WOOTEN v. STATE

Citation Codes

Equivalent Citations

citation codes

Docket Number

CR 95-975

Judges

Jim Hannah

Acts

Judiciary And Judicial Procedure — Habeas Corpus — Particular Proceedings — State Custody; Remedies In Federal Courts

See more information ...

Smart Summary

Please sign up to generate summary.

Jimmy Don WOOTEN, Appellant, v. STATE of Arkansas, Appellee

MYERS, P.J., for the Court:

¶ 1. This case comes before the Court from a judgment entered by the Chancery Court of Bolivar County granting Mabel Johnson's (Mabel) action for ejectment and directing Delta Housing Development Corporation (Delta) to remove all infrastructure that it placed on Mabel's property. Specifically, the order mandates the removal of a fire hydrant, manhole, and a sewage-lift station, as well as water and sewer lines, and the encroaching portions of a street. Feeling aggrieved, Delta appeals to this Court and argues the following: (1) the adoption of the plat of the Rox-C-Sneed subdivision by the City of Mound Bayou in 1947 is presumptively valid; (2) the action filed by Mabel is barred by res judicata; and (3) Mabel's action for a mandatory injunction is barred by laches and/or equitable estoppel. Finding no error, we were affirm the chancery court's judgment.

The appellee's name is spelled as Mable and Mabel in the record; however, according to the appellee, the correct spelling is Mabel.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1944, Mabel's father, Holt Johnson, purchased an eighty-acre tract of land in Mound Bayou, Mississippi. In 1947, the City of Mound Bayou adopted a plat for the Rox-C-Sneed subdivision, which was recorded in the land records in the office of the Bolivar County Chancery Clerk; this property lies adjacent to Mabel's east-property line. The Rox-C-Sneed subdivision plat, as the chancery court would later determine, contained an error in the description of the west-property line, which created a "pie shape" overlap onto Mabel's property, up to eighteen-feet wide.

Mabel later inherited the property from Holt; to avoid any confusion, it will hereinafter be referred to as Mabel's property.

¶ 3. In 1988, the "unplatted portion of Block 2" in the Rox-C-Sneed subdivision was sold for taxes by the Bolivar County Tax Collector and purchased by Herman Johnson. Following the redemption period, the chancery clerk executed a tax deed to Herman. In 1993, Herman executed a quit claim deed to his wife, Alfreta Johnson. In 1994, Herman and Alfreta filed a petition in the chancery court to confirm title and remove clouds on the property. A judgment confirming title was entered on February 2, 1995. Alfreta shortly thereafter conveyed 6.02 acres of the property by warranty deed to Delta. After receiving the warranty deed to the property, Clanton Beamon, Executive Director of Delta, submitted a preliminary plat to the Mayor and Board of Alderman of Mound Bayou for approval of a subdivision to be called the Sam Thompson Green Acres Subdivision. The plat eventually was adopted by the City of Mound Bayou in 2006.

Herman is not related to Mabel.

Alfreta and Mabel, also of no relation, grew up together. Alfreta lived in a house located behind Mabel's property. According to Mabel, she and Alfreta walked to school together every day, which required them to walk across Mabel's property, a portion of which included the disputed area.

According to the record, Herman was a board member of Delta at the time; Herman also served as alderman on the Mound Bayou City Council from 1970 to 2000.

¶ 4. Prior to the judgment confirming title in 1995, Delta had contracted with Hooker Engineering Services to conduct a survey of the property. According to the record, Beamon stated in his testimony that before Hooker conducted the survey, he had assumed that Mabel's property line was demarcated by a drainage ditch. Beamon said that upon inspection of the property following the survey, he was surprised to discover a survey-stake angled out into Mabel's field.

¶ 5. According to Mabel, she learned through Beamon sometime in early 1996 that Delta intended to develop the property adjacent to hers. Mabel told Beamon that she had no problem with the project as long as the construction did not interfere with her property.

¶ 6. In July 1996, Mabel received a letter from Delta's legal counsel informing her that, based on the survey conducted by Hooker, Delta's west property line extends to and across land claimed to be owned by her. The letter requested that Mabel provide Delta with any surveys or legal documents she might have reflecting otherwise.

¶ 7. Mabel sought legal counsel. She spoke to a number of attorneys, but for various reasons, she was unable to attain their assistance. Eventually, she hired Jeffrey Levingston. Levingston assisted Mabel for a short period in the fall of 1996 before he withdrew from the matter, due to an apparent conflict.

¶ 8. In October 1996, Delta's contractor, Jimmy Douglas, staked the areas where the utility structures in question were to be placed. Levingston sent correspondence to Delta advising the company that it was encroaching onto Mabel's property. Levingston informed Delta that a drainage ditch delineates Mabel's east-property line. Levingston disclosed that he was not sure what a survey would show in terms of record title, but he was confident Mabel at least had title by virtue of adverse possession; thus, he would not hesitate filing suit in order to preserve Mabel's rights. Levingston strongly suggested to Delta that any construction activities should be carried out east of Mabel's boundary line. Construction continued, and at some point in October 1996, Mabel had Beamon arrested for trespassing. On the advice of Levingston, Mabel dropped the charges.

¶ 9. Sometime in the first half of 1997, after Levingston withdrew from the case, Mabel hired her present attorney, Derek Hopson. In June of that year, she contracted with Allen Hoshall, Ltd. to conduct a survey to establish her property's boundary lines. Meanwhile, Delta continued construction. Douglas filled in the ditch that supposedly marked Mabel's east-property line. He installed the sewage-lift station in December 1996; he finished the water and sewer lines in June 1997; and two-months later, he completed the roadbed. According to Mabel, a pecan tree located on the strip of land in question, and which was planted there by her late son many years ago, was removed during the process.

¶ 10. On August 19, 1997, Mabel filed a petition in the chancery court against Delta, Herman, and Alfreta, which requested a temporary injunction be issued restraining Delta from carrying on development and construction operations on her real property. The chancery court issued a temporary restraining order (TRO) that same day. According to the record, a proposed order was drafted by Hopson and approved by Delta's legal counsel, which would have extended the TRO. However, the order was never signed by the chancellor. On September 9, 1997, Mabel filed an amended petition for permanent injunction, restoration of land, order confirming title, and monetary damages.

Both Herman and Alfreta, eventually, were dismissed from the case.

