THIS IS A CAPITAL CASE
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
DAMIEN WAYNE
ECHOLS, Petitioner,
vs.
LARRY NORRIS, Director, Arkansas Department of
Corrections, Respondent.
Case No. 5:04CV00391-WRW
FIRST AMENDED PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN
STATE CUSTODY
DENNIS P. RIORDAN (CA SBN 69320)
DONALD M. HORGAN (CA SBN 121547)
THERESA GIBBONS (CA SBN 191633)
523 Octavia Street
San Francisco, CA 94102
Telephone: (415) 431-3472
DEBORAH R. SALLINGS (AR SBN 80127)
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, AR 72211Telephone: (501) 312-8500
(Local Counsel)
Attorneys for Petitioner
DAMIEN WAYNE ECHOLS
INTRODUCTION
1. Damien Wayne Echols, petitioner, by and through his undersigned
counsel, hereby submits for filing his instant first amended petition for
habeas corpus relief pursuant to 28 U.S.C. section 2254. This amended petition
is intended to supersede that filed in this Court on October 28, 2004.
2. Filing of an amended petition is permitted without leave of court where, as
here, it occurs prior to the state's filing of a responsive pleading to an
original petition. See Rule 11 of the Rules Governing §2254 Cases
in the United States District Courts, hereinafter "§2254 Rules"
(authorizing application of Federal Rules of Civil Procedure where not
inconsistent with §2254 Rules); Federal Rule of Civil Procedure 15(a)
(establishing right to file one amended pleading without leave of court prior
to filing of responsive pleading). Furthermore, under the applicable
civil rules, the date of filing the instant amended petition is deemed to
relate back to the date of filing the original petition which, in this matter,
occurred on October 28, 2004. See §2254 Rule 11, supra;
Fed.R.Civ.Pro. 15(c) (amended pleading relates back to original where, inter
alia, claims, as here, arise out of conduct, transaction, or occurrence set
forth in original pleading)
3. Petitioner is unlawfully incarcerated and restrained in violation of
the United States Constitution in the Varner Unit of the Arkansas state prison
located in Grady, Arkansas, by Larry Norris, Director of the Arkansas
Department of Corrections.
PROCEDURAL HISTORY
4. Following is a summary of the prior state and federal court
proceedings relating to the instant amended petition:
Petitioner's Conviction and Direct State Court Appeal
5. On March 19, 1994, following trial by jury, an Arkansas trial court
sitting in the Craighead County Circuit Court in Jonesboro, Arkansas, entered
judgment against petitioner for three counts of first degree murder in
connection with the homicides of three eight-year old boys in West Memphis,
Arkansas, in May, 1993. On that same date, the trial court sentenced
petitioner to death for the crimes.
6. Echols timely appealed from the judgment and sentence, which were
affirmed by the Arkansas Supreme Court in an opinion issued on December 23,
1996 and reported at Echols v. State, 326 Ark. 917, 936 S.W.2d 509
(1996). Petitioner thereafter challenged the state Supreme Court's
appellate ruling by filing a timely petition for a writ of certiorari in the
United States Supreme Court, which petition was denied in an order issued on
May 27, 1997.
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The State Proceedings Relating to Petitioner's Motion for Post-Conviction
Relief Under Rule 37
7. Meanwhile, on March 11, 1997, well prior to
the conclusion of direct appellate proceedings on May 27, 1997, Echols filed a
motion for post-conviction relief from the trial court's judgment and sentence,
pursuant to Arkansas Rule of Criminal Procedure 37.1 et seq. ("Rule
37") Petitioner's final Rule 37 petition, which raised many of the
claims presented in the instant petition, was denied by the Craighead County Circuit
Court in an order issued on June 17, 1999.
8. Petitioner timely appealed from the Circuit Court's June 17, 1999
order. On April 26, 2001, the Arkansas Supreme Court affirmed one portion
of the Circuit Court's ruling but otherwise reversed and remanded in light of
the Circuit Court's failure to make required factual findings as to
petitioner's claims. See Echols v. State, 344 Ark. 513
(2001).
9. Following remand, in an order issued on July 30, 2001, the Circuit
Court issued a new order again rejecting all of petitioner's claims under Rule
37. Petitioner timely appealed this order but it was affirmed in an order
issued on October 30, 2003, as reported at Echols v. State, 354 Ark.
530, 127 S.W.3d 486 (2003).
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The Initial State Motion to Reinvest Jurisdiction in the Trial Court
10. Meanwhile, on February 27, 2001, while the Rule 37 proceedings
described above were pending, Echols petitioned the Arkansas Supreme Court for
an order reinvesting jurisdiction in the Circuit Court to allow him to seek a
writ of error coram nobis. The state Supreme Court denied that petition
in an opinion issued on October 16, 2003 (i.e., before the conclusion of the
Rule 37 proceedings) and reported at Echols v. State, 354 Ark. 414,
125 S.W.3d 153 (2003).
The Pending State Motion to Permit Forensic Testing
11. On July 25, 2002, and likewise while the Rule 37 proceedings remained
pending, petitioner filed a "Motion for Forensic DNA Testing"
(hereinafter "DNA motion) in the Arkansas Circuit Court pursuant to Arkansas
Code section 16-112-201 et seq. Invoking the Eighth Amendment's
prohibition against cruel and unusual punishment and the Fourteenth Amendment's
guarantee of equal protection and due process of law, the motion asserted that
the judgment and sentence should be vacated because petitioner was actually
innocent of the crimes.
12. On January 27, 2003, the Craighead County Circuit Court judge who
presided at petitioner's trial ordered the impoundment and preservation of all
material that could afford a basis for petitioner's actual innocence claim
pursuant to this statutory scheme.
13. Testing of the material subject to the Circuit Court's preservation
order, together with related trial court proceedings, remain in progress as of
the time of filing the instant amended petition.
The Original Petition for Federal Habeas Corpus Relief in this Court
14. On October 28, 2004, Echols filed his initial petition for federal
habeas corpus relief in this Court. The October 28, 2004 petition contained all
of the claims asserted in the instant amended petition, including (1) juror
misconduct; (2) juror bias; (3); DNA evidence indicating actual innocence; (4)
his trial lawyer's conflict of interest; and (5) his trial lawyer's ineffective
assistance of counsel. The first, second, and third claims, along with an
element of the fifth claim, however, had not been exhausted in the Arkansas
courts at the time that the original petition was filed. As discussed
further in paragraphs 16 and 17, infra, the first and second claim,
together with the noted element of the fifth claim, have been exhausted in the
state courts as of the time of filing this petition.
