Citations:
Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (Ark. 1996) (Direct Appeal).
Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (Ark. 1999) (PCR).
Nance v. State, Not Reported in S.W.3d (Ark. 2005) (State Habeas).
Nance v. Norris, 392 F.3d 284 (8th Cir. 2004) (Habeas).

Final Meal:
A bacon cheeseburger, french fries, ice cream and Coke.

Final Words:
None.

Internet Sources:

Arkansas Department of Corrections

ADC Number: SK932
Name: Nance, Eric R.
Race: WHITE
Sex: MALE
Birth Date: 01/09/60
Sentencing Date: 03/31/94
County of Conviction: Hot Spring

Arkansas Democrat Gazette

"State executes Nance after high court delay," by Charlie Frago. (November 29, 2005)

VARNER — Without uttering any last words, Eric Nance was executed Monday after a delay of more than an hour while a U.S. Supreme Court justice reviewed his appeals.

Nance, 45, remained silent when asked by Department of Correction Director Larry Norris if he wished to make a final statement. Witnesses said his eyes remained closed. A lethal injection of sodium pentathol was administered at 9:24 p.m. A coroner pronounced Nance dead six minutes later.

Nance was convicted of murdering Julie Heath, 18, a Malvern cheerleader, by stabbing her in the throat with a box cutter after coming upon her standing by her broken-down car along U.S. 270 in October 1993.

A little more than a year later, Heath’s mother, Nancy, committed suicide. Heath’s family said they blamed Nance for her death, too, and four family members witnessed the execution at the Cummins Unit in Lincoln County. Afterward, they said they hoped Nance’s death would allow Julie and Nancy Heath to rest in peace. “This was not easy for us. We do feel for his mother and family,” said Johnie Hood, a cousin of Heath. Belinda Crites, another cousin, said Nance’s refusal to speak before dying demonstrated his lack of remorse for his crime. “He couldn’t even say he was sorry,” she said, with teary eyes. “What he went through tonight was painless compared to what he put Julie through.”

The execution was originally scheduled for 8 p.m., but shortly before then U.S. Supreme Court Justice Clarence Thomas, who is in charge of reviewing death penalty cases in several Southern states including Arkansas, asked for a delay to give him time to review four appeals. In those appeals Nance’s attorneys argued that he was mentally retarded and that new DNA technology would exonerate their client of attempted rape, which was considered by a Hot Spring County jury as an aggravating circumstance that merited the death penalty.

Shortly after 9 p.m., the Supreme Court denied all four appeals, just as the 8th U.S. Circuit Court of Appeals in St. Louis and the state Supreme Court had done earlier Monday. Earlier in the day, Gov. Mike Huckabee denied Nance’s appeal for clemency, issuing a news release stating that after “prayerful consideration and a thorough review,” he decided not to halt the execution.

Afterward, about two dozen protesters gathered outside the governor’s mansion in Little Rock for a Monday night vigil. Most were members of the Arkansas Coalition to Abolish the Death Penalty. “They’re killing someone to prove that killing is wrong,” said Dave Rickard, a spokesman for the group.

The last time the U.S. Supreme Court delayed an Arkansas execution was in 1997 when Kirt Wainright was put to death. That delay lasted about 45 minutes, said Dina Tyler, a spokesman for the Department of Correction.

Jennifer Horan, a federal public defender and Robert Rankin, a minister, spent most of the day with Nance. They did not speak to reporters after the execution. Condemned inmates often don’t give final statements before being put to death, said Tyler. “Some give long poems, some say nothing,” she said. Medical personnel were scheduled to conduct a postmortem review late Monday before releasing Nance’s body to his family, Tyler said.

Nance became the 27th person executed in Arkansas since 1990, when the state resumed imposing the death penalty after a 1976 U.S. Supreme Court decision ruled it constitutional. A state law changed the method of execution from electrocution to lethal injection seven years earlier. Since then, only John Edward Swindler, who was originally sentenced to death by electrocution, has been put to death in that way. Swindler was executed in 1990.

Nance was calm all day, Tyler said, finishing his last meal of a bacon cheeseburger, french fries, ice cream and Coke before 4 p.m. Information for this story was contributed by Jim Brooks of the Arkansas Democrat-Gazette.

Reuters News

"Arkansas man executed after three late stays." (Tue Nov 29, 2005 12:28 AM ET)

LITTLE ROCK, Arkansas (Reuters) - An Arkansas man convicted of murdering a teen-age girl in 1993 was executed on Monday, but only after the U.S. Supreme Court delayed the lethal injection three times to consider last-minute appeals.

After dismissing arguments by defense attorneys that Eric Nance was mentally handicapped and thus ineligible for capital punishment and that DNA analysis could prove him innocent, the court allowed the execution to proceed at 9:24 p.m. CST (10:24 p.m. EST/0324 GMT), almost 90 minutes after it was scheduled.

Nance declined to make a final statement before the lethal injection was administered at the Cummins Unit of the Arkansas prison system. He was pronounced dead at 9:30 p.m. CST by the Lincoln County, Arkansas, coroner.

Nance, 45, was convicted of kidnapping and capital murder and sentenced by a jury to death for the slaying of Julie Heath, 18, whose throat was slashed with a box cutter. A week after her disappearance, her body was found near Malvern, Arkansas, about 45 miles southwest of Little Rock.

Nance's death brought to 998 the number of executions in the United States since 1976, when the Supreme Court authorized the resumption of capital punishment. Condemned inmates in four other states are scheduled to die this week, virtually ensuring that the number of executions carried out in the United States since 1976 will reach the one-thousand mark.

Several eleventh-hour appeals by Nance's attorneys were rejected by lower courts, and Governor Mike Huckabee of Arkansas, a Republican, declined a petition for executive clemency hours before the sentence was to be carried out. "It brings closure that he is gone, but it will never bring back Julie - what he's done to our family," said Belinda Crites, a cousin of Heath's, following Nance's death.

At mid-afternoon, prison authorities served Nance his requested last meal of two bacon cheeseburgers, French fries, two pints of chocolate chip cookie dough ice cream and two cans of Coca-Cola.

Vance was the 27th person executed in Arkansas since 1976. Thirty-seven other prisoners are on the state's Death Row, but no additional executions are scheduled.

CNN News

"Arkansas executes convicted murderer." (November 28, 2005)

VARNER, Arkansas (AP) -- Arkansas death row inmate Eric Nance was executed by injection following a 1 1/2-hour delay while U.S. Supreme Court justices considered separate claims that Nance is mentally retarded and that additional DNA testing might clear his name. During the delay Monday night, Nance awaited execution in a holding cell near Arkansas' death chamber 90 miles (145 kilometers) southeast of Little Rock.

During an execution nine years ago, a death row inmate was left on a gurney for 40 minutes with needles in his arms while justices deliberated. After the justices rejected Nance's pleas, Arkansas executed him for the killing and attempted rape of Julie Heath, 18, of Malvern.

Heath was last seen October 11, 1993, and her car was discovered along U.S. 270. A hunter found her body October 18, 1993, and authorities said she had been dead about a week. Her throat had been slashed with a box cutter.

"This is not easy for any of us and we do feel for his mother, his family," said Johnie Hood, a cousin of the victim. "I just pray that Julie rests in peace now. He couldn't say he was sorry. What he went through tonight was painless compared to what he put Julie through." Hood and other family members watched the execution via closed-circuit television in a prison office. Heath's mother Nancy killed herself a year after her daughter's murder. "I hope that he did say he's sorry to someone for what he had done," said Belinda Crites, another cousin. "We want to make sure the devil dies. He's gone now so I hope they can rest in peace."

Justice Clarence Thomas temporarily delayed Nance's execution to review the condemned man's file and eventually other justices weighed in. Four sets of appeals went before the justices Monday night. On two of them, Justices David Souter, John Paul Stevens, and Ruth Bader Ginsberg said they would have given Nance a stay. The U.S. Supreme Court was asked to consider whether Nance was mentally retarded; justices have ruled previously that mentally retarded inmates should not be put to death. Nance also asked for additional DNA testing on a hair found in his truck after Heath's body was found.

Gov. Mike Huckabee rejected Nance's clemency request earlier Monday, and the state Supreme Court also denied an 11th-hour request for a stay. Huckabee said he gave Nance's case "prayerful consideration" and that he had made a thorough review of Nance's records. About 30 protesters gathered briefly outside the Governor's Mansion on Monday night and sang "Amazing Grace." They also lit candles to remember previous inmates executed in Arkansas.

In January 1997, while U.S. Supreme Court justices considered whether to stop Kirt Wainwright's execution, guards left the inmate strapped to a gurney with needles in his arms. After a 40-minute delay, the execution proceeded. The prison said it would have been cruel to take Wainwright back to his cell and have him walk a second time to the death chamber.

