                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-2103
                                    ___________

Terrick Terrell Nooner,               *
                                      *
            Appellant,                *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Eastern District of Arkansas.
Larry Norris, Director, Arkansas      *
Department of Correction,             *
                                      *
            Appellee.                 *
                                 ___________

                              Submitted: January 12, 2004
                                 Filed: April 4, 2005
                                  ___________

Before WOLLMAN, LAY, and BYE, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

      Terrick Terrell Nooner appeals from the district court’s dismissal of his petition
for writ of habeas corpus under 28 U.S.C. § 2254. The district court found Nooner
competent to withdraw his petition and, in the alternative, held that Nooner’s
substantive claims were without merit. Although we conclude that the district court
erred in finding that Nooner’s motion to dismiss his petition was knowing and
voluntary, we affirm the rejection of the petition on the merits.1


      1
       We deny Nooner’s pro se motions dated December 27, 2004.
                                           I.
       Scot Stobaugh, a college student, was washing clothes at a Little Rock
laundromat at approximately 1:30 a.m. on March 16, 1993. Nooner approached
Stobaugh in an apparent robbery attempt and shot him seven times at close range. A
jury convicted Nooner of capital murder. During the penalty phase of his trial, the
jury heard testimony from several witnesses, including Stobaugh’s mother, who
described the impact of Scot’s death on his family. The jury also heard mitigation
testimony from Nooner’s stepfather. The jury found two aggravating circumstances
(that Nooner had previously committed another felony, an element of which was the
use or threat of violence, and that the murder was committed for pecuniary gain) and
no mitigating circumstances. Nooner was sentenced to death by lethal injection.

       Nooner appealed to the Arkansas Supreme Court, which affirmed his
conviction and death sentence. Nooner v. State, 907 S.W.2d 677 (Ark. 1995).
Nooner then sought post-conviction relief in the state courts. The Arkansas Supreme
Court affirmed the trial court’s denial of post-conviction relief. Nooner v. State, 4
S.W.3d 497 (Ark. 1999). Nooner’s attorney filed a subsequently amended petition
for writ of habeas corpus with the district court. While the petition was pending,
Nooner, acting pro se, requested that the district court dismiss his petition. After the
district court rejected this request, we directed the district court to reexamine its
decision and determine whether Nooner was competent to withdraw his petition.
After hearing testimony from three mental-health experts who had examined Nooner,
the district court determined that Nooner was competent to withdraw his petition and
granted his request. The district court also addressed the merits of Nooner’s petition
and concluded that his stated claims were without merit.

      Nooner, through counsel, now appeals from the district court’s competency
determination. Nooner also raises three collateral challenges to his sentence: (1) that
the admission of victim impact evidence pursuant to Arkansas’ victim impact statute

                                          -2-
violated the ex post facto clause of the Federal Constitution; (2) that Arkansas’ victim
impact statute is constitutionally infirm; and (3) that Nooner’s trial counsel rendered
ineffective assistance by failing to investigate and present mitigating evidence at
sentencing.

                                           II.
       We first examine the district court’s factual finding that Nooner was competent
to withdraw his habeas petition, which we review for clear error. Taylor v.
Bowersox, 329 F.3d 963, 968 (8th Cir. 2003). We evaluate Nooner’s competency to
withdraw his habeas petition as we would evaluate competency to waive appeal of a
state post-conviction proceeding because both actions bar further federal court
review. Our inquiry is two-fold. First, we examine whether the defendant has the
rational ability to understand the proceedings. O’Rourke v. Endell, 153 F.3d 560,
567-68 (8th Cir. 1998) (quoting Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993)).2
 Second, we consider whether the defendant’s waiver was knowing and voluntary,
i.e., whether the defendant actually understood the significance and consequences of
his waiver and whether the waiver was uncoerced. Id.




      2
       The United States Supreme Court first addressed competency to waive habeas
corpus rights in Rees v. Peyton, 384 U.S. 312 (1966) (per curiam). The standard in
Rees was clarified as a two-pronged inquiry in Godinez v. Moran, 509 U.S. 389
(1993); accordingly, we cite the Godinez standard as discussed in O’Rourke v.
Endell, 153 F.3d 560, 567 (8th Cir. 1998).

                                          -3-
                                      A.
       Dr. Richart L. DeMier of the United States Medical Center in Springfield,
Missouri, evaluated Nooner and found him not competent.3 Dr. DeMier based his
conclusion on two subjective indicators: Nooner’s disorganized speech (which
presented only when Nooner discussed his legal situation) and Nooner’s illogical
belief that he would be exonerated by a “hidden or removed lawsuit” after he
appeared before the clemency board. Dr. DeMier testified, however, that he did not
hold his opinion with his usual degree of confidence because Nooner was
malingering to some extent.

       Dr. Charles Mallory and Dr. Oliver W. Hall III of the Arkansas State Hospital
also evaluated Nooner, and both of these doctors found him competent.4 Dr. Mallory
confirmed Dr. DeMier’s impression of Nooner’s strange speech patterns, and, like Dr.
DeMier, he observed that they occurred only when Nooner discussed his legal
situation.5 Dr. Mallory also noted that Nooner realized that his ideas were strange,
an uncommon awareness in most delusional people. Both Dr. Mallory and Dr. Hall
agreed that Nooner was malingering.



      3
       Dr. DeMier testified that he conducted personal observations of Nooner,
performed nine psychological tests on him, and reviewed numerous documents.
      4
       Dr. Mallory testified that he conducted personal observations of Nooner,
reviewed his prison records, and reviewed Dr. DeMier’s report and deposition
testimony. Dr. Hall testified that he performed a similar review.
      5
       Dr. DeMier testified that Nooner “seemed either unable or unwilling to discuss
[the competency issues] without spontaneously interjecting lots of ideas about his
various delusional beliefs.” Mot. Hrg. Tr. at 25. Dr. Mallory provided an example:
“[Nooner] said, ‘Dr. DeMier, he said I was delusional, seeing things that aren’t true.
I don’t know if he found me competent. I got air bubbles in my body.’” Id. at 43.
Dr. Mallory testified that this “rational start and irrational ending” was “highly
unusual, if not improbable in a person with genuine delusional illness.” Id. at 44.

                                         -4-
       From the reports of the doctors, their testimony at the competency hearing, and
its own observations, the district court concluded that Nooner was competent, finding
that he was able to “make a rational choice among his options” and understood “his
legal positions and options available to him.”

