Terrick Terrell NOONER, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee, 402 F.3d 801

WOLLMAN, Circuit Judge. Terrick Terrell Nooner appeals from the district court’s dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254. The district court found Nooner competent to withdraw his petition and, in the alternative, held that Nooner’s substantive claims were without merit. Although we conclude that the district court erred in finding that Nooner’s motion to dismiss his petition was knowing and voluntary, we affirm the rejection of the petition on the merits. I.

Scot Stobaugh, a college student, was washing clothes at a Little Rock laundromat at approximately 1:30 a.m. on March 16, 1993. Nooner approached Stobaugh in an apparent robbery attempt and shot him seven times at close range. A jury convicted Nooner of capital murder. During the penalty phase of his trial, the jury heard testimony from several witnesses, including Stobaugh’s mother, who described the impact of Scot’s death on his family. The jury also heard mitigation testimony from Nooner’s stepfather.

The jury found two aggravating circumstances (that Nooner had previously committed another felony, an element of which was the use or threat of violence, and that the murder was committed for pecuniary gain) and no mitigating circumstances. Nooner was sentenced to death by lethal injection. Nooner appealed to the Arkansas Supreme Court, which affirmed his conviction and death sentence. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). Nooner then sought post-conviction relief in the state courts. The Arkansas Supreme Court affirmed the trial court’s denial of post-conviction relief. Nooner v.

State, 339 Ark. 253, 4 S.W.3d 497 (1999). Noon-er’s attorney filed a subsequently amended petition for writ of habeas corpus with the district court. While the petition was pending, Nooner, acting pro se, requested that the district court dismiss his petition. After the district court rejected this request, we directed the district court to reexamine its decision and determine whether Nooner was competent to withdraw his petition.

After hearing testimony from three mental-health experts who had examined Nooner, the district court determined that Nooner was competent to withdraw his petition and granted his request. The district court also addressed the merits of Nooner’s petition and concluded that his stated claims were without merit. Nooner, through counsel, now appeals from the district court’s competency determination.

Nooner also raises three collateral challenges to his sentence: (1) that the admission of victim impact evidence pursuant to Arkansas’ victim impact statute violated the ex post facto clause of the Federal Constitution; (2) that Arkansas’ victim impact statute is constitutionally infirm; and (3) that Nooner’s trial counsel rendered ineffective assistance by failing to investigate and present mitigating evidence at sentencing. II. We first examine the district court’s factual finding that Nooner was competent to withdraw his habeas petition, which we review for clear error. Taylor v.

Bowersox, 329 F.3d 963, 968 (8th Cir.2003). We evaluate Nooner’s competency to withdraw his habeas petition as we would evaluate competency to waive appeal of a state post-conviction proceeding because both actions bar further federal court review. Our inquiry is two-fold. First, we examine whether the defendant has the rational ability to understand the proceedings. O’Rourke v. Endell, 153 F.3d 560, 567-68 (8th Cir.1998) (quoting Godinez v. Moran, 509 U.S. 389, 401 n. 12, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993)).

Second, we consider whether the defendant’s waiver was knowing and voluntary, ie., whether the defendant actually understood the significance and consequences of his waiver and whether the waiver was uncoereed. Id. A. Dr. Richart L. DeMier of the United States Medical Center in Springfield, Missouri, evaluated Nooner and found him not competent. Dr.

DeMier based his conclusion on two subjective indicators: Noon-er’s disorganized speech (which presented only when Nooner discussed his legal situation) and Nooner’s illogical belief that he would be exonerated by a “hidden or removed lawsuit” after he appeared before the clemency board. Dr. DeMier testified, however, that he did not hold his opinion with his usual degree of confidence because Nooner was malingering to some extent. Dr. Charles Mallory and Dr. Oliver W. Hall III of the Arkansas State Hospital also evaluated Nooner, and both of these doctors found him competent. Dr. Mallory confirmed Dr.

DeMier’s impression of Nooner’s strange speech patterns, and, like Dr. DeMier, he observed that they occurred only when Nooner discussed his legal situation. Dr. Mallory also noted that Nooner realized that his ideas were strange, an uncommon awareness in most delusional people. Both Dr. Mallory and Dr. Hall agreed that Nooner was malingering.