¶ 11. That same day, on September 9, Delta filed its answer to the TRO petition filed by Mabel on August 19. Delta claimed that the exact boundaries of the property described in Mabel's petition were in dispute, and it pleaded the affirmative defenses of res judicata and laches. According to Delta, because the chancery court had entered a final decree in 1995, adjudicating its predecessor's title to the unplatted portion of the Rox-C-Sneed subdivision, Mabel's action was barred under the doctrine of res judicata. Delta also claimed that Mabel was aware of the development project as early as 1994, and because she took no legal action to assert and/or secure her rights, her action was barred under the doctrine of laches. Delta filed a counterclaim against Mabel, alleging, inter alia, that as a result of the TRO, it suffered losses in excess of $50,000. Delta sought compensatory damages in the amount of $100,000. According to the record, Delta continued construction after the TRO expired.

¶ 12. On January 16, 1998, the chancery court issued an order appointing David Evans, an experienced and qualified land surveyor, as special master for the purpose of deciphering and interpreting the parties' respective and conflicting surveys. Evans was instructed to inspect the land in question. Evans found that the Allen Hoshall survey correctly established Mabel's east-property line. According to Evans, the Rox-C-Sneed subdivision plat, which was filed in the office of land records for Bolivar County subsequent to the recordation of Holt's deed, contained an incorrect course run for its west-property line. When Hooker conducted its survey, it drew from this erroneous description, which resulted in a zero-to-eighteen-foot overlap onto Mabel's property.

Mabel's east-property line runs from the northeast corner of the property directly south to an old "railroad iron" which, according to the Allen Hoshall survey, marks the southeast corner of her property. The west-boundary line of the Rox-C-Sneed subdivision is described as starting from the northwest corner of the northeast quarter of the southeast quarter of Section-T.-23N.-R.5 West. This corner lies in common with the northeast corner of Mabel's east-property line. Instead of running due south, the Rox-C-Sneed subdivision's west-boundary line uses a southwest, one-degree, bearing. In his deposition, Evans indicated that drawing from the course run described by the Rox-C-Sneed subdivision plat results in a line ending eighteen feet west of the "railroad iron" found by Allen Hoshall.

¶ 13. On February 25, 1998, the chancery court issued an order accepting the special master's findings. Delta did not contest these findings.

¶ 14. The matter was set for trial to begin on April 17, 1998. Mabel thereafter amended her complaint to include ownership by adverse possession of another strip of land some thirty to thirty-five-feet wide which runs parallel to her east boundary line as established by the Allen Hoshall survey. The additional strip of land was inclusive of property on which two houses had recently been constructed and for which the United States held mortgages and deeds of trust. As the United States was a defendant, the case was removed to the United States District Court for the Northern District of Mississippi. In 2005, the district court granted summary judgment in favor of the defendants which was affirmed by the Fifth Circuit Court of Appeals. The United States was subsequently dismissed as a party, and the case was remanded to chancery court for trial of the remaining claims.

The district court found that Mabel's claim of title to the thirty-five-foot strip of land by adverse possession vanished when the land sold for taxes in 1988; thus, the defendants were entitled to judgment as a matter of law. As noted in the district court's memorandum order, the defendants did not dispute that Mabel held record title to the eighteen-foot strip of land and admitted that there was an encroachment thereof.

¶ 15. Upon trial of this cause, the chancery court entered a judgment granting Mabel's claim for ejectment and order confirming title. The chancery court directed Delta to remove all the above-mentioned infrastructure from her property.

STANDARD OF REVIEW

¶ 16. We defer to a chancery court's findings, unless its decision "is manifestly wrong and not supported by substantial credible evidence, or unless an erroneous legal standard was applied." Saliba v. Saliba, 753 So.2d 1095, 1098 (If 11) (Miss. 2000). On questions of law, our standard of review is de novo. Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss. 1990).

DISCUSSION

I. Adoption of the Rox-C-Sneed Subdivision Plat

¶ 17. Delta argues that because the Rox-C-Sneed subdivision plat was adopted by the City of Mound Bayou in 1947 and duly recorded in the land records of Bolivar County, a presumption of validity exists in its favor. Relying on Taquino v. City of Ocean Springs, 253 So.2d 854, 855 (Miss. 1971) and Luter v. Oakhurst Assoc., Ltd., 529 So.2d 889, 894 (Miss. 1988) for authority, Delta contends that the adoption of the subdivision plat by the City of Mound Bayou is presumptively valid, and that any party seeking to attack its validity has the burden to show that the action was arbitrary, carpricious, discriminatory, or beyond the legal authority of the Mayor and Board of Aldermen of Mound Bayou. Delta submits that Mabel failed to adduce evidence in this matter to rebut this presumption. Therefore, the Rox-C-Sneed subdivision's plat should be declared valid, as well as all conveyances made thereafter. Also, Delta claims that the City of Mound Bayou is a necessary party to this action pursuant Rule 19 of the Mississippi Rules of Civil Procedure.

¶ 18. Both Taquino and Luter are distinguishable from the matter before this Court. Taquino dealt with an action by the Mayor and Board of Aldermen of Ocean Springs, as to whether land owners should be required to dedicate a portion of their property to allow the widening of an existing public street adjacent to a proposed subdivision. Taquino, 253 So.2d at 855. The supreme court found that, according to the official minutes of the city governing board for January 27, 1970, it was determined that the City of Ocean Springs did not require a fifty-foot right of way by the subdivision due to economical reasons and feasibility. Id. As was also reflected by the minutes, the City of Ocean Springs then approved the application of the plat for the subdivision. Id. None of the appellants appeared at the meeting; however, they objected to the action taken by the Mayor and Board of Aldermen on appeal to the circuit court, which thereafter affirmed the action taken by the City of Ocean Springs. Id. at 854. In affirming the circuit court's judgment, the supreme court stated as follows: "The action of the City Governing Board is presumed to be valid. The appellants, in attacking that action, must show that it was arbitrary, capricious, discriminatory, or beyond the legal authority of the City Board." Id., at 855 (citations omitted). The court held that the appellants did not meet their burden, and it found the action taken by the City of Ocean Springs in preliminarily approving the subdivision plat "was supported by substantial evidence, and was not arbitrary, capricious or discriminatory." Id.

