Lee v. Hobbs

Filing 105

ORDER denying 97 Motion for Stay and Abeyance of Federal Proceedings filed by Ledell Lee. Signed by Judge Jimm Larry Hendren on 9/20/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
LEDELL LEE

PETITIONER
v.

CASE NUMBER 5:01CV00377JH

RAY HOBBS1, Director of the
Arkansas Department of
Correction

RESPONDENT
O R D E R

Now on this 20th day of September, 2012, comes on for
consideration petitioner's Motion For Stay And Abeyance Of Federal
Proceedings (docket #97), and from said motion, and the response
thereto, the Court finds and orders as follows:
1.

Petitioner Ledell Lee ("Lee") was convicted in Arkansas

State court of capital murder, and sentenced to death, for the
murder of Debra Reese.2
on appeal.

His conviction and sentence were affirmed

Lee v. State,

327 Ark. 692, 942 S.W.2d 231 (Ark.

1997).
2.

Lee filed a petition for post-conviction relief pursuant

to Ark.R.Crim.P. 37 ("First Rule 37 Petition"), alleging that he
had received ineffective assistance from his attorneys in the
murder case. The trial court denied the petition, and this denial
was affirmed on appeal.

Lee v. State, 343 Ark. 702, 38 S.W.3d 334

1
Ray Hobbs is the current Director of the Arkansas Department of Correction.
Clerk is directed to correct the docket accordingly. See F.R.C.P. 25(d).

2

jury.

This was Lee's second trial for the Reese murder.

The

The first one ended in a hung

(Ark. 2001), mandate recalled by 367 Ark. 84, 238 S.W.3d 52 (Ark.
2006).
3.

Lee then filed a Petition For Writ Of Habeas Corpus

("Habeas Petition") in United States District Court, asserting 19
claims for relief.
On April 2, 2003, United States District Judge George Howard,
before whom the Habeas Petition was then pending, noted from the
transcript of the First Rule 37 Petition that Lee's attorney at
that time "may have been impaired to the point of unavailability
on one or more days of the Rule 37 hearing."

Judge Howard

ordered that the Habeas Petition be held in abeyance, and the
matter "remanded for the trial court to take appropriate action to
allow Petitioner to present relevant evidence and argument in
favor of his Rule 37 petition issues."
4.

This remand order was appealed, and the Eighth Circuit

affirmed.

Lee v. Norris, 354 F.3d 846 (8th Cir. 2004).

The court

therein said that "all of the claims alleged in [Lee's] petition
had been exhausted," but that "one unexhausted claim" not in the
Habeas Petition was raised by Judge Howard.

These circumstances

were, in the Eighth Circuit's view, "truly exceptional," and
justified Judge Howard in holding the Habeas Petition in abeyance.
The

"unexhausted

claim,"

as

articulated

by

the

Eighth

Circuit, was "whether Mr. Lee had been deprived of his due process
rights

(as

well

as

his

state-law
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right

to

qualified

post-

conviction counsel) by the conduct of his appointed counsel during
the post-conviction proceedings in the state courts."
5.

Lee returned to State court, where he moved the Arkansas

Supreme Court to recall the mandate issued on appeal of the First
Rule 37 Petition.

Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (Ark.

2006).

In agreeing to recall the mandate, the Arkansas Supreme

Court

said that "until [Lee] has been afforded a new Rule 37

proceeding,

he

unexhausted."

has

potential

state

claims

that

remain

The matter was remanded to the trial court for a

new post-conviction proceeding.
6.

A new attorney was appointed to represent Lee, and a new

Rule 37 proceeding ("Second Rule 37 Petition") was conducted.
This petition was also denied, and the denial was affirmed on
appeal. Lee v. State, 2009 Ark. 255, 308 S.W.3d 596 (Ark. 2009).
7.

On November 9, 2009, the Supreme Court denied certiorari

to Lee in connection with the Second Rule 37 Petition, Lee v.
Arkansas,

130

S.Ct.