                                            B.
       We find no clear error in the district court’s determination that Nooner had the
ability to understand his request to withdraw his petition. All three experts concluded
that Nooner was feigning some aspects of mental illness. All three agreed that
Nooner’s odd speech patterns manifested only when he spoke of his legal situation.
Their only disagreement concerned whether these speech patterns were evidence of
a mental condition that prevented Nooner from being aware of his legal position and
making rational choices among his legal options: Dr. DeMier found evidence of a
delusional thought process; conversely, Dr. Mallory and Dr. Hall thought that
Nooner’s speech patterns were further evidence of his malingering. We conclude that
the district court reasonably assessed the strengths and weaknesses of the conflicting
expert testimony. See Smith v. Armontrout, 812 F.2d 1050, 1058 (8th Cir. 1987).

                                            C.
       The question remains whether Nooner knowingly and voluntarily sought
withdrawal of his petition. O’Rourke provides some indicia of when a waiver is not
knowing and voluntary. 153 F.3d at 568. Specifically, we observed in O’Rourke
that: (1) the petitioner’s testimony failed to demonstrate that he fully understood the
consequences of his waiver; (2) the court never explained to the petitioner the
significance of his waiver; and (3) no one questioned the petitioner as to his
understanding of the possible results of a successful appeal. Id. We noted that “the
record as a whole demonstrates that it cannot be said with any satisfactory degree of
confidence that O’Rourke’s waiver of his Rule 37 appeal was knowing and
voluntary.” Id. at 569.



                                         -5-
        The circumstances that we identified in O’Rourke are present here. Moreover,
in O’Rourke, the court specifically asked the defendant whether he desired to be
executed and the defendant stated that he did. Id. at 568. See also Smith v.
Armontrout, 812 F.2d 1050, 1053 (8th Cir. 1987) (Smith testified that he wanted to
be executed because “he hated confinement and preferred death to life
imprisonment”). Here, the district court made no such inquiry, and two doctors
testified that Nooner did not want to be executed.6 Nooner believed that withdrawing
his habeas petition would trigger a series of events (the setting of an execution date
and his appearance before a clemency board) that would result in a “hidden or
removed lawsuit” that would exonerate him.7 In other words, Nooner believed,
however illogically, that withdrawing his petition would lead to freedom, not death.
Under these circumstances, we conclude that the record does not support the district
court’s finding that Nooner’s withdrawal was knowing and voluntary.

                                           III.
       Although Nooner’s habeas petition should not have been dismissed, we agree
with the district court that the petition fails on the merits. All three issues raised in
the petition were adjudicated in state court. Accordingly, we must deny the petition
unless the state court disposition “resulted in a decision contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the


      6
       Dr. DeMier testified that “What [Nooner] told me very clearly is that he never
asked to be executed. He did not want to be executed.” Mot. Hrg. Tr. at 19. Dr.
Mallory testified similarly. Id. at 58 (“He’s told Dr. Simon, ‘I don’t want to die.’
And he’s indicated that in other ways, too.”).
      7
       Dr. DeMier testified that Nooner was unable “to give a rational explanation
for what he thought would happen” at the clemency hearing. Mot. Hrg. Tr. at 27. “It
was almost as though he were employing what we sometimes call magical thinking.
That’s a trait you see in two and three year-olds. They think that because they want
something to happen, it will happen. And he wasn’t able to tell me in any detail or
in any what that I can understand what would transpire there.” Id.

                                          -6-
Supreme Court of the United States” or “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the state
court proceedings.” 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362,
405-06 (2000). When a state court correctly identifies the controlling Supreme Court
authority, we address the “unreasonable application” clause of section 2254(d). See
Colvin v. Taylor, 324 F.3d 583, 587 (8th Cir. 2003). We observed in Colvin that “the
Supreme Court has repeatedly stressed that an unreasonable application is different
from an incorrect one.” Id. We may not grant a writ of habeas corpus unless the
relevant state court decision is both wrong and unreasonable. Id.

                                            A.
       Nooner first argues that the Arkansas victim impact evidence statute, as
applied in his case, is an impermissible ex post facto law. U.S. Const. art. I, § 10.
The Arkansas legislature enacted Ark. Code. Ann. § 5-4-602(4) in response to the
United States Supreme Court’s decision in Payne v. Tennessee, 501 U.S. 808 (1991),
which allowed admission of victim impact evidence during the sentencing phase of
a capital trial. The statute was enacted after Stobaugh’s murder but prior to Nooner’s
trial.

       It is well settled that the “ex post facto [clause] does not give a criminal a right
to be tried, in all respects, by the law in force when the crime charged was
committed.” Dobbert v. Florida, 432 U.S. 282, 293 (1977). Rather, a change in the
law that is “procedural ... is not ex post facto.” Id. “Statutes which simply enlarge
the class of persons who may be competent to testify in criminal cases are not ex post
facto in their application to prosecutions for crimes committed prior to their passage.”
Hopt v. Territory of Utah, 110 U.S. 574, 589-590 (1884).

      The Tenth Circuit has held that victim impact evidence “does not violate the
ex post facto prohibition . . . because it neither changes the quantum of proof nor
otherwise subverts the presumption of innocence.” Neill v. Gibson, 278 F.3d 1044,

                                           -7-
1053 (10th Cir. 2001). Similarly, the Fourth Circuit has concluded that admission of
victim impact evidence in a sentencing conducted prior to Payne was not prejudicial
because the rule in Payne would properly apply at any resentencing. Washington v.
Murray, 952 F.2d 1472, 1480 (1991). We agree with our sister circuits and conclude
that the Arkansas victim impact evidence statute is procedural in nature and does not
offend the ex post facto clause.8 Arkansas’s statute does not alter the potential
penalty faced by any defendant, nor does it alter the state’s burden of proof. Cf.
Payne, 501 U.S. at 825 (“Victim impact evidence is simply another form or method
of informing the sentencing authority about the specific harm caused by the crime in
question, evidence of a general type long considered by sentencing authorities.”).
Accordingly, the state court’s determination that the Arkansas statute does not violate
the ex post facto clause was not contrary to Supreme Court precedent.

                                       B.
       Nooner argues that without guidance to the jury on how to consider victim
impact evidence, the Arkansas statute is void for vagueness, violates the Eighth
Amendment, and otherwise offends due process. We evaluate vagueness challenges
to statutes not involving First Amendment rights based on the particular facts of the
case. U.S. v. Maull, 806 F.2d 1340, 1344 (8th Cir. 1986).

