Roberts v. Payne

Case 5:04-cv-00004-RGK Document 287 Filed 09/20/21 Page 1 of 76

***THIS IS A CAPITAL CASE***

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

KARL DOUGLAS ROBERTS,

Petitioner, NO. 5:04CV0004-RGK

vs.

MEMORANDUM AND ORDER

DEXTER PAYNE, Director,

Arkansas Division of Correction

(originally named as Larry Norris),

Respondent.

This is a habeas corpus case involving the death penalty. It is based on an

amended petition (filing 266; filing 272) submitted in the latter part of 2020 and

briefs submitted in 2020 and 2021. (Filing 267; Filing 277; Filing 286). With over a

thousand pages of record and hundreds of pages of briefs the task of fairly

adjudicating this matter, but with all due deliberate speed, is daunting.

This federal case was started in 2004, but the case did not become ripe in this

court until mid-September of 2021 when Roberts submitted his last brief. I granted

Roberts and Respondent several extensions of time to brief this matter due to the

voluminous nature of the record. For purposes of exhaustion, the matter took 13 or

so years in the state courts as Robert’s superb counsel sought to exhaust his claims

and equally superb counsel vigorously resisted.

The murder occurred on May 15, 1999. His jury trial commenced and ended

in 2000.

After serious deliberation, I have taken a minimalist approach to this opinion

both in substance and in form. Among other things, and as to form, I have decided

Case 5:04-cv-00004-RGK Document 287 Filed 09/20/21 Page 2 of 76

in some circumstances not to insert CM/ECF or Bates stamped citations to the

record. That said, the Master Index, containing various hyperlinks,1 supplies

references to the massive record. My reference to the record throughout this opinion

may be consulted for accuracy via the Master Index (filing 247) together with the

related submissions (filing 243; filing 244; and filing 245.2)

I now find and conclude that the amended petition should be denied with

prejudice. My reasons follow.

CLAIMS

The following 19 claims are asserted:

Claim 1: Roberts is intellectually disabled.

Claim 2: Roberts was not competent to be tried.

Claim 3: Counsel was ineffective in the handling of mental-health issues at the

guilt phase.

Issue 3-1: Counsel was ineffective for failing to challenge Roberts’

competency to be tried.

1

The Arkansas ECF system does not permit users to link to a specific page

within ECF filings. It is possible only to link to the first page of each filing. For each

“exhibit” that contains more than one document, Roberts has prepared an internal

index. When the user clicks on the link provided, it will take him to that internal

index, where he will find additional references to the specific documents listed here.

2

By three separate filings Roberts also broke down the complete record of the

state-court proceedings in Bates-stamped form. Filing 243 contained the pre-Rhines

state-court record. Filing 244 next submitted the post-Rhines state postconviction

proceedings from 2007 to 2016. Lastly, Filing 245 submitted the record of post-

Rhines state postconviction proceedings from 2016 to 2020.

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Issue 3-2: Counsel ineffectively pursued the lack-of-capacity defense.

Issue 3-3: Counsel unreasonably failed to challenge Roberts’ confession on

mental-health grounds.

Claim 4: Counsel was ineffective for failing to adequately investigate,

develop, and present mitigating evidence.

Claim 5: Counsel were ineffective for failing to pursue a change of venue.

Claim 6: Roberts’ conviction and death sentence must be vacated because

individuals on the jury did not meet the constitutional standards of impartiality.

Claim 7: The trial court violated Roberts’ rights by erroneously failing to

exclude jurors, thus depriving Roberts of his full complement of peremptory

challenges and forcing upon him a juror whom he did not accept.

Claim 8: Roberts’ conviction and sentence should be vacated because of

the prejudicial atmosphere in the courtroom.

Claim 9: The prosecutor’s improper closing arguments violated Roberts’

Due Process and Eighth Amendment rights.

Claim 10: The jury’s failure to consider mitigation evidence violated

Roberts’ Eighth Amendment rights.

Claim 11: Trial counsel should have challenged the jury’s failure to

consider mitigation evidence.

Claim 12: The State suppressed material evidence and countenanced false

testimony in violation of Roberts’ due process rights.

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Claim 13: Counsel failed to reasonably respond to prejudicial false

testimony about Roberts’ work history and driving record.

Claim 14: Admission of excessive victim-impact evidence violated

Roberts’ Eighth Amendment Rights.

Claim 15: Roberts’ confession was involuntary.

Claim 16: The overlap between capital murder and first-degree murder

under Arkansas law is unconstitutional.

Claim 17: Appellate counsel was ineffective.

Claim 18: Roberts’ waiver of his direct-appeal rights was unconstitutional.

Claim 19: Roberts is entitled to relief because of the cumulative prejudicial

effect of the errors described herein. (As noted later, this claim has essentially been

abandoned.)

Filing 266 at CM/ECF pp. 2-3.

EARLY BACKGROUND

The early background is found in two published opinions of the Arkansas

Supreme Court. See Roberts v. State, 102 S.W.3d 482 (2003) (“Roberts I”) and State

v. Roberts, 123 S.W.3d 881 (2003) (“Roberts II”). Other information must be

dredged from the record.

I start with the murder. It is horrifying.

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That said, Roberts is intellectually dull. And, to be frank, that is the essence

of this horribly sad case.

A. THE MURDER

Because he confessed3, and that confession was corroborated, there is little

doubt: (1) that Roberts abducted his 12-year-old niece, Andria Brewer, from her

parents’ residence when they were away; (2) that Roberts drove the child to a

secluded spot despite her terrified pleas to be taken home; (3) that he told her that he

was going to “fuck her”; (4) that he held her down as she struggled; (5) that he raped

her (causing significant bruising to her vagina); (6) that Roberts decided to kill the

child because he knew that she could identify him; (7) that he strangled her; (8) that

Roberts covered up her body; and (9) that he threw her clothes away. Roberts I, 102

S.W.3d at 485-86, 494-495.

As a result of Roberts’ confession, the investigators were able to locate the

child’s body in a secluded spot; Roberts’ ability to tell law enforcement where to

find the missing girl confirmed the truth of his confession. Physical evidence also

linked Roberts to the murder. For example, Roberts’ green tank top had blood on it.

According to DNA analysis, the blood on Roberts’ tank top matched the victim’s

blood with a very high degree of confidence.

B. ROBERTS’ MENTAL CAPACITY AS DESCRIBED BY THE

ARKANSAS SUPREME COURT

Regarding Roberts’ mental capacity, the following information is presented

in the opinion of the Arkansas Supreme Court in Roberts I:

* At the time of the murder, Roberts was thirty-one years old. Roberts I, 102

3

He took three polygraphs. The examiner’s opinion was that Petitioner had

not been entirely truthful. After being told that, Roberts confessed both orally and in

writing. An FBI agent was present for and witnessed the confession.

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S.W.3d at 490.

* Testing done by a psychologist for the prosecution (Dr. Mallory) revealed

that Roberts had a full-scale I.Q. of seventy-six. (Id. at 487.) That score placed

Roberts within the borderline range of intellectual functioning. Id.

* According to defense witnesses, Dr. Lee Archer, a neurologist from the

University of Arkansas Medical Center, and Dr. Mary Wetherby, a

neuropsychologist from Texarkana, Arkansas, Roberts had experienced damage to

the frontal lobes of his brain when he was hit by a dump truck at age 12. Id. Both

doctors stated that as a result of the brain injury, Roberts suffered from

hallucinations. Id. Regarding the specifics of the brain injury, magnetic resonance

imaging (MRI) revealed that the accident destroyed one-fifth of Roberts’ right

frontal lobe and damaged other parts of his brain. Id. at 499 (dissent). A significant

part of his right frontal lobe, as well as the medial aspect of his left frontal lobe, and

part of his temporal lobe, were missing. Id. (dissent). While these defense doctors

conceded that Roberts knew right from wrong, they believed that Roberts was unable

to control his emotions and that lack of emotional control was directly responsible

for Roberts raping and murdering the victim. Id. at 487.

* Despite the foregoing, Roberts had graduated high school, could read and

write on a high school level, held the same job for the six years preceding the murder,

and had a wife of ten years and a family. Id.

* Dr. Charles Mallory, a psychologist from the Arkansas State Hospital,

interviewed Roberts, tested him, and reviewed his medical and psychological

records. Among other things, Roberts did very well on the Georgia Court

Competency Test administered by Dr. Mallory, which measures if a person

understands the legal system and the procedures of the trial. Id. Dr. Mallory believed

that Roberts knew the difference between right and wrong and that he had the ability

to conform his conduct to the law. In particular, Mallory came to these conclusions

because Roberts was aware of his actions and because he took steps both before and

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after the killing to avoid apprehension (by driving the girl to a remote location, by

raping and killing her, and then covering her body and throwing away her clothes).

Id. In addition, Mallory also pointed to Roberts’ statement that he decided to kill the

child because he knew that she could identify him. Id.

* Dr. Reginald Rutherford, a clinical neurologist called by the prosecution,

gave an opinion that Roberts’ brain injury did not cause him to do what he did. Id.

The doctor explained that Roberts had no dramatic behavioral problems, that Roberts

was involved in a complex series of actions that culminated in the crime, and that

Roberts’ actions demonstrated that he appreciated the criminality of his conduct. Id.

In Roberts II, the Arkansas Supreme Court reviewed Roberts’ waiver as it

pertained to post-conviction relief. Roberts II, 123 S.W.3d at 881–883. No additional

neurologic, psychiatric or psychological information regarding Roberts’ mental

capacity is presented in that opinion. Id.

C. EARLY STATE COURT TIMELINE4

A time-line, concentrating particularly on the doctors and when certain state

court legal proceedings took place, is helpful. Therefore, the following chronology

is provided.

May 15, 1999: Roberts abducted, raped and killed Andria. Roberts I, 102

S.W.3d at 485.

4

Much of the early state court time line is taken directly from my earlier stay

and abeyance opinion. Roberts v. Norris, 526 F.Supp 2d 926, 930-942 (E.D. Ark.

2007). That opinion contained citations to the record as it existed at that time. I have

omitted citations to the old record which, frankly, was accurate but a mess. While a

mess, recitation of the record as redeveloped in the recent gig is a time waster. In

this opinion, I have quoted the jury verdict form. For that document, I cited to the

recent record because it is both very important and new.

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May 17, 1999: Roberts went to the Polk County Police Station to take a

polygraph examination. Id. at 498 (dissent). After receiving his Miranda warnings,

and about four hours after arriving at the police station, Roberts confessed. Id. Before

he confessed, but after he had been told that a polygraph indicated that he had been

deceptive, Roberts began to cry and told the police “he had done something terrible.”

Id. at 488. A police officer responded, “Get if off your chest, we’ll help.” Id. Roberts’

confession followed.

May 18, 1999: Roberts was charged with “capital murder.”

August 9, 1999 through August 12, 1999: Roberts was examined at the

Arkansas State Hospital. The examination was primarily conducted by Dr. Mallory,

a staff psychologist holding a Ph.D. While a neurologist saw Roberts, no imaging

studies were conducted.

In addition to clinical interviews and other efforts, Mallory administered a

variety of psychological tests, including an MMPI. Although the MMPI results

suggested bizarre thinking and experiences, depressed mood, anxiety and social

avoidance, Mallory did not rely upon the results of that test. He did not rely upon the

MMPI because validity scales showed that Roberts appeared to be over-reporting

psychological problems, appeared to over endorse personal virtues, and because one

scale showed “dissimulation.”

Dr. Mallory found that: (1) at the time of the examination, Roberts was

competent to participate in court proceedings and to assist his counsel; (2) at the time

of the offense, Roberts had the capacity for purposeful conduct, an element of the

offense charged; (3) Roberts had the capacity to appreciate the criminality of his

behavior; and (4) Roberts had the capacity to conform his conduct to the

requirements of the law.

Dr. Mallory declined to provide an Axis I or II diagnosis and listed “History

of Closed Head Injury at age 12” for the Axis III diagnosis. Id. In that regard, Dr.

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Mallory noted and reviewed Roberts’ medical history. Dr. Mallory reported the

following information pertinent to Roberts’ medical history:

Records obtained from the Sparks Regional Medical Center in

Ft. Smith indicated that the defendant was knocked unconscious and

suffered a severe head injury at the age of 13 when his bicycle was

struck by a dump truck. The records indicate that he showed bizarre

behavior and affect due to the closed head injury and improved over

several days of inpatient treatment. He was treated from July 17 to

August 8, 1980 in the hospital. At one point the treatment note by Dr.

Michael Dulligan observed: “His major injury is a skull fracture by

skull X-rays. He was knocked unconscious for a period of time. He is

alert but extremely belligerent. He has had a complete change of

personality based on a blow, probably with bruising to both frontal

lobes and to the temporal lobe which we can see obviously.” He was

noted to initially have headaches and double vision as a result of his

head injury. He ambulated on crutches when he was discharged from

the hospital. His discharge diagnosis was “Left Frontal Skull Fracture

without Depression.” He was seen in follow-up visits for the next year

and observations and notes about his behavior indicated that he was not

having any problems with headaches, seizures, or behavior that would

indicate personality changes.

Dr. Earnest Serrano, a neurologist at the Holt–Krock Clinic,

indicated that the defendant’s parents brought him to that clinic in

January 1990 due to their observations that he had uncontrollable

temper episodes in which he would “shout, scream, and make obscene

gestures at family or people walking down the street.” At the time of

the examination the defendant admitted that he could not keep his urges

of anger under control, but that he did not lose consciousness during the

episodes. Dr. Serrano’s examination concluded that there were no

neurological irregularities and that he thought the symptoms were due

to “behavior disorder, situational stress reaction.” The defendant was

referred to counseling.

August 13, 1999 and August 24, 1999: Dr. Mallory’s report was prepared and

submitted on August 13, 1999. According to the filing stamp on the report, it was

received by the Polk County Circuit Court Clerk on August 24, 1999.

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September 10, 1999: As discussed more thoroughly later, Dr. Wetherby, a

defense expert, examined Roberts on this date.

November 18, 1999: A pretrial hearing on motions, including a hearing to

determine whether Roberts was competent to stand trial, was conducted. Dr. Mallory

was the only witness who testified at the hearing and he testified in a manner

generally consistent with his report. The judge ruled from the bench that Roberts

was competent.

February 10, 2000: As discussed more thoroughly in a moment, Dr. Archer,

a defense expert, examined Roberts on this date.

May 16, 2000-May, 19, 2000: After six days of jury selection, a short trial

took place, the defendant was found guilty, penalty phase evidence was presented,

the jury returned a verdict of death, and Roberts was sentenced to death. The verdict

form, which is reproduced in its entirety, reads as follows:

FORM 1

AGGRAVATING CIRCUMSTANCES

We, the Jury, after careful deliberation, have unanimously

determined that the State has proved beyond a reasonable doubt the

following aggravating circumstance:

(X) The capital murder was committed in an especially cruel

or depraved manner.