From the reports of the doctors, their testimony at the competency hearing, and its own observations, the district court concluded that Nooner was competent, finding that he was able to “make a rational choice among his options” and understood “his legal positions and options available to him.” B. We find no clear error in the district court’s determination that Nooner had the ability to understand his request to withdraw his petition. All three experts concluded that Nooner was feigning some aspects of mental illness.

All three agreed that Nooner’s odd speech patterns manifested only when he spoke of his legal situation. Their only disagreement concerned whether these speech patterns were evidence of a mental condition that prevented Nooner from being aware of his legal position and making rational choices among his legal options: Dr. DeMier found evidence of a delusional thought process; conversely, Dr. Mallory and Dr. Hall thought that Nooner’s speech patterns were further evidence of his malingering. We conclude that the district court reasonably assessed the strengths and weaknesses of the conflicting expert testimony.

See Smith v. Armontrout, 812 F.2d 1050, 1058 (8th Cir.1987). C. The question remains whether Nooner knowingly and voluntarily sought withdrawal of his petition. O’Rourke provides some indicia of when a waiver is not knowing and voluntary. 153 F.3d at 568. Specifically, we observed in O’Rourke that: (1) the petitioner’s testimony failed to demonstrate that he fully understood the consequences of his waiver; (2) the court never explained to the petitioner the significance of his waiver; and (3) no one questioned the petitioner as to his understanding of the possible results of a successful appeal. Id.

We noted that “the record as a whole demonstrates that it cannot be said with any satisfactory degree of confidence that O’Rourke’s waiver of his Rule 37 appeal was knowing and voluntary.” Id. at 569. The circumstances that we identified in O’Rourke are present here. Moreover, in O’Rourke, the court specifically asked the defendant whether he desired to be executed and the defendant stated that he did. Id. at 568. See also Smith v. Armontrout, 812 F.2d 1050, 1053 (8th Cir.1987) (Smith testified that he wanted to be executed because “he hated confinement and preferred death to life imprisonment”).

Here, the district court made no such inquiry, and two doctors testified that Nooner did not want to be executed. Nooner believed that withdrawing his habeas petition would trigger a series of events (the setting of an execution date and his appearance before a clemency board) that would result in a “hidden or removed lawsuit” that would exonerate him. In other words, Nooner believed, however illogically, that withdrawing his petition would lead to freedom, not death.

Under these circumstances, we conclude that the record does not support the district court’s finding that Nooner’s withdrawal was knowing and voluntary. III. Although Nooner’s habeas petition should not have been dismissed, we agree with the district court that the petition fails on the merits. All three issues raised in the petition were adjudicated in state court.

Accordingly, we must deny the petition unless the state court disposition “resulted in a decision contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.” 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

When a state court correctly identifies the controlling Supreme Court authority, we address the “unreasonable application” clause of

section 2254(d). See Colvin v. Taylor, 324 F.3d 583, 587 (8th Cir.2003). We observed in Colvin that “the Supreme Court has repeatedly stressed that an unreasonable application is different from an incorrect one.” Id. We may not grant a writ of habeas corpus unless the relevant state court decision is both wrong and unreasonable. Id. A. Nooner first argues that the Arkansas victim impact evidence statute, as applied in his ease, is an impermissible ex post facto law. U.S. Const, art. I, § 10. The Arkansas legislature enacted Ark.Code.

Ann. § 5-4-602(4) in response to the United States Supreme Court’s decision in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), which allowed admission of victim impact evidence during the sentencing phase of a capital trial. The statute was enacted after Stobaugh’s murder but prior to Noon-er’s trial. It is well settled that the “ex post facto [clause] does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed.” Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

Rather, a change in the law that is “procedural ... is not ex post facto.” Id. “Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage.” Hopt v. Territory of Utah, 110 U.S. 574, 589-590, 4 S.Ct. 202, 28 L.Ed. 262 (1884). The Tenth Circuit has held that victim impact evidence “does not violate the ex post facto prohibition ... because it neither changes the quantum of proof nor otherwise subverts the presumption of innocence.” Neill v.

Gibson, 278 F.3d 1044, 1053 (10th Cir.2001). Similarly, the Fourth Circuit has concluded that admission of victim impact evidence in a sentencing conducted prior to Payne was not prejudicial because the rule in Payne would properly apply at any resentencing. Washington v. Murray, 952 F.2d 1472, 1480 (4th Cir.1991). We agree with our sister circuits and conclude that the Arkansas victim impact evidence statute is procedural in nature and does not offend the ex post facto clause. Arkansas’s statute does not alter the potential penalty faced by any defendant, nor does it alter the state’s burden of proof. Cf.