¶ 19. Luter involved a zoning issue. The City of Tylertown failed to have a zoning ordinance read aloud at a public meeting, and it did not have a roll call before its enactment. Luter, 529 So.2d at 894. The supreme court reiterated that "[t]he official action of the governing authorities of a municipal corporation in this state are presumed valid, albeit rebuttably so." Id. at 894 (citations omitted). The Luter court explained:

What this means — and the point is critical in this case — is that those who would challenge the formal regularity of the prior act of a municipal corporation bear the burden of demonstrating affirmatively wherein the failures occurred. See City of Biloxi v. Cawley, 278 So.2d 389, 390 (Miss. 1973); City of Greenwood v. Jones, 91 Miss. 728, 46 So. 161, 163 (1908). No doubt as a practical matter proof of a negative may be difficult, particularly where a number of years have elapsed. Yet we regard the presumption vital in that otherwise untold scores of official actions may be invalidated, not because the board or agency failed of compliance, but because the draftsman of the minutes failed to use the requisite magic words. See Paine v. Underwood, 203 So.2d 593, 597 (Miss. 1967).

Id. The supreme court concluded that the minutes of the Mayor and the Board of Aldermen's meeting adequately reflected their intent, and the court held that this was "enough to raise a presumption of regularity shifting to the opponents the burden of affirmative demonstration wherein the [City's] action failed [to comply] with essential formalities." Id. at 895.

¶ 20. In the instant case, we are without the minutes reflecting the City of Mound Bayou's adoption of the Rox-C-Sneed subdivision plat in 1947, as both parties agree the minutes could not be located. Thus, we have no way of knowing whether the City's action conformed to the procedural formalities required by law. See id. at 894 ("As a man's will is invalid and ineffective if he fails to conform to the formalities of the statute, so a municipal ordinance is invalid if it has not been enacted according to procedural prerequisites."). However, it is unnecessary for us to express whether such omission constitutes what the Luter court meant by "proof of a negative." See id. Whatever presumptive validity might have existed with the description of the adopted plat's west-boundary line, Mabel successfully overcame it by proving that the description was in error.

¶ 21. "[A] determination of the legal boundary between properties is a question of fact for the chancellor." Kleyle v. Mitchell, 736 So.2d 456, 459 (¶ 8) (Miss.Ct. App. 1999) (citing Farris v. Thomas, 481 So.2d 318, 318 (Miss. 1985)). Delta filed no objection, as set forth under Mississippi Rules of Civil Procedure 53(g)(2), to the findings of the special master appointed by the chancery court to locate the true boundary line between the two properties. Therefore, Delta waived any objections it may have had with the factual conclusions submitted by the special master and accepted by the chancery court in this matter. Cuevas v. Kellum, 12 So.3d 1154, 1159 (¶ 21) (Miss.Ct.App. 2009). The chancery court determined that the Rox-C-Sneed subdivision plat contained an improper course description, which Hooker relied upon in conducting its survey. The Allen Hoshall survey, on the other hand, conclusively established Mabel's east-property line. The court ultimately concluded that Mabel and her predecessors-in-title were the rightful owners of the strip of land in dispute.

¶ 22. This decision by the chancery court effectively means that the City of Mound Bayou, in 1947, adopted a subdivision plat which contained an erroneous legal description, encompassing Mabel's east-property line. Because one may not subdivide and convey or dedicate land one does not own, we can confidently say that the City of Mound Bayou acted without legal authority in that instance, at least to the extent its action affected the preexisting rights enjoyed by Mabel and her predecessors-in-title. See, e.g., Eugene McQuillin, 11A The Law of Municipal Corporations § 33.12-70 (3rd ed.).

¶ 23. As to Delta's contention that the City of Mound Bayou was a necessary party, we fail to see what interest, actual or mistaken, the City had with this strip of land. When this action began, either Delta or Mabel owned it. Based on our review of the record, the conveyance to Delta involved the unplatted portion of the Rox-C-Sneed subdivision, with no dedication provision for the City contained therein. See, e.g., Albright v. Baker, 213 Miss. 234, 238, 56 So.2d 703, 704 (1952). We do not find that the City's absence in this matter prevented the chancery court from granting complete relief between Delta and Mabel. See M.R.C.P. 19.

¶ 24. This issue is without merit.

II. Res Judicata

¶ 25. Delta avers that pursuant Mississippi Code Annotated section 27-45-23 (Rev. 2006), a conveyance to a purchaser at tax sales by the chancery clerk, after the period of redemption under law, vests in the purchaser a perfect title with the immediate right of possession. Thus, the final judgment entered by the chancery court in 1995 vested perfect title in Herman and in subsequent conveyances. Therefore, Mabel's action should be barred by res judicata. We disagree.

¶ 26. First, not only was Mabel not made a party to that action, she clearly did not receive proper notice of it as required by Mississippi Code Annotated section 27-43-3 (Supp. 2009). See, e.g., Curtis v. Carter, 906 So.2d 758, 759 (¶¶ 6-7) (Miss. 2005) (affirming chancellor's decision to set aside tax sale insofar as it pertained to those persons with ownership interest in the property who were without proper notice). Further, section 27-45-23 also states, "[n]o such conveyance shall be invalidated by any court except by proof that the land was not liable to sale for the taxes. . . ." Mabel submitted ample evidence that her property has never been the subject of delinquent taxes; accordingly, this strip of land was not liable to sale for non-payment of taxes.

¶ 27. Mabel was not barred from asserting her ownership rights in this matter. This assignment of error is without merit.

III. Equitable Estoppel and/or Laches

¶ 28. Delta claims that a balancing of the equities in this matter clearly weighs in its favor, and submits that the chancery court erred when it rejected its defenses of laches and/or equitable estoppel. Delta contends that before Mabel filed her action for injunction in August 1997, she had actual notice of the development project both by virtue of the initial survey that was conducted in April 1994 and via Beamon, who personally met with Mabel in March 1996 and discussed the project with her. Delta further asserts that the property at issue is valued at $800 and that a mandatory injunction requiring the removal of the infrastructure now in place would cost the company approximately $60,000 to carry out. In other words, the issuance of the injunction would cause Delta to suffer loss far greater than the loss Mabel would suffer if the injunction were not issued.

¶ 29. In Shattles v. Field, Brackett Pitts, Inc., 261 So.2d 795, 797-98 (Miss. 1972), the supreme court reiterated the rule regarding property rights and the issuing of injunctions pertaining to such rights:

The general rule is that a landowner is entitled to an injunction directing the removal of a trespassing structure on his land erected thereon by the owner of adjoining land. The facts that the aggrieved owner suffers little or no damage from the trespass, that the wrong-doer acted in good faith and would be put to disproportionate expense by removal of the trespassing structures, and that neighborly conduct as well as business judgment would require acceptance of compensation in money for the land appropriated, are ordinarily [not] reasons for denying an injunction. Rights in real property cannot ordinarily be taken from the owner at a valuation, except under the power of eminent domain. Only when there is some estoppel or laches on the part of the plaintiff, or a refusal on his part to consent to acts necessary to the removal or abatement which he demands, will an injunction ordinarily be refused.