A capital murder is committed in an especially cruel manner

when, as a part of a course of conduct intended to inflict mental anguish,

serious physical abuse, or torture upon the victim prior to the victim’s

death, mental anguish, serious physical abuse or torture is inflicted.

Mental anguish is defined as the victim’s uncertainty as to his ultimate

fate. Serious physical abuse is defined as 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

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or organ. Torture is defined as the infliction of extreme physical pain

for a prolonged period of time prior to the victim’s death.

A capital murder is committed in an especially depraved manner

when the defendant relishes the murder, evidencing debasement or

perversion, or shows an indifference to the suffering of the victim and

evidences a sense of pleasure in committing the murder.

[Signed by the Foreman]

FORM 2

MITIGATING CIRCUMSTANCES

A. (X) We unanimously find that the following mitigating

circumstance(s) probably existed:

(If any circumstances are checked in this section, you should not

complete Section D. Any factor or factors checked in this section

should not be checked again in any other section.)

(Check applicable circumstances and specify any additional ones.)

() The capital murder was committed while Karl Douglas Roberts

was under extreme mental or emotional disturbance.

() The capital murder was committed while the capacity of Karl

Douglas Roberts to appreciate the wrongfulness of his conduct or to

conform his conduct to the requirements of law was impaired as a result

of mental disease or defect and/or alcohol intoxication.

(X) Karl Douglas Roberts has no significant history of prior criminal

activity.

() Karl Douglas Roberts, although legally responsible, suffers from

an intellectual deficit.

(X) Karl Douglas Roberts’ IQ places him in the borderline range of

intellectual functioning.

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(X) Karl Douglas Roberts, as a result of a closed-head injury at age

12, has sustained significant brain damage to the frontal and temporal

lobe areas of his brain.

() As a result of Karl Douglas Robert’s brain damage, his ability to

control his emotions and/or impulses have been impaired.

() As a result of Karl Douglas Robert’s brain damage, his ability to

accurately interpret social cues and communications from other persons

has been impaired.

(X) Karl Douglas Roberts has been married approximately 10 years

to Trina Brewer Roberts and is the father of two (2) children, Charli

(age 5) and Bradley (age 1).

(X) Prior to his arrest, Karl Douglas Roberts adequately provided for

the financial and material needs of his family.

(X) Karl Douglas Roberts cooperated with law enforcement officers

by making a statement confessing to the homicide of Andria Brewer.

() Karl Douglas Roberts exhibited remorse when interviewed by

law enforcement officers about the disappearance of Andria Brewer.

() Karl Douglas Roberts cooperated with the investigation by

leading law enforcement officers to the crime scene and to the body of

Andria Brewer.

(X) Since his arrest, Karl Douglas Roberts has maintained a

relationship with his parents, Bob and Peggy Roberts.

(X) Since his arrest, Karl Douglas Roberts has maintained a

relationship with his wife, Trina.

(X) Since his arrest, Karl Douglas Roberts has maintained a

relationship with his daughter, Charli (age 5), and his son, Bradley (age

1).

() Other: Specify in writing. ____________________________

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B. One or more members of the jury believed that the following

mitigating circumstance(s) probably existed, but the jury did not

unanimously agree that such mitigating circumstance(s) probably

existed:

(If any circumstances are checked in this section, you should not

complete Section D. Any factor or factors checked in this section

should not be checked again in any other section.)

(Check applicable circumstances and specify any additional ones.)

() The capital murder was committed while Karl Douglas Roberts

was under extreme mental or emotional disturbance.

() The capital murder was committed while the capacity of Karl

Douglas Roberts to appreciate the wrongfulness of his conduct or to

conform his conduct to the requirements of law was impaired as a result

of mental disease or defect and/or alcohol intoxication.

() Karl Douglas Roberts has no significant history of prior criminal

activity.

() Karl Douglas Roberts, although legally responsible, suffers from

an intellectual deficit.

() Karl Douglas Roberts’ IQ places him in the borderline range of

intellectual functioning.

() Karl Douglas Roberts, as a result of a closed-head injury at age

12, has sustained significant brain damage to the frontal and temporal

lobe areas of his brain.

() As a result of Karl Douglas Robert’s brain damage, his ability to

control his emotions and/or impulses have been impaired.

() As a result of Karl Douglas Robert’s brain damage, his ability to

accurately interpret social cues and communications from other persons

has been impaired.

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() Karl Douglas Roberts has been married approximately 10 years

to Trina Brewer Roberts and is the father of two (2) children, Charli

(age 5) and Bradley (1 year old).

() Prior to his arrest, Karl Douglas Roberts adequately provided for

the financial and material needs of his family.

() Karl Douglas Roberts cooperated with law enforcement officers

by making a statement confessing to the homicide of Andria Brewer.

() Karl Douglas Roberts exhibited remorse when interviewed by

law enforcement officers about the disappearance of Andria Brewer.

() Karl Douglas Roberts cooperated with the investigation by

leading law enforcement officers to the crime scene and to the body of

Andria Brewer.

() Since his arrest, Karl Douglas Roberts has maintained a

relationship with his parents, Bob and Peggy Roberts.

() Since his arrest, Karl Douglas Roberts has maintained a

relationship with his wife, Trina.

() Since his arrest, Karl Douglas Roberts has maintained a

relationship with his daughter, Charli (age 5), and his son, Bradley (age

1).

() Other: Specify in writing.______________________________

C. There was some evidence presented to support the following

circumstance(s). However, having considered this evidence, the jury

unanimously agreed it was insufficient to establish that the mitigating

circumstance(s) probably existed5:

(If any circumstances are checked in this section, you should not

complete Section D. Any factor or factors checked in this section

should not be checked again in any other section.)

5

The words “some evidence” was circled by hand. The words “insufficient to

establish” and “probably existed” were underlined in hand.

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(Check applicable circumstances and specify any additional ones.)

() The capital murder was committed while Karl Douglas Roberts

was under extreme mental or emotional disturbance.

() The capital murder was committed while the capacity of Karl

Douglas Roberts to appreciate the wrongfulness of his conduct or to

conform his conduct to the requirements of law was impaired as a result

of mental disease or defect and/or alcohol intoxication.

() Karl Douglas Roberts has no significant history of prior criminal

activity.

() Karl Douglas Roberts, although legally responsible, suffers from

an intellectual deficit.

() Karl Douglas Roberts’ IQ places him in the borderline range of

intellectual functioning.

() Karl Douglas Roberts, as a result of a closed-head injury at age

12, has sustained significant brain damage to the frontal and temporal

lobe areas of his brain.

() As a result of Karl Douglas Robert’s brain damage, his ability to

control his emotions and /or impulses have been impaired.

() As a result of Karl Douglas Robert’s brain damage, his ability to

accurately interpret social cues and communications from other persons

has been impaired.

() Karl Douglas Roberts has been married approximately 10 years

to Trina Brewer Roberts and is the father of two (2) children, Charli

(age 5) and Bradley (1 year old).

() Prior to his arrest, Karl Douglas Roberts adequately provided for

the financial and material needs of his family.

() Karl Douglas Roberts cooperated with law enforcement officers

by making a statement confessing to the homicide of Andria Brewer.

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() Karl Douglas Roberts exhibited remorse when interviewed by

law enforcement officers about the disappearance of Andria Brewer.

() Karl Douglas Roberts cooperated with the investigation by

leading law enforcement officers to the crime scene and to the body of

Andria Brewer.

() Since his arrest, Karl Douglas Roberts has maintained a

relationship with his parents, Bob and Peggy Roberts.

() Since his arrest, Karl Douglas Roberts has maintained a

relationship with his wife, Trina.

() Since his arrest, Karl Douglas Roberts has maintained a

relationship with his daughter, Charli (age 5), and his son, Bradley (age

1).

D. ( ) No evidence of a mitigating circumstance was presented by

either party during any portion of the trial. (Check only if no evidence

of a mitigating circumstance was presented.)

(Signed by the Foreman)

FORM 3

CONCLUSIONS

The Jury, having reached its final conclusions, will so indicate

by having its Foreman place a check mark in the appropriate space ( )

in accordance with the Jury’s findings. In order to check any space,

your conclusions must be unanimous. The Foreman of the Jury will

then sign at the end of this form.

WE THE JURY CONCLUDE:

(a) (X) The State proved beyond a reasonable doubt the

aggravating circumstance.

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(If you do not unanimously agree to check paragraph (a), then skip (b)

and (c) and sentence Karl Douglas Roberts to life imprisonment without

parole on Form 4.)

(b) (X) The aggravating circumstance outweighs beyond a

reasonable doubt any mitigating circumstances found by any juror to

exist.

(If you do not unanimously agree to check paragraph (b), then skip (c)

and sentence Karl Douglas Roberts to life imprisonment without parole

on Form 4.)

(c) (X) The aggravating circumstance when weighed

against any mitigating circumstances justifies beyond a reasonable

doubt a sentence of death.

(If you do not unanimously agree to check paragraph (c), then sentence

Karl Douglas Roberts to life imprisonment without parole on Form 4.)

If you have checked paragraphs (a), (b), and (c), then you may,

but are not required to sentence Karl Douglas Roberts to death on Form

4.

Otherwise, sentence Karl Douglas Roberts to life imprisonment

without parole on Form 4.

(Signed by the Foreman)

FORM 4

VERDICT

We, the Jury, after careful deliberation, have determined that

Karl Douglas Roberts shall be sentenced to:

A. () LIFE IMPRISONMENT WITHOUT PAROLE.

B. (X) DEATH.

(If you return a verdict of death, each juror must sign this verdict.)

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All jurors physically signed the “Verdict Form.”

Filing 243-1 at CM/ECF pp. 601-614.

Roberts had four experienced lawyers. Roberts’ defense was that he was

unable to control himself due to his brain injury and related mental problems. The

four doctors previously described gave detailed testimony.

Dr. Leroy Archer, who is a physician and a medical school professor, testified

as a witness for the defense. Archer is a Fellow of the American Academy of

Neurology and was voted the best neurologist in Arkansas. Archer reviewed all the

pertinent records and examined Roberts on February 10, 2000.

Among other things, Archer noted that a CAT scan conducted in 1980 showed

damage to the right frontal and temporal lobes of Roberts’ brain, that intelligence

testing later revealed that 95% of the population was smarter than Roberts, and that

subsequent MMPI testing showed that “even minor stress” could cause “significant

behavioral configurations” in Roberts. Critically, Archer also examined MRI scans.

According to Archer, these studies clearly revealed that Roberts had lost “a fifth of

his right frontal lobe” and a portion of the temporal lobe. As a result of these injuries,

the doctor stated that Roberts would “[v]ery easily” misunderstand or misinterpret

things and that Roberts would “jump to conclusions prematurely, not properly think

through a situation[.]”

Dr. Mary Wetherby, a psychologist, who was awarded a Ph.D. with a specialty

in neuroscience, testified for the defense. Dr. Wetherby did her internship at a

Federal Bureau of Prisons medical center. About 80 percent of her practice was

devoted to treating people who “have some kind of brain dysfunction, some kind of

cognitive brain problem[ ].”

Dr. Wetherby performed a neuropsychological evaluation of Roberts on

September 10, 1999. While her evaluation was conducted before the MRI studies

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were completed, her evaluation was “real consistent with having problems in the

frontal lobes. . . . “

Among other things, Wetherby administered the MMPI to Roberts. This time,

unlike the MMPI administered by Dr. Mallory, the test was valid. For subjects like

Roberts, Dr. Wetherby testified that authorities in her field believed that it was

appropriate and desirable to re-administer the MMPI, particularly if there are

problems on the first test with the validity scales. In any event, the test results

revealed that Roberts had a “psychological maladjustment” that was “ongoing.”

“[E]ven mild stress” could cause “personality deterioration” in Roberts.

In particular, Roberts’ results revealed a “chronic pattern” of depression and

a tendency to fixate on particular thoughts. In addition, “his schizophrenia scale

[was] elevated as well as the social introversion scale. As a result of her examination,

and particularly due to the damage to Roberts’ frontal lobe, Dr. Wetherby believed

that Roberts was likely to be impulsive and likely to misinterpret information coming

from others.

Dr. Reginald Rutherford, a physician and practicing neurologist, was called

to testify by the prosecution as a rebuttal witness. Rutherford was engaged in a

general neurology practice.

The doctor reviewed the records, but did not examine Roberts. According to

Dr. Rutherford, “Roberts’ MRI scan clearly depicts that he has a large los[s] [of]

tissue in the right frontal lobe” and he “has lesser loss of tissue in the left medial

frontal lobe and side and he has injury or loss of tissue to the right anterior temporal

lobe.” The “anatomy was clear cut.” According to the doctor, “it’s a significant

injury, and it may have significant clinical implications.” When asked by the

prosecutor whether Roberts acted impulsively on May 15, 1999, Dr. Rutherford

answered: “I don’t know. I really don’t know why this happened. I can’t make any

sense of it. . . . “

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Dr. Charles Mallory, a clinical psychologist at the state hospital, was called

as a rebuttal witness by the prosecution. Dr. Mallory received his Ph.D. from Baylor

University in 1973 and since September of 1998 had served on the forensic unit of

the state hospital doing evaluations.

When Mallory conducted the examination of Roberts in the summer of 1999,

no MRI studies had been completed. Furthermore, he acknowledged that the medical

records he reviewed when he conducted his evaluation “didn’t show the extent of

damage that were revealed in MRIs and subsequent diagnoses.” Nonetheless,

Mallory’s opinions remained unchanged. However, Mallory agreed with defense

counsel that Roberts had “anger control and impulse control problems.”

June 1, 2000: Roberts signed the following waiver prepared by his lawyer:

WAIVER OF APPEAL

I, Karl Douglas Roberts, having been found guilty and convicted

of the offense of CAPITAL MURDER, and having been sentenced to

death by lethal injection following a Jury Trial before a Polk County

jury, and having been advised by the Court of my right to appeal, do

hereby waive my right to appeal the conviction of Capital Murder and

the sentence of death imposed against me, and in this regards further

state:

1. On May 19, 2000, following the announcement by the

Court of the jury’s verdict, the Circuit Court of Polk County, Arkansas,

Honorable Gayle K. Ford, presiding, advised me of my right to appeal

and the time limitations in which to perfect an appeal.

2. I have fully discussed with my Attorney the effect of

waiving my right to appeal and respectfully request that the sentence of

death be carried out without any further action being taken by my

attorney by way of direct appeal.

3. I further acknowledge that the proceedings which have

been conducted against me not only include the review of possible error

on direct appeal to the Arkansas Supreme Court, but also, any post-

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conviction review following a direct appeal which would review any

other matter, including but not limited to, claims of ineffective

assistance of counsel.

4. It is my request that no appeal be brought in my behalf and

that the Court conduct a prompt hearing to determine my competency

to make this waiver.

5. I am not under the influence of any medication or

receiving medical treatment that would prevent me from fully

understanding the effect of this waiver of appeal.

