United States District Court, E.D. Arkansas, Pine Bluff Division
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge James M. Moody, Jr. You may file written
objections to all or part of this Recommendation. If you do
so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days
of this Recommendation. By not objecting, you may waive the
right to appeal questions of fact.
September 22, 2016, a Jefferson County jury convicted Lorenzo
Kellon (“Kellon”) of capital murder and
aggravated robbery for killing a Pine Bluff convenience store
clerk and then stealing $550 from the cash register.
Kellon v. State, Jefferson County Cir. Ct. No.
35CR-15-448; Sentencing Order, Doc. 9-2 at 1. Kellon
was sentenced to life, without parole, for capital
murder; 40 years for aggravated robbery; and 15
years based on a statutory firearm enhancement. Id.
direct appeal to the Arkansas Supreme Court, Kellon argued
the trial court erred in: (1) refusing to suppress his
confession; (2) refusing to accept his proposed modifications
to the jury instructions; and (3) giving an erroneous and
prejudicial jury instruction on capital felony murder, with
the lesser-included offense of first-degree felony murder.
Appellant's Brief, Doc. 9-3. On February 15,
2018, the Court rejected Kellon's arguments and affirmed
his convictions. Kellon v. State, 2018 Ark. 46, at
1, 538 S.W.3d 206, 207 (2018).
did not file a Rule 37 Petition.
26, 2018, Kellon initiated this § 2254 habeas action.
Doc. 1. Liberally construing his habeas Petition, he
makes the following claims:
Claim 1 The trial court lacked both personal and subject
matter jurisdiction to try him because the criminal
information was inadequate. Id. at 5-29, 37-53.
Claim 2 His trial counsel provided constitutionally
ineffective assistance by failing to challenge the trial
court's jurisdiction, based on the inadequacies in the
criminal information. Id.
Claim 3 The evidence was constitutionally insufficient to
sustain his convictions for capital felony murder and
aggravated robbery. Id. at 31-33.
Claim 4 His trial counsel provided constitutionally
ineffective assistance by failing to properly challenge the
sufficiency of the evidence in moving for directed verdict.
Claim 5 The trial court erred in refusing to adopt his
proffered modifications to the model jury instructions and
giving an instruction on capital felony murder, with
first-degree murder as a lesser-included offense, in
violation of his due process rights. Kellon's Reply,
Doc. 12 at 5-6.
Claim 6 The trial court erred in admitting his involuntary
confession, in violation of his Fifth Amendment rights.
Id. at 1-7.
Respondent's Response, he argues that Kellon's habeas
Petition should be dismissed because: (1) he procedurally
defaulted Claims 1 through 4; and (2) Claims 5 and 6 were
reasonably adjudicated by the state courts. Doc. 9.
Kellon has filed a Reply which makes additional arguments in
support of his habeas Petition. Doc.
reasons explained below, the Court recommends that all of the
claims asserted in this § 2254 habeas Petition be denied
and the case be dismissed, with prejudice.
addressing Kellon's habeas claims, it is important to
understand the evidence supporting Kellon's capital
murder and aggravated robbery convictions.
before 8:30 p.m. on June 22, 2015, Kellon drove into the
parking lot of the Big Red convenience store on East Harding
Street in Pine Bluff, Arkansas. Surveillance Camera 1 at
19:20:44. He was driving a bronze-colored four-door
Cadillac sedan, which he parked by one of the gas pumps.
Id. Kellon's passenger, Sha'Quille Carter,
went inside the store, looked around, bought a drink, and
returned to the car. Id. at
19:23:19-19:24:42; Surveillance Camera 6 at
then exited the car, holding a pistol and wearing a silver
mask, with a black hood. Surveillance Camera 1 at
19:25:09. He walked from the car to the side of the
store where one of the store clerks, Hardip Singh, was
smoking a cigarette, and shot him three times. Id.
at 19:25:09-19:25:19. One bullet struck Singh in the
head, one grazed his cheek, and the other hit him in the
back. Trial Testimony of Dr. Charles Kokes from the
Arkansas State Crime Lab, Tr. Trans. Vol. 4 at
1071. Singh died where he fell.
other store clerk was stocking items in the back of the store
when he heard gun shots and ducked down behind an aisle. He
remained there throughout the robbery. Surveillance
Camera 7 at 19:25:22-19:26:07.
