Kemp v. Hobbs

Filing 107

ORDER denying without prejudice 87 Motion for Partial Summary Judgment. 82 Motion for an evidentiary hearing on cause is granted in part and mostly denied. The embedded motion for a merits hearing is denied. The Court will hold an evidentiary hearing on Kemp's allegations of mental illness, organic brain damage, and childhood trauma. Signed by Judge D. P. Marshall Jr. on 8/14/2014. (jak)

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

PETITIONER

TIMOTHY WAYNE KEMP

v.

No. 5:03-cv-55-DPM

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT

ORDER

Kemp moves for a hearing on the State's procedural defenses and on the
merits of his Claims I, II, III, IV, V, IX, XI, XII, and XVII. Kemp also asks the
Court to reconsider its denial of Claims XIV and XV and to hold a merits
hearing on them. Finally, Kemp moves for partial summary judgment on
Claims IV, XI, and XVII. Appendix A lists all Kemp's claims and their many
subparts. The Court is proceeding on Kemp's second amended petition.
The Legal Standard.

The governing statute limits this Court's

discretion to grant an evidentiary hearing. On claims that Kemp failed to
develop in state court, the Court may not hold a hearing unless Kemp has
satisfied strict requirements: He must show that the claim relies on" a factual
predicate that could not have been previously discovered through the exercise

of due diligence" and that" the facts underlying the claim would be sufficient
to establish by clear and convincing evidence that but for constitutional error,
no reasonable factfinder would have found [Kemp] guilty of the underlying
offense."

28 U.S.C. § 2254(e)(2). Failure to develop the factual basis of a

claim is established if there's something more than just not raising the
issue-some lack of diligence, or some greater fault, attributable to Kemp or
his lawyer. Williams v. Taylor,529 U.S. 420,432 (2000). Diligence requires, at
a minimum, that Kemp must have sought an evidentiary hearing in state
court. Osborne v. Purkett, 411 F.3d 911, 915-16 (8th Cir. 2005). He didn't on
many issues now raised.

But the alleged ineffectiveness of Kemp's

lawyers- at trial and postconviction- may open the door to some otherwise
barred claims.

Evidentiary Hearing on Procedural Defenses.

Ineffectiveness of

counsel in initial collateral proceedings may establish cause to excuse the
procedural default of an ineffective-assistance-of-trial-counsel claim. Trevino
v. Thaler, 133 S. Ct.1911, 1921 (2013); Sasser v. Hobbs, 735 F.3d 833,853-54 (8th

Cir. 2013); NQ 101. To satisfy the Trevino exception, Kemp must show two
things: the underlying ineffective assistance of trial counsel was substantial;
and postconviction counsel's failure to raise the claim was prejudicial.
Without a showing of actual prejudice, the claim remains procedurally
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barred. Sasser v. Hobbs, 2014 WL 764171 (8th Cir. 26 Feb. 2014) (denying
rehearing by the panel).
The record contains overwhelming evidence against Kemp on the
elements of capital murder and the aggravating factors supporting the death
sentence. Kemp v. State, 324 Ark. 17,919 S.W.2d 943 (1996) and Kemp v. State,
348 Ark. 750,74 S.W. 3d 224 (2002); NQ 68. Becky Mahoney, Kemp's girlfriend,
testified that Kemp left the group at the trailer, drove to his own house, got
his gun, and then returned to the trailer and started shooting. Kemp's friend,
Bill Stuckey, testified that Kemp confessed to murdering the four victims. For
most of his ineffectiveness claims, Kemp hasn't shown that "there is a
reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Strickland v. Washington, 466
U.S. 668,694 (1984).
Kemp may be able, though, to establish actual prejudice on his
ineffectiveness claims arising from his alleged mental illness and childhood
trauma. In his second amended petition, Kemp pleads that he suffers from
serious mental illness and organic brain damage. He provides affidavits
describing a childhood filled with physical, psychological, and emotional
abuse, and a family history of mental illness. If Kemp can prove these

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allegations, then he may have been prejudiced. Had all this evidence been
presented before, there may be a reasonable probability that at least one of the
jurors would've concluded that the aggravating circumstances did not
outweigh the mitigating circumstances beyond a reasonable doubt, and thus
voted for life in prison, rather than death, at the penalty phase.
ANN. §

ARK.