DATED this 1st day of June, 2000.

s/ Karl Douglas Roberts

STATE OF ARKANSAS

COUNTY OF POLK

Subscribed and sworn before me this 1st day of June, 2000.

s/ Notary Public

(Seal)

Prepared by:

s/ Phillip M. Hendry ABN# [bar number redacted]

Arkansas Public Defender Commission

[address and phone number redacted]

July 19, 2000: Spanning seven pages in the transcript, the record reveals that

a brief hearing was conducted on Roberts’ “waiver.” The only evidence that was

presented was Roberts’ own testimony. Using leading questions, and eliciting short

answers (mostly “yes” or “no”), defense counsel called Roberts as a witness and

asked him questions regarding the waiver.

Defense counsel’s interrogation revealed that (1) after the death sentence,

Roberts told his lawyer that he wished to waive his right to appeal; (2) Roberts was

informed he had a right to a direct appeal to the Arkansas Supreme Court; (3) Roberts

was informed that he would “be able to proceed under Arkansas Rules of Criminal

Procedure 37.5 and allege any errors or ineffective assistance”; (4) Roberts was

advised that “after that proceeding” he could pursue “avenues in federal court of

habeas corpus relief”; (5) Roberts answered “yes” to the question: “Is it your desire

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to-knowing all that, to waive those matters and waive those issues?”; (6) Roberts

answered “yes” to the question: “So, it is your desire not to file a direct appeal or not

to pursue Rule 37 or habeas corpus relief, is that correct?”; (7) Roberts answered

“no” to the question: “Are you under the influence of any medication or receiving

medical treatment which would prevent you from fully understanding the affect of

your waiver of appeal?”; (8) Roberts answered “no” to the question: “Are you under

the influence of any alcohol or any other substance that may affect your judgment

or ability to understand?”; and (9) he signed the written waiver before a notary public

on June 1, 2000.

The trial judge then briefly interrogated Roberts. While the judge’s questions

were somewhat more open-ended, Roberts gave very brief answers. The judge’s

questioning revealed that: (1) Roberts knew that, in his words, waiver “means to let

something pass”; (2) Roberts said “yes” to the question: “Do you understand that if

you do not have an appeal, that the judgment entered by the Court will be carried

out?” (3) Roberts answered “death” when asked: “What is that judgment?”; (4)

Roberts answered: “Yes, I am” when asked: “Are you sure?”; (5) Roberts declined

to make a statement; (6) Roberts answered “Yes, we did” when asked whether he

“fully discussed with your attorneys . . . what we’re talking about today?”; (7)

Roberts answered “yes” to the question, “Did he tell you that you don’t have to do

this if you don’t want to?”; (9) Roberts was “positive” that he did not want to assert

any appeals; (10) Roberts confirmed that he was not under “the influence of any

medication or receiving any medical treatment” when he signed the waiver and also

on the day of the hearing; and (10) when asked to “tell [the judge] in your own words

what your waiver is asking for and what you are asking for today,” Roberts replied:

“I want to die.”

The prosecutor presented no evidence and asked no questions.

Acknowledging that he was “in somewhat uncharted territory,” the judge then made

a “finding that Karl Douglas Roberts has knowingly and intelligently waived his

right to appeal.

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February 7, 2002: Despite the fact that Roberts had waived his right to appeal,

and pursuant to State v. Robbins, 5 S.W.3d 51 (1999), the Arkansas Supreme Court

appointed new counsel to “abstract” the record and directed counsel to brief errors.

See Roberts II, 123 S.W.3d at 881 (“On February 7, 2002, this court issued a per

curiam opinion in which we appointed Tim Buckley to abstract the brief and set out

any points of error.”) Tim Buckley was not appointed as Roberts’ counsel but rather

he was appointed to assist the Arkansas Supreme Court in its mandatory review.

October 30, 2002: Buckley filed an “Abstract, Brief and Addendum of Special

Assistant to the Court.” He summarized the case in great detail and included

quotations from most of the waiver hearing. He also asserted four arguments and

they were: (1) the trial court erred when it refused to suppress the defendant’s

statement as a product of an involuntary waiver of his rights due to a false promise

by police officers; (2) the trial court erred by denying defendant’s motion to suppress

physical evidence as fruit of the poisonous tree; (3) the trial court erred by not

excusing for cause juror Glenda Gentry after the defense exhausted all peremptory

challenges; and (4) the trial court erred by denying the defendant’s motion for a

directed verdict at the sentencing phase.

Buckley did not argue that Roberts’ waiver of appeal was involuntary or

otherwise improper. Nor did Buckley provide any critical analysis of the waiver

hearing or Roberts’ state of mind at the time of the waiver hearing. Still further, I

cannot determine from the record whether Buckley consulted Roberts before making

his written submission.

April 10, 2003: Roberts I, 102 S.W.3d at 482, was decided. The Arkansas

Supreme Court first took up the question of whether Roberts had given a knowing

and intelligent waiver of appeal rights. Roberts I, 102 S.W.3d at 486-488. The court

concluded that “the trial court did not clearly err in determining that Roberts

knowingly and intelligently waived his rights to appeal.” Id. at 488.

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The court then took up the four specific issues raised by Mr. Buckley. It

resolved those issues against Roberts. Id. at 488–495.

The court then examined the record for other errors and also to determine

whether Roberts’ trial had included “fundamental safeguards.” The court found no

errors and found nothing in the record that would call into question “the essential

fairness of the process afforded Roberts.” Id. at 495. In particular, the court

considered the following when it engaged in this omnibus review:

* As required by Ark. Sup.Ct. R. 4–3(h) (implementing a statutory directive

regarding review of errors in death cases) and Ark.Code Ann. § 16–91–113(a) (West

2007) (requiring review of “all errors prejudicial to the rights of the appellant” in

death penalty cases), the court reviewed the transcript for “adverse rulings objected

to by Roberts and his counsel” and, without specifying what those rulings were,

concluded that “no such reversible errors were found.” Roberts I, 102 S.W.3d at 495.

* As required by State v. Robbins, 27 S.W.3d 419, 423 (2000) for death

penalty cases in which the defendant waived appeal, the court applied the exceptions

to its general rule of not recognizing plain error and examined the record to

determine (a) whether the trial court failed to bring to the jury’s attention a matter

essential to its consideration of death penalty itself; (b) whether there was error by

the trial judge of which the defense had no knowledge and therefore no opportunity

to object; (c) whether the trial court failed to intervene without objection and correct

a serious error by admonition or declaring a mistrial; and (d) whether there was a

failure of the trial court to take notice of errors affecting substantial rights in a ruling

admitting or excluding evidence, even though there was no objection. Roberts I, 102

S.W.3d at 495. The court found no such errors. Id.

* The court then looked to “determine whether other fundamental safeguards

were followed” and it found that there was no irregularity. Id. In addition, the court

responded to and rejected a portion of the lone dissenting judge’s opinion which

asserted that the verdict forms had not been properly completed because the jury had

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failed to complete the forms as they regarded seven important mitigating factors.

Compare 102 S.W.3d at 495–497 (majority) with 102 S.W.3d at 501 (dissent). The

court believed that there was conflicting evidence on each of the seven proposed

mitigating factors for which the verdict forms were left blank, and thus no error

occurred when the jury failed to complete the forms. Id. at 495–497.

Finally, and because the court had earlier decided that Roberts’ statement to

the police had been properly obtained, the majority did not directly respond to the

dissent’s disagreement on that point. Compare 102 S.W.3d at 488–492 (majority)

with 102 S.W.3d at 497–500 (dissent).

May 1, 2003: The mandate of the Arkansas Supreme Court was filed with

the local court.

May 20, 2003: A hearing, where Roberts appeared in person, was held in the

Polk County Circuit Court pursuant to Ark. R.Crim. P. 37.5 (hereafter Rule 37.5).

Among other things, this rule requires that “not later than twenty-one (21) days after

the mandate is issued” the “person under sentence of death shall be present at [a]

hearing” and the court shall “inform the person of the existence of possible relief

under this rule” and “determine whether the person desires the appointment of an

attorney . . . .” Rule 37.5(b)(2).

As contrasted with the judge who tried Roberts’ case and who presided over

Roberts’ initial waiver hearing, a different judge conducted the Rule 37.5 hearing.

Indeed, the judge stated, “I was not the judge [at the time of the trial and the waiver

hearing], so, I had to do this by looking at the transcript.”

In the presence of the prosecutor, the judge began the hearing with the

following statement and questioning of Roberts:

BY THE COURT: Court will be in session. We’re here on the

matter of CR–99–70, State of Arkansas versus Karl Douglas Roberts.

Let the record reflect that Mr. Roberts is in the courtroom. Mr. Roberts,

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the hearing today is for a number of reasons, most importantly is to

consider some rights that you may have under Rule 37.5 of the

Arkansas Rules of Criminal Procedure. To get to that, let me review for

you what has occurred up to now. I was not the judge that presided over

your trial and so part of this is for my benefit as well as for yours.

On May 19, 2000, you were sentenced to death by lethal injection

for capital murder of Andrea (sic) Brewer in this courtroom and that

was by a jury which unanimously found that you had committed the

crime and should receive the sentence of death.

On June 13, 2000 you filed with the court a written waiver of

appeal requesting that the death sentence be carried out without an

attorney taking further action to challenge the sentence.

On July 19, 2000 a hearing was held before the Court regarding

that waiver. You testified at that time and made it clear that it was your

wish, after being fully advised of all your options, to forego any

challenge to your sentence.

BY MR. ROBERTS: Yes.

BY THE COURT: The Court at that time found that your waiver

was knowing and intelligence—intelligently given. Under the Rules of

Arkansas Criminal Procedure, your sentence was automatically

reviewed by the Arkansas Supreme Court both with regard to the

waiver of appeal rights, but also with regard to the trial itself to

determine whether or not any reversible error had occurred during that

trial.

On April 29th of this year the Arkansas Supreme Court issued a

mandate affirming the capital murder conviction and upheld the death

sentence pursuant to their mandatory review. That mandate from the

Supreme Court was filed with the Polk County Circuit Clerk on May 1,

2003. The rules require that within twenty-one days of that filing that

this hearing be held and we’re here today to conduct this what is

referred to often as a Rule 37.5 hearing.

The primary purpose, Mr. Roberts for the hearing today is to

determine whether or not you wish to have an attorney appointed to

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assist you at this time to pursue any possible post conviction rights and

relief that you might have under the Arkansas Rules of Criminal

Procedure. That could include also a look at whether or not there’s any

federal relief available to you under federal law, the federal habeas

procedures. What that really amounts to is that you have the right, now

that your conviction has been upheld by the court, you have the right

within ninety days after whatever order I issue today, to file a petition

with this Court asking for review of certain matters with regard to your

sentence. I must inform you that those are not matters that were taken

up on appeal, that’s all been handled and you are at this point of course

facing not only a confirmed conviction, but a sentence of death by lethal

injection. But, you have the right to have this Court review any matters

with regard to things that are outside what was reviewed on the appeal.

For example, you have the right to raise questions about the assistance

of counsel that you received during your trial, whether or not that was

effective and as I’ve already suggested, there may be federal rights that

also go with that. And, so, our point here today is to determine whether

or not you wish to have an attorney appointed to represent you in these

post conviction matters. Before I can make that decision, I’ll have to

hear from you and ask you a number of questions with regard to that. I

also will have to make the determination of whether first of all your

indigency status and you can answer this for me right there, you had

appointed counsel during the trial. I am assuming, without knowing,

that your financial situation is no different than it was at the time of the

trial that you would qualify for an appointment of counsel, is that

correct, sir?

BY MR. ROBERTS: Yes, sir.

BY THE COURT: All right, and I’m basing that on the fact that

these procedures require that if you desire, an attorney can be appointed

for you at no cost to you, if you are in fact indigent and my assumption

I’m sure is correct, that you still are going to qualify. Now, let me ask

you, Mr. Roberts, just as a general question without getting into

specifics at this point, do you wish to have an attorney appointed to

represent you at this stage?

BY MR. ROBERTS: No.

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BY THE COURT: All right, that’s a preliminary answer and I

need to make further inquiry. To do that, Mr. Roberts, I think the best

way for me to do this is to ask you to take the stand and take the oath

so that I can ask you some questions under oath.

BY MR. ROBERTS: All right.

After Roberts took an oath, the judge proceeded to conduct a further inquiry.

The judge first determined that nothing had changed regarding Roberts’ eligibility

for the appointment of counsel; that is Roberts was eligible for the appointment of

counsel because he was a poor person. When asked whether Roberts wanted “to have

an attorney appointed to represent you with regard to the post-conviction relief

matters,” Roberts said, “No.”

Roberts answered “Yes” to the question: “Do you understand that the legal

consequences of this decision of not having an attorney appointed is that you are

effectively waiving any rights to seek further relief?” The judge then questioned

Roberts regarding his understanding of his right to appeal and to seek post-

conviction relief, and Roberts affirmed that he did not wish to have anyone seek

postconviction relief on his behalf. Roberts stated that he understood that an

execution date would be set if counsel were not appointed and the Arkansas Supreme

Court reviewed the case and found nothing amiss.

The judge summarized the prior psychiatric and psychological testimony, and

then asked: “Do you feel that your decision-making ability, your ability to

understand, your ability to make a waiver in this case is any different today than it

was at the time of your trial and post-trial hearing?” Roberts answered, “No,

nothing’s changed.” Roberts also answered in the negative when asked whether he

“had [taken] any medication or substance, is there anything at all that would affect

your thinking today?” Roberts then stated that he understood that “waiver . . . means

that I’m not going to file for further actions and that means that I’m going to go on

ahead and carry out my sentence.”

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The judge then asked the following questions and Roberts gave the following

answers:

BY THE COURT: All right, sir, and tell me in your own words,

as you told Judge Ford [the trial judge]. What is it that you want to

happen, to occur at this point?

BY MR. ROBERTS: Well, I don’t think a guilty person should

be allowed to live or he should at least be able to accept responsibility,

his punishment whatever it may be.

BY THE COURT: And, do you understand that if you accept that

punishment in your case, that means that you are not choosing to live.

BY MR. ROBERTS: Right.

BY THE COURT: Is that what you’re asking?

BY MR. ROBERTS: Yes.

BY THE COURT: Do you understand that once the Governor

sets that date, then you are—you are choosing death over life under

these circumstances.

BY MR. ROBERTS: Yes, sir.

BY THE COURT: I don’t want to just go over this over and over,

Mr. Roberts, but we’re trying to be very careful here and make sure that

you fully understand everything that’s happening and the legal

consequences of your decision. I’ll review it for you one more time. Do

you understand you would have the right for me to appoint an attorney

to represent you at this stage?

BY MR. ROBERTS: Yes, sir.

BY THE COURT: And, I’m understanding that you’re saying

you do not [want] that attorney.

BY MR. ROBERTS: Yes.

