Lee v. Hobbs
Filing
115
ORDER denying 1 Petition for Writ of Habeas Corpus and finding that Lee has failed to establish his entitlement to a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Signed by Judge Jimm Larry Hendren on 6/18/2013. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
LEDELL LEE
PETITIONER
v.
CASE NUMBER 5:01CV00377JH
RAY HOBBS, Director of the
Arkansas Department of
Correction
RESPONDENT
O R D E R
Before this Court are the following:
*
Petition For Writ Of Habeas Corpus (document #1);
*
Response To Petition For Writ Of Habeas Corpus (document
*
Amended Response To Petition For Writ Of Habeas Corpus
#5);
(document #89); and
*
Petitioner's Traverse (document #94),
and from said documents, and other matters and things appearing,
the Court finds and orders as follows:
1.
Ledell Lee ("Lee") brought this habeas corpus proceeding
under 28 U.S.C. §2254, the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA").
The matter is fully briefed and
ripe for decision on the merits.
PROCEDURAL HISTORY
2.
On February 9, 1993, twenty-six year-old Debra Reese was
found murdered in her bedroom. She had been beaten and strangled.
Lee was arrested and charged with capital murder in the case.
3.
Lee was tried twice for the Reese murder.
trial ended in a hung jury in October, 1994.
The first
Lee was convicted
and sentenced to death in the second trial in October, 1995.
conviction and sentence were affirmed on appeal.
His
Lee v. State,
327 Ark. 692, 942 S.W.2d 231 (Ark. 1997), cert. den. 522 U.S. 1002
("Lee I").
Where the Court refers to the Reese murder trial in
this opinion, it has reference only to the second trial.
4.
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 trial.
The trial court denied his petition, and this
denial was affirmed on appeal.
Lee v. State, 343 Ark. 702, 38
S.W.3d 334 (Ark. 2001) ("Lee II").
5.
Lee then filed the Petition For Writ Of Habeas Corpus
("Habeas Petition") now under consideration.
On April 2, 2003,
United States District Judge George Howard, before whom the Habeas
Petition was then pending, noted from the transcript of the
hearing on the First Rule 37 Petition that Lee's attorney "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 stayed and
held in abeyance, and the matter "remanded for the trial court to
take appropriate action to allow Lee to present relevant evidence
and argument in favor of his Rule 37 petition issues."
-2-
6.
Judge Howard's remand order was appealed, and the Eighth
Circuit affirmed.
Lee v. Norris, 354 F.3d 846 (8th Cir. 2004).
The court 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
and remanding.
The
"unexhausted
claim,"
as
articulated
by
the
Eighth
Circuit, was whether Lee "had been deprived of his due process
rights
(as
well
as
his
state-law
right
to
qualified
post-
conviction counsel) by the conduct of his appointed counsel during
the post-conviction proceedings in the state courts."
7.
Id.
Lee then moved the Arkansas Supreme Court to recall the
mandate issued on appeal of the First Rule 37 Petition.
That
court agreed, stating that "until [Lee] has been afforded a new
Rule 37 proceeding, he has potential state claims that remain
unexhausted."
(Ark. 2006).
Lee v. State, 367 Ark. 84, 89, 238 S.W.3d 52, 55
The matter was remanded to the trial court for a new
post-conviction proceeding.
8.
A new attorney was appointed to represent Lee, and a new
Rule 37 petition ("Second Rule 37 Petition") was filed.
Like the
First Rule 37 Petition, this one was also denied, and the denial
was affirmed on appeal. Lee v. State, 2009 Ark. 255, 308 S.W.3d
-3-
596 (Ark. 2009) ("Lee III").
9.
On November 9, 2009, the United States Supreme Court
denied certiorari to Lee in connection with the Second Rule 37
Petition. Lee v. Arkansas, 558 U.S. 1013 (2009).
10.
On January 21, 2010, Respondent moved to lift the stay
imposed by Judge Howard.
On March 15, 2010, this Court -- to whom
the matter had by then been transferred -- lifted the stay.
11.
Lee then sought a second stay, contending that he should
be allowed to return to State court for yet another Rule 37
proceeding.
This request was denied, and Lee's attempts to
obtain a writ of mandamus requiring such a stay from the Eighth
Circuit Court of Appeals and the United States Supreme Court were
unsuccessful.
The matter is now fully briefed and ripe for
decision on the merits.
STANDARD OF REVIEW
12.
Federal habeas corpus review of state law decisions is
governed by 28 U.S.C. § 2254, which provides that the federal
courts "shall entertain an application for a writ of habeas corpus
in behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States." §
2254(a).
The application cannot be granted unless the petitioner shows
that he has exhausted the remedies available in the State courts,
-4-
or there is an absence of -- or only ineffective -- State process.
§ 2254(b).
If the petitioner has exhausted his State remedies, i.e., his
claim was adjudicated on the merits by the State's highest court,
his application can only be granted if the State court decision
"was contrary to, or involved an unreasonable application of,
clearly established Federal law," or "was based on an unreasonable
determination of the facts in light of the evidence presented in
§ 2254(d).
the State court proceeding."
State court findings of fact are presumed to be correct, and
the petitioner has the burden of rebutting this presumption by
clear and convincing evidence.
13.
Important
§ 2254(e)(1).
corollaries
to
the
foregoing
statutory
provisions have been developed in the case law, especially in
Coleman v. Thompson, 501 U.S. 722 (1991).
The Supreme Court,
considering the implications of federal habeas corpus petitions on
federalism, established the following:
*
Federal courts will not review a question of federal law
rejected by the State court if the State court's decision rests on
a State law ground -- substantive or procedural -- that is
independent of the federal question and adequate to support the
decision. 501 U.S. at 729.
*
It
follows
that
federal
courts
will
not
review
a
question of federal law rejected by the State court for failure to
-5-
follow State procedural rules, even though such a "procedural
default" leaves the petitioner with no State remedies available to
501 U.S. at 730.
him.
*
A procedural default may be excused if the petitioner
can demonstrate "cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental
miscarriage of justice."
501 U.S. at 750.
LEE’S CLAIMS
14.
Lee's first claim is that he was denied his rights under
the Fifth, Sixth, and Eighth Amendments to the U.S. Constitution
by the Arkansas Supreme Court's failure, on direct appeal of his
murder conviction, to conduct mandatory review of the entire
record for the possibility of reversible error.
(a)
Lee alleges that during the period of time that his case
was on direct appeal, the Arkansas Supreme Court’s system of
review was unconstitutionally arbitrary and capricious, shocked
the conscience, and deprived the "sentencing scheme" of adequate
safeguards
"to
ensure
that
each
death
sentence
is
an
individualized decision by the sentencer."
(b)
Lee failed to present this claim to the State courts, so
it is procedurally defaulted.
He has not shown cause for such
default, nor that actual prejudice would result from the alleged
violation of federal law, nor that failure to consider this claim
-6-
would result in a fundamental miscarriage of justice, so the
default is not excused.
(c)
merit.
Even if this claim were not defaulted, it is without
Lee relies on State v. Robbins, 339 Ark. 379, 5 S.W.3d 51
(Ark. 1999), for the proposition that automatic plenary review of
the record is required in every case where the death penalty is
meted out.
Robbins is not controlling, however.
It was decided
wholly on the basis of Arkansas statutes and court rules, and thus
does not provide a federal basis for Lee's claim.
In Gregg v. Georgia, 428 U.S. 153, 206 (1976), the Supreme
Court praised an automatic plenary review system as "a check
against the random or arbitrary imposition of the death penalty,"
but it did not hold that the Constitution required such review.
Thus
the
current
Arkansas
constitutionally required.
requirement
is
more
than
what is
States are, of course, "free to
provide greater protections in their criminal justice system than
the Federal Constitution requires." California v. Ramos, 463 U.S.
992, 1013-14 (1983).
(d)
Lee also contends that his due process rights were
violated by "a state court's failure to follow its law." This
argument is without merit because Robbins was decided after Lee's
direct appeal was concluded, and is not retroactive. Robbins held
that
it will henceforth be the practice of this court to
-7-
issue a writ of certiorari for the record in which the
death penalty has been imposed and the defendant has
waived his right to appeal.
We will then conduct a
review of the record for prejudicial errors.
339 Ark. at 387, 5 S.W.3d at 56 (emphasis added).
This language defeats Lee's "failure to follow the rules" due
process claim, since automatic plenary review was not the law when
Lee's direct appeal was decided.
(e)
Finally, the Court finds no merit to Lee's assertion
that the review system in place at the time of his direct appeal
was
"the
height
of
arbitrariness,"
and
that
"[i]t
would be
difficult to imagine a more arbitrary system of appellate review
than what existed in Arkansas capital cases during the 1990s."
In disposing of Lee's direct appeal, the Arkansas Supreme
Court said:
The transcript of the record in this case has been
reviewed in accordance with Arkansas Supreme Court Rule
4-3(h), which requires, in cases in which there is a
sentence of life imprisonment or death, that we review
all prejudicial errors in accordance with Ark. Code Ann.
§ 16-91-113(a)(1987). None have been found.
Lee I, 327 Ark. at 706, 942 S.W.2d at 238.
Arkansas Supreme Court Rule 4-3(i) (formerly subsection (h))
provides as follows:
When the sentence is death or life imprisonment, the
Court must review all errors prejudicial to the
appellant in accordance with Ark. Code Ann. § 16-91113(a).
To make that review possible, the appellant
must abstract, or include in the Addendum, as
appropriate, all rulings adverse to him or her made by
the circuit court on all objections, motions and
requests made by either party, together with such parts
-8-
of the record as are needed for an understanding of each
adverse ruling. The Attorney General will make certain
and certify that all of those objections have been
abstracted, or included in the Addendum, and will brief
all points argued by the appellant and any other points
that appear to involve prejudicial error.
A.C.A. § 16-91-113(a) provides that "where either a sentence
for life imprisonment or death has been imposed the Supreme Court
shall
review
all
errors
prejudicial
to
the
rights
of
the
appellant."
As a result of these provisions, the Arkansas Supreme Court
was apprised of every ruling adverse to Lee made in the Reese
murder trial, whether prejudicial to Lee or not; had before it an
abstract sufficient to evaluate the prejudice of those rulings;
and was required to review them.