CBS News

"Arkansas Man Executed." (VARNER, Arkansas, Nov. 29, 2005)

(CBS/AP) Arkansas death row inmate Eric Nance was executed by injection Monday night following a 90-minute delay so U.S. Supreme Court justices could consider separate claims that Nance is mentally retarded and that additional DNA testing might clear his name. During the delay Monday night, Nance awaited execution in a holding cell near death chamber at the prison in Varner, Arkansas. During an execution nine years ago, a death row inmate was left on a gurney for 40 minutes with needles in his arms while justices deliberated.

After the justices rejected Nance's pleas, Arkansas executed him for the killing and attempted rape of Julie Heath, 18, of Malvern. Heath was last seen Oct. 11, 1993, and her car was discovered along U.S. 270. A hunter found her body Oct. 18, 1993, and authorities said she had been dead about a week. Her throat had been slashed with a box cutter.

The execution is the 998th since the United States resumed executions in 1977, putting murderer Gary Gilmore to death by firing squad in Utah following a U.S. Supreme Court decision which paved the way for 35 states to put the death penalty back on the books. The 999th, John Hicks, faces execution Tuesday for the 1985 murder of his mother-in-law and 5-year-old stepdaughter in what he argued was a cocaine-induced state of psychosis. Ohio Gov. Bob Taft Monday rejected a request to commute the death sentence to life in prison. Hicks has apologized for the murders and the victims' relatives do not plan to watch the execution. The inmate likely to be the 1,000th to be executed is Robin Lovitt, who is scheduled to die Wednesday in Virginia for fatally stabbing a pool hall manager with a pair of scissors.

Monday night, asked if he had any final words before dying, Nance showed no signs that he heard the prison director's query, and was stone silent. Moments later, his lip twitched, his eyelids opened slightly and he became ashen. "This is not easy for any of us and we do feel for his mother, his family," said Johnie Hood, a cousin of the victim. "I just pray that Julie rests in peace now. He couldn't say he was sorry. What he went through tonight was painless compared to what he put Julie through."

Hood and other family members watched the execution via closed-circuit television in a prison office. Heath's mother Nancy killed herself a year after her daughter's murder. "I hope that he did say he's sorry to someone for what he had done," said Belinda Crites, another cousin. "We want to make sure the devil dies. He's gone now so I hope they can rest in peace."

Justice Clarence Thomas temporarily delayed Nance's execution to review the condemned man's file and eventually other justices weighed in. Four sets of appeals went before the justices Monday night. On two of them, Justices David Souter, John Paul Stevens, and Ruth Bader Ginsberg said they would have given Nance a stay. The U.S. Supreme Court was asked to consider whether Nance was mentally retarded; justices have ruled previously that mentally retarded inmates should not be put to death. Nance also asked for additional DNA testing on a hair found in his truck after Heath's body was found.

State attorneys said Nance tested above the mental retardation levels, held a job at the time of the crimes, and got his high school equivalency diploma in prison. They also said there was sufficient evidence to convict Nance of the attempted rape charge even without the finding presented at trial that the hair in Nance's truck was similar to Heath's.

Gov. Mike Huckabee rejected Nance's clemency request earlier Monday, and the state Supreme Court also denied an 11th-hour request for a stay. Huckabee said he gave Nance's case "prayerful consideration" and that he had made a thorough review of Nance's records. About 30 protesters gathered briefly outside the Governor's Mansion on Monday night and sang "Amazing Grace." They also lit candles to remember previous inmates executed in Arkansas.

In January 1997, while U.S. Supreme Court justices considered whether to stop Kirt Wainwright's execution, guards left the inmate strapped to a gurney with needles in his arms. After a 40-minute delay, the execution proceeded. The prison said it would have been cruel to take Wainwright back to his cell and have him walk a second time to the death chamber.

Pine Bluff Commercial

"JUSTICES DENY LAST MINUTE APPEAL," by Larry Fugate. (Tuesday, November 29, 2005 8:08 AM CST)

VARNER — Death row inmate Eric Nance was put to death by lethal injection Monday night after an 84-minute delay so U.S. Supreme Court justices could consider a last minute appeal. Justices apparently were asked to consider defense arguments based on the assertion that additional DNA testing might clear him and that Nance was mentally retarded.

After the justices rejected the pleas, the state executed him for the murder and attempted rape of Julie Heath, 18, of Malvern. She was last seen Oct. 11, 1993. A hunter found her body eight days later. Her throat had been cut with a box cutter. When Nance was asked if he wanted to make a final statement, “he did not respond,” prison spokeswoman Dina Tyler said.

“I just pray that Julie rests in peace now. He couldn’t say he was sorry,” Johnie Hood, a cousin of the victim, told reporters after the execution. “What he went through tonight was painless compared to what he put Julie through.” “We want to make sure the devil dies,” added Belinda Clines, another cousin of the murder victim. “He’s gone now so I hope they can rest in peace,” she said, making an apparent reference to Heath’s mother Nancy, who committed suicide a year after her daughter’s murder. Hood, Clines and other family members watched the execution on closed-circuit television from the prison office.

The execution was originally scheduled for 8 p.m. However, at 7:35 Tyler told reporters that the execution had been put on hold until 8:30 p.m. to give justices time to review the appeal. While Tyler was briefing reporters, an unmarked white state van backed up to a gate at the prison southeast of Pine Bluff and the family members left the van and entered the administrative offices. The execution was delayed again at 8:29, Tyler said, to give members of the court additional time to review the defense briefs. At 9:05 Tyler said the high court had denied a stay. She asked witnesses to proceed to a room off the execution chamber.

The lethal injection was administered at 9:24 p.m. After Nance was pronounced dead at 9:30 p.m., his spiritual adviser Robert Rankin of Pine Bluff said, “And may God help and have mercy on the families.”

Justice Clarence Thomas delayed the execution to review the legal file after four sets of appeals went before the justices Monday night. The convictions were repeatedly upheld by state and federal courts. The Arkansas Supreme Court reject a request for a stay Monday.

Gov. Mike Huckabee denied Nance’s clemency request earlier in the day, saying that he had given Nance’s case “prayerful consideration.” More than two dozen protesters stood outside the Governor’s Mansion at Little Rock Monday evening and sang “Amazing Grace.”

Nance was arrested two days after the young woman’s body was found. A jury in Hot Spring County convicted him and sentenced him to death.

Nance was moved to a quiet cell near the execution chamber on Friday. Guards on Monday brought him the bacon cheeseburgers, french fries, ice cream and soft drinks he requested for a final meal. His lawyer and spiritual adviser met with him during the day, Tyler said. A hearse carrying Nance’s body left the prison compound at 9:45 p.m. as television reporters prepared stories about the execution.

KATV

"Nance Execution Carried Out After Delays," by anne Pressley. (Tuesday November 29, 2005 7:32am)

Little Rock - The death sentence of convicted killer Eric Nance was twice delayed before he finally died from lethal injection at 9:30 Monday night.

The U.S. Supreme Court requested the extra time to review appeals by Nance's attorney, but they were denied. It has been two years since the Arkansas Department of Correction has carried out an execution. Still, officials say delays like the ones in Nance’s case are highly unusual.

Eric Nance was given extra time Monday night as his case got a final review. Spokesperson Dina Tyler read a statement from the director of the department of corrections immediately after Nance's sentence was carried out. The two delays by the U.S. Supreme Court had the victim’s family prepared for a last minute stay.

Both the families of Julie Heath and Eric Nance witnessed the execution. Nance's family tried to shield themselves of the cameras as they arrived at Cummins and did not offer any comment to the media. Eric Nance was given the opportunity to offer any last words before he was put to death. He also declined to comment.

The department spokesperson says the death order would have expired at midnight had the Supreme Court not issued its decision.

Meanwhile, a group opposing the death penalty held a candlelight vigil in Little Rock at the governor's mansion in protest of Nance's death.

"Heath Family Reacts To Execution Of Nance," by Lizzie Taylor. (Monday November 28, 2005 11:12pm)

Varner - Family members of Julie Heath say that they find closure with the execution of Nance, the inmate who was executed Monday night for the teenager's attempted rape and murder. Nance had no last words, offering no apology to the family.

Cousin Belinda Crites of Malvern said she hopes Nance said he was sorry to someone for the murder. She said she, two other cousins and an aunt came to the execution to quote ``make sure the devil dies.'' She also said that now that Nance is gone, she hopes that Julie and her mother, Nancy, who killed herself a year after her daughter's death, can rest in peace.