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The Second State Motion to Reinvest Jurisdiction in the Trial Court
15. On October 29, 2004, Echols filed a Motion to Recall The
Mandate And to Reinvest Jurisdiction in The Trial Court to Consider Petition
For Writ of Error Coram Nobis or For Other Extraordinary Relief. The
motions were primarily founded on newly discovered evidence of jury misconduct
and juror bias at the time of Echols's state court trial. The state
Supreme Court denied the motions in an order issued on January 20, 2005.
Echols thereafter filed a petition for rehearing as to the January 20, 2005
order, alleging, inter alia, that the state Supreme Court's disposition of the
misconduct and bias claims effectively established that Echols's petitioner's
trial lawyer had rendered constitutionally ineffective assistance of counsel by
failing to present these claims in support of a motion for a new trial.
That petition was denied in a state Supreme Court order issued on February 24,
2005.
EXHAUSTION OF CLAIMS IN THE ARKANSAS COURTS
16. As noted, the first and second claims
in the original, October 28, 2004 federal petition (see paragraph 14, supra),
like those contained in the instant amended petition, were founded respectively
on newly discovered evidence indicating that 1) the jury committed prejudicial
misconduct during deliberations at both phases of Echols's state trial, and 2)
that jurors were actually biased against Echols at both phases of that
trial. The original petition's first and second claims, however, differed
from the identical claims set forth in the instant petition insofar as the
former claims were as yet unexhausted in the Arkansas courts. Such
exhaustion has now been accomplished by means of the subsequent motion and
state court rulings described in paragraph 15, supra. The fact
that the jury misconduct and juror bias claims in the instant petition have
been exhausted thus constitutes one of the major differences between the
instant petition and that filed on October 28, 2004.
17. As also noted, the fifth claim in Echols's original petition
(see paragraph 14, supra) was founded on an allegation of constitutionally
ineffective assistance of counsel rendered by Echols's lawyer at Echols's state
court trial. The Arkansas Supreme Court's January 20, 2005, order denying
the motions to recall the mandate and reinvest jurisdiction in the trial court,
as described in paragraph 15, supra, has effectively established the
presence of such ineffective assistance in connection with the failure of
Echols's trial lawyer to raise claims of jury misconduct and juror bias in a
motion for a new trial. That Sixth Amendment claim, now exhausted by the
Arkansas Supreme Court's denial on February 24, 2005, of Echols's petition for
rehearing as to that Court's January 20, 2005, order, forms a component of
petitioner's amended ineffective assistance claim, as set forth in section V.,
paragraph 91, infra.
TIMELINESS OF PETITION
18. 28 U.S.C. section 2244(d)(1) requires a petitioner to file a federal
petition for habeas corpus relief within a year of the latest of four
alternative triggering dates, including the date that the disputed state
judgment became final upon conclusion of direct review.
19. 28 U.S.C. section 2244(d)(2) states that "[t]he time during
which a properly filed application for State post- conviction or other
collateral review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this
subsection."
20. In this matter, petitioner filed his Rule 37 petition in the state
courts prior to the conclusion of direct review. See par. 7, supra.
The petition was a properly filed application for state post-conviction review
within the meaning of section 2244(d), and proceedings founded on the petition
did not conclude until the Arkansas Supreme Court issued its opinion on October
30, 2003. See par. 9, supra. Accordingly, pursuant to
section 2244(d)(2), the one-year limitations period established by section
2244(d)(1) cannot have commenced any earlier than October 30, 2003.
21. The Arkansas Supreme Court has expressly declared that petitioner's
pending state DNA motion was properly filed. See Echols v. State,
350 Ark. 42, 44 (2002)(per curiam) (granting stay of Rule 37 proceedings
pending outcome of petition for DNA testing). Furthermore, as stated in
Arkansas Code section 16-112-201, the statutory scheme invoked by petitioner's
pending DNA motion expressly authorizes a person convicted of a crime to rely
on such evidence in order to ". . . vacate and set aside the judgment and
to discharge the petitioner or to resentence the petitioner or grant a new trial
or correct the sentence or make other disposition as may be appropriate. . . .
" Ibid.
22. Given the finding of the Arkansas Supreme Court and the statutory
language set forth in Arkansas Code section 16-112-201 et seq., petitioner's
still-pending DNA motion, like his Rule 37 petition, facially qualifies as a
properly filed application for State post-conviction or other collateral review
with respect to the pertinent judgment within the meaning of 28 U.S.C. section
2244(d)(2). Furthermore, the DNA motion has been pending since July 25,
2002, i.e., from a date well before the end of the tolling period (October 30,
2003) effected by the proceedings under Rule 37, as described in par. 7-9 and
11-13, supra. Accordingly, the one year limitations period
applicable to the instant petition, as established by 28 section 2244(d)(1),
has not yet commenced in this matter.
23. Notwithstanding the foregoing analysis, the Supreme Court and Eighth
Circuit Court of Appeals have yet to decide whether an Arkansas DNA motion
filed pursuant to Ark. Code section 16-112-201 et seq. or a similar state DNA
motion meets the criteria set forth in 28 U.S.C. section 2244(d)(2), thereby
tolling the one-year limitations period set forth in 28 U.S.C. section
2254(d)(1). In the event that the Supreme Court or Eighth
Circuit were to decide that such a motion does not toll that one-year
limitations period, Echols's petition for federal habeas corpus relief arguably
would have been due in this Court within a year of the date that the Rule 37
proceedings terminated, i.e., by October 30, 2004.
24. Accordingly, acting with an abundance of caution and in light of the
sentence imposed in this matter, Echols submitted his original federal habeas
petition prior to October 30, 2004. Again, the claims stated in the
instant amended petition relate back to the date of filing the original
petition for the reasons stated in par. 2, supra. All claims in this
petition are timely presented.
REQUEST FOR ORDER HOLDING PETITION IN ABEYANCE PENDING EXHAUSTION OF
CERTAIN CLAIMS IN STATE COURT
25. This petition contains exhausted claims as well as one claim as to
which petitioner has not yet exhausted his state remedies. The exhausted
claims are stated in sections I., II, IV. and V., infra. The unexhausted
claim relates to the DNA motion as described in par. 11-13, supra, and
as stated in section III. (par. 63-65), infra.
26. Echols requests that the District Court hold his petition in abeyance
pursuant to the procedure authorized by Lee v. Norris, 354 F.3d 846
(8th Cir. 2004) .
27. Every circuit other than the Eighth Circuit has authorized the
regular use of the "stay-and-abeyance" procedure for mixed
petitions. See Pliler v. Ford, 124 S. Ct. 2441, 2450 (2004)
(Breyer, J., dissenting); Akins v. Kenney, 341 F.3d 681, 685-86 (8th
Cir. 2003). The Supreme Court recently granted certiorari to settle the
propriety of the procedure, see Rhines v. Weber, 346 F.3d 799 (8th
Cir. 2003), cert. granted 124 S. Ct. 2905 (June 28, 2004), and it
appears likely that the Court will approve the stay-and-abeyance procedure.