This is hardly the "height of
arbitrariness" contended by Lee.
(f)
For all these reasons, the Court concludes that Lee's
first claim for relief is without merit and it will be denied.
15.
Lee's second claim is that the State's presentation of
victim impact evidence violated his rights under the Fifth,
Eighth, and Fourteenth Amendments; that the statute permitting the
use of such evidence is unconstitutional under those amendments;
and that the statute amounts to an unconstitutional ex post facto
law.
(a)
During the penalty phase of the Reese murder trial,
Debra Reese's sister testified about the impact of the murder on
-9-
her family.
*
She testified to the following:
that Debra lived very close to their parents and spent
almost every day with her mother;
*
that she and Debra were both trying to conceive a child,
and their mother was making a quilt for the first one to get
pregnant;
*
that Debra had been the family event organizer, and
would wear a Santa suit at Christmas and hand out gifts;
*
that following the murder, Debra's parents began taking
antidepressants and at the time of the trial her mother was still
under psychiatric care;
*
that
Debra's seven year-old son moved out of state to
live with his father, and the family rarely saw the child after
the murder.
The sister was pregnant at the time of her testimony, and
testified that she intended to name the baby girl after Debra.
She also related what it was like to have to purchase a wig for
her sister’s corpse to wear at the funeral.
(b)
Lee
objected
to
this
testimony
on
direct
appeal,
contending that the presentation of victim impact evidence at the
trial
violated
due
process
and
"improperly
created
a
new
aggravating circumstance." He asked that the Arkansas Supreme
Court overturn its decisions in Nooner v. State, 322 Ark. 87, 907
S.W.2d 677 (Ark. 1995) (holding the statute not void for vagueness
-10-
and not violative of the ex post facto clause) and Kemp v. State,
324 Ark. 178, 919 S.W.2d 943 (Ark. 1996) (holding the statute not
void for vagueness and not violative of the Eighth Amendment).
(c)
The Arkansas Supreme Court rejected Lee's challenge,
holding that "the jury need not be instructed how to weigh any
particular fact in the capital-sentencing decision, as a contrary
rule would require a mandatory sentencing scheme," and that the
victim impact evidence was not "so unduly prejudicial that it
rendered Lee's trial fundamentally unfair."
Lee I, 327 Ark. at
703-04, 942 S.W.2d at 236.
(d)
In Payne v. Tennessee, 501 U.S. 808 (1991), the Court
held that:
. . . if the State chooses to permit the admission of
victim impact evidence and prosecutorial argument on
that subject, the Eighth Amendment erects no per se bar.
A State may legitimately conclude that evidence about
the victim and about the impact of the murder on the
victim's family is relevant to the jury's decision as to
whether or not the death penalty should be imposed.
There is no reason to treat such evidence differently
than other relevant evidence is treated.
501 U.S. at 827.
In California v. Ramos, 463 U.S. 992, 1008 (1983), the Court
recognized that
[o]nce the jury finds that the defendant falls within
the legislatively defined category of persons eligible
for the death penalty . . . the jury then is free to
consider a myriad of factors to determine whether death
is the appropriate punishment.
In Tuilaepa v. California, 512 U.S. 967, 979 (1994), the
-11-
Court said that "[a] capital sentencer need not be instructed how
to weigh any particular fact in the capital sentencing decision."
(e)
The Arkansas Supreme Court's decision on this issue was
neither contrary to nor an unreasonable application of Payne,
Ramos and Tuilaepa.
The Supreme Court, in reaching its decision
in Payne, rejected former case law preventing introduction of
victim impact evidence as a "misreading of precedent" which
"unfairly weighted the scales in a capital trial":
[W]hile virtually no limits are placed on the relevant
mitigating evidence a capital defendant may introduce
concerning his own circumstances, the State is barred
from either offering "a quick glimpse of the life" which
a defendant "chose to extinguish," or demonstrating the
loss to the victim's family and to society which has
resulted from the defendant's homicide.
501 U.S. at 822.
The victim impact evidence introduced in Lee's case was
nothing more than a quick glimpse of Debra Reese's life and a
demonstration of the loss to her family resulting from her murder.
It was similar in quality and quantity to the evidence approved in
Payne, where a grandmother testified about the effect of the
murder of her daughter and granddaughter on her three-year-old
grandson, who was present and grievously injured during the crime,
as follows:
"He cries for his mom. He doesn't seem to understand
why she doesn't come home. And he cries for his sister
Lacie. He comes to me many times during the week and
asks me, Grandmama, do you miss my Lacie. And I tell
him yes. He says, I'm worried about my Lacie."
-12-
501 U.S. at 814.
(f)
In addition to Supreme Court precedent allowing victim
impact evidence, the Court finds that the jury instructions in
Lee's case deprive
this claim of all force.
The jury was
instructed as follows:
Evidence that people have been impacted by the death of
Debra Reese, if you so find from the evidence, is not an
aggravating circumstance and shall not be considered by
you in determining whether an aggravating circumstance
existed.
This instruction made clear to the jury that the victim
impact evidence did not create a new aggravating circumstance, and
thus did not become a substantive factor involved in the weighing
procedure mandated under Arkansas law.
(g)
Lee's ex post facto argument is procedurally defaulted,
because he did not assert it on direct appeal and he has shown
nothing that would excuse that default.
Even if it were viable,
however, it would be meritless.
As explained in Dobbert v. Florida, 432 U.S. 282 (1977),
. . . any statute which punishes as a crime an act
previously committed, which was innocent when done;
which makes more burdensome the punishment for a crime,
after its commission, or which deprives one charged with
crime of any defense available according to law at the
time when the act was committed, is prohibited as ex
post facto.
432 U.S. at 292, quoting Beazell v. Ohio, 269 U.S. 167, 169-70
(1925).
In Dobbert the Court declined to find an ex post facto
-13-
violation where the law in question "simply altered the methods
employed in determining whether the death penalty was to be
imposed," without changing the "quantum of punishment attached to
Id. at 293-94.
the crime."
The Arkansas victim impact law, like
the law at issue in Dobbert, made no change in the quantum of
punishment for the crime of capital murder, which was already
established when Lee murdered Reese, nor did it deprive Lee of any
defense then available to the charge.
(h)
For all these reasons, Lee's second claim for habeas
relief is without merit, and will be denied.
16.
Lee's third claim is that he was convicted and sentenced
to death under a statutory scheme that is unconstitutionally
vague,
in
violation
of
the
Fifth,
Eighth,
and
Fourteenth
Amendments.
(a)
elements
The thrust of this claim is Lee's contention that the
of
A.C.A.
§
5-10-101(a)(4)
(causing
death
with
premeditated and deliberated purpose) and those of A.C.A. § 5-10102
(causing
death
with
the
purpose
of
causing
death)
are
"virtually indistinguishable," allowing "freakish arbitrariness"
in deciding guilt and meting out punishment.
(b)
Lee raised this claim on direct appeal, and the Arkansas
Supreme Court rejected it, stating simply that it had "decided
this issue adversely to Lee's position on many occasions, and
adhere[d] to these previous holdings."
-14-
Lee I, 327 Ark. at 702,
942 S.W.2d at 236.
The decision cited Echols v. State, 326 Ark.
917, 936 S.W.2d 509 (Ark. 1996) and Nooner v. State, 322 Ark. 87,
907 S.W.2d 677 (Ark. 1995).
Neither
Echols
nor
Nooner
includes
an
analysis
of
the
reasoning behind the Arkansas Supreme Court's rejection of the
argument.
In Sanders v. State, 317 Ark. 328, 344, 878 S.W.2d 391,
400 (Ark. 1994), however, the Arkansas Supreme Court stated that
it
is
"a
well-worn
argument
we
have
rejected
on
numerous
occasions, holding that the statutes are not constitutionally
infirm because there is no impermissible uncertainty in the
definitions of the capital-murder offenses."
(c)
In Gregg v. Georgia, 428 U.S. 153 (1976), the Court
noted the holding in Furman v. Georgia, 408 U.S. 238 (1972), that
where discretion is afforded a sentencing body on a
matter so grave as the determination of whether a human
life should be taken or spared, that discretion must be
suitably directed and limited so as to minimize the risk
of wholly arbitrary and capricious action.
428 U.S. at 189.
In Gregg the Court recognized that even "somewhat general"
standards
developed
to
"guide
a
capital
jury's
sentencing
deliberations" will "reduce the likelihood that it will impose a
sentence that fairly can be called capricious or arbitrary."
Moreover,
[w]here the sentencing authority is required to specify
the factors it relied upon in reaching its decision, the
further safeguard of meaningful appellate review is
-15-
available to ensure that death sentences are not imposed
capriciously or in a freakish manner.
428 U.S. at 193-95.
In Godfrey v. Georgia, 446 U.S. 420 (1980), the Court said
that
if a State wishes to authorize capital punishment it has
a constitutional responsibility to tailor and apply its
law in a manner that avoids the arbitrary and capricious
infliction of the death penalty.
Part of a State's
responsibility in this regard is to define the crimes
for which death may be the sentence in a way that
obviates "standardless [sentencing] discretion."
446 U.S. at 428.
(d)
The Arkansas Supreme Court's reasoning on this issue was
not contrary to, nor did it involve an unreasonable application
of, the law established in Godfrey and Gregg.
The difference between the two statutes defining the offenses
is
the
difference
deliberated purpose.
between
purpose,
and
premeditated
and
While these are similar concepts, they are
not identical, and the difference between them was explained to
the jury in the Reese murder trial by instruction.
During
the
guilt
phase
of
Lee's
trial,
the
jury
was
instructed that, to convict Lee of the charge of capital murder,
the State had to prove, beyond a reasonable doubt, "that with the
premeditated and deliberated purpose of causing the death of any
person Ledell Lee caused the death of Debra Reese."
The trial court then instructed the jury that
-16-
[i]n order to find that Ledell Lee acted with
premeditated and deliberated purpose, you must find that
he had the conscious object to cause the death and that
he formed that intention before acting, as a result of
a weighing in the mind the consequences of a course of
conduct as distinguished from acting upon sudden impulse
without the exercise of reasoning powers. It is not
necessary that this state of mind existed for any
particular length of time. But it is necessary that it
was formed before the homicidal act was committed.