Another cousin, Johnie Hood of Malvern, said the execution was not easy for anyone in the family and that what Nance went through was painless compared to what he did to Julie. Family Visitation For Nance Through Sunday Saturday November 26, 2005 6:55pm Posted By: Lizzie Taylor Convicted killer Eric Nance will be allowed extended family visitation through Sunday.

Nance is scheduled to be executed Monday for the attempted rape and murder of 18-year-old Julie Heath of Malvern.

State officials have been criticized for not allowing Nance enough time with his family before the execution. However, a prison official says they're following the normal guidelines before an execution. Nance will also have visits with his lawyer and chaplain on Monday.

"Parole Board Recommends Against Clemency for Nance." (Tuesday November 15, 2005 12:44pm)

Little Rock (AP) - The state parole board says the November 28 execution of condemned killer Eric Nance should go forward as planned. The board rejected arguments from Nance's attorneys that he is mentally retarded and cannot legally be executed.

His lawyers also say DNA tests could exonerate him of attempted rape, an underlying crime that was used to convict Nance of capital murder in the 1993 death of an 18-year-old Malvern woman. The panel voted six-to-one to recommend that Governor Huckabeeturn down Nance's clemency request.

Huckabee Spokeswoman Alice Stewart says the governor takes all executions seriously and will take the recommendation under advisement. Meanwhile, U.S. District Judge James Moody is to hear a request from Nance's lawyers Wednesday for a stay of execution. The 45-year-old Nance was convicted of the murder of Julie Heath, whose throat was cut.

Court TV

"Man who murdered teen by slashing her throat executed in Arkansas." (Updated Nov. 29, 2005, 10:10 a.m. ET)

VARNER, Ark. (AP) — A man was executed Monday for killing a teenager by slashing her throat with a box cutter. Eric Nance, 45, offered no last words when offered a final statement. Except for a slight quivering lip, he lay still on the gurney while receiving the lethal injection.

Nance was convicted in the slaying of Julie Heath, 18, whose body was discovered by a hunter in October 1993. After Heath vanished, Nance told people he feared someone would fabricate a story about him being involved in the woman's disappearance. He was arrested two days after her body was found.

Heath's relatives watched the execution on closed-circuit television in a prison office. Heath's mother, Nancy, killed herself a year after her daughter's murder. "This is not easy for any of us, and we do feel for his mother, his family," said Johnie Hood, a cousin of the victim. "I just pray that Julie rests in peace now. He couldn't say he was sorry."

Nance's execution was delayed for more than an hour while the U.S. Supreme Court reviewed last-minute claims he was mentally retarded and that additional DNA testing on a hair found in his truck could clear his name.

The execution was the 998th since the United States widely resumed executions in 1977. An Ohio man, John Hicks, faced execution Tuesday. Robin Lovitt, likely to be the 1,000th execution, was set to die Wednesday in Virginia for fatally stabbing a pool hall manager with a pair of scissors.

ProDeathPenalty.Com

Governor Mike Huckabee has set a November 28th execution date for convicted killer Eric Nance. Nance raped and murdered 18-year-old Julie Heath in October of 1993. Heath was driving from Malvern to Hot Springs. Her car was found on Hwy 270. The young woman's body was found 5 miles away by a hunter about a week after she vanished. Her throat had been cut with a box cutter. Police believe her car broke down and Nance saw her on the side of the road.

Julie Heath was last seen alive on October 11, 1993. That evening she left her home in Malvern, Arkansas, to visit her boyfriend in Hot Springs, Arkansas. Julie's car broke down on the way. Nance was returning to Malvern from Hot Springs in his pickup at about this time. When he left Hot Springs, he was dressed in a shirt, bib-overalls, and shoes. According to Nance, he stopped to help and offered Julie a ride to Malvern. Nance was later seen in a convenience store with no shoes, socks, or shirt. He also had dark, damp stains on his overalls that appeared to be fresh.

On October 18, 1993, Julie's body was found in a wooded area just off an unpaved road about seven miles from where she had left her car. The body was fully clothed. A photograph of the clothed body that was admitted into evidence shows that the belt buckle was partially undone; the pants' zipper was partially zipped; and the portion of the shirt covering the body's right shoulder was torn. An officer testified at trial that the shirt was inside out when the body was found. And photographs of the shirt once it was removed from the body reveal that the shirt's torn shoulder was its left shoulder. The officer also testified that he concluded the shirt was wrong-side out because when he saw the clothed body in the woods, the shirt's shoulder pad was on the outside surface of the garment. The shirt's other shoulder pad was found nearby. The medical examiner testified that when the body was presented to him it was dressed in one black shirt which was inside out, one pair of black jeans, one black belt, one pair of black socks, which were inside out, one pair of black shoes, a white bra, which was pulled up around the neck and shoulder area, pink panties, which were inside out. The shirt and pants were intact around the body. The belt was buckled and the zipper was partially zipped and a slightly soiled sanitary napkin was present. The medical examiner also testified that the shirt was torn or cut near the shoulder.

A search of Nance's pickup revealed red pubic hairs in the cab. Julie had red hair and an expert testified that these hairs were microscopically similar to some taken from Julie's body. Nance's defense theory was that he accidentally killed Julie. He claimed that when she was riding in his pickup she saw his knife (a box cutter), became hysterical, started kicking him and pulling his hair, and that he put his hand up to make her stop. He claimed that after he put his hand up, he realized the knife had become lodged in her throat. Though Nance did not testify, this version of his story arose at trial through his brother and sister, to whom he had told the same story.

In the guilt phase of the trial, the jury found Nance guilty of capital felony murder with attempted rape as the underlying felony. In the sentencing phase, the State presented as evidence six prior felony convictions stemming from Nance's rape and beating of two Oklahoma girls in 1982. Nance was released from his twenty-year sentence for those convictions five months before he killed Julie.

Julie's mother also testified about how her daughter's death affected her and her family: "Mr. Nance took my only daughter. I believe that he deserves the death penalty. He has ruined my family's life. I have been under constant doctor's care since her death. I've had to see a psychologist once a week. I'm on numerous medications. My life will never be the same again. This has affected all of my family. It's been very hard on my husband and my son. We basically do not know how we can live without her." The State also argued that Nance killed Julie to avoid arrest.

To counter this aggravating evidence, Nance produced some mitigating facts. He offered his confession to police (which was not offered by the State in the guilt phase of the trial) to show remorse. That recitation recounted the story that was the basis for his guilt-phase defense. In further support of his mitigation case, Nance introduced testimony from his brother, sister, mother, employer, and minister. The jury found that two statutory aggravating circumstances existed beyond a reasonable doubt, that no mitigating circumstances existed, that the aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt, and that "the aggravating circumstances justify beyond a reasonable doubt the sentence of death." The judge, following the jury's recommendation, sentenced Nance to death.

UPDATE: The 8th Circuit Court of Appeals vacated a judge's stay of the November 28th execution of an Arkansas death row inmate, saying "The case is closed." The court said the issue of whether the state is prohibited from executing 45-year-old Eric Nance because he is mentally retarded has been raised previously and denied. Julie Heath’s cousin Belinda Crites said "He is not mentally retarded, that is just a way he thinks he can get out of something.” Belinda recently saw the crime scene photos for the first time. "He left her like an animal -- just like a dead animal,” she said. "Everybody wants to have pity for him, but I think about the pity for Julie."

National Coalition to Abolish the Death Penalty

Do Not Execute Eric Randall Nance!

ARKANSAS - Eric Randall Nance - November 28, 2005

Eric Randall Nance, a white man, faces execution Nov. 28, 2005 for the 1993 death of 18-year-old Julie Heath. Nance picked Heath up where her car had broken down on the side of the highway between Malvern and Hot Springs counties. He then reportedly attempted to rape Heath and stabbed her. A hunter found her body in the woods a week later.

During trial Heath’s mother was allowed to testify that she thought Nance deserved the death penalty. Nance’s trial counsel did not object. According to appellate courts, counsel’s failure to object may have been part of counsel’s overall defense strategy. The Supreme Court of Arkansas explained that there is a “strong presumption in favor of counsel’s effectiveness.” Death penalty cases are notorious for the ineffective assistance of counsel that defendants suffer. Therefore it is terrifying that there is a “strong presumption in favor of counsel” in these cases in Arkansas.

The death penalty is a cruel, unusual, inhuman, and archaic form of punishment. The death penalty is costly both monetarily and because of the effect on society of allowing state-sanctioned death. Evidence of the death penalty’s deterrence effect is inconclusive at best.

Please write Gov. Mike Huckabee requesting that Eric Randall Nance’s sentence be commuted to life in prison.

