Opinion

Lacy v. Payne

Court: District Court, E.D. Arkansas
Filed: May 1, 2023
Cited by: 0 cases
Authority: More cited than 17.1%

The opinion

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IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

PINE BLUFF DIVISION

BRANDON LACY PETITIONER

V. No. 5:19 -cv -95 -DPM

DEXTER PAYNE, Director,

Arkansas Division of Correction RESPONDENT

ORDER

1. Brandon Lacy seeks habeas relief from his state court

convictions and death sentence for killing and robbing Randy Walker.

Lacy confessed to killing Walker. But he said that he did so without

the premeditation and deliberation required for capital murder. Lacy

also argued that he did not comn-iit aggravated robbery as an -

independent offense or a capital felony murder element. A Benton

County jury rejected all these defenses, finding Lacy guilty of capital

murder and aggravated robbery. At sentencing, the jury found many

mitigating circumstances and two aggravating circumstances Lacy -

committed the murder in a cruel and depraved manner and for the

purpose of avoiding arrest. Deciding that the two aggravators

outweighed the mitigators, the jury chose the death penalty for the

capital murder. The jury agreed on a life sentence for the robbery.

The Arkansas Supreme Court affirmed the convictions and sentences,

Lacy v. State (Lacy I), 2010 Ark. 388, 377 S.W.3d 227, and the United

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States Supreme Court denied certiorari, Lacy v. Arkansas, 563 U.S. 964

(2011) (Mem.).

Lacy's case for post-conviction relief went up and down in the

Arkansas courts. After the Benton County Circuit Court rejected

Lacy's arguments on the papers, the Arkansas Supreme Court

reversed and remanded for an evidentiary hearing. Lacy v. State (Lacy

Ii), 2013 Ark. 34, 425 S.W.3d 746. After hearing evidence, the circuit

court found Lacy was entitled to resentencing due to his trial lawyers'

penalty phase ineffectiveness. The Supreme Court again reversed and

remanded, holding the circuit court erroneously used a subjective test

in evaluating the lawyers' performance. State v. Lacy (Lacy III), 2016

Ark. 38, 480 S.W.3d 856. On remand, the circuit court reviewed the

lawyers' work under an objective standard, and denied relief. The

Supreme Court affirmed. Lacy v. State (Lacy IV), 2018 Ark. 174, 545

S.W.3d 746. The United States Supreme Court denied certiorari. Lacy

v. Arkansas, 139 S. Ct. 805 (2019) (Mem.). Having exhausted his state

court remedies, Lacy filed this timely federal petition for a writ of

habeas corpus.

2. Factual Background. Lacy's defense was that significant

details about the murder were and are missing and he was too

drunk to remember them. He didn't testify at trial. But his recorded

statements and the physical evidence tell most of the story.

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After an evening of drinking, Lacy and Brody Laswell showed

up at Walker's trailer in Garfield, Arkansas. Lacy and Walker had

met through Lacy's estranged wife; Walker sometimes gave rides to

Lacy. It was shortly after midnight when Lacy and Laswell awakened

Walker. The three gathered in the living room. For reasons not

entirely clear, conflict erupted. Walker had a .22 caliber pistol that

Lacy had sold him a few years earlier. Whether Walker pulled the

pistol is murky. What is undisputed is that Walker, who suffered

from multiple sclerosis, was no match for Lacy and Laswell. While

Walker was sitting in his recliner, Lacy hit him over the head with a

fireplace poker, as Walker repeatedly asked "Why?" Trial Record

3540. Lacy shut the living room window because he didn't want

neighbors to hear Walker's cries.

Lacy got control of the .22 caliber pistol. He knew Walker had a

safe, and he forced Walker into the bedroom to open it. Lacy expected

to find "some money or something," but the safe was empty. Trial

Record 3550. Walker then began to fight back, struggling with Lacy

for the pistol. Laswell picked up a weight bar and struck Walker in

the head. As Walker lay incapacitated on the bedroom floor, Lacy

believed that he was "already gone," Trial Record 3602, but he wanted

"to make sure," Trial Record 3625. Lacy stabbed Walker's chest

several times with the fireplace poker and then used a kitchen knife to

slit Walker's throat down to his spine. After Laswell went to the car,

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Lacy used gasoline to start a fire near Walker's body. He left the

trailer with the items that he used to kill Walker. He also took

Walker's wallet, which contained twenty dollars, and the .22 caliber

pistol.

Lacy and Laswell headed to the Monte Ne boat ramp on Beaver

Lake, near Lacy's grandparents' home. They washed off Walker's

blood in Beaver Lake and then tried to get rid of the other evidence:

They threw the fireplace set, including the poker and shovel, in the

lake; they burned their clothes, the knife, and Walker's wallet nearby.

Lacy hid the stolen pistol at his cousin's apartment.

Later that day, Lacy's estranged wife, Melissa Lacy, and her

boyfriend, David Weaver, found Walker's burned body on the

bedroom floor of his trailer. The medical examiner concluded that the

three sets of injuries the blunt-force head trauma, the stabbing chest

wounds, and the cutting neck wound were independently fatal and

combined to cause Walker's death.

