Lee v. Payne

JAMIE LEE ADC #111178, Petitioner, v. DEXTER PAYNE, Director, Arkansas Division of Correction, Respondent.

No. 4:20-cv-01132-JJV

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

February 2, 2021

MEMORANDUM AND ORDER

I. INTRODUCTION

Petitioner Jamie Lee, an inmate at the Varner Supermax Unit of the Arkansas Department of Correction, brings this 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus. (Doc. No. 1.) Mr. Lee was convicted by a jury in Miller County, Arkansas, of capital murder and first-degree battery. (Doc. No. 17, Exhibit E at 1) He was sentenced to a term of life imprisonment without parole plus an additional eighty years to run consecutively. (Id.) The Arkansas Supreme Court summarized the basic facts of the case as follows:

The events leading up to the criminal charges and convictions all occurred at the Ace of Clubs nightclub in Texarkana in the early morning hours of October 6, 1996. According to witnesses for the State, at about 3:00 a.m. that morning, the rap song "Bow Down" was playing in the nightclub for a crowd of patrons who were young men and women. The rap song deals with two rival gangs-one on the west side and one on the east side. The song depicts the west side gang as having more power. Some of the male patrons at the nightclub were members of rival gangs in Texarkana, Arkansas and Texarkana, Texas. Jamie Lee was a member of a Texarkana, Texas gang.

During the playing of "Bow Down," State witnesses testified that Lee stood on a chair and began acting out the rap song, while making gestures that some considered gang signs. His actions were taken by Texarkana, Arkansas gang members as being a taunt and a challenge, because he identified himself with a west side gang. Fighting broke out, and at some point Lee was handed a gun. According to several state witnesses, the gun was given to him by Demetric Williams, and Lee opened fire. Danyon Green was shot and killed, while Kinthun Arnold, Johnny Hardy, Charvez Williams, and Trolaurice Walker were wounded. Lee then ran out of the nightclub. According to one State witness, on his way out, Lee stopped and "clicked" his gun at the head of Fred Bradley, who was under a table.

Lee v. State, 340 Ark. 504, 508 (2000).

On March 3, 2000, the Arkansas Supreme Court affirmed Mr. Lee's convictions and sentences. (Id.). On March 21, 2000, the Arkansas Supreme Court issued the direct-appeal mandate. (Doc. No. 17, Exhibit C at 12.) On May 20, 2000, the 60-day deadline for filing a petition for postconviction relief under Ark. R. Crim. P. 37 passed. See Ark. R. Crim. P. 37.2(c)(ii)(1999). On June 19, 2000, the 90-day deadline for filing a petition for a writ of certiorari in the United States Supreme Court passed. See Sup. Ct. R. 13.1. On July 11, 2011 Mr. Lee filed a petition for postconviction relief under Ark. R. Crim. P. 37 in the circuit court. (Doc. No. 17, Exhibit E at 1-7.) On July 26, 2011, the circuit court found Mr. Lee's Rule 37 petition untimely and dismissed it for lack of jurisdiction. (Id. at 8-9). On August 8, 2011, Mr. Lee filed a petition in the Arkansas Supreme Court seeking to (1) reinvest jurisdiction in the circuit court to file a petition for writ of error coram nobis, (2) leave to file a belated Rule 37 petition, and (3) a recall of the direct-appeal mandate. (Doc. No. 17, Exhibit F at 1-141.) On August 15, 2011, the Arkansas Supreme Court denied Mr. Lee's petition. (Id. at 142-146.) On April 1, 2013, Mr. Lee filed another Rule 37.1 petition in the circuit court. (Doc. No. 17, Exhibit E at 11-62.) On April 29, 2013, the circuit court found Mr. Lee's second Rule 37 petition untimely and dismissed it for lack of jurisdiction. (Id. at 64-66.) On April 4, 2017, Mr. Lee filed a petition for executive clemency, seeking a pardon and restoration of his right to possess firearms. (Doc. No. 17, Exhibit G at 29.)