      The Constitution does not require that a state ascribe specific weight to
aggravating or mitigating factors in a capital sentencing proceeding. Harris v.

      8
        In State v. Metz, 162 Or.App. 448 (Or. Ct. App. 1999), petition for review
denied, 330 Or. 331 (Or. 2000), the question was whether a change in the state’s
victim impact evidence statute was “a general change in evidentiary law that affects
the way something is proved, but that does not affect the nature of what is proved ....”
Id. at 457. The court held that because the statutory change made victim impact
evidence relevant where it previously had not been, the revision “changed the
fundamental nature of the question the jury was to answer” and therefore violated the
ex post facto provision of the Oregon Constitution. Id. at 460. We decline to extend
this reasoning to our interpretation of the United States Constitution.

                                          -8-
Alabama, 513 U.S. 504, 512 (1995). “There is nothing unfair about allowing the jury
to bear in mind the harm [caused by the crime] at the same time as it considers the
mitigating evidence introduced by the defendant.” Payne, 501 U.S. at 826. Here, the
evidence admitted against Nooner is the same kind of evidence admitted in Payne: a
family member of the victim explaining to the jury the impact the murder has had on
the victim’s family. Nooner has failed to show how this testimony differs from that
in Payne or how it unduly prejudices him. He fares no better in his due process and
Eighth Amendment arguments, and we thus conclude that the state court’s rejection
of these arguments comports with Supreme Court precedent.

                                         C.
       Finally, Nooner argues that his two trial counsel were ineffective in failing to
develop and present mitigation evidence at sentencing. Nooner contends that his
counsel: (1) never sought to have a psychiatric expert appointed; (2) never obtained
school or hospital records; and (3) never interviewed Nooner’s family members,
social workers, or foster parents. The district court, presented with the same three
alleged deficiencies, held that Nooner had procedurally defaulted on all claims that
counsel “failed to gather, develop, and present mitigation evidence” except for the
claim related to “the psychiatric evidence.”9 We agree with the district court, and
thus we address only Nooner’s allegation that counsel failed to pursue psychiatric
testimony or a mental examination.

      The Arkansas Supreme Court correctly identified Strickland v. Washington,
466 U.S. 668 (1984), as the controlling authority for ineffective assistance of counsel
claims. Strickland requires that an ineffective assistance of counsel claim establish




      9
       The district court’s analysis on the merits made clear that “psychiatric
evidence” referred to trial counsel’s decision not to pursue or offer psychiatric
testimony.

                                         -9-
both deficient performance and prejudice to require reversal of a death sentence. Id.
at 687.

                                            1.
       Our first inquiry is whether the Arkansas Supreme Court unreasonably applied
Strickland in concluding that trial counsel were not ineffective. When strategic
choices are made “after less than complete investigation [they] are reasonable
precisely to the extent that reasonable professional judgments support the limitations
on investigation.” Id. at 690-91. A particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments. Id. at 691. Accordingly, our review
under 28 U.S.C. § 2254 of a state court’s application of Strickland is twice
deferential: we apply a highly deferential review to the state court decision; the state
court, in turn, is highly deferential to the judgments of trial counsel.

       The Arkansas trial court held a multi-day hearing on Nooner’s ineffective
assistance of counsel claims (the “Rule 37 hearing”), the transcript of which spans
269 pages. When asked whether she had presented mitigating circumstances to the
jury, Lea Ellen Fowler, one of Nooner’s trial counsel, responded:

      [T]hat was something that we looked long and hard to find things and
      . . . as the Court is aware, there are some statutory criteria and Mr.
      Nooner did not meet any of those criteria. He was not from a broken
      home. Even though the . . . man that raised him was not his biological
      father, that was the man that had raised him from, I believe, the time that
      he was two (2) years old. And . . . his parents had done all they could
      to provide for him. He didn’t suffer from alcoholism10 or drug abuse, or
      you know, any of those standard mitigating circumstances. The fact that

      10
        Although the record reflects that Nooner had a problem with alcohol abuse
during his teenage years, this fact was presented to the jury during the penalty phase
through testimony from Nooner’s stepfather.

                                         -10-
      he spent time in Rivendell; I believe that we went into that. I believe
      that his parents testified about the troubles that he had had in school and
        . . . any possible circumstance that could be raised.

Rule 37 Hearing Transcript at 13-14 (Testimony of Lea Ellen Fowler). Nooner cross-
examined Ms. Fowler,11 asking her whether the records from Rivendell were
“disclosed in the closing arguments for mitigating circumstances.” Id. at 25:19-21.
 She responded:

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

Id. at 25:22-26:5 (emphasis added).

       The conclusions of the doctors at Rivendell are summarized in a five-page
document (the “Report”) that was generated when Nooner was discharged from the
facility in 1986. A copy of the Report was introduced during the Rule 37 hearing and
was included as part of the record in Nooner’s appeal to the Arkansas Supreme Court.
The Report uses mostly non-clinical terms to describe relatively straightforward
observations. It states that Nooner was “referred [to Rivendell] for increasing
oppositional behavior, running away from home, and violent outbursts.” According
to the Report, Nooner’s parents had informed the staff at Rivendell that Nooner had



      11
         After testimony from Nooner’s witnesses, Nooner fired his appointed counsel
and was permitted to proceed pro se for the duration of the hearing. We agree with
the district court’s determination that the record was fully developed on the relevant
claims at the time that Nooner undertook his self-representation.

                                         -11-
been in “numerous fights” and Nooner’s parents “felt that he was rude, disruptive,
disobedient, and disrespectful.”

      At the time of his admission to Rivendell, Nooner’s mood “was one of mild
depression, indignation, anger, and resentment.” Emotionally, he appeared to be
“very narcissistic, egocentric, and self-centered with very little feeling or regard for
the welfare of others.” Nooner told the staff at Rivendell that he “usually resort[ed]
to aggression and anger to get his way when things [didn’t] work out.”

      Although the Report suggested that Nooner had “considerable family
dysfunction, as evidenced by multiple family conflicts” and that he was “somewhat
depressed,” there is no indication that he had any mental or psychological problems.
The Report also made clear that Nooner “did not take any psychotropic medication.”

      The Rivendell Report, like the testimony at the Rule 37 hearing, supports trial
counsels’ judgment not to pursue psychiatric testing for purposes of mitigation. The
Arkansas Supreme Court’s conclusion that these judgments did not render counsel
ineffective was not an unreasonable application of Strickland.

