Campbell v. Payne

1

FRANK PAUL CAMPBELL PETITIONER v. DEXTER PAYNE, Director, Arkansas Division of Correction RESPONDENT

No. 3:21-cv-03064-MEF

United States District Court, W.D. Arkansas, Harrison Division

August 23, 2022

MEMORANDUM OPINION AND ORDER

HON MARK E. FORD UNITED STATES MAGISTRATE JUDGE.

Before the Court is the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed on August 30, 2021, by Petitioner, Frank Paul Campbell (“Campbell”). (ECF No. 1). The Respondent, Dexter Payne, Director of the Arkansas Division of Correction, filed a Response to Petition for Writ of Habeas Corpus on September 28, 2021. (ECF No. 8). Campbell did not file a reply. In accordance with the provisions of 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, both parties consented to the exercise of jurisdiction by a United States Magistrate Judge, and the case was referred to the undersigned by Order of Reference entered on January 20, 2022. (ECF No. 9). The matter is ripe for decision.

I. BACKGROUND

A. Procedural History

Based on an Affidavit for Warrant (ECF No. 8-1, pp. 17-18), a Bench Warrant (Id., p. 19) was issued on June 9, 2014, for Campbell's arrest on a charge of Sexual Assault in the Second Degree, in violation of Ark. Code Ann. § 5-14-125, a Class B Felony. The charge stemmed from a report made by Campbell's wife, Amy Campbell, that Campbell “had been messing with her daughters,” fondling one minor daughter's buttocks through the blankets while she was sleeping, and that he had been writing her pornographic stories on the internet involving a girl and her stepfather. (Id., p. 17). Campbell was arrested on June 9, 2014, and his first judicial appearance was held on June 11, 2014, at which time the Carroll County Public Defender was appointed to represent Campbell, and he was bound over to the Circuit Court of Carroll County, Arkansas for further proceedings. (Id., pp. 19, 20). Campbell was released on a $5,000.00 bond. (Id., p. 21).

On June 30, 2014, a criminal Information was filed charging Campbell with two counts of Sexual Assault in the Second Degree, in violation of Ark. Code Ann. § 5-14-125, Class B Felonies. (ECF No. 8-1, p. 22). Specifically, the Information charged that on or between 2011 and June 5, 2014, Campbell, being in a position of trust or authority, engaged in sexual contact with his minor stepdaughters, N. B., and E. B. (Id.). Campbell appeared with appointed counsel for arraignment on July 7, 2014. He pleaded not guilty, and a jury trial was set the week of February 23, 2015. (Id., p. 25).

Attorney Chris Flanagin (“Flanagin”) entered his appearance as retained counsel for Campbell on September 12, 2014. (ECF No. 8-1, p. 31).

A pre-trial hearing was held on February 2, 2015. (ECF No. 8-1, p. 42). The jury trial setting on February 23, 2015, was vacated, and a pre-trial hearing was scheduled for March 16, 2015. Speedy trial time from February 2, 2015, to March 16, 2015, was charged to Campbell. (Id.). On March 16, 2015, the defense motion to continue the pre-trial status hearing was granted, and a pre-trial hearing was set for April 20, 2015. Speedy trial time from March 16, 2015, to April 20, 2015, was charged to Campbell. (Id., p. 43). An Agreed Order entered on April 20, 2015, granted Campbell's motion to continue the case for pre-trial hearing on May 18, 2015, with the time excluded for speedy trial purposes. (Id., p. 44). A Pre-Trial Order entered on May 18, 2015, set a pre-trial status hearing on August 17, 2015, and a jury trial was scheduled for August 24-25, 2015. (Id., p. 45).

On July 20, 2015, an Amended Information was filed against Campbell, charging him with two counts of Sexual Assault in the Second Degree, in violation of Ark. Code Ann. § 5-14-125, Class B Felonies; three counts of Sexual Indecency with a Child, in violation of Ark. Code Ann. § 5-14-110, Class D Felonies; and with being a Habitual Offender, in violation of Ark. Code Ann. § 5-4-401. (ECF No. 8-1, pp. 46-47). Campbell entered a plea of not guilty to the Amended Information on August 17, 2015, and the jury trial remained set to begin on August 24, 2015. (Id., p. 48).

