concurring.
The majority opinion concludes that the mandate should be recalled based on Wooten’s lack of verification of his Rule 37 petition. But there is an equally important reason to recall the mandate, which is the woefully deficient | ^presentation of Wooten’s mitigation case by trial counsel and Rule 37 counsel, James Clawson. This too warrants a recall of the mandate due to the breakdown in the Rule 37 process.
Wooten’s core argument on this point is that because of his defective counsel at his Rule 37 hearing in 1997 and on appeal, he has never been able to show either the circuit court or this court how his trial counsel was ineffective in his failure to present mental illness and familial abuse as mitigation evidence at the sentencing phase. That failure, according to Wooten, could easily have converted a life-without-parole sentence to death. Thus, under Wooten’s argument, prejudice is easily shown. See Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
At trial, Wooten’s counsel called two witnesses during the sentencing phase. One witness was the Pope County jailer who testified that Wooten did not have a prior criminal record, that he adapted to jail life, that he was a good prisoner, and that he could work in prison if sentenced to life in prison without parole. The other witness was the person in charge of maintenance at a Russellville public school. He testified that Wooten had worked at the school and was a good worker. That was the sum total of Wooten’s mitigation case. Nothing was presented about his abusive childhood and mental handicap during the sentencing phase.
Counsel James Clawson was retained to represent Wooten in his postconviction proceeding. He wrote in Wooten’s Rule 37 petition in 1997 as follows:
Counsel, in the penalty phase, called two witnesses. Danny Sorey, jailor, was called to establish that Wooten had no criminal history, and that he is a good prisoner. 114Stanley Courtwright was called to establish that Wooten was a good worker, who possessed many skills. Counsel has a duty to investigate for penalty phase and failure is ineffective assistance. Kenley v. State, 937 F.2d 1298 (C.A.8 1991) [sic]. Counsel was ineffective for failing to offer .for the jury’s consideration the following mitigating circumstances: counsel did not call wife or friends to establish Wooten’s ability to maintain friendship and favorable qualities. These witnesses would have portrayed positive aspects of Wooten’s character and demonstrated humanity. Counsel made no argument for mitigation, no plea for mercy, and in short, did absolutely nothing a reasonably competent attorney would have done to provide effective representation in the penalty phase.
Again, the trial court was presented with no evidence about Wooten’s traumatic childhood and mental-health issues. In 2003, new counsel for Wooten made an extensive proffer concerning the childhood history and mental-health evidence that a reasonable investigation by trial counsel or Rule 37 counsel would have uncovered and produced. This evidence was proffered in conjunction with counsel’s motion to recall the mandate. It included affidavits from psychiatrists, a psychologist, and a mitigation, specialist. It also included a declaration from his mother about Wooten’s traumatic life history and severe mental problems, none of which was imparted to Wooten’s jury at trial or to the court as part of the Rule 37 process. Some of the facts of Wooten’s proffered life history include his being the youngest of six children. His father was a severe alcoholic and did not provide for his family. His childhood was distorted by extraordinary violence, mistreatment, and abuse by his alcoholic father. Wooten’s father beat his mother in the presence of the children. He beat all' the children, including Wooten. The abuse was constant, extreme, and life threatening. Wooten was a special target because he was small, weak, and mentally slow.
In addition, the proffer states that Wooten has a lifelong history of learning and | ^cognitive problems. He was placed in special education classes for the lowest-functioning students. In spite of his intellectual limitations, he was considered a good worker and was eager to please. He worked at unskilled manual labor jobs.
As a direct result of Wooten’s mental disturbances, current counsel propose that his childhood trauma had a lasting, severe, and adverse impact on his mental health, including post-traumatic stress disorder with dissociative features and organic brain damage. Mental health expert testimony would have shown that Wooten, due to his mental disease/defects, lacked the mens rea necessary for murder. The testimony also would have established two statutory mental health-related mitigating circumstances and other nonstatutory mitigating circumstances arising from his impairments and mental health history. Wooten finally proffers that he suffers from brain damage caused by the trauma he endured, including prenatal insults to the brain, birth problems, and significant head injuries.
