May v. Payne
| Decision Date | 13 March 2020 |
| Docket Number | NO. 5:18-CV-00053-BSM-JTR,5:18-CV-00053-BSM-JTR |
| Parties | JIMMY DEWAYNE MAY, ADC #163080 PETITIONER v. DEXTER PAYNE, Director, Arkansas Division of Correction RESPONDENT |
| Court | U.S. District Court — Eastern District of Arkansas |
The following Recommended Disposition ("Recommendation") has been sent to United States District Judge Brian S. Miller. 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.
On February 22, 2018, Petitioner Jimmy Dewayne May ("May") initiated this § 2254 habeas action. In his Petition, he alleges five ineffective assistance of counselclaims; one claim of error by the trial court; and one claim of error by the Arkansas Court of Appeals. Docs. 2 and 3.
On April 1, 2019, Respondent filed a Response, arguing that May's habeas claims are procedurally defaulted, fail on the merits, or are not cognizable under § 2254. Doc. 35. On May 21, 2019, May filed a Reply. Doc. 34.
Before addressing any of the parties' arguments, it is important to understand the facts giving rise to May's habeas claims.2
On the afternoon of June 13, 2015, Fort Smith Police Officer Jeffrey Taylor, Jr. ("Officer Taylor") was dispatched to The Tackle Box, a sporting goods store, to investigate a call that a male and female "had been [in the store] for approximately two hours[,] . . . had tried to sell a gun[,] . . . were acting very strange[,]" but had recently left the store and were now outside sitting in a black Ford pickup truck. Suppression Hearing Testimony of Officer Taylor, May v. State, Ark. Ct. App. No. CR-16-241, Tr. Rec. at 122-123.
Officer Taylor located the truck and pulled his patrol car behind it, effectively stopping the driver from leaving. Officer Taylor walked up to the driver's window and observed the driver and the female passenger acting "very nervous." Id. at 122-125. The driver was Id. at 125. Officer Taylor asked both the driver and passenger "what they were doing in there [The Tackle Box] and why would we get a call . . . that they were acting strangely." Id. He requested the driver and passenger to provide identification and then returned to his patrol car to check for arrest warrants. Id. at 125-126.
The driver of the truck, May, had an active warrant for failing to appear on a state district court summons. Id. at 126. After Officer Taylor arrested May on the active warrant, he testified that May consented to the search of his truck:
I asked him if he had anything illegal in the vehicle after I had taken him into custody. He said he did not. I asked him if he had a problem with me searching the vehicle. He said he did not.
Inside the truck, Officer Taylor and two other officers found two and a half grams of methamphetamine, a glass smoking pipe, several unused syringes, a scale, a 9mm pistol, and a roll of twenty-six $100 bills. Id. at 128. May later admitted that all of the items seized from the truck belonged to him. Id. at 230.
May was charged in Sebastian County Circuit Court with simultaneous possession of drugs and firearms, possession of drug paraphernalia, possession of methamphetamine, and felon in possession of a firearm.3
May's trial counsel, Rita Watkins ("Ms. Watkins") filed a Motion to Suppress all of the evidence found during the search of May's truck. Id. at 21-22. On January 13, 2016, the trial court conducted a suppression hearing. Id. at 93-146. Ms. Watkins argued that, based on Officer Taylor's testimony during the suppression hearing, he had neither a reasonable suspicion to initiate the stop of May's vehicle nor probable cause to conduct the search. Id. at 142. According to Ms. Watkins, this made the search "unlawful and all items seized should be suppressed under the 'fruit of the poisonous tree doctrine.'" Id. at 21-22.
During and after the suppression hearing, Ms. Watkins made no arguments challenging: (1) the constitutionality of May's arrest on the outstanding arrest warrant; or (2) the truthfulness of Officer Taylor's testimony that, after May's arrest, he consented to the search of the truck. On January 19, 2016, the trial court summarily denied the motion to suppress. Id. at 28.
On January 29, 2016, Ms. Watkins filed a Motion to Reconsider. She reiterated her argument that, because "Officer Taylor failed to provide a specific,particularized, and articulable reason indicating that Mr. May may be involved in criminal activity," he did not have probable cause to search May's truck. Id. at 34.