CODE

5-4-603(a)(2); Williams v. Norris, 576 F.3d 850, 858 (8th Cir. 2009).

Perhaps Kemp can prove that he lacked the mental capacity to act with a
premeditated and deliberated purpose.

ARK.

CODE

ANN. §

5-10-101. Or

perhaps he can prove that he lacked the mental capacity to conform his
conduct to the requirements of the law or to appreciate the criminality of his
conduct as a result of mental disease or defect.

ARK.

CODE ANN. § 5-2-313.

The failure to develop the facts behind these claims in state court was
not due to Kemp's lack of diligence; it was the result of the alleged
ineffectiveness of trial counsel and post-conviction counsel.

In these

circumstances, the statute authorizes the Court to hold an evidentiary hearing
on these claims. Sasser, 735 F.3d at 854. That hearing will reveal whether trial
counsel was ineffective at any one of several points: at the guilt phase for not
adequately investigating and presenting a defense of not guilty by reason of
mental disease or defect; or at the penalty phase (at the original sentencing

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and at resentencing) for not investigating and presenting mitigating evidence
of Kemp's alleged mental illness, frontal lobe damage, and traumatic
childhood. These are Claims LA, XI.E, and XII.A.
Kemp also argues that his procedural default should be excused
because "there is an absence of available State corrective process" or
"circumstances exist that render [this] process ineffective to protect [his]
rights[.]" 28 U.S.C. § 2254(b)(1)(B). To the extent that Kemp makes conflict
and ineffectiveness arguments about counsel here, NQ 55 at 6-10, the Court's
application of Trevino adequately covers this ground.

His argument

otherwise lacks merit. Welch v. Lund, 616 F.3d 756, 760 (8th Cir. 2010). The
Court denies Kemp's request for a hearing on this excuse for procedural
default.
As Kemp acknowledges, the Court must first address all non-defaulted
claims, and other grounds for excusing cause, before reaching arguments
about actual innocence. The motion for a hearing on this exception is
therefore denied without prejudice.
Evidentiary Hearing on the Merits. Kemp asks for a hearing on the

merits of nine of his claims. First, the Court notes that, contrary to Kemp's
arguments, it didn't make any decision in its June 2012 Order about the merits

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of Kemp's remaining claims. Second, in deciding today whether a hearing is
necessary on Kemp's procedural defenses, the Court has addressed Claims I,
XI, and XII, and denied a hearing on Claim V for now. The Court therefore
addresses only Claims II, III, IV, IX, and XVII here. Kemp contends that his
failure to develop the facts of these claims in state court wasn't his fault. It
was, he says, the result of prosecutorial misconduct and the ineffectiveness
of his trial counsel.
Based on the recent discovery, Kemp has presented new evidence of
these things.

•

Becky Mahoney's alleged incompetence- mental retardation,
major depressive disorder, post traumatic stress disorder, and
severe substance abuse- that could have affected her ability to
retain and recall events;

•

Statements that Mahoney made to the prosecution, including that
Helton (one of the victims) had been" messing" with Kemp on the
night of the shooting, and that Helton had a pistol, which he
planned to use to scare Kemp if he returned;

•

A rifle in the trailer the night of the shooting that didn't belong to
Kemp; and

•

Gunshot residue tests that the prosecution had, but didn't share,
which showed residue on three of the four victims' hands.

Kemp hasn't established that he was unable to develop these new facts in
state court despite diligent efforts to do so. Moore-El v. Luebbers,446 F.3d 890,

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901 (8th Cir. 2006). There is, for example, no showing that he sought an
evidentiary hearing to develop this evidence at that time. Ibid. And this
Court is "not an alternative forum for trying facts and issues which [Kemp]
made insufficient effort to pursue in state proceedings." Williams, 529 U.S. at
437.
Kemp concedes that Claim II doesn't satisfy the first element of
§ 2254(e)(2). NQ 82 at 17-21. On Claims III, IV, IX, and XVII, the Court may

not hold a merits hearing unless these new facts would be sufficient to
establish, by clear and convincing evidence, that no reasonable fact finder
would have found Kemp guilty but for constitutional error.