28. In Ford, the five-member majority decided not to
"address[] the propriety of this stay-and-abeyance procedure;"
instead, it issued a narrow ruling that District Courts are not required to give
pro se litigants specific warnings about the procedure. Ford, 124 S.Ct. at 2446. Justices
Breyer, Souter, and Stevens, however, explicitly endorsed the procedure. See
id. at 2448 (Stevens, J., concurring); id. at 2449-50 (Breyer, J.,
concurring). Justices Ginsburg and O'Conner, moreover, both suggested that they
would endorse the procedure. See id. at 2448 ("I note,
however, that the procedure is not an idiosyncratic one; . . . seven of the
eight Circuits to consider it have approved stay?and?abeyance as an appropriate
exercise of a district court's equitable powers.") (O'Connor, J.,
concurring); id. at 2448-49 (Ginsburg, J., dissenting).
29. It thus appears that when the Supreme Court issues its ruling in Rhines,
at least five members will endorse the stay-and-abeyance procedure. But
even putting aside any predictions about the outcome in Rhines, the
Eighth Circuit has itself authorized the procedure in at least some
cases. Thus, under Lee v. Norris, a District Court may hold a
petition in abeyance when "exceptional circumstances" exist. Id., 354 F.3d at 849.
30. Mr. Echols filed his Motion for DNA Testing under Arkansas
Code § 16-112-202 et seq. on July 25, 2002, and that motion is still pending in
state court. The motion for DNA testing raises a variety of challenges to
his conviction. The DNA motion should, in Mr. Echols's view, qualify as
"a properly filed application for State post- conviction or other
collateral review" within the meaning of 28 U.S.C. § 2244(d)(2). See
par. 19-22, supra. Mr. Echols therefore maintains that the AEDPA
statute of limitations will be tolled during the pendency of his DNA
motion. He maintains, in other words, that his one-year limitations
period has not yet begun to run since his DNA motion was filed before the
Arkansas Supreme Court rendered its final judgment on his Rule 37
petition.
31. The Eighth Circuit, however, has not yet determined whether a motion
under Arkansas Code § 16-112-202 entitles a prisoner to statutory
tolling. If Mr. Echols waited to file his habeas petition until after
exhausting his DNA claim, the state could argue at that time - and this Court
or the Eighth Circuit could rule - that his DNA motion did not come within the
tolling provision of § 2244(d)(2). If this Court were to rule at that
time that the DNA motion did not qualify for statutory tolling, it would likely
calculate the expiration of the § 2244(d)(1) limitations period on October 30,
2004, one year after the Arkansas Supreme Court's final disposition of his Rule
37 petition. In short, if Mr. Echols had waited to commence the instant
habeas proceedings until all of his applications for state post-conviction
relief, including his still-pending state DNA application, were exhausted, he
would risk forfeiting all federal review of the state judgment and the sentence
of death imposed upon him.
32. On the other hand, had Mr. Echols commenced these federal habeas
proceedings with a petition containing only exhausted claims, he would have
been forced to forfeit any claim founded on his still-pending state DNA
motion. Such a claim possibly could not be raised in a second or
successive petition because such petitions are generally barred by 28 U.S.C. §
2244(b).
33. Mr. Echols thus faced a Hobson's choice. Had he waited to file
his original federal petition until his DNA claim was exhausted in the Arkansas
courts, he would risk an adverse ruling on § 2244(d)(2) tolling that would deny
him all federal relief. But if he filed an original or amended federal
petition containing only exhausted claims, he would forfeit all opportunity for
federal review of his DNA-related claim still pending in the state
courts. No prisoner - and especially no prisoner on death row - should be
forced to make such a choice.
34. Mr. Echols is not seeking to circumvent the state court review
process or to undermine the principles of comity that underlie the exhaustion
doctrine. See Rose v. Lundy, 455 U.S. 509, 515-21 (1982).
He has been diligent in pursuing his claims. Mr. Echols has made every
effort to comply with both Arkansas's procedural rules and those of
AEDPA. The problem he faces is not one of his own making, but is instead
the product of an unresolved question of federal law. This unique
situation of uncertainty is precisely the sort of "exceptional" case
where a District Court should employ the stay-and-abeyance procedure pursuant
to Lee v. Norris, supra, thereby permitting Echols to exhaust
his DNA application in the Arkansas courts while the instant petition remains
pending.
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35. In the alternative, this Court could solve this problem by resolving
the currently unresolved question of law. The Court could issue a ruling
that Mr. Echols's state court DNA motion will entitle him to statutory tolling
under 28 U.S.C. § 2244(d)(2) during the pendency of that motion. It could
then dismiss Mr. Echols's amended petition without prejudice to refiling
following complete exhaustion. See Slack v. McDaniel, 529 U.S.
473, 488-89 (2000); Stewart v. Martinez-Villareal, 523 U.S. 637, 650-51
(1998); Singleton v. Norris, 319 F.3d 1018, 1028-29 (8th Cir. 2003); Camarano
v. Irvin, 98 F.3d 44, 45-47 (2d Cir. 1996). This Court could thereby
allow Mr. Echols to complete his state court proceedings without a risk of
forfeiting all federal review.
36. Mr. Echols is stuck in a bind created by the AEDPA limitations
period, the rule against successive petitions, and the unsettled question of
law regarding the status of Arkansas state DNA motions. He seeks to
exhaust all claims in state court before pursuing federal remedies, but he
obviously seeks to do so in a manner that will comply with AEDPA's various
procedural restrictions. He respectfully asks this Court to issue a
ruling that will permit him to do so.
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GROUNDS FOR RELIEF
37. This case arises under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, for each of the reasons set forth
herein. The Arkansas state courts' adjudications of the exhausted claims
set forth in sections I, II, IV. and V., infra, constitute decisions
that 1) were contrary to, or involved an unreasonable application of, clearly
established federal law, within the meaning of 28 U.S.C. § 2254(d)(1) and/or 2)
were based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings within the meaning of 28
U.S.C. § 2254(d)(2). Ibid.; see also Williams v.
Taylor, 529 U.S. 362 (2000).
38. Furthermore, should the unexhausted claim set forth in sections III.,
infra, be decided against petitioner in the Arkansas state courts,
such decision will be 1) contrary to, or involve an unreasonable application
of, clearly established federal law, within the meaning of 28 U.S.C. §
2254(d)(1), and/or 2) based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings within the
meaning of 28 U.S.C. § 2254(d)(2). Ibid.; see also Williams
v. Taylor, 529 U.S. 362 (2000).