The United States Supreme Court has emphasized the critical importance of such mitigation evidence in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and found prejudice when such evidence is not presented:
Wiggins’ sentencing jury heard only one significant mitigating factor — that Wiggins had no prior convictions. Had the jury been able to place petitioner’s excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance. Cf. Borchardt v. State, 367 Md. 91, 139-140, 786 A.2d 631, 660 (2001) (noting that as long as a single juror concludes that mitigating evidence outweighs aggravating evidence, the death penalty cannot be imposed); App. 369 (instructing the jury: “If you unanimously find that the State has proven by a preponderance of the evidence that the aggravating circumstance does outweigh the mitigating circumstances, then consider whether death is the appropriate sentence”).
539 U.S. at 537, 123 S.Ct. 2527.
What is patently clear in all this is that Wooten never had his day in court regarding mitigation evidence related to mental impairment and early family abuse. Trial counsel can certainly be blamed for this, but this failure to investigate trial counsel’s oversight as part of the Rule 37 process can be laid squarely at the feet of defective Rule 37 counsel, James Clawson. Because of Clawson’s dismal performance in failing to investigate and to assert mental illness and an abusive past, the circuit judge entered a one-page order denying the Rule 37 petition in 1997, without making factual findings.
On appeal of the one-page order to this court, Clawson filed only a five-page argument, again not referencing the absence of the pertinent mitigation evidence, but this court, sua sponte, remanded the matter to the circuit judge for factual findings. The circuit judge held no hearing, but in 2000, he made written findings in an order which did not touch on the absent mitigation evidence because it had not been presented to him. Clawson did not appeal the new order with its findings and did not advise Wooten of his failure to appeal.
The saga of Wooten’s experience in post-conviction proceedings with James Claw-son at the helm as counsel beginning in 1997 graphically illustrates a complete breakdown in the criminal-justice process. Not only did Wooten not have effective counsel for his postconviction proceedings, according to the Eighth Circuit Court of Appeals, Clawson perpetrated a fraud “upon Wooten and upon the courts of Arkansas” by not disclosing his criminal convictions (two felony convictions for altering forged documents) and disbarment |l7in the State of Oklahoma. Wooten v. Norris, 578 F.3d 767, 771 (8th Cir.2009). As a disbarred attorney in Oklahoma, Clawson was not qualified to represent Wooten in Arkansas, even though the Arkansas disbarment had not yet transpired.
Meanwhile, Clawson was convicted of drunk driving in 1998 in Arkansas, was reprimanded by the Arkansas Professional Conduct Committee for fraudulent conduct in bankruptcy court in 1999, and was convicted in federal court on six counts of bankruptcy fraud in 2001. He was sentenced to eighteen months in federal prison.
Wooten learned of the federal convictions and Clawson’s failure to appeal his Rule 87 denial in 2001, and he sought to appeal the denial of postconviction relief belatedly. This court granted a belated appeal and appointed new counsel. Ultimately, this court denied the Rule 37 appeal in 2002, Wooten v. State, 351 Ark. 241, 91 S.W.3d 63 (2002), and, in doing so, rejected Wooten’s mitigation claim because Clawson had provided nothing to the circuit judge at the 1997 Rule 37 proceeding regarding what mitigation evidence trial counsel should have presented. Without evidence showing how the result at trial would have been different, this court said it could do nothing but affirm the Rule 37 denial. Clearly, Wooten was caught in a Catch-22 dilemma. He could not prevail before this court in 2002 because of Claw-son’s failure at the Rule 37 hearing to investigate his mental history and family abuse and provide appropriate proof which would highlight trial counsel’s failure, but, yet, Clawson’s egregious ineptitude in not doing this is precisely the point. Claw-son’s failure to do his job has become a stumbling block in Wooten’s quest to present the relevant mitigation evidence.
| ¶sWooten then went to federal court in 2003 with his new counsel and the federal public defender and sought habeas corpus relief under 28 U.S.C. § 2254. For the first time, counsel investigated and supplied the absent mitigation evidence in the form of mental illness, organic brain injury, decreased cognitive functioning, tragic life history, and post-traumatic stress disorder. The federal district court denied the § 2254 petition in 2006 based on the default by Rule 37 counsel in presenting proposed mitigation evidence at the state Rule 37 proceeding in 1997. The matter was then appealed to the Eighth Circuit Court of Appeals.
