Pending before the Court are Plaintiff's Complaint [Doc. No. 2] and Plaintiff's Motion for Temporary Stay of Execution [Doc. No. 3]. Defendants have responded with Defendants' Response to Plaintiff's Complaint [Doc. No. 4] and Defendants' Response to Plaintiff's Motion for Temporary Stay of Execution [Doc. No. 6]. Also before the Court are Plaintiff's Reply to Defendants' Response [Doc. No. 5] and Defendants' Surreply to Reply to Response to Plaintiff's Complaint [Doc. No. 7].
Having reviewed the pleadings and considered arguments made by both parties at the telephone conference on November 23rd, 2005 and for reasons explained thoroughly herein, Plaintiff's Complaint [Doc. No. 2] is HEREBY DISMISSED and Plaintiff's Motion for Temporary Stay of Execution [Doc. No. 3] is DENIED.
Plaintiff's case has been litigated extensively since 1994. A detailed account of the facts may be found in Nance v. State, 323 Ark. 583 (1996), cert. denied 519 U.S. 847 (1996) (hereinafter Nance I). With regard to the "hair evidence" that Plaintiff seeks access to in this action, the litigation has also been lengthy. It is important to review the procedural history of Plaintiff's case to fully appreciate the claim before the Court today. The following is a time-line and brief summary of Plaintiff's litigation:
1. Hot Spring County Circuit Court: On March 31, 1994, Plaintiff was convicted of capital murder and sentenced to death. The hairs in question were part of the evidence collected and maintained by the Arkansas State Crime Laboratory as evidence in Plaintiff's capital murder trial. During the trial, Plaintiff consulted a DNA expert but did not seek to utilize a DNA expert with regard to the hairs. Plaintiff concedes that the hairs were examined in preparation for his trial using a procedure known as microscopic comparison but asserts that there is more advanced technology currently available. Plaintiff claims the new testing may or may not provide exculpatory evidence with regard to the attempted rape charge and potentially make him "innocent of the death penalty."
2. Arkansas Supreme Court: Plaintiff's capital murder conviction and death sentence were affirmed by the Arkansas Supreme Court. See Nance I, 323 Ark. 583 (1996).
3. Hot Spring County Circuit Court: Plaintiff sought post-conviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure. The Circuit Court denied relief on December 2, 1998.
4. Arkansas Supreme Court: The Arkansas Supreme Court affirmed the denial of post-conviction relief. Nance v. State, 339 Ark. 192 (1999)(hereinafter Nance II).
5. United States District Court for the Eastern District of Arkansas: Plaintiff filed a federal habeas corpus petition and an amended petition which this Court denied on January 22, 2003. During his habeas litigation, on March 1, 2001, Plaintiff filed an Ex Parte Motion for Funds for Expert Assistance in Hair and Hair Fiber Analysis, seeking the authorization of $2,500.00 for such services. In a sealed Ex Parte Order filed March 27, 2002, this Court denied Plaintiff's Motion for Funds and held the Motion in abeyance to allow Plaintiff's lawyer to contact an expert and provide the Court with further details. The Motion was denied without prejudice to renew once that information was obtained.
However, Plaintiff did not follow through and consult an expert or if he did so, the opinion of the expert was never presented to this Court. Plaintiff attacked the hair evidence in Claims II, III and XV of his habeas petition. [5:00-CV-00339, Doc. No. 12, page 6, 13,19-22, 32-33, 64, 72-73.] This Court rejected those claims in its January 22, 2003 Order. Specifically, this Court stated "the court had nothing before it to support [Nance's] allegation that false or misleading testimony was presented with regard to the pubic hairs found in the cab of [Nance's ] truck." [5:00-CV-00339, Doc. No. 42, page 49.]
6. Eighth Circuit Court of Appeals: The Eighth Circuit affirmed this Court's decision in Nance v. Norris, 392 F.3d 284 (2004).
7. United States Supreme Court: The United States Supreme Court denied Plaintiff's petition for certiorari on October 3, 2005.
8. Eighth Circuit Court of Appeals: Plaintiff filed another action with the Eighth Circuit Court of Appeals requesting that the Court remand the case to district court for consideration of a claim under Atkins v. Virginia, 536 U.S. 304 (2002). The Eighth Circuit denied the motion to remand on February 8, 2005.
9. Hot Spring County Circuit Court: Pursuant to Arkansas Code Annotated §16-112-201, Plaintiff next filed a claim with the Hot Spring County Circuit Court requesting access and testing of the hairs in question. Specifically, the statute allows for post-conviction DNA testing. A hearing was held on ...