Lee v. Hobbs

Filing 127

ORDER denying 116 Petitioner's Motion to Vacate, Alter or Amend Judgment Pursuant to Rule 59(e). Signed by Judge Jimm Larry Hendren on 12/18/13. (vjt)

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

Now

on

this

consideration

18th

day

Petitioner’s

of

December,

Motion

To

2013,

Vacate,

comes

Alter

Or

on

for

Amend

Judgment Pursuant To Rule 59(e) (“Motion To Vacate”) (document
#116), and from said motion, and the response thereto, the Court
finds and orders as follows:
1.

Ledell Lee ("Lee") brought this habeas corpus proceeding

(the “Habeas Petition”) under 28 U.S.C. §2254.

After reviewing

extensive briefs, and even more extensive transcripts, the Court
found that Lee had failed to establish his entitlement to a writ
of habeas corpus, and the Habeas Petition was denied.
2.

Lee now contends that this decision should be vacated,

altered, or amended pursuant to F.R.C.P. 59(e).
Rule 59(e) states that “[a] motion to alter or amend a
judgment must be filed no later than 28 days after the entry of
the judgment.” The Order that Lee seeks to have reconsidered was
entered on June 18, 2013, and the Motion To Vacate was filed on
July 16, 2013.

Case law provides the guidelines for what can be taken up on
a Rule 59(e) motion:
Rule 59(e) motions serve a limited function of
correcting manifest errors of law or fact or to present
newly discovered evidence. Such motions cannot be used
to introduce new evidence, tender new legal theories, or
raise arguments which could have been offered or raised
prior to entry of judgment.
Innovative Home Health Care, Inc. v. P.T.-O.T. Associates of the
Black

Hills, 141

F.3d

1284,

1286

(8th

Cir.

1998)

(internal

quotation marks and citations omitted).
3.

Lee makes three arguments for reconsideration:

*

He

contends

“uncontradicted

that

evidence”

the

that

Court
his

failed

Second

to

Rule

37

consider
counsel

“sabotaged” his case “by failing to competently raise and litigate
meritorious constitutional claims.”
*

He contends that the Court “overlooked the significance”

of authority that “strongly indicates” he should be given an
opportunity -- either in a new Rule 37 proceeding or in an
evidentiary hearing before this Court -- to show ineffective
assistance of counsel both at trial and in his Second Rule 37
proceeding.
*

Finally, he contends that the Court should reconsider

his claim regarding “the extramarital affair between the trial
judge and the prosecutor” because the Court overlooked material
issues of law and fact.
Respondent objects to the pending motion.
-2-

The matter is

fully briefed and ripe for disposition.
4.

The relevant procedural history of Lee’s case is as

follows:
*

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.
*

Lee was convicted and sentenced to death for the Reese

murder. His conviction and sentence were affirmed on appeal. Lee
v. State, 327 Ark. 692, 942 S.W.2d 231 (Ark. 1997), cert. den. 522
U.S. 1002).
*

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
Reese murder trial. The trial court denied this petition, and the
denial was affirmed on appeal.

Lee v. State, 343 Ark. 702, 38

S.W.3d 334 (Ark. 2001).
*

Lee then filed his Habeas Petition.

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
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to take appropriate action to allow Lee to present relevant
evidence and argument in favor of his Rule 37 petition issues."
*

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
Petition was raised by Judge Howard.

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."
*

Id. at 847.

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.
*

New attorneys were appointed to represent Lee, and a

second Rule 37 petition (the "Second Rule 37 Petition") was filed.
Like the First Rule 37 Petition, this one was denied, and the
denial was affirmed on appeal. Lee v. State, 2009 Ark. 255, 308
S.W.3d 596 (Ark. 2009).
-4-

*

On November 9, 2009, the United States Supreme Court

denied certiorari in connection with the Second Rule 37 Petition.
Lee v. Arkansas, 558 U.S. 1013 (2009).
*

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.
*

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.
*

This Court then considered Lee’s Habeas Petition on its

merits, and denied it on June 18, 2013.
5.