The jury was further instructed that Lee was also charged
with the lesser offense of first degree murder, which required the
State to prove beyond a reasonable doubt that "with the purpose of
causing the death of Debra Reese Ledell Lee caused the death of
Debra Reese."
The trial court instructed the jury that
[a] person acts with purpose with respect to his conduct
or a result thereof when it is his conscious object to
engage in conduct of that nature or to cause such a
result.
These instructions were suitably tailored so as to minimize
the risk of arbitrary and capricious action.
During
the
penalty
phase
of
Lee's
trial,
instructions
required the jury to decide which, if any, of the statutory
aggravating circumstances existed beyond a reasonable doubt. They
required the jury to decide what mitigating circumstances existed,
with the option of choosing listed items and/or adding other
mitigating circumstances they found, both unanimously and less
than unanimously.
Finally, the jury was instructed as follows:
-17-
In no event will you return a verdict imposing the
death penalty unless you unanimously make three
particular written findings on form 3. These are:
First, that one or more aggravating circumstances
existed beyond a reasonable doubt;
Second,
that
such
aggravating
circumstances
outweigh beyond a reasonable doubt any mitigating
circumstances found to exist; and
Third, that the aggravating circumstances justify
beyond a reasonable doubt the sentence of death.
(e)
The specificity of these instructions does not equate to
standardless discretion, nor will they admit of arbitrary or
capricious imposition of the death penalty. This claim for relief
is without merit, and will be denied.
17.
Lee's fourth claim is that the State's use of voter
registration records to select the jury panel violated his Fifth,
Sixth, and Fourteenth Amendment rights to a jury comprised of a
fair cross-section of the community.
(a)
Lee argues that the use of voter registration records
to select the jury pool systematically under-represented blacks,
women, and other constitutionally cognizable groups that have
historically been the target of systematic exclusion from service
on juries.
Lee, who is black, focuses his arguments on the very
small percentage of black veniremen on his panel and on his jury.
(b)
Lee raised this claim on direct appeal, and the Arkansas
Supreme Court rejected it, finding that Lee had failed to meet the
test enunciated in Duren v. Missouri, 439 U.S. 357, 364 (1979).
Most tellingly, it found that Lee had failed to meet the third
-18-
factor in the Duren test because he
acknowledges in his brief our previous holdings that,
where the venire is chosen by computer, using the
random-selection process maintained by Ark. Code Ann. §
16-32-103 (Repl. 1994), there is no possibility of a
purposeful exclusion of African-Americans.
Lee I, 327 Ark. at 699, 942 S.W.2d at 234.
(c)
In Duren, the Supreme Court ruled that to establish a
prima facie case of deliberate or systematic exclusion of a group
from jury service, a defendant must prove:
(1) that the group alleged to be excluded is a
“distinctive” group in the community; (2) that the
representation of this group in venires from which the
juries are selected is not fair and reasonable in
relation to the number of such persons in the community;
and (3) that this under-representation is due to
systematic exclusion of the group in the jury-selection
process.
439 U.S. at 364.
(d)
The Arkansas Supreme Court did not decide this issue in
a manner contrary to clearly established Federal law, nor did it
base its decision on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.
The
Arkansas
statute
in
question,
A.C.A.
§
16-32-103,
requires the circuit judge to pick a number from one to one
hundred. The circuit clerk then selects the name corresponding to
that number on the list of registered voters of the applicable
district or county.
the
voters
in
that
Counting up by hundreds, the clerk selects
numerical
position
-19-
on
the
entire
voter
registration list.1
The process is repeated with a new number if
necessary to obtain sufficient prospective jurors for the coming
year.
The randomness of this process is apparent, and it cannot be
construed as "systematic exclusion" of any group, unless one
accepts Lee's contention that the very use of voter registration
records
as
exclusion."
the
basis
for
selection
amounts
to
"systematic
To do so would require a showing that a particular
group was known by the State to be under-represented in the voter
registration list, that such under-representation was caused by
the
State,
and
that
the
State
determined
to
rely
on
voter
registration records for jury selection because of such underrepresentation.
so.2
Lee has not made such a showing, nor could he do
"The mere fact that one identifiable group of individuals
votes in a lower proportion than the rest of the population does
not make a jury selection system illegal or unconstitutional."
U.S. v. Clifford, 640 F.2d 150, 156 (8th Cir. 1981).
(e)
Because Lee has failed to demonstrate that the Arkansas
Supreme Court decided this claim contrary to federal law, or on
an unreasonable determination of facts, it is without merit and
1
The statute gives an example: "if the starting number is sixty-seven (67), which
is the first selection, the second selection would be the one hundred sixty-seventh
registered voter, the third selection would be the two hundred sixty-seventh registered
voter, and so forth until the current registered voter list is exhausted." § 16-32103(2).
2
Lee asserts in his Petition, and the trial transcript supports, that Pulaski
County voter registration records do not reflect the race of those registered to vote.
-20-
will be denied.
18.
Lee's fifth claim is that he was denied due process and
a fair trial by the State's bad faith destruction of physical
evidence.
(a)
This argument arises from the fact that two small spots
of blood found on the shoes Lee was wearing when he was arrested
after the Reese murder were "consumed" during testing at the
Arkansas State Crime Lab to determine if they were human blood.
There was nothing left of the spots that Lee could have tested to
determine if the DNA of the spots matched Reese's DNA.
(b)
Arkansas
Lee raised this argument on direct appeal, and the
Supreme
constitutional
Court
violation
rejected
to
be
it,
stating
predicated
on
that
this
for
type
a
of
situation, three things must be shown:
*
that the evidence had an exculpatory value that was
apparent before it was destroyed;
*
that
the
evidence
was
of
such
a
nature
that
the
defendant would be unable to obtain comparable evidence by other
reasonable means; and
*
that the
police
acted
in bad
faith
by failing to
preserve potentially useful evidence.
Lee I, 327 Ark. at 700, 942 S.W2d at 235.
The Arkansas Supreme Court found that Lee failed to show that
the blood on the shoes possessed any exculpatory value before it
-21-
was destroyed, or that the State had acted in bad faith by failing
to preserve the blood, as it had been consumed during normal
testing procedures.
In Arizona v. Youngblood, 488 U.S. 51 (1988), the
(c)
Supreme Court contrasted the duty to disclose exculpatory evidence
under Brady v. Maryland, 373 U.S. 83 (1963) -- where good faith is
irrelevant
--
with
"the
failure
of
the
State
to
preserve
evidentiary material of which no more can be said than that it
could have been subject to tests, the results of which might have
exonerated the defendant" -- where a showing of bad faith is
necessary to establish a due process violation.
488 U.S. at 57-
58.
The
Court
exculpatory
reiterated
evidence"
and
the
distinction
"potentially
between
useful
"material
evidence"
in
Illinois v. Fisher, 540 U.S. 544, 549 (2004), noting that bad
faith must be shown to establish a constitutional violation for
the destruction of potentially useful evidence.
(d)
Lee contends that bad faith can be inferred from:
*
the potential value of the blood evidence;
*
the fact that he had counsel when the blood was tested,
but they were not notified of the testing;
*
the fact that the testing could have been done in a non-
destructive manner; and
*
the fact that the State did not preserve the blood
-22-
evidence by photographic means.
(e)
Lee's
argument
founders
on
the
first
of
these
assertions. The blood evidence did not have potential exculpatory
value.
Unlike the semen evidence in Youngblood, which was found
on
victim
the
and
thus
would
have
established
whether
the
defendant was the perpetrator of the crime, the blood here was on
Lee's own shoes, and could have been Lee's blood, either from a
cut sustained during the murder or from some earlier mishap. Only
if the blood had been Reese's blood would it have had evidentiary
value, and the value would have been inculpatory.
Even if the
blood on Lee's shoes was not Reese's blood, it would not have
exonerated Lee.
(f)
the
For the foregoing reasons, Lee has failed to show that
Arkansas
contrary
to
Supreme
federal
Court's
disposition
law,
was
determination of the facts.
or
based
of
on
this
an
issue
was
unreasonable
This claim for relief is without
merit, and will be denied.
19.
Lee's sixth claim is that he was denied due process and
his rights under the Fifth, Eighth, and Fourteenth Amendments by
the State court's denial of his motion to sever the crimes relied
upon by the State as aggravating circumstances in the penalty
phase of the Reese murder trial.
(a)
State
During the penalty phase of the Reese murder trial, the
presented
evidence
of
three
-23-
rapes
as
aggravating
circumstances.
While all three rape victims testified, the State
relied primarily on proof that Lee had been convicted of one of
the
rapes,
and
on
DNA
analysis
showing
an
extremely
high
probability that Lee had committed the other two.
Lee contends that the trial court's refusal to sever these
crimes and require the State to try them separately before using
them as aggravating circumstances was fundamentally unfair (and
thus a violation of due process), because he would have been
entitled to a severance if he had been charged in one indictment
with all three rapes, and the presentation of all three rape cases
"undoubtedly" predisposed the jury to find guilt based on the
"sheer number" of allegations rather than the evidence.
(b)
These arguments were asserted on direct appeal, where
the "failure to sever" claim was rejected because the severance
provisions of the Arkansas Rules of Criminal Procedure were not
applicable, given that Lee was not charged with the rapes in the
Reese murder trial.
The failure to sever claim is not one
cognizable under § 2254, because it does not involve an alleged
violation of federal law.
The Arkansas Supreme Court refused to consider Lee's due
process claim because he failed to support it with any citation to
facts or authorities.
Lee I, 327 Ark. at 705, 942 S.W.2d at 237.
Under these circumstances, the due process claim is procedurally
defaulted, and Lee has shown no basis to excuse the default.
-24-
(c)
Even if the due process claim were not procedurally
defaulted, Lee has also failed to support it with any citation to
facts or authorities before this Court, and an examination of the
statute in question indicates that it is not fundamentally unfair.
One aggravating circumstance in the Arkansas capital murder
sentencing scheme, set out at A.C.A. § 5-4-604(3), is that the
defendant "previously committed another felony, an element of
which was the use or threat of violence to another person or the
creation of a substantial risk of death or serious physical injury
to another person."
The Arkansas Supreme Court has held that the reason for this
provision is "to allow the state to show that the defendant has a
character for violent crimes or a history of such crimes."
