The case has had a complicated history. After Vicki Lehman and her mother, Virginia, who was also in the house during the crime, had given statements to authorities, the prosecutors hired a hypnotist to help them remember the events more clearly.
But the prosecutors failed to tell defense lawyers that the Lehmans had been hypnotized. In 1988, Judge Henry Woods, a Federal judge in the Eastern District of Arkansas, threw out the death penalty, ruling that the men's Sixth Amendment rights to confront witnesses had been denied.
The appeals court then told Judge Woods to rule on whether or not there were significant differences in Vicki Lehman's testimony before and after the hypnosis. Finding no "significant variation," the judge reinstated the death penalties. The decision was upheld on appeal in the cases of all the men except Mr. Orndorff. The appeals court found that there were significant differences in Ms. Lehman's testimony involving his role.
Bill Clinton, as Governor, had set executions three times for the three men, once in 1983 and twice in 1984. Earlier this week, Gov. Jim Guy Tucker denied clemency requests for Mr. Richley and Mr. Clines.
"Kill me and get this comedy over," Mr. Richley told the prison panel earlier this week.
Arkansas Carries Out Nation's First Triple Execution in 32 Years
The New York Times
August 5, 1994
Opponents of the death penalty, a group whose influence has dwindled amid growing public concern about violent crime, claimed new moral ground on Wednesday when Arkansas executed three men in less than three hours.
"At what point will they stop?" asked Kika Matos of the NAACP Legal Defense and Educational Fund. "It will soon be the mass lynchings of not so long ago." She argued that a multiple execution "takes away from the individuality of the person" sent to his death.
Arkansas' triple execution was the first in the United States in 32 years, and it accounted for a third of the nine inmates the state has executed since 1976. With only one exception -- a double execution by Arkansas in May -- the other 246 prisoners executed in the last 18 years have gone to their deaths individually. Argument for Efficiency
Arkansas prison officials argued that the multiple executions were more efficient and produced less strain on prison workers than individual executions. "Nobody wants to get up in the morning and go kill somebody," said Alan Ables, a spokesman for the Correction Department.
For the previous week, guards had rehearsed the process in 15 steps. The lethal injections began at 7 P.M. and were repeated at about one-hour intervals in a small concrete-block room at the Cummins Unit of the state prison system. The order of the executions was originally scheduled according to prisoner numbers. That plan had to be abandoned when a Federal court temporarily stayed the execution of the man who was supposed to die second.
The condemned men, Hoyt Franklin Clines, 37 (No. SK886), James William Holmes, 37 (No. SK887) and Darryl V. Richley, 43 (No. SK888), were sentenced to death for murdering a prominent businessman in front of his family in 1981. The victim, Don Lehman, was beaten with a motorcycle chain and shot in the chest and head during a robbery. He ran upstairs after he was shot, but the men chased him down and held him on a bed while he was shot again as his wife lay on the bedroom floor.
On Wednesday night, each man in turn stepped out of his cell and lay down on prison's only gurney. They were strapped down and wheeled about 30 feet to the death chamber, where they were injected with a fatal mixture.
Mr. Clines was the first to die, at 7:11 P.M. Fifty-eight minutes later, and an hour ahead of the original schedule, Mr. Richley was declared dead. Because of the switched times, Mr. Holmes went to his death 84 minutes later than he had expected, at 9:24 P.M.
None had any last words. But earlier, in a joint last appeal, they had argued, "This scheduled mass execution, by reducing human beings to hogs at the slaughter, will exponentially increase the level of fear, uncertainty and psychological stress that someone condemned normally experiences in the usual course of events."
Diann Rust-Tierney, director of the Capital Punishment Project for the American Civil Liberties Union, said, "To take mass execution as a model of efficiency only underscores how out of step we are with the rest of the world."
Mr. Ables, the Correction Department spokesman, countered: "It's nice to be criticized for being efficient. The people that are involved in this are very concerned that what they do is proper, done professionally and with decorum. They want this to go well."
