Barry Lee Fairchild v. A.L. Lockhart, Director, Department of Correction, State of Arkansas

900 F.2d 1292
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 25, 1990
Docket89-1552
StatusPublished
Cited by21 cases

This text of 900 F.2d 1292 (Barry Lee Fairchild v. A.L. Lockhart, Director, Department of Correction, State of Arkansas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barry Lee Fairchild v. A.L. Lockhart, Director, Department of Correction, State of Arkansas, 900 F.2d 1292 (8th Cir. 1990).

Opinions

ARNOLD, Circuit Judge.

Barry Lee Fairchild is under sentence of death for the 1983 murder of Marjorie Mason. His conviction was affirmed on direct and collateral review by the Arkansas Supreme Court. He then petitioned the federal courts for habeas corpus relief. His petition was denied, and we affirmed. Fairchild v. Lockhart, 857 F.2d 1204 (8th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 884, 102 L.Ed.2d 1007 (1989).

Fairchild has now filed a second petition. Originally, he offered two new grounds for relief. First, he claimed that his alleged mental retardation prevented an intelligent and knowing waiver of his constitutional rights before he made the video-taped confessions used against him at trial. Therefore, he argued, the confessions were inadmissible. The District Court rejected this claim, and Fairchild has abandoned it on appeal. We shall therefore not discuss it. Second, Fairchild claimed that Arkansas’s failure to discover his mental retardation rendered its pre-trial evaluation of his mental condition professionally inadequate. This failure, he continues, denied him due process of law because it prevented his jury from fully considering evidence of his mental retardation in their evaluation of whether to believe his confessions.

This second claim is the only one now before us. In a thorough opinion, the District Court1 analyzed and rejected both of Fairchild’s new contentions.2 Fairchild v. Lockhart, No. PB-C-85-282, slip op., 1989 WL 48894 (E.D.Ark. April 4, 1989). This is Fairchild’s appeal from the District Court’s dismissal of his habeas petition. We affirm that dismissal on both procedural and [1294]*1294substantive grounds. Fairchild’s successive petition fails because he is procedurally barred from forwarding his new claim, and because it abuses the writ of habeas corpus. Fairchild’s petition also fails on the merits: he received due process of law.

I.

Fairchild’s second habeas petition stumbles at the threshold; he cannot overcome the procedural obstacles facing his new claim. First, the issue raised in Fair-child’s successive petition is procedurally barred. He failed to make his due-process claim in the Arkansas courts and is precluded from doing so now under their procedural rules. Fairchild is likewise precluded from arguing this point in his federal habeas petition — unless he can show “cause” for his procedural default in the state courts and “prejudice” resulting from that default. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). We find no objective cause in this record to excuse Fairchild’s default. Nor is there any basis for an exception to the Wainwright rule.

The District Court erred in holding that the lack of discovered evidence about Fairchild’s retardation at the time of his direct appeal and state collateral attack satisfied the cause requirement. Evidence of Fairchild’s mental condition was available at trial (and after) from his school records, and there is no reason why the same evidence now urged in his favor could not have been offered then. Not discovering that information was counsel’s omission, and there is no claim that this omission rises to the level of ineffective assistance of counsel. Compare Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (constitutionally ineffective assistance of counsel establishes cause).

There are excellent reasons for the rule that claims not properly preserved in the state courts are normally not open on habe-as. The trial in the state court should be the main judicial event. “Society’s resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens.” Wainwright, 433 U.S. at 90, 97 S.Ct. at 2508. Because Fairchild has no legally sufficient cause to excuse his failure to argue his new contention before the Arkansas courts, he is barred from arguing the point now.

Fairchild’s successive petition is also an abuse of the writ. While 28 U.S.C. § 2244(b) clearly contemplates that there can be legally sufficient reasons to entertain a successive petition, no such reason has been offered here. The District Court relied on the fact that Fairchild’s life was at stake, and his mental capacity at issue, in agreeing to consider his successive petition. That is not the law. In death-penalty cases, as in all cases, it is, with some exceptions, an abuse of the Great Writ to assert new grounds for relief that were available at the time of an initial petition. Woodard v. Hutchins, 464 U.S. 377, 380, 104 S.Ct. 752, 753, 78 L.Ed.2d 541 (1984) (per curiam) (Powell, J., concurring, joined by a majority of the Court); Smith v. Armontrout, 888 F.2d 530, 540 (8th Cir.1989).

Fairchild’s case does not fit within any of the narrow exceptions allowing such a previously available claim to be raised in a successive petition. Our cases teach that the procedural-bar “cause” and “prejudice” analysis of Wainwright, and the “factual innocence” exception to that analysis, also apply to a state’s abuse-of-the-writ defense. Harper v. Nix, 867 F.2d 455 (8th Cir.), cert. denied, — U.S. -, 109 S.Ct. 3194, 105 L.Ed.2d 702 (1989); Smith, 888 F.2d at 541. But, as we indicated above, the Wainwright analysis and its exceptions offer no ground for Fairchild’s new contentions. Moreover, Fairchild was represented by counsel in his first petition, and there is no claim of ineffective assistance at any stage in the state or federal review of his conviction. (Indeed, the same lawyer who brought Fairchild’s first petition is one of counsel for him in this proceeding.) Because Fairchild’s new claim and the evidence to support it were previously available, and because none of the recognized exceptions applies, considering the new [1295]*1295claim now would abuse the writ. Williams v. Lockhart, 862 F.2d 155 (8th Cir.1988).

II.

What we have said up to now is sufficient to dispose of the case on procedural grounds. We choose nevertheless to discuss the merits also. This case will no doubt go to the Supreme Court after it leaves us, and a discussion by us of the merits may aid full appellate review. We briefly restate Fairchild’s argument for the convenience of the reader: If the jury that tried him had known what is now known about his mental retardation, it would or might have disbelieved his confessions, and might therefore have acquitted him. The argument is not that the confessions were wrongly admitted, but rather that a fully informed jury would have given them less weight.

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Bluebook (online)
900 F.2d 1292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barry-lee-fairchild-v-al-lockhart-director-department-of-correction-ca8-1990.