Three days after killing Walker, Lacy called 911, confessed to the

murder, and asked to be arrested. He was intoxicated, as he often

was. So Benton County Sheriff's Office investigators waited until the

next morning to hear more. Over three interviews, Lacy told how he

and Laswe1l1 killed Walker. The interviews were peppered with

1 In a related case, a Benton County jury found Laswell guilty of

capital murder and aggravated robbery. He was sentenced as a

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Lacy's responses that he could not recall details. But he remembered

stabbing Walker in the chest, slitting his throat, and taking the pistol.

3. Standard Of Review. The governing law is settled. Lacy,

a state prisoner, may seek a writ of habeas corpus in federal court, if he

is "in custody in violation of the Constitution or laws or treatises of

the United States." 28 U.S.C. § 2254(a). The United States Supreme

Court, however, considers habeas relief an "extraordinary remedy,"

which guards against "extreme malfunctions in the state criminal

justice systems." Harrington v. Richter, 562 U.S. 86, 102 (2011). Quoting

Harrington, the Supreme Court has re-emphasized this limited role of

habeas corpus in two recent cases. Shinn v. Martinez Ramirez, 596 U.S.

142 S. Ct. 1718, 1731 (2022) (quotations omitted); Brown v.

Davenport (Mike Brown), 596 U.S. , 142 S. Ct. 1510, 1523-24 (2022)

(quotations omitted). The habeas statutory scheme, moreover, is

"designed to strongly discourage" petitioners from offering new

evidence. Shoop v. Twyford, 596 U.S. , 142 S. Ct. 2037, 2044 (2022)

(quotations omitted).

habitual offender to consecutive sentences of life imprisonment

without parole for capital murder and 720 months' imprisonment for

aggravated robbery. The Arkansas Supreme Court affirmed the

convictions and sentences. Laswell v. State, 2012 Ark. 201, 404 S.W.3d

818. The Benton County Circuit Court dismissed Laswell's pro se

petition for post-conviction relief as untimely, and the Arkansas

Supreme Court dismissed his appeal. Laswell v. State, 2013 Ark. 407,

2013 WL 5596280.

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Before seeking habeas review, Lacy must have exhausted

available state remedies by fairly presenting each of his claims in state

court. Coleman v. Thompson, 501 U.S. 722, 731 (1991); O'Sullivan v.

Boerckel, 526 U.s. 838, 848 (1999). This Court will not review questions

of federal law decided in state court if the state court's decision was

based on "a state law ground that is independent of the federal

question and adequate to support the judgment." Coleman, 501 U.S. at

729-30. A "firmly established and regularly followed" state

procedural rule, even if discretionary, can be an adequate ground to

bar habeas review. Beard v. Kindler, 558 U.S. 53, 60 (2009) (quotations

omitted). Procedural default also occurs when a petitioner fails to

present a claim in state court and a state court remedy is no longer

available. O'Sullivan, 526 U.S. at 848. A procedural default can occur

at any point during state court review: at trial, on direct appeal, or

during post-conviction proceedings. Kilmartin v. Kemna, 253 F.3d

1087, 1088 (8th Cir. 2001).

Cause And Prejudice. If a claim is procedurally defaulted, this

Court can consider it only if Lacy establishes either cause for the

default and actual prejudice, or that the default will result in a

fundamental miscarriage of justice. Coleman, 501 U.S. at 750. To

establish cause, Lacy must "show that some objective factor external

to the defense impeded counsel's efforts to comply with the State's

procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986).

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Examples of cause include constitutionally ineffective assistance of

counsel, an unavailable factual or legal basis for a claim, or

interference by state officials that made complying with exhaustion

requirements impracticable. 477 U.S. at 488-89. The prejudice

element generally requires Lacy to show "not merely that the errors at

trial created a possibility of prejudice, but that they worked to his

actual and substantial disadvantage, infecting his entire trial with error

of constitutional dimensions." 477 U.S. at 494 (emphasis original and

quotations omitted).

Exhausted Claims. On claims adjudicated on the merits in state

court, this Court may grant habeas relief only if Lacy satisfies statutory

requirements and United States Supreme Court "precedents

governing the appropriate exercise of equitable discretion." Mike

Brown, 142 5. Ct. at 1524. Lacy must demonstrate that the state court

adjudication "(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding." 28 U.S.C. § 2254(d). A decision is contrary to

federal law if the state court "applies a rule that contradicts the

governing law" set out by the Supreme Court, or if it considers facts

that are "materially indistinguishable" from a Supreme Court case

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and decides differently. Brown v. Payton, 544 U.S. 133, 141 (2005).

Lacy also must pass the Brecht test for assessing the state court error's

prejudicial effect. Mike Brown, 142 S. Ct. at 1524. He must show that

the error had "substantial and injurious effect or influence" on the

verdict or sentence. Brecht v. Abrahamson, 507 U.S. 619, 622 (1993)

(quotations omitted).

4. Caselaw Development. The United States Supreme Court

recently provided new direction for review of procedurally defaulted

ineffectiveness of trial counsel claims. In Shinn v. Martinez Ramirez,

the Supreme Court foreclosed habeas review when these claims rely on

evidence outside the state court record. 142 S. Ct. 1718. Because this

decision worked a significant change, it is useful to trace how the law

developed.