555

(2009),

and

on

January

21,

2010,

Respondent moved to lift the stay. On March 15, 2010, this Court,
to whom the matter had been transferred during the stay, lifted
the stay.

On September 14, 2011, the Court conducted a status

conference, and allowed Respondent to file an amended response to
the Habeas Petition. That response was duly filed, and on January
26, 2012, Lee filed a traverse.
8.

Rather than allowing matters to proceed to a decision at
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this point, on February 2, 2012, Lee moved to once again stay the
proceedings and hold the case in abeyance, contending that his
counsel in the Second Rule 37 Petition was "grossly incompetent"
and that there had been a breakdown in the post-conviction
process.

As a result, he contends that there are "potentially

meritorious claims for relief that are not exhausted and/or
undeveloped"3 and that "many of petitioner's claims cannot be
fully and fairly adjudicated by this Court or any other court
without further development of the record in the state courts."4
Defendant opposes this second stay.
9.

Before a federal district court can review the merits of

a state prisoner's habeas claims, normally the petitioner must
exhaust available state judicial remedies.

Picard v. Conner, 404

U.S. 270, 275 (1971). The doctrine of exhaustion of remedies,
codified in the federal habeas corpus statute,

28 U.S.C. §

2254(b)(1), recognizes that state courts should have a proper
opportunity to address a petitioner's claims of constitutional
error before those claims are presented to the federal courts.
Coleman v. Thompson, 501 U.S. 722, 729-32 (1991).
10.

The existence of unexhausted claims in a habeas petition

presents a problem, in that "federal district courts may not
adjudicate mixed petitions for habeas corpus, that is, petitions

3

Document #97, page 12.

4

Document #97, page 6.

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containing both exhausted and unexhausted claims."
Weber, 544 U.S. 269, 273 (2005).
courts have three options:

Rhines v.

Where that situation obtains,

they can dismiss the petition; they

can allow the petitioner to amend and delete the unexhausted
claims; and, under certain circumstances, they can stay the
petition and hold it in abeyance while the petitioner returns to
state court to exhaust the unexhausted claims.
11.

Id.

The circumstances under which Rhines authorizes the stay

and abeyance procedure are these: there must be good cause for
petitioner's failure to exhaust; the unexhausted claims must not
be "plainly meritless"; and there must be "no indication that the
petitioner engaged in intentionally dilatory litigation tactics."
Given proper circumstances, Rhines teaches that "it likely would
be an abuse of discretion for a district court to deny a stay and
dismiss a mixed petition."
12.

The foregoing summary of current habeas law establishes

that there are four questions that must be resolved in Lee's favor
for him to prevail on the motion now under consideration:
(a)

Does Lee's Habeas Petition contain unexhausted claims

for relief?
(b)

Is there good cause for Lee's failure to exhaust those

claims?
(c)

Do

the

unexhausted

claims

meritless" test?
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pass

the

"not

plainly

(d)

Is there any indication that Lee is or has been engaged

in intentionally dilatory litigation tactics?
13.

The first question is whether Lee's petition contains

unexhausted claims.

Judge Howard did not stay Lee's case because

he found that Lee's Habeas Petition contained an unexhausted
claim. Instead, he found, sua sponte, "an issue not raised in the
petition which precludes resolution at this time, in that there
are state court issues which must be resolved by the return of
this

case

for

a

new

hearing

pursuant

to

Arkansas

Criminal

Procedure Rule 37.5."
The Eighth Circuit, on appeal of Judge Howard's decision,
said that all of the claims in Lee's Petition had been exhausted,
but

it

described

the

"unexhausted claim."

issue

raised

by

Judge

Howard

as

an

In recalling the mandate, the Arkansas

Supreme Court said that Lee had "potential state claims that
remain unexhausted."
From the foregoing, the Court concludes that Lee's Habeas
Petition

is

not

a

"mixed

petition,"

unexhausted as well as exhausted claims.

i.e.,

one

containing

While Lee did have an

unexhausted potential claim, i.e., whether he was deprived of due
process and his state-law right to qualified post-conviction
counsel, that claim was presented to the State court, and its
decision appealed.

