from United States District Court for the Eastern District of
Arkansas - Pine Bluff
Submitted: June 12, 2019
GRUENDER, STRAS, and KOBES, Circuit Judges.
GRUENDER, CIRCUIT JUDGE.
Anderson appeals the district court's denial of his
petition for habeas corpus. He argues that his counsel was
ineffective for failing to investigate and present mental
health evidence and for giving the jury an expert report
which included information that Anderson was on death row,
that a mid-deliberation jury instruction was improper, and
that he is categorically exempt from the death penalty. We
was nineteen when he broke into a truck occupied by Roger
Solvey in October 2000. Anderson shot Solvey, but he
survived. Six days later, Anderson shot and killed
eighty-seven-year-old Clara Creech while she was gardening in
her yard. Anderson admitted to shooting Solvey, and he was
convicted of attempted capital murder. A jury then convicted
Anderson of capital murder for killing Creech.
Gray represented Anderson during the penalty phase. She
testified that the focus of her defense was "childhood
matters." The defense presented eighteen witnesses,
including psychiatric expert Dr. Andre Derdeyn, who testified
about Anderson's abusive childhood. Dr. Derdeyn diagnosed
Anderson with a "major depressive episode" and
agreed that Anderson had anti-social personality disorder.
The jury was instructed on forty-two mitigating factors and
told it could consider any other mitigating circumstance. It
found that none of the mitigating factors "probably
existed," and it found one aggravating circumstance-that
Anderson "previously committed another felony," the
attempted murder of Solvey, "an element of which was the
use or threat of violence to another person or creating a
substantial risk of death or serious physical injury to
another person." The jury sentenced him to death in
2002. The Arkansas Supreme Court reversed and remanded for
resentencing because it determined that the jury
"eliminated from its consideration all evidence
presented of mitigating circumstances." Anderson v.
State, 163 S.W.3d 333, 360 (Ark. 2004).
second penalty phase team included Gray, a mitigation
specialist, a paralegal, and several other attorneys. The
team also consulted other attorneys at various points. They
concluded that their initial strategy had not worked because
the jury found no mitigating factors and decided to go
"back to the drawing board." As Gray later
testified, she and her team "presented the mitigation in
a different fashion in the hopes to drive home to the jury
that there were mitigating factors." The team prepared a
twenty-four-page mitigation table that detailed the potential
witnesses to testify on Anderson's behalf, a summary of
their expected testimony, and the relevant exhibits to each
witness. They presented thirteen witnesses, including
Anderson, who had not testified during his first penalty
phase. He admitted to and took responsibility for
killing Creech. He also testified about a letter he had
written to his father while in prison and highlighted his
personal accomplishments in prison, such as earning a GED.
team consulted several experts, including psychologists and
psychiatrists. They hired Dr. Rebecca Caperton, who
specialized in mental functioning and IQ testing, and Dr.
Elizabeth Speck-Kern, who specialized in neuropsychology and
learning disabilities. The team otherwise did not request
neuropsychological testing, did not have Anderson screened
for post traumatic stress disorder ("PTSD"), and
did not consult with an expert about the biological
limitations of teenage brain development.
closing statement, Gray emphasized Anderson's humanity
and told the jury that there are "redeeming qualities
worth saving in [Anderson]." She said that Anderson was
"damaged" but not "unsalvageable." Gray
reminded the jury that the law did not require them to
"kill" Anderson, and she argued that he had taken
full responsibility for what he did and "doesn't
deserve to die." After hearing the evidence, the jury
found the same aggravating circumstance as that found at
Anderson's first sentencing-the attempted murder of
Solvey. The jury also found thirty mitigating circumstances.
Nevertheless, after weighing the factors, it sentenced
Anderson to death.
Arkansas Supreme Court affirmed the sentence. Anderson v.
State, 242 S.W.3d 229 (Ark. 2006). Anderson pursued
post-conviction relief in Arkansas, and the Arkansas Supreme
Court affirmed the denial of Anderson's petition for
post-conviction relief. Anderson v. State, 385
S.W.3d 783 (Ark. 2011).
then filed a petition for federal habeas corpus relief in the
United States District Court for the Eastern District of
Arkansas. See 28 U.S.C. § 2254. The district
court dismissed Anderson's petition and granted him a
certificate of appealability on two of his claims. We later
expanded his certificate of appealability to include the two
additional claims he now raises on appeal. We consider each
claims that his counsel ineffectively failed to present or
investigate certain mental health limitations. He argues that
his counsel "unreasonably failed to present expert
testimony" on the biological limitations of the teenage
brain. He also argues that his counsel "unreasonably
failed to identify" PTSD despite "ample
evidence" of childhood abuse. Finally, he argues that
his counsel "ignored obvious signs" of fetal
alcohol spectrum disorder ("FASD") and that they
should have requested neuropsychological testing, which would
have revealed FASD.
his § 2254 proceedings, Anderson presented an expert
witness who testified that Anderson has
"developmental" brain damage, which occurs
"either perinatally or during development, fetal
development, or early in childhood." Another expert
testified that Anderson has partial fetal alcohol syndrome.
