Petitioner Andrew Engram has filed a motion to recall the mandate and reopen his case. Engram was charged in the June 10, 1997, capital murder and rape of Laura White, a security guard working at Sears in North Little Rock. Ajury convicted him on both counts on January 28, 1999, and sentenced him to death. His conviction and sentence were affirmed by this court on May 4, 2000. See Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000). Engram then petitioned to the United States Supreme Court for a writ of certiorari, which the Court denied, see Engram v. Arkansas, 531 U.S. 1081 (2001); this court’s mandate issued on January 12, 2001. On January 22, 2001, an attorney was appointed to represent Engram in postconviction proceedings, but, at a hearing before the circuit court, the attorney opined that there was nothing that merited Rule 37 relief. Engram then, on January 9, 2002, filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas.
On April 18, 2003, Engram requested leave from the federal court to file an amended habeas corpus petition in order to raise additional grounds for relief, including a claim that he is mentally retarded and that his execution is barred under the Supreme Court’s holding in Atkins v. Virginia, 536 U.S. 304 (2002). The federal district court granted Engram’s motion to amend, but also raised sua sponte the question of whether Engram had presented his mental retardation claim in state court. After briefing by both Engram and the State, the federal court determined that Engram “did not present the federal constitutional dimensions of his Atkins claim to the state courts.” Further, the federal court disagreed with the State’s contention that Engram was procedurally barred from raising the mental retardation claim, ruling that there was “no question that the legal basis for [Engram’s] Atkins claim was unavailable to him during the state proceedings.” Citing Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003), the federal district court concluded that “a substantial possibility exists that the Arkansas Supreme Court will recall the mandate in this case to consider [Engram’s] Atkins claim.” Thus, the court directed Engram to move to dismiss his amended petition without prejudice, and granted him leave to file a second amended petition that would relate back to his original, timely-filed petition.
Engram filed a motion to dismiss his amended petition, and the federal court granted his motion bn October 7, 2003. Following entry of the federal court’s order, Engram filed in this court a “Motion to Recall the Mandate and Reopen the Case and Brief in Support,” on November 5, 2003. Our court directed that Engram’s motion be submitted as a case, and a briefing schedule was established.
The most recent case in which this court has been asked to recall its mandate and reopen the case under similar circumstances was Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003). In that death-penalty case, Robbins asked this court to recall its mandate in order to address an error alleged to have occurred in the jury’s completion of the sentencing verdict forms. In agreeing that the mandate should be recalled and the case reopened, the Robbins court noted that it was doing so for three reasons: 1) a decision had been cited to the court that was legally on all fours with the issue presented by Robbins; 2) the federal district court had dismissed Robbins’s federal habeas corpus petition because that issue had not been addressed in state court; and 3) it was “a death case where heightened scrutiny is required.” Robbins, 353 Ark. at 564. However, the Robbins court expressed its belief that its holding was “sui generis . . . [and] one of a kind, not to be repeated.” Id. at 564-65 (emphasis added).
Engram contends that this court should recall its mandate and reopen his case based on the fact that, in 2002, the Supreme Court decided the case of Atkins v. Virginia, supra, wherein the Court held that the execution of mentally retarded individuals violates the Eighth Amendment’s prohibition on cruel and unusual punishment. The Atkins Court noted that the practice of executing the mentally retarded had “become truly unusual, and it is fair to say that a national consensus has developed against it.” Atkins, 536 U.S. at 316. In addition, the Court held that, given the diminished reasoning capacity of those with mental retardation, neither the retributive nor the deterrent purposes of the death penalty would be served by executing the mentally retarded: “Unless the imposition of the death penalty on a mentally retarded person measurably contributes to one or both of these goals, it is nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment.” Id. at 319 (quotations and citation omitted).
Although the Atkins decision came down after Engram’s conviction and after the mandate issued in his case, the rule announced in Atkins is retroactive, according to the Supreme Court’s reasoning set out in Penry v. Lynaugh, 492 U.S. 302 (1989). In Penry, the Court held that, when a new rule places a certain class of individuals beyond the State’s power to punish, “the Constitution itself deprives the State of the power to impose a certain penalty,” and the new rule should be applied retroactively. Penry, 492 U.S. at 330. Thus, although the Penry Court concluded that executing the mentally retarded was not constitutionally prohibited, it noted that, if a case in the future were to reach that conclusion, the prohibition should be applied retroactively and would apply to defendants on collateral review. Id.
