Engram v. State , 2013 Ark. LEXIS 507 ( 2013 )

Cite as 2013 Ark. 424
SUPREME COURT OF ARKANSAS
No. CR-12-694
ANDREW R. ENGRAM Opinion Delivered October 31, 2013
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. 60CR-97-2685]
STATE OF ARKANSAS
APPELLEE HONORABLE BARRY SIMS, JUDGE
REVERSED AND REMANDED.
DONALD L. CORBIN, Associate Justice
Appellant Andrew R. Engram appeals the order of the Pulaski County Circuit Court
dismissing his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal
Procedure 37.5 (2013). For reversal, Engram asserts the following points of error: (1) both
the circuit court and this court had jurisdiction to hear his Rule 37 petition; (2) a hearing was
warranted on whether Engram established good cause for filing a belated Rule 37 petition;
(3) a hearing was warranted on whether Engram’s waiver of his right to file a Rule 37 petition
was valid; (4) this court should hold that the protections of Rule 37.5 extend to petitioners
who waive the right to file a Rule 37 petition under the advice of counsel; (5) under the
rationale of Anders v. California this court should hold that potentially meritorious issues must
be raised by appointed counsel in death cases on Rule 37; (6) this court should extend the
mandatory Robbins review to Rule 37.5 in death cases. Because the circuit court erred in
summarily dismissing Engram’s Rule 37.5 petition, we reverse and remand for proceedings
consistent with this opinion.
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Engram was charged with one count each of capital murder and rape in connection
with the death of Laura White, a security guard working at Sears in North Little Rock. On
January 28, 1999, a jury convicted him on both counts and sentenced him to death. This
court affirmed his sentence and conviction on May 4, 2000. See Engram v. State, 341 Ark.
196, 15 S.W.3d 678 (2000), cert. denied, 531 U.S. 1081 (2001). This court’s mandate
subsequently issued on January 12, 2001. Shortly thereafter, the circuit court appointed
attorney Lea Ellen Fowler to represent Engram in postconviction proceedings. At the first
status hearing following her appointment, Fowler announced that she was still in the process
of reviewing the case. The circuit court then scheduled the next status hearing for June 25,
2001. The deadline for filing a Rule 37 petition passed without any petition being filed on
Engram’s behalf. At the June 25 hearing, Fowler announced that she had not identified any
issues to pursue in a Rule 37 petition and instead would proceed with a habeas petition in
federal court. The circuit court briefly inquired of Engram if he was agreeable with his
attorney’s decision, and Engram replied that he was.
On January 9, 2002, Engram filed a petition for a writ of habeas corpus in the United
States District Court for the Eastern District of Arkansas. The next year, 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
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court. Ultimately, the federal district 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 the motion as instructed,
and the federal court granted it on October 7, 2003.
Thereafter, on November 5, 2003, Engram filed in this court a “Motion to Recall the
Mandate and Reopen the Case and Brief in Support.” The motion was submitted as a case,
and a briefing schedule was established.1 In his brief to this court, Engram asserted that this
court should recall its mandate and reopen his case based on the fact that, in 2002, the
Supreme Court decided in Atkins that the execution of mentally retarded individuals violates
the Eighth Amendment’s prohibition on cruel and unusual punishment. This court denied
Engram’s motion. Engram v. State, 360 Ark. 140, 200 S.W.3d 367 (2004) (Engram II). In so
doing, this court in Engram II reasoned that the issue of mental retardation could have been
resolved by the trial court, if only Engram had presented evidence bearing on the issue and
had asked for the circuit court to rule on the issue. Id. The court also rejected Engram’s
contention that his case was similar to Robbins v. State, 353 Ark. 556, 354 Ark. 1, 114 S.W.3d
1
After the briefs were all filed and the case was ready for submission, Engram filed a
“Motion to Continue Oral Argument and Stay of Proceedings.” Therein, Engram requested
permission to return to circuit court so that he could file a Rule 37 petition and allege,
among other things, his mental-retardation claim under Atkins. Engram also alleged that his
postconviction counsel had been ineffective in failing to investigate his case. At the
conclusion of the motion, Engram elaborated and stated that he had learned that his
appointed attorney allowed the time for filing his petition to lapse and contacted some local
attorneys to find out how to fix her mistake. There were no specific facts alleged or parties
named, and nothing was submitted in support of this conclusory allegation. This court
denied the motion without comment.