It now appears to be an exhausted claim, but

also a claim that is no longer viable. The State court reviewed

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the claim and granted relief in the form of another Rule 37
proceeding.

No additional habeas claims have been filed.

Lee presents several issues that he claims are unexhausted.
However, the issues are either not part of the claims currently
before

this

Court,

previously raised.

or

they

are

issues

that

have

not

been

Lee’s petition for writ of habeas corpus has

not been amended. The only claims and sub-issues before the court
are the ones contained in the original petition.

Additionally,

Lee had the opportunity to resolve all perceived exhaustion issues
during his second Rule 37 proceeding.
For these reasons, the Court finds that the first question
cannot be resolved in Lee's favor, for his Habeas Petition does
not contain unexhausted claims for relief.
14.

Because of the conclusion it has reached on the first

question, as noted above, and because of the conclusion it reaches
on the fourth question, as noted immediately hereafter, the Court
deems it unnecessary to address either the second or third
questions mentioned.
15.

Even if Lee’s habeas petition did contain an unexhuasted

claim, the Court would find that the fourth question cannot be
answered in Lee's favor.

An examination of the dates documents

were filed in his case, and the contents of those documents, will
reveal why.
The docket reflects that the Mandate in the appeal from Judge

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Howard's stay and abeyance order was filed on March 29, 2004.

At

that point Lee was able to return to State court to seek the
relief Judge Howard had found necessary.
On June 7, 2004, Respondent moved the Court for an order
setting a time limit of 90 days for Lee to seek relief in State
court, and directing him to file monthly status reports.
opposed

this

motion,

citing

problems

obtaining

Lee

counsel,

an

extensive record, complexity of the case, and problems determining
"how to proceed."
On July 28, 2004, Judge Howard appointed attorneys Kent
Gipson ("Gipson") and William Odle ("Odle") to represent Lee.
did

not

set

proceedings,

any
but

time

limit

directed

expeditiously as possible."

for

that

instituting
they

be

State

undertaken

He

court
"as

He directed that Lee "file monthly

status reports beginning thirty days from the entry of this Order,
informing the Court of his progress in exhausting his available
state remedies, and sixty days thereafter."
16.

The docket reflects that Lee's new attorneys apparently

took a very nonchalant attitude toward the requirements for the
filing of these Status Reports.

The first was not filed until

September 20, 20045, almost sixty days after Judge Howard's Order.
It stated that review of the file had begun.
filed until August 22, 2005.

5

Document #32.

-8-

The next was not

While the Order requiring status reports might well have been
confusing -- it could be read to require the filing of one every
30 days or, every 60 days -- the Court believes it could not
reasonably have been read to require only one to be filed every
eleven months.6
The matter was eventually called to Judge Howard's attention,
and he entered an Order on June 24, 2005, noting that Lee had been
"directed to file status report with the Court every sixty days,"
and that "[i]n the future, the status reports must be filed in the
form of a pleading and must be served upon the Respondent."7
Lee filed timely Status Reports on August 22, 20058, and
November 1, 20059, but then fell behind again.
Report was not filed until March 1, 200610.

The next Status
Another was filed

April 13, 200611 but it hardly counts, being identical to the one
filed August 22, 2005, in spite of significant changes in the
status of the case.
No Status Reports were filed between December 14, 2006, and

6
Lee contended that he had, in fact, "sent status letters to the Court in May and
June," (document # 39) but that is not what Judge Howard's Order required. "File" is
a term of art in the legal profession, referring to placing a matter of record by
docketing it with the Clerk of Court.

7
He did not, however, impose any time limit on the initiation of State court
proceedings.

8

Document #42.

9

Document #46.

10

Document #47.

11

Document #50.

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May 16, 2007.

Another gap appeared between the Status Report of

June 12, 2007, and the one filed October 2, 2007.