The winding road to Shinn began with Coleman v. Thompson. The

Supreme Court held that, because there is no constitutional right to

counsel in state collateral proceedings, post-conviction counsel's

ineffectiveness cannot constitute cause to excuse procedural default.

501 U.S. at 755. The Court left open whether an exception to this

constitutional rule exists when "state collateral review is the first place

a prisoner can present a challenge to his conviction." Ibid.

In 2012, the Supreme Court revisited the issue -but not as a

constitutional matter. Martinez v. Ryan, 566 U.S. 1 (2012). The Court

held that an equitable exception to the Coleman rule exists when state

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procedures require petitioners to raise ineffectiveness of trial counsel

claims in collateral proceedings instead of on direct appeal. Attorney

error in initial collateral review proceedings may be cause to excuse

procedural default of substantial ineffectiveness of trial counsel

claims. 566 U.S. at 14.

The Court's reasoning was twofold. First, the right to effective

assistance of trial counsel is "a bedrock principle in our justice

system." 566 U.S. at 12. Second, absent the exception, a lawyer's

negligence in the initial collateral-review proceeding results in the

ineffectiveness of trial counsel claim never being reviewed. 566 U.S. at

10-12. The Court, however, acknowledged that state courts have

"sound reasons" for deferring consideration of ineffectiveness claims

to the collateral review stage: Because ineffectiveness claims "often

depend on evidence outside the trial record," direct appeals without -

evidentiary hearings and less time for investigation are -

not

necessarily the better route. 566 U.S. at 13.

The Court later expanded the equitable exception to apply when

state procedural rules do not provide a "meaningful opportunity" to

raise ineffective assistance of trial counsel claims on direct appeal.

Trevino v. Thaler, 569 U.S. 413, 428 (2013). The Supreme Court

declined to extend the Martinez -Trevino exception beyond

procedurally defaulted ineffectiveness of trial counsel claims. Davila

v. Davis, 582 U.S. , 137 S. Ct. 2058 (2017).

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The Martinez -Trevino equitable exception applies in habeas review

of Arkansas state court decisions. Sasser v. Hobbs, 735 F.3d 833, 851-53

(8th Cir. 2013). Applying then-existing circuit precedent, the Eastern

District of Arkansas has held several evidentiary hearings on

"potentially meritorious" procedurally defaulted ineffectiveness of

trial counsel claims. 735 F.3d at 851, 854_55.2

Shinn eliminated the possibility of evidentiary hearings under

the "potentially meritorious" rubric. The Supreme Court held 28

U.S.C. § 2254(e)(2)'s stringent evidentiary restrictions apply to

procedurally defaulted ineffectiveness of trial counsel claims. Shinn,

142 S. Ct. at 1728. Pursuant to the statute, when a habeas petitioner

"has failed to develop the factual basis of a claim" in state court, a

federal court may not hold an evidentiary hearing on that claim

absent satisfaction of one of two narrow exceptions. 28 U.S.C.

§ 2254(e) (2). And precedent holds petitioners responsible for attorney

errors that don't rise to the level of a constitutional violation. Murray,

477 U.S. at 488. A petitioner "fails" to develop a claim when "there is

2After considering the hearing evidence, this Court has denied habeas

relief in each case. Kemp v. Kelley, No. 5:03 -cv-00055 -DPM, 2015 WL

5842552 (E.D. Ark. 2015), affd 924 F.3d 489 (8th Cir. 2019), cert. denied

sub. nom. Kemp v. Payne, 140 S. Ct. 2770 (2020); Anderson v. Kelley, No.

5:12-cv-279-DPM, 2017 WL 1160583 (E.D. Ark. 2017), aff'd 938 F.3d 949

(8th Cir. 2019), cert. denied sub. nom. Anderson v. Payne, 141 S. Ct. 273

(2020); Springs v. Kelley, No. 5:13 -cv-00005 -BSM, 2021 WL 3698388

(E.D. Ark. 2021), appeal docketed sub. nom. Springs v. Payne, No. 22-3399

(8th Cir. 18 Nov. 2022).

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a lack of diligence, or some greater fault, attributable" to the petitioner

or his lawyer. Williams v. Taylor, 529 U.S. 420, 432 (2000). This

diligence standard requires the petitioner to make a "reasonable

attempt, in light of the information available at the time, to investigate

and pursue claims in state court. .." 529 U.S. at 435. Applying these

rules in Shinn, the Supreme Court held that, because there is no

constitutional right to post-conviction counsel, that lawyer's lack of

diligence in developing the state court record is attributable to the

petitioner. 142 5. Ct. at 1734-35. The Court rejected the argument that

the Martinez -Trevino equitable exception applies to the statutory

restriction. 142 S. Ct. at 1735-38. Under 28 U.S.C. § 2254(e)(2), federal

courts therefore may not consider evidence beyond the state court

record in evaluating the underlying procedurally defaulted

ineffectiveness of trial counsel claim. Ibid. The Supreme Court further

concluded that, without the availability of new evidence for merits

review, a Martinez -Trevino hearing on procedural default "would

serve no purpose." 142 S. Ct. at 1738-39. Under those circumstances,

federal courts also are prohibited from "hold[ingj an evidentiary

hearing or otherwise consider[ingj new evidence

- -

to assess cause

and prejudice under Martinez." 1425. Ct. at 1739.