In the present case, Engram argues that this court should read Atkins, as applied retroactively under the reasoning of Penry, in such a way that would permit reopening his case in order for him to raise and address the issue of his alleged mental retardation. Engram concedes that sentencing, this court’s mandate, and the time for postconviction remedies are all long past. Nevertheless, Engram argues that this court can reopen his case under Robbins, because the three factors set out in Robbins have been met, as follows: 1) Atkins is on all fours with his case; 2) the federal court dismissed his habeas petition because the mental retardation issue has not yet been addressed by the state courts; and 3) this is a death case requiring heightened scrutiny.
However, Robbins is significantly distinguishable from Engram’s case. The purpose of recalling the mandate and reopening the case in Robbins was in order to correct an error in the appellate process. For clarity, we briefly address the facts and history of the Robbins case at this stage. First, after Robbins was convicted, he waived his right to direct appeal, and this court subsequently affirmed the trial court’s determination that Robbins was competent to make such a waiver. State v. Robbins, 335 Ark. 380, 985 S.W.2d 293 (1998) (per curiam) (Robbins I). Next, we further held that Robbins properly waived his right to seek Rule 37 postconviction relief. State v. Robbins, 336 Ark. 377, 985 S.W.2d 296 (1999) (per curiam) (Robbins II). However, Robbins’s mother filed a next-friend petition asking this court to recall the mandate and re-examine Robbins’s case; we granted her motion, recalled the mandate, stayed the execution, and ordered briefing on the issues raised by Robbins’s mother. State v. Robbins, 337 Ark. 227, 987 S.W.2d 709 (1999) (per curiam) (Robbins III).
After considering the arguments raised as a result of that briefing, this court held that it was the court’s duty to conduct an independent examination of the record to determine whether prejudicial error occurred under Ark. Sup. Ct. R. 4-3(h), whether any Wicks violations occurred during trial, and whether “fundamental safeguards” were in place during the trial. State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (Robbins IV). In order to accomplish this task, this court appointed amicus counsel to review the record and assist this court in its review, which counsel did.
In Robbins v. State, 342 Ark. 262, 27 S.W.3d 419 (2000) (Robbins V), this court held that no Rule 4-3 (h) errors, Wicks errors, or errors implicating “other fundamental safeguards” occurred during the trial. This court affirmed Robbins’s capital murder conviction and death sentence and dissolved the stay of execution. Following Robbins V, Robbins began, for the first time, to contest his death sentence, and he engaged legal counsel to pursue habeas corpus relief in federal district court. Robbins argued in the subsequent federal proceeding on his habeas corpus petition that an inconsistency in the jury’s verdict forms violated his constitutional rights under this court’s decision in Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). The State responded that Robbins had exhausted his state remedies by not pursuing a petition for rehearing and that the mandate in the case had issued, foreclosing additional review. The federal district court dismissed Robbins’s habeas corpus petition without prejudice on the basis that Robbins had not exhausted his state remedies. Specifically, the federal district court noted that state courts had not examined Robbins’s inconsistency-in-the-verdict-forms argument under Willett v. State, supra, and that he could “pursue his state remedies, if any.”
Following dismissal of the federal habeas corpus matter, Robbins filed a petition to reopen his case in this court, arguing that this court’s holding in Robbins IV required that the court reopen the case, and that a “fundamental error,” a violation of Robbins’s constitutional rights under Willett v. State, supra, occurred in his case. This court ultimately decided to recall the mandate because of the “extraordinary circumstances” — i.e., a mistake was made in Robbins V, in that an issue was overlooked that would have been reversible error. Thus, the Robbins case hinged on the fact that an error was made during this court’s review, and the recall of the mandate was intended to give this court an opportunity to address an issue that it should have addressed before. And as noted above, the Robbins court stressed that it considered the case “to be one of a kind, not to be repeated.” 353 Ark. at 564-55.
Engram’s case differs from Robbins. For example, unlike Robbins, Engram is not asking this court to review an error alleged to have been made by this court during the course of its appellate review; instead, he is asking us to reopen his case so the trial court can address a matter that was never raised during trial. In State v. Earl, 336 Ark. 271, 984 S.W.2d 442 (1999) (Earl II), this court denied a motion to recall the mandate in similar circumstances. In that case, Earl asked this court to recall the mandate that issued after this court’s opinion in State v. Earl, 333 Ark. 489, 970 S.W.2d 789 (1998) (Earl I), wherein this court held that a search was proper under Ark. R. Crim. P. 5.5. Subsequent to Earl I, the United States Supreme Court held unconstitutional an Iowa search-and-seizure statute that was similar to our Rule 5.5. See Knowles v. Iowa, 525 U.S. 113 (1998). In Earl II, Earl asked this court to recall its mandate on the basis of the Supreme Court’s decision in Knowles, but this court declined to do so, stating that Earl “never timely challenged Rule 5.5’s constitutionality at his hearing below or on appeal, and he did so only after the [Supreme Court] case was decided and after our court’s mandate was issued.” Earl II, 336 Ark. at 272.