Wikipedia

Eric Nance From Wikipedia, the free encyclopedia

Eric Randall Nance (January 1, 1960 – November 28, 2005) was an American man who was convicted of murder in the state of Arkansas. While on death row, the former heating and air conditioning technician obtained his high school equivalency certificate and penned multiple poems, one of which was set to music and recorded by the Celtic Tenors. Nance was executed in 2005, twelve years following the crime.

The murder

On October 11, 1993, 18-year-old Julie Heath was driving on U.S. Highway 270 between Malvern and Hot Springs, Arkansas to visit her boyfriend in Hot Springs. Nance stated that he stopped to help Heath after her car broke down and offered her a ride to Malvern. The prosecution said that Nance then raped and murdered her. He was later seen in a convenience store wearing no shoes, socks, or shirt. According to the clerk, there were what appeared to be fresh dark, damp stains on his overalls.

Heath's body was found on October 18, 1993 by a hunter. Her throat had been cut. Photographs of the scene show that she was fully clothed, but her belt buckle was partially undone, her pants zipper was not fully up, and the left shoulder of her shirt was torn. The shirt was also on inside out. The medical examiner also reported that her socks and panties were on inside out and her bra was pulled up around the neck and shoulder area. A pubic hair located in Nance's pickup was said by an expert to be microscopically identical to that of Heath.

Nance said he accidentally killed Heath. According to defense testimony, she had become hysterical after seeing a utility knife and began to kick at him. Putting up his hand to stop her, he accidentally lodged the knife in her throat. This version of events was told at the trial by his brother and sister, to whom Nance had told his version of events.

Trial and appeals

Nance was found guilty of capital felony murder, with attempted rape as the underlying felony. During the sentencing phase of the trial, it was revealed that five months before the murder, Nance had been released from a twenty-year sentence for beating two Oklahoma girls in 1982. The jury found that there were no mitigating circumstances in the case, and recommended that the judge sentence Nance to death, which he did on March 31, 1994.

His lawyers argued that it would be unconstitutional (Atkins v. Virginia) to execute Nance, as he was mentally retarded. A psychologist said that Nance had an IQ below 70, whereas a psychiatrist testified that he found Nance to have an IQ of 105. The defense also argued that DNA tests could show that the pubic hair did not come from Heath.

On November 17, 2005, the Arkansas Parole Board recommended, with a vote of 6-1, that Governor Mike Huckabee deny clemency for Nance. The dissenting vote was from one member who wanted to stay the execution to give more time to determine if Nance was mentally retarded. The execution was briefly stayed on November 17 by United States federal judge James Moody of the Eastern District of Arkansas. The stay was vacated by the 8th Circuit Court of Appeals on November 19.

Execution

Originally the execution was scheduled for 8 p.m. on November 28. There was a temporary stay order by Justice Clarence Thomas to give him more time to review the case. Thomas is the justice responsible for handling emergency cases from Arkansas. The stay was vacated shortly afterwards and all appeals denied.

Nance ordered a final meal of two bacon cheeseburgers, french fries, two pints of chocolate chip cookie dough ice cream, and two Coca-Colas. Nance made no last statement. Given a lethal injection, he was pronounced dead at 9:24 p.m. CST. It was the first execution by the state of Arkansas since Charles Laverne Singleton on January 6, 2004.

Witnesses described the execution as surreal. Although Nance offered no last words, his spiritual advisor yelled, "May God have mercy on our souls!", which startled some witnesses.

Writings and song

In 1995, Nance began a decade-long correspondence with James Nelson, an Irish tenor who is critical of the death penalty.[1] Through their friendship, Nelson realized "that Eric's only means of escape from [his] hell's purgatory was through his letters, his memories and his dreams."[1] With fellow Celtic Tenors Niall Morris and Matthew Gilsenan, Nelson set a poem of Nance's to music and entitled it, "Eric's Song". After Nance's execution, the Celtic Tenors released the song on their album, Remember Me.

Malvern Daily Record

"Empty without the presence of Julie Heath." (Wednesday, November 23, 2005 9:26 AM CST)

LITTLE ROCK (AP) - The approaching holiday season will seem empty without the presence of Julie Heath and her mother, say two of Heath's cousins, and they want the man convicted of killing her to die for his crime.

Eric Nance, 45, was convicted of capital murder in the 1993 slaying of the 18-year-old Malvern woman. Her body was found in a wooded area and her throat had been slashed with a box cutter.

Nance had been scheduled for execution Nov. 28, but a federal judge granted a stay of execution last week so his attorneys can argue that he shouldn't be put to death because he is retarded. On Friday, state prosecutors filed an appeal with the 8th U.S. Circuit Court of Appeals at St. Louis in an effort to continue with the execution.

Belinda Crites and Johnnie Hood, Heath's cousins, say they hope the state's lawyers are successful. “It hurts and I want him to get what he deserves,” Belinda Crites told Little Rock television station KTHV. “He gave her no choice,” Crites said. “By him being able to stay in jail he's able to breath and Julie had no right. I can't stand it.”

Heath's mother committed suicide a year after her daughter's murder. Hood says the holiday season means nothing now for the family. “My grandmother, we used to always get together all of us, have a big deal and it's nothing now,” Hood said. “It's like any other day. They prefer we don't even make a big deal about it.”

Crites said she considered what good Nance's death would bring for her and her family. “It was never going to bring Julie or Nancy back, but at least he'll be gone,” she said.

Nance's attorneys had argued that he should be allowed to use mental retardation as a defense. They said Nance is retarded and that his earlier attorneys had failed to raise the issue in his 1994 trial. Moody wrote that Nance's lawyers would have 30 days to file a new claim of mental retardation and that the execution would be delayed until litigation at the 8th Circuit was completed.

"Execution will be carried out as planned. (Thursday, November 17, 2005 8:57 AM CST)

LITTLE ROCK - The execution of convicted murderer Eric Nance, of Malvern, will apparently be carried out as planned. The Nov. 28 execution of Nance should go forward as planned, the state parole board recommended Tuesday.

The board rejected arguments from Nance's attorneys that he is mentally retarded and cannot legally be executed and that DNA tests could exonerate him of attempted rape, an underlying crime that was used to convict Nance of capital murder in the 1993 death of a Malvern woman.

By a vote of 6-1, the board recommended that Gov. Mike Huckabee turn down Nance's clemency request. Board member Bill Walker cast the only dissenting vote, recommending that execution be delayed to determine whether Nance is retarded and what effect an Oklahoma appeal might have on the case.

Alice Stewart, a spokeswoman for Huckabee, said the governor takes all executions seriously and will take the recommendation under advisement. Meanwhile, U.S. District Judge James Moody is to hear a request from Nance's lawyers Wednesday for a stay of execution.

Nance, 45, was convicted of the murder of Julie Heath, 18, of Malvern. A hunter found Heath's body in woods about a week after she disappeared Oct. 11, 1993, and her car was found along U.S. 270. Her throat had been slashed with a box cutter. Family members told the Post-Prison Transfer Board at the clemency hearing last week of the emotional toll Heath's death has had on them, noting that her mother, Nancy, committed suicide.

Federal public defenders reminded the board in a separate session Thursday that the U.S. Supreme Court ruled in 2002 that states cannot execute a mentally retarded person and that a 13-year-old Arkansas law also forbade the practice. They said that Nance's trial lawyers failed to adequately raise that issue and that Nance has been tested by a psychologist since then who concluded he is mentally retarded, with IQ scores of 66 and in the range of 51-59. If not a recommendation of life, they said, the board should consider granting a reprieve to allow more time for the resolution of appeals in Arkansas and Oklahoma.

New DNA tests could show that pubic hair found in Nance's truck was not the victim's, raising reasonable doubt that Nance tried to rape Heath, they said. In addition if Nance's rape conviction in Oklahoma were overturned, that would raise questions about its use as an aggravating circumstance in sentencing Nance to death in the Arkansas case, they said.

State lawyers argued that issues of mental retardation and child abuse had been sufficiently reviewed by the courts. They said psychiatrist David Diner tested Nance after his conviction and found he had an IQ of 103 and wasn't impaired. Nance was a heating and air conditioning technician at the time of Heath's murder and obtained his high school equivalency certificate in prison.

Even if the Oklahoma conviction was overturned or Nance was cleared of attempted rape, it would make no difference to the Arkansas case, the state lawyers said. The jury in Nance's trial found that Nance had killed Heath to cover up criminal behavior, another aggravating circumstance that was used to sentence him to death. And one of two Oklahoma rape victims testified that Nance had raped her, evidence the jury was allowed to use to convict Nance of capital murder.