On February 1, 2016, the trial court denied the Motion, but made a new alternative finding to uphold the constitutionality of the search:
Assuming, arguendo, Defendant is correct in arguing his original detention was not authorized, his motion must nevertheless fail. The Court notes the search took place only after officers were advised of an active warrant for Defendant's arrest. There is nothing in the record which suggests the search would have occurred absent this discovery.
Id. at 48. Under this new theory, the constitutionality of Officer Taylor's search no longer turned on whether he had "reasonable suspicion" to stop May or whether his questioning of him created "probable cause":
May proceeded to trial, and, on February 3, 2016, the jury convicted him of Simultaneous Possession of Drugs and Firearms, Possession of Drug Paraphernalia, and Possession of Methamphetamine. Doc. 13-1 at 1-2. As a habitual offender, May was sentenced to seventeen years for Simultaneous Possession of Drugs and Firearms, seven years for Possession of Drug Paraphernalia, and six years forPossession of Methamphetamine. Id. All of those sentences were imposed consecutively.
On direct appeal to the Arkansas Court of Appeals, May's appellate counsel, David Dunagin ("Mr. Dunagin"), argued that the trial court erred in denying May's Motion to Suppress because Officer Taylor lacked probable cause to search May's truck. May v. State, 2016 Ark. App. 605, 4-5, 509 S.W.3d 14, 16-17. Mr. Dunagin did not challenge the trial court's alternative finding that it ultimately relied on to uphold the constitutionality of the search.
On December 14, 2016, the Court affirmed May's convictions based on the trial court's finding that Officer Taylor's "discovery of the arrest warrant [on May] was an independent and intervening factor that led to his arrest and the subsequent [consensual] search [of May's vehicle], thereby removing any [constitutional] taint that may have existed." May, 2016 Ark. App. 605, at 4-5, 509 S.W.3d at 17 (citations omitted). According to the Court, "[w]hen an appellant [like May] fails to attack a circuit court's independent, alternative basis for its ruling, we will not reverse." Id.
The Arkansas Court of Appeals issued its Mandate affirming May's conviction on January 4, 2017. May had sixty days to file his Rule 37 Petition. See Ark. R. Crim. P. 37.2(c)(ii); Ark. R. Crim. P. 1.4.
On February 16, 2017, well before the March 6, 2017 filing deadline, May mailed his pro se Rule 37 Petition to the Sebastian County Circuit Court.4 Doc. 13-3. In that pleading, May asserted ineffective assistance of counsel claims against both Ms. Watkins and Mr. Dunagin. Doc. 13-3 at 8-9; Doc. 20 at 3. As to Ms. Watkins, he made only a conclusory allegation that she was constitutionally ineffective, without explaining how or providing any facts to support that claim. As to Mr. Dunagin, May specifically alleged that he provided ineffective assistance by failing to challenge the trial court's "alternative finding," which the Arkansas Court of Appeals relied on to affirm May's conviction. Doc. 13-3 at 6.5
In a letter, dated February 28, 2017, a Sebastian County Clerk wrote May and advised him that she was rejecting and returning his timely Rule 37 Petition, becauseit lacked a "Cover Sheet." Doc. 20 at 8. Her letter stated that she was providing "a copy [of the Cover Sheet] for your convenience." Id. By the time May received this letter, it was impossible for him to complete the Cover Sheet and return it with his Rule 37 Petition before the March 6, 2017 filing deadline.
The Arkansas Rules of Criminal Procedure mention nothing about a "Cover Sheet" requirement for a Rule 37 Petition, much less that it is a filing requirement that can be used by a Circuit Court Clerk to reject a timely Rule 37 Petition. Similarly, no reported Arkansas case has ever recognized that a Circuit Clerk can impose additional filing requirements (such as a "Cover Sheet") that go beyond what is specifically required in Rule 37 of the Arkansas Rules of Criminal Procedure. Finally, the so-called "Cover Sheet" requirement that the Sebastian County Circuit Clerk sought to impose on May was in direct conflict with the prison mailbox provision of Rule 37.2(g). Thus, as a matter of law, May's timely Rule 37 Petition should have been accepted and filed on the date it was received in the Clerk's Office.6
On March 10, 2017, May filed a "Request to Consider the Timeliness of Rule 37 Postconviction Petition." Id. at 11-12. In this document, May correctly explained all of the reasons why it was error for the Circuit Clerk to reject his timely Rule 37 Petition, which met all of the filing requirements contained in Rule 37:7
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