Lee first contends that the Court’s June 18, 2013, Order

should be vacated, altered or amended because the Court failed to
consider “uncontradicted evidence” that Lee’s Second Rule 37
attorneys “sabotaged” his case “by failing to competently raise
and litigate meritorious constitutional claims.”
(a)

The only specific claim Lee contends was not raised in

the Second Rule 37 Petition is that his attorneys “negligently
failed to raise or present the plethora of available evidence
supporting a Wiggins claim.”

-5-

In Wiggins v. Smith, 539 U.S. 510 (2003), the Supreme Court
reversed a death sentence because the defendant’s attorneys had
failed to conduct a reasonable investigation into his family and
social history in connection with the sentencing phase of his
trial.

Lee’s attorneys did not, however, fail to conduct such an

investigation.

According to Lee’s Motion, they hired “both a

mitigation specialist and a guilt phase investigator each of whom
uncovered a plethora of evidence,” including “extensive mitigating
evidence.”
What Lee really appears to complain about is that this
evidence was not introduced at the Second Rule 37 hearing, the
implication being that if it had been presented the decision in
that proceeding would have been that Lee’s trial attorneys were
ineffective for failing to present the evidence in mitigation at
his sentencing.
Whether to utilize evidence is a tactical decision entitled
to the “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance” established by
Strickland v. Washington, 466 U.S. 668, 689 (1984).
offered nothing that would overcome this presumption.

Lee has
Unlike the

defendant seeking relief in Trevino v. Thaler, --- S.Ct. ---, 2013
WL 2300805, *4 (2013), Lee has not proffered any of the evidence
developed

by

the

mitigation

specialist

or

the

guilt

phase

investigator, or even so much as alluded to the nature of it, and
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it is too late to do so now.

Evidence which could have been

offered earlier cannot be adduced on a Rule 59(e) motion.
Under these circumstances, there is no basis for the Court to
conclude that Lee’s Second Rule 37 attorneys were incompetent
because of their failure to present the evidence.
(b)

The malevolent intent embodied in the word “sabotage”

has likewise not been shown.

The failure to assert a claim --

without more -- has no sinister implications. To the contrary, as
has been said with regard to appeals, the “process of winnowing
out weaker arguments . . . and focusing on those more likely to
prevail, far from being evidence of incompetence, is the hallmark
of effective appellate advocacy.”

Smith v. Murray, 477 U.S. 527,

536 (1986) (internal quotation marks omitted). There is no reason
why

a

different

rule

should

obtain

with

regard

to

habeas

proceedings.
Whether to advance an argument to the Court is also a
tactical decision entitled to the Strickland presumption. Absent
some

showing

that

meritorious

claims

were

omitted

without

legitimate reason, there is no basis to find fault with Lee’s
Second Rule 37 attorneys for narrowing the field.
(c)

Finally, the Court is not persuaded that reconsideration

is merited based on the failure of Lee’s Second Rule 37 attorneys
to prove up some of the claims asserted in that proceeding.

-7-

Some

of the listed claims had no factual support.1

The failure to

prove up a claim is not ineffective assistance of counsel if no
evidence exists that will support that claim. Other listed claims
were not even asserted by Lee in his Habeas Petition, leaving him
in

no

position

to

argue

that

his

Rule

37

attorneys

were

ineffective for failing to prove them up.
6.

Lee’s second argument is that the June 18, 2013, Order

cannot stand because the Court failed to consider legal principles
set out in Rhines v. Weber, 544 U.S. 269 (2005), Martinez v. Ryan,
132 S.Ct. 1309 (2012), and Trevino v. Thaler, supra.

These

arguments are without merit.
(a)

Lee’s

complaint

that

the

Court

“made

no

reference

whatsoever” to Rhines in its June 18, 2013, Order does not justify
reconsideration.

The Court addressed Rhines in its Order of

September 20, 2012 (document #105), and there was no need to
revisit the case in its June 18, 2013, Order.
(b)

Lee’s arguments relating to Martinez and Trevino bear on

his renewed claim that this Court should stay its ruling on his
Petition and remand his Second Rule 37 Petition to the Arkansas
Supreme Court for further proceedings.
The issue in Martinez was “whether a federal habeas court may

1
For example, Lee’s claim that his trial counsel was ineffective for failing to
highlight the absence of blood on his clothing shortly after the Reese murder runs afoul
of the record showing that the argument was in fact made. His claim that his attorneys
were ineffectual for failing to seek remedial measures for pretrial publicity is
hampered by the fact that there is no evidence that any juror was affected by pre-trial
publicity.

