{ "id": 3695853, "name": "Ledell LEE v. STATE of Arkansas", "name_abbreviation": "Lee v. State", "decision_date": "2006-06-29", "docket_number": "CR 99-1116", "first_page": "84", "last_page": "93", "citations": [ { "type": "official", "cite": "367 Ark. 84" }, { "type": "parallel", "cite": "238 S.W.3d 52" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "354 Ark. 148", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 36028 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/354/0148-01" ] }, { "cite": "338 Ark. 691", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243497 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "695-96" }, { "page": "10-11" } ], "opinion_index": 0, "case_paths": [ "/ark/338/0691-01" ] }, { "cite": "344 Ark. 513", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210165 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "517", "parenthetical": "quoting Wooten v. State, 338 Ark. 691, 695-96, 1 S.W.3d 8, 10-11 (1999)" }, { "page": "469", "parenthetical": "quoting Wooten v. State, 338 Ark. 691, 695-96, 1 S.W.3d 8, 10-11 (1999)" } ], "opinion_index": 0, "case_paths": [ "/ark/344/0513-01" ] }, { "cite": "332 Ark. 186", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377648 ], "weight": 5, "year": 1998, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" }, { "page": "188-89" }, { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/ark/332/0186-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-91-204", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2005, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 16-91-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "opinion_index": 0 }, { "cite": "90 J. Crim. L. & Criminology 467", "category": "journals:journal", "reporter": "J. Crim. L. & Criminology", "year": 2000, "pin_cites": [ { "page": "469" } ], "opinion_index": 0 }, { "cite": "751 S.W.2d 335", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1893759 ], "year": 1988, "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/ark/295/0693-02" ] }, { "cite": "295 Ark. 693", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893749, 1893759 ], "year": 1988, "pin_cites": [ { "page": "699" } ], "opinion_index": 0, "case_paths": [ "/ark/295/0693-01", "/ark/295/0693-02" ] }, { "cite": "938 S.W.2d 818", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 922623 ], "year": 1997, "pin_cites": [ { "parenthetical": "quoting Robinson v. State, 295 Ark. 693, 699, 751 S.W.2d 335, 339 (1988)" } ], "opinion_index": 0, "case_paths": [ "/ark/327/0271-01" ] }, { "cite": "321 Ark. 271", "category": "reporters:state", "reporter": "Ark.", "year": 1997, "pin_cites": [ { "parenthetical": "quoting Robinson v. State, 295 Ark. 693, 699, 751 S.W.2d 335, 339 (1988)" } ], "opinion_index": 0 }, { "cite": "360 Ark. 140", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5460150 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/360/0140-01" ] }, { "cite": "28 U.S.C. \u00a7 2244", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "page": "561" } ], "opinion_index": 0 }, { "cite": "114 S.W.3d 217", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 1155508, 36029 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "222" }, { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/ark/353/0556-01", "/ark/354/0001-01" ] }, { "cite": "353 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155508 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/353/0556-01" ] }, { "cite": "354 F.3d 846", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9297651 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "848" }, { "page": "850", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/f3d/354/0846-01" ] }, { "cite": "28 U.S.C. \u00a7 2254", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "522 U.S. 1002", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11569060, 11569030, 11569352, 11569482, 11569162, 11569294, 11568879, 11568914, 11569396, 11569237, 11569108, 11568951, 11568987, 11569532, 11569438 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/522/1002-06", "/us/522/1002-05", "/us/522/1002-11", "/us/522/1002-14", "/us/522/1002-08", "/us/522/1002-10", "/us/522/1002-01", "/us/522/1002-02", "/us/522/1002-12", "/us/522/1002-09", "/us/522/1002-07", "/us/522/1002-03", "/us/522/1002-04", "/us/522/1002-15", "/us/522/1002-13" ] }, { "cite": "327 Ark. 692", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922898 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0692-01" ] }, { "cite": "343 Ark. 702", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226564 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/343/0702-01" ] } ], "analysis": { "cardinality": 806, "char_count": 17837, "ocr_confidence": 