A Nance family member requesting anonymity the ordeal had been grueling for both member of the Heath family and Nance family. The Nance family member issued the following statement: “Our family feels for the Heath family. There was a loss they can never get back. Ours is a loss we can never get back. My heart has gone to the Heath family since Day 1. It hurts more people than the immediate family. This is a chapter that needs to be closed.”

Arkansas News

"Visitation changes needed, advocate says," by Rob Moritz. (Thursday, Nov 24, 2005)

LITTLE ROCK - A state prison spokesman Wednesday denied a death-penalty opponent's charge that the state has unfairly limited family visits to condemned killer Eric Nance in the days leading up to his scheduled execution. Nance is to be put to death Monday night at the Cummins Unit for killing a Malvern teenager 12 years ago.

Betsey Wright of Rogers, who served as former President Clinton's chief-of-staff when he was Arkansas governor and now ministers to death-row inmates, said this week that Nance's family has not been allowed to take pictures of him during visits. She also complained that prison officials were only allowing three family members to see the death-row inmate. "Betsey Wright's e-mail is just wrong," prison spokeswoman Dina Tyler said Wednesday. "Eric Nance's execution and the visitation leading up to it will be handled the same way all the others have been."

Tyler said it is state Department of Correction policy to expand the visitation privileges for death-row inmates a few days before the pending execution. She said Nance's visits are to be expanded today. "He has visitation scheduled up until the day of his execution," Tyler said. His spiritual adviser and attorney are scheduled to visit him Monday, she said.

Beginning today, Nance will be allowed to see up to four visitors at a time at the Varner Supermax unit, Tyler said. If more than four show up, visitors will be rotated in and out of the room where Nance will be located. Visitors are not allowed to bring cameras into Varner Supermax, but visitors will be allowed to bring cameras and take pictures after Nance is moved to the Cummins unit, where the prison system carries out executions, Tyler said. For security reasons, the department does not reveal when the inmates will be moved to the death chamber, she said.

Nance was convicted in Hot Spring County and sentenced to death in the 1993 murder of a 18-year-old Julie Heath. The teenager disappeared Oct. 11, 1993, and her car was found along U.S. 270. Her throat had been slashed with a box cutter.

"We are going to do Eric Nance's execution like we've done the others before, and that is as professional as possible with respect for Eric Nance, his family and the victim's family," Tyler said.

Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (Ark. 1996) (Direct Appeal).

Defendant was convicted in the Circuit Court, Hot Springs County, John W. Cole, J., of capital murder, and he appealed. The Supreme Court, 318 Ark. 758, 891 S.W.2d 26, ruled that notice of appeal was filed before entry of order denying new trial and, thus, was invalid. Defendant moved for acceptance of untimely notice of appeal. The Supreme Court, 319 Ark. 292, 891 S.W.2d 28, ruled that notice was timely appeal of amended judgment. The Supreme Court, Corbin, J., held that: (1) defendant was not constitutionally entitled to a verbatim transcription of probable cause proceeding, and (2) it was not error for trial court to summarily deny defendant's motion to quash information for lack of probable cause. Affirmed.

CORBIN, Justice.
Appellant, Eric Randall Nance, appeals the amended judgment of the Hot Spring County **117 Circuit Court entered on April 11, 1994, convicting him of one count of capital murder. See Nance v. State, 319 Ark. 292, 891 S.W.2d 28 (1995) (per curiam) (granting motion for rule on the clerk and finding timely notice of appeal from amended judgment); Nance v. State, 318 Ark. 758, 891 S.W.2d 26 (1994) (per curiam) (denying motion for rule on the clerk). Appellant was tried by a jury and sentenced to death by lethal injection. Jurisdiction is properly in this court pursuant to Ark.Sup.Ct.R. 1-2(a)(2). Appellant raises ten points for reversal. We find no error and affirm the trial court's judgment.

Appellant was charged by information, as amended, with capital murder by premeditated and deliberated purpose, Ark.Code Ann. § 5-10- 101(a)(4) (Repl.1993), or, in the alternative, with capital murder by felony murder, Ark.Code Ann. § 5-10-101(a)(1) (Repl.1993). The underlying felonies charged were rape, attempted rape, kidnapping, and attempted kidnapping. The sole underlying felony with respect to which the jury was instructed, however, was attempted rape. The jury returned a verdict of guilty of capital felony murder.

The charges arose from the following events. On October 11, 1993, the vehicle of the victim, Julie Heath, was reported abandoned on Highway 270, west of Malvern near Interstate 30. On October 18, 1993, the victim's body was discovered on rural property just south of Highway 171 approximately 7.5 miles from the location where the victim's vehicle was found. The medical examiner, Dr. Frank Peretti, testified that it was likely that there was trauma to the skull and neck region of the victim's body, based on the accelerated skeletonization and evidence of insect activity in that area as compared with the relatively intact remainder of the body. Although the autopsy failed to reveal the cause or manner of death, Dr. Peretti could not rule *591 out death by knife wound and testified that examination of the victim's shirt showed defects consistent with a cutting wound.

At trial, appellant's brother, Vernon Nance, and appellant's sister, Belinda Christopher, testified that, after initially denying any involvement in the crime, appellant later stated that he had accidentally killed the victim. Vernon Nance testified that appellant stated that he gave the victim a ride into Malvern because her automobile had broken down on the road, that the victim saw his work knife slide out of his pocket as they drove, that the victim asked him to put the knife away, that, as he moved to put the knife in the glove compartment, the victim turned sideways in the seat and started kicking him, that he put his hand up to keep her from kicking and hitting him, and that the knife fatally lodged in her throat. Appellant made a similar statement to his sister.

* * *

We find that the circumstantial evidence of attempted rape is substantial. Some of this evidence includes:
(1) Opinion testimony of criminalist Donald E. Smith that blood, head and pubic hairs recovered from appellant's vehicle belonged to the victim, and that hairs recovered from the victim's clothing belonged to appellant;
(2) Opinion testimony of forensic serologist Kermit Channell that, based on his tests, he could neither confirm nor deny that sexual intercourse had occurred, that the exposure of the victim's body to the weather could account for lack of some evidence, and that enzyme-characteristic analysis showed blood recovered from appellant's vehicle was consistent with the victim;
(3) Opinion testimony of forensic scientist Richard Guererri that DNA analysis of the victim's muscle tissue was consistent with blood recovered from appellant's truck seat and from the victim's shirt pad;
(4) Testimony of Dr. Peretti that the victim's brassiere was pulled up around the neck and shoulder area, her socks and panties were inside out, her pants were partially zipped, and her shirt was inside out;
(5) Testimonies of two workers at a convenience store located in Malvern near the interstate, Tina Loy and Christy Sims, that appellant entered the store at approximately 12:30 a.m. on October 12, 1993, appeared to be hot and was wearing bib overalls with dark stains on the front that appeared fresh, and wore no shirt, shoes or socks;
(6) Testimony of appellant's girlfriend, Christy Jones, that appellant left her house in Hot Springs at approximately 9:30 p.m. on October 11, 1993, wearing overalls and a tee shirt; and
(7) Testimony of Sheriff's Officer Kirk McClenahan that the victim's body was discovered with the shirt turned inside out with one shoulder pad on the outside.

* * *

Appellant next argues that no probable cause existed for the search. We disagree. In reviewing the trial court's ruling on the motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the ruling is clearly against the preponderance of the evidence. Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992). It is not necessary that sufficient information for a conviction be available when the search warrant is obtained, only that there is probable cause to believe that the place to be searched contains evidence of the crime. Johnson v. State, 270 Ark. 247, 604 S.W.2d 927 (1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981). We have no doubt that such probable cause existed here.

The search warrant, issued on October 29, 1993, was based on Lt. Williams's affidavit of the same date. Lt. Williams averred that the victim was reported missing since the evening of October 11, 1993, by her mother to the Malvern Police Department; that the victim's vehicle was found abandoned on Highway 270, west of Malvern and approximately three miles west of Interstate 30 on the evening of October 11, 1993; that the victim's body was discovered on October 18, 1993, on property just south of Highway 171, approximately 7.5 miles from the location where the victim's vehicle was found; that the medical examiner estimated the time of the victim's death to be between midnight and 1:15 a.m. on October 12, 1993; that the state police received a call on October 20, 1993, that appellant voluntarily committed himself to the Arkansas State Hospital, apparently distressed due to some incident in which he may have been involved; that appellant was incarcerated for eleven years in Oklahoma for rape and sodomy and was released on May 8, 1993; that appellant drove a truck; that, at approximately 9:00 p.m. on October 11, 1993, Rebecca Doyle observed a truck behind a car in the area where the victim's vehicle was found; that appellant's girlfriend, Christy Jones, stated that appellant left her home in Hot Springs in his truck headed for Malvern on October 11, 1993, between 9:00 and 9:30 p.m.; that, on October 12, 1993, shortly after midnight, two employees of a convenience store near Highway 270 and Interstate 30 were told by appellant that his truck had broken down and that he had run to the store; that appellant immediately went to the bathroom in the convenience store and came out drying his hands; that appellant called his mother and brother on October 12, 1993, shortly after midnight, to help him fix a flat on his truck, which was located on Highway 171 approximately 1.1 miles from the place where the victim's body was found; that Ms. Jones stated appellant washed his truck and shampooed its interior on October 12, 1993, and appeared depressed; and that appellant's minister reported that appellant told him, on October 14, 1993, that he feared facing a fabricated charge involving "the girl missing in Malvern."