-8-

excuse a procedural default of an ineffective-assistance claim
when the claim was not properly presented in state court due to an
attorney’s errors in an initial-review collateral proceeding.”
132 S.Ct. at 1313. The holding was that “[i]nadequate assistance
of counsel at initial-review collateral proceedings may establish
cause

for

a

prisoner’s

procedural

ineffective assistance of counsel.”

default

of

a

claim

of

132 S.Ct. at 1315.

Trevino broadened the holding in Martinez, applying it to a
wider range of state post-collateral relief schemes.
Martinez and Trevino are inapposite here.

No ineffective

assistance of counsel claim asserted in Lee’s Habeas Petition was
procedurally defaulted in the June 18, 2013, Order.
7.

Lee’s third contention is that the Court’s June 18,

2013, Order should be vacated, altered or amended because the
Court overlooked material issues of law and fact with regard to
“Claim 7" in his Habeas Petition, which is that he was denied due
process

by

the

trial

judge’s

refusal

to

recuse

based

on

a

relationship with a prosecuting attorney and the State’s failure
to disclose this relationship.

Lee contends that his Second Rule

37 counsel “neglected to present several pieces of substantial
evidence and testimony” to support this claim.
The factual background for this argument was set out in the
Court’s June 18, 2013, Order as follows:
The Reese murder trial was prosecuted by Holly Lodge of
the Sixth Judicial District Prosecuting Attorney’s
-9-

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 whether it had any
impact on the trial, are disputed.
The State court found, in both Rule 37 proceedings, that Lee
failed to prove the existence of a relationship between Judge
Piazza and Larue that warranted either disclosure or recusal. Lee
contends

that

the

State

court’s

judgment

unreasonable determination of the facts.”

“rested

upon

an

This is important for

Lee because a habeas petition cannot be granted on a claim
adjudicated on the merits in state court unless it “resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.”

28 U.S.C. § 2254(d)(2).

Both Judge Piazza and his former wife testified at the First
Rule 37 hearing, and their testimony differed on when Judge
Piazza’s involvement with Larue began.

Lee contends that the

State court finding that no relationship warranting disclosure or
recusal existed at the time of his trial is unreasonable because
any purported finding that Judge Piazza was more
credible than his ex-wife is unreasonable in light of
the irrefutable fact that, under any objective criteria,
Mrs. Piazza had no reason to lie. On the other hand,
Judge Piazza had every reason to lie in order to protect
his job, to protect his personal reputation, and to
prevent a flood of reversals in every criminal case that
appeared in front of him contemporaneously with
-10-

petitioner’s trial.
(Document #116, p. 21).
Lee’s argument lacks merit.
that

Mrs.

Piazza

had

no

It is not an “irrefutable fact”

reason

to

lie

about

her

husband’s

extramarital activities. She might have been motivated to lie out
of resentment about the whole situation.

The Court makes no

determination

lied

about

whether

Mrs.

Piazza

--

it

merely

acknowledges that possibility and, because it is a possibility, it
demonstrates the weakness of Lee’s argument. The State court’s
factual determination on this issue is presumed to be correct, and
can only be rebutted by clear and convincing evidence.
§ 2254(e)(1).

28 U.S.C.

Lee has not met this burden.

Moreover, the Court determined, at ¶20(f) of its June 18,
2013, Order, that Lee could not show prejudice even if the
Piazza/Larue relationship was as he posited:
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.
Given this determination, it would not alter the outcome of
Lee’s Habeas Petition to allow further evidence pertaining to the
relationship between Judge Piazza and Larue.
8.

Finally, Lee points out that the Court did not enter a
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separate judgment under F.R.C.P. 58 in connection with its June
18, 2013, Order, and that the Clerk of Court did not make an entry
of final judgment on the docket sheet.

The Court will remedy this

situation by filing a separate Judgment concurrently with this
Order.
IT IS THEREFORE ORDERED that Petitioner’s Motion To Vacate,
Alter Or Amend Judgment Pursuant To Rule 59(e) (document #116) is
denied.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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