                United States Court of Appeals
                       FOR THE EIGHTH CIRCUIT

                             ___________

                             No. 95-3032
                             ___________

Charles Laverne Singleton,        *
                                  *
          Appellant,              *
                                  *    Appeal from the United States
     v.                           *    District Court for the
                                  *    Eastern District of Arkansas.
Larry Norris, Director,           *
Arkansas Department of            *
Correction,                       *
                                  *
          Appellee.               *
                             ___________

                  Submitted:    February 14, 1996

                       Filed: March 12, 1997
                            ___________

Before WOLLMAN, HEANEY, and BRIGHT, Circuit Judges.
                           ___________


WOLLMAN, Circuit Judge.


     Charles Laverne Singleton appeals from the district court's1
order dismissing his petition for writ of habeas corpus.2        We
affirm.


     Singleton was sentenced to death in 1979 by the Circuit Court


     1
      The Honorable Garnett Thomas Eisele, United States District
Judge for the Eastern District of Arkansas.
     2
      In view of our holding on the merits of Singleton's appeal,
we need not decide whether, as the State contends, the recently
enacted Anti-Terrorism and Effective Death Penalty Act of 1996,
Pub. L. 104-132, 110 Stat. 1217, bars our consideration of
Singleton's current petition.
of Ashley County, Arkansas, for capital murder arising out of the
death of a storekeeper whom Singleton stabbed during the course of
a robbery.3     The sentence and conviction were affirmed by the
Supreme Court of Arkansas.       Singleton v. State, 623 S.W.2d 180
(Ark. 1981), cert. denied, 456 U.S. 938 (1982).               Singleton's
petition to proceed pursuant to Rule 37 of the Arkansas Rules of
Criminal Procedure was denied without written opinion in 1982.


       Singleton then filed a petition for writ of habeas corpus in
the United States District Court for the Eastern District of
Arkansas.     In Singleton v. Lockhart, 653 F. Supp. 1114 (E.D. Ark.
1986), the district court vacated the death penalty on the basis of
the prohibition against double counting announced by this court in
Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 474
U.S.   1013   (1985).    The   district   court   dismissed   Singleton's
contentions regarding the guilt phase of his trial and deferred the
other issues relating to the penalty phase and the death sentence.


       Both   Singleton and the State appealed from the district
court's ruling.    Following oral argument in this court but before
our decision, the United States Supreme Court decided Lowenfield v.
Phelps, 484 U.S. 231 (1988).        After supplemental briefing and
reargument, we held, based upon our contemporaneously filed opinion
in Perry v. Lockhart, 871 F.2d 1384 (8th Cir.), cert. denied, 493
U.S. 959 (1989), that Lowenfield had implicitly overruled Collins.
Accordingly, we reversed the district court's ruling setting aside
the death sentence and ordered that the sentence be reinstated.        We
affirmed the district court's denial of Singleton's guilt phase
contentions.     Singleton v. Lockhart, 871 F.2d 1395 (8th Cir.),


        3
       Singleton was convicted under Ark. Stat. Ann. § 41-1501.
That section has been codified as Ark. Code Ann. § 5-10-101(a)
(Supp. 1995).

                                   -2-
cert. denied, 493 U.S. 874 (1989).


     On      remand,    the    district    court       took    up    the     matter         of
Singleton's remaining contentions.              On July 12, 1990, the district
court denied those claims and dismissed the petition.                      Singleton v.
Lockhart (E.D. Ark. PB-C-82-165).                 On appeal, we affirmed the
dismissal.       Singleton v. Lockhart, 962 F.2d 1315 (8th Cir.), cert.
denied, 506 U.S. 964 (1992).


     In December of 1992, Singleton filed an action in the Circuit
Court   of     Jefferson      County,    Arkansas,       alleging         that    he    was
incompetent to be executed and that he had not been afforded the
procedural guarantees outlined in Ford v. Wainwright, 477 U.S. 399
(1986).


     While the state court action was pending, the United States
Supreme Court granted certiorari in Tennessee v. Middlebrooks, 507
U.S. 1028 (1993), a case that would again have presented the issue
of   double      counting     in   capital      sentencing       cases.           Shortly
thereafter, an execution date was set for Singleton.


     Singleton then filed the present petition, alleging both the
double counting and the Ford v. Wainwright claims.                    In view of the
pending    state     court    action     and    what   it     assumed      would       be    a
forthcoming decision in Tennessee v. Middlebrooks, the district
court     held    the   petition    in    abeyance      while       the    state       court
litigation proceeded.           In Singleton v. Endell, 870 S.W.2d 742
(Ark.), cert. denied sub nom. Singleton v. Norris, 115 S. Ct. 419
(1994), the Supreme Court of Arkansas rejected Singleton's Ford v.
Wainwright       claims.      Thereafter,       the    district      court       held   two
hearings on Singleton's present petition.                   The first, held on May
17, 1995, related to Singleton's competency to be executed.                             The
second, relating to Singleton's claim of actual innocence, was held

                                          -3-
on July 24, 1995.