906 F.2d 1230
Michael Ray ORNDORFF,
Appellant,
v.
A.L. LOCKHART, Director, Arkansas Dept. of
Correction, Appellee.
James William HOLMES,
Appellant,
v.
A.L. LOCKHART, Director, Arkansas Dept. of
Correction, Appellee.
Hoyt Franklin CLINES,
Appellant,
v.
A.L. LOCKHART, Director, Arkansas Dept. of
Correction, Appellee.
Darryl V. RICHLEY,
Appellant,
v.
A.L. LOCKHART, Director, Arkansas Dept. of
Correction, Appellee.
Michael Ray ORNDORFF,
Appellee,
v.
A.L. LOCKHART, Director, Arkansas Dept. of
Correction, Appellant.
James William HOLMES,
Appellee,
v.
A.L. LOCKHART, Director, Arkansas Dept. of
Correction, Appellant.
Hoyt Franklin CLINES,
Appellee,
v.
A.L. LOCKHART, Director, Arkansas Dept. of
Correction, Appellant.
Darryl V. RICHLEY,
Appellee,
v.
A.L. LOCKHART, Director, Arkansas Dept. of
Correction, Appellant.
Nos. 88-2344, 88-2405.
United States Court of
Appeals,
Eighth Circuit.
Submitted April 13, 1989.
Decided June 19, 1990.
Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.
BOWMAN, Circuit Judge.
Michael Ray Orndorff, James William Holmes, Hoyt Franklin Clines, and Darryl V. Richley (petitioners) appeal, and A. L. Lockhart cross-appeals, from the judgment of the District Court1 granting petitioners partial habeas corpus relief. We affirm in part, vacate in part, and remand for further proceedings.
In October 1981 petitioners were found guilty of the murder of Don Lehman in Rogers, Arkansas and were sentenced to death. The convictions were affirmed on direct appeal, Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1328, 79 L.Ed.2d 723 (1984), and post-conviction relief was denied, Clines v. State, 282 Ark. 541, 669 S.W.2d 883 (1984). Petitioners filed petitions for habeas corpus relief in the District Court pursuant to 28 U.S.C. Sec. 2254 (1988) in June 1984, and the cases were consolidated for joint disposition. After conducting an evidentiary hearing, the District Court issued a thorough memorandum and order from which the parties now appeal.
Although petitioners raised a number of grounds for habeas relief in the District Court, the principal issue below, and the ground upon which the District Court granted relief, concerned the state trial court's admission into evidence of the testimony of Vickie Lehman, the victim's daughter and a key prosecution witness. Unbeknownst to petitioners or to their trial counsel, Vickie and her mother Virginia Lehman had been placed under hypnosis by one Gene Peters roughly one month after the murder at the behest of the prosecutor. As the District Court found:
During the sessions Peters would try to get his subjects to revisualize and relive the events of January 8 [1981] and, following each session, he and the Lehmans would report to the prosecutor's office. Peters took notes of each session but no electronic recording devices were used. His notes were never turned over to the prosecutor and have since been destroyed. Neither Peters [n]or the prosecutor have any record of the questions asked and the responses given.
Orndorff v. Lockhart, 707 F.Supp. 1062, 1066 (E.D.Ark.1988). Petitioners' attorneys did not learn that Vickie Lehman had been hypnotized prior to trial until after they had filed the direct appeal in the Arkansas Supreme Court. Id.
The District Court ruled that the prosecutor's failure to apprise opposing counsel that Vickie Lehman had undergone hypnosis violated the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment, and that the use of her testimony at trial was not harmless error. In fashioning its remedy, however, the District Court permitted the state, as an alternative to retrying petitioners, to commute their death sentences to life imprisonment without the possibility of parole. Petitioners appeal from this ruling, claiming that the District Court erred in permitting the state the option of commutation. Lockhart concedes that the use of Vickie Lehman's testimony without disclosure of her hypnosis was constitutional error, but cross-appeals from the District Court's finding that the error was not harmless.