Hill
v. State, 289 Ark. 387, 395, 713 S.W.2d 233, 237 (Ark. 1986).
"Character" and "history" are concepts broad enough to include
repeated conduct.
While Lee insists that such evidence would
"undoubtedly" predispose the jury to find guilt, this proposition
is not self-evident and Lee offers no federal precedent that would
be contravened by the admission of such evidence.
Indeed, the
Court considers it more likely that reliance on such aggravating
circumstances would promote fairness, acting as a "guide" to the
"capital jury's sentencing deliberations," as called for in Gregg,
supra, and reducing the likelihood of "standardless discretion"
faulted in Godfrey, supra.
-25-
Nor does Lee persuade the Court that there is any unfairness
in allowing an aggravating factor felony to be proven by evidence
other than a conviction.
When relying on evidence other than
proof of a conviction, the weighing process is restricted to
aggravating circumstances found to exist beyond a reasonable doubt
-- which is the burden of proof in criminal cases. A.C.A. § 5-4603(a)(1).
(d)
For the foregoing reasons, Lee has failed to show that
his constitutional rights were violated by use of the three rapes
as aggravating circumstances.
This claim for relief is without
merit, and will be denied.
20.
Lee's seventh claim is that he was denied due process
and a fair trial by the trial judge's refusal to recuse based on
his relationship with a prosecuting attorney and the State's
failure to disclose this relationship to defense counsel.
(a)
The background of this claim is as follows.
The Reese
murder trial was prosecuted by Holly Lodge of the Sixth Judicial
District Prosecuting Attorney's Office ("Prosecutor's Office"),
and tried by Pulaski County Circuit Judge Chris Piazza.
At some
point in time, Judge Piazza became romantically involved with
Melody Larue, who at the time of the Reese murder trial was a
deputy
prosecuting
attorney
in
the
Prosecutor's
Office.
The
existence of the relationship is not disputed -- Judge Piazza and
Larue eventually married -- but the date when it commenced, and
-26-
whether it had any impact on the trial, are disputed.
Lee contends that Judge Piazza and Larue were romantically
involved at the time of the Reese murder trial, and that this
involvement caused Judge Piazza to be biased in favor of the
prosecution.
(b)
Lee failed to raise this claim on direct appeal, but it
was raised in both Rule 37 Petitions.
At the conclusion of the
hearing on the First Rule 37 Petition, Judge Langston found that
Lee had failed to prove either the existence of a romantic
relationship at the time of the Reese murder trial, or any
prejudice that might have flowed from it.
On appeal, the Arkansas Supreme Court rejected the claim,
stating that it should have been raised on direct appeal, and
deferring to Judge Langston's factual finding that Lee had failed
to prove the existence of the alleged relationship.
Lee II, 343
Ark. at 725, 38 S.W.3d at 349.
Lee raised the issue again in the Second Rule 37 Petition.
At the conclusion of the hearing on this Petition, Judge Langston
again found that Lee had failed to prove the existence of a
relationship between Judge Piazza and Larue that would have
required disclosure to the parties or that warranted recusal.
The issue was not pursued on appeal of the Second Rule 37
Petition.
Lee's attorney wrote in his brief that Lee wanted to
appeal the circuit judge's findings on this issue but that he, the
-27-
attorney, had determined the issue "is not one that should be
pursued."
While the attorney suggested in the brief that he would
petition to withdraw so new counsel could be appointed and brief
the issue, that did not occur. As a result, the issue was not
argued on appeal, and the Arkansas Supreme Court declined to
Lee III, 2009 Ark. at 5, 308 S.W.3d at 601-02.
address it.
(c)
The
Court
first
considers
whether
this
issue
is
procedurally defaulted by Lee's failure to raise it on direct
appeal, or whether such default can be excused under the "cause
and prejudice" standard.
Lee's trial attorneys testified in the hearing on the First
Rule 37 Petition that they had no idea, during the trial, that
there might have been any romantic relationship between Judge
Piazza and Larue, and it is highly unlikely that Lee himself would
have had such knowledge if his attorneys did not. Cause to excuse
procedural default is established where the constitutional issue
in question was "reasonably unknown" to petitioner at the relevant
time.
Amadeo v. Zant, 486 U.S. 214, 222 (1988).
The Court turns,
then, to the issue of whether actual prejudice -- the necessary
complement to cause -- has been shown.
(d)
Lee's argument is that the alleged romantic relationship
was going on during the Reese murder trial; that it created bias
on the part of Judge Piazza; and that such bias amounts to
structural error which so infected the trial that prejudice is
-28-
presumed.
He bases this reasoning on Tumey v. Ohio, 273 U.S. 510
(1927) and Johnson v. U.S., 520 U.S. 461 (1997), the first holding
and the second reiterating that trial before a biased judge
constitutes
structural
error,
i.e.,
"a
defect
affecting
the
framework within which the trial proceeds, rather than simply an
error in the trial process itself" (citing Arizona v. Fulminante,
499 U.S. 279 (1991).
In Chapman v. California, 386 U.S. 18, 23,
fn 8 (1967), the Supreme Court recognized that trial before a
biased judge can never be treated as harmless error.
(e)
The flaw in Lee's argument is that not every romantic
relationship between a judge and an attorney with some connection
to a case, no matter how distant, can be presumed to generate bias
constituting
structural
error.
This
is
true
even
if
the
relationship amounts to a violation of ethical standards (an issue
as to which this Court expresses no opinion).
In Bracy v. Gramley, 520 U.S. 899 (1997), the Supreme Court
made it clear that there is a difference between "common law,
statute, or the professional standards of the bench and bar" that
require judicial disqualification, and the constitutional due
process requirement of a "'fair trial in a fair tribunal,' before
a judge with no actual bias against the defendant or interest in
the outcome of his particular case." 520 U.S. at 904-05 (internal
citation omitted). In Caperton v. A.T. Massey Coal Co., Inc., 556
U.S. 868, 890 (2009), the Supreme Court specifically recognized
-29-
that "codes of judicial conduct provide more protection than due
process requires."
Common law, statutory, and professional standards concern
themselves
with
the
broad
spectrum
of
potential
sources
of
judicial bias, from the appearance of bias that can exist even
when the judge is unaware of facts supporting it, Liljeberg v.
Health Services Acquisition Corp., 486 U.S. 847 (1988), through
presumed bias arising from degree of consanguinity, to personal
knowledge of disputed evidentiary facts, to actual bias.
28
U.S.C. § 455.
The constitutional standard is limited to a much narrower
range of conduct, examples of which are fortunately few.
Bracy
involved a judge who had been convicted of taking bribes to "fix"
cases.
Tumey involved a judge who had a financial interest in the
outcome of the case. In re Murchison, 349 U.S. 133 (1955),
involved a trial where the judge had acted as a one-man "judgegrand jury," hearing evidence
and deciding to prosecute the
defendant, then trying and convicting him.
Commonwealth Coatings
Corp. v. Continental Casualty Co., 393 U.S. 145 (1968), involved
an arbitration
where
the
arbitrator,
unknown
to
one
of the
parties, had ongoing business dealings with the other party.
In Caperton the Court articulated an objective standard for
evaluating alleged bias that would violate the Due Process Clause:
. . . the Due Process Clause has been implemented by
-30-
objective standards that do not require proof of actual
bias. In defining these standards the Court has asked
whether, under a realistic appraisal of psychological
tendencies and human weakness, the interest poses such
a risk of actual bias or prejudgment that the practice
must be forbidden if the guarantee of due process is to
be adequately implemented.
556
U.S.
at
883-84
(internal
citations
and
quotation
marks
omitted).
While noting that "[n]ot every campaign contribution by a
litigant or attorney creates a probability of bias that requires
a judge's recusal, the Court found that a risk of actual bias
existed where one party had donated millions of dollars to the
election campaign of an appellate judge who ruled in its favor
(not once but twice) in 3-2 decisions.
(f)
When the Court applies the Caperton standard to the
allegations here, it does not believe that, under a realistic
appraisal of psychological tendencies and human weakness, the
interest that would exist if Judge Piazza were romantically
involved with Larue during the Reese murder trial would have posed
such a risk of actual bias as to violate Lee's due process rights.
Larue was not prosecuting the case, nor was she the elected
Prosecuting
Attorney,
who
might
have
had
a
professional
or
political interest in its outcome.
Lee's cited cases involving judges romantically involved with
attorneys are inapposite.
All three -- In re Chrzanowski, 465
Mich. 468, 636 N.W.2d 758 (Mich. 2001), In re Gerard, 631 N.W.2d
-31-
271 (Iowa, 2001), and U.S. v. Berman, 28 M.J. 615 (1989) -- deal
with
judges
who
presided
over
cases
in
which
a
party
was
represented by an attorney with whom the judge was romantically
involved.
For these reasons, the Court finds that Lee has failed to
show actual prejudice sufficient to excuse his procedural default
of this issue.
(g)
Even if the issue were not procedurally defaulted, it
would be without merit.
Following the hearings on both Rule 37
Petitions, Judge Langston found that Lee had failed to prove the
existence of a relationship between Judge Piazza and Larue that
warranted either disclosure or recusal. Under § 2254(e)(1), these
findings of fact are presumed to be correct, and Lee has the
burden of rebutting them by clear and convincing evidence, which
he has not done.
Lee has offered his own view of the evidence on this subject,
which is that Pat Piazza (who was Judge Piazza's wife at the time
of the Reese murder trial and whose testimony tended to prove that
a romantic relationship between Judge Piazza and Larue existed at
that time) was more credible than Judge Piazza because she had
nothing to gain by lying.
While this is a permissible view of the
evidence, the Supreme Court has "frequently . . . emphasized that
'[w]here there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly erroneous'."
-32-
Amadeo, supra, 486 U.S. at 214.
(h)
For all the foregoing reasons, this claim for relief is
without merit and will be denied.
21.
Lee's eighth claim is that the cumulative effect of
errors committed in his State court proceedings entitle him to
habeas relief.
The Eighth Circuit Court of Appeals has rejected the notion
of cumulative error as a basis for habeas relief, pointing out
that the aggregation of errors which do not individually amount to
constitutional or statutory violations cannot collectively reach
that level.
2006).
Middleton v. Roper, 455 F.3d 838, 851 (8th Cir.