Engram’s situation is more like Earl than Robbins. Despite Engram’s arguments that he did not have the tools to raise a mental-retardation argument vis-a-vis the issue of execution at the trial level, Engram could have availed himself of Ark. Code Ann. § 5-4-618(b) (Repl. 1997), which explicitly provides that “[n]o defendant with mental retardation at the time of committing capital murder shall be sentenced to death.”1 As this court has previously held in Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997), “a defendant who wishes to invoke this provision must do so by written motion prior to trial. § 5-4-618(d)(l). If such motion is filed, the trial court must determine prior to trial whether the defendant is in fact mentally retarded.” Rankin. 329 Ark. at 390 (citing § 5-4-618(d)(2)). Here, Engram simply did not file such a motion, nor did he request a court ruling on the issue of his mental retardation. In fact, a hearing was conducted on Engram’s competency on March 19, 1998, and Engram offered no evidence at that hearing showing he was mentally retarded. As described below, forensic psychologist Dr. John Anderson testified on behalf of the State; Engram, however, put on no evidence regarding his mental status, although it was his burden to prove mental retardation. See § 5-4-618(c). Consequently, the trial court had no duty to rule on this issue.
At that hearing, Dr. Anderson testified that he conducted a forensic psychological examination of Engram, and administered the Kaufman Brief Intelligence Test in order to determine whether Engram was mentally retarded. Dr. Anderson stated that Engram scored an 81 on the composite results, 82 on the vocabulary, and 83 on the non-verbal scores. Applying a “confidence interval” of plus-or-minus five points, Dr. Anderson testified that Engram’s “true score, or a score if he were administered this test a repeated number of times and you could control for learning and fatigue and that sort of thing, it would likely fall between the scores of 76 and 86.” Dr. Anderson stated that this score did not indicate mental retardation, and his opinion was that Engram was not mentally retarded.
On cross-examination, Dr. Anderson agreed that, given the margin of error, Engram’s IQ score could be as low as 76, which would be in the borderline range of general abilities, or in the area between mental retardation and average functioning. Upon questioning by the court, Dr. Anderson said that a score of 76 to 86 would be in the “low average” range, and that any score above 78 or 80 “would be, I guess, what most people think of as a normal score.” According to Dr. Anderson, the mean IQ score is 100, and anything between 80 and 120 would be considered “normal.”
At the conclusion of the competency portion of the hearing, the State asked that Engram be found competent, and the court complied. However, neither the defense nor the State asked for a ruling on the question of whether Engram was mentally retarded, and the trial court did not make such a ruling. It is sufficient to point out that this court has held that, where a defendant has an intelligent quotient which is above that 65 quotient prescribed by law, he is not entitled to the rebuttable presumption of mental retardation under the statute. See Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995). This may well be the reason Engram failed to raise the mental retardation defense. See id.
As in Earl II, the issue on which Engram asks this court to recall the mandate is an issue which could have been resolved by the trial court, if only Engram had presented evidence bearing on this retardation issue and had asked for the trial court’s ruling. We agree with the State’s contention that a mental retardation claim cannot be raised at just any time in a defendant’s proceedings. At oral argument, there was a suggestion that Engram’s mental retardation claim could be considered as falling within one of the so-called Wicks exceptions, wherein this court may consider an argument raised for the first time on appeal when the trial court failed to bring to the jury’s attention a matter essential to its consideration of the death penalty itself. See Wicks v. State, 270 Ark. 781, 785, 606 S.W.2d 366, 369 (1980). However, as described above, testimony presented to the trial court indicated that the lowest Engram’s IQ score could be was 76. As already noted, Arkansas’ statute creates a rebuttable presumption of mental retardation at an IQ of 65. See § 5-4-618(a)(2). Therefore, because Engram could not have availed himself of this presumption, there was no duty on the trial court’s part to raise, sua sponte, the issue of whether Engram was not eligible for the death penalty.2
This is simply not a case like Robbins, where the alleged error was an error in this court’s own review of the case on appeal, and this court was asked to reopen the case to address its own error. Because Robbins was so strictly limited to its facts, this court made it clear that it would not expand the nature of cases in which it will recall a mandate it has already issued. Here, since it was Engram’s burden to do so, he should have obtained a ruling on his mental retardation issue from the trial court before his trial ever started.