When 28 U.S.C. § 2254(e)(2) bars consideration of new evidence,

Lacy's only path forward is the statute's narrow exception. Lacy first

must show one of two things: that the claim relies on a new rule of

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constitutional law, which has been made retroactive to collateral

review cases by the Supreme Court, and was not previously

unavailable; or that the claim relies on new facts that couldn't have

been previously discovered with due diligence. 28 U.S.C.

§ 2254(e)(2)(A). Whichever exception may apply, Lacy must then

demonstrate that the facts supporting the claim are "sufficient to

establish by clear and convincing evidence that but for constitutional

error, no reasonable factfinder would have found the applicant guilty

of the underlying offense." 28 U.S.C. § 2254(e) (2) (B).

5. Hearing Requests. In his traverse, Lacy requests a hearing

on three points: (1) "potentially meritorious" procedurally defaulted

ineffectiveness of trial counsel claims under a Martinez -Trevino

analysis; (2) the procedural default of other claims; and (3) the merits

of any claims cognizable in post-conviction proceedings that he

wasn't at fault for failing to develop. Doc. 16 at 163.

Lacy's general request for a hearing on procedural default is not

sufficiently developed. And either § 2254(e)(2) bars consideration of

new evidence, or the existing record provides an adequate factual

basis on which to rule fairly.

The parties completed briefing before the Supreme Court's

decision in Shinn. Lacy's arguments for a Martinez -Trevino hearing

therefore are based on pre-existing precedent. But supplemental

briefing would not be helpful. Lacy is no longer permitted a Martinez -

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Trevino hearing on potentially meritorious procedurally defaulted

ineffectiveness of trial counsel claims. With these ineffectiveness

claims and any other claim cognizable in post-conviction proceedings,

Lacy must clear 28 U.S.C. § 2254(e)(2)'s high hurdle. Shinn, 142 S. Ct.

1718.

Lacy contends that he isn't responsible for the failure to develop

post -conviction claims. He sought post-conviction relief pursuant to

Rule 37.5 of the Arkansas Rules Of Criminal Procedure. The case

spent almost seven years in state court. Patrick Benca was Lacy's

post-conviction lawyer, except during the case's third and final trip to

the Arkansas Supreme Court. Lacy says the circuit court prevented

him from amending his Rule 37 petition, and Benca abandoned him.

Under 28 U.S.C. § 2254(e)(2), Lacy is not "at fault" if his diligent

efforts were "thwarted" by the circuit court or Benca's abandonment.

Williams, 529 U.S. at 432. Lacy, however, hasn't shown the diligence

required to avoid § 2254(e) (2) evidentiary restrictions.

After the Arkansas Supreme Court reversed the denial of Rule 37

relief and remanded the case for an evidentiary hearing, Lacy raised

the possibility of an amended petition. But he had no answer when

the circuit court asked him to "pinpoint. . . with specificity" any new

grounds for relief. Rule 37 Record (CR-15-171) 611. He referred only

to potential new allegations based on witness interviews and issues

arising at the evidentiary hearing. He said there had not been enough

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time to investigate. The circuit court denied Lacy's request for the

time being, but invited Lacy to "submit authorities." Rule 37 Record

(CR-15-171) 614.

Lacy later argued in a new trial motion and on the record that

the prosecutor had frequently abused his subpoena power in other

cases.3 Lacy's lawyer, Benca, said that he only recently learned this

information, though Lacy similarly challenged at trial and on direct

appeal the misuse of the prosecutor's subpoena in his case. Lacy I,

2010 Ark. 388, *28_31, 377 S.W.3d at 243-44. The circuit court denied

the new trial motion, holding Lacy had not raised a violation of his

constitutional rights. Lacy's proposed amended petition contained a

related ineffectiveness allegation, plus one more: His trial lawyers'

work was constitutionally deficient for not challenging the

prosecutor's misuse of the subpoena power and penalty phase

rebuttal closing argument.

At a motions hearing, Lacy's lawyer argued that, after learning

of the prosecutor's subpoena being abused in other cases, he

interviewed Lacy's family members, who shared similar stories. He

said that he was in the process of preparing a more in-depth proposed

3 Under state law, prosecuting attorneys and their deputies are

permitted to "issue subpoenas in all criminal matters they are

investigating and may administer oaths for the purpose of taking the

testimony of witnesses subpoenaed before them." Ark. Code Ann. §

16-43-212.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 15 of 84

amended petition with these additional facts. He asked the circuit

court to reserve a ruling on the motion to amend, so that he would

have more time to complete an enlarged amended petition. The

circuit court acknowledged Lacy's request and didn't rule on the

motion.

More than a year later, on the day before the evidentiary

hearing, Lacy renewed his motion to amend. The proposed petition

was almost identical to the earlier filing. Lacy argued that the

amended petition was warranted because of the delay in his receiving

the trial record. He also challenged the constitutionality of Arkansas's

time limit on filing Rule 37 petitions. The circuit court denied Lacy's

request to amend his petition.