This precedent is binding on this Court.
This asserted
basis for habeas relief is, therefore, without merit.
22.
Lee's ninth claim is that he was convicted and sentenced
to death in violation of his Sixth and Fourteenth Amendment rights
to representation by conflict-free counsel.
(a)
The background of this issue is as follows.
At the same
time Lee was facing trial for the Reese murder, he was facing
trial on another murder charge and three rape charges.
The same
attorneys (Bill Simpson and Bret Qualls) represented Lee in all
five cases, but there were three different judges involved.
Lee,
acting pro se, represented to Judge Marion Humphrey, who was
hearing the rape cases, that he had a conflict with Simpson and
Qualls.
Although Simpson and Qualls denied that a conflict
-33-
existed, Judge Humphrey relieved them and appointed Dale Adams to
represent Lee in the rape cases.
Judge Humphrey did not articulate what conflict he found.
The Arkansas Supreme Court was unable to determine what conflict
Judge Humphrey found.
342, n. 2.
Lee II, 343 Ark. at 714, n. 2, 38 S.W.3d at
This Court, after reviewing the record, finds nothing
more than dissatisfaction on Lee's part with how his attorneys
were handling his cases and how frequently they communicated with
him.
After Judge Humphrey ruled that a conflict existed, Lee
moved to have Simpson and Qualls relieved in the Reese murder
case, contending that they would not do some of the things he
wanted them to do in his defense; that Simpson told him he "should
have got the death penalty" after the first Reese murder trial;
and that if they had a conflict in the rape cases they necessarily
had one in the murder cases.
While Simpson and Qualls had initially taken the position
that no conflict existed, when Lee refused to communicate with
them after Judge Humphrey's ruling they eventually came to the
conclusion that there was a conflict, and tried repeatedly to be
relieved.
Simpson testified in connection with the First Rule 37
Petition that the situation put him and Qualls "in an awkward
position."
After Lee filed a federal lawsuit against Simpson,
Simpson took the position that there was an actual conflict of
-34-
interest.
Judge Piazza considered Lee's request that Simpson and Qualls
be relieved and replaced (and the corresponding requests of
Simpson and Qualls) over the course of five hearings between
February 22, 1995, and May 15, 1995, and found no basis to relieve
Simpson and Qualls.
The statements made by Lee, Simpson, and
Qualls in these hearings revealed that after Judge Humphrey
relieved Simpson and Qualls in the rape cases, Lee simply refused
to discuss the Reese murder case with them.
This refusal put
Simpson and Qualls in a difficult position, but Judge Piazza
considered it a problem created by Lee, not an actual conflict of
interest.
While Judge Piazza found no conflict and refused to replace
Simpson and Qualls, he eventually (at the May 15, 1995, hearing)
appointed Adams to represent Lee in the penalty phase of the Reese
murder trial and granted a continuance to allow Adams to prepare.
At
that
hearing,
Lee
waived
any
conflict
in
his
continued
representation by Simpson and Qualls at the guilt phase of the
Reese murder case.
On the first day of the Reese murder trial -- October 9, 1995
-- Lee again attempted to assert a conflict with Simpson.
Judge
Piazza refused to relieve Simpson, and the trial proceeded.
(b)
Lee raised the issue of attorney conflict in both Rule
37 Petitions.
Judge Langston, who heard both petitions, ruled
-35-
against Lee on this issue.
Following the hearing on the First Rule 37 Petition, Judge
Langston found:
*
that there was no evidence of an actual conflict;
*
that there was no indication of why Judge Humphrey found
a conflict;
*
that Lee had waived any possible conflict before Judge
Piazza; and
*
that the lawsuit against Simpson was not filed until
after the Reese murder trial was over.
On appeal of the First Rule 37 Petition, the Arkansas Supreme
Court held that Lee had "clearly waived any conflict of interest
that might have existed" and failed to raise the issue on direct
appeal.
Lee II, 343 Ark. at 713-14, 38 S.W.3d at 341-2.
It
refused to consider Lee's arguments on the issue.
After the Second Rule 37 hearing, Judge Langston found that
Lee had shown no way in which his attorneys' performance had been
adversely affected by any actual conflict, and that Lee had
knowingly, intelligently, and voluntarily waived any conflict.
On appeal the Arkansas Supreme Court held that Lee "has not
shown a conflict of interest that actually affected his attorney's
performance," or that "any conflict between his attorneys and him
had
an
actual,
demonstrable,
detrimental
effect
on
their
representation of him." Lee III, 2009 Ark. at 8-10, 308 S.W.3d at
-36-
603-04.
It declined to reach Lee's challenge to the waiver of
conflict because Lee had made no showing that "the conflict of
interest he raises had anything but an 'abstract or theoretical'
effect on his defense."
(c)
Id.
The United States Supreme Court has dealt with attorney
conflicts
issues
primarily
in
situations
involving
divided
loyalties, chiefly those arising where one attorney represents
multiple defendants.
See, e.g., Wheat v. U.S., 486 U.S. 153, 163
(1988); Cuyler v. Sullivan, 446 U.S. 335 (1980); and Holloway v.
Arkansas, 435 U.S. 475 (1978).
Another situation where divided loyalties might occur was
explored in Wood v. Georgia, 450 U.S. 261 (1981), where defendants
were represented by an attorney paid by their employer, who might
have been seeking to establish a legal precedent in its favor in
spite of the detriment that portended for its employees, the
defendants.
The Court considered a claim more akin to Lee's in Morris v.
Slappy, 461 U.S. 1 (1983). The defendant there was dissatisfied
with an attorney appointed to represent him shortly before trial
when his original attorney fell ill.
The defendant failed to show
that the new attorney was unprepared, and the Court rejected the
notion that a criminal defendant was constitutionally entitled to
a meaningful relationship with his attorney.
(d)
The Arkansas Supreme Court's decision on this issue did
-37-
not run contrary to any of these precedents, nor did the Arkansas
courts make an unreasonable determination that Lee had waived any
conflict.
To the extent there was any conflict between Lee and
his attorneys, it was conflict in the sense of "strife," not
conflict in the sense of divided loyalties, and the waiver issue
was carefully and fully explored on the record by Judge Piazza.
U.S. v. Barrow, 287 F.3d 733 (8th Cir. 2002), is instructive
here. The court in Barrow said that "[a]ppointment of new counsel
is warranted only when the defendant demonstrates justifiable
dissatisfaction with his appointed attorney":
When faced with a motion to appoint substitute counsel,
the district court must balance several factors,
including
"the
need
to
ensure
effective
legal
representation, the need to thwart abusive delay
tactics, and the reality that a person accused of crime
is often genuinely unhappy with an appointed counsel who
is nonetheless doing a good job."
The court must
conduct an adequate inquiry into the nature and extent
of
an
alleged
breakdown
in
attorney-client
communications.
The
focus
of
the
justifiable
dissatisfaction inquiry is the adequacy of counsel in
the adversarial process, not the accused's relationship
with his attorney.
*
*
*
Justifiable dissatisfaction includes an irreconcilable
conflict or a complete breakdown in communication. But
it does not include a defendant's frustration with
counsel who does not share defendant's tactical opinions
but continues to provide zealous representation. Thus,
a defendant has no right to an attorney who will
docilely do as she is told, or to a "meaningful
relationship" with appointed counsel.
287 F.3d at 737-38 (internal citations omitted).
The
court
communication,
in
only
Barrow
an
found
"no
unwillingness
-38-
total
on
breakdown
Barrow's
part
in
to
communicate with counsel."
(e)
Id.
Lee makes several arguments in support of his contention
that he was justifiably dissatisfied with his attorneys, none of
which have merit.
*
He
contends
that
there
was
the
potential
for
"inconsistent strategies," relating to the fact that the State
planned to use the three rape cases as aggravating circumstances
in the Reese murder trial, yet the rape cases were being tried by
Adams and the murder case by Simpson and Qualls.
The argument is
that Simpson and Qualls might, in defending the rape cases in the
penalty phase of the murder case, act inconsistently with Adams'
plan to defend them at the trials of those charges.
This argument is without merit for two reasons. First, there
is
no
reason
to
expect
that
Simpson
and
Qualls
could
not
coordinate their defense presentations with that of Adams.
The
attorneys were not at odds with each other, and there is no
showing that Simpson and Qualls suffered from divided loyalties.
Second, Judge Piazza eventually appointed Adams to represent
Lee in the penalty phase of the murder case, which is the phase
when the rape cases would be presented.
*
Lee contends that an actual conflict was created when he
sued Simpson.
The transcript of the Reese murder trial indicates
that Lee gave Qualls an unfiled copy of a lawsuit against Simpson
and the Public Defender's Office on April 18, 1995, and that
-39-
Simpson contended that this lawsuit "puts us in an adversarial
position with the defendant."
While the Court can understand
Simpson taking this position, Judge Piazza rejected the argument,
stating that the document was "simply a Rule 37 disguised as a
lawsuit against the public defender's office."
It was not error to reject this attempt to disqualify Simpson
and Qualls.
Defendants cannot be allowed to manufacture grounds
for disqualification of their attorneys, Winfield v. Roper, 460
F.3d 1026, 1040 (8th Cir. 2006), and in the absence of any showing
of an actual conflict, there is no basis to find error in Judge
Piazza's decision on this issue.3
*
Lee contends that he could not, or did not, effectively
waive any conflict with Simpson and Qualls.
His contention that
such conflict was not waivable is unsupported by Supreme Court
precedent.
Even actual conflict is waivable, although courts are
admonished to "indulge every reasonable presumption against the
waiver of fundamental rights." Glasser v. U.S., 315 U.S. 60, 70
(1942), superseded by statute on other grounds.
See, e.g., Wheat
v. U.S., supra, 486 U.S. at 163 ("district court must be allowed
substantial latitude in refusing waivers of conflicts of interest
not only in those rare cases where an actual conflict may be
3
The transcript of the First Rule 37 Proceeding contains a copy of a federal
lawsuit file-marked November 13, 1995, brought by Lee against Simpson, Judge Piazza,
Judge Plegge (who was handling the other murder case against Lee), and Holly Lodge, the
Prosecuting Attorney. This lawsuit was not filed until after the second Reese murder
trial was concluded, and could not, therefore, have created any conflict at that trial.