B. Trial and Conviction

Evidence at trial showed that Campbell was married to Amy Campbell, who is the mother of the two victims, N. B., and E. B. (ECF No. 8-2, pp. 143-44). N. B., who was 18 years old at the time of trial in August 2015, testified that Campbell began touching her in ways that made her feel uncomfortable beginning the summer between her sixth grade and seventh grade years. (Id., pp. 193, 199). The first time she felt that way, during that summer, she believed he had somehow caused her swimsuit to “move” while they were in a swimming pool, which made her feel “creepy.” (Id., p. 199). On another occasion, N. B. was getting out of the shower when she heard Campbell's ankles “pop,” so she looked up and saw a camera phone in an opening between the bathroom wall and ceiling. (Id., p. 202). She was scared because Campbell had taken a picture of her while she was naked. (Id., pp. 202-03). At times, when N. B. would be sitting on the couch with her dog on her lap, Campbell would sit next to her, reach under the dog, and rub N. B.'s upper thigh. (Id., pp. 203-05). Other times, Campbell would “turn his hand out to touch [her] butt” with his palm when he would walk by her. (Id., p. 206).

After Campbell attempted to take the picture of N. B. getting out of the shower, N. B. told a friend about it. The two of them told the friend's mother. (ECF No. 8-2, pp. 207-08). The friend's mother then told Amy Campbell about it, and N. B. talked to her mom about it. (Id., p. 209). Amy did not seem to be upset. (Id., pp. 209-10). N. B. testified that sometime later, Campbell told her that he “would never mean to do that” to her and that he would “keep his distance” from her. (Id., pp. 210-11). The touching incidents continued, however, and Campbell began “grabbing” N. B.'s “boobs” and moving them as she would sit on the sofa with her dog. (Id., pp. 212-13, 215-16).

N. B.'s younger sister, E. B., who was 15 years old at the time of trial, testified that Campbell began touching her inappropriately when she was 13 years old. (ECF No. 8-3, pp. 1517). She testified that Campbell made her feel uncomfortable whenever he came into her bedroom, “messed” with her bra strap, and “pulled at” her under the sheets. Those incidents always occurred at night or in the early morning hours. Campbell once pulled on her bra strap when she was napping on the living room couch. Once, when she was sleeping on her stomach, he “groped” her butt by “feeling” and “squeezing” her buttocks. (Id., pp. 19-20). Another time, when E. B. was in the kitchen, Campbell walked past her, turned the palm of his hand out, and “grabbed” her butt. (Id., pp. 22-23). On another occasion, when E. B. was on the couch with her dog in her lap and a blanket over her legs, Campbell sat next to her, put his hand under the blanket, and moved his hand “a little too close to [her] crotch.” (Id., pp. 28-29). He pressed his fingers into her upper thigh as he moved his hand. E. B. got up and left. (Id., p. 29).

E. B. testified that she had an account on Wattpad. (ECF No. 8-3, p. 31). She described Wattpad as a free app in which persons can post stories that they have written and read stories posted by others. Users can also comment on stories that have been posted and send private messages to others who have accounts. (Id., pp. 30-31). E. B. explained that she received a multichapter story “about a stepdaughter who wanted to explore sexual activities and a stepfather who offered to explore them with her.” (Id., p. 70). After reading part of the story, E. B. blocked the person who sent it. (Id.). She noticed that the writer used commas rather than periods when typing an ellipsis, which was something she knew Campbell did from previous text messages he sent her. (Id., pp. 70-71). E. B. continued to receive messages from other accounts that she believed were from the same person who had sent her the story, and she blocked those accounts as well. (Id., p. 72).

E. B. testified that sometime later she received a request to read another story that was sent by the same person using a different account. (ECF No. 8-3, p. 72). E. B. decided that she wanted proof to confirm her suspicion that Campbell was the one who had sent her the two stories. (Id., p. 73). E. B. told N. B. about the stories, and N. B. took E. B. to the home of a friend to talk to the friend's mother about it. The friend's mother asked Amy Campbell to come over to the house. They told Amy about the story. (Id., pp. 75-76). Amy testified that she took a screenshot of the story on E. B.'s phone and sent it to her own phone. She then emailed the story to the friend's mother so that she could print it. Amy deleted the story from E. B.'s phone because she “didn't want her to have to view that.” (ECF No. 8-2, p. 161). Amy also emailed the story to Detective Daniel Crawford of the Berryville Police Department. (Id., p. 162).

Detective Crawford read the story aloud at trial. (ECF No. 8-3, pp 90-104; ECF No. 8-4, pp. 136-179). The story was about a teenage girl named “Susan” who had a secret desire to explore her sexuality without forming an emotional attachment. The story included sexually explicit passages. (ECF No. 8-3, p. 93). The story described that Susan, in considering who she could share her desires with, eliminated male friends and relatives. (ECF No. 8-3, pp. 94-95). Then after a lengthy, graphic description of Susan masturbating in the shower, the story stated that Susan went to bed, but was unable to sleep. (Id., pp. 95-98). Her stepfather entered her room during the night and became erect while looking at Susan's “hard” nipples. (Id.,...