BRIGHT, Circuit Judge.
Carl Albert Collins, the first Arkansas prisoner sentenced to death under an Arkansas statute drafted after the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), appeals from the district court’s denial of his writ of habeas corpus. We conclude that the total exhaustion rule of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), and considerations of comity require that Collins’ petition be held in abeyance pending Collins’ presentation to the Arkansas Supreme Court of his unexhausted claims and his claim that the omission of any proportionality review of his death sentence is unconstitutional. Accordingly, we reverse and remand the case to the district court, 545 F.Supp. 83, with instructions to retain jurisdiction and hold the case in abeyance pending Collins’ exhaustion of state remedies.
I. Background.
In 1974, an Arkansas jury convicted Collins of capital felony murder for killing a seventy-two-year old man during the course of a robbery. After a bifurcated trial and sentencing procedure, a jury sentenced Collins to death. Collins unsuccessfully appealed the conviction and sentence. Collins v. State, 259 Ark. 8, 531 S.W.2d 13 (Ark.1975), judgment vacated and remanded, Collins v. Arkansas, 429 U.S. 808, 97 S.Ct. 44, 50 L.Ed.2d 69 (1976), aff’d on remand, 261 Ark. 195, 548 S.W.2d 106 (Ark.), cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158, rehearing denied, 434 U.S. 977, 98 S.Ct. 540, 54 L.Ed.2d 471 (1977).
Collins petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court held a hearing, and then dismissed Collins’ petition. On appeal to this court, Collins alleges that (1) his attorneys provided ineffective assistance during both his trial and sentencing, (2) the issue of “pecuniary gain” as an aggravating circumstance to warrant the imposition of the death penalty violated his constitutional rights, and (3) the Arkansas capital murder statute, as applied to him, unconstitutionally failed to provide an effective basis for comparative review of death penalties.
II. Discussion.
A year after Furman v. Georgia, supra, struck down the death penalty as adminis[343]*343tered in all American jurisdictions, the Arkansas legislature passed a new capital punishment statute. This is the statute under which an Arkansas jury convicted and sentenced Collins. See Ark.Stat.Ann. §§ 41-4701 et seq. (Supp.1973). This statute did not require, however, appellate review independent of any errors assigned by the parties, to ensure that the imposition of a death sentence in a particular case was not disproportionate to sentences imposed in similar cases.
After the Arkansas Supreme Court affirmed Collins’ sentence on direct appeal without conducting a comparative review of punishments imposed in similar cases, the United States Supreme Court vacated the sentence and remanded for reconsideration. Collins v. State, supra, 259 Ark. 8, 531 S.W.2d 13 (Ark.1975), judgment vacated and remanded, 429 U.S. 808, 97 S.Ct. 44, 50 L.Ed.2d 69 (1976) (remanded for reconsideration in light of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and companion cases). On remand, a majority of the Arkansas Supreme Court held the statute constitutional, concluded that appellate review comparing cases in which the death penalty has been imposed is not constitutionally or statutorily required by the 1973 Act, and observed that comparative review in any event would be “difficult” in Collins’ case because he had been the first Arkansas prisoner convicted and sentenced under the 1973 Act. Collins v. State, supra, 548 S.W.2d at 111, 119-22. Three justices dissented in Collins, finding the Arkansas death penalty statute unconstitutional. Id. 548 S.W.2d at 123 (George Rose Smith, J., dissenting); id. 548 S.W.2d at 123-25 (Hickman, J., dissenting). Justice Hickman specifically dissented on the ground that until “a majority of this court * * * accepts] * * the obligation to compare sentences and to reduce any disproportionate sentence,” Arkansas’ capital-sentencing procedures would be unconstitutional. Id. 548 S.W.2d at 125 (Hickman, J., dissenting).
Arkansas juries imposed five death sentences under the 1973 Act before it was superceded on January 1,1976. Woodard v. State, 261 Ark. 895, 553 S.W.2d 259 (Ark. 1977); Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (Ark.1977); Hulsey v. State, 261 Ark. 449, 549 S.W.2d 73 (1977); Collins v. State, supra, 531 S.W.2d at 13; Neal v. State, 259 Ark. 27, 531 S.W.2d 17 (Ark. 1975). However, the Arkansas Supreme Court has vacated two of these sentences because that court found death to be an unduly harsh penalty under the circumstances. Neal v. State, 274 Ark. 217, 623 S.W.2d 191, 192 (Ark.1981) (death sentence vacated because Neal’s diminished mental capacity made death an excessive punishment); Giles v. State, supra (death sentence vacated because Giles’ mental disorders made death an excessive punishment). A third death sentence has been vacated on other grounds. Hulsey v. Sargent, No. PBC-81-2 (E.D.Ark. July 1981) (death sentence vacated by oral order). A fourth is currently the subject of a federal habeas corpus petition. Woodard v. Sargent, No. PB-C-81-433 (E.D.Ark. filed Dec. 23,1981).