-40-
demonstrated before trial, but in the more common cases where a
potential for conflict exists which may or may not burgeon into an
actual conflict as the trial progresses").
*
Lee contends that any waiver applied only to Adams and
not to Simpson.
This contention is belied by the record.
At the
hearing in which the waiver occurred, Judge Piazza said to Lee
that it was his "understanding that Mr. Adams and Mr. Simpson have
conferred
with
you
about
this
situation,
and
it
is
my
understanding that you intend to waive any conflict of interest
and accept the situation as it exists.
Is that correct?"
Lee
answered "[y]es, it is."
Just to be sure, the prosecuting attorney asked Lee whether
he was "perfectly satisfied with Mr. Simpson defending you in the
guilt phase of this trial," and Lee answered "[y]es, I am."
*
Lee contends that Simpson told him, after the first
Reese murder trial ended in a hung jury, that he should have
gotten the death penalty, and would get it the next time.
contends this meant Simpson would not fight for him.
Lee
However, in
an Amended Petition filed by Lee in Case No. LR-C-95-718 in the
United States District Court for the Eastern District of Arkansas,
Lee's description of this exchange between himself and Simpson
suggests that Simpson was urging Lee to negotiate a plea in the
Reese murder case because of the likelihood that he would be
convicted and sentenced to death upon retrial. Good legal advice
-41-
may be couched in harsh terms, but that does not necessarily
create "a conflict."
(f)
Because there is no basis to find that the Arkansas
courts made an unreasonable determination of the facts related to
this issue, or decided it in a manner contrary to established
Federal law, this claim for relief is without merit, and will be
denied.
23.
Lee's tenth claim is that he was denied effective
assistance of counsel at trial and at sentencing in violation of
his rights under the Sixth and Fourteenth Amendments.
This claim asserts that Lee was denied his right to effective
assistance of counsel by the following alleged failures on the
part of his attorneys:
(a)
failing to present testimony by numerous witnesses who
had valuable testimony to offer on his behalf;
(b)
failing to "highlight" the absence of blood on his
clothing;
(c)
failing to present evidence to rebut the three rapes
used as aggravators;
(d)
failing to prove that the State had offered him life
without parole in exchange for a guilty plea;
(e)
failing to seek remedial measures to counteract pretrial
publicity;
(f)
failing to object to prejudicial testimony about crack
-42-
cocaine use;
(g)
failing to seek a mistrial when a juror entered chambers
during deliberations;
(h)
failing to support a motion to prohibit use of voter
registration records to select the jury panel;
(i)
failing
to
investigate
Judge
Piazza's
personal
relationship with an attorney in the prosecutor's office;
(j)
failing to object to improper closing argument by the
prosecutor;
(k)
failing to make the correct argument against use of
victim impact evidence;
(l)
condemned
failing to raise and preserve a claim that the time
inmates
spend
on
death
row
is
cruel
and
unusual
punishment; and
(m)
failing to argue cumulative error at trial.
24.
The law regarding claims of ineffective assistance of
counsel stems from Strickland v. Washington, 466 U.S. 668 (1984),
where the Court enunciated a two-part test for evaluating such
claims:
First,
the
defendant
must
show
that
counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a
trial whose result is reliable. Unless a defendant makes
both showings, it cannot be said that the conviction or
-43-
death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
466 U.S. at 687.
Counsel's performance is deficient if it falls below an
objective standard of reasonableness under prevailing professional
norms, considering all the circumstances, viewed as of the time
the conduct took place.
Id. at 688, 690.
Judicial scrutiny of counsel's performance must be
highly deferential. . . . A fair assessment of attorney
performance requires that every effort be made to
eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge
a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy.
Id. at 689 (internal citation and quotation marks omitted).
Counsel's deficient performance prejudiced the defense if the
defendant can show
a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the
outcome.
Id. at 694.
In a federal habeas proceeding, there is yet another hurdle
for defendant to clear.
In order to prevail on an ineffective
assistance of counsel claim at this stage, the petitioner must do
-44-
more
than
satisfy
the
Strickland
interpreted by this Court ab initio.
standard
as
it
might
be
He must show that the State
court applied Strickland in an objectively unreasonable manner.
Bell v. Cone, 535 U.S. 685, 698-99 (2002).
With
these
principles
in mind,
the
Court
turns
to the
specific errors alleged by Lee.
25.
Lee's first ineffective assistance of counsel contention
is that his attorneys unreasonably failed to present exculpatory
testimony by Stella Young, Patricia Young, Corey Briscoe, Sandra
Smith, Howard Lewis Young, Sheila Dodson, and Kay Howell.
(a)
The failure of defense counsel to call various witnesses4
was asserted in both Rule 37 Petitions, although not all witnesses
were included in both petitions.
Following the hearing on the
First Rule 37 Petition, Judge Langston found that the defense
decision not to call these witnesses was a tactical decision which
would not support habeas relief.
On appeal, the Arkansas Supreme Court agreed, and noted that
"Rule 37 does not provide a forum to debate trial tactics or
strategy, even if that strategy proves improvident."
Lee II, 343
Ark. at 715, 38 S.W.3d at 343.
The decision was the same on appeal from the Second Rule 37
4
These include Stella Young (Lee's mother), Patricia Young (Lee's sister), Corey
Briscoe (a family friend), Sandra Smith (Lee's cousin), Howard Lewis Young (Lee's
brother), Sheila Dodson (Lee's girlfriend), Jerry Johnson (a police officer), Lawanda
Franks, Debbie Smith (defense investigator), and witnesses to show that Lee had income
and to testify about the behavior patterns of crack cocaine users.
-45-
Lee III, 2009 Ark. 255 at 13, 308 S.W.3d at 605.
Petition.
In
addition, the failure to call Stella Young as a mitigation witness
in the penalty phase was also rejected because the Court found
that Lee had instructed his attorneys not to call her.
Lee III,
2009 Ark. 255 at 16, 308 S.W.3d at 606.
(b)
When this Court considers the deference that must be
given to a strategic decision such as whether to call a witness or
not, and the deference that must be given to the Arkansas Supreme
Court's decision to reject the claims regarding these witnesses,
it finds no basis to conclude that the State court applied
Strickland in an objectively unreasonable manner.
These claims
are nothing more than attempts to second-guess counsels' strategic
decisions.5
No showing of prejudice is made, and the decisions
cannot be said to fall outside "the wide range of reasonable
professional assistance." These claims are without merit and will
be denied.
26.
Lee's second ineffective assistance claim is that his
attorneys failed to highlight the absence of blood on his clothing
when he was seen shortly after the murder occurred.
5
The Trial Transcript contains the following statement by Adams at the bench:
"He has instructed me not to call his mother. There are certain other family members
which I have talked to: Johnny and Charles Booker, Shelby Smith, Patricia Smith. There
was two or three other family members I frankly don't see any benefit in calling. But
he wants them called.
He also wants Lt. Jerry Johnson from Jacksonville Police
Department. And I in no way intend to do that. I think it opens up too many doors for
Ms. Lodge [the prosecutor]. And she's already beat us severely as it is. I don't see
any good that's going to come out of any of that. I want to put on the record that is
in fact his wishes. There is a disagreement as to who to call. Right now I'm trying
to save his life with the limited resources that we have available. And he is not
helping."
-46-
(a)
Lee raised this issue in both Rule 37 Petitions.
His
contention is that the Reese murder was a very bloody one, and the
absence of blood on his clothing when he was seen by witnesses
shortly afterwards would have tended to exonerate him, ergo, his
attorneys were ineffective for failing to highlight such absence.
(b)
Following the hearing on the First Rule 37 Petition,
Judge Langston found that the attorneys' handling of this issue at
trial was "purely a matter of trial strategy, and beyond the
scope" of Rule 37.
On appeal, the Arkansas Supreme Court pointed out that Lee's
attorneys had, in fact, made the argument that the two witnesses
who saw Lee shortly after the murder testified that they did not
see blood on his clothing.
The court also noted
that
the
attorneys had not gone into more detail about the lack of blood
because to do so might have opened the door to evidence of blood
on a jacket Lee's mother was wearing on the day of the murder,
which was similar to a jacket a witness had said Lee was wearing.
The Court considered this treatment of the issue a matter of trial
tactics which provided Lee "no ground for relief." Lee II, 343
Ark. at 717, 38 S.W.3d at 344.
Following a hearing in the Second Rule 37 Petition, Judge
Langston found that no evidence had been introduced regarding this
issue, and again held that it was a matter of tactics
strategy, not warranting habeas relief.
-47-
and
The issue was not raised on the Second Rule 37 appeal.
(c)
Respondent contends that the failure to raise this issue
on appeal of the Second Rule 37 Petition results in a procedural
default.
The Court does not agree.
The Arkansas Supreme Court did not vacate its decision on
appeal from First Rule 37 Petition, which would have nullified
that decision. McKinney v. Arkansas Cardiology, P.A., 2009 Ark.
App. 741, 1, 2009 WL 3644815 (Ark.App. 2009).
Instead, it
recalled its mandate, in effect reopening for further proceedings
a decision that would otherwise have been final. Arkansas Supreme
Court Rule 5-3; Roberts v. State, 2013 Ark. 57, 4, --- S.W.3d ---,
2013 WL 543894 (Ark. 2013).
It follows that Lee's failure to
assert this issue, and others that will be discussed infra, on
appeal from the Second Rule 37 Petition did not cancel out the
fact that Lee did assert them on appeal from the First Rule 37
Petition, and they are not procedurally defaulted.
(d)
On the merits, Lee has shown nothing to overcome the
deference due to the decision of the Arkansas Supreme Court on
this issue, nor has he made any cogent argument showing that the
court applied Strickland in an objectively unreasonable manner.
This claim is, therefore, without merit and will be denied.
27.
Lee's next ineffective assistance claim is that his
attorneys failed to present evidence to rebut the three rapes used
as aggravating circumstances in the penalty phase of the Reese
-48-
murder trial.
(a)
This contention was raised in both Rule 37 Petitions.
In the first, Lee contended, with regard to the Perkins rape, that
his
attorneys
should
have
cross-examined
the
victim
more
vigorously and pointed out inconsistencies in her testimony.