* * *

Here, the jury unanimously found two aggravating circumstances existed beyond a reasonable doubt at the time of the commission of the capital murder, and no mitigating circumstances. We conclude that no erroneous finding of any aggravating circumstances with respect to the death penalty was found, and, therefore, we do not conduct a harmless-error review under Ark.Code Ann. § 5-4-603(d) (Repl.1993). Further, in accordance with Ark.Sup.Ct.R. 4-3(h), the record has been reviewed for prejudicial errors objected to by appellant but not argued on appeal, and no such errors were found. Affirmed.

Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (Ark. 1999) (PCR).

Petitioner who was convicted of capital felony murder and sentenced to die by lethal injection, 323 Ark. 583, 918 S.W.2d 114, sought postconviction relief. The Circuit Court, Hot Spring County, John W. Cole, J., denied relief without hearing, and petitioner appealed. The Supreme Court, Arnold, C.J., held that: (1) hearing was not required; (2) conclusory allegations were insufficient to make out claims for ineffective assistance; and (3) equal protection claim was waived. Affirmed.

W.H. DUB" ARNOLD, Chief Justice.
The appellant, Eric Randall Nance, was convicted of capital felony murder and sentenced to die by lethal injection. This Court affirmed the conviction and sentence in Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996). Appellant filed a petition for certiorari with the United State Supreme Court, seeking review of this Court's decision. The Supreme Court denied certiorari. Appellant filed a timely petition for relief under Rule 37 of the Arkansas Rules of Criminal Procedure, alleging, among other things, that his trial counsel provided ineffective representation during the trial and penalty phases of his trial. Appellant requested a hearing. The State filed a motion for summary judgment on the pleadings on November 12, 1997. Appellant filed a response. On **503 December 3, 1998, without having held a hearing, the trial court issued an order denying appellant's petition for postconviction relief. It is from that order that appellant brings the instant appeal. On appeal, appellant asserts the following:

1) The trial court erred in dismissing appellant's petition for relief without holding an evidentiary hearing on his claims of ineffective assistance of counsel;
2) The trial court's failure to grant appellant a hearing violates his right to equal protection of the law.

* * *

Even constitutional questions must first be presented to the trial court in order to be preserved for appellate review. Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998). Having failed to ask for Rule 37.5 to be applied to him below, appellant may not complain on appeal that he was somehow deprived of its application. Affirmed.

Nance v. State, Not Reported in S.W.3d (Ark. 2005) (State Habeas).

Background: Following affirmance on direct appeal of his capital felony murder conviction, 918 S.W.2d 114, and denial of state post-conviction relief, 4 S.W.3d 501, petitioner sought writ of habeas corpus in federal district court. After denial of the writ was affirmed, 392 F.3d 284, petitioner asked the state Supreme Court to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.

Holding: The Supreme Court held that petitioner did not show good cause to reinvest jurisdiction in the trial court to consider his contention that he could not be sentenced to death because he was mentally retarded. Petition denied.

Nance v. Norris, 392 F.3d 284 (8th Cir. 2004) (Habeas).

Background: Following affirmance on direct appeal of his conviction of capital felony murder, 918 S.W.2d 114, and denial of state post-conviction relief, 4 S.W.3d 501, petitioner sought writ of habeas corpus. The United States District Court for the Eastern District of Arkansas, James M. Moody, J., denied relief, and petitioner appealed.

Holdings: The Court of Appeals, Beam, Circuit Judge, held that:
(1) evidence of attempted rape was constitutionally sufficient to sustain conviction of felony murder;
(2) petitioner did not show actual innocence to excuse procedural default on claims on basis of evidence that was not newly discovered;
(3) state court did not unreasonably apply federal law in rejecting claim that counsel were ineffective in making funding request for experts;
(4) state court did not unreasonably apply federal law in finding that counsel were not ineffective in failing to present certain mitigation evidence; and
(5) deference was likewise owed state court's determination that counsel's failure to object to victim-impact evidence was matter of trial strategy. Affirmed.

BEAM, Circuit Judge.
Eric Randall Nance killed Julie Heath on October 11, 1993. The State of Arkansas charged him with capital felony murder with attempted rape as the underlying felony. After a jury trial, Nance was convicted. That crime was punishable by death under Arkansas law. The jury was again called upon to determine the aggravating and mitigating circumstances involved in Nance's case and make a recommendation regarding the death penalty. The jury found that two statutory aggravating factors existed, no mitigating factors existed, and recommended the death penalty, which the trial court imposed.

Nance appealed his conviction and sentence to the Arkansas Supreme Court, and he unsuccessfully sought state post-conviction relief. On September 13, 2000, Nance filed a petition for federal habeas relief in the Eastern District of Arkansas. The district court FN1 denied the petition on January 22, 2003, and issued a certificate of appealability on April 16, 2003, on the following claims: (1) insufficiency of the evidence of attempted rape and (2) ineffective assistance of counsel. Nance claimed that his trial counsel were ineffective for a variety of reasons, four of which are included in the certificate. First, Nance argued that his trial counsel were ineffective for failing to investigate, present, and argue evidence of Nance's innocence of attempted rape during the guilt phase of his trial. Second, Nance argued that his trial counsel were ineffective for failing to support their requests for funding to employ experts in both the guilt and penalty phases *287 of his trial. Finally, Nance argued that his trial counsel were ineffective in the penalty phase of his trial for failing to develop a mitigation case and for failing to object to victim-impact testimony. We affirm the district court's denial of the habeas petition.

I. FACTS

Julie Heath was last seen alive on October 11, 1993. That evening she left her home in Malvern, Arkansas, to visit her boyfriend in Hot Springs, Arkansas. Ms. Heath's car broke down on the way. Nance was returning to Malvern from Hot Springs in his pickup at about this time. When he left Hot Springs, he was dressed in a shirt, bib-overalls, and shoes. According to Nance, he stopped to help and offered Ms. Heath a ride to Malvern. Nance was later seen in a convenience store with no shoes, socks, or shirt. He also had dark, damp stains on his overalls that appeared to be fresh.

On October 18, 1993, Ms. Heath's body was found in a wooded area just off an unpaved road about seven miles from where she had left her car. The body was fully clothed. A photograph of the clothed body that was admitted into evidence FN2 shows that the belt buckle was partially undone; the pants' zipper was partially zipped; and the portion of the shirt covering the body's right shoulder was torn. An officer testified at trial that the shirt was inside out when the body was found. And photographs of the shirt FN3 once it was removed from the body reveal that the shirt's torn shoulder was its left shoulder. The officer also testified that he concluded the shirt was wrong-side out because when he saw the clothed body in the woods, the shirt's shoulder pad was on the outside surface of the garment. The shirt's other shoulder pad was found nearby.

FN2. We note that the State has included two photographs in its Addendum. One of those photographs (Plaintiff's Exhibit 7 at trial), however, was not admitted into evidence. We base this recitation of facts on the evidence before the jury, with the narrow exception of the item mentioned below.

FN3. These photographs were not used as evidence in the trial court, but the actual shirt was. We do not have the shirt and these photographs were used by Nance in the district court. No one has questioned whether they accurately depict the shirt.

The medical examiner testified that when the body was presented to him it was dressed in one black shirt which was inside out, one pair of black jeans, one black belt, one pair of black socks, which were inside out, one pair of black shoes, a white bra, which was pulled up around the neck and shoulder area, pink panties, which were inside out. The shirt and pants were intact around the body. The belt was buckled and the zipper was partially zipped and a slightly soiled sanitary napkin was present. The medical examiner also testified that the shirt was torn or cut near the shoulder. A search of Nance's pickup revealed red pubic hairs in the cab. Ms. Heath had red hair and an expert testified that these hairs were microscopically similar to some taken from Ms. Heath's body.