     The district court found that Singleton, who was voluntarily
taking antipsychotic medication, was competent.              The district
court, noting that the Supreme Court had dismissed as improvidently
granted the writ of certiorari in Tennessee v. Middlebrooks, see
510 U.S. 124 (1993), rejected Singleton's double counting and
actual innocence claims.      It is from the denial of his claim of
unconstitutional    double   counting   that   Singleton    now   appeals.
Although he raises the possibility that he may in the future have
a claim of incompetency, Singleton concedes that he currently has
no support for such a claim in view of his voluntary ingestion of
antipsychotic medication.       Singleton does not appeal from the
denial of his claim of actual innocence.


     Singleton asks that we reconsider our decision in Perry that
Lowenfield   v.   Phelps   implicitly   overruled    our   earlier   double
counting holding in Collins v. Lockhart.            He contends that the
Arkansas capital murder statute does not provide the narrowing
function mandated by the Constitution.         We as a panel are not at
liberty to overrule the established law of the circuit, however,
see, e.g., Snell v. Lockhart, 14 F.3d 1289, 1305 (8th Cir.), cert.
denied, 115 S. Ct. 419 (1994), and thus Perry must stand as our
court's interpretation of the Arkansas capital murder statute.          See
Wainwright v. Lockhart, 80 F.3d 1226, 1231 (8th Cir.), cert.
denied, 117 S. Ct. 395 (1996), petition for cert. filed, No. 96-
7351 (U.S. Jan. 7, 1997); Ruiz v. Norris, 71 F.3d 1404, 1408 (8th
Cir. 1995), cert. denied, 117 S. Ct. 384 (1996); Snell v. Lockhart,
14 F.3d at 1305.




                                  -4-
     Following the submission of this appeal, the Supreme Court of
Arkansas filed its opinion in Brown v. State, 929 S.W.2d 146 (Ark.
1996), which holds that second-degree murder is not a lesser
included offense of capital felony murder.   We granted Singleton's
motion that the parties be permitted to file supplemental briefs on
the question of the impact of the holding in Brown on the narrowing
function of the Arkansas capital murder statute.


     In Wainwright v. Norris, No. 94-3525EA (8th Cir. Jan. 2, 1997)
(order), and in Ruiz v. Norris, 104 F.3d 163 (8th Cir. 1997),
petition for cert. filed, No. 97-7352 (Jan. 7, 1997), we held that
Brown does not read out of section 5-10-101(a) the narrowing
element that the killing be done "under circumstances manifesting
extreme indifference to the value of human life."       Wainwright,
order at 2; Ruiz, 104 F.3d at 165-66.   Because we see no material
differences between the circumstances of Singleton's conviction and
those in Wainwright and Ruiz, we reject Singleton's contention that
Brown eviscerates the basis of our holding in Perry that the
Arkansas capital felony murder statute adequately narrows the class
of death-eligible murderers.


     As indicated above, Singleton makes no claim that he is
currently incompetent to be executed.    Accordingly, the district
court's ruling on that stands unchallenged and is thus affirmed.
Our ruling on this issue does not foreclose Singleton from raising
a future claim of incompetence based upon conditions different from
those that led to the district court’s ruling in the present case,
subject, of course, to whatever procedural objections the State may
raise to such a claim.


     The order dismissing the petition for writ of habeas corpus is
affirmed.


                               -5-
-6-
HEANEY, Circuit Judge, concurring.



                                       I.


     Sadly, I am compelled to concur in the result of this case.
With respect to the double-counting issue raised by Singleton, I
too see no material difference between his claim and this court's
recent decisions in Ruiz v. Norris, No. 94-3402EA (8th Cir. Jan. 3,
1997) and Wainwright v. Norris, No. 94-3525EA (8th Cir. Jan. 2,
1997) (order).       I believe that the Eighth Amendment's narrowing
requirement prohibits the use of a pecuniary-gain motive as the
sole aggravating circumstance to justify a death sentence in a
robbery-murder case.       Absent further review of this issue by either
our court en banc or the United States Supreme Court, however, my
hands are tied.


     Although I recognize that the issue is not before us at this
time,   I   also    feel   compelled    to    address      briefly   Singleton's
competency to face execution in light of the substantial record
presented on this point.        While the record is unclear as to whether
Singleton consented to the initiation of his treatment with anti-
psychotic and antidepressant medications, there is no question that
he will not voluntarily stop taking his medications, even for the
limited purpose of assessing his competency without the drugs and,
in his own words, "not even to save my life."               The district court
determined that under the influence of his medications Singleton is
competent to be executed and Singleton does not appeal that issue.
Apparently,    no    adequate    record      exists   to    assess   Singleton's
competency without his medications.             The question whether states
that impose the death penalty may execute a person whose competence
has been chemically-induced (for reasons other than to expedite the
execution) is problematic and unresolved.             At a minimum, I want to

                                       -7-
make clear that nothing in this panel's opinion should be construed
to foreclose Singleton from making a future claim that he is
incompetent to be executed.


                                 II.