28 U.S.C.

§ 2254(e)(2). Kemphasn'tclimbed thishighhill. First, whether the group had

been taunting and provoking Kemp before he left the trailer is immaterial
given the time Kemp had to cool off before returning to the trailer and
shooting everyone. Second, there was sufficient evidence, even without
Mahoney's testimony, for the jury to find Kemp guilty. Third, the Arkansas
Supreme Court considered the issue of another weapon being at the crime
scene. That Court concluded that "determining who owned the weapon
would not have changed the outcome of the trial." Kemp v. State,348 Ark. 750,
759,74 S.W.3d 224,228 (2002). And fourth, the fact that there was gunshot
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residue on some of the victims' hands- without anything connecting the
residue to some provoking event-wouldn't change the outcome of the case.
The motion for a hearing on the merits of Claims II, III, IV, IX, and XVII is
denied.
Reconsideration. Kemp asks the Court to reconsider Claim XIV- that
he was denied the effective assistance of counsel, as well as conflict-free
counsel, on direct appeal. The Court previously concluded that Kemp had
shown neither deficient performance nor sufficient prejudice. Ng 68 at 22-23.
In his second amended petition, Kemp rep leads this claim in an effort to cure
its defects. Ng 81 at 232-236. Kemp's new petition argues that his lawyer on
direct appeal was ineffective in several ways:

•

By not arguing that Kemp's constitutional rights were violated by
the erroneous admission of a highly prejudicial 911 call;

•

By not arguing that Kemp's constitutional rights were violated by
the prosecution's improper prediction of Kemp's future
dangerousness at resentencing;

•

By not briefing other examples of prosecutorial misconduct; and

•

By not briefing a claim that cumulative errors at trial and both
sentencings violated Kemp's constitutional rights.

Even accepting all these new arguments, Kemp hasn't shown prejudice
on several of the subparts of Claim XIV about the effectiveness of counsel on
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direct appeal. Williams v. United States, 452 F.3d 1009, 1014 (8th Cir. 2006).
The admission of the 911 call was not so prejudicial as to change the outcome
of the case.

And Arkansas courts don't recognize cumulative error in

allegations of ineffective assistance of counsel. See e.g., Noel v. State, 342 Ark.
35, 42, 26 S.W.3d 123, 128 (2000). These points remain denied. The Court
grants the motion to reconsider on the other two issues (the futuredangerousness argument and not briefing alleged prosecutorial misconduct),
but denies Kemp's request for an evidentiary hearing on them. They overlap
with Claims IV, IX, X, and XVII, which remain open for decision on the record
already made. No hearing is needed, as the Court has already ruled.
Kemp also asks the Court to reconsider Claim XV- that he was
deprived of his right to effective assistance of counsel during his postconviction proceeding. The Court denied this claim on the merits. NQ 68 at
23-24. Kemp hasn't amended his pleadings about this claim, NQ 81 at 23 7-45,
and the law hasn't changed. Coleman v. Thompson,501 U.S. 722,752 (1991); 28
U.S.C. § 2254(i). Claim XV still fails as a matter of law.
Partial Summary Judgment. For the reasons argued by Hobbs, NQ 94,
the Court is skeptical about Kemp's motion for judgment as a matter of law
on Claims IV, XI, and XVII. The motion is premature in any event: Part of

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Claim XI will be explored at the evidentiary hearing. The motion is denied
without prejudice.

***
Motion for partial summary judgment, NQ 8 7, denied without prejudice.
Motion for an evidentiary hearing on cause, NQ 82, granted in part and mostly
denied. The embedded motion for a merits hearing is denied. The Court will
hold an evidentiary hearing on Kemp's allegations of mental illness, organic
brain damage, and childhood trauma. Based on the evidence received, the
Court will decide whether Kemp's trial lawyers' failure to investigate and
press these points rendered their work constitutionally ineffective. That
decision will, under Trevino, determine whether Kemp may present these
arguments on the merits notwithstanding his failure to develop them in state
court.

uThis hearing will necessarily address the underlying merits of

[Kemp's mental illness, brain damage, and childhood trauma] because, unless
postconviction counsel's failure to raise a claim was prejudicial, the claim
remains procedurally barred despite Trevino." Sasser v. Hobbs, 2014 WL
764171 (8th Cir. 26 Feb. 2014).