Nance's defense theory was that he accidentally killed Ms. Heath. He claimed that when she was riding in his pickup she saw his knife (a box cutter), became hysterical, started kicking him and pulling his hair, and that he put his hand up to make her stop. He claimed that after he put his hand up, he realized the knife had become lodged in her throat. Though Nance did not testify, this version of his story arose at trial through his brother and sister, to whom he had told the same story.

In the guilt phase of the trial, the jury found Nance guilty of capital felony murder with attempted rape as the underlying felony. In the sentencing phase, the State presented as evidence six prior felony convictions stemming from Nance's rape and beating of two Oklahoma girls in 1982. Nance was released from his twenty-year sentence for those convictions five months before he killed Ms. Heath. Ms. Heath's mother also testified about how her daughter's death affected her and her family: Mr. Nance took my only daughter. I believe that he deserves the death penalty. He has ruined my family's life. I have been under constant doctor's care since her death. I've had to see a psychologist once a week. I'm on numerous medications. My life will never be the same again. This has affected all of my family. It's been very hard on my husband and my son. We basically do not know how we can live without her.

The State also argued that Nance killed Ms. Heath to avoid arrest. The jury found that two statutory aggravating circumstances existed beyond a reasonable doubt, that no mitigating circumstances existed, that the aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt, and that “the aggravating circumstances justify beyond a reasonable doubt the sentence of death.” The judge, following the jury's recommendation, sentenced Nance to death.

Nance appealed his conviction and sentence to the Arkansas Supreme Court, raising ten state-law grounds for reversal. Nance v. State, 323 Ark. 583, 918 S.W.2d 114, 117 (1996) ( Nance I ). That court specifically refused to consider his constitutional arguments because they were supported by “conclusory allegations without supporting authority.” Id.

Nance also filed for post-conviction relief in the trial court under Rule 37 of the Arkansas Rules of Civil Procedure, “alleging, among other things, that his trial counsel provided ineffective representation during the trial and penalty phases of his trial.” Nance v. State, 339 Ark. 192, 4 S.W.3d 501, 502 (1999) ( Nance II ). The trial court denied relief without a hearing and the Arkansas Supreme Court affirmed. Id. at 506.

Nance then filed a federal habeas petition in the Eastern District of Arkansas, raising approximately fourteen issues. The district court, on Nance's motion, appointed Dr. Bradley Diner under 21 U.S.C. § 848(q) to evaluate Nance's mental health. In Dr. Diner's initial report, he relates what Nance told him about Ms. Heath's death-a yet-unheard version of the facts. According to the report, Nance was involved in a sexual relationship with Ms. Heath. On October 11, 1993, Nance stopped at Wal-Mart to purchase a new box cutter. While there, he overheard someone say that Ms. Heath was HIV-positive. Given his past relations with Ms. Heath, this information troubled Nance. On his way home, he saw Ms. Heath stopped on the side of the road. He picked her up, offering to give her a ride back to Malvern. On the way, he confronted her about the HIV rumors he had heard. Unsatisfied by her response, Nance became quite angry and hit Ms. Heath so hard that he broke her neck. Nance also said that he could not remember much of what happened. Dr. Diner also submitted a supplemental report. In that report, Dr. Diner presents a picture of Nance's social and family history, posits that those experiences contributed to the “worry and fear” Nance experienced on the night of October 11, 1993, and concludes that all of this culminated in Ms. Heath's death.

The district court dismissed the petition on January 22, 2003, and issued its memorandum opinion the next day. It is not clear how much, if any, of Dr. Diner's information was before the district court when it denied the petition. The memorandum opinion refers to some of Dr. Diner's work, while the certificate of appealability says Dr. Diner's reports were filed the day the memorandum opinion was filed. Even though the district court did not consider some or all of Dr. Diner's reports when it drafted its memorandum opinion, it issued a certificate of appealability on five issues, in part, because of Dr. Diner's reports: “[A] Certificate of Appealability will issue as to Petitioner's claim ··· so that the Circuit Court may determine the propriety of the consideration of this evidence arising from the report of Dr. Diner.”

Nance first makes a sufficiency-of-the-evidence, due-process claim under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On direct appeal, the Arkansas Supreme Court addressed Nance's sufficiency claim on state-law grounds by evaluating whether the trial court erred in denying Nance's motion for a directed verdict. As mentioned above, the court expressly refused to consider Nance's constitutional arguments. Nance I, 918 S.W.2d at 117. In reviewing the sufficiency of the evidence, the Arkansas court applied its “substantial evidence” standard. Id. (“ ‘Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture.’ ”) (quoting Pike v. State, 323 Ark. 56, 912 S.W.2d 431, 433 (1996)). We, of course, do not evaluate whether the evidence was sufficient under state law, because errors of state law are not cognizable in federal habeas courts. See28 U.S.C. § 2254(a). And this standard is arguably different than the due-process standard enunciated in Jackson.FN4 Under the Antiterrorism and Effective Death Penalty Act, we must give a great deal of deference to state-court adjudications of constitutional claims, so long as those claims were “adjudicated on the merits in State court.” 28 U.S.C. § 2254(d). An adjudication on the merits does not require that a state court invoke any particular language or devote any specific degree of attention to the claim, Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir.2004), petition for cert. filed, (U.S. Nov. 12, 2004) (No. 04-7227), but when a state court specifically disclaims addressing constitutional arguments, at the very least, section 2254(d) does not apply. So we review the sufficiency claim de novo, keeping in mind that underlying determinations of material fact that occurred in the state court (here the trial court) are “presumed to be correct” unless “rebutt[ed] ··· by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

FN4. We express no opinion on whether this standard is lower, higher, or the same as the Jackson standard.

Under Jackson, a conviction transgresses the bounds of due process if “no rational trier of fact could have found *290 proof of guilt beyond a reasonable doubt.” 443 U.S. at 324, 99 S.Ct. 2781. All conflicting inferences that arise from the historical facts must be resolved in favor of the prosecution. Id. at 326, 99 S.Ct. 2781. Nance argues that there was insufficient evidence of the attempted rape. If we review the historical facts and construe them in the light most favorable to the prosecution (as we must), we conclude that Nance unbuckled Ms. Heath's belt, unzipped her jeans, and removed her shirt and socks. Ms. Heath's pubic hair was also found in Nance's truck. From this, a reasonable jury could conclude that Nance removed Ms. Heath's clothing. Removing Ms. Heath's clothing surely corroborates an intent to rape, at least where consent is not at issue, and constitutes a substantial step in the commission of that offense. Nance was also seen just after the killing in a state of partial undress. Thus, a reasonable jury could conclude that Nance removed Ms. Heath's and his own clothing with the intent to rape her.

That is enough for attempted rape under Arkansas law. See Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999); Ark.Code Ann. §§ 5-3-201 & 5-14-103. Nance's arguments to the contrary, while appropriately made to a jury, are unconvincing here. For example, Nance argues that the shirt found on Ms. Heath's body was not inside out. Given the location of the tear or cut in the shirt's shoulder, a reasonable juror could have concluded that the shirt was inside out when the body was found. On the body, the tear appeared on the right shoulder. After the shirt was removed and turned right-side in, the tear was to the left shoulder of the shirt. And an officer who saw the body at the scene, as well as the medical examiner who received the body from the crime scene, testified that the shirt was inside out. Defense counsel made arguments to the contrary at trial, to no avail.

Nance argues that the sanitary napkin found with the panties establishes that the evidence is insufficient under Jackson. The medical examiner testified that the sanitary napkin “was present” and that the panties were on inside out. Defense counsel argued that, given the presence of the sanitary napkin, there was no inference that Nance ever removed those panties; Ms. Heath simply put them on inside out earlier that day. The prosecutor did not argue to the contrary, admitting in closing that sometimes “those kind of mistakes may have been made in dressing.” Nance places a great deal of emphasis on the medical examiner's report that stated more specifically that the sanitary napkin was in the panties and over the body's genitalia. But that evidence was never offered in the trial court. It is therefore beyond our Jackson review. Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). And, in any event, we are not convinced that the jury drew the conclusion that Nance says it drew-that he removed Ms. Heath's panties.

After reviewing the record with the appropriate level of deference, we conclude there was no error under Jackson. Nance also appears to argue that Dr. Diner's report “casts further doubt on the State's theory that Nance attempted to rape Ms. Heath.” Appellant's Br. at 9. This evidence also was never presented to the jury; thus, it has no place in our Jackson analysis. Herrera, 506 U.S. at 402, 113 S.Ct. 853.

Next, Nance claims his trial counsel were ineffective in the guilt phase of his trial. First, he argues that they failed to investigate, present, and argue evidence of Nance's innocence of attempted rape. *291 The district court held that this guilt-phase ineffective-assistance-of-counsel claim was procedurally defaulted because it had never been presented to the state courts. The State has waived exhaustion. Nance argues that Dr. Diner's report should excuse the procedural default under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). We disagree.