Instead, Engram never pursued the mental retardation issue, likely for the reason that there was no evidence offered to support such a defense. After all, Dr. Anderson testified that Engram’s IQ was between 76 and 86. The General Assembly has set the threshold for presuming mental retardation exists at 65. Although Engram argues briefly that this figure is too low (and therefore does not comport with Atkins), the establishment of that presumption is a legislative determination.3 Further, even if we were to rewrite the statute and declare that the presumptive IQ score indicating mental retardation is 70-75, Engram would still not fall within that range. He had a tested IQ that, at its lowest, was 76. Therefore, even applying the more expansive 70-75 score utilized in Atkins, Engram still would not have qualified as being mentally retarded.
The fundamental problem with Engram’s argument, however, is simply that this is an argument that should have been made to the trial court.4 As in Earl II, he did not raise it, and the fact that the Supreme Court has subsequently spoken on the constitutionality of the issue does not change the fact that he could — and should — have attempted to avail himself of § 5-4-618 at trial. Even though the federal district court, in dismissing Engram’s habeas petition, noted that Engram “did not present the federal constitutional dimensions of his Atkins claim to the state courts,” Engram could have raised the issue well before now, as was done in Atkins. There, Mr. Atkins raised the issue in his trial, even knowing that the Supreme Court had considered and rejected a similar constitutional argument in Penry v. Lynaugh. There is simply no merit to Engram’s contention that he could not have made his federal constitutional argument before now.5
Further, this court has already held that the Supreme Court’s decision in Atkins “merely reaffirmed this state’s preexisting prohibition against executing the mentally retarded” found in § 5-4-618. See Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004). Engram, of course, takes issue with this interpretation, arguing that § 5-4-618 and the holding in Atkins “are not the same,” since Atkins removes the mentally retarded from the class of persons eligible for the death penalty, while the statute makes the issue something that can be waived by not raising it before trial. Flowever, Atkins explicitly noted that “[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.... [Therefore], we leave to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.” Atkins, 536 U.S. at 317. Arkansas has made § 5-4-618 the “way[ ] to enforce the constitutional restriction,” and Engram did not comply with it. See Anderson, supra (pointing out that § 5-4-618 “specifically places the burden on the defendant to prove mental retardation at the time of committing the offense by a preponderance of the evidence”).
Engram alternatively argues that he should be permitted to file a Rule 37 petition for postconviction relief. As mentioned above, following this court’s initial decision in Engram, Engram was appointed counsel to pursue any appropriate Rule 37 relief. At a hearing held on June 25, 2001, Engram’s appointed attorney informed the trial court that she had reviewed the record, discussed the matter with Engram, and concluded that there were no “issues that were appropriate for Rule 37.5 relief.” Counsel therefore concluded that the next step for Engram would be to pursue federal habeas relief. Upon questioning by the court, Engram stated that he agreed with his attorney’s assessment. Thus, Engram had the opportunity to pursue any available or appropriate Rule 37.5 relief, and chose not to do so.6
In any event, the time for filing a Rule 37 petition is long since past; the rule provides that a petition for postconviction relief must be filed within sixty days of the mandate being issued following direct appeal. The cases on which Engram relies — Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (2001), and Porter v. State, 339 Ark. 15, 2 S.W.3d 73 (1999) — are factually distinguishable. Although this court in those two cases permitted the filing of a Rule 37.5 petition outside the time limits prescribed in the rule, in Jackson, it was because there was some confusion about when Jackson’s attorney had been appointed; in Porter, there was a question about whether Porter had been appointed counsel. In Porter, this court noted the following:
Rule 37.2(c) clearly states that if an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty days of the date the mandate was issued by the appellate court. We have held that the filing deadlines imposed by this section are jurisdictional in nature and that if they are not met, a circuit court lacks jurisdiction to consider a Rule 37 petition or a petition to correct an illegal sentence on its merits. Petree v. State, 323 Ark. 570, 920 S.W2d 819 (1995).
However, while there is no constitutional right to a postconviction proceeding, when a State undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. See Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997) (quoting Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988)). Here, the question becomes whether it is “fundamentally fair” to require an inmate on death row to abide by the stringent filing deadlines when he was under the impression he was represented by counsel and that said counsel was timely filing the proper pleadings (such as a petition under Rule 37) on his behalf.
Porter, 339 Ark. at 18.
Here, unlike the situations in Jackson and Porter, there has been no confusion about when filing deadlines occurred or about whether counsel had been appointed. Engram and his Rule 37 attorney made a deliberate decision not to pursue postconviction relief. There is no provision in our law that provides for petitions for “post-postconviction relief,” i.e., a mechanism for filing an ineffective-assistance-of-counsel petition with respect to •the counsel appointed to handle the Rule 37 petition. Engram’s state court remedies with respect to postconviction relief have been exhausted.