Payne, 501 U.S. at 825, 111 S.Ct. 2597 (“Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities.”). Accordingly, the state court’s determination that the Arkansas statute does not violate the ex post facto clause was not contrary to Supreme Court precedent. B.

Nooner argues that without guidance to the jury on how to consider victim impact evidence, the Arkansas statute is void for vagueness, violates the Eighth Amendment, and otherwise offends due process. We evaluate vagueness challenges to statutes not involving First Amendment rights based on the particular facts of the case. U.S. v. Maull, 806 F.2d 1340, 1344 (8th Cir.1986). The Constitution does not require that a state ascribe specific weight to aggravating or mitigating factors in a capital sentencing proceeding. Harris v.

Alabama, 513 U.S. 504, 512, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995). “There is nothing unfair about allowing the jury to bear in mind the harm [caused by the crime] at the same time as it considers the mitigating evidence introduced by the defendant.” Payne, 501 U.S. at 826, 111 S.Ct. 2597. Here, the evidence admitted against Noon-er is the same kind of evidence admitted in Payne: a family member of the victim explaining to the jury the impact the murder has had on the victim’s family. Noon-er has failed to show how this testimony differs from that in Payne or how it unduly prejudices him.

He fares no better in his due process and Eighth Amendment arguments, and we thus conclude that the state court’s rejection of these arguments comports with Supreme Court precedent. C. Finally, Nooner argues that his two trial counsel were ineffective in failing to develop and present mitigation evidence at sentencing. Nooner contends that his counsel: (1) never sought to have a psychiatric expert appointed; (2) never obtained school or hospital records; and (3) never interviewed Nooner’s family members, social workers, or foster parents.

The district court, presented with the same three alleged deficiencies, held that Nooner had proeedurally defaulted on all claims that counsel “failed to gather, develop, and present mitigation evidence” except for the claim related to “the psychiatric evidence.” We agree with the district court, and thus we address only Nooner’s allegation that counsel failed to pursue psychiatric testimony or a mental examination. The Arkansas Supreme Court correctly identified Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as the controlling authority for ineffective assistance of counsel claims. Strickland requires that an ineffective assistance of counsel claim establish both deficient performance and prejudice to require reversal of a death sentence. Id. at 687, 104 S.Ct. 2052. 1. Our first inquiry is whether the Arkansas Supreme Court unreasonably applied Strickland in concluding that trial counsel were not ineffective.

When strategic choices are made “after less than complete investigation [they] are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91, 104 S.Ct. 2052. A particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. Id. at 691, 104 S.Ct. 2052.

Accordingly, our review under 28 U.S.C. § 2254 of a state court’s application of Strickland is twice deferential: we apply a highly deferential review to the state court decision; the state court, in turn, is highly deferential to the judgments of trial counsel. The Arkansas trial court held a multi-day hearing on Nooner’s ineffective assistance of counsel claims (the “Rule 37 hearing”), the transcript of which spans 269 pages.

When asked whether she had presented mitigating circumstances to the jury, Lea Ellen Fowler, one of Nooner’s trial counsel, responded: [T]hat was something that we looked long and hard to find things and ... as the Court is aware, there are some statutory criteria and Mr. Nooner did not meet any of those criteria. He was not from a broken home. Even though the ... man that raised him was not his biological father, that was the man that had raised him from, I believe, the time that he was two (2) years old. And ... his parents had done all they could to provide for him.

He didn’t suffer from alcoholism or drug abuse, or you know, any of those standard mitigating circumstances. The fact that he spent time in Rivendell; I believe that we went into that. I believe that his parents testified about the troubles that he had had in school and ... any possible circumstance that could be raised. Rule 37 Hearing Transcript at 13-14 (Testimony of Lea Ellen Fowler). Nooner cross-examined Ms. Fowler, asking her whether the records from Rivendell were “disclosed in the closing arguments for mitigating circumstances.” Id. at 25:19-21.