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BY THE COURT: Do you understand that that attorney could

seek relief in this Court within the next ninety days, that means file a

petition on your behalf asking the Court to review any matters that you

wanted to bring up, really, other than those that have already been

handled in your appeal. Do you understand you’re giving up that

opportunity?

BY MR. ROBERTS: Yes.

BY THE COURT: Do you understand that also includes some

federal rights? You might have the opportunity to go into federal court

and ask the federal courts to review some of the conduct of your trial

and other matters since your trial. Do you understand you’re giving up

that right?

BY MR. ROBERTS: Yes.

BY THE COURT: You also have indicated to me that—and I

believe you understand what a waiver is and that you are knowingly

giving up and waiving these rights that you have.

BY MR. ROBERTS: Yes, sir.

BY THE COURT: And, you know the consequences.

BY MR. ROBERTS. Yes, death.

After the foregoing discussion, the judge inquired of the prosecutor whether

the court should ask any additional questions. The prosecutor responded, “I don’t

believe so, your honor.” The judge then found that Roberts had waived his right to

appointment of counsel and to seek post-conviction relief.

Following the judge’s oral finding of waiver, the petitioner tried to make a

statement to the families, people in the crowd objected, and the judge silenced

Roberts telling him to talk to the prosecutor. In particular, the transcript reveals the

following:

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BY THE COURT: Is there anything else you want to say?

BY MR. ROBERTS: I’d like to say a couple of words to these

families, if I would be able to.

A VOICE FROM THE AUDIENCE: No.

BY THE COURT: They don’t want to hear it, Mr. Roberts and

since they object—

(VOICES FROM THE AUDIENCE)

BY THE COURT: Talk with Mr. Williamson about that.

Anything else, Mr. Williamson?

BY MR. WILLIAMSON: Your Honor, I think formally, even

though there’s not an execution date set, since his—

BY THE COURT: Hold up just a second (Noise from the

audience).

BY MR. WILLIAMSON: Since his— since his direct appeal

issues were waived, the conviction has been affirmed under a

mandatory review and the death sentence has been upheld, I think

technically the Court should also enter an order staying any execution.

We just need to be sure that’s on the record.

BY THE COURT: Thank you for reminding me. Mr. Roberts I

have to just make that formal—that is for the Supreme Court to have an

opportunity to review today’s hearing. So, I will make as part of that

order, the execution will be stayed until such time as the Supreme Court

directs us to proceed.

BY MR. ROBERTS: Okay.

BY THE COURT: All right, that’s it, folks, thank you.

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May 22, 2003: The judge who presided over the Rule 37.5 hearing entered a

written order. In pertinent part, that order is reproduced below:

1. That the Court finds on May 19, 2000, the

Defendant was convicted by a jury of one count of Capital

Murder and sentenced to death by lethal injection.

2. That the Court finds on June 13, 2000, a

Waiver of Appeal of said death sentence was filed by the

Defendant requesting that his death sentence be carried out

without his attorneys taking any further action to challenge

his conviction or sentence.

3. That the Court finds on July 19, 2000, a

hearing was held regarding said Waiver of Appeal in

which the Defendant testified and made it clear that it was

his own wish, after being fully advised of his options, to

forego any challenge to his death sentence, and that said

waiver was knowingly and intelligently made by the

Defendant.

4. That the Court finds on April 29, 2003, after

completing a mandatory review for any prejudicial errors

at trial regarding the conviction and sentence of the

Defendant, the Arkansas Supreme Court issued its

mandate affirming the Capital Murder conviction and

death sentence of the Defendant and affirmed the finding

of competency of the Defendant to waive his appeal from

his sentence of death, with said mandate being filed with

the Polk County Circuit Clerk on May 1, 2003.

5. That the Court finds on May 20, 2003, the

Defendant was present at a hearing regarding the

appointment of an attorney as required by Rule 37.5 of the

Arkansas Rules of Criminal Procedure with said hearing

being conducted within twenty-one (21) days after said

mandate was issued by the Arkansas Supreme Court.

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6. That the Court finds at said hearing the

Defendant was advised that all previous hearings, jury

trial, and Waiver of Appeal hearing which were held in

this matter were presided over by Circuit Judge Gayle

Ford, who is now retired.

7. That the Court finds at said hearing the

Defendant was advised that careful consideration and

review was recently conducted by the Court prior to this

hearing of the court docket; transcript of trial testimony of

Charles Mallory, Ph.D., a staff psychologist with the

Arkansas State Hospital; the trial testimony of Reginald

John Rutherford, M.D., a neurologist; transcript of the trial

testimony of Lee Archer, M.D., a staff member of the

University of Arkansas Medical Sciences in Little Rock;

transcript of the trial testimony of Mary M.C. Wetherby,

Ph.D., a psychologist; transcript of the trial testimony of

Danny Davis, former employer of the Defendant;

transcript of other trial testimony pertinent to the

competency of the Defendant; the contents of the Waiver

of Appeal and transcript of the hearing held regarding said

waiver; and the Arkansas Supreme Court opinion

affirming the capital murder conviction and death sentence

and affirming the finding of competency of the Defendant

to waive his appeal from his sentence of death.

8. That the Court finds at said hearing the

Defendant was personally informed of the following facts,

to wit:

a. the Defendant was advised of the post-

conviction relief available to him pursuant to Rule 37.5 of

the Arkansas Rules of Criminal Procedure and that a

petition seeking such relief must be filed with the Circuit

Court within ninety (90) days from the date of entry of this

order; and,

b. the Defendant was advised of his right

to have an attorney appointed at no charge to represent him

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in proceedings pursuant to Rule 37.5 of the Arkansas

Rules of Criminal Procedure; and,

c. the Defendant was advised that if he

has sustained no change in his financial status, he would

continue to be declared indigent and entitled to the

appointment of an attorney at no charge to him; and,

d. the Defendant was advised of his right

to appeal the denial of any postconviction relief and has

the right to pursue certain remedies which may be

applicable to him pursuant to habeas corpus relief in

federal court; and,

e. the Defendant was advised of his right

to reject and waive the appointment of an attorney to

represent him in proceedings pursuant to Rule 37.5 of the

Arkansas Rules of Criminal Procedure; and,

f. the Defendant was advised of his right

to waive the filing of any proceeding for post-conviction

relief pursuant to Rule 37.5 of the Arkansas Rules of

Criminal Procedure; and,

g. the Defendant was advised that

exercising his right to waive the filing of any proceeding

for post-conviction relief pursuant to Rule 37.5 of the

Arkansas Rules of Criminal Procedure could impair his

ability to seek habeas corpus relief in federal court; and,

h. the Defendant was advised that his

waiver and willful failure to pursue post-conviction relief

pursuant to Rule 37.5 of the Arkansas Rules of Criminal

Procedure would result in the death sentence being carried

out against him.

9. That after having advised the Defendant of

his rights and facts set forth above, the Court took sworn

testimony from the Defendant, and based upon the verbal

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responses and comments made by the Defendant, the

Court hereby makes the following findings, to wit:

a. the Defendant has the capacity and is

clearly competent to understand the choice between life

and death; and,

b. the Defendant has the capacity and is

clearly competent to knowingly and intelligently waive

any and all rights to pursue post-conviction relief pursuant

to Rule 37.5 of the Arkansas Rules of Criminal Procedure

or habeas corpus relief in federal court; and,

c. the Defendant has the capacity and is

clearly competent to knowingly and intelligently reject his

right to have counsel appointed at no charge to him to

pursue on his behalf post-conviction relief pursuant to

Rule 37.5 of the Arkansas Rules of Criminal Procedure;

and,

d. the Defendant has unequivocally

expressed his desire to freely, voluntarily, knowingly, and

intelligently reject his right for the appointment of an

attorney at no cost to him and waive his right to pursue

post-conviction relief pursuant to Rule 37.5 of the

Arkansas Rules of Criminal Procedure; and,

e. the Defendant has completely

demonstrated he fully understands the legal consequences

of (i) his waiver of his right to have an attorney appointed

to him, (ii) the waiver of his right to pursue post-

conviction relief pursuant to Rule 37.5 of the Arkansas

Rules of Criminal Procedure, and the waiver to pursue

habeas corpus relief in federal court; and,

f. the Defendant has unequivocally

expressed his desire for his death sentence to be carried

out by the State of Arkansas and to die by lethal injection.

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10. That these written findings and order is filed

in compliance with the provisions of Rule 37.5(b) of the

Arkansas Rules of Criminal Procedure and as required by

Rule 37.5(g), a stay of execution of the sentence of death

against the Defendant shall be and hereby is ordered and

shall remain in effect until dissolved by a court with

competent jurisdiction or by operation of law.

11. That the Court Reporter is hereby ordered to

prepare the complete transcript of this hearing forthwith.

12. That the Circuit Clerk shall be and hereby is

ordered to forward a copy of this Order pursuant to

A.R.Cr.P. Rule 37.5 to Attorney General Mike Beebe

forthwith.

October 9, 2003: In a per curiam opinion, the Arkansas Supreme Court

reviewed the Rule 37.5 hearing record and affirmed the lower court’s findings.

Roberts II, 123 S.W.3d at 883. Thus, the court ruled that Roberts had waived his

right to an attorney and to seek state post-conviction relief.

D. EARLY HISTORY OF FEDERAL HABEAS CORPUS CASE

On January 6, 2004, Roberts, through the Arkansas Federal Public Defender,

filed a motion to stay his execution and that motion was granted on that same day

by Judge Howard. The stay of execution was subsequently extended and then

indefinitely extended on July 23, 2004.

On March 29, 2004, Roberts filed a personal declaration stating that “I want

the Federal Public Defender Office to pursue my federal habeas case” and “I

authorize the Federal Public Defender Office to prepare and file with the Court all

appropriate pleadings in my name.” On June 24, 2004, Judge Howard granted

Roberts’ motion for a psychological evaluation.

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On July 16, 2004, Roberts’ counsel filed a petition for writ of habeas corpus.

(Filing 19.) Roberts asserted twenty-two claims. They are not identical to the claims

he asserts now.

On November 4, 2004, and as directed by Judge Howard, the Respondent filed

a response, certain state court “transcripts” and various “other” records. The parties

also filed briefs. The respondent’s “surreply” was the last brief submitted and it was

filed on May 16, 2005.

At about the same time as the parties’ initial briefing was coming to an end in

the spring of 2005, the Supreme Court of the United States decided Rhines v. Weber,

544 U.S. 269 (2005). In that case, the Court reversed a decision of our Court of

Appeals. The Court held that a district court had discretion to stay a mixed habeas

petition to allow the petitioner to present his unexhausted claims to the state court in

the first instance, and then return to federal court for review of his perfected petition.

Until the summer of 2005, the parties and Judge Howard apparently awaited

a decision from the Court of Appeals on the Respondent’s appeal of the original stay

of execution. Once the original habeas petition was filed, the Court of Appeals

dismissed that appeal as moot. It did so on July 18, 2005. After that, and perhaps

because of Judge Howard’s ill-health, the case remained dormant until the spring of

2007.

Following the death of Judge Howard on April 21, 2007, this case was

assigned to me pursuant to order of Chief Judge Loken, of the United States Court

of Appeals for the Eighth Circuit, dated May 11, 2007. I expedited consideration of

this case. Subsequently, I consulted counsel and entered various orders further

progressing this case. Then, relatively soon after my appointment, I entered a Rhines

stay and abeyance order. Roberts v. Norris, 526 F.Supp.2d 926 (E.D. Ark. 2007). I

required monthly status reports from Petitioner’s counsel and they scrupulously

complied.

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“RECENT” BACKGROUND

This case bounced back and forth between the state Circuit Court and the

Arkansas Supreme Court for about 13 years. For example, the Circuit Judge

dismissed the Federal Public Defender and assigned the case to the state defender.

On appeal, the Arkansas Supreme Court reversed. But it is unnecessary to discuss

all the complex series of events that took place. Only a few of these opinions are

critical and necessary to discuss in any detail.6 And, I do so next.

A. ARKANSAS SUPREME COURT FINDS ROBERT’S INCOMPENT TO

WAIVE POSTCONVICTION RELIEF

During the process Roberts made clear to me and others that he wanted to die.

The Circuit Court found he was competent to make that decision. Accordingly, the

Circuit Court dismissed Roberts’s petition for postconviction relief. That decision

was appealed to the Arkansas Supreme Court.

On March 17, 2016, the Arkansas Supreme Court reversed. Roberts v. State,

488 S.W.3d 524 (2016) (Roberts III). The Supreme Court decided that the

postconviction court’s conclusion that Roberts was competent to waive his

6

There were other proceedings. On February 1, 2008, Roberts filed a state

postconviction (Rule 37.5) petition in the Polk County Circuit Court. On June 30,

2010, the court issued an order dismissing the petition without an evidentiary

hearing. Roberts appealed. On December 1, 2011, the Arkansas Supreme Court

dismissed the appeal, holding that the circuit court lacked jurisdiction over the Rule

37.5 petition and that the circuit court could not consider the petition unless the

Arkansas Supreme Court first granted a motion to reopen Rule 37.5 proceedings. On

January 3, 2012, Roberts filed a motion in the Arkansas Supreme Court seeking to

reopen his Rule 37.5 proceedings. On February 14, 2013, the court granted the

motion and allowed Roberts to return to Polk County Circuit Court to litigate his

postconviction claims. Simultaneous with his successful effort to reinstate the Rule

37.5 proceedings, Roberts filed two additional motions in the Arkansas Supreme

Court in an unsuccessful attempt to reopen his direct appeal.

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postconviction rights was clearly erroneous. It said that this conclusion was

inescapable because both the State’s expert witness and Robert’s expert witness

testified that his psychosis, including a diagnosis of schizophrenia, affected his

ability to make a rational decision about waiving his postconviction rights, and the

remaining evidence, including defendant’s letters to the trial court and me asserting

his desire to waive his rights, did not compel an alternative conclusion. The State’s

expert testified that defendant’s auditory hallucinations could affect the content of

his letters.

B. 2018 CIRCUIT COURT DECISION THAT THE ARKANSAS SUPREME

COURT REVIEWED

The case proceeded to the Circuit Court once again. After a three-day hearing

in May of 2017, the judge issued a 95-page opinion on May 17, 2018. Because that

opinion is important and not published, I shall call that document Roberts IV. After

methodically going through each of the claims raised in the postconviction

proceedings, the postconviction judge denied relief. (Filing 245-2 at CM/ECF pp.

355-460.) He made findings of fact and conclusions of law on the following claims:

Claim 1-1-1: Counsel was ineffective for failing to secure a change of

venue of the trial. (Filing 245-2 at CM/ECF p. 356.)

Claim 1-1-2: Counsel was ineffective for inadequate voir dire on

pretrial publicity. (Filing 245-2 at CM/ECF p. 358.)

Claim 1-1-3: Counsel was ineffective for failure to move to excuse for

cause/biased potential jurors. (Filing 245-2 at CM/ECF p. 359.)

