Lee v. Kelley

TERRY ANTONIO LEE ADC #120960 PETITIONER v. WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

Case No. 5:18-cv-00045-KGB-BD

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

August 6, 2019

ORDER

Before the Court is a Recommended Disposition submitted by United States Magistrate Judge Beth Deere (Dkt. No. 24). Petitioner Terry Antonio Lee filed objections to the Recommended Disposition (Dkt. No. 25). After filing his objections, Mr. Lee filed several other documents with the Court (Dkt. Nos. 26, 27, 28, 29, 31, 32). Although only his objections were timely filed, the Court has considered the entire record in its de novo review. After careful review of the Recommended Disposition, a de novo review of the record, and a review of the objections, the Court adopts the Recommended Disposition as its findings in all respects (Dkt. No. 24). The Court also denies Mr. Lee's motions for evidentiary hearing (Dkt. Nos. 22, 29). To the extent Mr. Lee's recent filings includes grievances and complaints about the conditions of his current confinement (Dkt. No. 31, 32), the Court will not permit an amendment of Mr. Lee's petition in this habeas corpus action to raise such a claim; Mr. Lee must pursue such claims in a separate action.

I. Recommended Disposition

Mr. Lee raises 16 claims in his petition for writ of habeas corpus (Dkt. No. 2). In the Recommended Disposition, Judge Deere determined that Mr. Lee's claims 9, 10, 11, 12, 13, and 15 were procedurally defaulted and that Mr. Lee has not and cannot establish cause and prejudice or a miscarriage of justice sufficient to overcome such default (Id., at 8-13). Next, Judge Deere addressed Mr. Lee's claims 1, 2, 3, 4, 5, 6, 7, 8, 14, and 16, which were adjudicated by a state court on the merits (Id., at 15-36). Judge Deere determined that, with respect to claims 1, 2, 3, 4, 5, and 6, which are Mr. Lee's ineffective assistance of counsel claims, and with respect to claims 7, 8, 14, and 16, the Arkansas Supreme Court's conclusions were not "contrary to, or [did not] involve[] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or were not "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" (Id., 15, 16-36 (citing 28 U.S.C. § 2254(d))). Judge Deere recommends that Mr. Lee's petition for writ of habeas corpus be denied and dismissed with prejudice (Dkt. No. 24, at 37). Judge Deere also recommends that Mr. Lee's first motion for evidentiary hearing be denied as moot and that a certificate of appealability be denied (Id.). Mr. Lee filed objections to Judge Deere's recommendations (Dkt. No. 25). Based on this Court's review, at no time does Mr. Lee assert that Judge Deere failed to identify or address a claim made in support of his petition. The Court addresses in turn Mr. Lee's objections with respect to each claim.

II. Objections

a. Claim 1: Ineffective Assistance Of Counsel ("IAC")—Failure To Investigate

Mr. Lee argues that his trial counsel was ineffective for failing to investigate Detective Gibbons, witnesses, an alleged false report, and the pictures of the street and the house introduced as evidence at trial (Dkt. No. 2, at 10-24). In addressing this claim, the Arkansas Supreme Court explained that a petitioner asserting that his counsel failed to investigate "must show that further investigation would have been fruitful and that the specific materials the petitioner identifies that counsel could have uncovered would have been sufficiently significant to raise a reasonableprobability of a different outcome at trial." Lee v. State, 532 S.W.3d 43, 55-56 (Ark. 2017). The Arkansas Supreme Court noted that Mr. Lee's trial counsel had questioned the detective about inconsistencies in certain testimony and concluded that Mr. Lee had failed to show that there were materials that his trial counsel could have found upon investigation that would have raised a reasonable probability of a different outcome at trial. Id.

Judge Deere determined that Mr. Lee did not establish that the Arkansas Supreme Court unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), when it addressed and rejected Mr. Lee's failure to investigate claim (Dkt. No. 24, at 17-18). Mr. Lee's objections reiterate the arguments in his petition for writ of habeas corpus (Dkt. No. 25, at 87-110).