Anderson also presented an expert witness who diagnosed him
with PTSD. Anderson claims that the fact that the jury did
not have this information "undermines confidence in the
verdict" because "the actions of others changed him
physically in a way that's central to his moral
district court held a four-day evidentiary hearing on
Anderson's mental health claims and dismissed them as
procedurally defaulted because he did not present them in
state court and because it concluded that the claims were not
substantial. We review "the factual findings of the
district court for clear error" and "a finding of
procedural default de novo." Oglesby v.
Bowersox, 592 F.3d 922, 924 (8th Cir. 2010). On appeal,
the parties agree that Anderson has procedurally defaulted
his mental health claims. "If a petitioner has not
presented his habeas corpus claim to the state court, the
claim is generally defaulted. We will not review a
procedurally defaulted habeas claim because the state has
been deprived of an opportunity to address the claim in the
first instance." Barrett v. Acevedo, 169 F.3d
1155, 1161 (8th Cir. 1999) (en banc) (citation omitted).
Supreme Court announced a narrow exception to this rule in
Martinez v. Ryan, 566 U.S. 1 (2012). Substantial
claims of ineffective assistance of counsel may overcome
procedural default when the habeas claim arose in a state
whose "procedural framework, by reason of its design and
operation, makes it highly unlikely in a typical case that a
defendant will have a meaningful opportunity to raise a claim
of ineffective assistance of trial counsel on direct
appeal." Trevino v. Thaler, 569 U.S. 413, 429
(2013). A claim is substantial if it "has some
merit." Martinez, 566 U.S. at 14. We previously
concluded that Arkansas does not afford "meaningful
review of a claim of ineffective assistance of trial counsel
on direct appeal." Sasser v. Hobbs, 735 F.3d
833, 853 (8th Cir. 2013) (internal quotation marks omitted).
We assume that Anderson has presented a substantial claim
that excuses his procedural default and proceed to the
"When a convicted defendant complains of the
ineffectiveness of counsel's assistance, the defendant
must show that counsel's representation fell below an
objective standard of reasonableness." Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). The defendant
must also demonstrate that he was prejudiced. Id. at
692. Anderson's counsel's representation did not fall
below an objective standard of reasonableness, and even if it
did, Anderson has not demonstrated that he was prejudiced.
Strickland, we first consider whether Anderson's
counsel's representation fell below an objective standard
of reasonableness. "An attorney's performance is
deficient when he makes errors so serious that counsel was
not functioning as the counsel guaranteed . . . by the Sixth
Amendment." Holder v. United States, 721 F.3d
979, 987 (8th Cir. 2013) (internal quotation marks omitted
and alteration in original).
argues that his counsel should have presented more evidence
on the biological limitations of the teenage brain. But
Anderson's team offered Anderson's "youth . . .
at the time of Clara Creech's murder" as a
mitigating circumstance. And Dr. Speck-Kern testified to the
jury that before the crimes occurred Anderson was acting on
"a series of impulses" related to "frontal
lobe function." She explained that the frontal lobe is
not fully developed until "people are about twenty-five
years old. And so, when people are older than that, they can
use their brains a lot more effectively than they can when
they're teenagers or children." She also told the
jury that structure in a young person's life helps them
make decisions but that Anderson did not have that structure
"in a consistent way." Having presented such
evidence, we conclude that counsel's decisions on the
teenage brain evidence were "within the range of
professionally reasonable judgments." Bobby v. Van
Hook, 558 U.S. 4, 12 (2009) (per curiam).
Anderson challenges his counsel's failure to investigate
adequately PTSD and FASD. "In any ineffectiveness case,
a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel's
judgments." Strickland, 466 U.S. at 691. When
assessing whether the investigation was reasonable, we must
consider "whether the known evidence would lead a
reasonable attorney to investigate further." Wiggins
v. Smith, 539 U.S. 510, 527 (2003).
counsel's performance was not deficient for failing to
investigate PTSD. Anderson's counsel thoroughly explored
and presented evidence of the effects of his childhood abuse
on his adult life. Dr. Speck-Kern testified with the goal of
"mak[ing] a connection between [Anderson's]
childhood abuse and the crime that he committed." She
explained to the jury that alcoholism was "a very big
problem in [Anderson's] family." She testified that
there was "a chronic level of depression in his
life," that "things were hopeless for him most of
the time," and that Anderson experienced a "real
dip" in his depression around the time of the murder.