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217 (2003) (supplemental opinion on denial of reh’g), a case where this court had previously
recalled its mandate. In concluding that Engram’s case was different, this court explained as
follows:
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.
Engram II, 360 Ark. at 151, 200 S.W.3d at 372.
This court in Engram II also denied Engram’s alternative request that he be allowed to
file a petition for postconviction relief. In so doing, this court reasoned that counsel had been
appointed for Engram, that Engram had agreed with his attorney’s decision to forgo Rule 37
relief, and that the time for filing any such petition had lapsed.2 This court further rejected
Engram’s attempted reliance on 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), cases in which this court allowed petitioners
to file belated Rule 37 petitions, as factually distinguishable. The court in Engram II
concluded as follows:
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
2
Although it had no effect on the outcome, we observe that the court mistakenly
states that, pursuant to Rule 37.2, Engram had sixty days from the date our mandate issued
to file his Rule 37 petition. As Engram was sentenced to death, his postconviction remedy
was governed by Rule 37.5, which allows a petitioner to file a postconviction petition within
ninety days from the date of an order appointing Rule 37 counsel.
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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.
Id. at 154, 200 S.W.3d at 375.
Following this court’s decision in Engram II, attorneys from the office of the Federal
Public Defender for the Eastern District of Arkansas filed a motion in this court requesting
that they be appointed to represent Engram before this court and all other Arkansas state
courts. This motion was filed on September 15, 2006. On September 27, 2006, before this
court ruled on the motion, those same attorneys filed a petition for postconviction relief on
Engram’s behalf in the Pulaski County Circuit Court. Therein, Engram asserted numerous
allegations of ineffective assistance of trial counsel, as well as allegations that he was mentally
retarded and therefore could not be executed. Along with the petition, Engram also filed a
motion for leave to file an overlength brief, and a memorandum of law regarding the
timeliness of the Rule 37 petition. Thereafter, on October 5, 2006, this court entered an
order denying the federal public defender’s appointment request.
Engram’s Rule 37 petition inexplicably languished in the circuit court for almost six
years until April 30, 2012, when the circuit court entered an order summarily dismissing the
petition as untimely. No hearing was ever held on the petition or the allegation of its
timeliness. Once again, attorneys from the Federal Public Defender’s Office filed a motion
with this court seeking to be recognized as counsel for Engram. This court granted the
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motion, and Engram filed a timely notice of appeal from the order denying his request for
Rule 37 relief.
As an initial matter, we must address the State’s contention that we should dismiss the
instant appeal because of a lack of jurisdiction. According to the State, Engram’s failure to file
a petition within the ninety-day time limit set forth in Rule 37.5(e) is a procedural bar to the
relief he now seeks. Engram asserts that he is not procedurally barred in this instance because
the circuit court was never divested of its jurisdiction. Alternatively, Engram asserts that he
is at least entitled to a hearing on the issue of whether he has established good cause for filing
a belated Rule 37 petition.
It is true that this court has stated that the filing deadline of Rule 37.2 is jurisdictional
in nature. Murphy v. State, 2013 Ark. 243 (per curiam); O’Brien v. State, 339 Ark. 138, 3
S.W.3d 332 (1999) (per curiam). If the time limitations of the rule are not met, a trial court
lacks jurisdiction to consider a Rule 37.1 petition. Holliday v. State, 2013 Ark. 47 (per
curiam). Where the circuit court lacks jurisdiction, the appellate court also lacks jurisdiction.