                                          2.
       Even if we were to determine that the Arkansas Supreme Court unreasonably
applied Strickland in concluding that Nooner’s trial counsel were not ineffective, we
could not grant the habeas petition unless we determined that Nooner’s constitutional
rights were violated. 28 U.S.C. § 2254(a). To reach this conclusion, we would have
to determine that Nooner has satisfied the prejudice prong of Strickland. See Wiggins
v. Smith, 539 U.S. 510, 525 (2003) (“In order for counsel’s inadequate performance
to constitute a Sixth Amendment violation, petitioner must show that counsel’s
failures prejudiced his defense.”). Because the Arkansas Supreme Court never
reached the prejudice issue, we review that issue de novo. See id. at 534 (“. . . our


                                         -12-
review is not circumscribed by a state court conclusion with respect to prejudice, as
neither of the state courts below reached this prong of the Strickland analysis”).

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

       As to Nooner’s “difficult childhood,” the record reflects that Nooner’s mother
was acquitted of a single charge that she had physically abused Nooner, that Nooner
had been placed in several foster homes, that Nooner had behavioral problems, that
Nooner had a tenth grade education, and that Nooner had developed a problem with
alcohol abuse in his teenage years. Nooner’s stepfather testified as to all of this
information during the penalty phase. Nooner has offered no evidence about his
childhood that was not presented to the jury but that would have been uncovered
through psychological testing. Cf. Williams, 529 U.S. at 395-96 (counsel failed to
present evidence to jury that Williams’s parents had been imprisoned for the criminal
neglect of Williams and his siblings; that Williams had been severely and repeatedly
beaten by his father; that Williams had been placed in an abusive foster home; and
that Williams was “borderline mentally retarded”); Wiggins, 539 U.S. at 516-17
(counsel failed to present evidence to the jury that Wiggins’s alcoholic mother
frequently left him and his siblings alone for days, forcing them to beg for food and
to eat paint chips and garbage; that Wiggins’s mother had sex with men while her
children slept in the same bed and that she had once forced Wiggins’s hand against
a hot stove, causing him to be hospitalized; that Wiggins was physically abused by
two foster mothers, raped by a foster father, and gang-raped by boys in another foster
home; and that Wiggins was sexually abused by a supervisor in his Job Corps
program).




                                         -13-
       It is similarly difficult to ascertain what “psychiatric and mental problems”
were not presented to the jury. The jury heard testimony from Nooner’s stepfather
that Nooner spent several months at Rivendell. The Rivendell Report indicates that
Nooner was not diagnosed with any psychiatric disorder and that he never received
psychotropic medication during his stay. The Rule 37 transcript contains several
oblique references to a stay in a second hospital, Bridgeway, but Nooner has offered
no details about this second hospitalization and there is no indication that it was the
result of psychiatric or mental problems. As to Nooner’s behavioral and emotional
problems, the Rivendell Report indicated that Nooner was narcissistic, egocentric,
self-centered, and “somewhat depressed.” During his stay at Rivendell, Nooner
showed a “dramatic” response to treatment and a “marked” ability to overcome his
behavioral problems. There is simply no evidence in the Rivendell Report or
elsewhere to support Nooner’s bare allegations that he suffered from psychiatric and
mental problems.

      We conclude that the state court’s disposition of Nooner’s ineffectiveness
claim was not an unreasonable application of Strickland.

      The judgment dismissing the petition for habeas corpus on its merits is
affirmed.

LAY, Circuit Judge concurring in part and dissenting in part.

       I concur with Part II of Judge Wollman’s opinion finding that Terrick Nooner’s
request to withdraw his habeas petition is not knowing and voluntary. I further
concur that Arkansas’s victim impact is constitutional. However, I respectfully
dissent from Part III-C of the majority’s opinion regarding Nooner’s ineffective
assistance of counsel claim.




                                         -14-
       As part of their preparation for the trial, Nooner’s two appointed counsel
learned that Nooner experienced a turbulent and troubled childhood which included
child abuse, foster home placements, severe emotional and behavioral problems,
school problems, substance abuse, and two hospitalizations at psychiatric institutions
during Nooner’s early teenage years. Based on their observations of Nooner’s
behavior, Nooner’s attorneys determined that he was competent to stand trial and did
not request a competency evaluation. Likewise, relying upon their own observations
of Nooner’s current behavior and their reading of a six-year old discharge report from
one of the psychiatric institutions, Nooner’s attorneys did not request assistance of
a psychiatric expert to examine Nooner for the purpose of preparing mitigating
evidence during the penalty phase of the trial.

        In the state court, the victim’s mother testified during the penalty phase of the
trial and described the impact the murder had on her family. Nooner’s stepfather also
gave testimony about Nooner’s troubled childhood, and to a lesser extent, about
Nooner’s emotional problems. Nooner’s trial counsel attempted to persuade the jury
that severe stress and his young age of twenty-two mitigated the crime. The jury
heard no psychiatric evidence.

       Nooner presented twelve independent claims of ineffective assistance of
counsel at his post-conviction proceeding in state district court. Among other things,
Nooner claimed ineffective assistance because his attorneys failed to request a
psychiatric evaluation to assess his competency to stand trial (the so-called “Act III”
evaluation). Nooner also included a similar but independent claim of ineffective
assistance based on his attorneys’ failure to request a psychological examination for
the purpose of developing and presenting mitigating evidence during the penalty
phase of his trial (the so-called “mitigation evaluation”).

      In Nooner’s appeal to the Arkansas Supreme Court, Nooner abandoned his
claim of ineffective assistance of counsel based on failure to request the Act III

                                          -15-
evaluation, but pursued his claim of ineffective assistance of counsel based on a
failure to request a mitigation evaluation. Then in his federal habeas petition, Nooner
asserted five independent claims of ineffective assistance of counsel including failure
to secure a mitigation evaluation. The district court held that, except for the failure
to secure a mitigation evaluation, Nooner had procedurally defaulted on all of his
ineffective assistance of counsel claims. Nooner now appeals only that portion of his
ineffective assistance claim related to the mitigation evaluation. I agree with the
district court that Nooner procedurally defaulted on all of his ineffective assistance
claims except for the one based on mitigation evaluation.12

       “An ineffective assistance claim has two components: A petitioner must show
that counsel’s performance was deficient, and that the deficiency prejudiced the
defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003). To establish deficient
performance, a petitioner must demonstrate that counsel’s representation “fell below
an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668,
688 (1984). In order to establish prejudice, “[t]he defendant must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine the confidence in the outcome.” Id. at 694.