Given the scope of the cross-appeal, we assume without deciding that the District Court was correct in holding that the use of Vickie Lehman's post-hypnotic testimony violated the Confrontation Clause. In the District Court, petitioners sought to establish that the use of this testimony was not harmless error by demonstrating that Vickie Lehman's trial testimony differed significantly from statements she had given the police shortly after the crime occurred; the state sought to show that any variations were not material and that the error was therefore harmless. At issue were some 137 instances of such variations. Our difficulty with the District Court's treatment of the hypnosis issue stems from the fact that, although it purported to make a harmless-error inquiry, the District Court did not analyze these variations but rather held that the prosecutor's failure to disclose that Vickie Lehman had been hypnotized was "inherently prejudicial." Orndorff, 707 F.Supp. at 1069. The District Court reasoned that Vickie Lehman's testimony at trial was "inherently prejudicial" because post-hypnotic testimony may, generally speaking, appear more credible than ordinary testimony since the witness, through hypnosis, may gain a heightened conviction that what he or she believes to be the truth actually represents reality. See id. We believe this resolution of the harmless error inquiry to be unsound.
Assuming that the prosecutor's nondisclosure of Vickie Lehman's hypnosis ran afoul of the Confrontation Clause, that error is not harmful simply because the jury might have found her testimony less credible had defense counsel been able to probe the issue of her hypnosis on cross-examination. The fact that defense counsel was denied use of a legitimate means of cross-examining an adverse witness is not in and of itself grounds for disturbing a guilty verdict. See Delaware v. Van Arsdall, 475 U.S. 673, 680-81, 106 S.Ct. 1431, 1435-36, 89 L.Ed.2d 674 (1986). The District Court's view of the matter, we believe, amounts to the contrary view, since it premises a finding of harmful error on little more than the (presumptively) enhanced credibility of Vickie Lehman's testimony and defense counsel's inability to counteract it. As the Supreme Court stated in Van Arsdall:
The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors ... includ[ing] the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. 475 U.S. at 684, 106 S.Ct. at 1438 (citations omitted).
We believe that the inquiry into the issue of harmless error in this case must begin with a comparison of Vicki Lehman's pre-hypnosis statements with her trial testimony in light of Van Arsdall. The District Court should make this comparison with an eye toward sorting those things about which Vicki Lehman could testify without aid of hypnosis (that is, from actual memory) from those things about which she could testify only after being hypnotized. Unless this sorting process reveals significant variations, the error should be deemed harmless.2
We therefore vacate the judgment of the District Court in part and remand the matter to the District Court for further proceedings.3 The District Court already has determined that, beyond a reasonable doubt, the error here (if indeed there was harmful error) affected only the penalty phase of the trial, not the jury verdict finding petitioners guilty as charged.
The court's review of the entire record does reveal, beyond a reasonable doubt, that the petitioners were responsible for the robbery homicide for which they were tried. Their activities in preparation for the armed break-in and the events which later lead to their apprehension were fully documented through the testimony of thirty four prosecution witnesses. However, even though there is no question of their guilt for the crimes charged, the court is unable to say with confidence that the jury would have recommended the death penalty for each and every petitioner had defense counsel been informed of Vicki Lehman's hypnosis. Critical portions of her testimony may have been disregarded by the jury had they known of the effects of hypnosis, or the trial court may have deemed some testimony inadmissible altogether. Cf. Little v. Armontrout, [835 F.2d 1240 (8th Cir.1987)], supra (trial court's refusal to appoint an expert in hypnosis for an indigent defendant violated due process and rendered the trial fundamentally [un]fair).
Orndorff v. Lockhart, 707 F.Supp. at 1070. Having reviewed the record, we are thoroughly satisfied, as was the District Court, that the harmful error here (if any) goes only to the imposition of the death penalty and not to the jury verdict finding petitioners guilty of capital felony murder. The evidence of petitioners' guilt, even without Vicki Lehman's testimony, is overwhelming.