Id. (citing Winnett v. State, 2012 Ark. 404 (per curiam)); see also Clark v. State, 362 Ark. 545,
210 S.W.3d 59 (2005).
Contrary to the State’s assertion, however, this court has never held that the ninety-day
time limitation of Rule 37.5(e) is an absolute jurisdictional bar. Its reliance on this court’s
decision in Porter, 339 Ark. 15, 2 S.W.3d 73, to support such an argument, is simply
unavailing. In Porter, where we considered an untimely filing of a Rule 37 petition in a
death-penalty case, there was a question as to whether the petitioner had received appointed
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counsel. This court specifically held that the time requirement of Rule 37.2 was jurisdictional
in nature, citing to our prior decision in Petree v. State, 323 Ark. 570, 920 S.W.2d 819 (1995),
a noncapital case. In fact, Porter was not even governed by the dictates of Rule 37.5, as it
predated implementation of that rule. Nevertheless, this court noted that Rule 37.5 had been
implemented in an effort to comply with the requirements of federal law by instituting a
comprehensive state-court review. The court in Porter ultimately concluded that good cause
was established for the petitioner’s failure to timely file a Rule 37 petition, and explained as
follows:
In light of the fact that this is a case involving the death penalty and the fact that Rule
37.5 has in effect cured the instant situation from recurring, coupled with the
ambiguous circumstances surrounding appellant’s legal representation, and the
requirements of due process, we hereby hold that fundamental fairness, in this narrowest
of instances where the death penalty is involved, dictates an exception in the present matter
to allow appellant to proceed with his Rule 37 petition.
Id. at 19, 2 S.W.3d at 76.
Similarly, in Jackson, 343 Ark. 613, 37 S.W.3d 595, this court addressed whether the
strict application of the jurisdictional time limits would be fundamentally fair when applied
to a person under a sentence of death. Jackson also dealt with an untimely Rule 37 petition
in a death case where there was some confusion about when the petitioner’s attorney had
been appointed. The Jackson court recognized that if the case before it were a noncapital case
then the general rule would be that the time limits set forth in Rule 37 are jurisdictional in
nature and would apply. Id. The court pointed out, however, that it was presented with a
case involving the death penalty, and explained as follows:
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This Court’s pronouncements in cases following Porter suggest that Rule 37.5
cases require an examination of 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 on his behalf. The obvious concern in the instant case is that the
State has opted to specifically provide a postconviction process for persons under a
sentence of death through Rule 37.5. Rule 37.5 mandates very specific requirements,
including a level of quality of appointed counsel for persons pursuing Rule 37.5 relief.
Id. at 618, 37 S.W.3d at 598 (citations omitted). Thus, this court in Jackson refused to hold
that the time limits of Rule 37.5(e) create an absolute procedural bar to the belated filing of
a postconviction petition in a capital case. The court in Jackson further explained as follows:
Porter and the cases that follow suggest that Rule 37.5 requires a heightened
standard of review of capital cases because the State has undertaken, via Act 925 of
1997 and Rule 37.5, to provide collateral relief so as “to eliminate the need for
multiple federal habeas corpus proceedings in death cases.” Again, while there is no
constitutional right to a postconviction proceeding, when the State undertakes the role
of providing such, as it has done here, it must comport with due process and be
fundamentally fair.
Therefore, pursuant to Porter, we hold that fundamental fairness dictates that the
appellant in this case be afforded an opportunity to have his claims considered.
Id. at 619, 37 S.W.3d at 599 (citations omitted).