¶ 30. Laches and equitable estoppel are similar legal principles. Laches arises from a complaining party's failure to assert a right or claim "for an unreasonable and unexplained length of time, under circumstances prejudicial to [the] adverse party." Cannada v. Marlar, 185 So.2d 649, 651 (Miss. 1966) (citation omitted). Equitable estoppel comes into play in situations where a party has changed his or her position in reliance upon the conduct or representation of another and as a result suffers detriment or prejudice caused by the change of position. PMZ Oil Co. v. Lucroy, 449 So.2d 201, 206 (Miss. 1984) (citation omitted). What constitutes laches or equitable estoppel has been held to depend on the facts and circumstances of each particular case. See Cannada, 185 So.2d at 651 (discussing laches) and Bright v. Michel, 242 Miss. 738, 749, 137 So.2d 155, 159 (1962) (same, with respect to equitable estoppel). Therefore, a trial court's decision to accept or reject either doctrine will not be disturbed on appeal when the decision's factual findings are supported by substantial evidence. Cannada, 185 So.2d at 651.

¶ 31. On the question of whether Mabel should have been barred from her cause of action under the doctrine laches, we note that this particular defense has been viewed by our supreme court with disfavor in similar matters. In Clanton v. Hathorn, 600 So.2d 963, 966 (Miss. 1992), before addressing the appellant's laches claim on the merits, the court opined as follows:

The problem of laggardly landowners who ignore claims or encroachments over long periods of time has been addressed by the [Legislature. Miss. Code Ann. § 15-1-13 (1972) is our familiar ten-year adverse possession statute. That act would seem to occupy the field. This would certainly seem the premise of our cases that laches is not a defense to an action if the plaintiff proceeds within the period of the applicable statute of limitations. Hans v. Hans, 482 So.2d 1117, 1121 (Miss. 1986); Continental Oil Co. v. Walker, 238 Miss. 21, 34, 117 So.2d 333, 337-38 (1960); Griffith, Mississippi Chancery Practice, 344-45 (2d Ed. 1950). It is difficult to imagine a case where we would credit a laches defense on an adverse claim to real property on grounds other than those set forth in the statute and cases reading [the] same. Of course, it is not necessary that we address so sweeping a point, it being sufficient that today's is not such a case.

Cf. Pittman v. Currie, 414 So.2d 423, 428 (Miss. 1982) (reiterating that Miss. Code Ann. § 15-1-17, which prescribes a two-year limitation to file suit to cancel tax titles following the period of redemption, does not apply when the tax sale is void and the owner has remained in possession).

¶ 32. That said, assuming arguendo that Delta's theory has credence, we find no error with the chancellor's decision to reject this claim on the merits. After considering the evidence submitted by both sides and hearing their respective arguments, the chancellor found that Mabel did not act with unreasonable delay in bringing her action. According to the chancellor, regardless of which point in time Mabel first learned of the development project, she had no idea at that time that the structures in question would be placed on her property. When Mabel discovered that Delta was claiming ownership to the strip of land she believed rightfully belonged to her, she acted as expeditiously as could be expected of a person in her situation to obtain the information necessary to protect her interests.

¶ 33. As to the inequitable loss Delta claims it will suffer by the mandatory injunction, such a result is a factor for the chancellor to take into consideration. However, it is not the controlling consideration on the question of laches or equitable estoppel. Cf. Bright, 242 Miss, at 749, 137 So.2d at 159 (addressing estoppel).

¶ 34. We note that Delta did not affirmatively raise the defense of equitable estoppel in its pleadings; however, it was discussed at the hearing. Thus, we find Rule 15(b) of the Mississippi Rules of Civil Procedure controlling. On this question, we find no merit to Delta's contention that Mabel should be estopped to complain of the encroachment. Nothing in the record remotely suggests that Delta changed its position in reliance upon Mabel's conduct. Indeed, before construction began, Mabel told Delta not to interfere with her property. Once it became apparent to Mabel that Delta had plans to place the structures on her property, she expressly warned the company that there would be legal consequences if they proceeded. Delta disregarded her cautionary advice and continued with construction; Mabel followed through on her word, and she had Beamon arrested for trespassing.

¶ 35. Based on our review of the record, Delta received numerous indicators that should have given the company cause for concern in this matter. Apart from Mabel's admonitions, Delta was put on notice by others who were familiar with the two properties that it was mistaken as to the true property line. The record even indicates that Hooker informed Delta that there might be a question with the Rox-C-Sneed subdivision plat. Yet, rather than exercise precaution, Delta proceeded forward. This issue is without merit.

¶ 36. THE JUDGMENT OP THE BOLIVAR COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.

aw-ref2 S.W.3d at 76. While Porter involved an appeal from the denial of postconviction relief on procedural grounds, and not a recall of the mandate, the same reasoning applies to the present case. The fact remains that there has yet to be filed a Rule 37 petition for postconviction relief in the circuit court that has been verified by Wooten, which is in direct contravention to the dictates of Rule 37. Therefore, we grant the motion to recall the mandate.

Motion granted.

BROWN, J., concurs.

HANNAH, C.J., and WILLS, J., dissent.

ROBERT L. BROWN, Justice, concurring.

The majority opinion concludes that the mandate should be recalled based on Wooten's lack of verification of his Rule 37 petition. But there is an equally important reason to recall the mandate, which is the woefully deficient presentation of Wooten's mitigation case by trial counsel and Rule 37 counsel, James Clawson. This too warrants a recall of the mandate due to the breakdown in the Rule 37 process.

Wooten's core argument on this point is that because of his defective counsel at his Rule 37 hearing in 1997 and on appeal, he has never been able to show either the circuit court or this court how his trial counsel was ineffective in his failure to present mental illness and familial abuse as mitigation evidence at the sentencing phase. That failure, according to Wooten, could easily have converted a life-without-parole sentence to death. Thus, under Wooten's argument, prejudice is easily shown. See Wiggins v. Smith, 539 U.S. 510 (2003).

At trial, Wooten's counsel called two witnesses during the sentencing phase. One witness was the Pope County jailer who testified that Wooten did not have a prior criminal record, that he adapted to jail life, that he was a good prisoner, and that he could work in prison if sentenced to life in prison without parole. The other witness was the person in charge of maintenance at a Russellville public school. He testified that Wooten had worked at the school and was a good worker. That was the sum total of Wooten's mitigation case. Nothing was presented about his abusive childhood and mental handicap during the sentencing phase.