She responded: There was not anything in this to be mitigating towards you, Mr. Nooner. This was detrimental to you. The ... doctors at Rivendell concluded that you were the cause of all of your problems and it was your unwillingness to adapt your behavior to societal norms that was causing you these problems. I ... don’t think that that was of any benefit to you and ... we discussed whether or not to bring somebody from Rivendell and it was the opinion of all of us that that would be detrimental to you. Id. at 25:22-26:5 (emphasis added).

The conclusions of the doctors at Riven-dell are summarized in a five-page document (the “Report”) that was generated when Nooner was discharged from the facility in 1986. A copy of the Report was introduced during the Rule 37 hearing and was included as part of the record in Nooner’s appeal to the Arkansas Supreme Court. The Report uses mostly non-elinical terms to describe relatively straightforward observations.

It states that Nooner was “referred [to Rivendell] for increasing oppositional behavior, running away from home, and violent outbursts.” According to the Report, Nooner’s parents had informed the staff at Rivendell that Nooner had been in “numerous fights” and Noon-er’s parents “felt that he was rude, disruptive, disobedient, and disrespectful.” At the time of his admission to Riven-dell, Nooner’s mood “was one of mild depression, indignation, anger, and resentment.” Emotionally, he appeared to be “very narcissistic, egocentric, and self-centered with very little feeling or regard for the welfare of others.” Nooner told the staff at Rivendell that he “usually re-sorbed] to aggression and anger to get his way when things [didn’t] work out.” Although the Report suggested that Nooner had “considerable family dysfunction, as evidenced by multiple family conflicts” and that he was “somewhat depressed,” there is no indication that he had any mental or psychological problems.

The Report also made clear that Nooner “did not take any psychotropic medication.” The Rivendell Report, like the testimony at the Rule 37 hearing, supports trial counsels’ judgment not to pursue psychiatric testing for purposes of mitigation. The Arkansas Supreme Court’s conclusion that these judgments did not render counsel ineffective was not an unreasonable application of Strickland. 2.

Even if we were to determine that the Arkansas Supreme Court unreasonably applied Strickland in concluding that Nooner’s trial counsel were not ineffective, we could not grant the habeas petition unless we determined that Nooner’s constitutional rights were violated. 28 U.S.C. § 2254(a). To reach this conclusion, we would have to determine that Nooner has satisfied the prejudice prong of Strickland. See Wiggins v.

Smith, 539 U.S. 510, 525, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (“In order for counsel’s inadequate performance to constitute a Sixth Amendment violation, petitioner must show that counsel’s failures prejudiced his defense.”). Because the Arkansas Supreme Court never reached the prejudice issue, we review that issue de novo. See id. at 534, 123 S.Ct. 2527 (“... our review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis”).

Nooner asserted to the Arkansas Supreme Court that his trial counsels’ failure to secure psychiatric testing and testimony meant that his “difficult childhood and his psychiatric and mental problems” were not presented to the jury. He fails to establish prejudice with regard to either aspect of this contention.

As to Nooner’s “difficult childhood,” the record reflects that Nooner’s mother was acquitted of a single charge that she had physically abused Nooner, that Nooner had been placed in several foster homes, that Nooner had behavioral problems, that Nooner had a tenth grade education, and that Nooner had developed a problem with alcohol abuse in his teenage years. Noon-er’s stepfather testified as to all of this information during the penalty phase. Nooner has offered no evidence about his childhood that was not presented to the jury but that would have been uncovered through psychological testing. Cf.

Williams, 529 U.S. at 395-96, 120 S.Ct. 1495 (counsel failed to present evidence to jury that Williams’s parents had been imprisoned for the criminal neglect of Williams and his siblings; that Williams had been severely and repeatedly beaten by his father; that Williams had been placed in an abusive foster home; and that Williams was “borderline mentally retarded”); Wiggins, 539 U.S. at 516-17, 123 S.Ct. 2527 (counsel failed to present evidence to the jury that Wiggins’s alcoholic mother frequently left him and his siblings alone for days, forcing them to beg for food and to eat paint chips and garbage; that Wiggins’s mother had sex with men while her children slept in the same bed and that she had once forced Wiggins’s hand against a hot stove, causing him to be hospitalized; that Wiggins was physically abused by two foster mothers, raped by a foster father, and gang-raped by boys in another foster home; and that Wiggins was sexually abused by a supervisor in his Job Corps program).