Lockhart argues that, because the District Court found error affecting only the penalty phase of the trial, the court erred in ordering that the writ of habeas corpus issue unless the state either retries petitioners or commutes their death sentences to life without parole. We agree. In a habeas case, no less than any other, the remedy must be commensurate with the harm. Accordingly, if in light of this opinion the District Court finds on remand that the use of Vicki Lehman's testimony was not harmless error insofar as its effect upon the jury's recommendation that petitioners receive the death penalty is concerned, the court's order granting habeas relief should give the state the option of either conducting a new sentencing proceeding or reducing the sentences to life without parole. See Pickens v. Lockhart, 714 F.2d 1455, 1469 (8th Cir.1983).4
We have considered petitioners' additional claims of error and find them to be without merit.
For the foregoing reasons, the judgment of the District Court is affirmed in part, vacated in part, and the matter remanded for further proceedings consistent with this opinion.
*****
The Honorable Henry Woods, United States District Judge for the Eastern District of Arkansas
For example, in Byrd v. Armontrout, 880 F.2d 1 (8th Cir.1989), we stated that any error with regard to the admission of post-hypnosis testimony fell short of constitutional magnitude where the record showed that the hypnosis did not affect the witness's testimony on any major point. 880 F.2d at 10, n. 10. We made this observation despite defendant's contention that the witness's belief in her post-hypnosis testimony had been enhanced by the hypnosis. See Byrd, 686 F.Supp. 743, 771 (E.D.Mo.1988). Similarly, in Williams v. Armontrout, 877 F.2d 1376 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1140, 107 L.Ed.2d 1044 (1990), we concluded that even though hypnosis had rendered a witness's in-court identification of the defendant unreliable, habeas relief was not warranted because this identification "did not contribute to the conviction." Id. at 1380-81
Having adjudicated the issue of the use of Vickie Lehman's testimony within the context of the Confrontation Clause, we need not consider whether the use of her testimony offends due process, as resolution of the due process claim would not affect in any way our disposition of this appeal
In its cross-appeal the state also argues that the District Court erred in granting habeas relief to defendants Orndorff and Clines because they had requested the District Court not to consider any claim that would result only in the commutation of their death sentences to life imprisonment without parole, and to defendant Richley, who had moved the District Court to dismiss his habeas petition. However, in the joint reply brief filed by all four petitioners, they argue that the District Court did not err in granting habeas relief to all of them. We take this to constitute an abandonment by Orndorff, Clines, and Richley of the positions they took in this regard in the District Court, which abandonment renders the issue moot and thus not properly before us in this appeal
32 F.3d 1240
James
William HOLMES, Appellant,
v.
Larry NORRIS, Director, Arkansas
Department of Correction,
Appellee.
No. 94-2916.
United
States Court of Appeals,
Eighth Circuit.
Submitted Aug.
3, 1994.
Decided Aug. 3, 1994.
Order and Amending Order
Granting
Rehearing En Banc and Vacating
Stay of Execution Aug. 3, 1994.
Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.
RICHARD S. ARNOLD, Chief Judge.
The motion of appellant Holmes for stay of execution is granted, pending further order of this Court, the Supreme Court, or a justice thereof. The motion for appointment of counsel is also granted.
Holmes suggests at least two respects in which his trial counsel may have been ineffective in the constitutional sense: (1) by making improvident concessions in argument to the jury, and (2) by failing to urge a statutory mitigating circumstance that Holmes would apparently have been entitled to.
If this were Holmes's first habeas petition, there would be little doubt that these contentions are substantial enough to require a stay and appointment of counsel. But it is a motion for a stay to obtain time to research and file a second petition, see McFarland v. Scott, --- U.S. ----, ----, 114 S.Ct. 2568, 2573, 129 L.Ed.2d 666 (1994), and Holmes must overcome the abuse-of-the-writ defense. He appears to have a nonfrivolous theory for doing so. The same lawyer has (until now) represented Holmes throughout the case: at trial, on direct appeal, in the state-court postconviction proceeding, and in the first federal habeas proceeding. One could hardly expect that lawyer to argue his own ineffectiveness with any degree of conviction or persuasiveness. To make such an argument places a lawyer in the sharpest sort of conflict of interest, a conflict between his client and himself. This sort of conflict is surely "cause" to excuse Holmes's failure to raise counsel's ineffectiveness in his first habeas petition. Since 1988, appointment of counsel has been required by statute, 21 U.S.C. Sec. 848(q)(4)(A), in federal habeas proceedings in capital cases. The counsel contemplated by Congress has to be counsel free of conflict of interest.