Counsel James Clawson was retained to represent Wooten in his postconviction proceeding. He wrote in Wooten's Rule 37 petition in 1997 as follows:

Counsel, in the penalty phase, called two witnesses. Danny Sorey, jailor, was called to establish that Wooten had no criminal history, and that he is a good prisoner. Stanley Courtwright was called to establish that Wooten was a good worker, who possessed many skills. Counsel has a duty to investigate for penalty phase and failure is ineffective assistance. Kenley v. State, 937 F. 2d 1298 (CA8 1991). Counsel was ineffective for failing to offer for the jury's consideration the following mitigating circumstances: counsel did not call wife or friends to establish Wooten's ability to maintain friendship and favorable qualities. These witnesses would have portrayed positive aspects of Wooten's character and demonstrated humanity. Counsel made no argument for mitigation, no plea for mercy, and in short, did absolutely nothing a reasonably competent attorney would have done to provide effective representation in the penalty phase.

Again, the trial court was presented with no evidence about Wooten's traumatic childhood and mental-health issues. In 2003, new counsel for Wooten made an extensive proffer concerning the childhood history and mental-health evidence that a reasonable investigation by trial counsel or Rule 37 counsel would have uncovered and produced. This evidence was proffered in conjunction with counsel's motion to recall the mandate. It included affidavits from psychiatrists, a psychologist, and a mitigation specialist. It also included a declaration from his mother about Wooten's traumatic life history and severe mental problems, none of which was imparted to Wooten's jury at trial or to the court as part of the Rule 37 process. Some of the facts of Wooten's proffered life history include his being the youngest of six children. His father was a severe alcoholic and did not provide for his family. His childhood was distorted by extraordinary violence, mistreatment, and abuse by his alcoholic father. Wooten's father beat his mother in the presence of the children. He beat all the children, including Wooten. The abuse was constant, extreme, and life threatening. Wooten was a special target because he was small, weak, and mentally slow.

In addition, the proffer states that Wooten has a lifelong history of learning and cognitive problems. He was placed in special education classes for the lowest-functioning students. In spite of his intellectual limitations, he was considered a good worker and was eager to please. He worked at unskilled manual labor jobs.

As a direct result of Wooten's mental disturbances, current counsel propose that his childhood trauma had a lasting, severe, and adverse impact on his mental health, including post-traumatic stress disorder with dissociative features and organic brain damage. Mental health expert testimony would have shown that Wooten, due to his mental disease/defects, lacked the mens rea necessary for murder. The testimony also would have established two statutory mental health-related mitigating circumstances and other non-statutory mitigating circumstances arising from his impairments and mental health history. Wooten finally proffers that he suffers from brain damage caused by the trauma he endured, including prenatal insults to the brain, birth problems, and significant head injuries.

The United States Supreme court has emphasized the critical importance of such mitigation evidence in Wiggins v. Smith, 539 U.S. 510 (2003), and found prejudice when such evidence is not presented:

Wiggins' sentencing jury heard only one significant mitigating factor — that Wiggins had no prior convictions. Had the jury been able to place petitioner's excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance. Cf. Borchardt v. State, 367 Md. 91, 139-140, 786 A.2d 631, 660 (2001) (noting that as long as a single juror concludes that mitigating evidence outweighs aggravating evidence, the death penalty cannot be imposed); App. 369 (instructing the jury: "If you unanimously find that the State has proven by a preponderance of the evidence that the aggravating circumstance does outweigh the mitigating circumstances, then consider whether death is the appropriate sentence").

539 U.S. at 537.

What is patently clear in all this is that Wooten never had his day in court regarding mitigation evidence related to mental impairment and early family abuse. Trial counsel can certainly be blamed for this, but this failure to investigate trial counsel's oversight as part of the Rule 37 process can be laid squarely at the feet of defective Rule 37 counsel, James Clawson. Because of Clawson's dismal performance in failing to investigate and to assert mental illness and an abusive past, the circuit judge entered a one-page order denying the Rule 37 petition in 1997, without making factual findings.

On appeal of the one-page order to this court, Clawson filed only a five-page argument, again not referencing the absence of the pertinent mitigation evidence, but this court, sua sponte, remanded the matter to the circuit judge for factual findings. The circuit judge held no hearing, but in 2000, he made written findings in an order which did not touch on the absent mitigation evidence because it had not been presented to him. Clawson did not appeal the new order with its findings and did not advise Wooten of his failure to appeal.

The saga of Wooten's experience in postconviction proceedings with James Clawson at the healm as counsel beginning in 1997 graphically illustrates a complete breakdown in the criminal-justice process. Not only did Wooten not have effective counsel for his postconviction proceedings, according to the Eighth Circuit Court of Appeals, Clawson perpetrated a fraud "upon Wooten and upon the courts of Arkansas, by not disclosing his criminal convictions (two felony convictions for altering forged documents) and disbarment in the State of Oklahoma." Wooten v. Norris, 578 F.3d 767, 771 (8th Cir. 2009). As a disbarred attorney in Oklahoma, Clawson was not qualified to represent Wooten in Arkansas, even though the Arkansas disbarment had not yet transpired.

Meanwhile, Clawson was convicted of drunk driving in 1998 in Arkansas, was reprimanded by the Arkansas Professional Conduct Committee for fraudulent conduct in bankruptcy court in 1999, and was convicted in federal court on six counts of bankruptcy fraud in 2001. He was sentenced to eighteen months in federal prison.

Wooten learned of the federal convictions and Clawson's failure to appeal his Rule 37 denial in 2001, and he sought to appeal the denial of postconviction relief belatedly. This court granted a belated appeal and appointed new counsel. Ultimately, this court denied the Rule 37 appeal in 2002, Wooten v. State, 351 Ark. 241, 91 S.W.3d 767 (2002), and, in doing so, rejected Wooten's mitigation claim because Clawson had provided nothing to the circuit judge at the 1997 Rule 37 proceeding regarding what mitigation evidence trial counsel should have presented. Without evidence showing how the result at trial would have been different, this court said it could do nothing but affirm the Rule 37 denial. Clearly, Wooten was caught in a Catch-22 dilemma. He could not prevail before this court in 2002 because of Clawson's failure at the Rule 37 hearing to investigate his mental history and family abuse and provide appropriate proof which would highlight trial counsel's failure, but, yet, Clawson's egregious ineptitude in not doing this is precisely the point. Clawson's failure to do his job has become a stumbling block in Wooten's quest to present the relevant mitigation evidence.