The Eighth Circuit, in 2009, concluded that it could not grant Wooten relief because this court had denied Wooten’s Rule 37 appeal on an adequate and independent state ground. Our denial was based on the procedural default by Clawson at the Rule 37 level in failing to investigate and present Wooten’s mental-impairment and childhood-abuse history, which trial counsel should have presented in mitigation. Wooten v. Norris, supra. In light of U.S. Supreme Court authority, the Eighth Circuit was foreclosed from considering Claw-son’s ineffectiveness and his abandonment of Wooten as a cause for excusing default, when there is no right to counsel in post-conviction matters and, thus, no constitutional violation. The Catch-22 scenario persists.
The Eighth Circuit, nevertheless, wrote that while it could not grant Wooten relief, the state supreme court could. The Eighth Circuit said: “[Tjhis appears to be a case that could satisfy the three factor test in Lee.” The reference is to Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006), where this court recalled the mandate and reopened the Rule 37 case because Rule |1fl37 counsel was impaired by alcohol at the Rule 37 hearing and, thus, incompetent. The three factors which were set forth in Lee by this court but originally described in Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003), were described by the Eighth Circuit as follows:
The circumstances the court referred to included the facts that [1] a federal court had dismissed a related habeas case based on a failure to exhaust state remedies, [2] the Arkansas Supreme Court had recently decided a case that was “on all fours legally with the issue presented” in Robbins, [3] and the case was a capital case that the Arkansas Supreme Court viewed as qualitatively different and worthy of more thorough review.
578 F.3d at 783. In the instant case, a remedy does remain, as was the case in Lee, and that is recall of the mandate for the purpose of presenting the absent mitigation evidence to the trial court in a new Rule 37 proceeding.
The Eighth Circuit further underscored the high premium Congress and this court have placed on effective state-court review in death cases, including competent counsel:
In Lee, the [Arkansas Supreme Court] discussed the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132 (1996), and stated, “By this act, Congress chose to restrict federal habeas corpus review in exchange for the states’ appointing competent counsel for indigent capital defendants for purposes of state postconviction review.” Lee, 238 S.W.3d at 56. The court then discussed state procedural rules that Arkansas had put in place to ensure adequate post-conviction representation and review and “to eliminate the need for multiple federal habeas corpus proceedings in death cases.”
Id. (quotation omitted) (emphasis in original). This court has emphasized the same point in our postconviction death cases. See, e.g., Lee, supra; Robbins, supra.
The instant case is analogous to the Lee case, as the Eighth Circuit recognized, because of the complete incompetence of Rule 37 counsel and, thus, his complete impairment. To date, this court has recalled our mandate in two death cases related to Rule 37.5 proceedings: |2qLee (inebriated counsel at Rule 37 proceeding) and Robbins (failure to pursue inconsistency in sentencing forms). This case easily qualifies for the same relief. In reference to this court’s procedure to recall the mandate in exceptional death cases, the Eighth Circuit said in its Wooten opinion:
We welcome and applaud this mechanism [of the Arkansas Supreme Court] given our frequent inability to provide relief in the face of questionable representation by post-conviction counsel. As such, we have a disincentive to use the state’s act of grace as a means to reach a case that would otherwise be unre-viewable under the restrictions of 28 U.S.C. § 2254:
578 F.3d at 784. The Eighth Circuit, in addition, has underscored Wooten’s “compelling” argument in this postconviction case. Judge Myron Bright, in a concurrence in Wooten, emphasized “the breakdown” of the Rule 37.5 process at the state level. 578 F.3d at 787.
Again, what is patently obvious in all this is that Wooten has never had his day in court in a postconviction proceeding with competent counsel to present his mitigation evidence on mental illness, organic brain injury, tragic life history, and post-traumatic stress disorder. Neither trial counsel nor Rule 37 counsel did the necessary investigations into Wooten’s background and, thus, failed to develop his readily ascertainable abusive childhood and cognitive disorders. See Wiggins, supra. Wooten’s Rule 37 counsel was impaired, as was the situation in Lee, and he deserves to be heard on this issue.
I would recall the mandate both because of Wooten’s (1) lack of verification of the Rule 37 petition, and (2) the deficient presentation of Wooten’s mitigation case.