entered the store, opened the cash drawer, and stole
approximately $550. Surveillance Camera 6 at
19:25:21-19:25:53. He then walked back to the Cadillac
and drove away. Surveillance Camera 1 at
next day, a Pine Bluff police officer saw a bronze-colored
Cadillac parked outside a different convenience store in Pine
Bluff. Trial Testimony of Officer Jason
Howard, Tr. Trans. Vol. 4 at 1111. A male
exited the store and walked back to the car. Id. at
1112-1115. The officer followed the car to an abandoned
house, reported his position, and requested backup. Other
officers arrived, who took Kellon into custody and drove him
to the Pine Bluff Police Department.
being advised of his Miranda rights, two detectives
questioned Kellon. Trial Testimony of Detective Cassandra
McAfee, Tr. Trans. Vol. 5 at 1242-1245. Twenty
minutes into their questioning, Kellon confessed to killing
Singh and robbing the convenience store. Id. at
1274-1276; Kellon Statement 1.
Kellon Has Procedurally Defaulted Claims 1, 2, 3, and
habeas petitioner must first “fairly present” his
claims in state court before seeking § 2254
relief in federal court. Murphy v. King, 652 F.3d
845, 848-49 (8th Cir. 2011); 28 U.S.C. § 2254(b)(1)(A)
(“An application for a writ of habeas corpus . . .
shall not be granted unless it appears that the applicant has
exhausted the remedies available in the courts of the
State[.]”). A petitioner must present the substance of
his federal habeas claim not only in the state trial court,
but also in “one complete round of the State's
established appellate review process.” Murphy,
652 F.3d at 848-49; Grass v. Reitz, 643 F.3d 579,
584-85 (8th Cir. 2011).
exhausting all available state court remedies, a habeas
petitioner gives the State that convicted him an
“‘opportunity to pass upon and correct'
alleged violations of its prisoners' federal
rights.” Duncan v. Henry, 513 U.S. 364, 365
(1995) (per curiam). When a petitioner fails to fully exhaust
his claims in state court and the time for doing so has
expired, his claims are procedurally defaulted. Coleman
v. Thompson, 501 U.S. 722, 731-32 (1991).
Kellon did not raise the issue of the trial
court's alleged lack of jurisdiction based on
inadequacies in the criminal information, either at trial
or on direct appeal, he procedurally defaulted Claim 1.
See Beaulieu v. Minnesota, 583 F.3d 570, 574 (8th
Cir. 2009) (holding that petitioner procedurally defaulted
his jurisdictional claim by failing to raise it with
Minnesota state courts); Smith v. State, 2016 Ark.
201, 4, 491 S.W.3d 463, 466 (2016) (even if an information
were insufficient, the jurisdiction of the trial court would
not be implicated); Jones v. State, 2009 Ark. 308
(2009) (the insufficiency of an information must be
challenged prior to trial or any constitutional basis for
appellate review will be waived). Thus, Kellon is now
attempting to raise Claim 1 for the first time in
this federal habeas action.
Claim 3 is procedurally defaulted because, although
Kellon's trial attorney moved for directed verdict, based
on insufficiency of the evidence, he failed to raise that
argument on direct appeal. Kellon, 2018 Ark. 46, 538
S.W.3d 206. See Mills v. State, 2010 Ark. 390, at
*1, 2010 WL 4156339 (Ark.) (challenges to the sufficiency of
the evidence must be raised on direct appeal).
Claims 2 and 4 raise ineffective assistance of trial counsel
claims, which Kellon was required to raise with the trial
court, in a Rule 37 Petition, and then appeal to the Arkansas
Supreme Court. Armstrong v. Iowa, 418 F.3d 924,
925-26 (8th Cir. 2005). Because Kellon did not file
a Rule 37 Petition and the time for doing so has long since
passed,  he is also attempting to raise both of
those claims, for the first time, in this federal
habeas action. Accordingly, Kellon has also procedurally
defaulted Claims 2 and 4.
Kellon Has Failed to Establish “Cause” to Excuse
His Procedural Default of Claims 1, 2, 3, and 4
procedural default occurs, federal habeas review of the claim
is barred unless the prisoner can demonstrate: (1)
“cause” for the default and
“actual prejudice” resulting from the alleged
violation of federal law; or (2) a
“fundamental miscarriage of justice” will take
place if the Court fails to consider the claim.
Coleman, 501 U.S. at 750.