Wooten then went to federal court in 2003 with his new counsel and the federal public defender and sought habeas corpus relief under 28 USC § 2254. For the first time, counsel investigated and supplied the absent mitigation evidence in the form of mental illness, organic brain injury, decreased cognitive functioning, tragic life history, and post-traumatic stress disorder. The federal district court denied the § 2254 petition in 2006 based on the default by Rule 37 counsel in presenting proposed mitigation evidence at the state Rule 37 proceeding in 1997. The matter was then appealed to the Eighth Circuit Court of Appeals.

The Eighth Circuit, in 2009, concluded that it could not grant Wooten relief because this court had denied Wooten's Rule 37 appeal on an adequate and independent state ground. Our denial was based on the procedural default by Clawson at the Rule 37 level in failing to investigate and present Wooten's mental-impairment and childhood-abuse history, which trial counsel should have presented in mitigation. Wooten v. Norris, supra. In light of U. S. Supreme Court authority, the Eighth Circuit was foreclosed from considering Clawson's ineffectiveness and his abandonment of Wooten as a cause for excusing default, when there is no right to counsel in postconviction matters and, thus, no constitutional violation. The Catch-22 scenario persists.

The Eighth Circuit, nevertheless, wrote that while it could not grant Wooten relief, the state supreme court could. The Eighth Circuit said: "[T]his appears to be a case that could satisfy the three factor test in Lee." The reference is to Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006), where this court recalled the mandate and reopened the Rule 37 case because Rule 37 counsel was impaired by alcohol at the Rule 37 hearing and, thus, incompetent. The three factors which were set forth in Lee by this court but originally described in Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003), were described by the Eighth Circuit as follows:

The circumstances the court referred to included the facts that (1) a federal court had dismissed a related habeas case based on a failure to exhaust state remedies, (2) the Arkansas Supreme Court had recently decided a case that was "on all fours legally with the issue presented" in Robbins, (3) and the case was a capital case that the Arkansas Supreme Court viewed as qualitatively different and worthy of more thorough review.

578 F.3d at 783. In the instant case, a remedy does remain, as was the case in Lee, and that is recall of the mandate for the purpose of presenting the absent mitigation evidence to the trial court in a new Rule 37 proceeding.

The Eighth Circuit further underscored the high premium Congress and this court have placed on effective state-court review in death cases, including competent counsel:

In Lee, the [Arkansas Supreme Court] discussed the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132 (1996), and stated, "By this act, Congress chose to restrict federal habeas corpus review in exchange for the states' appointing competent counsel for indigent capital defendants for purposes of state post-conviction review." Lee, 238 S.W.3d at 56. The court then discussed state procedural rules that Arkansas had put in place to ensure adequate post-conviction representation and review and " to eliminate the need for multiple federal habeas proceedings in death cases."

Id. (quotation omitted) (emphasis in original). This court has emphasized the same point in our postconviction death cases. See, e.g., Lee v. State, supra; Robbins v. State, supra.

The instant case is analogous to the Lee case, as the Eighth Circuit recognized, because of the complete incompetence of Rule 37 counsel and, thus, his complete impairment. To date, this court has recalled our mandate in two death cases related to Rule 37.5 proceedings: Lee (inebriated counsel at Rule 37 proceeding), and Robbins (failure to pursue inconsistency in sentencing forms). This case easily qualifies for the same relief. In reference to this court's procedure to recall the mandate in exceptional death cases, the Eighth Circuit said in its Wooten opinion:

We welcome and applaud this mechanism [of the Arkansas Supreme Court] given our frequent inability to provide relief in the face of questionable representation by post-conviction counsel. As such, we have a disincentive to use the state's act of grace as a means to reach a case that would otherwise be unreviewable under the restrictions of 28 U.S.C. § 2254.

578 F.3d at 783. The Eighth Circuit, in addition, has underscored Wooten's "compelling" argument in this postconviction case. Judge Myron Bright, in a concurrence in Wooten, emphasized "the breakdown" of the Rule 37.5 process at the state level. 578 F.3d at 787.

Again, what is patently obvious in all this is that Wooten has never had his day in court in a postconviction proceeding with competent counsel to present his mitigation evidence on mental illness, organic brain injury, tragic life history, and post-traumatic stress disorder. Neither trial counsel nor Rule 37 counsel did the necessary investigations into Wooten's background and, thus, failed to develop his readily ascertainable abusive childhood and cognitive disorders. See Wiggins v. Smith, supra. Wooten's Rule 37 counsel was impaired, as was the situation in Lee, and he deserves to be heard on this issue.

I would recall the mandate both because of Wooten's (1) lack of verification of the Rule 37 petition, and (2) the deficient presentation of Wooten's mitigation case.

JIM HANNAH, Chief Justice, dissenting.

I respectfully dissent. This court has long recognized its inherent authority to recall its mandate, see Boynton v. Ashabranner, 75 Ark. 415, 422, 88 S.W. 1011, 1011 (1905), and that authority is not limited or controlled by the supposed three-factor test noted by the majority. The three-factor test for recalling a mandate set out in Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006), and noted in the majority opinion and in the concurring opinion, misstates the law. This court in Lee derived the three factors from Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003); however, in Robbins, this court made it clear that each petition to recall a mandate is examined on its own merits-that such cases are "one of a kind, not to be repeated." Robbins, 353 Ark. at 564, 114 S.W.3d at 223. A general test cannot be created from a case that clearly states it is one of a kind. Each petition to recall a mandate must be separately examined to determine whether justice requires that the mandate be recalled under the unique facts of that particular case.

Further, neither Robbins nor Lee is controlling in this case. In Robbins, this court recalled the mandate because of fundamental error in the jury's completion of the sentencing forms. This court in Robbins cited Willet v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). In Willet, this court reversed a death sentence and remanded for resentencing for the same error. The facts in Robbins and Willet are not at all similar to the present case. In Lee, Rule 37 counsel was intoxicated while representing Lee in the Rule 37 hearing. In recalling the mandate, this court in Lee concluded that under "these particular and unusual circumstances," Lee's representation did not meet the qualifications of competency required of counsel appointed under Rule 37.5. Lee, 367 Ark. at 93, 238 S.W.3d at 57-58. It is clear that under Lee, where an attorney is intoxicated and unable to represent a client, the client is essentially left without competent counsel. The facts in the present case are not analogous to the facts in Lee.

While Wooten argues that he was effectively left without counsel, that argument fails because it is based on his counsel's alleged failure to make the proper choices as to what to put on as evidence in the guilt phase and as mitigation in the penalty phase of trial. The result of this decision is that when an attorney fails to make the proper choices as to what defense to present and what mitigation evidence should be presented, a criminal defendant has been denied competent counsel as required under Rule 37. That is incorrect.

