{ "id": 3557500, "name": "Rickey D. NEWMAN v. STATE of Arkansas", "name_abbreviation": "Newman v. State", "decision_date": "2005-08-03", "docket_number": "CR 05-701", "first_page": "199", "last_page": "204", "citations": [ { "type": "official", "cite": "363 Ark. 199" }, { "type": "parallel", "cite": "211 S.W.3d 543" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "360 Ark. 140", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5460150 ], "weight": 2, "year": 2004, "opinion_index": 1, "case_paths": [ "/ark/360/0140-01" ] }, { "cite": "339 Ark. 15", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130668 ], "weight": 2, "year": 1999, "opinion_index": 1, "case_paths": [ "/ark/339/0015-01" ] }, { "cite": "352 Ark. 190", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1159702 ], "weight": 2, "year": 2003, "opinion_index": 1, "case_paths": [ "/ark/352/0190-01" ] }, { "cite": "296 Ark. 181", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892781 ], "weight": 2, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/296/0181-01" ] }, { "cite": "332 F.3d 997", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9115572 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/f3d/332/0997-01" ] }, { "cite": "57 F.3d 451", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7411709 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/f3d/57/0451-01" ] }, { "cite": "992 F.2d 801", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11958753 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "803" } ], "opinion_index": 1, "case_paths": [ "/f2d/992/0801-01" ] }, { "cite": "875 F.2d 1502", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10538873 ], "weight": 6, "year": 1989, "pin_cites": [ { "page": "1506" }, { "page": "1508" } ], "opinion_index": 1, "case_paths": [ "/f2d/875/1502-01" ] }, { "cite": "28 U.S.C. \u00a7 2254", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(b)(1)(A)" } ], "opinion_index": 1 }, { "cite": "28 U.S.C. \u00a7 848", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "parenthetical": "q" } ], "opinion_index": 1 }, { "cite": "21 U.S.C. \u00a7 2254", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 1 }, { "cite": "536 U.S. 304", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1255406 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/us/536/0304-01" ] }, { "cite": "353 Ark. 258", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155482 ], "weight": 2, "year": 2003, "opinion_index": 1, "case_paths": [ "/ark/353/0258-01" ] } ], "analysis": { "cardinality": 642, "char_count": 11883, "ocr_confidence": 0.781, "pagerank": { "raw": 1.4230037602304984e-07, "percentile": 0.6493812959751708 }, "sha256": "1453f799ed7aca0bc0d9500537f17765033a5ee3dfd4cf90978dcff40ac91973", "simhash": "1:9da2da16c75d0de0", "word_count": 1944 }, "last_updated": "2023-07-14T22:29:41.293594+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, J., concurs." ], "parties": [ "Rickey D. NEWMAN v. STATE of Arkansas" ], "opinions": [ { "text": "Per Curiam.\nThe State\u2019s motion to dismiss is granted.\nGlaze, J., concurs.", "type": "majority", "author": "Per Curiam." }, { "text": "Tom Glaze, Justice,\nconcurring. The state courts have thoroughly reviewed Rickey Dale Newman\u2019s case in a forty-three page opinion handed down on May 22, 2003. Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003). Among the many other issues raised at his trial, Newman objected to having appointed counsel. We agreed with Newman and also agreed with Newman\u2019s additional request to represent himself. At the same trial, the State presented expert testimony that Newman was mentally fit to stand trial. Newman was convicted of capital murder and sentenced to death. Under Ark. R. App. P.\u2014Crim. 10, our court conducted an automatic review of his conviction and found no reversible error.\nAfter this court\u2019s mandate was issued, the trial court held a hearing required by Ark. R. Crim. P. 37.5(b), and it advised Newman of his postconviction rights, including his right to have an attorney. As he had done at his initial trial, he waived his right to have an attorney and any right to pursue postconviction and habeas proceedings. Nonetheless, our court instructed the trial court to conduct another evaluation of Newman for determining whether he was currently competent to proceed with the hearing, as required under Rule 37.5. The trial court subsequently held its hearing, and, on remand, the trial court asked Newman if he understood why another hearing was being held. He said, \u201cThe last time I was here, I waived Rule 37.5, and the supreme court found me not competent to do it, and they sent me to have a new mental evaluation. I\u2019m here to waive it again.\u201d Newman further testified with clarity as follows: \u201cI take full responsibility for what I have done. And I think final justice should be, must be done for Marie Cholette [the victim] and her family. I stand before this court and waive Rule 37.5. I waive all my rights to a trial. And I respectfully ask for an execution date.