United States District Court, E.D. Arkansas, Pine Bluff Division
STANLEY J. CARTER ADC #111939 PETITIONER
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT
before the Court is a 28 U.S.C. § 2254 Petition for
Writ of Habeas Corpus filed by Stanley Carter
(“Carter”), an inmate in the Arkansas Department
of Correction (“ADC”). Doc. 2. Before
addressing Carter's habeas claims, the Court will review
the procedural history of the case in state court.
24, 2013, a Crittenden County jury convicted Carter on three
separate counts of rape. Trial Transcript, Doc. 13-6 at
82. The victims of those rapes were three children:
“As.L. (age nine); An.L. (age eight); and S.H. (age
six).” On September 16, 2013, Carter received a life
sentence for raping As.L. and two 50- year sentences for
raping An.L. and S.H. The Sentencing Order specified that the
sentences were imposed consecutively. Doc. 13-2 at 83-85.
direct appeal, Carter's only argument was that the trial
court erred in denying his motion to dismiss based on a
violation of Rule 28.1 of the Arkansas Rules of Criminal
Procedure (“the Arkansas speedy trial rule”).
Carter v. State, 2016 Ark. 152, at 4-5, 484 S.W.3d
673, 675-676 (Carter I). On April 7, 2016, the
Arkansas Supreme Court concluded that the Arkansas speedy
trial rule was not violated and affirmed Carter's
April 14, 2016, Carter received a letter from his appeal
counsel, Lee Short,  enclosing a copy of the Court's
decision in Carter I. Doc. 8 at 28. In his
letter to Carter, Mr. Short stated the following:
. . . I do not believe [the Arkansas Supreme Court is]
correct factually or legally; therefore, I will file a
petition for rehearing. The State will respond. The
Court will likely issue a decision on that petition in
approximately two months. I will notify you as soon as a
decision is reached.
If we are unsuccessful in this appeal, then you will have 60
days to file a petition alleging ineffective assistance of
counsel with the Crittenden County Circuit Court. The
petition must conform to Arkansas Rule of Criminal Procedure
37. You should list anything you believe your trial counsel
did incorrectly or failed to do that could have produced a
Id. (emphasis added).
to Carter, this letter was the last time he heard from Mr.
Short. Doc. 8 at 2-3. Two months after receiving Mr.
Short's letter, Carter wrote the Office of the Criminal
Justice Coordinator for the Arkansas Supreme Court
“concerning the overall status of his direct
appeal.” Doc. 8 at 2-3. In a letter, dated
July 7, 2016, the Justice Coordinator for the Court advised
There was no petition for rehearing filed[.] The judgment was
affirmed on April 7, 2016. The final mandate was issued on
April 26, 2016. The case is considered closed in the Arkansas
See Letter from Criminal Justice Coordinator to
Carter, Doc. 8 at 30.
law required Carter to file a Rule 37 petition within sixty
days of the date the Arkansas Supreme Court issued its
mandate affirming his convictions on direct appeal. Ark. R.
Crim. P. 37.2(c)(ii). Because day sixty fell on Saturday,
June 25, 2016, Carter was required to file a Rule 37 Petition
on or before Monday, June 27, 2016. Ark. R. Crim. P. 1.4. It
is undisputed that Carter never filed a Rule 37
Petition. As a result, none of the ineffective
assistance of counsel claims he now seeks to assert in this
action were ever raised and exhausted in a Rule 37
March 20, 2017, Carter initiated this § 2254 habeas
action and asserted the following claims:
Claim 1: His trial counsel, Mr. Hair, provided ineffective
assistance of counsel by failing to adequately interview,
subpoena, and call defense witnesses. Doc. 8 at 17.
Claim 2: Mr. Hair provided ineffective assistance of counsel
by failing to request a continuance or otherwise object to
the Amended Criminal Information filed on the day before his
trial began. Doc. 8 at 17-18.
Claim 3: Mr. Hair provided ineffective assistance of counsel
by failing to timely inform Carter of allegedly
“exonerating DNA evidence” and failing to seek
independent experts to review the DNA evidence. Doc. 8 at
Claim 4: Mr. Hair provided ineffective assistance of counsel
on direct appeal, by failing to argue the evidence was
insufficient to support his rape convictions. Doc. 8 at
Claim 5: Carter's convictions “should be dismissed
. . . because the [t]rial [c]ourt did not follow the strict
commands of Arkansas Rule of Criminal Procedure
28.3(b)(1).” Doc. 2 at 2; Doc. 8 at
Claim 6: Carter's convictions violated his Sixth
Amendment right to a speedy trial, as applied to his state
court trial under the Fourteenth Amendment's Due Process
Clause. Doc. 2 at 4; Doc. 16 at 1-5.
argues that Carter procedurally defaulted Claims 1 through 4
and Claim 6, and all five of those claims also are
without merit. As to Claim 5, Respondent argues it raises an
error of state law that is not cognizable under
§ 2254. Doc. 13.
argues that: (1) his habeas claims have merit; and (2) Mr.
Short's April 14, 2016 letter lulled him into believing
Mr. Short had filed the Petition for Rehearing, and, under
the “cause and prejudice” or “actual
innocence” exceptions, the Court should excuse his
procedural default and reach the merits of his
reasons explained below, the Court concludes that all of
Carter's habeas clams must be dismissed, with prejudice.
Underlying Evidence Supporting Carter's Rape
2012, nine-year-old As.L., eight-year-old An.L., and
six-year-old S.H., lived with their grandmother, Samantha
Smith, in a residence located at 724 South 10th Street, West
Memphis, Arkansas. Carter also resided at that address.
Doc. 8 at 20.
morning of May 24, 2012, the last day of school, a parent of
another child told the principal of Wonder Elementary School
that As.L. and An.L. said they were being sexually abused.