Claim 1-1-4: Counsel was ineffective for failure to object to arbitrary

deprivation of full complement of peremptory challenges. (Filing 245-

2 at CM/ECF p. 361.)

Claim 1-1-5: Trial counsel was ineffective for failure to accept an extra

peremptory and strike juror, Glenda Gentry. (Filing 245-2 at CM/ECF

p. 363.)

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Claim 1-2: Counsel provided ineffective assistance by failing to protect

Petitioner from a prejudicial courtroom atmosphere. (Filing 245-2 at

CM/ECF p. 364.)

Claim 1-3-1: Counsel was ineffective for failure to challenge testimony

regarding the salary figure of Petitioner with contradictory evidence.

(Filing 245-2 at CM/ECF p. 366.)

Claim 1-3-2: Counsel was ineffective for failing to challenge the

supposed lack of traffic tickets. (Filing 245-2 at CM/ECF p. 367.)

Claim 1-4: Counsel was ineffective for failing to raise a violation of

Turner v. Louisiana, 379 U.S. 466 (1965.) (Filing 245-2 at CM/ECF p.

369.) [This claim was withdrawn.]

Claim 1-5: Counsel was ineffective for failing to object to hearsay and

failing to protect Petitioner’s confrontation clause rights. (Id.)

Claim 1-6: Counsel was ineffective for failing to protect Petitioner’s

right to be present. (Filing 245-2 at CM/ECF p. 370.)

Claim 1-7: Counsel was ineffective for failing to support Petitioner’s

motion to suppress with readily available and legal authority. (Filing

245-2 at CM/ECF p. 372.)

Claim 1-8: Counsel was ineffective for failing to raise prosecutorial

misconduct. (Filing 245-2 at CM/ECF p. 374.)

Claim 1-8-1: Failure to object to improper arguments. (Id.)

Claim 1-8-2: Failure to make a record of the prosecutor orchestrating

extraneous and impermissible influence. (Filing 245-2 at CM/ECF p.

379.)

Claim 1-8-3: Failure to object to false testimony. (Filing 245-2 at

CM/ECF p. 380.)

Claim 1-8-4: Failure to object to the prosecutor’s failure to disclose

material exculpatory information, pursuant to Brady v. Maryland, 373

U.S. 83 (1963.) (Filing 245-2 at CM/ECF p. 382.)

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Claim 1-8-5: Failure to object to the prosecution’s intentional

dissemination of inadmissible and prejudicial information. (Filing 245-

2 at CM/ECF p. 384.)

Claim 1-8-6: Failure to object to improper ex-parte contact. (Id.)

Claim 1-9: Counsel was ineffective in litigating competency to stand

trial. (Filing 245-2 at CM/ECF p. 385.)

Claim 1-10: Trial counsel was ineffective in failing to properly support

Petitioner’s “lack of capacity” defense. (Filing 245-2 at CM/ECF p.

389.)

Claim 1-11: Trial counsel was ineffective for failing to present evidence

of juror misconduct. (Filing 245-2 at CM/ECF p. 391.)

Claim 1-11-1: Juror Wornick’s undisclosed bias. (Id.)

Claim 1-11-2: Juror Denton’s undisclosed bias. (Filing 245-2 at

CM/ECF p. 392.)

Claim 1-11-3: Juror Mos’s undisclosed bias. (Id.)

Claim 1-11-4: Juror Powell’s undisclosed bias. (Id.)

Claim 1-11-5: A juror conducted personal investigation. (Filing 245-2

at CM/ECF p. 393.)

Claim 1-11-6: Failure to object to juror’s refusal to consider mitigation.

(Id.)

Claim 1-11-7: Failure to discover the jury’s preconceived sentencing

decision. (Filing 245-2 at CM/ECF p. 396.)

Claim 1-11-8: Failure to object to the jury’s failure to complete verdict.

(Id.)

Claim 1-11-9: Failure to discover that juror failed to take responsibility

for verdict. (Filing 245-2 at CM/ECF p. 397.)

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Claim 1-11-10: Consideration of improper and irrelevant factors. (Id.)

Claim 1-11-11: Contamination from illegitimate and extraneous

influences. (Filing 245-2 at CM/ECF p. 398.)

Claim 1-12: Counsel’s cumulative performance was unreasonable and

prejudicial. (Filing 245-2 at CM/ECF p. 399.)

Claim 2: Petitioner suffered ineffective assistance at the penalty phase.

(Id.)

Claim 2-1: Defense counsel unreasonably failed to “life qualify” the

jury. (Id.)

Claim 2-2: Presenting harmful evidence and argument. (Filing 245-2 at

CM/ECF p. 401.)

Claim 2-3: Failure to present evidence effectively in mitigation. (Filing

245-2 at CM/ECF p. 404.)

Claim 2-4: Trial counsel ineffectively failed to object to improper

victim impact. (Filing 245-2 at CM/ECF p. 408.)

Claim 2-5: Failure to claim a categorical exemption from the death

penalty due to severe mental illness and brain damage. (Filing 245-2 at

CM/ECF pp. 409-410.)

Claim 2-6: Trial counsel was ineffective for failing to challenge the

verdict forms. (Filing 245-2 at CM/ECF p. 411.)

Claim 2-7: Failure to challenge capital murder and death penalty

statutes and the aggravating circumstance. (Id.)

Claim 2-7-1: Failure to challenge the aggravating circumstance. (Filing

245-2 at CM/ECF p. 412.)

Claim 2-7-2: Failure to challenge Arkansas’s Capital Sentencing

Procedure. (Filing 245-2 at CM/ECF p. 414.)

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Claim 2-7-3: Failure to challenge the arbitrary discretion granted by

Arkansas’s murder statutes. (Filing 245-2 at CM/ECF p. 415.)

Claim 2-8: Counsel’s errors at sentencing were cumulatively

unreasonable and prejudicial. (Filing 245-2 at CM/ECF p. 417.)

Claim 3: Counsel was ineffective during the post-trial stage. (Id.)

Claim 3-1: Counsel was ineffective for failing to file a motion for new

trial raising claims of juror misconduct. (Id.)

Claim 3-2: Counsel was ineffective for failing to file a motion for new

trial, claiming the denial of Petitioner’s right to be present. (Filing 245-

2 at CM/ECF p. 419.)

Claim 3-3: Counsel was ineffective for failing to file a motion for new

trial raising claims of prosecutorial misconduct. (Filing 245-2 at

CM/ECF p. 420.)

Claim 3-4: Trial counsel was ineffective for failing to protect

Petitioner’s right to appeal during the post-trial period. (Id.)

Claim 3-5: Trial counsel was ineffective for failing to raise ineffective

assistance of trial and sentencing counsel during the post-trial period.

(Filing 245-2 at CM/ECF p. 422.)

Claim 4: Petitioner suffered ineffective assistance of counsel on appeal.

(Filing 245-2 at CM/ECF p. 423.)

Claim 4-1: Mandatory review counsel was ineffective for failing to

claim that trial counsel was ineffective. (Id.)

Claim 4-2: Mandatory review counsel was ineffective for failing to

raise pre-trial publicity claim. (Filing 245-2 at CM/ECF p. 424.)

Claim 4-3: Mandatory review counsel was ineffective for failing to

claim that jurors should have been removed for cause. (Id.)

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Claim 4-4: Mandatory review counsel was ineffective for failing to

argue that the prejudicial courtroom atmosphere was unconstitutional.

(Filing 245-2 at CM/ECF p. 425.)

Claim 4-5: Mandatory review counsel was ineffective for failing to

raise the violations of Turner v. Louisiana, 379 U.S. 466 (1965.) (Id.)

Claim 4-6: Mandatory review counsel was ineffective for failing to

raise hearsay/ confrontation clause issues. (Id.)

Claim 4-7: Mandatory review counsel was ineffective for failing to

argue Petitioner’s right to be present. (Filing 245-2 at CM/ECF p. 426.)

Claim 4-8: Mandatory review counsel was ineffective for failing to

argue the motion to suppress with readily available evidence and

authorities. (Id.)

Claim 4-9: Mandatory review counsel was ineffective for failing to

argue prosecutorial misconduct. (Id.)

Claim 4-10: Ineffectiveness for failing to argue incompetency to stand

trial. (Filing 245-2 at CM/ECF p. 427.)

Claim 4-11: Ineffectiveness for failure to argue juror misconduct.

(Filing 245-2 at CM/ECF p. 428.)

Claim 4-12: Ineffectiveness for failure to argue ineffectiveness of

sentencing counsel. (Id.)

Claim 4-13: Ineffectiveness for failure to argue “life qualification.”

(Filing 245-2 at CM/ECF p. 429.)

Claim 4-14: Ineffectiveness for failure to argue impermissible victim

impact. (Id.)

Claim 4-15: Failure to argue categorical exclusion from the death

penalty. (Filing 245-2 at CM/ECF pp. 429-430.)

Claim 4-16: Failure to argue the Petitioner’s right to consideration of

mitigation. (Filing 245-2 at CM/ECF at p. 430.)

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Claim 4-17: Failure to challenge statutes and aggravating

circumstances. (Id.)

Claim 4-18: Failure to argue ineffectiveness of counsel during post-trial

stage. (Filing 245-2 at CM/ECF p. 431.)

Claim 4-19: Failure to challenge validity of direct appeal waiver.

(Filing 245-2 at CM/ECF p. 432.)

Claim 4-20: Ineffectiveness for failing to argue cumulative error. (Id.)

Claim 5: The atmosphere of the community and the pretrial publicity

was so prejudicial and inflammatory that Petitioner was deprived of a

fair trial. (Filing 245-2 at CM/ECF pp. 432-433.)

Claim 6: The prejudicial atmosphere during trial violated Petitioner’s

constitutional rights. (Id.)

Claim 7: Petitioner was incompetent to stand trial. (Filing 245-2 at

CM/ECF p. 434.)

Claim 8: Petitioner’s rights were violated by juror misconduct. (Filing

245-2 at CM/ECF p. 437.)

Claim 9: The bailiff in charge of the jury was the Sheriff’s key witness

for the prosecution at both the guilty and penalty phases, in violation of

due process. (Filing 245-2 at CM/ECF p. 438.)

Claim 10: Arkansas’s death penalty scheme in general, and the

aggravating circumstance used in this case, are unconstitutional. (Id.)

Claim 11: Petitioner’s waiver of direct appeal was invalid and taken in

violation of this constitutional rights. (Filing 245-2 at CM/ECF p. 439.)

Claim 12: Petitioner’s right to be present was violated. (Filing 245-2 at

CM/ECF p. 440.)

Claim 13: Petitioner’s statement and its fruits should have been

suppressed. (Id.)

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Claim 14: Petitioner’s death sentence should be vacated because the

trial court failed to life-qualify the jury. (Filing 245-2 at CM/ECF p.

441.)

Claim 15: Petitioner is categorically excluded from the death penalty as

a result of psychiatric illnesses and brain damage. (Filing 245-2 at

CM/ECF p. 442.)

Claim 16: The jury failed to consider and give meaningful effect to

mitigating evidence. (Filing 245-2 at CM/ECF p. 446.)

Claim 17: Petitioner’s constitutional rights were violated by cumulative

error. (Id.)

Claim 18: Petitioner suffered from intellectual disability at the time of

the offense and is therefore ineligible for a death sentence. (Filing 245-

2 at CM/ECF p. 447.)

C. REVIEWING ROBERTS IV, THE ARKANSAS SUPREME COURT

DECIDES IN ROBERTS V THAT ROBERTS IS NOT ENTITLED TO ANY

RELIEF

This matter was finally resolved by Roberts v. State, 593 S.W.3d 675 (2020).

(Roberts V) in the Arkansas Supreme Court. In summary, the court made the

following rulings:

1 The defendant was not denied effective assistance as

result of counsel’s failure to investigate and present

evidence of his schizophrenia during guilt phase;

2 The trial court did not commit clear error in determining

that defendant was competent to stand trial;

3 The defendant was not denied effective assistance as

result of counsel’s failure to pursue change of venue;

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4 The defendant’s claim of denial his right to impartial

jury was not cognizable in post-conviction proceeding;

5 The defendant was not denied effective assistance as

result of trial counsel’s failure to search his Social Security

records;

6 The defendant was not denied effective assistance as

result of counsel’s failure to introduce evidence that he had

eleven speeding violations; and

7 The defendant’s claim that he was incompetent to be

executed was not ripe.7

There was an impassioned dissent. In part, it read:

7

The Arkansas Supreme Court suggested that if a death warrant is later issued,

a claim that Roberts cannot be executed because he was then severely mentally ill

would be ripe and may entitle him to consideration at that time. See Roberts V, 592

S.W.3d at 685. See also Panetti v.Quarterman, 551 U.S. 930 (2007). Even then, and

without prejudging the matter, Roberts would seem to have an uphill battle. See

Dunn v. Commissioner, 138 S.Ct. 9 (2017) (Alabama state court’s determination that

petitioner sentenced to death for capital murder was competent to be executed, even

if recent strokes suffered by petitioner left him unable to remember committing the

murder, was not unreasonable application of Supreme Court precedent, and thus

federal habeas relief was not warranted under Antiterrorism and Effective Death

Penalty Act (AEDPA); testimony of court-appointed psychologist and psychologist

retained by petitioner established that notwithstanding memory loss, petitioner

recognized that he would be put to death as punishment for murder he was found to

have committed.) However, for habeas purposes, his distinct intellectual disability

claim is ripe now. See, e.g., Davis v. Kelly, 834 F.3d 867, 971-972 (8th Cir. 2017)

(Death row inmate’s claim that Eighth Amendment forbids execution of

intellectually disabled person became ripe at time his sentence was imposed, rather

than when his warrant was issued).

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I dissent. The defendant, Karl Roberts (Roberts), was not

competent to stand trial at the time of his prosecution in

1999. The constitution prohibits the criminal prosecution

of a defendant who is not competent to stand trial, and

competence requires the ability to assist effectively in his

or her own defense. See, e.g., Newman v. State, 2014 Ark.

7, 2014 WL 197789. The fact that Roberts was

incompetent to stand trial, standing alone, compels that his

conviction be vacated under Rule 37, without regard to the

reasonableness of his trial counsel’s representation. See

Ark. R. Crim. P. 37.1(a)(i) (providing for relief where “the

sentence was imposed in violation of the Constitution and

laws of the United States or this state”); Cothren v. State,

344 Ark. 697, 704, 42 S.W.3d 543, 547–48 (2001) (“A

petitioner may also qualify for Rule 37 relief, regardless

of trial counsel’s performance, if he demonstrates error so

fundamental as to render the judgment of conviction void

and subject to collateral attack.”).

...

All the evidence presented below supports the conclusion

that Roberts was incompetent both at the time of the crime

and for purposes of standing trial. Much of the litigation

in this matter has revolved around the past opinions of two

experts, Dr. Mallory and Dr. Wetherby, who examined

Roberts before trial in 1999 and concluded he was

competent to stand trial, though both acknowledged

reservations in their opinions. Importantly, those opinions

have since been dispelled. The clinical assessments that

formed the basis for those two opinions were incorrectly

scored and incompletely administered.