0.761, "pagerank": { "raw": 3.630069604355588e-07, "percentile": 0.8890809850304013 }, "sha256": "9071d3d7da99bbb1f5de0ac105e2ff3ce3c399938a2673b7648f6cdce4af356e", "simhash": "1:1f54dc3354db5edd", "word_count": 2914 }, "last_updated": "2023-07-14T22:19:21.310389+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Ledell LEE v. STATE of Arkansas" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nAppellant Ledell Lee has filed a motion requesting this court to recall its mandate affirming the denial of his request for postconvcition relief. See Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). In support of his motion, Lee asserts that he was denied the assistance of qualified counsel during his postconviction proceedings, due to the fact that his appointed counsel was impaired by a substance-abuse problem. The State counters that there is no constitutional right to postconviction counsel; therefore, Lee has not been deprived of any established right that would warrant the recall of our mandate. Additionally, the State argues that the need for finality in criminal appeals outweighs any argument that Lee was deprived of competent counsel. Because it is clear from the record before us that Lee was deprived of the assistance of qualified and competent counsel to which he was entitled under Ark. R. Crim. P. 37.5, we recall the mandate and remand this matter to the circuit court for a new postconviction proceeding.\nBriefly reviewing the facts, Lee was convicted of the 1993 capital murder of Jacksonville resident Debra Reese and sentenced to death. His conviction and sentence were affirmed by this court in Lee v. State, 327 Ark. 692, 942 S.W.2d 231, cert. denied, 522 U.S. 1002 (1997). Thereafter, Lee filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, arguing that his trial attorneys had rendered ineffective assistance of counsel. Pursuant to Rule 37.5, the circuit court appointed counsel to represent Lee in connection with his postconviction petition. Following a hearing on his petition, the trial court entered an order denying Lee\u2019s request for relief.\nFollowing our affirmance of the denial of postconviction relief, Lee filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. \u00a7 2254 in the United States District Court for the Eastern District of Arkansas. Upon reviewing his petition, the District Court determined that it was necessary to hold the petition in abeyance to allow Lee the opportunity to seek additional recourse in state court. The District Court\u2019s decision was based on concerns it raised sua sponte regarding possible impairment of Lee\u2019s counsel during the Rule 37 proceedings.\nThe State appealed the District Court\u2019s decision to the Eighth Circuit Court of Appeals. See Lee v. Norris, 354 F.3d 846 (8th Cir. 2004). During the pendency of the State\u2019s appeal, Lee\u2019s Rule 37 counsel filed, under seal, a motion for substitution of counsel. Therein, counsel stated that at a minimum there was an appearance of an actual conflict of interest that prevented him from continuing to represent Lee. The motion was granted and new counsel was appointed to represent Lee. At the outset, the Eighth Circuit noted that the only issue before it was \u201cthe propriety of the District Court\u2019s choice to stay the petition, rather than dismiss it.\u201d Ultimately, the court concluded that it was proper for the District Court to hold the petition in abeyance, stating:\nThe District Court noted that Mr. Lee\u2019s \u201ccounsel may have been impaired to the point of unavailability on one or more days of the Rule 37 hearing.\u201d The District Court was also troubled by counsel\u2019s repeated requests for appointment of co-counsel and the trial court\u2019s refusal to address counsel\u2019s argument that he was not qualified to handle the case because of other obligations.\nId. at 848. The Eighth Circuit also noted, however, that the District Court\u2019s order was a little too specific with regards to Lee seeking relief in state court, explaining:\nWe do not presume to say which court in the state system would be the appropriate forum, still less to hold that, if there is such a court, an evidentiary hearing should be held. We leave to petitioner\u2019s present appointed counsel, in the first instance, to determine what form of action would be appropriate, and what relief should be requested. It will be for the state courts, of course, to decide the appropriate mode of proceedings, as well as what relief to grant, if any.\nId. at 850 (citation omitted) (footnote omitted).