With regard to the Dodd rape, Lee contends that his attorneys
should have cross-examined the victim more thoroughly and pointed
out that hair and fingerprints taken from the scene did not match
Lee's.
With
regard
to
the
Smith
rape,
Lee
contends
that
his
attorneys should not have cross-examined the victim so thoroughly,
i.e., should not have asked Smith if she could identify her
attacker.
Lee also contends that his attorneys should have called
witnesses in defense of these rapes, given that the State had the
burden of proving that Lee committed them.
(b)
The Arkansas Supreme Court rejected these arguments. It
noted that Lee had already been convicted of raping Perkins; that
the outcome of the trial would not have changed even without the
Dodd rape because there were other aggravating circumstances; and
that Lee's attorney had a reasonable basis to expect that Smith
would agree she could not identify her attacker.
Lee II, 343 Ark.
at 717-19, 38 S.W.3d at 344-45.
The Smith identification issue was raised again in the Second
-49-
Rule 37 Petition, and again rejected.
On appeal, the Arkansas
Supreme Court said that it was "not unreasonable for Adams to
attempt to educate the jury that [Smith] had never been able to
identify Lee as her attacker, even if the strategy 'backfired,' as
the circuit judge found."
It also held that Lee had failed to
show a reasonable probability that but for this identification,
Lee III, 2009
the jury would not have sentenced Lee to death.
Ark. 255 at 21, 308 S.W.3d at 609.
(c)
In his Habeas Petition, Lee contends that hair found at
the scene of the Perkins rape, and hair and fingerprints at the
Dodd rape scene, could not be linked to him.
that
the
identification
question
asked
of
He also contends
Smith
violated
elementary rules of trial tactics -- questioning a witness whose
testimony was not damaging and asking "one question too many" -and cannot have been a legitimate trial tactic.
(d)
Lee's contentions are to no avail. He does nothing more
than once again suggest that different trial tactics might have
been more successful, and fails to show that the Arkansas courts
applied Strickland in an objectively unreasonable fashion.
This
issue is without merit, and will be denied.
28.
Lee's next ineffective assistance claim is that his
counsel failed to offer evidence that the State had offered him
life without parole in exchange for a guilty plea.
Lee raised this issue in both Rule 37 Proceedings, and it was
-50-
rejected in both, albeit for different reasons.
The Court need
not analyze the various arguments asserted and rulings obtained on
this issue, however, because in fact Lee's attorneys did offer
evidence during the penalty phase of the Reese murder trial that
the State had offered Lee such a plea bargain, as Judge Langston
found following the hearing on the Second Rule 37 Petition.
The offer is found at page 2456 of the transcript of that
trial, and reads as follows:
The second motion, Judge, deals with the plea
bargaining aspect of the motions we filed we heard
earlier today. I know that ordinarily offers of plea
are not admissible. But we are in the penalty phase of
this trial.
At the penalty phase Rules of Evidence
don't apply to the defense in mitigation. I want to
offer in mitigation the fact the State has offered us
prior to the jury going out an offer of life
imprisonment without parole if the defendant would
plead. I think that's mitigation that I would like to
have them put in the record, put in the record, a
stipulation or I can call Ms. Lodge.
This motion was denied, and defense counsel made a proffer of
the evidence.
There being no factual basis for this asserted claim for
relief, it is without merit and will be denied.
29.
Lee's next ineffective assistance argument is that his
attorneys were ineffective for failing to seek remedial measures
to counteract pretrial publicity.
(a)
In his First Rule 37 Petition, Lee asserted that before
and during the Reese murder trial there was "an enormous amount of
media publicity" about all five cases against Lee, so great as to
-51-
jeopardize Lee's Sixth Amendment right to a fair and impartial
jury.
Judge Langston denied this claim, finding no evidence that
any juror was influenced by pretrial publicity and further, that
the decision not to seek a change of venue was a matter of trial
strategy.
On appeal, the Arkansas Supreme Court also rejected this
claim, holding that the decision whether to seek a change of venue
is a matter of trial strategy, and that Lee failed to present
evidence that any juror was actually prejudiced by pretrial
publicity.
Lee II, 343 Ark. at 720, 38 S.W.3d at 346.
Judge Langston's decision was the same following the hearing
in the Second Rule 37 Petition, and the issue was not raised on
appeal.
Although the matter was not reasserted on appeal, the
Court finds it exhausted for the reasons set forth in ¶26(c),
supra.
(b)
The Court has reviewed the transcript of Lee's trial,
and notes that few of the jurors who went through the voir dire
process had been exposed to publicity about the matter. Those who
had been so exposed could not recall what they had heard, saying
things like "it was so long ago I don't remember" or that what
they heard had "gone in one ear and out the other."
During trial, Judge Piazza cautioned the jurors appropriately
before breaks about listening to publicity, and inquired upon
their return whether they had heard anything about the trial.
-52-
There was no indication that such had occurred.
(c)
In view of this record evidence, there is no indication
that the Arkansas courts made an unreasonable determination of the
facts on this issue.
It is, therefore, without merit and will be
denied.
30.
attorneys
Lee's next ineffective assistance argument is that his
were
ineffective
for
failing
to
object
to
Glenda
Pruitt's testimony regarding Lee's alleged use of crack cocaine.
(a)
During direct examination in the Reese murder trial,
State's witness Glenda Pruitt testified, without objection, to
seeing Lee shortly after Reese was murdered, and to a brief
conversation relating to Pruitt's use of marijuana and Lee's use
of crack cocaine.
Pruitt testified that Lee had told her he
"likes crack cocaine." On cross-examination, Lee's attorney asked
Pruitt what she meant when she asked Lee "where’s the fire," which
appeared to relate to using marijuana.
On redirect, Judge Piazza found that the door had been opened
to further inquiry along this line, and Pruitt testified that Lee
had told her "I don't like weed.
I like cocaine"; that it was
"running all through" him; and that he was "going to get some
now."
Lee contends it was ineffective assistance of counsel to fail
to object to the question on direct examination, and to go back to
the subject on cross-examination.
-53-
(b)
Lee raised this issue in both Rule 37 Petitions.
Following
the hearing
on
the
First
Rule
37
Petition,
Judge
Langston found that the questioning of Pruitt was "clearly a
matter of trial strategy," and that Lee had failed to show that an
objection would have been sustained, or that he was prejudiced by
the lack of one.
On appeal, the Arkansas Supreme Court echoed this finding,
holding that counsel's intent to discredit Pruitt as being a drug
user was "clearly a matter of trial strategy," and would not
support habeas relief.
Lee II, 343 Ark. at 720, 38 S.W.3d at 346.
Following the hearing on the Second Rule 37 Petition, Judge
Langston found that Lee had offered no evidence that he was
unfairly prejudiced by the lack of an objection to this testimony,
or that such an objection would have been sustained. He again
found the handling of Pruitt a matter of trial tactics and
strategy which did not warrant habeas relief.
The issue was not raised on the second Rule 37 appeal, but
the Court finds it exhausted for the reasons set forth in ¶26(c),
supra.
(c)
Arkansas
Lee has shown nothing that would indicate that the
Supreme
Court
applied
Strickland
unreasonable in dealing with this claim.
in
an
objectively
Attempting to discredit
a witness by showing that she used drugs is a legitimate trial
tactic.
This claim is without merit, and will be denied.
-54-
31.
Lee's next ineffective assistance argument is that his
attorneys were ineffective for failing to seek a mistrial when a
juror was seen leaving the Judge's chambers.
(a)
This issue arose when Lee's mother Stella Young saw a
juror entering Judge Piazza's chambers during a lunch recess, and
then
leaving
again
fifteen
to
twenty
minutes
later.
Young
testified that she told Qualls about this, and that Qualls told
her the juror was merely using the telephone.
(b)
Lee asserted the failure to seek a mistrial on the basis
of this situation as ineffective assistance of counsel in both
Rule 37 Petitions.
Following the hearing on the First Rule 37
Petition, Judge Langston rejected the claim, finding no showing of
any direct contact between the juror and Judge Piazza, and no
evidence that a motion for mistrial was warranted.
On appeal, the Arkansas Supreme Court also rejected the
claim, finding that Lee failed to show prejudice because there was
no evidence as to what occurred in chambers even though Judge
Piazza testified at the Rule 37 hearing and could have been
questioned about the incident.
Lee II, 343 Ark. at 721, 38 S.W.3d
at 346.
Judge Piazza also testified at the hearing on the Second Rule
37 Petition, and again, was not questioned about this issue.
Relief was again denied for lack of evidence, and the matter was
not addressed on the Second Rule 37 appeal.
-55-
Despite this, the
Court finds it exhausted for the reasons set forth in ¶26(c),
supra.
(c)
Lee's contention -- that because Judge Piazza
was seen
leaving chambers after the juror had been there, improper contact
must
have
occurred
--
is
nothing
insufficient to sustain habeas relief.
more
than
speculation,
The Reese murder trial
took place before cell phones became ubiquitous, and use of
chambers telephones by jurors was not an uncommon occurrence.
Judicial chambers are multi-roomed structures, and contact between
judge and juror was certainly not inevitable.
Moreover, even if the juror had entered chambers to talk with
Judge
Piazza,
such
contact
would
not
necessarily
have
been
prejudicial "improper contact" as urged by Lee. The Supreme Court
considered an ex parte communication between judge and juror in
Rushen v. Spain, 464 U.S. 114, 117-19 (1983), and "emphatically
disagreed" with the lower court's holding that "an unrecorded ex
parte communication between trial judge and juror can never be
harmless error."
It said
[t]here is scarcely a lengthy trial in which one or more
jurors do not have occasion to speak to the trial judge
about something, whether it relates to a matter of
personal comfort or to some aspect of the trial. The
lower federal courts' conclusion that an unrecorded ex
parte communication between trial judge and juror can
never be harmless error ignores these day-to-day
realities of courtroom life and undermines society's
interest in the administration of criminal justice.
Id. at 118-19.
-56-
(d)
In the absence of evidence of improper contact, and in
the face of Rushen, it cannot be said that the Arkansas courts
applied Federal law in an unreasonable manner.
This claim is
without merit, and will be denied.
32.
Lee's next ineffective assistance argument is that his
attorneys were ineffective for failing to support their motion to
prohibit use of voter registration records to select the jury
panel.