Much is made of Attorney James Clawson's status as a disbarred attorney in Oklahoma and his misconduct in Arkansas. The concurrence's argument is based on the conclusion that Clawson was not qualified to represent Wooten in Arkansas because he had been disbarred in Oklahoma. However, at the time Clawson undertook Wooten's representation, he was a licensed attorney in Arkansas. The concurrence is wrong. The question is not whether Clawson was subject to disbarment in Arkansas based on the disbarment in Oklahoma, but is whether his conduct in representing Wooten effectively left him without counsel. It also should be noted that the drunk driving and bankruptcy fraud issues raised in the concurrence all occurred after the initial denial of Wooten's initial Rule 37 petition on September 11, 1997, and, therefore, after his representation of Wooten.

On appeal, Wooten's case on his Rule 37 petition was reversed and remanded for the circuit court to enter written findings as required by Rule 37.3(a), and, if necessary, to hold an evidentiary hearing to make the required findings. See Wooten v. State, 338 Ark. 691, 696, 1 S.W.3d 8, 11 (1999). Attorney Alvin Schay replaced Clawson and handled the second appeal after remand on the Rule 37 proceedings. In that appeal, Wooten argued that trial counsel's "failure to put on mitigation evidence constituted ineffective assistance of counsel and left him a virtual stranger to the jury." Wooten v. State, 351 Ark. 241, 245, 91 S.W.3d 63, 66 (2002). According to Wooten, this failure to provide adequate mitigation evidence amounted to "a breakdown of the adversarial process." Id., 91 S.W.3d at 66. Wooten is again arguing that there was a breakdown in the proceedings. He also claims that his Rule 37 counsel was incompetent for failing to challenge the lack of mitigation evidence at trial. However, that issue has already been tried in the circuit court and reviewed on appeal. To say that Wooten never had his day in court on mitigation is simply incorrect. Clawson did raise and obtain a ruling in the circuit court on this issue. The appeal was handled by Schay, who has not been accused of failing to represent Wooten or of abandoning him.

The elephant in the room here is the question of why Wooten's defense was misidentification given that the overwhelming evidence identified Wooten as the perpetrator. Eyewitnesses viewed Wooten up close more than once shortly before the crimes were committed. There was pretrial identification of Wooten. Molly Porter described the characteristics of Wooten's eye-teeth in identifying him as the perpetrator. Because Wooten's defense was misidentification, rather than some other defense, such as mental incapacity, the impression is that trial counsel was not acting as effective counsel. But, Wooten did not assert the affirmative defense that he lacked the capacity to conform his conduct to the requirements of the law at the time the crimes were committed. Further, he did not assert that he was not competent to stand trial. Competence to stand trial is presumed, and the criminal defendant bears the burden of proving incompetence. Mask v. State, 314 Ark. 25, 32, 869 S.W.2d 1, 3 (1993). Thus, competence was not at issue in Wooten's trial.

The United States Court of Appeals for the Eighth Circuit concluded that trial counsel "pursued a theory of mistaken identity." Wooten v. Norris, 578 F.3d 767, 770 (8th Cir. 2009). In his concurring opinion to that decision, Judge Bright stated that "Wooten received poor representation at trial." Wooten, 578 F.3d at 786. Implicit in the Eighth Circuit's analysis is the belief that Wooten's attorney should have provided Wooten a very different defense. Failure of counsel to provide a defendant with a different defense from that which an appellate court believes would have been more effective cannot be a basis for recalling a mandate. Certainly Robbins and Lee do not support recalling a mandate based on such a basis.

It is doubtless that Wooten now regrets trying his case on misidentification, given that he was found guilty. However, the defense presented at trial was the defense that Wooten chose. A careful review of the record in this case reveals that Wooten's defense was entirely consistent from the moment he first contacted police until this case was submitted to the jury on guilt.

Wooten called law enforcement and reported that someone had shot at him. He then told law enforcement that a person who looked and dressed like him, took his six-wheeler and drove off. Wooten further told law enforcement that he heard shots and shortly thereafter found his six-wheeler. The evidence found in the six-wheeler, according to Wooten, was left there by the man who looked like him and dressed like him. Wooten required that this defense be followed at trial. Contrary to the conclusions of the Eighth Circuit Court of Appeals, the record on direct appeal reveals that counsel carefully prepared and tried the case, but that it was prepared on the theory of misidentification as Wooten required. While that may have been the weakest defense available, it is inaccurate to say that Wooten received poor representation. A review of the record on appeal reveals that counsel undertook substantial work on identification and other issues in preparation for trial. Wooten was able to, and did, participate in his defense. The idea that he was somehow left in the dark is not supported by the record.

The conclusion reached by the majority in this case is also based on the premise that because Wooten's Rule 37.5 petition was not verified, he did not know its contents; therefore, he could not know that the circuit court was not asked to address his trial counsel's alleged ineffectiveness in failing to present evidence of his mental illness and familial abuse in mitigation. This premise is faulty.

The premise that verification assures this court that the petitioner has seen the petition and confirmed agreement with its contents raises a rather thorny question that threatens longstanding precedent regarding an attorney, as an officer of the court, and his or her representation of a client. The rule is that an attorney who appears in court is presumed to represent the client, and the client bears the burden of proving this not to be the case. Shields v. QHG of Springdale, Inc., 2009 Ark. 8, at 7, 302 S.W.3d 598, 602. A rule that requires a verification to prove that the attorney is presenting in court those issues that the client wishes undermines the attorney-client relationship and the trust that this court has historically placed in attorneys as officers of the court.

Verification is a red herring. Verification by a criminal defendant in a Rule 37 proceeding is not verification that he or she read the petition and concluded that all issues that should be raised, have been raised. Rather, by verifying the Rule 37 petition, the criminal defendant makes a declaration under an oath that the statements that are contained in the petition are true. The affidavit form set out in Arkansas Rule of Criminal Procedure 37.1(c) bears this out, requiring that the petitioner state under oath that "[t]he facts in the petition are true, correct, and complete." "[V]erification is `[a] formal declaration made in the presence of an authorized officer, such as a notary public, or . . . under oath but not in the presence of such an officer, whereby one swears to the truth of the statement in the document.'" Solis v. State, 371 Ark. 590, 594, 269 S.W.3d 352, 355 (2007) (quoting Shaw v. State, 363 Ark. 156, 157, 211 S.W.3d 506, 507-08 (2005). Consistent with verification being an oath to the truthfulness of a document, in the context of postconviction proceedings, verification is required so the criminal defendant may be held criminally liable for perjury if the statements in the petition are not true. See Howard v. State, 366 Ark. 453, 236 S.W.3d 508 (2006).