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CLAIMS FOR RELIEF
I. THE STATE COURTS UNREASONABLY REJECTED PETITIONER'S CLAIM THAT
THE JURY'S EXTRAJUDICIAL RECEIPT AND CONSIDERATION OF THE INADMISSIBLE AND
FALSE MISSKELLEY STATEMENT IMPLICATING ECHOLS IN THE CHARGED OFFENSES VIOLATED
PETITIONER'S FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONTATION, CROSS-EXAMINATION,
COUNSEL, AND DUE PROCESS OF LAW, REQUIRING THAT HIS CONVICTIONS BE VACATED
39. The claims and factual allegations set forth in all other sections of
this Petition are realleged as if set forth entirely herein.
40. Prior to petitioner's trial, the state tried and convicted Jesse
Misskelley for allegedly participating with petitioner and defendant Jason
Baldwin in the murders at issue. Misskelley was tried and convicted of
murder in a separate trial that concluded shortly before the joint trial of
petitioner and Baldwin. See Misskelley v. State, 323 Ark. 449
(1996)(setting forth the evidence adduced at Misskelley trial and disposing of
Misskelley's claims on appeal).
41. As the Arkansas Supreme Court noted, see Misskelley v. State, 323
Ark. 449, 459 (1996), the state's case against Misskelley rested almost
entirely on a statement which he made to police on June 3, 1993, implicating
himself as well as petitioner and Baldwin in the murders for which petitioner
and Baldwin were also convicted at their later trial. The Misskelley
statement, however, was fundamentally unreliable and, in all respects material
to Echols, utterly false.
42. Under firmly established Supreme Court precedent, it would have been
error of federal constitutional dimension to admit the Misskelley statement at
a joint trial of the declarant (Misskelley) and the codefendants (Echols and
Baldwin) unless the declarant were to take the stand and be subject himself to
cross-examination by his codefendants, an event which never occurred in this
matter. Bruton v. United States, 391 U.S. 123 (1968). Injection of
such evidence into the trial proceedings against Echols necessarily would have
violated his federal constitutional rights, including those arising under the
Sixth Amendment's Confrontation Clause, because the extraordinarily prejudicial
nature of a cross-incriminating statement of a non-testifying defendant cannot
be dispelled by a trial court admonition limiting the statement's admissibility
to the declarant alone. Ibid.
43. It was for the foregoing reason that the state trial court severed
the trial of Echols and Baldwin from that of Misskelley. Despite the
importance of insulating the Echols-Baldwin proceeding from any taint of the
Misskelley statement, however, a reference to the statement was injected into
the Echols trial through a prosecution witness's unresponsive answer to a
question on cross-examination. While striking the answer from the record and
admonishing the jury to ignore it, the trial court justified its ruling denying
a defense motion for a mistrial on the ground that the jury had heard mention
only of the statement's existence, not its prejudicial contents.
44. Nonetheless, the trial of Echols and Baldwin was plagued by the very
unfairness the severance of their case from Misskelley's was designed to
avoid. Having learned of its contents through media reports, jurors
considered the Misskelley statement and relied on it to convict, as evidenced
by the fact that a chart drawn up during jury deliberations and copied into one
juror's notes listed the Misskelley statement as a ground upon which to rest a
verdict of guilt as to both defendants.
45. The jurors' discussion of the Misskelley statement breached a direct
judicial command. In addition, such discussion ran afoul of the Fifth,
Sixth, and Fourteenth Amendments and firmly established Supreme Court precedent
prohibiting jurors from considering in their deliberations information received
from extrajudicial sources such as newspaper or television reports. For
instance, in Turner v. Louisiana, 379 U. S. 466 (1965), the
Court reversed the defendant's murder conviction and sentence of death where
two deputy sheriffs who served as bailiffs during Turner's trial also testified
as witnesses for the prosecution. The Court explained:
In the constitutional sense, trial by jury in a criminal case necessarily
implies at the very least that the 'evidence developed' against a defendant
shall come from the witness stand in a public courtroom where there is full
judicial protection of the defendant's right of confrontation, of
cross-examination, and of counsel. What happened in this case operated to
subvert these basic guarantees of trial by jury.
Turner, 379 U.S. at 473; see also Rideau v. Louisiana, 373
U.S. 723 (1963) (relying on due process clause to reverse conviction of
defendant where jurors discussed extra-judicial evidence in form of televised
news report containing defendant's pre-trial self-incriminating statements); Parker
v. Gladden, 385 U.S. 363 (1966) (holding that bailiff's negative comments
concerning defendant's character to one deliberating juror and improper comment
to another mandated reversal given patent violation of defendant's rights to
confrontation, cross-examination, and counsel.)
46. The unfairness caused by the jury's discussion and weighing of the
Misskelley statement was even greater than would have resulted had the trial
court erroneously admitted the out-of-court statement over hearsay and
Confrontation Clause objections. In that instance, the defense, on notice
that the statement was before the jury, could have proceeded during its case to
demonstrate that every line of the statement was false. Instead, having
heard no evidence to the contrary, the jury was left under the delusion that
Misskelley had provided the police with credible information establishing his
own culpability and that of his codefendants. The devastating impact of
the extrajudicial information received by the jury dwarfed the persuasive force
of the minimal evidence properly admitted into evidence against Echols.
This grossly prejudicial Fifth, Sixth, and Fourteenth Amendment violation
mandates the habeas relief sought in the instant petition.
47. In its order of January 20, 2005, the Arkansas Supreme Court did not
dispute the validity of petitioner's federal constitutional claim based on
juror misconduct, but refused to consider that claim, holding alternatively
that: (a) the claim was untimely because it could have been raised before
judgment was rendered in the trial court; and (b) Arkansas evidentiary law
would have barred relief on the misconduct claim, whenever it was raised.
This ruling (1) was contrary to, or involved an unreasonable application of,
clearly established federal law, within the meaning of 28 U.S.C. § 2254(d)(1)
and/or 2) was based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings within the meaning of 28
U.S.C. § 2254(d)(2). Ibid.; see also Williams v. Taylor,
529 U.S. 362 (2000).
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II. THE STATE COURT UNREASONABLY REJECTED PETITIONER'S CLAIM THAT
HE WAS DEPRIVED OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO BE JUDGED BY
TWELVE IMPARTIAL JURORS CAPABLE OF DECIDING THE CASE SOLELY ON THE EVIDENCE
ADMITTED AND THE INSTRUCTIONS GIVEN IN COURT, MANDATING THAT HIS CONVICTIONS BE
VACATED
48. The claims and factual allegations set forth in all other sections of
this Petition are realleged as if set forth entirely herein.