But what about procedural bar? The arguments presently suggested have never been made in the state courts. (Nor does the State say that they could be now.) Ineffectiveness of counsel in state-court postconviction proceedings cannot be "cause" for avoiding a procedural bar, and I assume for present purposes that conflict of interest can't be either. But the same lawyer was counsel on Holmes's direct appeal, and conflict of interest on direct appeal certainly qualifies as "cause." There is a federal constitutional right to counsel on direct appeal from a state conviction carrying a penalty of imprisonment or death.
Holmes can also probably show "prejudice." If his claims have merit, the prejudice is obvious.
Of course it is irritating to be confronted with an argument like this at the eleventh hour. But when life is at stake, we judges should swallow our irritation and choose life, at least to the extent of preserving it long enough to take a good look at Holmes's new case.
*****
MAGILL, Circuit Judge, dissenting.
I dissent for the following reasons just five hours before the execution: (1) we have no jurisdiction as there is no federal habeas corpus petition either here or before the district court; (2) if the pending motions are considered a petition for habeas corpus, they constitute a successive petition; (3) the issues here have never before been brought up in state court nor in the first federal habeas corpus resulting in procedural default; and (4) Holmes has been egregiously dilatory.
The background support for the above are fully explicated in Judge Henry Woods' well-reasoned opinion denying the motion for stay of execution appended hereto.
*****
APPENDIX
ORDER
Petitioner, James William Holmes, has been represented by Marshall Carlisle of Fayetteville, a member of the Arkansas Bar, from the time he was charged until yesterday, one day before his scheduled execution. The other three defendants have, for some time, been represented by other counsel rather than their trial attorneys. Until yesterday, August 2, 1994, this Court had no official notification that Holmes had discharged Mr. Carlisle and retained his present counsel, Mr. Steven Hawkins of New York. This information was furnished by the Attorney General's Office which advised that a written authorization dated August 2, 1994, had been faxed stating that Holmes desired that Mr. Hawkins represent him.
The only indication whatsoever that Mr. Hawkins was representing Holmes appeared in a pleading filed with this Court at four p.m., August 1, 1994. This was an amendment by Clines and Holmes to a due process claim filed by Richley earlier in the day attacking the procedures of the Post Prison Transfer Board in their hearing. Clines and Holmes adopted the allegations of Richley. Hawkins signed the pleading as attorney for Holmes. This appeared somewhat strange since Hawkins was not the attorney of record for Holmes and Holmes had not even appeared before the Prison Transfer Board. In the amended complaint, however, there was a contention that a triple execution was unconstitutional for which no authority was cited. In the Court's opinion, both of these arguments were without merit.
Prior to the filing of this amended complaint, this Court had received no notice that Mr. Carlisle had been discharged as attorney for Holmes. Nor had any request ever been filed to substitute Mr. Hawkins as attorney for Holmes. However, on the basis of the document dated August 2, and filed with the Attorney General, I will consider that since that date (one day before the scheduled execution), Mr. Hawkins is the attorney for Holmes.