In the Petition for Writ of Habeas Corpus now before the Court, Mr. Lee raises several claims for relief. (Doc. No. 1.) He alleges (1) the State violated Napue v. Illinois, 360 U.S. 264 (1959), by knowingly allowing false testimony by its witnesses to obtain a guilty verdict againstMr. Lee; (2) new evidence, in the form of an affidavit, establishes that witness Carlton Layton committed perjury; (3) Mr. Lee's trial violated the Duren v. Missouri, 439 U.S. 357 (1979) fair cross section requirement; (4) the State violated Chessman v. Teets, 354 U.S. 156 (1957) due to alleged errors and omissions in the trial transcript; (5) violation of due process due to the state trial court's failure to enforce the sequestration-of-witnesses rule under Ark. R. Evid. 615; (6) the state trial court violated due process by admitting prejudicial testimony of Mr. Lee's alleged past acts and crimes; (7) sufficiency of the evidence as to Mr. Lee's capital murder conviction; (8) ineffective assistance of counsel; (9) actual innocence; (10) the State violated Brady v. Maryland, 373 U.S. 83 (1963); (11) the state trial court lacked jurisdiction to try Mr. Lee. (Doc. No. 1, at 8-29.) Respondent contends Claims 3-8, 10, and 11 are time-barred by 19 years and Claims 1, 2, and 9 are time-barred by at least two years; Mr. Lee's petition does not satisfy the Perkins/Schlup actual innocence standard; and Mr. Lee's claims are all procedurally defaulted; (Doc. No. 17, at 9, 19, 27.) After careful consideration of the Petition, Response, and Reply, I find the Petition must be dismissed with prejudice.

II. ANALYSIS

A. Time Bar

Mr. Lee's Petition is untimely based upon the one-year period of limitation imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Title 28 U.S.C. § 2244(d)(1) and (2) impose a one-year period of limitation on habeas corpus petitions:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(1)-(2).

1. Claims 3-8, 10, and 11: Statutory Clock Began on June 19, 2000

a. Claims 3-8 and 11

Mr. Lee's Claims 3-8 and 11 are governed by subsection (A) of 28 U.S.C. § 2244(d)(1). Since Mr. Lee did not seek certiorari review of his direct appeal in the United States Supreme Court, the statutory clock started 90 days after the mandate on direct appeal was issued - June 19, 2000. See Sup. Ct. R. 13.1 (setting 90-day filing deadline for filing a petition for a writ of certiorari from judgment of a state high court.) Therefore, Mr. Lee's Claims 3-8 and 11 are well beyond the one-year period of limitation imposed by AEDPA and are not cognizable in federal court.

b. Claim 10

In Claim 10 Mr. Lee alleges the State violated Brady v. Maryland, 373 U.S 83 (1963) by their failure to disclose a supplemental report generated by Detective Hudson. (Doc. No. 12, at 27.) The report is part of the Texarkana police department's case file on the Ace of Clubs shooting. As such, once there was no longer an "open and ongoing investigation" into Mr. Lee's case, the file would have been subject to disclosure under the Arkansas Freedom of Information Act. SeeDep't of Ark. St. Police v. Keech Law Firm, P.A., 2017 Ark. 143, 516 S.W.3d 265 (2017). The Keech Law Firm case held that the FOIA contains a disclosure exemption for "undisclosed investigations by law enforcement agencies of suspected criminal activity" and this applies only to "ongoing investigations." Id. at 267 (quoting McCambridge v. City of Little Rock, 298 Ark. 219, 233 (1989)). Upon the conviction of Mr. Lee by the state trial court, there was no longer an ongoing investigation into the shooting at the Ace of Clubs. Therefore, Mr. Lee's Claim 10, has the same start of the statutory clock as Claims 3-8 and 11; June 19, 2000. Thus, Mr. Lee's Claim 10 is beyond the one-year period of limitation imposed by AEDPA.

2. Claims 1, , and 9: Statutory Clock Began on February 26, 2017

Mr. Lee's Claims 1, 2, and 9 allege accordingly that State's witnesses committed perjury and Mr. Lee is actually innocent. These claims are supported by the affidavits in the Addendum (Doc. No. 8.) The statute of limitations began for these claims on the earliest date that Mr. Lee could have obtained the facts underlying the claims in the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(D). The statute "does not require the maximum feasible diligence, only due, or reasonable, diligence." Anjulo-Lopez v. United States, 541 F.3d 814, 818 (8th Cir. 2008) (internal citations omitted). Further, the statute runs from the time a petitioner learns of the factual predicate - not from evidence found later to support it. See Rues v. Denney, 643 F.3d 618, 622 (8th Cir. 2011).

a. Marlon Burks's Affidavit

The factual predicate for the above claims rests on the affidavits provided in the Addendum (Doc. No. 8.) Marlon Burks signed an affidavit less than a month after Mr. Lee's conviction stating that he never saw Mr. Lee with a gun. (Doc. No. 8, at 7.) This affidavit is in line with the general...