49. The evidence described in the foregoing claim for relief concerning
the extraneous information injected into the deliberations of the Echols jury
proves the jury's receipt of, and reliance on, extrajudicial information in
patent violation of the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution. That same evidence also establishes a related but distinct
constitutional deprivation of Echols's right to twelve impartial jurors.
50. During individualized voir dire at Echols's trial, no juror admitted
to being aware of the fact that Jesse Misskelley had given a statement or
confession to police interrogators, and certainly none disclosed knowledge that
any such statement implicated either Echols or Baldwin. Yet during
deliberations the Misskelley statement was listed on a jury display board as a
reason to convict both Echols and Baldwin. That conduct can now be
explained by the fact that three jurors have now admitted at the time of jury
selection they were aware of the Misskelley statement.
51. Furthermore, the foreperson has admitted an extensive familiarity
with the media reports disseminated on the eve of trial, particularly
those details incriminatory of Echols and Baldwin, despite the fact that during
jury selection he denied knowing anything about the Misskelley matter other
than that Misskelley had been previously convicted of something, although the
foreperson did not know what.
52. A second juror at petitioner's trial maintained during voir dire that
he had not discussed the case with his father, but recently has stated that in
a pre-trial conversation with that juror, his father "spit out" the
details of the case. The receipt of that information surely explains the
fact that during the trial this juror not only held the opinion that the
defendants were guilty, but that they had supporters in the courtroom who were
capable of killing the juror as well, leading the juror to be terribly
frightened for his own life at a time he was supposed to be dispassionately
deciding the guilt or innocence of Echols.
53. A third juror at petitioner's trial has sworn that she decided the
guilt of the defendants before hearing closing arguments and the trial court's
instructions.
54. Several other jurors admitted during voir dire that they tended to
believe that the defendants were guilty, although they promised to set those
opinions aside.
55. The United States Supreme Court has held that "[T]he right to
jury trial guarantees to the criminally accused a fair trial by a panel of
impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S.
717, 722 (1961). "'The theory of the law is that a juror who has formed an
opinion cannot be impartial.' Reynolds v. United States, 98 US 145,
155 [1878]." Id. at 722. While a juror who truly can put
aside his or her opinions may fairly serve, "those strong and deep
impressions, which will close the mind against the testimony that may be
offered in opposition to them; which will combat that testimony and resist its
force, do constitute a sufficient objection to [that juror]." Id.
at n 3 (quoting Chief Justice Marshall in 1 Burr's Trial 416
(1807).)
56. A pivotal factor in determining a prospective juror's impartiality is
his or her candor in responding to questions on voir dire. "Voir dire
plays a critical function in assuring the criminal defendant that his [or her]
Sixth Amendment right to an impartial jury will be honored." Rosales-Lopez
v. United States, 451 U.S. 182, 188 (1981). "The necessity of
truthful answers by prospective jurors . . . is obvious.'" McDonough
Power Equipment, Inc. v. Greenwood 464 U.S. 548, 554 (1984)(plurality)
(Rehnquist, J.); see also McDonough, 464 U.S. at 556 (1984) (Blackmun,
J., concurring) ("[T]he honesty and dishonesty of a juror's response is
the best initial indicator of whether the juror in fact was impartial."); Clark
v. United States, 289 U.S. 1, 11 (1933) (Cardozo, J.) ("The judge who
examines on the voir dire is engaged in the process of organizing the court
[and] if the answers to the questions are wilfully evasive or knowingly untrue,
the talesman, when accepted, is a juror in name only.")
57. In Irvin, supra, eight of the twelve jurors
selected to sit on the defendant's jury had formed the opinion that he was
guilty based on exposure to pretrial publicity, although each stated "that
notwithstanding his opinion he could render an impartial verdict." Irvin,
366 U.S. at 724. The Supreme Court vacated the defendant's murder
convictions and sentence of death, holding that:
With his life at stake, it is not requiring too much that petitioner be tried in
an atmosphere undisturbed by so huge a wave of public passion and by a jury
other than one in which two thirds admit, before hearing any testimony, to
possessing a belief in his guilt.
Id., 366 U.S. at 728.
58. In light of the foregoing precedent and related cases, the facts
alleged in support of the present claim require vacation of Echols's
convictions for at least three closely related reasons.
59. First, the responses of certain jurors demonstrate that, contrary to
the express assurances they gave to the trial court during voir dire, such
jurors had in fact known the details of the devastatingly prejudicial
Misskelley statement and of related negative publicity concerning
petitioner. Such concealment demonstrates that one or more of the jurors
who returned verdicts of guilt against Echols harbored an impermissible bias
against him, a prejudicial violation of his rights under the Fifth, Sixth and
Fourteenth Amendments.
60. Second, the responses of certain jurors likewise demonstrates that,
again contrary to the assurances provided on voir dire, they prejudged
defendant's guilt prior to the close of evidence, again constituting a
prejudicial violation of Echols's rights under the relevant Constitutional
guarantees.
61. Third, the Supreme Court's holding in Irvin, supra,
366 U.S. at 728, establishes that such disavowals of bias as were expressed by
the jurors at Echols's trial cannot under any circumstance be deemed conclusive
when the exposure of jurors to inadmissible and prejudicial information is so
great that a majority of sitting jurors was predisposed to a finding of guilt
when selected to serve. That critical mass of bias and prejudgment was
reached in this case, yet another reason why Echols's convictions must be set
aside.
62. As with petitioner's jury misconduct claim, in its order of January
20, 2005, the Arkansas Supreme Court did not dispute the validity of
petitioner's federal constitutional claim based on juror bias, but refused to
consider that claim, holding alternatively that: (a) the claim was untimely
because it could have been raised before judgment was rendered in the trial
court; and (b) Arkansas evidentiary law would have barred relief on the
misconduct claim, whenever it was raised. This ruling (1) was contrary
to, or involved an unreasonable application of, clearly established federal
law, within the meaning of 28 U.S.C. § 2254(d)(1) and/or 2) was based on an
unreasonable determination of the facts in light of the evidence presented in
the state court proceedings within the meaning of 28 U.S.C. § 2254(d)(2). Ibid.;
see also Williams v. Taylor, 529 U.S. 362 (2000).
III. PETITIONER'S INCARCERATION AND SENTENCE OF DEATH VIOLATE HIS
FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS AND PROTECTION AGAINST CRUEL AND
UNUSUAL PUNISHMENT INSOFAR AS FORENSIC EVIDENCE NOT AVAILABLE AT THE TIME OF
TRIAL DEMONSTRATES HIS ACTUAL INNOCENCE OF THE CRIMES
63. The claims and factual allegations set forth in all other sections of
this Petition are realleged as if set forth entirely herein.
64. Subsequent to his convictions in this matter, petitioner filed a
"Motion for DNA Forensic Testing" in the Arkansas Circuit Court for
Craighead County pursuant to Arkansas Code section 16-112-202 et seq.