Finally, Engram suggests that he might be able to pursue some form of state habeas relief, since there is no time limit on filing a petition for writ of habeas corpus based on an illegal sentence. See Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999) (to impose time limits on habeas relief “would contravene the proscription against suspending the right to habeas corpus.”). However, a writ of habeas corpus will only be issued if the commitment was invalid on its face, or the sentencing court lacked jurisdiction. See Flowers v. Norris, 347 Ark. 760, 68 S.W.3d 289 (2002). Clearly, the sentencing court in Engram’s case possessed jurisdiction, and because Engram failed to get a ruling from the court that he was mentally retarded, the sentence of death was not invalid. Therefore, state habeas relief is not a proper avenue for Engram.
In sum, this court declines to recall its mandate and reopen the case. Engram’s situation is factually and legally distinguishable from the Robbins case; the time for seeking Rule 37 relief is long past; and state habeas relief is not appropriate. Because the record reflects that Engram has exhausted his right to assert an Atkins defense in state court, he is left to pursue any such relief in the federal courts.
Corbin, Brown, and Thornton, JJ., dissent.At oral argument, counsel for Engram asserted that, despite the existence of § 5-4-618 at the time of his trial, he has never had the opportunity to present this argument as an Eighth Amendment claim. Counsel stated that “we [only now] realize under Atkins that an individual has that Eighth Amendment right. The whole thing is [that] the State is banned from executing the mentally retarded.” However, under § 5-4-618, the State is barred from executing the mentally retarded; as noted above, the statute explicitly provides that “[n]o defendant with mental retardation at the time of committing capital murder shall be sentenced to death.” See § 5-4-618(b). Further, the statute prohibits even the “death qualification” of the jury when the trial court determines that the defendant is mentally retarded. See§ 5-4-618(d) (2) (B). Simply put, Engram offers no explanation why his Eighth Amendment argument — i.e., that the Eighth Amendment prohibits the execution of the mentally retarded — is not resolved by the application of our statute, which prohibits the execution of the mentally retarded. As the State noted at oral argument, under Atkins, the Eighth Amendment is satisfied when a state has in place a procedure that allows defendants to raise and be heard on the issue of their alleged mental retardation. Arkansas has such a procedure in § 5-4-618.
In addition, even to the extent that Wicks allows certain arguments to be raised for the first time on appeal, we note that the present stage of these proceedings hardly constitute “the first time on appeal.” We are now past the trial, the appeal, the postconviction proceedings, and part of the federal habeas process.
We note that Atkins does not declare that the Constitution requires states to set a threshold for mental retardation of 70 or 75. Instead, Atkins merely pointed out in a footnote that current psychological diagnostic materials “typically consider! 1” an IQ between 70 and 75 or lower to be “the cutoff IQ score for the intellectual function prong of the mental retardation definition!.]” Atkins, 536 U.S. at 309, fn.5.
One of the dissenting opinions asserts that the burden was on the trial court to rule on the issue of Engram’s mental retardation. However, § 5-4-618(d)(l) explicidy provides that “[a] defendant on trial for capital murder shall raise the special sentencing provision of mental retardation by motion prior to trial!’ (Emphasis added.) No such motion appears in the trial record. It was Engram’s responsibility to file a motion under § 5-4-618 to avoid application of the death penalty, See Rankin, supra.
It is also apparent that Engram has not heretofore had a problem with raising constitutional arguments he was sure to lose on: in his direct appeal, he argued both that there was an unconstitutional overlap between capital murder and first-degree murder, and that the admission of victim-impact evidence is unconstitutional. See Engram, 341 Ark. at 206,209. Indeed, with respect to both of those arguments, this court noted that Engram conceded in his brief that “this court ha[d] resolved this issue unfavorably to his position in numerous cases.” Id. Clearly, had he wanted to raise the mental retardation issue before, he would have.
Even if Engram had opted to argue in a postconviction proceeding that his trial attorneys were ineffective for failing to raise or preserve the issue of his alleged mental retardation, it is unlikely that he would have been successful. This court has frequently held that it is not ineffective assistance of counsel to fail to make a meritless objection. See Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001); Trimble v. State, 336 Ark. 437, 986 S.W.2d 293 (1999). According to Dr. Anderson, Engram’s IQ was, at the lowest possible range, a 76. As noted above, Arkansas has established an IQ of 65 as the point at which it may be presumed that a defendant is mentally retarded. Therefore, Engram’s trial attorneys could have reasonably considered it fruitless to raise the issue of whether Engram was mentally retarded, and they most likely would not have been found ineffective for their failure to do so.