Fretwell v. Lockhart

LOKEN, Circuit Judge,

dissenting:

I respectfully dissent for two reasons. First, the majority holds that Fretwell received constitutionally ineffective assistance of counsel because trial counsel failed to object to an aggravating circumstances instruction that was proper under Lowen-field v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). I conclude that this ineffective assistance claim cannot satisfy the prejudice requirement of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, the majority holds that Arkansas must resentence Fretwell to life imprisonment. I conclude that this remedy exceeds the authority of a federal habeas court and conflicts with our prior decision in Perry v. Lockhart, 871 F.2d 1384 (8th Cir.), cert. denied, 493 U.S. 959, 110 S.Ct. 378, 107 L.Ed.2d 363 (1989).

I.

“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. “The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding.” Id. at 691-692, 104 S.Ct. at 2066-2067. With this, the Supreme Court laid the foundation for analyzing claims of ineffective assistance of counsel. The Court then enunciated its now-familiar ineffectiveness and prejudice test for determining whether counsel’s assistance was so defective as to require reversal of a death sentence.

Proof of prejudice is an essential prerequisite to relief under Strickland. When dealing with issues relating to counsel’s performance during a trial or sentencing hearing, proof of prejudice normally and quite logically focuses on the time in question. The prejudice test adopted in Strickland — “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” 466 U.S. at 694, 104 S.Ct. at 2068 — reflects that focus. In this case, the majority limits its analysis entirely to that focus and concludes that Fretwell was prejudiced because his sentence probably would have been different had his counsel made a Collins objection.

However, there is something more to Strickland’s concept of constitutional prejudice. That something more is best illustrated by Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986), a case in which trial counsel persuaded the defen*579dant not to commit perjury by threatening to expose the perjury if he did. The defendant testified truthfully, was convicted, and on appeal claimed ineffective assistance. As two commentators have noted, “All nine Justices concluded that, even if defense counsel acted incompetently and even if that action had the requisite effect on outcome, counsel’s behavior still would not have been prejudicial. The reason was apparently that perjury is criminal conduct that detracts from the reliability of judgments.” Jeffries & Stuntz, Ineffective Assistance and Procedural Default in Federal Habeas Corpus, 57 U.Chi.L.Rev. 679, 686 (1990). Justice Blackmun, in a concurring opinion for four Justices, put it more bluntly: “Since Whiteside was deprived of neither a fair trial nor any of the specific constitutional rights designed to guarantee a fair trial, he has suffered no prejudice.” 475 U.S. at 186-187, 106 S.Ct. at 1004-1005.

This aspect of the prejudice analysis was more fully articulated in Justice Powell’s concurring opinion in Kimmelman v. Morrison, 477 U.S. 365, 392, 106 S.Ct. 2574, 2591, 91 L.Ed.2d 305 (1986). Morrison was convicted of rape after his attorney failed to object to admission of an illegally seized bedsheet. The Court held that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) did not bar this ineffective assistance claim. However, Justice Powell wrote separately to clarify that the Court in remanding was not resolving a Strickland prejudice issue that had not been argued:

[T]he admission of illegally seized but reliable evidence does not lead to an unjust or fundamentally unfair verdict.... Thus, the harm suffered by respondent in this case is not the denial of a fair and reliable adjudication of his guilt, but rather the absence of a windfall. Because the fundamental fairness of the trial is not affected, our reasoning in Strickland strongly suggests that such harm does not amount to prejudicial ineffective assistance of counsel under the Sixth Amendment.... [I]t would shake th[e] right [to effective assistance of counsel] loose from its constitutional moorings to hold that the Sixth Amendment protects criminal defendants against errors that merely deny those defendants a windfall.

477 U.S. at 396-397, 106 S.Ct. at 2954-2955. See also Woods v. Whitley, 933 F.2d 321, 324 (5th Cir.1991).

The majority and the district court have granted Fretwell just such a windfall. Lowenfield established that Fretwell’s sentencing jury was given instructions that did not violate his Eighth Amendment rights. Moreover, this court in Perry held that Lowenfield did not create a new rule of law and therefore must be applied retroactively. 871 F.2d at 1394. By focusing only on the probable effect of counsel’s error at the time of Fretwell’s sentencing, the majority misses the broader and more important point that his sentencing proceeding reached neither an unreliable nor an unfair result. Consequently, we are granting Fretwell a constitutional “windfall” that, as Justice Powell warned in Kimmelman, loosens the ineffective assistance inquiry from its Sixth Amendment moorings.