Schlup allows a petitioner to raise a “gateway claim of actual innocence,” Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir.2001), that, if established, will allow him to present otherwise procedurally defaulted claims to the federal habeas court. But the Schlup standard is quite high; the petitioner must come forward with new reliable evidence that was not available at trial, id., and he must show that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup, 513 U.S. at 327, 115 S.Ct. 851 (adopting the Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), standard). The sort of evidence that cannot be used for a Schlup gateway claim includes “evidence [that] could have been discovered earlier in the exercise of due diligence.” Cornell v. Nix, 976 F.2d 376, 380 (8th Cir.1992) (en banc); accord Meadows v. Delo, 99 F.3d 280, 282 (8th Cir.1996).

Nance's evidence is simply not new. His statements to Dr. Diner amount to a self-written affidavit, even though it is embodied in Dr. Diner's report. Conveniently, this affidavit does cast some doubt on an attempted-rape theory because the implications of Nance regarding Ms. Heath as HIV-positive draw into question whether he had the requisite intent to rape her. But even assuming this is true, all of this information was available to Nance at trial, on direct appeal, and throughout his post-conviction proceedings. Nance has provided no evidence of any sort of impediment to his ability to recall this information. And he does not challenge his competency at trial, including his ability to aid in his own defense. See Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (stating that competency to stand trial includes the ability to aid in one's own defense). So he cannot now try to excuse a procedural default under Schlup.

Nance makes other arguments to bypass the procedural default as to this claim. But even if the default is excused, Nance's claim has no merit. See Stephens v. Norris, 83 F.3d 223, 224 (8th Cir.1996) (stating that a court may bypass the procedural-default question and proceed to the merits). Nance claims his trial counsel were ineffective for failing to investigate, argue, and present evidence of innocence. Nance makes no effort to show what a more thorough investigation would have revealed. So his claim boils down to one of a failure to present and argue the available evidence of innocence. Again, Nance cites the shirt and panties issues as areas in which counsel fell short at trial. But counsel made arguments about both. With regard to the shirt, it is unclear what more counsel could have done. In closing arguments, Nance's counsel presented the shirt to the jury and pointed out the grass stains that Nance now argues are so important. Thus, in this regard, counsel's performance did not fall below an objective standard of reasonableness under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the panties and the sanitary napkin, Nance's counsel made the argument Nance says they should have made, but, he claims, they failed to introduce the autopsy report. Given the prosecutor's lack of argument in closing, defense counsel's specific reference to the medical examiner's testimony that the pad was in place, and the other evidence in the case, we see no “reasonable*292 probability” that, but for this purported failure of counsel, “the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695, 104 S.Ct. 2052.

Nance also argues that his trial counsel were ineffective for not arguing to the jury that the bra on Ms. Heath's body was not “pulled up around the neck and shoulder area” as the medical examiner testified. The photo presented to the jury clearly shows that the bra was not in that position when the body was found. But this does not make the medical examiner's statement any less true, because the bra could have gotten in that position when the body was moved. That photo, which the jury had access to and presumably viewed, showed exactly what Nance claims his counsel failed to bring to the attention of the jury. And even though defense counsel did not argue the point, the prosecutor also did not argue the point. So we can see no way in which this omission fell below an objective standard of reasonableness or prejudiced Nance. In sum, Nance's ineffective-assistance-of-trial-counsel claim remains procedurally barred despite Schlup, and it is without merit.FN5

FN5. It is not clear whether Nance has incorporated the Dr. Diner information into his ineffective-assistance claim or simply argued it as a way of lifting the procedural bar. Nance's knowledge of these events is, as we have held, not new evidence. And, again, Nance has not challenged his ability to assist in his own defense. Thus, insofar as Nance may be asserting an ineffective-assistance claim based on the Dr. Diner information, two possible scenarios appear. First, Nance did not tell his trial counsel about his HIV story, in which case his counsel did not breach any objective standard of reasonableness. Or, second, Nance did tell them and they chose as a matter of strategy not to pursue that theory of defense. This choice would not be unreasonable because if Nance's story were presented, the jury would then know that Nance had told four different stories of the incident, and it likely would have strengthened the State's case for premeditated murder or even the other lesser-included murder offenses that were charged. We see no merit in this claim.

Second, Nance argues that his trial counsel were ineffective in the guilt and penalty phases of his trial because they failed to support their requests for funding to employ various experts-a psychologist, a juristic psychologist, and an investigator. The trial court denied these requests. This claim was not procedurally defaulted because it was presented to the Arkansas court in Nance's Rule 37 motion and, neither that court nor the Arkansas Supreme Court disposed of the claim under an independent and adequate state procedural rule. Each court addressed the claim on the merits. This prior adjudication makes section 2254(d)'s deferential standard of review applicable. Under that standard, the district court was bound to deny the petition unless the state court's decision “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). The district court concluded the Arkansas court's disposition of the claim did not exceed the bounds of section 2254(d). We agree.

The issue here is only whether Nance's trial counsel were ineffective for failing to substantiate their claims to the trial court that various experts were needed for Nance's defense. The federal habeas court also considered Nance's claim that his constitutional rights were violated because the trial court denied his requests for these same experts. It concluded that Nance's rights under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (holding that indigent defendants have a due-process right to psychiatric assistance in some circumstances), had not been violated. The district court did not certify that issue for appeal, so we do not address it. We do note, however, that the basis for the district court's decision on the Ake claim was that Nance had not made a sufficient showing of need. Nance claims now that the failure to make the necessary showing was attributable to his trial counsel and that this was objectively unreasonable because Nance badly needed that assistance. Of course, the original Ake arguments rested on the notion that Nance, through counsel, had made a sufficient showing of need. In any event, Nance has failed to overcome section 2254(d). The Arkansas Supreme Court articulated the Strickland standard and applied it to the limited facts Nance presented. Nance II, 4 S.W.3d at 504. Nance has offered no reason why that court's determination “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), in light of the record before it. See Holland v. Jackson, --- U.S. ----, ----, 124 S.Ct. 2736, 2738, 159 L.Ed.2d 683 (2004) (reminding courts that the section 2254(d) inquiry must be made in light of the record before the state court). In short, Nance offered no basis for funding that existed at the time of trial that counsel failed to communicate to the trial court.

Nance's next claim has to do with the effectiveness of his penalty-phase trial counsel. He argues that his penalty-phase trial counsel failed to properly develop a mitigation case. This claim is closely related to Nance's funding-request claim because, he says, psychiatric assistance would have enabled him to present more evidence of mitigation. But whichever way Nance presents the claim, it is without merit under AEDPA. The mitigation claim was also adjudicated on the merits in state court. Thus, section 2254(d) governs our review. The Arkansas Supreme Court, in ruling on the Rule 37 appeal, held that Nance had failed to establish both aspects of Strickland: objectively unreasonable representation and prejudice. As with the funding-request claim, Nance has not explained why the Arkansas Supreme Court's ruling, on the record that was before it, is not entitled to section 2254(d) deference. And, again, we find no error in the Arkansas Supreme Court's application of law to fact or its conclusion.

Nance's final claim is that his penalty-phase trial counsel were ineffective because they failed to object to victim-impact testimony. Ms. Heath's mother, Nancy Heath, testified at the penalty trial. She said, “I believe that he deserves the death penalty.” This statement is inadmissible under Arkansas law, see Greene v. State, 343 Ark. 526, 37 S.W.3d 579, 584 (2001), but that does not mean the failure to object falls below a standard of objective reasonableness. In fact, a reasonable lawyer may wish to refrain from objecting to this type of statement when uttered by the victim's grieving mother, in front of a jury, and in the midst of her impact testimony. Of course, we need not go that far. This claim was adjudicated on the merits in the Arkansas Supreme Court in the Rule 37 appeal, so section 2254(d) applies. The Arkansas Supreme Court found that Nance had not established professionally unreasonable representation with regard to this claim, because not objecting to such testimony was a valid trial strategy. Nance II, 4 S.W.3d at 505. And it concluded that Nance had not shown prejudice-a reasonable probability that Nance would not have been sentenced to death had counsel objected. Id. We do not think the Arkansas Supreme Court misapplied Strickland. And, while we may have our doubts about whether it was reasonable for counsel not to object, we can only grant the writ if we think the Arkansas court applied Strickland unreasonably. It did not, and we have found no materially indistinguishable cases from the Supreme Court of the United States.

We have evaluated the balance of petitioner's claims that were certified for appeal, including his various claims for an evidentiary hearing, and we find them without merit.

CONCLUSION

We affirm.