Both doctors administered the Georgia Competency Test

(GCT), and both doctors mishandled the questions

designed to assess whether the subject can assist his

attorneys in his defense. As an example, Dr. Mallory noted

at the pretrial competency hearing that “if someone were

to lie about him in court, ... he would tell his lawyer,” but

on the GCT, Roberts actually said he would “call them a

liar out loud” and “I couldn’t control myself.” Moreover,

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Dr. Mallory entirely failed to administer the portion of the

test meant to identify psychosis. Similarly, Dr. Wetherby

gave Roberts a passing score (at least “20”) on the

competency test she administered, but the evidence

presented below indicates that Roberts actually scored

only a 17 or an 18—a failing score that would have

indicated Roberts was incompetent to stand trial. These

incorrect and incomplete evaluations were what Dr.

Mallory and Dr. Wetherby based their opinions on in

determining that Roberts was competent to stand trial. At

the hearing below, the State presented no evidence of its

own to contradict the assertion that these errors did, in fact,

occur.

Roberts’s postconviction attorneys demonstrated below

both that these errors occurred and that they were material.

Had the assessments been properly performed before the

first trial, the results would have shown that Roberts was

incompetent. There is no other evidence to suggest

Roberts was competent; instead, all the evidence—

including detailed testimony by forensic experts,

illustrative accounts from Roberts’s family and

acquaintances about his life, and the difficulties explained

by Roberts’s trial attorneys themselves—supports that

Roberts suffered a psychotic break and was unable to

assist his trial attorneys in his defense. All this information

is now in the record, and none of it is refuted by the State,

nor is that lack of contrary evidence addressed by the

majority.

In short, Roberts’s postconviction attorneys established

that his cognitive state was so reduced by disease and

trauma that he could not assist his trial attorneys in

preparing and presenting his defense—manifesting all the

way up to and specifically including the trial itself. The

evidence presented at the postconviction hearing to show

Roberts’s incompetence was overwhelming and

uncontroverted in all material respects—including the

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salient errors by the experts who examined Roberts before

trial.

Id. at 686-688.

THE GENERALLY APPLICABLE FEDERAL LAW

Various strands of federal habeas law intertwine in this case. They are (1)

exhaustion and procedural default; (2) the deference that is owed to the state courts

when a federal court reviews the legal conclusions and factual findings set forth in

an opinion of a state court; and (3) the standard for evaluating a claim of ineffective

assistance of counsel. I set forth these strands now and apply them later. (When

necessary, additional state and federal law will be referred to later.)

A. EXHAUSTION AND PROCEDURAL DEFAULT

As set forth in 28 U.S.C. § 2254:

(b)(1) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be granted

unless it appears that–

(A) the applicant has exhausted the remedies available in the

courts of the State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to

protect the rights of the applicant.

28 U.S.C. § 2254(b)(1).

The United States Supreme Court has explained the habeas exhaustion

requirement as follows:

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Because the exhaustion doctrine is designed to give the state courts a

full and fair opportunity to resolve federal constitutional claims before

those claims are presented to the federal courts . . . state prisoners 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 (1999).

“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.” Carney v.

Fabian, 487 F.3d 1094, 1096 (8th Cir. 2007) (internal citation and quotation

omitted). Although the language need not be identical, “[p]resenting a claim that is

merely similar to the federal habeas claim is not sufficient to satisfy the fairly

presented requirement.” Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999). In

contrast, “[a] claim has been fairly presented when a petitioner has properly raised

the ‘same factual grounds and legal theories’ in the state courts which he is

attempting to raise in his federal habeas petition.” Wemark v. Iowa, 322 F.3d 1018,

1021 (8th Cir. 2003) (citation omitted).

Where “no state court remedy is available for the unexhausted claim—that is,

if resort to the state courts would be futile—then the exhaustion requirement in §

2254(b) is satisfied, but the failure to exhaust ‘provides an independent and adequate

state-law ground for the conviction and sentence, and thus prevents federal habeas

corpus review of the defaulted claim, unless the petitioner can demonstrate cause

and prejudice for the default.’” Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir. 2005)

(quoting Gray v. Netherland, 518 U.S. 152, 162 (1996)).

To be precise, a federal habeas court may not review a state prisoner’s federal

claims if those claims were defaulted in state court pursuant to an independent and

adequate state procedural rule “unless the prisoner can demonstrate cause for the

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default and actual prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a fundamental

miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Also, a

credible showing of actual innocence may allow a prisoner to pursue his

constitutional claims on the merits notwithstanding the existence of a procedural bar

to relief. McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). To invoke the actual

innocence exception, a petitioner “must show that in light of all the evidence, ‘it is

more likely than not that no reasonable juror would have found petitioner guilty

beyond a reasonable doubt.’” Jennings v. United States, 696 F.3d 759, 764-65 (8th

Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 327, (1995)). “‘[A]ctual

innocence’ means factual innocence, not mere legal insufficiency.” Id. (quoting

Bousley v. United States, 523 U.S. 614, 623 (1998)).8

B. DEFERENTIAL STANDARD UNDER 28 U.S.C. § 2254(D)

When a state court has adjudicated a habeas petitioner’s claim on the merits,

there is a very limited and extremely deferential standard of review both as to the

law and the facts. See 28 U.S.C. § 2254(d). Section 2254(d)(1) states that a federal

court may grant a writ of habeas corpus if the state court’s decision “was contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As

8

In Respondent’s excellent brief, Respondent’s lawyers made the following

statement: “The unique procedural posture of this case, having been stayed and held

in abeyance for over a decade, while Roberts, in relatively piecemeal fashion raised

his unexhausted claims in state court, means that the majority of Roberts’s claims

now have been reviewed and rejected on the merits by the state courts.” (Filing 277

at CM/ECF p. 23.) It appears that Respondent concedes that most of Robert’s claims

have been exhausted and not procedurally defaulted. However, and while not a

procedural default, Roberts is not entitled to two bites of the apple in the Arkansas

courts. That is, Roberts cannot relitigate a claim in an Arkansas postconviction

action that had previously been denied in a direct appeal. Kemp v. State, 74 S.W.3d

224, 232 (2002) (“Rule 37 does not allow appellant to reargue points decided on

direct appeal.”).

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explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362 (2000), a state

court acts contrary to clearly established federal law if it applies a legal rule that

contradicts the Supreme Court’s prior holdings or if it reaches a different result from

one of that Court’s cases despite confronting indistinguishable facts. Id. at 405-06.

Further, “it is not enough for [the court] to conclude that, in [its] independent

judgment, [it] would have applied federal law differently from the state court; the

state court’s application must have been objectively unreasonable.” Rousan v.

Roper, 436 F.3d 951, 956 (8th Cir. 2006).

With regard to the deference owed to factual findings of a state court’s

decision, section 2254(d)(2) states that a federal court may grant a writ of habeas

corpus if a state court proceeding “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)(2). Additionally, a federal court must

presume that a factual determination made by the state court is correct, unless the

petitioner “rebut[s] the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1).

As the Supreme Court noted, “[i]f this standard is difficult to meet, that is

because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The

deference due state court decisions “preserves authority to issue the writ in cases

where there is no possibility fair-minded jurists could disagree that the state court’s

decision conflicts with [Supreme Court] precedents.” Id.

However, this high degree of deference only applies where a claim has been

adjudicated on the merits by the state court. See Brown v. Luebbers, 371 F.3d 458,

460 (8th Cir. 2004) (“[A]s the language of the statute makes clear, there is a

condition precedent that must be satisfied before we can apply the deferential

AEDPA [Antiterrorism and Effective Death Penalty Act] standard to [the

petitioner’s] claim. The claim must have been ‘adjudicated on the merits’ in state

court.”).

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The Eighth Circuit clarified what it means for a claim to be adjudicated on the

merits, finding that:

AEDPA’s requirement that a petitioner’s claim be adjudicated on the

merits by a state court is not an entitlement to a well-articulated or even

a correct decision by a state court. Accordingly, the postconviction trial

court’s discussion of counsel’s performance—combined with its

express determination that the ineffective-assistance claim as a whole

lacked merit—plainly suffices as an adjudication on the merits under

AEDPA.

Worthington v. Roper, 631 F.3d 487, 496-97 (8th Cir. 2011) (internal quotation

marks and citations omitted).

The court also determined that a federal court reviewing a habeas claim under

AEDPA must “look through” the state court opinions and “apply AEDPA review to

the ‘last reasoned decision’ of the state courts.” Id. at 497. A district court should do

“so regardless of whether the affirmance was reasoned as to some issues or was a

summary denial of all claims.” Id.

C. THE ESPECIALLY DEFERENTIAL STRICKLAND STANDARD

When a petitioner asserts an ineffective assistance of counsel claim, the two-

pronged standard of Strickland v. Washington, 466 U.S. 668 (1984), must be applied.

The standard is very hard for offenders to satisfy.

Strickland requires that the petitioner demonstrate both that his counsel’s

performance was deficient, and that such deficient performance prejudiced the

petitioner’s defense. Id. at 687. The first prong of the Strickland test requires that the

petitioner demonstrate that his attorney failed to provide reasonably effective

assistance. Id. at 687-88. In conducting such a review, the courts “indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 689.

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The second prong requires the petitioner to demonstrate “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. Further, as set forth in Strickland, counsel’s

“strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable” in a later habeas corpus action. Id.

at 690.

Additionally, the Supreme Court has emphasized that the deference due the

state courts applies with special vigor to decisions involving ineffective assistance

of counsel claims. Knowles v. Mirzayance, 556 U.S. 111 (2009). In Knowles, the

Justices stressed that under the Strickland standard, the state courts have a great deal

of “latitude” and “leeway,” which presents a “substantially higher threshold” for a

federal habeas petitioner to overcome. As stated in Knowles:

The question is not whether a federal court believes the state court’s

determination under the Strickland standard was incorrect but whether

that determination was unreasonable—a substantially higher threshold.

And, because the Strickland standard is a general standard, a state court

has even more latitude to reasonably determine that a defendant has not

satisfied that standard.

Id. at 123 (internal quotation marks and citations omitted).

Strickland applies equally to appellate counsel, and appellate counsel is

entitled to the “benefit of the doubt.” Woods v. Etherton, 136 S. Ct. 1149, 1153

(2016) (a “fairminded jurist” could have concluded that repetition of anonymous tip

in state-court cocaine-possession trial did not establish that the uncontested facts it

conveyed were submitted for their truth, in violation of the Confrontation Clause, or

that petitioner was prejudiced by its admission into evidence, precluding federal

habeas relief under AEDPA; petitioner could not establish that petitioner’s appellate

counsel was ineffective, as appellate counsel was entitled to the “benefit of the

doubt”).

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The imposition of the death penalty does not dilute the doubly deferential

standard that must be applied to ineffective assistance of counsel claims. “[I]n more

concrete terms, a federal court may grant relief only if every ‘fairminded juris[t]’

would agree that every reasonable lawyer would have made a different decision.”

Dunn v. Reeves, 141 S. Ct. 2405, ---- (2021) (the Supreme Court held that state

postconviction counsel reasonably determined that counsel did not perform

deficiently, as element of ineffective assistance of counsel, in failing to hire an expert

to develop penalty-phase mitigation evidence of intellectual disability, after

receiving funding to retain an expert) (emphasis in original).

ANALYSIS

Again, I have taken a minimalist approach given AEDPA and the

extraordinary age of this case. But I have done so with an emphasis on caution and

concern for accuracy. After all, I deal with the life of a human being.

It is also worth noting for the reader the way in which Roberts phrased his

claims in the amended federal petition filed in 2020 and related brief in this court

compared to the way he phrased them in the Arkansas courts. This sometimes makes

it difficult and confusing to match them up, particularly as to whether his federal

claims were denied on the merits. Without intending to be hard on Roberts’ excellent

counsel, it would have been easier for me (and the reader) if the claims were stated

in the same order using the same wording in this court, Roberts IV and Roberts V.

Claim 1: Roberts is intellectually disabled.

Based on the Eighth Amendment, Roberts asserts that he cannot be executed

because of his intellectual disability. Atkin v. Virginia, 536 U.S. 304 (2002)

(Execution of mentally retarded criminal is unconstitutionally “cruel and unusual

punishment.”). Cf. Moore v. Texas, 139 S.Ct 666 (2017) (To make a finding of

intellectual disability, for purposes of Eighth Amendment protection against

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execution of an intellectually disabled person, a court must see: (1) deficits in

intellectual functioning, which is primarily a test-related criterion; (2) adaptive

deficits, assessed using both clinical evaluation and individualized measures; and (3)

the onset of these deficits while the defendant was still a minor).

Although phrased in the present tense (“is”), one assumes that Petitioner

means that he was intellectually disabled in 1999 when the murder took place or

2000 when the trial took place. That was how the postconviction judge perceived

and addressed the claim. (Filing 245-2 at CM/ECF p. 447.) See also Davis, 854 F.3d

at 971-972 (Whether Davis is now, in 2017, intellectually disabled has no bearing

on whether he had the requisite moral culpability for the murder he committed in

1990. See In re Bowling, 422 F.3d 434, 436 (6th Cir.2005) (‘Thus, the key

substantive question before this court is whether Bowling was mentally retarded at

the time he committed the murders of James and Tina Early.’ (emphasis added)”).

Albeit in the context of his confession, the Arkansas Supreme Court in

Roberts I decided that Roberts was not so intellectually challenged as to warrant

relief. That is:

The evidence showed that Roberts was thirty-one years

old at the time and that he had graduated high school and

had held a job for the last six years. The evidence also

showed that Roberts had been married for ten years and

that he had two children. Dr. Mallory testified that

Roberts’s overall I.Q. was seventy-six, which placed him

in the range of borderline intellectual functioning. Mallory

indicated, however, that Roberts could read and write at a

high school level, and that he reads like a person who has

a higher I.Q.

Roberts I, 102 S.W.3d at 490.

The postconviction judge considered this claim in detail. He wrote:

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Claim 18: Petitioner Suffered from Intellectual Disability at the

Time of the Offense and is Therefore Ineligible for a Death Sentence.

Findings of Fact: At the Rule 37 post conviction evidentiary

hearing, Dr. Garrett Andrews, a neuro-psychologist, testified on behalf

of the Petitioner. (TR. 1108-1134.) Dr. Andrews did not interview

Petitioner (TR. 1128) or members of his family. (TR. 1112; TR. 1129.)

He reviewed the records of Petitioner for approximately five (5) or six

(6) hours. (TR. 1129.) He testified that he received the records that he

reviewed from the Federal Attorney’s Office. (TR. 1132.) He did not

review letters Petitioner had written to the Court. (TR. 1131.)

