________________________________________________________________

JUDGMENT

Before RILEY, GRUENDER and SHEPHERD, Circuit Judges

This appeal comes before the court on appellant's application for a certificate of

appealability. The court has carefully reviewed the original file of the district court, and the

application for a certificate of appealability is denied in its entirety. The appeal is dismissed.

May 02, 2014

Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans

179a
Appellate Case: 14-1329 Page: 1 Date Filed: 05/02/2014 Entry ID: 4150218
Appendix J
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

___________________

No: 14-1363
___________________

Ledell Lee

Plaintiff - Appellant

v.

Ray Hobbs, Director, Arkansas Department of Correction

Defendant - Appellee
______________________________________________________________________________

Appeal from U.S. District Court for the Eastern District of Arkansas - Pine Bluff
(5:01-cv-00377-JH)
______________________________________________________________________________

JUDGMENT

Before BENTON, SHEPHERD, and KELLY, Circuit Judges.

This appeal comes before the court on appellant's application for a certificate of

appealability. The court has carefully reviewed the original file of the district court, and the

application for a certificate of appealability is denied. The appeal is dismissed.

September 22, 2014

Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans

180a
Appellate Case: 14-1363 Page: 1 Date Filed: 09/22/2014 Entry ID: 4198890
Appendix J
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

___________________

No: 16-1456
___________________

Jack Gordon Greene

Plaintiff - Appellant

v.

Wendy Kelley, Director, Arkansas Department of Correction

Defendant - Appellee
______________________________________________________________________________

Appeal from U.S. District Court for the Eastern District of Arkansas - Pine Bluff
(5:04-cv-00373-SWW)
______________________________________________________________________________

JUDGMENT

Before WOLLMAN, BOWMAN and SMITH, Circuit Judges.

This appeal comes before the court on appellant's application for a certificate of

appealability. The court has carefully reviewed the original file of the district court, and the

application for a certificate of appealability is denied. The appeal is dismissed.

June 03, 2016

Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans

181a
Appellate Case: 16-1456 Page: 1 Date Filed: 06/03/2016 Entry ID: 4407173
Appendix J
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

___________________

No: 15-3160
___________________

Keith D. Nelson

Movant - Appellant

v.

United States of America

Respondent - Appellee
______________________________________________________________________________

Appeal from U.S. District Court for the Western District of Missouri - Kansas City
(4:04-cv-08005-FJG)
______________________________________________________________________________

JUDGMENT

Before WOLLMAN, SMITH and COLLOTON, Circuit Judges.

This appeal comes before the court on appellant's application for a certificate of

appealability. The court has carefully reviewed the original file of the district court, and the

application for a certificate of appealability is denied. The appeal is dismissed.

September 15, 2016

Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans

182a
Appellate Case: 15-3160 Page: 1 Date Filed: 09/15/2016 Entry ID: 4448453