“cause” to excuse his procedural default of Claim
1, Kellon blames his attorney for failing to file a motion to
dismiss or otherwise challenging the jurisdiction of the
trial court based on the alleged inadequacies in the criminal
information. Doc. 1 at 16, 19. Similarly, Kellon
tries to excuse his procedural default of Claim 3 by blaming
his attorney for failing to make a proper motion for directed
verdict to preserve the argument that the evidence was not
sufficient to support his convictions for capital murder and
aggravated robbery. Id. at 31-33.
ineffective assistance of trial counsel may constitute
“cause” to excuse a procedural default, such a
claim must first be raised in state court. See
Edwards v. Carpenter, 529 U.S. 446, 450-53 (2000). Under
Arkansas law, ineffective assistance of trial counsel claims
must be raised in a timely Rule 37 Petition. Wooten v.
State, 2018 Ark. 198, at 3, 547 S.W.3d 683, 685 (2018).
After his direct appeal was affirmed by the Arkansas Supreme
Court, Kellon did not file a Rule 37 Petition.
Accordingly, his trial attorney's alleged ineffectiveness
cannot constitute “cause” to excuse his
procedural default of Claims 1 and 3, based on his own
failure to file a Rule 37 Petition. Edwards,
529 U.S. at 450-454.
Kellon argues that the trial court's failure to inform
him of his post-trial rights constitutes
“cause” sufficient to excuse his procedural
default of Claims 1, 2, 3, and 4. Kellon's argument is
unavailing for two reasons.
the state trial court explicitly advised Kellon of his
right to direct appeal:
Court: . . . You have a right to appeal all of these
sentences. You need to file your notice of appeal within 30
days from today. Tomorrow is day one. And 30 days thereafter
you must file your notice. Then the rest of it - that
won't be completing the appeal. That would only be
noticing the appeal. And then you would have to perfect the
appeal. Your attorneys will be able to tell you more of the
steps and procedures that must be gone through to perfect the
appeal. The key point, however, is if you are going to
appeal, you need to file that notice within 30 days. And then
everything else will get on a time schedule after that. But
if you miss filing the notice, that all goes out the window
as far as appeals are concerned. Do you understand?
Kellon: Yes, sir, I do understand.
Court: Do you have any questions concerning anything that
have gone on here this afternoon?
Doc. 31, Trial Trans. Vol. 7 at 1588-1589.
a state trial court is not constitutionally
obligated to inform a defendant of his post-conviction
rights. See also, Novak v. Purkett, 4
F.3d 625, 627 (8th Cir. 1993) (citing Pinson v.
Morris, 830 F.2d 896 (8th Cir. 1987) (trial court's
failure to inform defendant of his right to direct appeal not
a constitutional violation); see also Johnson v.
Kelley, No. 5:18-CV-00079DPM-PSH, 2018 WL 5993826, at *3
(E.D. Ark. Oct. 15, 2018), report and recommendation adopted,
No. 5:18-CV-79-DPM, 2018 WL 5985684 (E.D. Ark. Nov. 14, 2018)
(quoting Shoemate v. Norris, 2003 WL 23989923 at 4
(E.D. Ark. 2003) (Wilson, J.), aff'd, 390 F.3d 595 (8th
Cir. 2004) (“there is no constitutional right to
collaterally attack a final judgment of conviction in the
it is well-settled that a habeas petitioner's procedural
ignorance, without more, cannot establish the
necessary “cause” to excuse the procedural
default of a federal habeas claim. Townsell v.
Kelley, 678 Fed.Appx. 458, 459 (8th Cir. 2017)
(unpublished); United States v. Shoupe, 299
Fed.Appx. 610, 611 (8th Cir. 2008) (unpublished) (citing
Smittie v. Lockhart, 843 F.2d 295, 298 (8th
Cir.1988) (petitioner's pro se status and
limited educational background are not sufficient cause for
failing to pursue state-court remedies); Sherron v.
Norris, 69 F.3d 285, 289 (8th Cir. 1995); Cornman v.
Armontrout, 959 F.2d 727, 729 (8th Cir. 1992).
because Kellon has procedurally defaulted Claims 1 through 4,
the Court should not consider them and those claims should be
dismissed, with prejudice.
Arkansas State Courts Reasonably Adjudicated Kellon's
Jury Instruction Objection, Which Did Not Rise to the Level
of a Constitutional Violation
argues that the trial court erred in overruling his objection
to the jury instruction on Capital Felony Murder /
First-Degree Felony Murder, Arkansas Model Criminal
Instruction (“AMCI”) 301. Specifically, Kellon
argues this instruction “prevented” the jury from
convicting him of the lesser-included offense of first-degree
felony murder. Doc. 12 at 6. Respondent argues the