The process through which Mr. Hawkins came to represent Holmes appears in an affidavit executed by him and attached to the petition under consideration. Mr. Hawkins solicited a call from Mr. Holmes by a message delivered to Mr. Holmes by one of the other attorneys in this case. When that call was made to him, Hawkins states: "I explained to Mr. Holmes that there was a possible basis for relief in his case on the basis that ineffective assistance of counsel had never been effectively explored because of the continued presence of trial counsel on his case." Holmes told him he would think it over. This conversation was exactly two weeks before his scheduled execution. Again, one week later, on July 27, according to Hawkins "we spoke again." No decision was reached concerning Hawkins representation. Significantly, on Friday, July 29, when Clines and Richley appeared before the Post Prison Transfer Board with a request for a recommendation of clemency to the governor, Holmes did not appear and made no request to appear. Nor did he join in the habeas petition filed by Richley on June 27 or the request by Clines to recall the mandate at approximately the same time. On Friday, July 29, Hawkins states that he "spoke to Mr. Holmes' father about his son's possible options." At five p.m. on Saturday, July 30, Holmes called Hawkins. "He told me that he had decided to pursue relief on the basis of ineffective assistance and that I could prepare the necessary pleadings on his behalf." The pleadings were filed with the Clerk of the Court at approximately three p.m. on August 2, little more than twenty-four hours before his scheduled execution.
The basic pleading is denominated "an emergency motion for a stay of execution, and appointment of counsel, and supporting memorandum of law." It is not a habeas corpus petition but it is a request for time to prepare such a petition based on "potential" ineffectiveness of counsel. The three examples of such ineffectiveness mentioned in the petition are not persuasive. Mr. Carlisle's handling of the gun and ballistic issue is criticized. However, it is difficult to see how Mr. Carlisle could have done much with this issue either in the trial or his summation. Don Lehman was killed with a gun which Holmes had purchased and brought into the Lehman home. According to the state's ballistics expert, this gun fired the fatal shots. Mr. Carlisle was in a difficult position. He used a trial technique that is not unusual--self-deprecation of his ability to cross-examine the ballistics expert. As a matter of fact, the record demonstrates that Mr. Carlisle conducted a thorough cross-examination of this witness. The defense presented by Mr. Carlisle on behalf of Holmes was not that the gun did not fire the fatal shots but that it was used by one of the others to kill Don Lehman. The statement that Carlisle conceded the guilt of Holmes is simply not true. Holmes was the only defendant who took the stand. He admitted participating in the robbery but vehemently denied killing Lehman. The state had already presented overwhelming evidence that Holmes was one of the robbers. Carlisle's failure to mention Holmes' lack of a significant criminal record in closing is cited as another example of ineffectiveness. Holmes was the only one of the defendants to take the stand. If he had a felony record, surely the state would have brought this out by way of impeachment. Carlisle may well have thought that Holmes' lack of a criminal record was obvious to the jury. While Holmes apparently had no felony convictions, his past conduct was not exemplary. Carlisle may well have decided not to open up his past conduct when the state had an opportunity to reply in rebuttal. I have re-read his closing argument from the transcript, and I do not find it to be substandard but above average. Petitioner complains of the Biblical and spiritual references but Carlisle may understandably have thought such references might be appealing to a rural, Northwest Arkansas jury. If the other potential indicia of ineffectiveness are similar to those above cited, they will come far short of the standard imposed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner must demonstrate that his attorney's representation fell below an objective standard of reasonableness under the circumstances. He must also establish that the alleged error was so prejudicial that there is a reasonable probability it would have changed the result of his trial.
The Court realizes that petitioner is not filing a habeas. At this late hour, he is asking time to develop a "potential" habeas claim based on ineffective assistance of counsel. The request is denied, because in the Court's opinion he has waived his right to such a stay. Mr. Carlisle has represented Mr. Holmes for thirteen years. At any time, if he was not satisfied with Carlisle's services, he could have advised the state court or federal court and other counsel would have been provided. Mr. Carlisle and other counsel convinced me in 1988 that all the defendants were entitled to a new trial on the hypnosis issue. While new counsel have appeared to represent the other defendants, Holmes has continued to retain Mr. Carlisle. It is hard to read the record in this case without concluding that the motivation for substitute counsel came not from Mr. Holmes but from Mr. Hawkins. It would appear that neither Mr. Holmes nor Mr. Hawkins had any factual or legal basis for the ineffective counsel argument before Holmes was persuaded to substitute Hawkins as counsel on Saturday afternoon, July 30. Hawkins mentions the "short time we have had a chance to look at the record of this case."