We are mindful of the State’s reliance on this court’s decision in Roberts v. State, 2011
Ark. 502, 385 S.W.3d 792 (Roberts III), a capital case, wherein we dismissed a Rule 37
petition for lack of jurisdiction. But our conclusion in Roberts III was not based on a holding
that the time requirements of Rule 37.5 operated as a jurisdictional bar to the filing of the
petition. In Roberts III, the petitioner filed a belated Rule 37 petition after having initially
waived his rights under Rule 37.5. After the petitioner waived those rights, the State filed
a motion with this court requesting the court to review the record of the petitioner’s waiver
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hearing. This court granted the motion and affirmed the circuit court’s findings regarding the
petitioner’s waiver of postconviction relief. State v. Roberts, 354 Ark. 399, 123 S.W.3d 881
(2003) (per curiam) (Roberts II). No further proceedings occurred in state court until several
years later when the petitioner filed a Rule 37 petition in circuit court, which was denied.
We dismissed the subsequent appeal because neither the circuit court nor this court was ever
vested with jurisdiction to hear the petition. Roberts III, 2011 Ark. 502, 385 S.W.3d 792. In
determining that we lacked jurisdiction, we noted that the petitioner never moved this court
to rescind his waiver, which we had affirmed. Id. Thus, this court concluded that, once the
record was lodged with this court in Roberts II, the circuit court lost jurisdiction to make any
subsequent rulings in a proceeding under Rule 37.5. Explaining further, this court stated as
follows:
We therefore hold that where the ninety-day filing period under Rule 37.5(e)
has expired and a waiver of postconviction relief has been affirmed by this court, a
petitioner must file the appropriate motion to reopen postconviction proceedings
before a Rule 37 petition can be brought in circuit court. Because this has not been
done in the present case, the circuit court was without jurisdiction to entertain
Roberts’s Rule 37.5 petition, and this court is likewise without jurisdiction to hear an
appeal from any decision of the circuit court in the matter. We, therefore, dismiss this
appeal.
Roberts III, 2011 Ark. 502, at 9, 385 S.W.3d at 796–97 (citation omitted).
In reaching its conclusion, the Roberts III court also considered the State’s argument
that the petitioner’s initial waiver of Rule 37 relief was analogous to the filing of a first
petition and, thus, the belated petition he filed was an improper successive petition. In
considering this argument, the court cited to its decision in Kemp v. State, 2009 Ark. 631,
where the court held that a petitioner must ask this court to recall its mandate issued after the
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first Rule 37 appeal before a second Rule 37 petition can be brought in circuit court. In
Kemp, this court noted that it had consistently upheld the rule that a petitioner is limited to
one petition for postconviction relief unless the first petition was specifically denied without
prejudice to allow the filing of a second petition. Id. The court in Roberts III relied in part
on language from Kemp to conclude that the petitioner’s waiver of postconviction relief was
equivalent to the filing of a first petition for postconviction relief. Roberts III, 2011 Ark. 502,
385 S.W.3d 792.
We believe that the instant case is more akin to the situations at issue in Porter and
Jackson than those presented in Roberts III and Kemp. While there is no question about when
or if counsel was appointed to represent Engram, there are certainly questions raised about
counsel’s actions following her appointment. Specifically, Engram contends that Fowler
missed the deadline for filing his Rule 37 petition and then tried to protect herself by stating
on the record that she had not identified any issues that were appropriate for Rule 37 relief.
The record before us demonstrates that, following the issuance of our mandate from
Engram’s direct appeal, the circuit court held the required hearing and appointed Fowler to
represent Engram in pursuit of a Rule 37 petition. Prior to the deadline for filing the
petition, a status hearing was held, and Fowler announced that she was still reviewing the
Engram record. The trial court then scheduled the next hearing on the matter for June 25,
2001, and at the hearing the following colloquy occurred:
MS. FOWLER: Your Honor, we were here for report today on the status of Mr.
Engram’s potential Rule 37. I have reviewed all of the State’s records, the public
defender’s records, the appeal records, the trial transcript. I’ve discussed all of the
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potential issues with Mr. Engram and we did not identify any issues that were
appropriate for Rule 37.5 relief.
I have discussed with him that the next step is federal habeas and he has
authorized me to pursue appointment on that issue in federal court and that’s where
we’re going from here. But there was nothing we felt merited filing a petition in this
court for Rule 37 relief.