65. The biological material which is the subject of Echols's pending
motion for DNA forensic testing will establish that petitioner is actually
innocent of the crimes of which he was convicted in the Arkansas trial court
and for which he was sentenced to death. The judgment and sentence pursuant to which
petitioner remains in custody and subject to execution by the state have thus
been imposed in violation of the Eighth Amendment's prohibition against cruel
and unusual punishment and the Fourteenth Amendment's guarantee of equal
protection and due process of law, and must accordingly be vacated.
IV. THE STATE COURTS UNREASONABLY REJECTED PETITIONER'S CLAIM THAT
HIS TRIAL COUNSEL LABORED UNDER VARIOUS CONFLICTS OF INTEREST WHICH DENIED
PETITIONER HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL
66. The claims and factual allegations set forth in all other sections of
this Petition are realleged as if set forth entirely herein.
67. Petitioner alleges that all of his convictions were obtained in
violation of his Fifth, Sixth and Fourteenth Amendment rights to the effective
assistance of counsel in light of trial counsel's multiple conflicts of
interest. The United States Supreme Court enunciated the standard for
establishing such a violation in Cuyler v. Sullivan, 446 U.S. 335
(1980), and related precedent. The standard articulated in Sullivan
holds that to establish a Sixth Amendment violation based on a conflict not
exposed on the record in the trial court, a defendant must show: (1) the
presence of an actual conflict of interest; and (2) that the conflict resulted
in an adverse effect upon the lawyer's performance. Once the defendant
establishes such an adverse effect, he need not establish prejudice, which is
presumed to result from the conflict. 446 U.S. at 349-50; Mickens v. Taylor,
535 U.S. 162, 172-73 (2002).
68. A defendant can establish an "adverse affect" on his
counsel's representation by demonstrating that "a specific and seemingly
valid or genuine alternative strategy or tactic was available to defense
counsel, but it was inherently in conflict with his duties to others or to his
own personal interests." United States v. Bowie, 892 F.2d
1494, 1500 (10th Cir. 1990) (citing Brien v. United States, 695 F.2d
10, 15 (1st Cir. 1982)). Alternatively, a defendant can show that "some
plausible alternative defense strategy or tactic - 'a viable alternative' -
might have been pursued. Perillo v. Johnson, 79 F.3d 41, 449
(5th Cir. 1996); see also United States v. Gambino, 864 F.2d 1064,
1070 (3d Cir. 1988), cert. denied, 492 U.S. 906 (1989) (holding that
to prevail on claim under Cuyler, the defendant simply needs to show
that an alternative was available to counsel and that it 'possessed sufficient
substance to be a viable alternative' [quoting United States v. Fahey,
769 F.2d 829, 836 (1st Cir. 1985)])
69. The defendant need not show that any such "available
strategy" is likely to have resulted in a different outcome at
trial. See, e.g., Rosenwald v. United States, 898 F.2d 585, 589
(7th Cir. 1990)(per curiam)(relief required even though strength of the state's
case makes it improbable the conflict caused any harm to the accused); Thomas
v. Foltz, 818 F.2d 476, 483 (6th Cir. 1987) (pressure to plead guilty,
brought to bear by conflicted attorney, requires reversal even though strength
of state's case makes it obvious non-conflicted attorney would have given same
advice); United States v. Cancilla, 725 F.2d 867, 871 (2d Cir.
1984)(when conflict induced attorney to retreat from particular defense,
reversal is mandated; "it is irrelevant that such a defense is unlikely to
prevail and was unsuccessfully urged by [co-defendant]"; Westbrook v.
Zant, 704 F.2d 1487, 1499, & n. 14 (11th Cir. 1983) (reversible error
if conflict prompted counsel to refrain from raising a particular defense, even
if that defense would not have proven successful); Brien v. United States,
695 F.2d 10, 15 (1st Cir. 1982) (to prevail on conflict claim, petitioner need
only show conflicted attorney failed to pursue plausible strategy, not that
strategy would have been successful).
70. In this matter, Echols alleges that his trial counsel labored under
numerous conflicts of interest which adversely affected his performance in the
course of his representation of Echols and within the meaning of Sullivan and
related precedent, as set forth below:
/ /
The HBO Contract
71. Prior to trial, trial counsel induced Echols's agreement to conclude
a contract with Creative Thinking International, a production company engaged
by Home Box Office ("HBO") to make a film about petitioner's case and
trial. In exchange for, inter alia, Echols's participation in the making of the
film, including Echols's engagement in interviews and agreement to placement of
cameras in the courtroom, HBO agreed to pay Echols $7,500. Trial
counsel used some of the funds paid under the contract as compensation for
expenses he incurred during the trial. In accordance with the terms of the
contract, trial counsel did not disclose the existence and terms of the
contract to the trial court during petitioner's trial.
72. The HBO contract spawned an actual conflict between trial counsel's
interest in pursuing the best possible defense for Echols and counsel's
interest in the benefits he sought to reap from the contract including, inter
alia, his long term pecuniary, professional, and social interests in release of
a successful film. This actual conflict, moreover, resulted in several adverse
effects on counsel's representation of Echols, including the following:
a. Publicity concerning the underlying incidents in this matter was
ubiquitous, intense and, to the extent it concerned petitioner's background and
character, overwhelmingly negative. Though the trial in the Misskelley
matter had concluded a mere two weeks earlier, trial counsel failed to move for
a continuance of the Echols trial date because he wished to conclude the trial
before the film's release. As he expressly conceded and the state Supreme
Court expressly found (Echols v. State, supra, 354 Ark. at
546), trial counsel reasoned that the impending and pre-scheduled release of
the film, production of which had been facilitated by counsel himself, would
undermine petitioner's defense at trial; as counsel stated, he "wanted the
trial over before the film was shown" because the film, including its
depiction of interviews with Echols, might have an impact on the jury.
Counsel's failure to seek the continuance led to the impanelment of jurors who,
as alleged elsewhere in this petition, harbored a significant bias against
Echols and/or who, during deliberations, considered extraneous prejudicial
material in the form of the confession elicited from Misskelley.
b. As a result of the HBO contract, trial counsel relied on the meager
funds to be paid from the HBO contract for such things as pretrial investigation,
discovery, and expert witnesses at both the guilt and penalty phases of
Echols's trial, thereby causing counsel to forego funds that were available
from the trial court upon request.
c. As a result of the HBO contract, trial counsel devoted time otherwise
available for trial preparation to participation in the production of the HBO
film, including, inter alia, the staging of defense strategy meetings and other
projects relating to such production.
d. Adherence to the HBO contract also led counsel to refrain from
challenging the use of cameras in the courtroom during Echols's trial, which
adversely affected the jurors' capacity to neutrally and fairly evaluate the
evidence in the case.