Doc. 13-4 at 20-23. The principal reported the
alleged abuse to Dionne Harris (“Ms. Harris”), a
counselor at Wonder Elementary School, who immediately
interviewed As.L. and An.L. Id. at
25. Ms. Harris then called the child-abuse
hotline and reported the sexual abuse. Id. at
p.m. on May 24, 2012, Detective Michelle Sammis and Detective
Yvonne Peeler, with the West Memphis Police Department, went
to 724 South 10thStreet to investigate the
allegations of sexual abuse. Trial Testimony of Detective
Sammis and Detective Peeler, Id. at 35-36, 136. When
they arrived, As.L., An.L., and S.H., were sitting on the
front porch. Id. at 36. The detectives
introduced themselves and began talking to the girls.
Id. They conversed with the detectives and did not
seem afraid or intimidated. Id. at 137. After a few
minutes, Carter came outside. All three girls immediately
stopped talking. Id. at 36 and 137.
Sammis told Carter they need to speak with him, and he agreed
to ride with the detectives to the police station for an
interview. Doc. 13-4 at 36, 38. At the station,
Carter signed a consent form agreeing to provide saliva
samples for DNA testing. However, he exercised his right to a
lawyer and declined to be interviewed. Id. at 38-40.
Detective Sammis took swabs of Carter's right and left
cheek for DNA testing. Id. at 41-42.
the same afternoon, Detective Peeler transported As.L.,
An.L., and S.H. to the Rape Crisis Center in Memphis,
Tennessee. Id. at 139. There, Dr. Amanda Taylor took
each child's medical history, including a narrative of
the alleged abuse, and conducted physical examinations of
each child. Dr. Taylor's Trial Testimony, Id. at
As.L.'s interview, she told Dr. Taylor:
. . . Stan grabbed me by my leg, and pulled me in a room. He
put lotion on my middle part. He tell me if I screamed he was
going to abuse me. He put his middle part in my butt, and I
ran to the door, and he locked it. He made me put my mouth on
his middle part. White stuff came out, and I tried to go away
but he held my head and made me swallow the stuff.
Id. at 126.
As.L.'s physical examination, Dr. Taylor noted, “in
[As.L.'s] genital area, she had a light pink thickened
area like basically scar tissue at 11 to 12
o'clock[.]” Id. at 127. Dr. Taylor could
not say what caused the injury but found the injury to be
consistent with penetration by “something.”
Id. at 128. Because Dr. Taylor could not determine
how recently As.L. had sexual contact with Carter, she did
not collect a rape kit. Id. at 126.
Taylor then interviewed S.H., who told her:
Somebody called the police because Stan put lotion in this .
. . pointing to her vaginal area . . . and put his middle
part there. Clarified middle part as his penis. He asked did
it hurt, and I said yes, and he kept doing it. He made me
suck his middle part. White lotion came out of the hole. He
told me to stop, and he went to the restroom, and used a
towel. He does it to my grandma, and my cousins, I've
seen him. He does it when my sisters are at school, and my
grandma is at work. I've seen him freak [As.L.] and
[An.L.], and clarified freak as in the butt.
Id. at 129.
her physical examination of S.H., Dr. Taylor did not note any
injuries. Id. at 133. However, Dr. Taylor collected
a rape kit from S.H., because she had been at the home alone
with Carter earlier that day while As.L. and An.L. were at
school. Id. at 129.
Taylor then interviewed An.L., who told her:
Stan put lotion on him and me. He put his private part in my
butt. It hurt when he did it . . . it happened more than
once, and it was always in the butt.
Id. at 133-134.
her physical examination of An.L., Dr. Taylor did not note
any injuries. Id. Dr. Taylor did not collect a rape
kit from An.L. because she could not determine her last
sexual contact with Carter.
trial, As.L. testified that, more than once while she lived
with her grandmother and Carter in West Memphis, Carter
touched her chest, “middle part, ” and
“booty” with his hand and his “middle
part”. Doc. 13-4 at 99-100. She said
Carter played a movie of people “freaking” and
told her to watch it. Id. at 110-111.She further
testified that, more than once, Carter put his “middle
part” in her mouth and “white stuff” came
out into her mouth:
PROSECUTOR: Did he touch you anywhere else with his middle
AS.L.: My mouth.
PROSECUTOR: What did he do with his middle part?
AS.L.: He put it in my mouth.
PROSECUTOR: Did that happen once, or more than once?
AS.L.: More than once. . . .
PROSECUTOR: Where were you when that happened?
AS.L.: In the dining room.
PROSECUTOR: At your house in West Memphis?
AS.L.: Yes, sir.
PROSECUTOR: Was anybody else there?
AS.L.: No, sir.
PROSECUTOR: You and Stan were by yourself?
AS.L.: Yes, sir.
PROSECUTOR: Did anything come out of his middle part?
AS.L.: Yes, sir.
PROSECUTOR: What came out?
AS.L.: White stuff.
PROSECUTOR: Where did it go?
AS.L.: In my mouth.
Id. at 101-102.
As.L. testified that she saw Carter touch An.L.'s mouth
and S.H.'s mouth with his “middle part” more
PROSECUTOR: Have you seen Stan touch somebody else with his
AS.L.: (Nods head)
PROSECUTOR: Who did you see him touch?
AS.L.: My sister, and my cousin.
PROSECUTOR: What's your sister's name?
PROSECUTOR: And what did you see him do to her?
AS.L.: [An.L.] - I really don't remember.
PROSECUTOR: Did you see him with his middle touch part [sic]
PROSECUTOR: Where did he touch her?
AS.L.: In her mouth.
PROSECUTOR: Did you see that once, or more than once?
AS.L.: More than once.
PROSECUTOR: Did you see him touch ...