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So Ordered.
D.P. Marshall JI"
United States District Judge

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APPENDIX A
I.

Kemp was denied the effective assistance of counsel at the guilt
phase
A.

Failure to adequately investigate and present Kemp's
affirmative defense of not guilty by reason of mental disease
and defect

B.

Failure to ensure the appointment of a qualified and effective
mental health expert

C.

Failure to impeach Bill Stuckey

D.

Failure to discover and present evidence supporting Kemp's
claims of self-defense, imperfect self-defense, and extreme
emotional disturbance

E.

Failure to investigate and challenge the competency to testify
of the prosecution's key witness, Becky Mahoney

F.

Failure to impeach the testimony of Becky Mahoney

G.

Failure to investigate and present Becky Mahoney's criminal
record

H.

Failure to secure an imperfect self-defense instruction

I.

Failure to object to or rebut speculative testimony and
misleading argument

J.

Failure to protect from prosecutorial misconduct

K.

Failure to object to highly prejudicial evidence that had
virtually no legitimate probative value

L.

Failure to ensure a fair and impartial jury

II.

Kemp was denied the effective assistance of a competent mental
health expert

III.

The prosecution's key witness, Becky Mahoney, was not competent
to testify

IV.

Kemp was denied a fair trial due to the misconduct of the
prosecutors during the guilt phase
A.

Improper argument at closing by the prosecuting attorney

B.

Failure to disclose material exculpatory information

C.

Gunshot residue tests of decedents

D.

Mental incompetence of Becky Mahoney

E.

Knowing presentation of false testimony

V.

Kemp is actually innocent of capital murder

VI.

Kemp's constitutional rights were violated by the erroneous
admission of highly prejudicial evidence that had virtually no
probative value

VII.

The trial court's failure to excuse for cause jurors who were
unqualified to serve denied Kemp his right to a fair and impartial
jury in violation of his constitutional rights

VIII.

Kemp's death sentences are supported solely by unconstitutionally
vague, overbroad, and unworkable aggravating circumstances that
lack sufficient evidentiary support

IX.

Kemp was denied a fair trial due to the misconduct of the
prosecutors during his resentencing
A.

Improper argument at closing by the prosecuting attorney

B.

Failure to disclose material exculpatory information

C.

Gunshot residue tests of decedents

D.

Mental incompetence of Becky Mahoney

E.

Knowing presentation of false testimony

X.

Kemp's 1997 death sentences are based on inadmissible prediction
of his future dangerousness and improper arguments introduced at
resentencing in violation of his constitutional rights

XI.

Trial counsel rendered constitutionally ineffective assistance at the
penalty phase of Kemp's 1994 trial
A.
B.

Failure to introduce Kemp's exculpatory statement to police

C.

Presentation of highly prejudicial, non-mitigating testimony

D.

Unreasonable failure to provide for
evaluation based on a thorough history

E.

Failure to investigate and present evidence in mitigation

F.

XII.

Withdrawing objection to victim impact testimony

Failure to protect Kemp's rights during the trial and preserve
errors for appeal

an

appropriate

Trial counsel rendered constitutionally ineffective assistance at
Kemp's resentencing proceeding
A.

Failure to investigate, develop, and present mitigating
evidence

B.

Presentation of highly prejudicial, non-mitigating testimony

C.

Unreasonable failure to provide for
evaluation based on a thorough history

an

appropriate

D.

Failure to object to inadmissible victim impact testimony

E.

Failure to impeach Bill Stuckey

F.

Failure to investigate and challenge the competency to testify
of the prosecution's key witness, Becky Mahoney

G.

Failure to protect Kemp's rights during the resentencing
hearing and to preserve errors for appeal and postconviction
proceedings

XIII.

Arkansas's capital murder and death penalty statutes violate the
U.S. Constitution

XIV.

Kemp was denied the effective assistance of counsel as well as
conflict-free counsel in state direct appeal proceedings

XV.

Kemp was deprived of his right to effective assistance of counsel
during his first state postconviction proceeding

XVI.

The Court should conduct a cumulative assessment of whether
constitutional errors occurred and whether such errors were
prejudicial

XVII.

Kemp was denied a fair trial by misconduct of the prosecutors in his
initial sentencing proceeding