Prior Representation of Michael Carson
73. Michael Carson was a critical prosecution witness at Echols's
trial. Specifically, Carson testified that Jason Baldwin, Echols's
co-defendant, confessed his participation in the crime alleged against both
Echols and Baldwin. Other state testimony established that Echols and
Baldwin were best friends who spent virtually all of their available time
together, and that they had been together shortly before the time of the
homicides. Carson's testimony as to Baldwin's purported confession thus
constituted devastatingly prejudicial evidence not only against Baldwin but
against Echols as well. The Carson testimony was used as the basis for
opinion evidence offered against Echols.
74. Notwithstanding Carson's pivotal role at trial, Echols's trial
counsel labored under a conflict of interest arising from his prior
representation of Carson in a juvenile criminal matter, a conflict which trial
counsel never disclosed to Echols. That conflict adversely affected trial
counsel's performance by causing trial counsel to refrain from conducting any
cross-examination of Carson, despite such counsel's knowledge of matters,
including Carson's prior criminal history, that would have gravely undermined
Carson's credibility before the jury.
Representation of Mark Byers' Co-Defendant in Civil Action Pending at time
of Petitioner's Trial
75. John Mark Byers was a critical witness at Echols's state trial.
Among other things, defense counsel and, for a time, law enforcement viewed
Byers as the possible perpetrator of the crimes alleged against Echols.
Byers's interests were thus diametrically opposed to Echols's interests at
Echols's state court trial. Trial counsel, however, labored under a
conflict of interest arising from his representation of two co-defendants of
Byers on whose behalf Byers had testified in a civil matter involving an
alleged burglary of a jewelry store. The civil matter had not been
concluded at the time that Echols's trial counsel questioned Byers at Echols's
trial. Trial counsel never disclosed the conflict to Echols.
76. Trial counsel's loyalty to his civil clients and, by extension, to
Byers adversely affected counsel's representation of Echols at trial.
While counsel conducted some examination of Byers concerning his possible
involvement in the case, his divided loyalties led him to refrain from actively
and zealously questioning and impeaching Byers on all relevant matters,
including the full history of Byers's prior criminal and violent conduct;
Byers's medical condition, including his affliction with brain tumors which, as
trial counsel knew, could be associated with violent and criminal conduct; and
Byers's involvement in the civil case in which counsel represented Byers'
codefendant.
V. THE STATE COURTS UNREASONABLY REJECTED PETITIONER'S CLAIM THAT
HE WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF
COUNSEL WITHIN THE MEANING OF STRICKLAND V. WASHINGTON
77. The claims and factual allegations set forth in all other sections of
this Petition are realleged as if set forth entirely herein.
78. Petitioner alleges that all of his convictions were obtained in
violation of his federal constitutional right under the Sixth Amendment to the
effective assistance of counsel under an additional analysis established by
Supreme Court precedent. In Strickland v. Washington, 466 U.S. 668
(1984), the Court held that in order to succeed in challenging a conviction on
this basis, (1) The defendant must show that counsel's performance fell outside
the wide range of professional competence; and (2) the defendant must prove
that his trial counsel's conduct was prejudicial to his case, i.e.,
that there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. Strickland,
466 U.S. at 688-93. Stated otherwise, ". . . to establish a claim of
ineffective assistance of counsel, the defendant must show that counsel's
performance fell below an objective standard of reasonable competence, and that
the deficient performance prejudiced the defendant." United
States v. Villalpando, 259 F.3d 934, 938 (8th Cir. 2001) (citing Strickland,
466 U.S. at 687).
79. Under Strickland, decisions may not be viewed as
"tactical," and hence do not merit deference, when they are the
product of counsel's ignorance or lack of preparation. Wade v. Armontrout,
798 F.2d 304, 307 (8th Cir. 1986); see also United States v. Gray, 878
F.2d 702 , 711 (3d Cir. 1989). Furthermore, a "reasonable
probability" of a different outcome does not require a showing that
counsel's conduct more likely than not altered the outcome in the case, but
simply "a probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 693-4; see also Kyles
v. Whitley, 514 U.S. 419, 434-35 (1995) (A "reasonable
probability" is less than a preponderance of the evidence)
80. Petitioner alleges that his trial counsel rendered objectively
deficient assistance in the following instances, the prejudicial impact of
which, considered alone and cumulatively, mandates reversal under Strickland:
/ /
/ /
Jury Voir Dire
81. First, trial counsel unreasonably failed to conduct a
constitutionally adequate voir dire of prospective jurors or submit to jurors a
constitutionally adequate pre-trial questionnaire, despite the presence of
extensive prejudicial publicity concerning Echols, as set forth above. Of great
importance, such publicity included extensive reporting both of the Misskelley
confession implicating defendant as a primary participant in the homicides and
Misskelley's potential appearance as a witness for the prosecution in the case.
82. Notwithstanding these developments, trial counsel rendered deficient
performance by, inter alia, a) unreasonably failing to conduct an adequate
inquiry into the bias of potential jurors; b) unreasonably failing to determine
the extent and effect of potential jurors' exposure to news accounts
surrounding the case, including but not limited to the Misskelley confession,
and to other extraneous matter; c) unreasonably failing to recognize the harm
that would be effected by intentionally selecting jurors even after counsel
learned of their exposure to
prejudicial matters; and d) unreasonably failing to excuse potential jurors in
view of that harm.
83. The foregoing errors and omissions were prejudicial to petitioner
within the meaning of Strickland because, among other things, and as
set forth above, they resulted in 1) juror exposure to extraneous evidence,
including the Misskelley confession, and 2) the empaneling of biased jurors
who, contrary to their promises to the court and their obligations as jurors,
considered the Misskelley confession and other extra-judicial evidence during
their deliberations.
Failure to Move for Continuance
84. Second, trial counsel unreasonably failed to move for a continuance
of petitioner's trial to permit the negative publicity surrounding the case to
subside. This omission prejudiced petitioner under Strickland
not only because the presence of such publicity swayed jurors against
petitioner as a general matter, but also because it resulted in 1) juror
exposure to extraneous evidence, including the Misskelley confession, and 2)
the empaneling of biased jurors who, contrary to their promises to the court
and their obligations as jurors, considered the Misskelley confession and other
extra-judicial evidence during their deliberations.
Failure to Seek Second Change of Venue
85. Third, trial counsel unreasonably failed to move for a second change
of venue out of Craighead County despite the intense negative publicity
surrounding the case in that locale and the juror responses on voir dire
establishing that most had formed an opinion as to petitioner's guilt. Here
again, the omission prejudiced petitioner under Strickland because,
inter alia, it likewise resulted in 1) juror exposure to extraneous evidence,
including the Misskelley confession, and 2) the empaneling of biased jurors
who, contrary to their promises to the court and their obligations as jurors,
considered the Misskelley confession and other extra-judicial evidence during
their deliberations.