      12
          The defaulted claim of ineffective assistance based on the attorneys’ failure
to fully investigate Nooner’s troubled childhood may share a factual background with
the claim of ineffective counsel based on a failure to secure a psychiatric expert to
present mitigating evidence at the penalty phase. For instance, at a new sentencing
hearing, a psychiatric expert might delve into Nooner’s troubled childhood and testify
about those experiences in an attempt to mitigate the sentence. Such testimony would
be wholly appropriate. A psychiatric expert should not be prevented from testifying
about Nooner’s troubled childhood and dysfunctional social behavior if the
psychiatric expert determined they were relevant for the purpose of presenting
mitigating psychiatric evidence. This is a death penalty case and Nooner is entitled
to every benefit of a reasonable doubt.

                                          -16-
      Deficient Performance.

       In evaluating whether counsels’ performance fell below an objective standard
of reasonableness, it is necessary to first identify the relevant professional standard
of care. While Strickland counsels that no particular set of rules can satisfactorily
govern the myriad of unique circumstances facing defense counsel, “[p]revailing
norms of practice as reflected in the American Bar Association standards and the
like . . . are guides to determining what is reasonable . . . .” Id. at 688. The
Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
(February 1989) (“Guidelines”) state that “[c]ounsel should conduct independent
investigations relating to the guilt/innocence phase and to the penalty phase of a
capital trial. Both investigations should begin immediately . . . and should be pursued
expeditiously.” Guideline 11.4.1 at A. The Guidelines further explain that when
selecting witnesses or evidence to present at sentencing,

      counsel should consider the following: 1) Witnesses familiar with and
      evidence relating to the client’s life and development, from birth to the
      time of sentencing, who would be favorable to the client, explicative of
      the offense(s) for which the client is being sentenced, or would
      contravene evidence presented by the prosecutor; 2) Expert witnesses to
      provide medical, psychological, sociological or other explanations for
      the offense(s) for which the client is being sentenced . . . .

Guideline 11.8.3 at F. (emphasis added).

      Attorneys representing clients who face the death penalty are specifically
advised to consider all reasonably available evidence, including expert testimony.

      Counsel should present to the sentencing entity or entities all reasonably
      available evidence in mitigation unless there are strong strategic reasons
      to forego some portion of such evidence. Among the topics counsel
      should consider presenting are: 1) Medical history (including mental

                                         -17-
      and physical illness or injury, alcohol and drug use, birth trauma and
      developmental delays); 2) Educational history (including achievement,
      performance and behavior), special educational needs (including
      cognitive limitations and learning disabilities) and opportunity or lack
      thereof; . . . 5) Family, and social history (including physical, sexual or
      emotional abuse, neighborhood surroundings and peer influence); and
      other cultural or religion [sic] influence, professional intervention (by
      medical personnel, social workers . . .) or lack thereof; prior correctional
      experience (including conduct on supervision and in institutions,
      education or training, and clinical services); . . . 8) Expert testimony
      concerning any of the above and the resulting impact on the client,
      relating to the offense and to the client’s potential at the time of
      sentencing.

Guideline 11.8.6 at A. and B. (emphasis added). With the appropriate professional
standards of care established, I turn to the performance of Nooner’s two attorneys at
trial.

       In preparation for trial, defense counsel engaged an investigator who
interviewed Nooner’s mother about his history. These conversations revealed that,
during Nooner’s early teenage years, he was placed in foster care after his mother was
charged with child abuse and placed in two separate psychiatric institutions for severe
emotional and behavioral problems. This preliminary investigation also revealed that
Nooner experienced substance abuse problems. Trial counsel obtained records from
Rivendell which indicated that Nooner was under socialized, and experienced
“considerable family dysfunction, as evidenced by multiple family conflicts.”
Abstract of Exhibits to Rule 37 Hearing at 248 (Nooner’s brief to the Arkansas
Supreme Court) (the “Rivendell Report”). The Rivendell Report further identified
that his reading skills were four years behind placement, his math and written skills
were five years behind placement, his knowledge was three years behind placement,
and even though he was fourteen years old, his education level was that of a third
grader. Id. at 249. This report concluded that Nooner’s behavioral problems were not


                                         -18-
caused by psychosis. Trial counsel terminated their investigation without obtaining
school records, medical records, or records from child protection services. Trial
counsel did not contact Nooner’s treating psychiatrists or request any type of
sociological or psychiatric expert to assist them in developing or presenting a
mitigation case.

       Considering that Nooner faced the death penalty, developing this line of
mitigating evidence was his best, and perhaps only, possibility of avoiding death.
While the decision not to challenge Nooner’s competency to stand trial appears
sound, I take issue with his attorneys’ decision not to secure a psychiatric expert to
evaluate Nooner for purposes of developing mitigating evidence. The Guidelines
advise defense counsel to “present to the sentencing entity or entities all reasonably
available evidence in mitigation unless there are strong strategic reasons to forego
some portion of such evidence.” Guideline 11.8.6 at A. The Guidelines further
advise trial counsel to consider “[e]xpert testimony concerning any of [mitigating
evidence] and the resulting impact on the client, relating to the offense and to the
client’s potential at the time of sentencing.” Id.

       One of Nooner’s attorneys testified at the Rule 37 post-conviction hearing that
the introduction of the Rivendell Report would not help Nooner’s case and that its
contents foreclosed the need for further psychiatric investigation. Testimony of Ms.
Lea Ellen Fowler, Rule 37 Hearing Transcript at 25-26. Trial counsels’
characterization at the Rule 37 hearing of their potential mitigation case suggests
they discounted too quickly potential mitigating evidence. In contrast to Ms.
Fowler’s testimony at the Rule 37 hearing, the record shows that Nooner was indeed
from a broken home: by the age of fourteen, he had been removed from his home by
the state, had been transferred from foster home to foster home, and subsequently
institutionalized for several months at Rivendell. Additionally, in contrast to Ms.
Fowler’s testimony, the record shows that Nooner did indeed suffer from substance
abuse.

                                        -19-
       The information available to Nooner’s trial counsel indicated significant
childhood disturbances that merited further investigation. While the Rivendell
Report may have reasonably foreclosed psychosis itself as a mitigating circumstance,
it did not foreclose an investigation into reasons for Nooner’s multiple foster home
placements, investigation into his low educational achievements, or an investigation
into his substance abuse. Most importantly, it did not foreclose the potential value
of engaging a psychiatric expert to evaluate Nooner and to explain to the jury the
resulting impact these experiences had on Nooner. See Guideline 11.8.6 at B(8).