The contention is made that Holmes was ignorant of his rights and could not evaluate whether counsel was ineffective. We know that two weeks before his execution date and again one week before his execution date, Holmes was advised of his rights by none other than his present counsel, Hawkins. Although advised of his rights two weeks before his execution date, he waited until a little more than twenty-four hours before his execution date to act on those rights. Holmes was so inattentive to his rights that he did not request a clemency hearing. We hold that a condemned inmate cannot sleep on his rights until the day before his execution and then demand a stay to allow his substitute counsel of one day to prepare a habeas petition on the "potential" ground of ineffectiveness of counsel.
Petitioner places great reliance on McFarland v. Scott, --- U.S. ----, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). This case held that a pro se capital defendant will be permitted to pursue habeas for first time. If he has no counsel, then he is entitled to a stay so counsel may be appointed to pursue this avenue. However, it is important to note that the Supreme Court said:
This conclusion by no means grants capital defendants a right to an automatic stay of execution. Section 2251 does not mandate the entry of a stay, but dedicates the exercise of stay jurisdiction to the sound discretion of a federal court. Under ordinary circumstances, a capital defendant presumably will have sufficient time to request the appointment of counsel and file a formal habeas petition prior to this scheduled execution.... On the other hand, if a dilatory capital defendant inexecusably ignores this opportunity and flouts the available processes, a federal court presumably would not abuse its discretion in denying a stay of execution.
Id. at ----, 114 S.Ct. at 2573.
In the case at bar, Holmes has had competent counsel to pursue a habeas claim, three district court hearings, two court of appeals hearings, and two Supreme Court reviews in the federal courts alone without considering the state court proceedings. Relief cannot be denied Holmes for abuse of the writ because he has not filed a habeas corpus writ. Relief can be denied for his delay until one day before his execution in discharging his counsel of thirteen years and then through substitute counsel requesting a stay so he can explore "potential" grounds for habeas based on ineffective assistance of counsel.
In this respect I have re-read entirely the record of this case filed with the Supreme Court of Arkansas, along with pertinent portions of the transcript. Mr. Carlisle's representation of Holmes during the trial was more aggressive and more substantial than any of the attorneys representing the co-defendants. He participated in all aspects of the trial and represented Holmes with vigor and ability. On the entire record, I am firmly convinced that Holmes was afforded competent representation not only at the trial level but also on appeal.
The motion for a stay of execution is hereby denied, along with the request for a conference by petitioner's attorney.
IT IS SO ORDERED this 3rd day of August, 1994.
*****
HENRY WOODS, U.S. District Judge
Before RICHARD S. ARNOLD, Chief Judge, and McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN and MORRIS S. ARNOLD, Circuit Judges.
ORDER
Aug. 3, 1994
This matter comes before the court on appellee's petition for rehearing and suggestion for rehearing en banc. It is hereby ordered that the suggestion for rehearing en banc is granted. The stay of execution of a sentence of death previously granted is vacated.
On rehearing before the court en banc, the order of the United States District Court for the District of Eastern Arkansas is affirmed, and the appellant's motion for a stay of execution of a sentence of death is denied.
Chief Judge Arnold and Judge McMillian would deny the suggestion for rehearing en banc and grant a stay.
Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS S. ARNOLD, Circuit Judges.
AMENDED ORDER
Aug. 3, 1994
This matter comes before the court on appellee's petition for rehearing and suggestion for rehearing en banc. It is hereby ordered that the suggestion for rehearing en banc is granted. The stay of execution of a sentence of death previously granted is vacated. Chief Judge Arnold and Judge McMillian would deny the suggestion for rehearing en banc.
On rehearing before the court en banc, the order of the United States District Court for the District of Eastern Arkansas is affirmed, and the appellant's motion for a stay of execution of a sentence of death is denied. Chief Judge Arnold, Senior Judge Henley and Judge McMillian would grant a stay.