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Carter v. Kelly

United States District Court, E.D. Arkansas, Pine Bluff Division

March 26, 2019

STANLEY J. CARTER ADC #111939 PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          MEMORANDUM OPINION

         Pending before the Court[1] 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.

         I. Background

         On July 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.[2] Doc. 13-2 at 83-85.

         In his 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 conviction.[3]

         On April 14, 2016, Carter received a letter from his appeal counsel, Lee Short, [4] 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 different result.

Id. (emphasis added).

         According 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 Carter that:

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 Supreme Court.

See Letter from Criminal Justice Coordinator to Carter, Doc. 8 at 30.

         Arkansas 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.[5] 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 proceeding.

         II. Discussion

         On 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 16-17.
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 18-19.[6]
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 8-16.
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.

         Respondent 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.

         Carter 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 claims.[7]

         For the reasons explained below, the Court concludes that all of Carter's habeas clams must be dismissed, with prejudice.

         A. Underlying Evidence Supporting Carter's Rape Convictions

         In 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.[8] Carter also resided at that address. Doc. 8 at 20.

         On the 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.[9] Ms. Harris then called the child-abuse hotline and reported the sexual abuse. Id. at 26-28.

         At 3:15 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.

         Detective 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.

         Later 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 119-135.[10]

         During 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.

         During 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.[11] 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.

         Dr. 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.

         During 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.[12]

         Dr. 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.

         During 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.

         At 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”.[13] 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.[14]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 part?
AS.L.: Yes.
PROSECUTOR: Where?
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.

         Finally, As.L. testified that she saw Carter touch An.L.'s mouth and S.H.'s mouth with his “middle part” more than once:

PROSECUTOR: Have you seen Stan touch somebody else with his middle part?
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?
AS.L.: [An.L.]
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] touch [An.L.]?
AS.L.: Yes.
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 ...

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