Kellon v. Payne

          RECOMMENDED DISPOSITION

         The 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.

         I. Introduction

         On 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;^[2] 40 years for aggravated robbery; and 15 years based on a statutory firearm enhancement. Id.

         On 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).^[3]

         Kellon did not file a Rule 37 Petition.

         On June 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.^[4] 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. Id.

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.

         In Respondent's Response, he argues that Kellon's habeas Petition should be dismissed because: (1) he procedurally defaulted Claims 1 through 4;^[5] 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. 12.^[6]

         For the 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.

         II. Discussion

         Before addressing Kellon's habeas claims, it is important to understand the evidence supporting Kellon's capital murder and aggravated robbery convictions.^[7]

         Shortly 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, ^[8] 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 19:23:39-19:24:29.

         Kellon 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.

         The 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.

         Kellon 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 19:25:53-19:26:07.

         The 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.

         After 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.

         A. Kellon Has Procedurally Defaulted Claims 1, 2, 3, and 4

         A 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).

         By 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).

         Because 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.

         Similarly, 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).

         Finally, 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, ^[9] 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.

         B. Kellon Has Failed to Establish “Cause” to Excuse His Procedural Default of Claims 1, 2, 3, and 4

         When a 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;^[10] or (2) a “fundamental miscarriage of justice” will take place if the Court fails to consider the claim.^[11] Coleman, 501 U.S. at 750.

         As “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.

         While 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.^[12]

         Finally, Kellon argues that the trial court's failure to inform him of his post-trial rights^[13] constitutes “cause” sufficient to excuse his procedural default of Claims 1, 2, 3, and 4. Kellon's argument is unavailing for two reasons.

         First, 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?

Kellon: Naw.

Doc. 31, Trial Trans. Vol. 7 at 1588-1589.

         Second, a state trial court is not constitutionally obligated to inform a defendant of his post-conviction rights.^[14] 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 first place.”)).

         Furthermore, 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).

         Accordingly, because Kellon has procedurally defaulted Claims 1 through 4, the Court should not consider them and those claims should be dismissed, with prejudice.

         C. Arkansas State Courts Reasonably Adjudicated Kellon's Jury Instruction Objection, Which Did Not Rise to the Level of a Constitutional Violation

         Kellon 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 Arkansas ...