\nFollowing entry of the Eighth Circuit\u2019s order, Lee filed the instant motion with this court requesting that we recall the mandate and reopen his postconviction proceedings. In support of his motion, Lee pointed to the fact that his Rule 37 counsel was impaired by alcohol use during the time that he represented Lee in his postconviction proceedings, a fact admitted to by counsel. This court determined that Lee\u2019s motion should be submitted as a case, and the clerk of this court subsequently established a briefing schedule and the motion to recall the mandate is now presented to this court.\nThe issue now before us is whether the fact of Lee\u2019s counsel\u2019s intoxication and subsequent impairment warrants the relief requested by Lee, namely a recall of our mandate and a reopening of his postconviction proceedings. In support of his argument that such relief is warranted, Lee argues that Rule 37.5 requires the appointment of qualified counsel and, in this case, it cannot be said that Lee\u2019s appointed counsel was qualified under this rule due to his impairment from intoxication. Additionally, Lee avers that there was at least one viable claim of ineffective assistance of counsel not pursued by his Rule 37 counsel, presumably due to counsel\u2019s impairment.\nThe State counters that the relief requested by Lee is not warranted because the present case does not meet the criteria for recalling a mandate set forth by this court in Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003). Additionally, the State argues that even though Lee\u2019s counsel may have had a substance-abuse problem at the time of the Rule 37 proceedings, Lee cannot establish that he was prejudiced by his counsel\u2019s impairment. Specifically, the State argues that a review of the Rule 37 proceedings reveals that counsel adequately represented Lee\u2019s interest and that this court would be ill advised to disturb the finality of its previous order.\nBefore addressing the merits of Appellant\u2019s motion, we look first to the limited instance in which this court has recalled a mandate in a death-penalty case. In Robbins, we recognized that \u201cthis court will recall a mandate and reopen a case in extraordinary circumstances.\u201d Id. at 564, 114 S.W.3d at 222. However, in deciding to recall the mandate, we specifically explained that our decision was based on three factors: 1) the presence of a defect in the appellate process; 2) a dismissal of proceedings in federal court because of unexhausted state court claims; and 3) the appeal was a death case that required heightened scrutiny. Thus, these three criteria must be satisfied in order for this court to consider the relief requested by Lee.\nFirst, we must determine whether there is a presence of a defect in the appellate process that warrants a recall of the mandate. Certainly, the intoxication and subsequent impairment of Lee\u2019s appointed counsel during the Rule 37 proceedings constitute a defect because of the exacting requirements of Rule 37.5 regarding the appointment of qualified counsel in postconviction proceedings for a person under a sentence of death.\nThe second factor enunciated in Robbins is the dismissal of federal court proceedings because of the existence of unexhausted state claims. Here, the District Court held Lee\u2019s habeas petition in abeyance so that this court could determine if there were any unexhausted state claims. The decision to hold the petition in abeyance, however, was based on a procedural issue that would have resulted in Lee being barred from returning to federal court to refile his petition because of the one-year statute of limitations imposed on habeas petitioners. See 28 U.S.C. \u00a7 2244. In addition, for reasons explained below, it is clear that Lee was deprived of his right to a postconviction proceeding in state court due to the impairment of his appointed counsel. We reiterate that because Lee is under a sentence of death, Rule 37.5 mandates that he be appointed qualified counsel. Counsel who is impaired by alcohol abuse cannot be said to be qualified counsel. Accordingly, until Appellant has been afforded a new Rule 37 proceeding, he has potential state claims that remain unexhausted.\nFinally, the third factor regarding heightened scrutiny in death cases is applicable in the instant case. A review of the record in the instant case reveals that Rule 37 counsel admitted that he was impaired by a substance-abuse problem during his representation of Lee in the postconviction process. In an affidavit filed before the Eighth Circuit, Rule 37 counsel admitted that he struggled with substance abuse and received in-patient treatment on two different occasions before becoming clean and sober in late 1999. He further averred that during the pendency of Lee\u2019s postconviction proceeding he approached the trial court and asked either to be relieved or to have co-counsel appointed because of his condition, but that his requests were denied. As we noted in Robbins, the death penalty demands unique attention to procedural safeguards. Id. at 561, 114 S.W.3d at 220. Such procedural safeguards warrant a recall of the mandate in this case because Lee was denied the representation of qualified and competent counsel during the pendency of his Rule 37 proceeding.