# Roberts v. Payne

> District Court, E.D. Arkansas · September 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10005958

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** September 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10005958

## Opinion text

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.
2
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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.
5
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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.
7
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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.

Clai

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10005958. Public record. Not legal advice.