Based on the Rule 37 record, the circuit court isn't responsible for

Lacy's failure to develop additional Rule 37 claims. The direct appeal

record gave Lacy notice of the proposed grounds for relief. The circuit

court didn't interfere with his ability to allege facts supporting those

grounds in a timely fashion.

Lacy's argument that his Rule 37 lawyer abandoned him fares no

better. He points to a February 2017 ethics complaint that he says

alleged Benca's lack of communication. And he refers to Benca's

request to withdraw as appellate counsel based on a "fractured"

attorney -client relationship. Doc. 16 at 27. Lacy also says Benca

abandoned him when he did not file an enlarged Rule 37 petition.

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Even if proven, these allegations would not demonstrate that Benca

stopped acting as Lacy's representative. Maples v. Thomas, 565 U.s.

266, 281-82 (2012). The facts show a strained relationship, not that

Benca "literally abandoned" him. Sasser, 735 F.3d at 850 n.h.

Any failure to develop procedurally defaulted post-conviction

claims is attributable to Lacy. Shinn, 142 S. Ct. at 1734-35. Under §

2254(e)(2), Lacy did not make a "reasonable attempt" to pursue them.

Williams, 529 U.S. at 435. Neither the circuit court's rulings nor

Benca's alleged abandonment provides an excuse. And none of these

claims satisfy the statutory exception. 28 U.S.C. § 2254(e)(2)(A) & (B).

Section 2254(e)(2) therefore bars new evidence, so Lacy's embedded

request for an evidentiary hearing is denied.

Early on in this proceeding, Lacy sought discovery of the

prosecutor's work-product and victim-outreach files, and to depose

the prosecutor. Doc. 18. Before the United States Supreme Court's

decision in Shinn, this Court denied the motion without prejudice.

The Court asked Lacy to renew his discovery request, if necessary,

after the Court winnowed the claims to those with the most merit and

any that justify an evidentiary hearing. Doc. 23. Under Shinn, a

winnowing order is no longer warranted. Based on this Court's

analysis of claims and procedural defenses, and the evidentiary

restrictions imposed by Shinn and 28 U.S.C. § 2254(e)(2), Lacy could

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 17 of 84

not establish good cause to support a renewed discovery request.

Rule 6(a) of the Rules Governing § 2254 Cases.

6. Excuses For Procedural Default. Appendix A lists Lacy's

thirty-four claims for relief. He mostly raises claims challenging his

state court lawyers' performance. He argues that they should have

worked harder and made different decisions. He also contends that

he didn't receive a fair trial due to a biased judge and jury, and the

prosecutor's misconduct. He says there were voir dire mistakes and

incomplete jury instructions. He challenges the medical examiner's

testimony, and he argues there wasn't sufficient evidence of guilt or

the avoid -arrest aggravator. The record, however, contains

overwhelming evidence that Lacy committed capital murder and of

the aggravators supporting the death sentence. Lacy did not contest

that he killed Walker, stabbing him in the chest and slitting his throat.

The jury heard Lacy's recorded statement that, after he and Laswell

inflicted the fatal wounds, he started a fire to burn Walker's body. He

admitted taking Walker's pistol.

Most claims are procedurally defaulted. Lacy contends cause

exists to excuse the default of all claims cognizable in Rule 37

proceedings. He relies on the same arguments made in support of an

evidentiary hearing. He says the circuit court didn't permit him to

amend his petition, and his Rule 37 lawyer's actions amounted to

abandonment. These arguments are likewise unpersuasive under a

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 18 of 84

cause analysis. Neither the circuit court's rulings nor Benca's actions

constitute "some objective factor external to the defense" preventing

compliance with state procedural rules. Murray, 477 U.S. at 488.

Lacy makes other arguments to show cause. He contends that

his default of ineffective assistance of trial counsel claims is excused

under a Martinez-Trevino analysis. He also asks this Court to extend

Martinez -Trevino to cover his judicial bias claim. He argues the

prosecutor's suppression of evidence amounts to cause excusing

procedural default of the related claim. He says two claims

challenging his death sentence are based on data not available during

state court proceedings, and a third challenge would have been futile

under state law. The Court will address these procedural default

excuses in connection with the underlying claims.

To demonstrate prejudice to lift the procedural bar, Lacy points

to his arguments supporting the underlying merits of each claim. This

Court's review, however, has not uncovered any errors that "worked

to his actual and substantial disadvantage, infecting his entire trial

with error of constitutional dimensions." Murray, 477 U.S. at 494

(emphasis original). To the extent Lacy alleges prejudice as an

element of the underlying claim, the Court will address the specific

argument under the appropriate legal standard when reviewing those

claims.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 19 of 84

7. Ineffectiveness Of Trial Counsel Claims. Lacy was

represented at trial by four lawyers: Steve Harper from the Arkansas

Public Defender Conmiission's Capital Conflicts Unit; and Jay Saxton,

Tony Pirani, and Brynna Barnica from the Benton County Public

Defender's Office. Saxton was in charge of Lacy's defense; Harper

handled the penalty phase. Lacy vigorously challenges his trial

lawyers' work at every turn. These are Claims 1, 2, 5, 6, 7, 8, 10, 11, 14,

15, 17, 19, 20, 22, and 24. Most are procedurally defaulted. The

Martinez -Trevino equitable exception applies to claims defaulted in the

initial collateral review proceeding. Martinez, 566 U.S. at 14.