\nWe are simply unpersuaded by the State\u2019s argument that Lee is not entitled to counsel, as postconviction proceedings are civil in nature and there is consequently no right to the appointment of counsel. This argument completely ignores our prior case law holding that while there is no constitutional right to a postconviction proceeding, when a state undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. See Engram v. State, 360 Ark. 140, 200 S.W.3d 367 (2004); Larimore v. State, 321 Ark. 271, 938 S.W.2d 818 (1997) (quoting Robinson v. State, 295 Ark. 693, 699, 751 S.W.2d 335, 339 (1988)). More importantly, the State\u2019s argument in this regard completely ignores the exacting requirements of Rule 37.5 regarding the appointment of counsel.\nA brief historical overview on this court\u2019s treatment of death-penalty cases and the application of Rule 37.5 will prove helpful in the instant case. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Pub. L. No. 104-132 (1996). By this act, Congress chose to restrict federal habeas corpus review in exchange for the states\u2019 appointing competent counsel for indigent capital defendants for purposes of state postconviction review. See Burke W. Kappler, Small Favors: Chapter 154 of the Antiterrorism and Effective Death Penalty Act, the States, and the Right to Counsel, 90 J. Crim. L. & Criminology 467, 469 (2000).\nIn 1997, the Arkansas General Assembly enacted Act 925 of 1997 in response to the AEDPA. Act 925 is now codified at Ark. Code Ann. \u00a7\u00a7 16-91-201 to -206 (Supp. 2005). The General Assembly stated that the purpose behind Act 925 was to comply with the AEDPA \u201cin an effort to obtain the benefits of that act concerning time limitations in which federal habeas corpus proceedings and appeals must be considered and decided[.]\u201d Ark. Code Ann. \u00a7 16-91-204 (Supp. 2005)..\nAlso in 1997, this court adopted Arkansas Rule of Criminal Procedure 37.5 in order to \u201copt in\u201d to the benefits of the AEDPA by setting criteria for appointed counsel for indigent capital defendants sentenced to death. We subsequently explained the purpose behind Rule 37.5 in our case law:\nRule 37.5 evolved from Act 925 of 1997, now codified at Ark. Code Ann. \u00a7\u00a7 16-91-201 to -206 (Supp. 1999), where the General Assembly expressly noted that the intent of the Act is to comply with federal law by instituting a comprehensive state-court review. See section 16-91-204; Porter v. State, 332 Ark. 186, 964 S.W.2d 184 (1998) (per curiam). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. Id. Thus, \u201cin death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure that the denial rests on solid footing.\u201d Id. at 188-89, 964 S.W.2d at 185.\nEchols v. State, 344 Ark. 513, 517, 42 S.W.3d 467, 469 (2001) (quoting Wooten v. State, 338 Ark. 691, 695-96, 1 S.W.3d 8, 10-11 (1999)).\nStated differently, the purpose of the exacting requirements of Rule 37.5 is to provide a comprehensive state-court review of a defendant\u2019s claims and, therefore, eliminate the need for multiple postconviction actions in federal court. See Fudge v. State, 354 Ark. 148, 120 S.W.3d 600 (2003); Echols, 344 Ark. 513, 42 S.W.3d 467.\nIt is clear that not only has this court undertaken to allow postconviction proceedings, but more importantly, has established specific criteria for the appointment of qualified and competent counsel to represent indigent defendants under a sentence of death. If this court were to accept the State\u2019s argument and find that an attorney impaired by a substance-abuse problem constitutes qualified counsel, we would be ignoring the dictates of Rule 37.5, as well as the history leading up to the implementation of that rule.