Failure to Retain and Use Experts
86. Fourth, trial counsel unreasonably failed to investigate, select,
retain, and make appropriate use of experts, including a forensic odontologist,
forensic entomologist, and/or forensic pathologist in connection with
petitioner's trial. The omission was prejudicial under Strickland
because, inter alia, it prevented Echols from rebutting the unreliable and
highly prejudicial expert evidence adduced by the state at trial and from
corroborating petitioner's claim that he was actually innocent of the alleged
crimes.
Failure to Challenge Expert Testimony Relating to the Occult
87. Fifth, trial counsel unreasonably 1) failed to adequately challenge
the proposed introduction of purported expert testimony from prosecution
witness Dale Griffis, who rendered a variety of speculative and damaging
opinions linking both defendant and the homicides to occult practices; and 2)
failed to challenge the trial court's instructions concerning the permissible
uses of such testimony. The bases for such challenges was readily
available to counsel in light of the Arkansas Supreme Court's holding in Prater
v. State, 307 Ark. 180 (1991), which adopted a standard of expert
testimony admissibility similar to that adopted by the United States Supreme
Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993).
88. These failures prejudiced Echols within the meaning of Strickland
because, inter alia, they led directly to the jury's consideration of Griffis'
fundamentally unreliable and highly inflammatory testimony. The failure
further prejudiced Echols because, in his testimony, Griffis relied on the
Michael Carson statement implicating Jason Baldwin in concluding that the
homicides were occult-related, thereby permitting the jury to rely on that
statement as a basis for incriminating petitioner, notwithstanding the fact
that the statement should have been deemed flatly inadmissible against
petitioner for any purpose pursuant to the dictates of the Fifth, Sixth and
Fourteenth Amendments.
Unreasonable Presentation of Evidence at Sentencing
89. Sixth, at sentencing, trial counsel unreasonably introduced testimony
from defense expert James Moneypenny concerning petitioner's mental health
history; unreasonably failed to object to cross-examination of Moneypenny
concerning excerpts drawn from Echols's mental health records; and unreasonably
failed to seek a limiting instruction as to the use of the Moneypenny
testimony. These failures prejudiced Echols under Strickland because,
inter alia, Moneypenny's testimony and cross-examination disclosed grossly
inflammatory and otherwise inadmissible material that patently undermined
rather than advanced the effort to mitigate the evidence relating to penalty.
Failure to Investigate and Present Mitigating Evidence at Sentencing
90. Seventh, trial counsel unreasonably failed to investigate and present
substantial mitigating evidence on Echols's behalf at sentencing. This failure
prejudiced Echols within the meaning of Strickland because, inter
alia, it undermined the defense effort to challenge evidence in aggravation
which was introduced by the state and which resulted in the sentence of death
ultimately imposed by the trial court.
Failure to Move for a New Trial Based on Evidence of Juror Misconduct and
Bias
91. Eighth, trial counsel unreasonably failed to seek a new trial based
on
evidence of juror misconduct and/or juror bias. The Arkansas Supreme
Court's January 20, 2005 ruling denying petitioner's motion to recall the
mandate and to reinvest jurisdiction in the trial court for purposes of
convening coram nobis proceedings, as described in paragraph 15, supra,
effectively establishes the unreasonableness of counsel's omission in this
regard. This omission prejudiced Echols within the meaning of Strickland
for the reasons set forth in paragraphs 39-62, supra.
92. In its order of February 24, 2005, the Arkansas Supreme Court refused
to consider this aspect of petitioner's claim of ineffective assistance of
counsel on the merits, holding that it could have and should have been raised
at an earlier stage of the proceedings. This ruling (1) was contrary to,
or involved an unreasonable application of, clearly established federal law,
within the meaning of 28 U.S.C. § 2254(d)(1) and/or 2) was based on an
unreasonable determination of the facts in light of the evidence presented in
the state court proceedings within the meaning of 28 U.S.C. § 2254(d)(2). Ibid.;
see also Williams v. Taylor, 529 U.S. 362 (2000).
INCORPORATION OF STATE RECORD
93. Petitioner hereby incorporates by reference the entire state court
record relating to the allegations contained in the instant petition, including
but not limited to all related proceedings in the Crittenden County Circuit
Court, Arkansas, the Craighead County Circuit Court, Arkansas, and the Arkansas
Supreme Court, as well as all proceedings reported and described in Echols
v. State, 326 Ark. 917 (1996), Echols v. State, 344 Ark.
513 (2001), Echols v. State, 350 Ark. 42 (2002), Echols v. State,
354 Ark. 414 (2003), Echols v. State, 354 Ark. 530 (2003).
CONCLUSION
Petitioner has no plain, speedy and adequate remedy to obtain his immediate
release from the conditions of custody presently imposed on him.
WHEREFORE, petitioner respectfully requests that this Court:
1. Issue an order holding the instant petition in abeyance to permit
petitioner to exhaust all of his present claims in the Arkansas state courts;
or, alternatively, issue an order finding that petitioner' pending state DNA
proceeding tolls the statutory deadline for seeking habeas relief in this Court
under the AEDPA, and dismissing the instant petition without prejudice to its
timely refiling after the conclusion of that state court proceeding;
2. Grant leave to amend the petition, as may be appropriate;
3. Issue its writ of habeas corpus or an order to show
cause to the Attorney General of Arkansas to inquire into the lawfulness of
petitioner's convictions;
4. Convene an evidentiary hearing to resolve all disputed issues of fact;
5. After full consideration of petitioner's claims, set aside
petitioner's convictions and/or sentence of death; and
6. Grant petitioner whatever further relief is appropriate in the interest
of justice.
DATED: February 25, 2005
Respectfully submitted,
DENNIS P. RIORDAN
DONALD M. HORGAN
By _______________
DENNIS P. RIORDAN, Cal. SBN 69320
RIORDAN & HORGAN
523 Octavia Street
San Francisco, CA 94102
(415) 431-3472
Attorneys for Petitioner
DAMIEN WAYNE ECHOLS
VERIFICATION
DENNIS P. RIORDAN declares under penalty of perjury:
I am counsel for petitioner Damien Wayne Echols. My offices are in San
Francisco County, California. In my capacity as attorney for petitioner I am
making this verification on his behalf because these matters are more within my
knowledge than his.
I have read the foregoing petition for a writ of habeas corpus, and declare
that the contents of the petition are true to the best of my knowledge.
Executed this 25th day of February, 2005, at San Francisco, California.
_______________________
Dennis P. Riordan