After that

date, no further Status Reports were filed until January 6, 2010.
Given that these Status Reports were the means established by
Judge Howard for the Court to keep track of what was happening in
Lee's case while it was stayed, the Court believes that the many
gaps noted above reflect a disregard both of the letter and the
spirit of Judge Howard's Order.
17.

The

content

of

the

Status

Reports

is

even

more

revealing. Gipson and Odle were appointed on July 28, 2004, and
the Status Report of September 20, 2004, stated that they were
reviewing Lee's file.

Almost a year later, the Status Report of

August 22, 2005, stated that "[w]e are currently preparing a
motion to recall the mandate."

Efforts to complete the motion

were said to have been "hampered" by "obligations in numerous
other cases" and because Odle had been "unable to work for several
days" due to illness.
To put these reports in perspective, the Court notes that
when Gipson and Odle asked to be appointed to represent Lee12, they
stated that they had "substantial experience litigating capital
and non-capital federal habeas cases"; that they were employed by
a "law firm dedicated to representing clients such as Mr. Lee";
and that their firm "has extensive resources available to it which

12

Petitioner's Motion For Appointment Of Counsel (document #26).

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allow lawyers to handle cases in numerous jurisdictions with
efficiency." In light of those claimed credentials and resources,
the Court rejects the notion that it would take almost a year to
formulate a motion to recall the mandate.
The next Status Report, dated November 1, 2005,13 reported
that the motion to recall the mandate had finally been filed on
August 30, 2005 -- 13 months after Gipson and Odle were appointed
and almost 17 months after the Eighth Circuit Mandate allowed Lee
to return to State court.
While the Court is cognizant that legal proceedings often
move slowly and that Lee's file is lengthy and complicated, it is
also cognizant of the purposes of the statute of limitations
embodied in § 2254. "One of the statute's purposes is to 'reduce
delays in the execution of state and federal criminal sentences,
particularly in capital cases'."

Rhines, supra, 544 U.S. at 276.

Rhines recognized that
not all petitioners have an incentive to obtain federal
relief as quickly as possible. In particular, capital
petitioners might deliberately engage in dilatory
tactics to prolong their incarceration and avoid
execution of the sentence of death.
Id. at 277-78.
Rhines was handed down after Judge Howard issued the stay in
this case, but it is instructive with regard to the time frame
that is reasonable for stay and abeyance procedures.
13

Document #46.

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It does not

provide a favorable light in which to view Lee's case.

The Court

therein quoted with approval from Zarvela v. Artuz, 254 F.3d 374
(2nd Cir. 2001), to the effect that district courts
should explicitly condition the stay on the prisoner's
pursuing state court remedies within a brief interval,
normally 30 days, after the stay is entered and
returning to federal court within a similarly brief
interval, normally 30 days after state court exhaustion
is completed.
Id. at 278.
Far from moving the case along in such a timely fashion, the
Court notes that Lee had not even notified the Court of the
conclusion of State proceedings on the Second Rule 37 Petition
(which occurred on November 9, 2009) by the time Respondent moved
the Court to lift the stay on January 21, 2010.
Based upon its foregoing review, the Court cannot escape the
conclusion

that

the

delays

which

occurred

here

cannot

be

reasonably viewed as resulting from non-dilatory conduct. This is
especially true in light of the fact that the petitioner was being
represented by a team of experienced attorneys -- backed by a firm
dedicated to representing death penalty habeas litigants and
having "extensive resources" at their disposal.

The Court finds,

therefore, that -- as to the fourth question -- intentionally
dilatory litigation tactics have been utilized on the part of the
defendant.
18.

For the foregoing reasons, the Court concludes that Lee

is not entitled to a second stay and abeyance of his Habeas
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Petition,

and

the

Motion

For

Stay

And

Abeyance

Of

Federal

Proceedings will be denied.
IT IS THEREFORE ORDERED that Motion For Stay And Abeyance Of
Federal Proceedings (docket #97) is denied.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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