\nIn light of the specific qualifications set forth for the appointment of Rule 37.5 counsel, this court cannot ignore the fact that Lee\u2019s counsel admitted to being impaired during Lee\u2019s Rule 37 proceeding, an admission that is supported by the record itself. There are notable examples during the Rule 37 hearing where it appears that counsel was not functioning at the level of qualified or competent counsel required by Rule 37.5. Notable examples of counsel\u2019s troubling behavior include:\n\u2022 belligerent attitude towards the prosecuting attorney;\n\u2022 being unable to locate the witness room;\n\u2022 repeatedly being unable to understand questions posed by the trial court or objections raised by the prosecution;\n\u2022 not being familiar with his own witnesses;\n\u2022 not properly serving witnesses or telling them not to attend the hearings, only to call them during the hearing;\n\u2022 routinely forgetting basic rules of procedure regarding the admission of evidence;\n\u2022 failing to prepare for the hearing by organizing evidentiary items or meeting with witnesses;\n\u2022 rambling incoherendy, repeatedly integecting \u201cblah, blah, blah\u201d into his statements.\nIn fact, counsel\u2019s behavior became so erratic that during the Rule 37 hearing, counsel for the State went on record as follows:\nYour Honor, I don\u2019t do this lightly, but with regard to [Rule 37 counsel\u2019s] performance in Court today, I\u2019m going to ask that the Court require him to submit to a drug test. I don\u2019t think that he\u2019s, he\u2019s not, he\u2019s just not with us. He\u2019s re-introduced the same items of evidence over and over again. He\u2019s asking incoherent questions. His speech is slurred. He stumbled into the Court Room. As a friend of the Court, and I think it\u2019s our obligation to this Court and to this Defendant that he have competent counsel here today, and I don\u2019t \u2014That\u2019s just my request of the Court, Your Honor.\nIn response, the trial court stated that it knew of no authority to take such action and continued with the Rule 37 hearing.\nAdditionally, we do not agree with the State\u2019s proposition that Appellant\u2019s failure to cooperate with his trial counsel somehow negates the fact that his Rule 37 counsel failed to investigate an identifiable claim of ineffective assistance of counsel at the penalty phase, specifically trial counsel\u2019s failure to put on any mitigating evidence. According to Appellant, Rule 37 counsel\u2019s failure to investigate such a claim is a prime example of his lack of competence during the Rule 37 proceeding. Appellant\u2019s demeanor or attitude at trial is of no import to his Rule 37 counsel\u2019s performance.\nLikewise, we do not agree with the State\u2019s contention that Appellant\u2019s motion should be denied on the basis that Appellant has been dilatory in bringing his motion to recall the mandate. The issue regarding counsel\u2019s competency first arose in the District Court\u2019s opinion holding Lee\u2019s petition for habeas relief in abeyance. Then, once the State appealed that decision to the Eighth Circuit, Rule 37 counsel filed his motion for substitution of counsel. Lee\u2019s current counsel was not appointed until July 28, 2004. New counsel, in turn, filed the motion to recall the mandate on August 30, 2005. The State makes much to do about the fact that it took over a year to file this motion. As Lee points out, however, his new counsel had the duty to familiarize herself with the voluminous record in this case and also had to investigate what avenue of relief to pursue on behalf of her client. Accordingly, we do not agree .with the State that Appellant somehow purposely delayed the instant process and thus is not entitled to relief.\nIn sum, we agree with the Eighth Circuit that Rule 37 counsel did not, under these particular and unusual circumstances, meet the qualifications of competency required of counsel appointed under Rule 37.5. Accordingly, we recall our mandate and remand this matter to the circuit court for proceedings consistent with this opinion.\nMotion granted.\nLee has also filed a motion requesting funds so that he may adequately investigate his claim of ineffective assistance of trial counsel. We deny the motion, as any such request should be addressed to the circuit court.", "type": "majority", "author": "Donald L. Corbin, Justice." } ], "attorneys": [ "Cauley, Bowman, Carney & Williams, PLLC, by: Deborah R. Sailings, and Public Interest Litigation Clinic, by: Kent E. Gipson and William C. Odie, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Lauren Elizabeth Heil, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Ledell LEE v. STATE of Arkansas\nCR 99-1116\n238 S.W.3d 52\nSupreme Court of Arkansas\nOpinion delivered June 29, 2006\n[Rehearing denied September 7, 2006.]\nCauley, Bowman, Carney & Williams, PLLC, by: Deborah R. Sailings, and Public Interest Litigation Clinic, by: Kent E. Gipson and William C. Odie, for appellant.\nMike Beebe, Att\u2019y Gen., by: Lauren Elizabeth Heil, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0084-01", "first_page_order": 108, "last_page_order": 117 }