To demonstrate constitutional ineffectiveness under the familiar

Strickland v. Washington standard, Lacy must show deficient

performance and resulting prejudice. 466 U.S. 688 (1984). "The

benchmark for judging any claim of ineffectiveness must be whether

counsel's conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on has having

produced a just result." 466 U.S. at 686. Lacy must overcome the

"strong presumption" that his lawyers acted "within the wide range

of professional assistance." 466 U.S. at 689. To satisfy the prejudice

element, he must demonstrate "a reasonable probability that, but for

counsel's professional errors, the result of the proceeding would have

been different." 466 U.S. at 694.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 20 of 84

Pretrial. Lacy argues his trial lawyers' pretrial performance fell

short of constitutionally adequate representation. Based on media

reports of his confession and the jury panel's exposure, Lacy says his

lawyers should have worked harder to move his trial out of Benton

County. He says they should have discovered that one of Walker's

children opposed seeking the death penalty, and then used that

information to spur plea negotiations. And he says they should have

discovered the prosecutor's contribution during the year before his

capital murder trial to the trial judge's election campaign, and then

sought the trial judge's recusal based on an appearance of bias.

These three ineffectiveness claims are procedurally defaulted.

Section 2254(e)(2) bars consideration of the new evidence relied on by

Lacy. Shinn, 142 S. Ct. 1718. Based on the existing record, procedural

default is not excused. Lacy hasn't shown a substantial

ineffectiveness claim under the Martinez -Trevino equitable exception.

He hasn't demonstrated these ineffectiveness claims have "some

merit." Martinez, 566 U.S. at 14. Whether the trial lawyers' work was

constitutionally effective would not be debated among reasonable

jurists. Dorsey v. Vandergriff, 30 F.4th 752, 757-58 (8th Cir. 2022).

Claims 7, 8, and 10 are denied.

Voir Dire. Lacy also challenges his trial lawyers' voir dire work.

He says that they should have posed more questions to potential

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 21 of 84

jurors, objected to the prosecutor's remarks, and made different jury -

selection decisions. Claim 24 is procedurally defaulted.

Lacy says his trial lawyers were remiss in not pressing harder for

individual, sequestered voir dire. He says they should have done more

to uncover if potential jurors understood the importance of mitigation

evidence. There's no indication, however, that a different voir dire

procedure or more probing questions would have changed the jury's

composition. Lacy argues constitutional standards required his

lawyers to object to the prosecutor's statements -jurors should expect

to hear from a psychologist or psychiatrist. He says that, because his

lawyers didn't call a mental-health expert during the guilt phase, the

statements created a false expectation and impermissibly shifted the

burden of proof. His trial lawyers' decision not to object, however,

was "within the wide range of reasonable professional assistance."

Strickland, 466 U.S. at 689. Lacy also contends his trial lawyers used

peremptory strikes on favorable jurors. But their decisions don't fall

outside the "wide range" either. Ibid. Lacy hasn't demonstrated his

lawyers' jury-selection strategy was unreasonable under Strickland.

Lacy contends his trial lawyers committed constitutional error

when they didn't seek Juror Afton Gildehaus's removal for cause, or

use a peremptory strike, based on her death penalty views. He says

better questions would have further revealed her bias. Gildehaus

stated during voir dire that she was "for" the death penalty, "if there's

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 22 of 84

evidence to support that [the murder] was premeditated, out of anger

or violence or another crime being committed." Trial Record 1151.

According to Lacy, Gildehaus has signed an affidavit stating that she

voted for the death penalty because Walker's murder was

premeditated. The affidavit is beyond this Court's review. 28 U.S.C.

§ 2254(e) (2); Shinn, 142 S. Ct. 1718. Gildehaus, moreover, stated

during voir dire that she could "keep an open mind" and "take into

account" intoxication at the time of the crime as a potentially

mitigating circumstance. Trial Record 1153-55, 1172-73. On this

record, Lacy hasn't shown Gildehaus's "views would prevent or

substantially impair the performance of [her] duties" based on the

jury instructions and oath. Wainwright v. Witt, 469 U.S. 412, 424 (1985)

(quotations omitted). Lacy hasn't demonstrated his lawyers failed

him in not seeking her removal. Williams v. Norris, 612 F.3d 941, 954-

55 (8th Cir. 2010). Voir dire on this point wasn't constitutionally

deficient.

Lacy also argues his trial lawyers' work was inadequate when

they didn't seek to remove for cause Kimberly Hutcheson or Mary

Chestnut. Lacy's lawyers used a peremptory strike on Hutcheson.

Juror Chestnut heard another potential juror, who was familiar with

the Lacy family, state that Lacy wasn't a good parent. But Chestnut

said nothing would prevent her from being fair and impartial. Lacy

hasn't shown his trial lawyers' jury strategy amounted to deficient

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 23 of 84

performance or resulted in Strickland prejudice. He hasn't

demonstrated that Chestnut was biased against him or that seating

her deprived him of a fair trial. Ibid.

Lacy next argues his lawyers should have tried to rehabilitate

Audra Steele before she was removed for cause. Steele had qualms

about imposing the death penalty, and she became visibly upset when

talking about Lacy's children. The trial lawyers' work here wasn't

constitutionally deficient. They made a reasonable strategic decision

that "there was no point in attempting to rehabilitate" Steele. Foster v.