Dr. Andrews testified after reviewing the raw data and reports

that Petitioner had an intellectual disability in 1999. (TR. 1112.) He

testified that Petitioner had been given “the full battery” of intellectual

testing in August or September, 1999 by Drs. Mallory and Wetherby.

(TR. 1113-1114.) He testified that Petitioner had an IQ score of 76

which would not standing alone rule out a diagnosis of intellectual

disability. (TR. 1115.) He stated that based on his review, Dr. Mallory

did not look at any adaptive functioning deficits with respect to

Petitioner. (TR. 1116.) He characterized Petitioner’s intellectual

disability as mild. (TR. 1125.) He testified that a person with mild

intellectual disability is not excluded from holding a job and can live in

an apartment, drive a car, and play the drums. (TR. 1122.) Petitioner

was tested until the eleventh grade and could not exceed an eighth-

grade level in any subjects. (TR. Ex. 35, 43.)

Conclusions of Law: In Roberts v. State, 102 S.W.3d 482 (2003),

the Supreme Court found no error in the findings by the trial court that

in 1999 Petitioner had a full-scale I.Q. of seventy-six (76) which placed

him within the borderline intellectual functioning range and that

Petitioner had graduated from high school, could read and write on a

high school level, held the same job for the previous six (6) years and

had a wife of ten (10) years and a family. According to the testimony

of Dr. Mallory, Petitioner understood the criminal justice system and

the procedure of trial. The doctor stated Petitioner demonstrated to him

that Petitioner understood his legal rights and the trial process. He

testified that Petitioner knew the difference between right and wrong

and that he had the ability to conform his conduct to the requirements

of the law. Dr. Mallory also stated that Petitioner was cognitive of his

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actions and that he took steps to avoid apprehension both before and

after the crime. Petitioner also had “decided to kill Andria because he

knew that she could identify him as having raped her.” (Id. at 497.) The

Supreme Court found no error in these conclusions of the trial court.

As the court has previously found, the rule governing petitions

for post conviction relief does not provide an opportunity to reargue

points that were settled on direct appeal. (Davis v. State, 44 S.W.3d

726, 345 Ark. 161 (2001).) It should also be noted that the Davis court

held that Rule 37 never was intended to provide a means to add

evidence to the record or to refute evidence adduced at trial. (Id. at 172.)

(Emphasis added.)

In this case, Petitioner supports his claim with testimony of Dr.

Andrews presented at the Rule 37 evidentiary hearing which refutes the

evidence of Dr. Mallory introduced at trial. The question of the

competency of the Petitioner at the time of the offense was settled on

direct appeal and cannot be reargued or refuted in this post conviction

proceeding.

(Filing 245-2 at CM/ECF pp. 447-449.)9

Thus, to the extent that Petitioner claims he was intellectually disabled

in 1999 or 2000 I reject the claim. The Arkansas Supreme Court in Roberts I

clearly found otherwise. Applying the deferential standard of review that I am

obligated to apply under §§ 2254(d)(1) and 2254(d)(2), I find no basis to

overturn Roberts I (or Roberts IV). More specifically, under § 2254(e)(1)

Roberts has not rebutted the presumption of factual correctness in Roberts I

regarding intellectual disability by clear and convincing evidence. In this

regard, it is noteworthy that Dr. Andrews did a records review, and did not

9

See also filing 245-2 at CM/ECF p. 390 discussing the testimony of Dr.

Matthew Mendell who concluded that Roberts had diminished intellectual

functioning. This came in the context of an ineffective assistance of counsel claim.

The doctor did not interview Roberts. He relied on the records and what he had

heard.

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interview Roberts.10 His review took place almost two decades after the

relevant time frame.

Claim 2: Roberts was not competent to be tried.

In Roberts IV, the postconviction judge resolved this issue against

Petitioner. In his opinion, the postconviction judge wrote the following:

Claim 7: Petitioner was Incompetent to Stand Trial

Findings of Fact: This court adopts the “Findings of Fact”

set forth in “claim 1-9, claim 1-10, issues 2-2, 2-3 and

issue 4-10” which are incorporated by reference as if fully

set forth herein.

Conclusions of Law: Petitioner alleges in his post-hearing

brief that “the record of the Rule 37 hearing is replete with

evidence that Karl suffered from schizophrenia, that he

was psychotic at the time of trial, and that he was unable

to assist his counsel.”

As already pointed out, A.C.A.§ 5-2-301 et seq. sets forth

the procedures for determination of the competency of a

defendant as well as his fitness to proceed and assist in his

or her own defense.

Petitioner was convicted and sentenced to death by order

of the trial court entered on May 23, 2000. On June 13,

2000, Petitioner filed a waiver of appeal. In 2003, the

Supreme Court in Roberts I was required to address the

issue of whether the Petitioner had the capacity to

understand the choice between life and death and to

knowingly and intelligently waive any and all rights to

appeal his sentence. The Supreme Court found that “the

trial judge had the benefit of having heard much

10

In fairness, Roberts refused to meet with defense experts. Filing 245-3 at

CM/ECF p. 3.

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psychological evidence during the pretrial competency

hearing and throughout the course of the trial.” Id. at 496.

The trial court heard from defense experts, Dr. Archer and

Dr. Wetherby, who both testified that as a result of brain

injury, Petitioner suffered from hallucinations and his

ability to conform his conduct to the requirements of the

law was impaired. The state presented testimony from Dr.

Rutherford and Dr. Mallory which conflicted with the

testimony of the defense experts. Dr. Mallory testified as

a rebuttal witness for the state and as noted earlier, testified

that he could not find the existence of any form of

schizophrenia and that Petitioner had the capacity to

understand the proceedings against him and that he had the

capacity to assist effectively in his own defense. (R. 2595.)

The trial court relied on this evidence and the Supreme

Court found that “the foregoing evidence demonstrates

that the trial court did not clearly err in determining

Roberts knowingly and intelligently waived his rights of

appeal.” Id. at 497. Although the Supreme Court

determined that Petitioner at the time was competent to

waive his right of appeal, it stands to reason that at that

time, Petitioner was also competent to stand trial. After all,

the testimony of Dr. Mallory presented by the state was for

the purpose of determining that Petitioner was competent

at the time. The Supreme Court found that based “on his

tests and interviews” with Petitioner as well as his medical

and psychological records, and the results of the Georgia

Court Competency Test, Dr. Mallory “ultimately

concluded” that Petitioner understood the criminal justice

system, the procedures of the trial and that Petitioner knew

the difference between right and wrong and that he had the

ability to conform his conduct to the requirements of the

law. The court noted that “Mallory relied on the foregoing

facts as well as on Roberts’ actions in the crime.” Id. at.

496-497.

During the Rule 37 post conviction evidentiary hearing,

Petitioner relied on the testimony of Dr. Fuguii, who

testified that Dr. Mallory’s determination that Petitioner

was competent to stand trial was based on incomplete

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administration and incorrect scoring of the Georgia

Competency Test. In other words, according to Petitioner

the trial court and the Supreme Court got it wrong in 1999

and 2003.

The Supreme Court has held that a Petitioner who asserts

incompetence to stand trial for the first time in a petition

for post conviction relief has “the heavy burden” of

demonstrating the facts that he or she was not competent

at the time of trial; the mere fact that the Petitioner can

document a history of mental illness or show that counsel

could have argued incompetence but chose not to do so,

does not in itself entitle the Petitioner to a new trial under

Rule 35. (Burnett v. State, 293 Ark. 300, 741 S.W.2d 624

(1987). Here, Petitioner attempted to show that he was not

competent to assume responsibility for his conduct due to

severe traumatic brain injury in the past which caused him

to suffer from hallucinations and other forms of psychotic

behavior and was therefore, not competent to stand trial.

This history of mental problems suffered by Petitioner was

documented. However, the diagnosis of Petitioner by Dr.

Fuguii in 2018 with the diagnosis of Petitioner by Dr.

Mallory in 1999-2000 does not in itself rise to the level of

granting Petitioner a new trial under Rule 37. Petitioner

has failed to overcome the finding that Petitioner was not

[sic] competent at the time of his trial. In sum, Petitioner

has not demonstrated that his current mental condition

equates with his condition at the time of trial in 1999.

Filing 245-2 at CM/ECF pp. 434-437

The Arkansas Supreme Court evaluated this claim in Roberts V. The

court wrote regarding “Competency to Stand Trial” as follows:

First, Roberts argues that over-whelming evidence

establishes that he has long suffered from schizophrenia;

that his schizophrenia rendered him incompetent to stand

trial; and that trial counsel failed to investigate and present

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evidence of his schizophrenia during the guilt phase.

Regarding the alleged deficiencies in trial counsels’

performance, we conclude that counsel cannot be

considered ineffective for failing to investigate Roberts’s

schizophrenia when the four mental health professionals

who testified at trial did not diagnose him as such. One

of the defense experts, Dr. Mary Wetherby, noted that a

diagnosis of schizophrenia was ‘‘suggested,’’ but she went

on to find that while Roberts ‘‘possessed a decreased

ability to conform his behavior to the requirements of the

law,’’ he did not lack the ability to appreciate the

criminality of his behavior at the time of the offense and

he was competent to stand trial. Counsel’s performance

must be viewed from counsel’s perspective at the time of

trial, and Roberts was not diagnosed with schizophrenia

until years later. We recognize counsel’s argument that a

reasonable attorney would have recognized the signs of

Roberts’s mental disease; would have investigated their

client’s paranoia and visual and auditory hallucinations;

would have followed up on Dr. Wetherby’s suspicions of

schizophrenia; and would have consulted another expert.

With the benefit of hindsight, further investigation into

mental disease may seem appropriate, but we view trial

counsel’s performance from their perspective at the time

of trial. Based on expert reports, trial counsel focused on

the mental defect caused by Roberts’s child- hood accident

involving a dump truck. The jury heard testimony about

Roberts’s traumatic brain injury that resulted in a loss of

15 percent of the brain tissue in his frontal lobes,

behavioral changes afterward, and expert opinions that his

ability to conform his conduct to the requirements of the

law was impaired and, but for the brain injury, he would

not have committed the crime. Having carefully reviewed

the record, we see no deficient performance by trial

counsel under the standards set forth by Strickland.

In addition, Roberts argues that he was schizophrenic at

the time of the trial and that his schizophrenia rendered

him incompetent to stand trial. A petitioner may also

qualify for Rule 37 relief, regardless of trial counsel’s

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performance, if he demonstrates error so fundamental as

to render the judgment of conviction void and subject to

collateral attack. Cothren v. State, 344 Ark. 697, 704, 42

S.W.3d 543, 547–48 (2001). It is well established that the

Due Process Clause of the Fourteenth Amendment

prohibits the criminal prosecution of a defendant who is

not competent to stand trial. Newman v. State, 2014 Ark.

7, 2014 WL 197789 (citing Medina v. California, 505 U.S.

437, 112 S. Ct. 2572, 120 L.Ed.2d 353 (1992)).

Competency to stand trial has two parts: (1) the capacity

to understand the proceedings against him or her and (2)

the ability to assist effectively in his or her own defense.

See Newman, supra. This court has defined the test of

competency to stand trial as ‘‘whether a defendant has

sufficient present ability to consult with his lawyer with a

reasonable degree of rational under- standing and whether

he has a rational, as well as factual, understanding of the

proceedings against him.’’ Id. (citations omitted).

Here, the issue of Roberts’s competency to stand trial was

litigated before the trial court prior to trial, and he was

found to be competent. At the postconviction hearing,

Roberts’s counsel presented evidence that the competency

testing was flawed. In the order denying Rule 37 relief, the

court found that Roberts had not overcome the previous

finding of competency and that ‘‘Petitioner has not

demonstrated that his current mental condition equates

with his condition at the time of trial in 1999 [sic].’’ We

cannot say that the trial court’s denial of relief on this point

is clearly erroneous, and we thus affirm.

Roberts V, 592 S.W. at 680-681 (emphasis added).

Applying the deferential standard of review that I am obligated to apply

under §§ 2254(d)(1) and 2254(d)(2), together with rebuttable presumption

found in § 2254(e)(1), I reject this claim.

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But there is a twist. In Robert III, the Arkansas Supreme Court decided

that the postconviction court’s conclusion that Roberts was competent to

waive his postconviction rights was clearly erroneous. It said that this

conclusion was inescapable because both the State’s expert witness and

Robert’s expert witness testified that his psychosis, including a diagnosis of

schizophrenia, affected his ability to make a rational decision about waiving

his postconviction rights, and the remaining evidence, including defendant’s

letters to the postconviction court and me asserting his desire to waive his

rights, did not compel an alternative conclusion.

If he was incompetent in 2016, is it a stretch to conclude that he was

also incompetent in 2000 when he was tried? In Roberts V, the court quoted

the Roberts IV postconviction judge who wrote “Petitioner has not

demonstrated that his current mental condition equates with his condition at

the time of trial . . . .” The Arkansas Supreme in Roberts V found that such a

determination was not “clearly erroneous.” Applying the deference due under

AEDPA, Roberts is not entitled to relief.

Claim 3: Counsel was ineffective in the handling of mental-health issues

at the guilt phase.

Issue 3-1: Counsel was ineffective for failing to challenge Roberts’

competency to be tried.

Issue 3-2: Counsel ineffectively pursued the lack-of-capacity

defense.

Issue 3-3: Counsel unreasonably failed to challenge Roberts’

confession on mental-health grounds.

Claim 4: Counsel was ineffective for failing to adequately investigate,

develop, and present mitigating evidence.

Claim 5: Counsel were ineffective for failing to pursue a change of venue.

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Claim 11: Trial counsel should have challenged the jury’s failure to

consider mitigation evidence.

Claim 13: Counsel failed to reasonably respond to prejudicial false

testimony about Roberts’ work history and driving record.

Claim 17: Appellate counsel was ineffective.

I could write book on these ineffective assistance of counsel claims. I won’t.11

To some extent in Roberts I, and to a much greater extent in Roberts IV12 and

Roberts V, the Arkansas courts dissected the performance of counsel under the

proper standard; that is, Strickland. Given the “doubly deferential” nature of review

that I am required to give to these issues, Roberts is not entitled to relief. To be frank,

it is not close.

I stress only one further point. In Roberts V the Arkansas Supreme Court

found that defense counsel could not be faulted when their very well-credentialed

expert (Dr. Mary Wetherby, who was partially trained at a Federal Medical Center

for Federal Prisoners) opined that “Roberts was competent to stand trial.” Roberts

V, 592 S.W. at 680.

11

For what it is worth, if I were to review the ineffective assistance of counsel

claims de novo I would come to the same conclusion, albeit, sometimes, for different

reasons. The four lawyers (with assistance of investigators from the Arkansas

Defender’s office) did a superlative job with a losing hand. But even if they

stumbled, there was no Strickland prejudice to Roberts.

12

I have previously set forth where each of the findings of fact and

conclusions of law appear relative to each claim addressed in the 95-page Roberts

IV opinion. By that reference one can find where each of the ineffective assistance

of counsel claims were discussed by the postconviction judge as well as all the other

claims.