THE COURT: Mr. Engram, is that your understanding of the status of the
matter at this point?
THE DEFENDANT: Yes, sir.
THE COURT: You agree with Ms. Fowler’s assessment?
THE DEFENDANT: Yes, sir.
THE COURT: You satisfied that she has reviewed each and every item that
pertains to your case?
THE DEFENDANT: Yes, sir
....
THE COURT: So you are now going to proceed in federal court with whatever
remedies might be available there; is that correct?
MS. FOWLER: That’s correct. We have identified some potential issues there
and we plan to go forward with that.
THE COURT: And those issues would not be applicable in circuit court?
MS. FOWLER: No. They are matters of law, not trial tactic or ineffective
assistance of counsel.
THE COURT: And you agree with that, Mr. Engram?
THE DEFENDANT: Yes, sir.
THE COURT: All right, then.
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According to Engram, Fowler’s statement on the record that she chose not to file a Rule 37
petition on Engram’s behalf because there were no issues to pursue in a Rule 37 petition was
false.
Although Engram, in Engram II, raised a conclusory allegation regarding Fowler’s
postconviction representation, he has now submitted specific allegations, with a declaration
by attorney Jeffrey Rosenzweig in support of some of those allegations. Rosenzweig asserts
that attorney Craig Lambert, who at the time was romantically involved with Fowler,
contacted him and asked him to notify the court that Fowler mistakenly allowed the deadline
for the Rule 37 filing to pass. Rosenzweig further avers that he notified the circuit court that
Fowler had negligently allowed the deadline to pass but was later in the courtroom, on an
unrelated matter, when he heard Fowler announce that she was not pursuing Rule 37 relief
on Engram’s behalf but, instead, would proceed in federal court.
This information that was presented to the circuit court in a memorandum attached
to Engram’s Rule 37 petition is enough to give rise to a question of whether there is good
cause for Engram’s failure to timely file a Rule 37 petition, and it was error for the circuit
court to summarily dismiss Engram’s Rule 37 petition without holding a hearing to consider
the issue of good cause. Because a question exists as to whether there was good cause for
Engram’s failure to timely file a Rule 37 petition, we cannot accept the State’s contention that
the petition filed by Engram is an impermissible second or successive petition as discussed in
Roberts III and Kemp.
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We also do not agree with the State’s alternative argument that Engram is precluded
from seeking the instant relief because the issues raised in his Rule 37 petition have already
been raised to, and rejected by, this court in Engram II, including Engram’s allegations
regarding the ineffectiveness of his postconviction counsel. In looking at our general law with
regard to the law-of-the-case doctrine, this court in State v. Harrison, 2012 Ark. 198, 404
S.W.3d 830, explained as follows:
Under the doctrine known as law of the case, the “decision of an appellate
court establishes the law of the case for the trial upon remand and for the appellate
court itself upon subsequent review.” The doctrine prevents an issue raised in a prior
appeal from being raised in a subsequent appeal “unless the evidence materially varies
between the two appeals.” However, the doctrine is not limited to issues raised in
prior appeals as the doctrine was developed to maintain consistency and avoid
reconsideration of matters once decided during the course of a single continuing
lawsuit. Accordingly, the conclusion of the court in one opinion becomes the law of
the case on subsequent proceedings on the same cause and the matter is res judicata.
However, in order for the law-of-the-case doctrine to bar consideration of an issue,
the merits of the claim must previously have been addressed and the claim must have
been adjudicated.
Id. at 5–6, 404 S.W.3d at 834 (citations omitted).
Notably, our cases have repeatedly held that law of the case, like res judicata, is an
affirmative defense to be raised at the trial court level and presents no question of jurisdiction.