Typically, where the petition for postconviction relief is not verified, the denial of relief is simply affirmed by this court based on the lack of verification. Collins v. State, 365 Ark. 411, 414, 231 S.W.3d 717, 719 (2006). But, where the death penalty has been imposed, we have remanded the case for the petitioner to file a verified petition in the circuit court and, within fifteen days, to file a supplemental record in this court. See Howard, 366 Ark. at 455, 236 S.W.3d at 509. As the court's opinion in Howard reveals, the lack of a verification alone does not result in a reversal and remand for a new Rule 37 .5 petition and hearing below. There is no support in our precedent for the idea that a mandate should be recalled and a new Rule 37 proceeding be granted in a death case due to a lack of verification by the criminal defendant.

Collins does not hold that the failure to verify the Rule 37 petition in a death case is reversible error requiring a new Rule 37 proceeding. In Collins, this court held that there was a "breakdown in the postconviction proceedings," but the failure to verify the petition was a single issue among several issues raised in that case. Collins, 365 Ark. at 415, 231 S.W.3d at 720. By the time the Rule 37.5 petition in Collins was heard below, six years had passed since the mandate issued on his direct appeal. At no time over the course of those years, despite appointment of various counsel, were qualified counsel appointed to represent Collins in a Rule 37.5 proceeding. Additionally, several petitions for postconviction relief were filed, but none were verified by Collins. Collins began filing pro se petitions, which did not comply with the rule. Thereafter, new counsel began to act on Collins behalf, but no appointment was reflected in the record. Finally, a hearing was held in 2004, but while there was a transcript of the hearing in the record, no petition relating to that hearing was contained in the record. This court concluded that in that hearing, the court was not acting on a written Rule 37.5 petition. This was confirmed by the circuit court's reference in the hearing to notes and a request that counsel draft a memorandum memorializing the hearing and the points raised. Under such a morass of multiple failures in the Rule 37.5 proceedings, this court concluded that there was a "breakdown in the postconviction proceedings." Collins, 365 Ark. at 415, 231 S.W.3d at 720. This court did not hold that, standing alone, a lack of verification in a death case requires reversal and remand for new proceedings. In Collins, this court remanded for the appointment of qualified counsel, a verified petition that complied with Rule 37.5, and permitted Collins to raise any and all issues he wished to in a new proceeding. The comparison of Wooten's case to Collins's case is not valid.

Unlike Collins and Lee, Wooten has had an opportunity to present issues on postconviction relief. Wooten offered mitigation evidence at trial. The focus of the testimony offered from the assistant jail administrator was that Wooten had adjusted to incarceration and would do well working a job within the prison system if he were sentenced to life without parole. Stanley Courtwright similarly testified that Wooten had been a good worker. A question received from the jury during penalty deliberations bears out that Wooten's attorney's conclusion the jury needed to be convinced Wooten could be safely sent to prison was borne out by the question: "If we sentence life without parole, is there any circumstance or is there any person who would have the power to parole this man (e.g. the Governor)?" Clearly, the jury's concern was that, given the irrational acts of heinous violence and murder, it did not wish for him to ever again be a free man. A strategy was undertaken. While the Eighth Circuit Court of Appeals is critical of the brevity of the mitigation evidence, it is not questioned that the decision of what to present was considered, including the credibility of the witnesses. Further, the issue of whether trial counsel was ineffective in the choice of mitigation evidence was raised by attorney Alvin Schay in Wooten's postconviction proceedings, and postconviction relief was denied.

Considering the outcome in this case, a different trial strategy might have been more effective. However, that is not a basis for the extraordinary relief sought. It cannot be the basis for recalling the mandate and providing a new Rule 37 petition. Lee clearly limited such relief to a situation where the criminal defendant was effectively left without counsel. Wooten had counsel in Clawson and in Schay. The decision reached in the present case opens the door in every death-penalty case to grant relief based on a failure of counsel to pursue a different strategy at trial. Wooten rigidly held himself and his counsel to the theory that it was another who committed the crimes. Clearly, he was unwilling to admit to the commission of the crimes, which would have been required for him to avail himself of the defense that his attorneys are now being labeled as grossly incompetent for failing to provide. Counsel certainly could not have simultaneously pursued the defenses of misidentification and lack of capacity. Wooten chose to defend on identity. The consequences of that choice are now manifest. The evidence of identification was overwhelming, and Wooten has shown no prejudice.

Today, the majority recalls a mandate and permits Wooten to file a second Rule 37 petition because, as of this date, no verified petition has been filed. A hearing and appeal will presumably follow. Porter v. State, 339 Ark. 15, 2 S.W.3d 73 (1999) is cited in support of the decision to permit a second Rule 37 petition. However, Porter is not on point. First, Porter does not concern the lack of a verification; second, the relief granted was not the opportunity to file a second Rule 37 petition. In Porter, a death-penalty case, Porter was found to have been without counsel at the time the Rule 37 petition was due, which was good cause for his failure to timely file a petition. The relief sought was to file a Rule 37 petition in the first instance.

The law on point in the present case is found in Howard. The relief due Wooten, for an unverified Rule 37 petition in a death-penalty case, is to remand for him to verify the existing petition already filed in this case and leave to file a supplemental record in this court to include that verified petition in the record on appeal. That would entitle Wooten to have his appeal from the Rule 37 hearing heard on appeal by this court and avoid a perfunctory affirmance based on the lack of verification. However, Wooten's appeal was heard by this court, so the issue of the lack of verification is moot. The majority is creating new law on verification that is cut out of whole cloth.

Wooten was convicted of capital murder, criminal attempt to commit murder, and aggravated assault for an incident that occurred over sixteen years ago. He timely filed a Rule 37 petition and then argued that his counsel at trial was ineffective for failure to pursue the correct defense and for putting on mitigation evidence that left him a virtual stranger before the jury. He alleged there was a breakdown in the Rule 37 process. Those issues have already been litigated and reviewed on appeal. The majority, in reaching its conclusion, ignores postconviction procedures and our standard of review. Certainly, this court has the inherent authority to recall a mandate. But, this case is not Robbins or Lee. It is not a case where justice requires the recalling of the mandate. I would deny the petition.

WILLS, J., joins.

Jimmy Don WOOTEN, Appellant, v. STATE of Arkansas, Appellee

Comments