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Claim 6: Roberts’ conviction and death sentence must be vacated because

individuals on the jury did not meet the constitutional standards of

impartiality.

First, this claim has been procedurally defaulted because Arkansas law

requires such matters be first submitted to the trial court via a motion for new trial

and that is so even in death penalty cases. See, e.g. Roberts IV, at CM/ECF pp. 437-

438. No such motion was filed. Furthermore, the Arkansas Supreme Court in

Roberts V agreed:

. . . Roberts argues that he was denied his constitutional

right to an impartial jury when jurors failed to disclose

their actual bias during voir dire. He challenges the

impartiality of jurors Dennie Wornick and Vickie Denton,

both of whom averred during voir dire that they would be

impartial. Appellant points to testimony from the

postconviction hearing, some seventeen years after the

trial, that Wornick believed ‘‘the law says’’ premeditated

murder should result in imposition of the death penalty and

that Denton was biased against Roberts because of pretrial

publicity and her belief that Roberts should get the death

penalty if found guilty. The circuit court found this claim

procedurally barred, citing Howard v. State, 367 Ark. 18,

238 S.W.3d 24 (2006), and Cigainero v. State, 321 Ark.

533, 906 S.W.2d 282 (1995). Indeed, this court has held

that Rule 37 does not provide a means to challenge the

constitutionality of a judgment where the issue could have

been raised in the trial court, and a defendant’s remedy for

alleged juror misconduct is to directly attack a verdict by

requesting a new trial pursuant to Ark. Code Ann. § 16-

89-130(c)(7). See Howard, supra. Although Roberts

attempts to distinguish his case and argues that his claim

of juror misconduct was not known until years later, we

are not persuaded. Because claims of juror misconduct are

not cognizable in this postconviction proceeding, we

affirm on this point.

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Roberts V, 592 S.W.3d at 682.13

I discern no convincing reason such as “cause and prejudice” or “actual

innocence” to excuse this default. Rather this claim has been defaulted and there is

no alternative in state law to resurrect the claim.

Second, even if the default were to be ignored, I am convinced by

Respondent’s argument that this claim was reasonably adjudicated on the merits in

Roberts 1V through discussions of ineffective assistance of counsel claims.

(Respondent’s brief at filing 277, CMECF pp. 117-122.) Applying the deference

that I am required to give this claim must be denied even if it was not procedurally

defaulted.

Claim 7: The trial court violated Roberts’ rights by erroneously failing to

exclude jurors, thus depriving Roberts of his full complement of peremptory

challenges and forcing upon him a juror whom he did not accept.

The loss of a peremptory challenges is not by itself of Constitutional concern

providing that (1) the accused was allowed the peremptory challenges provided for

under state law and (2) the jury ultimately seated was impartial. See, e.g., Ross v.

Oklahoma, 487 U.S. 81, 89-91 (1988) (“Petitioner was undoubtedly required to

exercise a peremptory challenge to cure the trial court's error. But we reject the

notion that the loss of a peremptory challenge constitutes a violation of the

constitutional right to an impartial jury.”); Pickens v.Lockhard, 4 F3d 1446, 1450-

1451 (8th Cir. 1993) (Petitioner was not denied due process by having to use

peremptory strikes to remove prospective jurors (including one who should have

been removed for cause under Witherspoon v. Illinois) whom the state trial court

refused to excuse for cause; Petitioner received all that Arkansas law allowed,

though he retained fewer peremptory challenges to use as he wished).

13

See also Roberts I for juror Gentry. 102 S.W.3d at 492-493.

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From a numerical perspective, it is undisputed that Roberts was afforded the

preemptory strikes the state law allowed. Indeed, the trial judge offered an extra

peremptory strike that was rejected for fear that it would constitute a waiver as to

the issue of whether objections for cause had been improperly denied. As to whether

the jury that was ultimately seated was impartial, this was disputed. But in Roberts

I (by discussions of Juror Gentry, review for plain error and review of “Other

Fundamental Safeguards”)) and Roberts IV (through discussion of ineffective

assistance of counsel claims regarding jurors and jury bias) this claim, albeit

indirectly, was resolved on the merits against Roberts.14

Applying the deferential standard of review that I am obligated to apply under

§§ 2254(d)(1) and 2254(d)(2), together with rebuttable presumption found in §

2254(e)(1), I reject this claim.

Claim 8: Roberts’ conviction and sentence should be vacated because of the

prejudicial atmosphere in the courtroom.

There is no doubt that the courtroom “vibe” was tense. A metal screening

machine was set up. One of the defense lawyers carried a gun. Various spectators

wore small buttons with the face of the victim, although the trial judge observed that

the jury was not paying attention to them. There was extra security in the courtroom.

In Roberts IV, the postconviction judge took up this claim (through the lens of an

ineffective assistance of counsel assertion) and resolved it against Roberts. (See, e.g.,

filing 245-2 at CM/ECF pp. 364-366.) AEDPA deference dooms this claim.

Claim 9: The prosecutor’s improper closing arguments violated Roberts’ Due

Process and Eighth Amendment rights.

In Roberts IV the postconviction judge considered this claim through analysis

of ineffective assistance of counsel claims. (Filing 245-2 at CM/ECF pp. 374-379.)

14

Since claim 6 was defaulted, it may be that claim 7 is also procedurally

defaulted because the question of whether the jury was impartial is intertwined with

both claims. However, Respondent does not seem to make such an argument.

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Among other things the judge found no prejudice and chalked up defense counsel’s

failure to object as “nothing more than a tactical decision . . ..” In Roberts I, upon

global review, the Arkansas Supreme Court found that there were no prejudicial

errors. “Suffice it to say, nothing in the instant record reveals any irregularity in

procedure that would call into question the essential fairness of the process afforded

Roberts.” 102 S.W.3d at 495. Giving the deference that is due, I deny this claim.

Claim 10: The jury’s failure to consider mitigation evidence violated Roberts’

Eighth Amendment rights.

I have previously quoted the entire verdict form. The jury agreed as to some

mitigators but not others. Roberts asserts that “check the box” errors existed, and

this must mean that the jury did not consider all the evidence in mitigation. The

argument is exceptionally weak. In Roberts I, with one judge dissenting, the

Arkansas Supreme Court addressed this issue in great and careful detail. 102 S.W.3d

at pp.495-497. It found no error. The court observed that there was conflicting

evidence on the seven mitigators for which the jury left blanks indicating to the

majority of the Arkansas Supreme Court that the jury was not persuaded that that

those mitigators existed. The deferential review required under AEDPA causes me

to deny this claim.

Claim 12: The State suppressed material evidence and countenanced false

testimony in violation of Roberts’ due process rights.

This claim is based upon alleged Brady violations and the failure of the

prosecutor to cut square corners during examination and cross examination of

witnesses regarding those Brady violations. Roberts wanted to address at least part

of this claim through a writ of error coram nobis. Roberts requested permission from

the Arkansas Supreme Court to do so since under state law he was required to seek

permission from the Arkansas high court. The court denied the request because

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Roberts had not been diligent in bringing this claim. Roberts v. State, 425 S.W.3d

771, 776-779 (2013) (Coram Nobis case).15

In the Coram Nobis case, the Arkansas Supreme Court employed a regularly

applied independent and adequate state procedural rule requiring diligence. That

being the case, the alleged Brady violations are procedurally defaulted without

excuse.

Regarding the claim of prosecutorial impropriety brought in the context of the

Brady violation issue, I agree with Respondent (filing 277 at CM/ECF pp.161-164)

that the AEDPA statute of limitations of one year had long expired before this new

claim was put forth. This claim was not asserted in the original habeas pleading

(filing 19) when I issued my stay order.

Therefore, this new claim does not relate back. Cf. Mayle v. Felix, 545 U.S.

644, 645 (2005) (An amended habeas petition does not relate back (and thereby

avoid AEDPA's one-year time limit) when it asserts a new ground for relief

supported by facts that differ in both time and type from those set forth in the original

pleading.)

Finally, this claim was discussed in the context of an ineffective assistance of

counsel claim in Roberts IV. See, e.g., Filing 245-2 at CM/ECF pp. 382-384. The

judge found that there was no evidence that the sought-after material was

undisclosed and further that there was no prejudice. Under the AEDPA deferential

standard of review, there is no basis for concluding that Roberts is entitled to relief.

I therefore deny the claim.

15

“The three alleged Brady violations raised by Roberts were that (1) the State

withheld evidence of eleven traffic tickets Roberts had received, (2) the State

withheld evidence that Roberts could only earn $28,000 per year, and (3) the State

withheld evidence that Roberts's polygraph results had been inconclusive.” Id.

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Claim 14: Admission of excessive victim-impact evidence violated Roberts’

Eighth Amendment Rights.

Among other decisions, the Arkansas Supreme Court resolved this issue

against Roberts in the Coram Nobis case. 428 S.W.3d at 774-776 (Defendant, who

alleged error in admission of victim-impact testimony, failed to demonstrate

extraordinary circumstances resulting in defect in appellate process that warranted

recall of the Supreme Court’s mandate issued after its mandatory review of

conviction for capital murder and death sentence; although defendant’s federal-court

proceedings had been stayed indefinitely, and case involved sentence of death,

family members gave victim-impact testimony about effects that murder had on

family, they did not request death penalty, and it could not be said that their

testimony inflamed the passions of jurors, such that the statements called into

question imposition of death sentence.) Following the AEDPA deference standard,

Roberts is not entitled to relief on this claim.

Moreover, and as discussed regarding claim 12, the ADEPA one-year statute

of limitations ran out. This was a new claim which did not relate back to the original

petition. (Filing 19.)

Claim 15: Roberts’ confession was involuntary.

In Roberts I, 102 S.W.3d at 488-492, the Arkansas Supreme Court thoroughly

considered this claim and found it wanting. In my view, this issue is easy. AEDPA

deference requires denial.

Claim 16: The overlap between capital murder and first-degree murder under

Arkansas law is unconstitutional.

I reject this claim.

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First, I agree with Respondent that this claim has been repeatedly rejected by

both the federal and state courts. (Filing 277 at CM/ECF pp. 185-187 (collecting

cases)). There is no contrary holding from the United States Supreme Court.

Second, I agree with Respondent that the AEDPA standard of review applies

to the merits determination on this issue:

Roberts raised this claim in a pretrial motion, and the

issued was argued and considered at a pretrial hearing,

after which the trial court denied Roberts’s motion. . .16

The trial court’s rejection of the claim was abstracted on

appeal and reviewed by the [Arkansas Supreme Court

during its mandatory direct review. The [Arkansas

Supreme Court] reasonably concluded that no prejudicial

error occurred, and its decision is due deference.

Id. at CM/ECF p. 185.

Claim 18: Roberts’ waiver of his direct-appeal rights was unconstitutional.

In Roberts II the Arkansas Supreme Court found that Petitioner was

competent to waive his direct-appeal rights. 123 S.W.3d at 882-883. While the

Arkansas Supreme Court later found that Roberts was not competent to waive his

postconviction rights at that time, long after the Arkansas Supreme Court issued

Roberts II, the passage of time makes all the difference.

In short, AEDPA deference requires the denial of this claim.

16

The trial motion and brief challenging the death penalty statute was asserted

because it “fails to truly narrow the class of persons” eligible for, and deserving of,

the death penalty. Filing 243-1 at CM/ECF pp. 236-239. The trial judge heard

argument on this issue and denied the motion. Filing 243-2 at CM/ECF pp. 45-47. It

therefore became subject to review in Roberts I.

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Claim 19: Roberts is entitled to relief because of the cumulative prejudicial effect

of the errors described herein.

I reject this claim. This claim concentrates on the numerous claims of

ineffective assistance of counsel. Our Court of Appeals has rejected this approach.

That is, for example:

Middleton's argument contradicts Eighth Circuit

precedent. We repeatedly have recognized “a habeas

petitioner cannot build a showing of prejudice on a series

of errors, none of which would by itself meet the prejudice

test.” Hall v. Luebbers, 296 F.3d 685, 692 (8th Cir.2002)

(citation omitted); see, e.g., United States v. Robinson, 301

F.3d 923, 925 n. 3 (8th Cir.2002) (recognizing “the

numerosity of the alleged deficiencies does not

demonstrate by itself the necessity for habeas relief,” and

noting the Eighth Circuit's rejection of cumulative error

doctrine); Wainwright v. Lockhart, 80 F.3d 1226, 1233

(8th Cir.1996) (“Errors that are not unconstitutional

individually cannot be added together to create a

constitutional violation.” (citation omitted)); Scott v.

Jones, 915 F.2d 1188, 1191 (8th Cir.1990) (holding

“cumulative error does not call for habeas relief, as each

habeas claim must stand or fall on its own” (citation

omitted)). Therefore, we have no hesitancy in rejecting

Middleton's argument and concluding the cumulative

effect of alleged trial counsel errors is not grounds for

granting habeas relief.

Middleton v. Roper, 455 F.3d 838, 851 (8th Cir. 2006).

But even if the habeas law would encompass the cumulative error theory as a

legitimate, I would reject it. I have previously determined that none of the ineffective

assistance of counsel claims warrant relief under the deferential standard of ADEPA.

Thus, the cumulative error theory has no substance given the determination on the

merits noted.

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Finally, it his reply brief Roberts admits that: “The State argues that Claim 19,

in which Roberts alleges cumulative error, is defaulted without excuse. Roberts

concedes the default and does not address the claim further.” (Filing 286 at CM/ECF

p. 6 n. 2.) He is obviously not entitled to relief on this claim.

CERTIFICATE OF APPEALABILITY

The standard for issuing a certificate of appealability (“COA”) is whether the

applicant has “made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims

on the merits, the showing required to satisfy § 2253(c) 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 (2000). “When the district court denies a habeas petition on procedural

grounds without reaching the prisoner's underlying constitutional claim, a COA

should issue when the prisoner shows, at least, 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.” Id.

Applying the foregoing standard, I grant a certificate of appealability on only

the first two claims. They are:

Claim 1: Roberts is intellectually disabled.17

Claim 2: Roberts was not competent to be tried.

17

For example, on the date it was decided, I became aware of and thereafter

carefully considered Jackson v. Payne, No. 20-1830, 2021 WL 3573012 (August 13,

2021) (over a dissent, the Court found Mr. Jackson ineligible for the Arkansas death

penalty because he was intellectually disabled under the Eighth Amendment and

Atkins.)

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Applying that same law, I deny a certificate of appealability as to all other

claims.

IT IS ORDERED that:

1. The amended habeas corpus petition (and all earlier

such petitions) are denied with prejudice.

2. A separate judgment will be issued.

3. A certificate of appealability is granted for the first two

claims and they are:

Claim 1: Roberts is intellectually disabled.

Claim 2: Roberts was not competent to be tried.

4. A certificate of appealability is denied for all other

claims.

Dated this 20th day of September 2021.

BY THE COURT:

Richard G. Kopf

Senior United States District Judge

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