       “[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Strickland,
466 U.S. at 691. “[S]trategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation.” Id. Nooner’s trial counsels’ “strategic” decision not
to pursue expert psychiatric assistance for the penalty phase was simply premature
based on the initial information available to counsel. Under the facts of this case, I
conclude that this failure to request a psychiatric expert to examine Nooner for the
purpose of developing and presenting mitigating evidence constituted ineffective
assistance of counsel under the Sixth Amendment.13

      Prejudice.

      In addition to deficient performance, Nooner must also establish prejudice to
obtain relief. “In assessing prejudice, we reweigh the evidence in aggravation against


      13
       I do not suggest that trial counsel had a duty to present such testimony if, after
adequate investigation, it appeared that it would be harmful to Nooner’s mitigation
case. I simply conclude that failure to pursue such evidence, based on the
information available to them at the time, was unreasonable under the circumstances.
Wiggins v. Smith, 539 U.S. 510, 523-24 (2003); Pickens v. Lockhart, 714 F.2d 1455,
1466-67 (8th Cir. 1983).

                                          -20-
the totality of available mitigating evidence.” Wiggins, 539 U.S. at 534. Because
Arkansas required juror unanimity to impose the death sentence, trial counsel only
had to persuade one juror that there was a reasonable doubt whether the aggravating
factors outweighed the mitigating factors, persuade a single juror that Nooner
deserved mercy, or persuade a single juror to spare his life. See ARK. CODE ANN. § 5-
4-603 (1987).

       Although Nooner’s stepfather testified during the penalty phase about Nooner’s
troubled childhood and, to a limited extent, about his behavioral and emotional
problems, without the testimony from a psychiatric expert, “the jurors were left with
no guidance concerning how they might take such facts into consideration in
mitigation of punishment.” Stephens v. Kemp, 846 F.2d 642, 655 (11th Cir. 1988).
The fact that no one other than Nooner’s obviously biased stepfather presented this
mitigating evidence “diminished the impact on the jury of the facts [he] described.”14
Id. at 654. A psychiatric expert could have provided invaluable corroborating
evidence strengthening the stepfather’s emotional testimony. I conclude that, given
the scope and nature of Nooner’s troubled childhood, a psychiatric expert could have
developed and presented potentially powerful mitigating evidence.

      As the record stands, we lack enough information to determine whether the
psychiatric evidence would have changed the verdict of death. No lower court has
conducted any meaningful assessment of this evidence. I would therefore remand this



      14
         During the guilt phase, Nooner’s stepfather (Mr. Hendricks) testified as
Nooner’s alibi witness that Nooner was home at the time of the murder. Considering
the jury convicted Nooner, they obviously found Mr. Hendricks’ testimony less than
credible. Nonetheless, Nooner’s attorneys put the same discredited witness on the
stand as the sole witness presenting mitigating evidence. Nooner’s mother was
unable to testify at trial. Apparently, her doctor considered the emotional stress too
great and advised her not to testify.

                                        -21-
case to the district court for a plenary hearing to evaluate Nooner’s expert psychiatric
evidence to make this determination of prejudice in the first instance.

       While Nooner may have been prejudiced by ineffective assistance of counsel
during the penalty phase of his trial, prior to issuing relief it is also necessary to find
that the adjudication of Nooner’s claim by the Arkansas Supreme Court “resulted in
a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States . . . .” 28 U.S.C. § 2254(d)(1). “[A] state-court decision involves an
unreasonable application of [Supreme Court] precedent if the state court identifies the
correct governing legal rule from [Supreme Court] cases but unreasonably applies it
to the facts of the particular state prisoner’s case.” Williams v. Taylor, 529 U.S. 362,
407 (2000).

      The Arkansas Supreme Court resolved Nooner’s claim as follows:

      Nooner alleges ineffective assistance of counsel because defense
      counsel did not request a mental evaluation as allowed under Ark.Code
      Ann. § 5-2-309. Nooner contends the results could have produced
      evidence that may have gone toward establishing some mitigating
      circumstance in sentencing. He argues that his counsel’s failure to
      request an evaluation prevented the judge and jury from having critical
      evidence showing a limited capacity. Competency to stand trial has not
      been raised as an issue. Nooner’s counsel did not request a mental
      evaluation. At the hearing below, Nooner’s trial counsel testified that
      they saw no reason for an evaluation at the time of trial. They reported
      that Nooner involved himself intimately in his defense. He did legal
      research, participated in strategy discussions, and was articulate and able
      to convey his concerns and wishes. They also reported that Nooner
      behaved significantly different in the Rule 37 hearing than he did during




                                           -22-
      his trial. Nooner offered testimony from his mother[15] that he had
      behavioral problems and emotional problems which they had shared
      with his trial counsel. However, she acknowledged that although he had
      been treated at Rivendale [sic], he had not been treated at a psychiatric
      facility nor prescribed anti-psychotic medication.

             Our review of the record indicates that the trial court thoroughly
      evaluated Nooner’s claim and reasonably believed the testimony of trial
      counsel that they carefully considered whether to request an evaluation
      but discerned no good-faith basis for doing so. Nooner’s trial counsel
      also presented evidence that they had adduced evidence of Nooner’s
      troubled past and treatment through his stepfather during the penalty
      phase of his trial. We hold Nooner has not established that trial
      counsel’s decision not to request a psychiatric evaluation constituted
      ineffective assistance.

Nooner v. State, 4 S.W.3d 497, 500 (Ark. 1999) (emphasis added). Although the
Arkansas Supreme Court identified the correct Supreme Court precedent under
Strickland, it performed an unreasonable application of the governing legal rules to
the facts of the case.