     Finally, although I am bound to uphold the law, I write
separately to add my voice to those who oppose the death penalty as
violative of the United States Constitution.           My thirty years'
experience on this court have compelled me to conclude that the
imposition of the death penalty is arbitrary and capricious.          At
every stage, I believe the decision of who shall live and who shall
die for his crime turns less on the nature of the offense and the
incorrigibility of the offender and more on inappropriate and
indefensible   considerations:           the   political   and   personal
inclinations of prosecutors; the defendant's wealth, race, and
intellect; the race and economic status of the victim; the quality
of the defendant's counsel; and the resources allocated to defense
lawyers.   Put simply, this country's unprincipled death penalty
selection process is inconsistent with fundamental principles of
due process.


     The importance of a defendant's economic status in death-
eligible cases cannot be overstated particularly in light of the
direct correlation between a defendant's ability to pay and the
competency of his legal representation.        Wealth enables a defendant
to employ the best lawyers at the earliest stages in the proceeding
thereby affording the best chance of avoiding the death penalty.
The government spares no expense in prosecuting capital cases.
Only experienced and well-compensated defense lawyers, with the
assistance of qualified investigators and experts, can be expected
to adequately defend such cases.    In reality, lawyers appointed by
the states to defend capital cases for indigent defendants are

                                   -8-
often so underqualified, underfunded, and undercompensated that
trials are mere shams of an adversarial proceeding.                  Take the case
at bar:         Singleton's trial counsel was appointed under Arkansas law
and received, according to appellant's counsel at oral argument, a
total of $350 compensation plus $100 for investigation.4                   Without
adequate funding, even a qualified and experienced criminal lawyer
is constrained from building a credible defense and establishing
the    presence       of   mitigating     factors   which    weigh    against    the
imposition of death.         Too often, only unexperienced and unqualified
lawyers will take appointments to defend poor defendants and the
resulting representation is grossly inadequate.5               This same pattern
is    repeated      with   respect   to   the   legal   services     available   to
indigent persons at the appellate and post-conviction stages of
capital cases.


       Adding to the arbitrariness inherent in the system is our
society's deeply-rooted problem of racial bias.               Studies have shown

        4
       Subsequent to Singleton's trial, the                 Arkansas statute was
amended to increase the attorney's fee cap                   in capital cases to
$1000. See Ark. Code. Ann. 16-92-108 (1987).                 Later still in 1993,
the state legislature removed the cap on                      fees for attorneys
appointed to represent indigent persons. 1993               Ark. Acts 1193 § 20.
            5
        As one legal expert reports, the various approaches to
indigent defense among the states share several common features:

       They evince the gross underfunding that pervades indigent
       defense. They are unable to attract and keep experienced
       and qualified attorneys because of lack of compensation
       and overwhelming workloads. Just when lawyers reach the
       point there they have handled enough cases to begin
       avoiding basic mistakes, they leave criminal practice and
       are replaced by other young, inexperienced lawyers who
       are even less able to deal with the overwhelming
       caseloads.

Stephen B. Bright, "Counsel for the Poor: The Death Sentence Not
for the Worst Crime but for the Worst Lawyer," 103 Yale L. R. 1835,
1851 (1994) (footnote omitted).

                                          -9-
that persons who kill white victims are sentenced to death more
often than persons who kill black victims and that, in some
jurisdictions, black defendants receive the death penalty more
often than do white defendants.    Systematic racial discrimination
in capital sentencing is one of the reasons cited by the American
Bar Association in support of its recent resolution calling for a
referendum on carrying out death sentences in any state until such
time as adequate safeguards are in place to ensure fair and
impartial administration and the risk of killing innocent persons
can be minimized.   Resolution No. 107 of the House of Delegates,
approved Feb. 3, 1997 (A.B.A. Sec. Indiv. Rights Resp. Rep. at 12-
14). As Justice Blackmun noted in his eloquent dissent on the day
he vowed to never again "tinker with the machinery of death":


     Even under the most sophisticated death penalty statutes,
     race continues to play a major role in determining who
     shall live and who shall die. Perhaps it should not be
     surprising that the biases and prejudices that infect
     society generally would influence the determination of
     who is sentenced to death, even with the narrower pool of
     death-eligible defendants selected according to objective
     standards.

Callins v. Collins, 114 S. Ct. 1127, 1135 (1994) (Blackmun., J.,
dissenting).


     Moreover, I am not convinced that we have in place adequate
legal procedures to ensure that capital sentences are not handed
down in violation of the law.   Recent changes in our federal habeas
corpus rules have only compounded the difficulty of the federal
courts to adjudicate federal claims in capital cases.   As a result
of this complex legal morass, many persons sentenced to death have
legitimate constitutional claims that will never be addressed on
the merits by any court.



                                -10-
     In sum, although I am compelled to adhere to the law, I
nonetheless   announce    my     personal   view    that   this   nation's
administration    of   capital    punishment   is    simply   irrational,
arbitrary, and unfair.   The problems are inherent in the enterprise
itself.   Because I am confident that no death penalty system can
ever be administered in a rational and consistent manner, I do not
explore at this time whether the death penalty itself (in some
"perfect" application) violates the Eighth Amendment's prohibition
against cruel and unusual punishment in that it fundamentally
denies the humanity and intrinsic worth of the men and women whom
the state puts to death.


     A true copy.


          Attest:


                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   -11-