The 1976 Act changed substantially the 1973 Act capital sentencing procedures in a number of ways. The 1976 Act omits, however, any express specialized review procedures. Nonetheless, the Arkansas Supreme Court has assumed the obligation to “compare death penalty cases * * * to others that we have considered,” Swindler v. State, 267 Ark. 418, 592 S.W.2d 91, 99 (Ark. 1979), and has recently reduced two death sentences because of the similarity of their facts to cases in which life-without-parole sentences were imposed. Neal v. State, supra, 623 S.W.2d at 192; Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372, 375 (Ark.1981).
In this case, the Arkansas Supreme Court did not subject Collins’ sentence to a comparative review. We realize that in his 1977 appeal Collins attacked the 1973 Act’s omission of any comparative review provision.
Free access — add to your briefcase to read the full text and ask questions with AI
BRIGHT, Circuit Judge.
Carl Albert Collins, the first Arkansas prisoner sentenced to death under an Arkansas statute drafted after the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), appeals from the district court’s denial of his writ of habeas corpus. We conclude that the total exhaustion rule of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), and considerations of comity require that Collins’ petition be held in abeyance pending Collins’ presentation to the Arkansas Supreme Court of his unexhausted claims and his claim that the omission of any proportionality review of his death sentence is unconstitutional. Accordingly, we reverse and remand the case to the district court, 545 F.Supp. 83, with instructions to retain jurisdiction and hold the case in abeyance pending Collins’ exhaustion of state remedies.
I. Background.
In 1974, an Arkansas jury convicted Collins of capital felony murder for killing a seventy-two-year old man during the course of a robbery. After a bifurcated trial and sentencing procedure, a jury sentenced Collins to death. Collins unsuccessfully appealed the conviction and sentence. Collins v. State, 259 Ark. 8, 531 S.W.2d 13 (Ark.1975), judgment vacated and remanded, Collins v. Arkansas, 429 U.S. 808, 97 S.Ct. 44, 50 L.Ed.2d 69 (1976), aff’d on remand, 261 Ark. 195, 548 S.W.2d 106 (Ark.), cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158, rehearing denied, 434 U.S. 977, 98 S.Ct. 540, 54 L.Ed.2d 471 (1977).
Collins petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court held a hearing, and then dismissed Collins’ petition. On appeal to this court, Collins alleges that (1) his attorneys provided ineffective assistance during both his trial and sentencing, (2) the issue of “pecuniary gain” as an aggravating circumstance to warrant the imposition of the death penalty violated his constitutional rights, and (3) the Arkansas capital murder statute, as applied to him, unconstitutionally failed to provide an effective basis for comparative review of death penalties.
II. Discussion.
A year after Furman v. Georgia, supra, struck down the death penalty as adminis[343]*343tered in all American jurisdictions, the Arkansas legislature passed a new capital punishment statute. This is the statute under which an Arkansas jury convicted and sentenced Collins. See Ark.Stat.Ann. §§ 41-4701 et seq. (Supp.1973). This statute did not require, however, appellate review independent of any errors assigned by the parties, to ensure that the imposition of a death sentence in a particular case was not disproportionate to sentences imposed in similar cases.