Like Justice Blackmun in Nix and Justice Powell in Kimmelman, I conclude that a federal court has no power to grant habeas relief to Fretwell, a state prisoner, unless ineffective assistance of counsel has deprived him of a fundamentally fair sentencing, or of a specific constitutional right designed to guarantee a fair sentencing. Lowenfield and Perry establish that Fret-well was deprived of neither. Accordingly, I would reverse the district court’s grant of habeas corpus relief.

II.

Having concluded, erroneously in my view, that Fretwell was denied effective assistance of counsel, the majority orders Arkansas to resentence him to life imprisonment without parole. I dissent from this extraordinary intrusion into the state’s authority to conduct this criminal proceeding consistent with current constitutional principles.

Presumably the majority limits the state’s resentencing options to life imprisonment on the assumption that Fretwell’s *580sentencing jury would have sentenced him to life if not instructed that pecuniary gain could be an aggravating circumstance. Of course, this assumption is highly speculative.1 But the remedy is more than speculative, it goes beyond that afforded when Collins was still the law. Indeed, two of the four Arkansas prisoners who were re-sentenced prior to Lowenfield because of a Collins error received the death penalty upon resentencing. See Perry, 871 F.2d at 1394 n. 7; Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989).

More importantly, the majority’s remedy conflicts with our prior decision in Perry, which overruled Collins. In Perry, we applied Lowenfield retroactively and reinstated the defendant’s death penalty because he was not entitled to “the benefit of an undisturbed Collins....’’ Perry, 871 F.2d at 1394 n. 7. Thus, the majority’s remedy, which goes beyond that of an “undisturbed Collins,” is in clear conflict with Perry.

The proper remedy here should reflect three principles. First, Arkansas should be given an opportunity to resentence Fret-well; that has been the law since at least In re Bonner, 151 U.S. 242, 259-260, 14 S.Ct. 323, 326-327, 38 L.Ed. 149 (1894). Second, Arkansas should be permitted to seek the death penalty at that resentenc-ing; otherwise, this court will be mandating a procedure in the name of Collins, an overruled case, that neither Collins nor the Constitution ever required. Because the first jury sentenced Fretwell to death, there is no Fifth Amendment double jeopardy bar if the state decides to seek that penalty at the resentencing. Compare Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), with Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).

Finally, I would hold that, because Low-enfield is now the law, Arkansas must be permitted to instruct the jury at Fretwell’s resentencing that pecuniary gain is a potential aggravating circumstance. Although this result might be viewed as depriving Fretwell of the benefit of Collins, the law has changed, and it has been clear for nearly a century that procedural or evidentiary changes in the law may constitutionally be applied at a criminal defendant’s second trial or resentencing. See Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898) (evidence declared inadmissible at first trial may be admitted at second trial under new statute authorizing its admission), cited approvingly in Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977).2 In addition, the nature of the federal habe-as corpus remedy compels this result, for it is surely beyond our habeas corpus powers to prohibit the state from conducting the resentencing proceeding in a manner wholly consistent with the Constitution. See 28 U.S.C. § 2254(a).

. I cannot agree that Fretwell would certainly have received a life sentence if his attorney had made a Collins objection and the trial court had not given the pecuniary gain instruction. The jury was instructed on two potential aggravating circumstances. Although it found only one, pecuniary gain, it concluded that the death penalty was appropriate. Thus, if pecuniary gain had not been charged, the jury would have had to change either its finding as to the other aggravating circumstance, or its conclusion as to the death penalty, to avoid an inconsistent sentencing verdict. It is sheer speculation for the majority to predict what decision that jury would have made.

. See also Evans v. Thompson, 881 F.2d 117 (4th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 3255, 111 L.Ed.2d 764 (1990); Coleman v. Saffle, 869 F.2d 1377, 1385-1387 (10th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1835, 108 L.Ed.2d 964 (1990); Hulsey v. Sargent, 821 F.2d 469, 471 (8th Cir.), cert. denied, 484 U.S. 930, 108 S.Ct. 299, 98 L.Ed.2d 258 (1987); United States v. Sager, 743 F.2d 1261 (8th Cir.1984), cert. denied, 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985).