       First, the Arkansas Supreme Court incorrectly characterized Nooner’s claim as
one of competency to stand trial, when in fact Nooner’s claim was about failure to
investigate and present mitigating evidence. On appeal to that court, Nooner was not
attempting to resurrect the competency issue, he was claiming “ineffective assistance
of counsel as a result of the failure to seek psychiatric testimony for the penalty phase
and to present the evidence thereon.” Abstract and Brief for Appellant at 356
(Nooner’s appellate brief before the Arkansas Supreme Court). However, when
reviewing Nooner’s ineffective assistance claim, the Arkansas Supreme Court
interjected issues only relevant to the competency issue which was not appealed. For


      15
       This testimony occurred after the trial in the Rule 37 post-conviction
proceeding in the state district court.

                                          -23-
example, the Arkansas Supreme Court’s opinion, supra, states that Nooner’s claim
is based on a failure to “request a mental evaluation as allowed under Ark. Code Ann.
§ 5-2-309.” Nooner, 4 S.W.3d at 500. However, this cited statute is specific to
“Determination of fitness to proceed.” See Ark. Code Ann. § 5-2-309 (1987).
Furthermore, the Arkansas Supreme Court’s discussion of Nooner’s behavior at his
trial and at the post-conviction hearing in state court (as a valid reason for not
requesting an evaluation) demonstrates that the issue of competency to stand trial was
conflated with the issue of a mitigation evaluation.

       Second, the Arkansas Supreme Court’s conflation of the distinct claims of
competency to stand trial with mitigation at sentencing caused that court to apply the
wrong standard of care in evaluating defense counsels’ professional conduct. The
Arkansas Supreme Court identified the statutory authority which governs competency
to stand trial, see ARK. CODE ANN. § 5-2-309 (1987), and then applied the
corresponding “good faith” basis professional standard from the ABA Criminal
Justice Mental Health Standards16 to evaluate trial counsels’ performance. However,
the good faith standard from the ABA Criminal Justice Mental Health Standards does
not apply to conduct during the penalty phase of capital cases. The standard that
should have been applied appears in The Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases (February 1989). No United States
Supreme Court case holds, or even suggests, that a good faith basis to question the

      16
        The relevant guideline states:

      In the absence of good faith doubt that the defendant is competent to
      stand trial it is improper for either party to move for evaluation. It is
      improper for either party to use the incompetence process for purposes
      unrelated to incompetence to stand trial such as to obtain information for
      mitigation of sentence, to obtain favorable plea negotiation, or to delay
      the proceedings against the defendant.

ABA Criminal Justice Mental Health Standard 7-4.2(e) (1989) (emphasis added).

                                         -24-
defendant’s competency to stand trial is required prior to investigating or presenting
psychologically-based mitigating evidence.

       The application of the wrong standard meant that the Arkansas Supreme Court
failed to evaluate Nooner’s trial counsels’ performance for reasonableness under
prevailing professional norms of practice. Strickland, 466 U.S. at 688. This was an
objectively unreasonable application of clearly established Supreme Court precedent.
28 U.S.C. § 2254(d).

       I would hold that Nooner’s allegation of ineffective assistance of counsel is
sufficient to require a federal district court to evaluate the expert psychiatric evidence
and determine whether a new trial before a jury on the penalty phase of Nooner’s trial
should be held.

BYE, Circuit Judge, dissenting in part and concurring in part.

       Both my colleagues conclude Terrick Nooner was incompetent to request the
dismissal of his habeas petition. Because the record shows Nooner understood the
significance of his decision and its consequences, I respectfully disagree and would
honor Mr. Nooner’s request to dismiss his petition.

                                            I

       We apply a clearly erroneous standard to the district court’s determination
Nooner was competent to dismiss his federal habeas petition, Smith v. Armontrout,
812 F.2d 1050, 1058 (8th Cir. 1987), and thus I begin with a discussion of the record
the district court considered. Pursuant to an order of an administrative panel of this
court, the district court had Nooner undergo a mental competency evaluation at the
United States Medical Center for Federal Prisoners in Springfield, Missouri. Dr.
Richart DeMier evaluated Nooner, and subsequently filed a report opining Nooner

                                          -25-
lacked the competency to dismiss his petition. Dr. DeMier concluded Nooner was
feigning mental illness, but nevertheless believed Nooner was incompetent based on
two factors.

       First, Dr. DeMier based his opinion regarding Nooner’s incompetency on
Nooner’s disorganized pattern of speaking when discussing his legal case. In Dr.
DeMier’s opinion, this exhibited a disordered thought process in which Nooner’s
ideas and statement were not linked together in a rational way.

       Second, Dr. DeMier did not believe Nooner could articulate a rational reason
for wanting his habeas petition dismissed. Nooner indicated, however, the dismissal
of his habeas petition will trigger an execution date, which in turn will trigger an
opportunity to appear before an executive clemency board. Dr. DeMier reports
Nooner “explained that, by Arkansas law, once an execution date is set, he has the
opportunity to appear before an ‘executive clemency board.’” Nooner further
explained he will then have a hearing and an opportunity to call witnesses – an
opportunity he feels has been denied him in his habeas proceedings. Specifically, Dr.
DeMier’s report indicates Nooner said “[a]ll I need is an opportunity for a hearing
and to call witnesses.”

       Nooner believes the murder charge against him in the state proceeding
underlying this habeas petition is unlawful because, although he was initially arrested
for possessing stolen property, he was never charged with and proven guilty of that
crime. Specifically, Dr. DeMier’s report indicates Nooner said “[t]hey never arrested
me for the charge I’m doing.” Nooner believes Arkansas’s failure to charge him with
the crime for which he was arrested invalidates the arrest as well as the subsequent
murder charge – because the murder charge followed from the initial arrest. Dr.
DeMier indicated Nooner “focus[ed] on allegations that he was not detained, arrested,
charged, tried or convicted in the proper manner,” and said “[t]he source of where
these murder charges came from were never proven . . .. It’s a poisonous fruit tree.”

                                         -26-
Nooner wants the opportunity to present these arguments to the executive clemency
board.

       Nooner confused Dr. DeMier, however, by describing his theories about the
unlawful arrest as a “removed lawsuit” (that is, the possession of stolen property
charge) being “concealed” by the courts, because the courts never charged Nooner
with that crime. Dr. DeMier misunderstood Nooner to believe this “hidden” or
“removed” lawsuit would be revealed by a judge or judges at the executive clemency
hearing. Dr. DeMier candidly admitted “I was never able to understand his rationale
for this reported belief.” On the basis of his inability to understand Nooner’s theory,
Dr. DeMier concluded Nooner was delusional and engaged in “magical thinking,”
because everyone knows judges do not conceal or reveal hidden lawsuits.

      After Dr. DeMier provided his report, the state deposed Dr. DeMier and
sought their own experts to address Nooner’s competency. Before the competency
hearing was held, two doctors from the Arkansas State Hospital provided reports
opining Nooner was competent to dismiss his habeas petition. Dr. Charles Mallory,
the forensic staff psychologist at the state hospital, concluded Nooner was a
competent malingerer. He disputed both points upon which Dr. DeMier based his
finding of incompetence.