Delo, 39 F.3d 873, 878 (8th Cir. 1994).

None of Lacy's ineffectiveness claims are substantial under a

Martinez -Trevino analysis. Reasonable jurists would not debate his

trial lawyers' constitutional effectiveness during voir dire. Dorsey, 30

F.4th at 756-57. Procedural default is not excused. Claim 24 is

denied.

Evidence Suppression. The jury heard audio recordings of

Lacy's three interviews in which he confessed to killing Walker. Lacy

argues his trial lawyers comrriitted constitutional error when they

didn't try to suppress these statements. He says the statements

weren't voluntary because he was sleep deprived and suffering from

alcohol withdrawal. He says he was vulnerable to suggestive

questioning and confused about his Miranda rights. During his first

interview, Lacy refused to identify Laswell until investigators

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 24 of 84

searched his cell-phone data and discovered Laswell's name. Lacy

contends his trial lawyers were remiss for not seeking to suppress the

fruits of the cell phone search. Claims 5 and 6 are procedurally

defaulted.

After responding to Lacy's 911 call, Rogers police officers

arrested Lacy for public intoxication and transported him to the police

department. They contacted Greg Hines, the Benton County Sheriffs'

Department lead investigator in the unsolved Walker case. Shortly

after 7 p.m., Lacy was transported to the Benton County jail. Because

Lacy was still intoxicated, Investigator Hines did not interview him

until the next morning at 9 a.m.

Before the interview, Lacy was advised of his rights; he

completed and signed a Miranda form. Lacy admitted hitting Walker

in the head with the fireplace poker and forcing him to open his safe.

He stated that he started the fire in Walker's bedroom. Lacy refused

to identify Laswell. He said his "friend" hit Walker with a weight bar.

Trial Record 3523 (Audio Recording) & 3544-45. During the

interview, Investigator Hines learned Lacy's cell phone was seized

incident to his arrest. There was a short break in the interview while

investigators searched Lacy's recent calls. They found Laswell's

name. When the interview resumed, Lacy admitted Laswell was the

"friend." He said that, after killing Walker, they washed off his blood

in Beaver Lake's Monte Ne area.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 25 of 84

Investigator Hines interviewed Lacy again at 8:46 p.m. By this

time, officers had arrested and interviewed Laswell. Hines's

questions of Lacy were prompted by information learned from

Laswell. Investigators had taken Laswell to the Monte Ne area.

Laswell had indicated where he and Lacy threw the fireplace set into

the water; he showed the investigators where they burned the knife,

Walker's wallet, and their clothes. Investigators were still looking for

the .22 caliber pistol. Lacy stated that he hid the pistol in his cousin's

closet. He identified his cousin as Zach Fender. When prompted by

Investigator Hines, Lacy admitted stabbing Walker with the fireplace

poker and using a kitchen knife to cut his throat. He asked about

being moved from the holding cell because he hadn't been given a

blanket and didn't have access to a bathroom.

Lacy gave a third statement the next day to Sergeant Dennis

Schumacher. He said that he remembered his rights read to him by

Investigator Hines. Lacy admitted struggling with Walker for control

of the .22 caliber pistol. He said that, after Laswell struck Walker with

the weight bar, he stabbed Walker and cut his throat "to make sure he

was dead." Trial Record 3616 (Audio Recording), 3623, 3625. Like

Laswell the day before, Lacy identified the Beaver Lake location

where they threw the fireplace set into the water; and he pointed out

where they burned the other evidence.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 26 of 84

The record is clear that Lacy understood his rights and wasn't

coerced. His waiver was knowing and intelligent; this record shows

he understood his rights and the consequences of abandoning them.

Moran v. Burbine, 475 U.S. 412, 421 (1986). Both the waiver and

statements were voluntary. During the first interview, Lacy stated

that he was "in. . . a major blur," Trial Record 3523 (Audio Recording)

& 3535, and "shaky from drinking," Trial Record 3523 (Audio

Recording) & 3531. He said that he was an alcoholic and had been

drinking for several days. The interrogation circumstances, however,

don't show Lacy's "will [was] overborne" or "his capacity for

self-determination critically impaired." Culombe v. Connecticut, 367

U.S. 568, 602 (1961). Lacy hasn't pointed to any "coercive police

activity." Colorado v. Connelly, 479 U.S. 157, 167 (1986). There's not a

reasonable probability that the trial court would have granted a

motion to suppress Lacy's statements. Strickland, 466 U.S. at 694. His

trial lawyers' work wasn't constitutionally deficient, and Lacy hasn't

shown actual prejudice. 466 U.S. at 687.

The trial lawyers' decision not to seek suppression based on the

cell phone search wasn't constitutional error either. Lacy relies on the

United States Supreme Court's holding in Riley v. California that,

absent exceptions, police may not conduct a warrantless search

incident to arrest of digital information on a cell phone. 573 U.S. 373

(2014). He contends that, even though the Supreme Court decided

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 27 of 84

Riley five years after his 2009 jury trial, the decision was an application

of existing law. He says the cell phone search issue was already in the

air by 2009. But, at the time of Lacy's trial, cell phone searches

incident to arrest were permitted in Arkansas. Johnson v. State, 2015

Ark. 387, *5 n.2, 472 S.W.3d 486, 489 n.2. The lack of controlling

precedent at the time of Lacy's trial is fatal to his argument. Basham v.