It is similarly difficult to ascertain what “psychiatric and mental problems” were not presented to the jury. The jury heard testimony from Nooner’s stepfather that Nooner spent several months at Rivendell. The Rivendell Report indicates that Noon-er was not diagnosed with any psychiatric disorder and that he never received psychotropic medication during his stay.

The Rule 37 transcript contains several oblique references to a stay in a second hospital, Bridgeway, but Nooner has offered no details about this second hospitalization and there is no indication that it was the result of psychiatric or mental problems. As to Nooner’s behavioral and emotional problems, the Rivendell Report indicated that Nooner was narcissistic, egocentric, self-centered, and “somewhat depressed.” During his stay at Rivendell, Nooner showed a “dramatic” response to treatment and a “marked” ability to overcome his behavioral problems.

There is simply no evidence in the Rivendell Report or elsewhere to support Nooner’s bare allegations that he suffered from psychiatric and mental problems. We conclude that the state court’s disposition of Nooner’s ineffectiveness claim was not an unreasonable application of Strickland. The judgment dismissing the petition for habeas corpus on its merits is affirmed. . We deny Nooner's pro se motions dated December 27, 2004. . The United States Supreme Court first addressed competency to waive habeas corpus rights in Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966) (per curiam).

The standard in Rees was clarified as a two-pronged inquiry in Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); accordingly, we cite the Godinez standard as discussed in O’Rourke v. Endell, 153 F.3d 560, 567 (8th Cir.1998). . Dr. DeMier testified that he conducted personal observations of Nooner, performed nine psychological tests on him, and reviewed numerous documents. . Dr. Mallory testified that he conducted personal observations of Nooner, reviewed his prison records, and reviewed Dr. DeMier’s report and deposition testimony. Dr. Hall testified that he performed a similar review. . Dr.

DeMier testified that Nooner "seemed either unable or unwilling to discuss [the competency issues] without spontaneously in-teijecting lots of ideas about his various delusional beliefs.” Mot. Hrg. Tr. at 25. Dr. Mallory provided an example: "[Nooner] said, 'Dr. DeMier, he said I was delusional, seeing things that aren’t true. I don't know if he found me competent. I got air bubbles in my body.' " Id. at 43. Dr. Mallory testified that this "rational start and irrational ending” was "highly unusual, if not improbable in a person with genuine delusional illness.” Id. at 44. . Dr.

DeMier testified that "What [Nooner] told me very clearly is that he never asked to be executed. He did not want to be executed." Mot. Hrg. Tr. at 19. Dr. Mallory testified similarly. Id. at 58 ("He's told Dr. Simon, T don’t want to die.’ And he's indicated that in other ways, too.”). . Dr. DeMier testified that Nooner was unable "to give a rational explanation for what he thought would happen” at the clemency hearing. Mot. Hrg. Tr. at 27. "It was almost as though he were employing what we sometimes call magical thinking. That’s a trait you see in two and three year-olds.

They think that because they want something to happen, it will happen. And he wasn’t able to tell me in any detail or in any what that I can understand what would transpire there.” Id. . In State v. Metz, 162 Or.App. 448, 986 P.2d 714 (Or.Ct.App.1999), petition for review denied, 330 Or. 331, 6 P.3d 1101 (Or.2000), the question was whether a change in the state’s victim impact evidence statute was "a general change in evidentiary law that affects the way something is proved, but that does not affect the nature of what is proved ....” Id. at 457, 986 P.2d 714.

The court held that because the statutory change made victim impact evidence relevant where it previously had not been, the revision "changed the fundamental nature of the question the jury was to answer" and therefore violated the ex post facto provision of the Oregon Constitution. Id. at 460, 986 P.2d 714. We decline to extend this reasoning to our

interpretation of the United States Constitution. . The district court's analysis on the merits made clear that "psychiatric evidence” referred to trial counsel’s decision not to pursue or offer psychiatric testimony. . Although the record reflects that Nooner had a problem with alcohol abuse during his teenage years, this fact was presented to the jury during the penalty phase through testimony from Nooner's stepfather. . After testimony from Nooner's witnesses, Nooner fired his appointed counsel and was permitted to proceed pro se for the duration of the hearing.

We agree with the district court’s determination that the record was fully developed on the relevant claims at the time that Nooner undertook his self-representation.