State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997); see also Clemmons v. Office of Child Support
Enforcement, 345 Ark. 330, 47 S.W.3d 227 (2001). Law of the case cannot be raised for the
first time on appeal, and the appropriate time to raise this issue is before the circuit court at
the first possible time. See Bell, 329 Ark. 422, 948 S.W.2d 557. Here, the State never filed
a motion to dismiss Engram’s Rule 37 petition in circuit court. In fact, the State never filed
any type of response to the petition or accompanying motion and memorandum; thus,
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Engram is correct in asserting that the State is improperly raising this issue for the first time
on appeal.
Even if the State had timely raised its law-of-the-case argument, it would still fail. At
the time that we decided Engram II, we were not presented with the serious allegations
regarding Engram’s appointed counsel. Although there was a general contention that she had
failed to timely file the Rule 37 petition, it was nothing more than a mere conclusory
allegation, and there was certainly nothing submitted in support of it. Moreover, we cannot
ignore the fact that in Engram II the court relied, in part, on the fact that Engram had waived
his right to file a Rule 37 petition as part of its basis for holding that he could no longer avail
himself of such relief; but, in so doing, this court failed to acknowledge that the State never
moved this court to review Engram’s waiver, nor did this court ever consider whether such
a waiver was valid.
The State asserts that Engram’s choice to forgo postconviction relief was not an actual
“waiver” because Engram did not forgo the appointment of postconviction counsel but, in
so arguing, the State fails to recognize that while Engram requested the appointment of Rule
37 counsel, he ultimately gave up his right to pursue postconviction remedies. This court
most recently discussed the issue of waiver in the postconviction process in Roberts v. State,
2013 Ark. 57, ___ S.W.3d ___ (Roberts IV), where the issue was whether the petitioner’s
waiver of postconviction relief, and our subsequent affirmance of that waiver, constituted a
defect in the appellate process. In analyzing the issue, this court noted as follows:
In our state, a defendant sentenced to death will be able to forgo a state appeal
only if he has been judicially determined to have the capacity to understand the choice
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between life and death and to knowingly and intelligently waive any and all rights to
appeal his sentence. This same standard governs the waiver of rights to postconviction
remedies following the affirmance of a death sentence. Furthermore, we have held
that it is error to allow a waiver of postconviction relief without a competency
examination to determine whether the defendant had the capacity to choose between
life and death and to knowingly and intelligently waive all rights to postconviction
review of the death sentence.
Id. at 8–9, ___ S.W.3d at ___ (citations omitted). The Roberts IV court noted that the
petitioner’s mental evaluations had occurred several years prior to the time that he waived his
postconviction rights and did not properly examine the issue of whether he knowingly and
intelligently waived all rights to postconviction review, including his capacity to choose
between life and death. Thus, this court concluded that its failure to identify the lack of such
an evaluation when it reviewed the record of his waiver-of-postconviction-rights hearing
constituted a breakdown in the appellate process that warranted reopening his postconviction
proceedings. Id.
The instant case is different in that Engram did not waive his rights to postconviction
relief from the outset, as did the petitioner in Roberts. But Engram ultimately waived his
right to file a petition under Rule 37.5, on the advice of counsel, and what remains to be seen
is whether counsel’s advice was the result of her failure to timely file the petition. Thus,
under these facts, we cannot say that this court’s holding in Engram II, that it was too late for
Engram to file a Rule 37 petition, is law of the case and now precludes him from seeking such
relief. To hold otherwise would ignore the well-settled principle that 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 id. Under
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the facts and circumstances of this case, and considering the finality of the punishment at issue,
we hold that the circuit court erred in summarily dismissing Engram’s Rule 37 petition in the
absence of a hearing and specific written findings on the issue of whether there exists good
cause for the belated filing of the petition.
Reversed and remanded.
Jenniffer Horan, Public Defender, by: Julie Pitt, Ass’t Federal Public Defender; and
Montgomery, Adams & Wyatt, PLC, by: Dale Adams, for appellant.
Dustin McDaniel, Att’y Gen., by: Rachel H. Kemp, Ass’t Att’y Gen., for appellee.
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