(a)
Lee asserted this claim in his First Rule 37 Petition,
where it was rejected because Lee failed to present evidence to
support it.
On appeal, the Arkansas Supreme Court also rejected
the claim, finding
that Lee had failed to show how he was
prejudiced by the lack of support for the motion, and that it was
not
ineffective
assistance
of
counsel
to
fail
to
objection when there is no chance it will be sustained.
raise
an
Lee II,
343 Ark. at 722, 38 S.W.3d at 347.
Lee
asserted
this
claim
again
in
the
Second
Rule
37
Proceeding, and Judge Langston again rejected it, both for lack of
evidentiary support and because use of voter registration records
had been upheld as an appropriate method of jury selection.
The issue was not raised on the second Rule 37 appeal, but
the Court finds it exhausted for the reasons set forth in ¶26(c),
supra.
(b)
The
Court
analyzed
the
-57-
substantive
merits
of
this
argument in ¶17, supra, and found it without merit.
Based on that
analysis, the Court finds that the Arkansas Supreme Court did not
apply Strickland in an objectively unreasonable fashion when it
denied the argument couched in terms of ineffective assistance of
counsel.
33.
This claim is without merit and will be denied.
Lee's next ineffective assistance argument is that his
attorneys were ineffective for failing to conduct an investigation
into Judge Piazza's personal relationship with a Prosecuting
Attorney.
(a)
Lee asserted this claim in the First Rule 37 Petition,
where it was denied it, based on the lack of any evidence that
Lee's attorneys were aware of any such relationship. The Arkansas
Supreme Court agreed.
Lee II, 343 Ark. at 722, 38 S.W.3d at 347.
The claim was not addressed in this form in the Second Rule
37 Petition, where Judge Langston considered only whether such a
relationship existed, nor was it raised on the second Rule 37
appeal, but the Court finds it exhausted for the reasons set forth
in ¶26(c), supra.
(b)
The testimony of Lee's attorneys in connection with the
First Rule 37 Petition was that they were unaware of the alleged
relationship, and Lee offers nothing that would counter such
evidence.
That being so, it cannot be said that the Arkansas
courts made unreasonable factual determinations when they found no
evidence the attorneys were aware.
-58-
And in the absence of any
evidence that might have raised a question in the minds of Lee's
attorneys about a personal relationship between Judge Piazza and
Larue, it cannot be said that either Judge Langston or the
Arkansas
Supreme
Court
applied
Strickland
in
an
unreasonable fashion in dealing with this claim.
objectively
The claim is
without merit, and will be denied.
34.
Lee's next ineffective assistance argument is that his
attorneys were ineffective for failing to object to improper and
inflammatory closing remarks
(a)
"hunter";
by the State.
In her closing remarks, Lodge referred to Lee as a
Jacksonville
as
Jacksonville as his "prey."
his
"habitat";
and
the
people
of
In her rebuttal, she said "Mr. Adams
finally says, who are we, referring to us, I guess, referring to
you specifically as jurors, who are we to determine when a life
should be taken?
Ladies and gentlemen, I will tell who we are.
We are the hunted."
Lee's attorneys did not object to this line
of argument.
(b)
The
failure
to
do
so
was
asserted
assistance of counsel in both Rule 37 Petitions.
as
ineffective
At the hearing
on the First Rule 37 Petition, Adams testified that he would have
objected to the argument if he had heard it, but that he "just
missed it."
Judge Langston denied Rule 37 relief, ruling that while the
argument was improper, "it was not one which would have inflamed
-59-
the passion of the jury to such a degree that the outcome of the
proceeding would have been any different had the remark not been
made,
or
had
been
objected
to,
and
the
jury
admonished
to
disregard it."
On
appeal,
the
Arkansas
Supreme
Court
agreed
argument was "objectionable," but found no prejudice.
that
the
The court
said that "[g]iven the nature and strong evidence of guilt the
jury had already heard, both during the guilt phase and the
sentencing
portion of
Lee's
trial,
it
is
unlikely
that the
additional comment -- albeit an objectionable comment -- was the
determining factor in the jury's decision to impose the death
penalty on Lee."
Lee II, 343 Ark. at 723-24, 38 S.W.3d at 348.
On appeal of the Second Rule 37 Proceeding, the court made
the same decision, noting that the jury had
heard testimony of the violent nature of the Reese
murder during the penalty phase and also heard testimony
that
Lee
had
raped
three
different
women
in
Jacksonville. Under these circumstances, we conclude
that Lee has not met his burden to show that there is a
reasonable probability that the jury would have imposed
a different sentence if Adams had objected to the
prosecutor's statement.
Lee III, 2009 Ark. 255 at 19, 308 S.W.3d at 608.
(c)
Under Strickland, to prevail on this claim Lee must show
that the objectionable comments were so serious that they deprived
him of a fair trial.
Lee has failed to make this showing, and the
Court concludes that it cannot be said that the Arkansas Supreme
Court applied Strickland in an objectively unreasonable manner in
-60-
denying this claim.
The claim is without merit, and will be
denied.
35.
Lee's next ineffective assistance argument is that his
attorneys were ineffective for failing to advance the correct
theory to support his objection to the State's use of victim
impact evidence.
(a)
Lee
argues
that
his
counsel
should
have
made
a
relevancy-based objection to the victim impact evidence introduced
at
the
Reese
murder
trial.
He
derives
this
claim
from
a
concurring opinion in his direct appeal, Lee I, 327 Ark. at 706,
942 S.W.2d at 238 (1997) (Newbern, J., concurring).
(b)
Lee asserted this claim in both Rule 37 Petitions.
In
the First, Judge Langston denied the claim, finding no evidence
that a relevancy objection would have altered the outcome of the
trial.
On appeal, the Arkansas Supreme Court also rejected the
claim, as there was already authority approving the use of victim
impact evidence.
The objection would, therefore, have been
meritless, and it is not ineffective assistance of counsel to fail
to make a meritless objection.
Lee II, 343 Ark. at 724, 38 S.W.3d
at 348.
Judge Langston also denied this claim in connection with the
Second Rule 37 Petition, for the same reason, and the denial was
not appealed.
The issue was not raised on the second Rule 37
-61-
appeal, but the Court finds it exhausted for the reasons set forth
in ¶26(c), supra.
(c)
Lee makes no showing that if his attorneys had made a
relevancy objection to the victim impact evidence it would have
altered the outcome of this case. Justice Newbern's argument did
not prevail in Lee's direct appeal, and has continued to be
rejected.
See, e.g., Roberts v. State, 2013 Ark. 56, 4, ---
S.W.3d ---, 2013 WL 543892 (Ark. 2013) ("victim-impact evidence is
relevant evidence that informs the jury of the toll the murder has
taken on the victim's family").
(d)
Arkansas
Under these circumstances, it cannot be said that the
Supreme
Court
applied
Strickland
in
unreasonable fashion in dealing with this claim.
an
objectively
The claim is
without merit and will be denied.
36.
Lee's next ineffective assistance argument is that his
attorneys were ineffective for failing to raise and preserve a
claim that the amount of time condemned inmates are forced to
spend on death row amounts to cruel and unusual punishment in
violation of the Eighth Amendment.
(a)
Lee raised this claim in both Rule 37 Petitions, and it
was rejected in both.
In the First Rule 37 Petition, Judge
Langston pointed out that the claim was not based on existing
precedent, and that an attorney is not ineffective for "failing to
raise every novel issue which might conceivably be raised."
-62-
On appeal, the Arkansas Supreme Court also found that this
was a novel claim, and that the failure to raise it was not
ineffective assistance of counsel.
Lee II, 343 Ark. at 725, 38
S.W.3d at 349.
Judge Langston made the same decision in the Second Rule 37
Petition, and the issue was not asserted on appeal.
The Court
considers the claim an exhausted one, for reasons set forth in
¶26(c), supra.
(b)
This claim was described in Lackey v. Texas, 514 U.S.
1045 (1995) (memorandum of Stevens, J., respecting denial of
certiorari). Justice Stevens (joined by Justice Breyer) considered
it a novel claim, but not without foundation, and
concluded his
memorandum by noting that the Court's denial of certiorari does
not constitute a ruling on the merits.
Often, a denial of
certiorari on a novel issue will permit the state and federal
courts to "serve as laboratories in which the issue receives
further study before it is addressed by this Court." Id. at 1047
(internal citation omitted).
Notwithstanding
this
invitation,
although
the
issue
has
reached the Supreme Court many times it has never commanded a
majority.
Perhaps this is because of the irony inherent in the
argument, as succinctly described by Justice Thomas in Johnson v.
Bredesen, 558 U.S. 1067 (2009):
"There is simply no authority 'in
the American constitutional tradition or in this Court's precedent
-63-
for the proposition that a defendant can avail himself of the
panoply of appellate and collateral procedures and then complain
when his execution is delayed'."
(c)
For these reasons, it cannot be said that the Arkansas
Supreme Court applied Strickland in an objectively unreasonable
fashion in rejecting it.
The claim is without merit and will be
denied.
37.
Lee's final claim is that the cumulative error doctrine
should be applied to the various errors he alleges were made by
his attorneys.
(a)
This claim was raised by Lee in both Rule 37 Petitions,
and rejected in both.
Following the hearing on the First Rule 37
Petition, Judge Langston ruled that Lee had not identified any
errors which would justify habeas relief.
Supreme Court agreed.
On appeal the Arkansas
Lee II, 343 Ark. at 726, 38 S.W.3d at 349.
In the Second Rule 37 Petition, Judge Langston made the same
ruling, and that decision was not appealed.
The Court considers
the claim an exhausted one for reasons set forth in ¶26(c), supra.
(b)
The Eighth Circuit has repeatedly rejected the notion of
cumulative error as a basis for habeas relief.
supra,
455
F.3d
at
851
(accumulating
cases).
See Middleton,
Neither
the
conclusions of Judge Langston, nor that of the Arkansas Supreme
Court, are contrary to Eighth Circuit law on this issue.
claim is without merit and will be denied.
-64-
This
V.
38.
CONCLUSION
Based on the foregoing analysis, the Court finds that
Lee has failed to establish his entitlement to a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
His Petition For Writ Of
Habeas Corpus (document #1) is, therefore, denied.
IT IS SO ORDERED this 18th day of June, 2013.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
-65-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?