\u201d\nBased on the above and other testimony given by Newman and other state evidence offered by Dr. Charles Mallory, the trial court entered the following detailed order:\n(a) the Defendant has the capacity and is clearly competent to understand the choice between life and death; and,\n(b) the Defendant has the capacity and is clearly competent to knowingly and intelligently waive any and all rights to pursue postconviction relief pursuant to Rule 37.5 of the Arkansas Rules of Criminal Procedure or habeas corpus relief in federal court; and,\n(c) the Defendant has the capacity and is clearly competent to knowingly and intelligently reject his right to have counsel appointed at no charge to him to pursue on his behalf postconviction relief pursuant to Rule 37.5 of the Arkansas Rule of Criminal Procedure; and,\n(d) the Defendant has unequivocally expressed his desire to freely, voluntarily, knowingly, and intelligently reject his right for appointment of an attorney at no cost to him and waived his right to pursue postconviction relief pursuant to Rule 37.5 of the Arkansas Rules of Criminal Procedure; and,\n(e) the Defendant has completely demonstrated he folly understands the legal consequences of (i) his waiver of his right to have an attorney appointed to him, (ii) the waiver of his right to pursue postconviction relief pursuant to Rule 37.5 of the Arkansas Rules of Criminal Procedure, and [(iii)] the waiver to pursue habeas corpus relief in federal court; and\n(f) the Defendant has unequivocally expressed his desire for his death sentence to be carried out by the State of Arkansas and to die by lethal injection.\nThe trial court returned Newman\u2019s case to us, and we affirmed the trial court\u2019s decision.\nAfter this court\u2019s mandate was issued, federal public defenders filed a motion in the state proceedings, requesting that this court recall its mandate; they further stated that they had been appointed by the federal district court to represent Newman. They alleged that Newman\u2019s \u201ccommon-law aunt,\u201d Betty Moore, sought to intervene in this matter as Newman\u2019s next friend, and that Newman was mentally retarded and could not be executed in violation of the prohibition set out in Atkins v. Virginia, 536 U.S. 304 (2002). This court continued its temporary stay of execution and asked the federal public defenders to brief four legal issues. However, the federally-appointed attorneys later filed a motion to vacate any briefing schedule, asserting that Newman had changed his mind to waive counsel, and instead had authorized Federal Public Defenders Julie Brain and Bruce Eddy to raise whatever claims or defenses were available to him. His statement was unsworn. The attorneys alleged that, because Newman was now acting in his own right, he no longer needed Ms. Moore as next friend to proceed with his Rule 37 postconviction proceeding.\nAbout three months later, Newman filed an affidavit whereby he purportedly fired the two federally-appointed attorneys; he again asked to be put to death because he \u201cmurdered Marie Cholette in cold blood and set her up to do so.\u201d The federally-appointed attorneys filed a petition for writ of habeas corpus on Newman\u2019s behalf, although Newman and the two federal public defenders\u2019 requests appeared to be at odds. After the two appointed attorneys filed their petitions for habeas relief, the trial court held another hearing and again found Newman was not mentally retarded and was competent to understand the consequences of his decisions. Newman, in open court, fired the two attorneys. The trial court then ruled the federal public defenders could not represent Newman in any state proceedings. The trial judge entered his orders on these matters and also denied the federal public defenders\u2019 motion for reconsideration. Our court upheld the trial court\u2019s decisions, including the public defenders\u2019 motion for reconsideration, and also granted Newman\u2019s pro se motion to dissolve this court\u2019s stay of execution.\nThe federal public defenders simply have no standing in this state proceeding because no authority supports such action. A federal district court\u2019s authority to appoint counsel to capital defendants is found in 21 U.S.C. \u00a7 2254. Federally-appointed counsel is also available to assist a qualifying prisoner for judicial proceedings ancillary to a federal habeas corpus petition. See 28 U.S.C. \u00a7 848 (q) (8). Federal habeas relief is not available to any claim for which available state remedies have not been exhausted. See 28 U.S.C. \u00a7 2254(b)(1)(A). If such relief were available, there would be no real need for this state\u2019s postconviction remedies provided in our Rule 37. The State ably makes this point clear by citing and discussing the case of In re Lindsey, 875 F.2d 1502 (11th Cir. 1989).\nIn Lindsey, the Eleventh Circuit was called upon to determine \u201cwhether, in the meaning of subsection 848 (q) (4) (B), one may be said to be \u2018proceeding under section 2254\u2019 with respect to a claim for which he has not exhausted all state remedies. We think not.