Based on the Court's review of the record, as well as Mr. Lee's petition and objections, the Court determines that Mr. Lee has not established that the Arkansas Supreme Court's conclusions with respect to his failure to investigate claim are contrary to, or involve an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, nor that they are based on an unreasonable determination of the facts in the light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d).

b. Claim 2: IAC—Failure To Object To Evidence

In Mr. Lee's petition, he argued that his trial counsel was ineffective for failing to object to evidence including a light pole, bullet shells, a photograph of the bullet shells, and a photograph of the Brown family's house introduced by the prosecutor (Dkt. No. 2, at 24-25). Mr. Lee argued that his trial counsel should have objected to the evidence because: (1) the light pole showed the jury that it was possible for the witnesses to see him by the victims' house; (2) there were no crime scene photographs to prove where the bullets came from; and (3) the photographs were not takencontemporaneously with the incident and failed to show accurately the bullet hole or depict the scene as it appeared on the night of the incident (Id., at 24-26).

The Arkansas Supreme Court concluded that the shell casing and photographic evidence were admissible and that Mr. Lee's issues with the evidence go to the weight of the evidence rather than presenting a question of law for the Court. Lee, 532 S.W.3d at 58. According to the Arkansas Supreme Court, there was testimony about the collection of the shells following the shooting and the photographs accurately depicted the scene at the time of the shooting although they were not contemporaneous. Id. at 57. The Arkansas Supreme Court determined that the evidence was relevant. Id. at 57-58.

With respect to Mr. Lee's claim that his trial counsel failed to object to evidence, Judge Deere concluded that the Arkansas Supreme Court's conclusion that the claim did not constitute ineffective assistance of counsel was not an unreasonable application of federal law or determination of the facts (Dkt. No. 24, at 20). Mr. Lee's objections reiterate the arguments he sets forth in his petition (Dkt. No. 25, at 110-113).

After careful review of the record, as well as Mr. Lee's arguments and objections, the Court cannot find that the Arkansas Supreme Court's conclusions with respect to this claim are contrary to, or involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor that they are based on an unreasonable determination of the facts in the light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d).

c. Claim 3: IAC—Failure To Consult

Mr. Lee contends in his petition that his trial counsel was ineffective for failing to consult with him with respect to trial strategy (Dkt. No. 2, at 28-29). Specifically, Mr. Lee complains thathis trial counsel only discussed the case with him one time when his counsel received his money and that his counsel failed to come up with an adequate defense (Id., at 28).

The Arkansas Supreme Court determined that Mr. Lee had failed to establish that the strategy his counsel adopted, which was to discredit the eyewitness identifications of Mr. Lee, point out inconsistencies, and suggest that his companion may have been the shooter, was not reasonable. Lee, 532 S.W.3d at 56. Counsel is allowed great leeway in making strategic and tactical decisions. Williams v. State, 504 S.W.3d 603 (Ark. 2016). Where a decision by counsel was a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then counsel's decision is not a basis for relief under Arkansas Rule of Criminal Procedure 37.1. Adams v. State, 427 S.W.3d 63 (Ark. 2013).

Judge Deere concluded that the Arkansas Supreme Court did not unreasonably apply federal law in rejecting Mr. Lee's failure to consult claim and that the Arkansas Supreme Court did not unreasonably determine the facts (Dkt. No. 24, at 21). In his objections to Judge Deere's Recommended Disposition, Mr. Lee repeats the arguments he made in his petition (Dkt. No. 25, at 113-115).

After careful review of the record, as well as Mr. Lee's arguments and objections, the Court cannot find that the Arkansas Supreme Court's conclusions with respect to this claim are contrary to, or involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court, nor that they are based on an unreasonable determination of the facts in the light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d).

d. Claim 4: IAC—Failure To Object To Certain Jurors

Mr. Lee argues in his petition that his trial counsel was ineffective for failure to object to certain jurors (Dkt. No. 2, at 30-31). Mr. Lee argues that his counsel "allowed [the] prosecutor toselect mostly women jurors" and kept a juror who "stated on record she was going to [believe] everything prosecutor, police[,] and witness say" (Id., at 30). Mr. Lee also argues that his counsel erred by keeping a juror whose name was not on the juror list and a juror who stated that she knew Erica Brown through work (Id.).

The Arkansas Supreme Court first addressed Mr. Lee's claim as part of Mr. Lee's due process claim. Lee, 532 S.W.3d at 53. The Arkansas Supreme Court found that, with respect to the specific instances of...