       First, with respect to the disorganized pattern of speaking Nooner exhibited
when discussing his case, Dr. Mallory believed there was a method to Nooner’s
madness. Dr. Mallory cited several examples where Nooner would start with a
logical response to a question, then add a delusional ideation or irrational statement.
For example, when Dr. Mallory asked Nooner what happened during his evaluation
at the Springfield Medical Center, Nooner replied: “Dr. DeMier, he said I was
delusional, seeing things that aren’t true. I don’t know if he found me incompetent.”
That was a logical and rational response to the question posed by Dr. Mallory. But
Nooner then added a delusional ideation to his statement: “I got air bubbles in my

                                         -27-
body.” Dr. Mallory cited another specific example. When asked if he had any
mental problems, Nooner said: “No. The only problem I have is being toyed with
when I know my rights.” Again, a logical and rational response to the question.
Nooner then added: “I’m suffering from anguish because I have glands on my
penis.” Again, a delusion ideation or irrational ending. Dr. Mallory cited other
examples of this pattern as well. In Dr. Mallory’s opinion, this pattern of starting
with a logical response, but ending with an irrational statement, coupled with the fact
Nooner’s statements were always grammatically comprehensible, was simply further
evidence Nooner was feigning mental illness.

        Second, with respect to Dr. DeMier’s belief Nooner could not articulate a
rational reason for wanting his habeas petition dismissed, Dr. Mallory opined Nooner
correctly understood the consequences and significance of his decision. Nooner
understood an execution date would be set if his habeas petition were dismissed,
which would in turn trigger a hearing before the clemency board. Dr. Mallory
expressed his understanding of Nooner’s theories regarding the “hidden” or
“removed” lawsuit much differently than Dr. DeMier had. Dr. Mallory understood
Nooner believed his arrest on the murder charge was illegal because he was never
prosecuted for the charge for which he was initially arrested, theft of a motor vehicle,
i.e., the “hidden” lawsuit. Nooner planned to reveal this “hidden” lawsuit at the
clemency hearing by calling witnesses, including the judge who presided over the
underlying state charges. Dr. Mallory explained Nooner’s argument showed an
unsophisticated understanding of the legal process, but a rational desire to present
his theories to a clemency board because Nooner believed he had “messed up” his
habeas petition.

       The state respondents also obtained the opinion of Dr. Oliver Hall, the medical
director of forensic services at the Arkansas State Hospital. Dr. Hall essentially
agreed with Dr. Mallory’s opinions in all respects.



                                         -28-
      When the district court held the competency hearing, all three doctors testified
and were subject to cross-examination. Dr. Mallory thoroughly discussed and
explained Nooner’s supposedly delusional ideas about the “hidden” or “removed”
lawsuit. Specifically, Dr. Mallory testified:

      [Nooner] showed that he wants to present this information in some kind
      of forum, maybe the clemency board or review board. He has an idea,
      among others, that because he and another man were caught in a stolen
      car – that’s when he was arrested – that he wasn’t charged with car theft
      or anything else, he was just charged with murder – first of all, he thinks
      there’s something wrong with the justice system and he should have
      been charged with murder – I mean, of car theft or something else first,
      and since he wasn’t, they’ve concealed this lawsuit.

App. at 439. Dr. Mallory further opined that Nooner’s desire to present this
information to an executive clemency board showed an “inadequate comprehension
of certain legal procedures or processes,” id. at 437-38, and “lack[ed] legal
sophistication,” id. at 439, but was logical and understandable. Id.

                                          II

        Based on the record presented to the district court, I find nothing clearly
erroneous about the district court’s conclusion Nooner was competent to request the
dismissal of his habeas petition. The record shows Nooner made a knowing and
voluntary decision. In reviewing the testimony and reports of the three experts who
testified regarding Nooner’s competency, I believe the record shows Nooner
articulated a rational reason for wanting to dismiss the petition. Nooner understands
an execution date will not be set until his habeas proceedings are complete. He
understands a hearing before the executive clemency board will not be set until an
execution date is set. Nooner first moved this court to dismiss his habeas petition on
April 30, 2003, the day after the appeal was docketed. His desire to have the petition
dismissed – so he could have a clemency hearing sooner rather than later – is

                                         -29-
understandable. Witnesses get older and memories fade, evidence is lost or becomes
stale. Nooner can not pursue his theory about his unlawful arrest in this habeas
proceeding (the claim was never raised in state court and would be procedurally
barred), believes that to be his best argument, and wants the chance to present the
argument before an executive clemency board. Now, two years later, Nooner still has
not had that chance.

       It may be misguided, perhaps even desperate, for Nooner to believe he has a
better chance of exoneration before the clemency board than he has in this habeas
proceeding, but I see nothing delusional about that belief. As Dr. Mallory indicated
in the district court proceedings, Nooner’s misconception of the strength of his legal
position does not equate with incompetence – otherwise we would have to conclude
many habeas petitioners who appear before us are incompetent. Nor does Dr.
DeMier’s inability to understand Nooner’s inartful references to a “hidden” or
“removed” lawsuit mean Nooner was delusional. I suggest that merely means the
good doctor failed to understand Nooner’s “jailhouse” theory.

       The paternalistic temptation to believe we know better than Nooner what is in
his best interests is strong, particularly because this is a death penalty case. I find it
necessary to set aside that temptation, however, in order to honor Nooner’s right to
control the course of this litigation as he sees fit. In the absence of clear record
evidence Nooner failed to understand the significance and consequences of his
decision, I would respect Nooner’s right of self-determination and grant his request
to dismiss this petition.

                                           III

      Although I would grant Nooner’s request to dismiss this habeas petition, I must
decide the merits of one of the claims raised in the petition on which my colleagues
disagree because we could not issue a mandate otherwise. My colleagues disagree

                                          -30-
on whether Nooner’s trial counsel was ineffective in failing to present psychiatric
mitigation evidence during the penalty phase of Nooner’s trial. After carefully
considering the arguments presented by both my colleagues, I conclude Nooner failed
to establish the Arkansas Supreme Court’s resolution of his ineffective assistance of
counsel claim was contrary to or an unreasonable application of clearly established
Federal law, as determined by the Supreme Court. I therefore concur in denying the
habeas petition.
                       ______________________________




                                        -31-