\u201d The court reasoned that, because habeas corpus relief is unavailable when a prisoner has not exhausted his or her available state remedies, a proceeding in state court to exhaust those remedies is not contemplated by \u00a7 848 (q) (4) (B) or (q)(8). Lindsey, 875 F.2d at 1506. This is so because:\nAcceptance of [the proposed] view of a state prisoner\u2019s rights under subsection 848(q) would have the practical effect of supplanting state-court systems for the appointment of counsel in collateral review cases. Adherence to [that] view would encourage state prisoners to ignore, as [the appellant] has here, the proper sequence, developed from concerns for federalism, for seeking collateral relief from state-court judgments in death-penalty cases.\nId. Accepting that proposition, which is espoused by the federal public defenders, would allow \u201cstate inmates, for no reason other than to gain the assistance of federally appointed counsel . . . throughout all stages of collateral review (both state and federal), [to] ignore the exhaustion requirement and, before seeking state remedies, futilely file for federal habeas relief.\u201d Id.\nThe Eleventh Circuit additionally rejected the claim that a proceeding to exhaust state remedies is a matter \u201cancillary\u201d to a federal habeas corpus proceeding. Section 2254(b)(1)(A) requires a prisoner to exhaust available state remedies prior to obtaining federal relief. \u201c[T]hat requirement is based in principles of federalism that belie the notion that an inmate pursuing] state collateral review is seeking relief under section 2254.\u201d Id. at 1508. In fact, \u201c[t]he legislative history . . . suggests that \u2018ancillary\"matters\u2019 are limited to proceedings comprehended within the action for which the appointment was made.\u201d Id.\nIn Hill v. Lockhart, 992 F.2d 801 (8th Cir. 1993), the Eighth Circuit adopted Lindsey\u2019s reasoning and holding , ruling that \u201cthe references to judicial . . . proceedings in \u00a7 848(q)(8) do not encompass any proceedings convened under the authority of a State.\u201d Hill, 992 F.2d at 803.The Eighth Circuit further ruled that it \u201cagreefs] with Lindsey\u2019s analysis in cases of unexhausted claims, where comity mandates that state judicial proceedings precede the seeking of federal habeas relief.\u201d Id. Lindsey has been followed by the Fifth and Sixth Circuits as well. See, e.g., Sterling v. Scott, 57 F.3d 451 (5th Cir. 1995); House v. Bell, 332 F.3d 997 (6th Cir. 2003).\nThe State\u2019s analysis fairly and clearly supports the trial court and our court\u2019s decisions that the federally-appointed counsel have no standing in this matter, nor can they force Newman to accept their representation after Newman duly and properly rejected it. See Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988).\nOther clear reasons exist to deny the federally-appointed attorneys any relief in this proceeding. For example, even if the attorneys were allowed to proceed as Newman\u2019s attorneys (over his objection), the trial court\u2019s decision was entered on February 25, 2004, making any petition for Rule 37 relief due to be filed on May 25, 2004; the petition filed in this case was February 1, 2005, which was well beyond the 90-day limitation required under Rule 37. See Ark. R. Crim. R. 37.5(e).\nFor the reasons discussed above, I concur with the court\u2019s decision granting the state\u2019s motion to dismiss.\nThe remand was in part based on Newman\u2019s mentioning that he was under the influence of medication for his mental health, although he stated that it did not impair his judgement. On remand, both Newman and Dr. Charles Mallory of the State Mental Health Hospital agreed that Newman was no longer taking psychotropic medication.\nThe federally-appointed attorneys did not mention or question Newman\u2019s competency to make this belated change of mind to be represented by these two public defenders and for them to plead his retardation or innocence.\nThe record reflects that Ms. Moore was not actually a relative of Newman\u2019s.\nWhile law of the case appears to have attached and Newman had clearly waived his postconviction rights and was mentally competent to do so, I need not address that issue. See Cloird v. State, 352 Ark. 190, 99 S.W.3d 419 (2003).\nOur court has stated that, while time limits for filing postconviction relief is jurisdictional, in cases involving death, the court will allow a late filing where fundamental fairness dictates. See e.g. Porter v. State, 339 Ark. 15, 2 S.W.3d 73 (1999). The court has never allowed a Rule 37 petitioner to ignore the jurisdictional requirement where the delay was due to his own making. See Engram v. State, 360 Ark. 140, 200 S.W.3d 367 (2004).", "type": "concurrence", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Jenniffer M. Horan and Bruce David Eddy, for appellant.", "Mike Beebe, Att\u2019y Gen., by. Clayton K. Hodges, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Rickey D. NEWMAN v. STATE of Arkansas\nCR 05-701\n211 S.W.3d 543\nSupreme Court of Arkansas\nOpinion delivered August 3, 2005\nJenniffer M. Horan and Bruce David Eddy, for appellant.\nMike Beebe, Att\u2019y Gen., by. Clayton K. Hodges, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0199-01", "first_page_order": 223, "last_page_order": 228 }