After the Arkansas Supreme Court affirmed Collins’ sentence on direct appeal without conducting a comparative review of punishments imposed in similar cases, the United States Supreme Court vacated the sentence and remanded for reconsideration. Collins v. State, supra, 259 Ark. 8, 531 S.W.2d 13 (Ark.1975), judgment vacated and remanded, 429 U.S. 808, 97 S.Ct. 44, 50 L.Ed.2d 69 (1976) (remanded for reconsideration in light of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and companion cases). On remand, a majority of the Arkansas Supreme Court held the statute constitutional, concluded that appellate review comparing cases in which the death penalty has been imposed is not constitutionally or statutorily required by the 1973 Act, and observed that comparative review in any event would be “difficult” in Collins’ case because he had been the first Arkansas prisoner convicted and sentenced under the 1973 Act. Collins v. State, supra, 548 S.W.2d at 111, 119-22. Three justices dissented in Collins, finding the Arkansas death penalty statute unconstitutional. Id. 548 S.W.2d at 123 (George Rose Smith, J., dissenting); id. 548 S.W.2d at 123-25 (Hickman, J., dissenting). Justice Hickman specifically dissented on the ground that until “a majority of this court * * * accepts] * * the obligation to compare sentences and to reduce any disproportionate sentence,” Arkansas’ capital-sentencing procedures would be unconstitutional. Id. 548 S.W.2d at 125 (Hickman, J., dissenting).
Arkansas juries imposed five death sentences under the 1973 Act before it was superceded on January 1,1976. Woodard v. State, 261 Ark. 895, 553 S.W.2d 259 (Ark. 1977); Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (Ark.1977); Hulsey v. State, 261 Ark. 449, 549 S.W.2d 73 (1977); Collins v. State, supra, 531 S.W.2d at 13; Neal v. State, 259 Ark. 27, 531 S.W.2d 17 (Ark. 1975). However, the Arkansas Supreme Court has vacated two of these sentences because that court found death to be an unduly harsh penalty under the circumstances. Neal v. State, 274 Ark. 217, 623 S.W.2d 191, 192 (Ark.1981) (death sentence vacated because Neal’s diminished mental capacity made death an excessive punishment); Giles v. State, supra (death sentence vacated because Giles’ mental disorders made death an excessive punishment). A third death sentence has been vacated on other grounds. Hulsey v. Sargent, No. PBC-81-2 (E.D.Ark. July 1981) (death sentence vacated by oral order). A fourth is currently the subject of a federal habeas corpus petition. Woodard v. Sargent, No. PB-C-81-433 (E.D.Ark. filed Dec. 23,1981).
The 1976 Act changed substantially the 1973 Act capital sentencing procedures in a number of ways. The 1976 Act omits, however, any express specialized review procedures. Nonetheless, the Arkansas Supreme Court has assumed the obligation to “compare death penalty cases * * * to others that we have considered,” Swindler v. State, 267 Ark. 418, 592 S.W.2d 91, 99 (Ark. 1979), and has recently reduced two death sentences because of the similarity of their facts to cases in which life-without-parole sentences were imposed. Neal v. State, supra, 623 S.W.2d at 192; Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372, 375 (Ark.1981).
In this case, the Arkansas Supreme Court did not subject Collins’ sentence to a comparative review. We realize that in his 1977 appeal Collins attacked the 1973 Act’s omission of any comparative review provision. Moreover, we acknowledge that on Collins’ appeal, the Arkansas Supreme Court expressly refused to conduct “similar case” review. However, we feel that considerations of comity require that we afford the Arkansas Supreme Court an opportunity to consider further the issue of proportionality in light of current circumstances. [344]*344We note that since Collins’ appeal in 1977, the Arkansas Supreme Court has assumed the obligation to compare sentences. We also note that three of the death sentences imposed under the 1973 Act have been subsequently vacated. We further observe that the Ninth Circuit, in a recent opinion, held that proportionality review is a constitutional prerequisite to imposition of the death penalty, and that the Supreme Court has agreed to hear oral argument in that case. Harris v. Pulley, 692 F.2d 1189, 1196-97 (9th Cir.1982), cert. granted, - U.S. -, 103 S.Ct. 1425, 75 L.Ed.2d 787 (1983).
Additionally, Collins raises unexhausted claims in his petition. The total exhaustion rule of Rose v. Lundy, supra, requires that we defer consideration of Collins’ petition until the Arkansas courts have had an opportunity to pass upon these matters.
As a final matter, we note that the Arkansas Supreme Court has left open the door to successive Rule 37 petitions under limited circumstances. See Scott v. State, 267 Ark. 536, 592 S.W.2d 122, 123-24 (Ark. 1980). We conclude that it is appropriate as a matter of comity that the Arkansas state courts be afforded the opportunity to determine whether Collins can further litigate his claims in state post-conviction proceedings.
III. Conclusion.
Accordingly, we reverse and remand to the district court with instructions to retain jurisdiction and hold the case in abeyance under the existing stay of execution pending Collins’ prompt presentation to the Arkansas Supreme Court of all his federal constitutional claims.