United States, 811 F.3d 1026, 1029 (8th Cir. 2016). Lacy's trial lawyers

can't be expected to "anticipate a rule of law that has yet to be

articulated by the governing courts." 811 F.3d at 1029 (quotations

omitted and emphasis original). Their decision not to seek

suppression of evidence stemming from the cell phone search was

professionally reasonable.

Applying Martinez -Trevino, procedural default of these claims

isn't excused. On this record, neither has "some merit." Martinez, 566

U.S. at 14. Claims 5 and 6 are denied.

Forensic Evidence. Dr. Frank Peretti, the State Crime Lab

forensic pathologist, performed Walker's autopsy. He testified during

the guilt phase about Walker's cause of death. Lacy argues his trial

lawyers should have retained an independent pathologist to review

the autopsy report and challenge Dr. Peretti's analysis. He says they

should have objected to Dr. Peretti's testimony about the timing of

Walker's death. Lacy also contends his lawyers' cross-examination of

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 28 of 84

the State Crime Lab DNA examiner was constitutionally deficient.

This is procedurally defaulted Claim 2.

Because of the intervening Labor Day holiday, Dr. Peretti

performed an autopsy on Walker's body four days after it was

discovered. He testified Walker had several forehead lacerations and

"massive fracturing of the entire skull." Trial Record 2570. While Dr.

Peretti detected hemorrhaging, he was unable to discover more about

the brain injury because Walker's body was charred and

decomposing. He testified Walker also sustained four upper-chest

stab wounds that pierced his lungs and caused internal bleeding. He

said that, while the autopsy showed Walker was alive when he was

stabbed, the wound pattern indicated that he wasn't struggling. He

said Walker also was alive when he suffered a cutting wound across

his neck. Walker's neck was cut down to his spine and involved the

right carotid artery and jugular vein. Dr. Peretti found no defensive

wounds.

Dr. Peretti testified that each set of blows blunt-force head

trauma, chest stab wounds, and cutting neck wound -

combined to

cause Walker's death. He also said each could have independently

caused death. He testified the odds were "really low" that Walker

remained conscious after the blows to his skull. Trial Record 2585-86.

A contested point during the guilt phase was if Walker was still

alive when Lacy set the fire. Dr. Peretti's "preliminary finding" was

a'.'

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 29 of 84

that Walker was "dead at the time of the fire." Trial Record 20, 27.

His initial finding, however, was without the benefit of toxicology test

results. The test results included the carbon monoxide level in

Walker's blood (carboxyhemoglobin) at the time of his death. Dr.

Peretti included the test results in his autopsy report and considered

them in analyzing whether Walker inhaled smoke from the fire.

Dr. Peretti determined that Walker didn't have observable soot

in his air passages, but that his carboxyhemoglobin level indicated

that he was "alive during the fire." Trial Record 3673. Dr. Peretti

testified Walker's clear air passages, combined with a fifteen percent

carboxyhemoglobin level, led him to the conclusion that Walker was a

smoker. He explained that a heavy smoker can have an elevated

carboxyhemoglobin level of ten percent. He said that, as he was

dying, Walker may have "just taken in a.. deep breath.. of a little

. .

smoke and Go" to account for the remaining five percent. Trial

Record 2548. He testified Walker "was alive probably and/or in the

process of dying" when the fire started. Trial Record 2549. Dr. Peretti

assumed regular smoking cannot account for a carboxyhemoglobin

level as high as fifteen percent. On cross-examination, Harper

showed Dr. Peretti a professional journal article referring to smokers

having up to a fifteen percent carboxyhemoglobin level. Dr. Peretti

acknowledged the article but did not change his opinion.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 30 of 84

Mary Simonson, the State Crime Lab forensic DNA examiner,

also testified. She said DNA extracted from Walker's blood sample

was consistent with blood samples from Walker's trailer and tennis

shoe, Lacy's tennis shoe, Laswell's tennis shoe, the weight bar, and a

rag. Simonson also tested the DNA of skin cells left on the rag to

determine if someone other than Walker transferred skin cells while

wiping their hands. She testified that, while Walker's DNA was the

main component of the transferred skin cells, there was DNA from

more than one person.

The forensic testimony was part of guilt phase closing

arguments. The prosecutor argued Lacy was thinking clearly and not

incapacitated by alcohol when he killed Walker. He pointed to Lacy's

actions during and after the murder, including wiping Walker's blood

with the rag. Trial Record 2884. He told the jury that Walker was

"alive when he began to burn." Trial Record 2891. Lacy's lawyer,

Pirani, challenged Dr. Peretti's analysis involving Walker's

carboxyhemoglobin level. He argued that, based on Dr. Peretti's

testimony, it was possible, but not likely, that Walker was alive when

Lacy set the fire. He referred to Walker's smoking. He reminded the

jury that Dr. Peretti became "exasperated" and "distressed" when

faced with a journal article refuting his assumption about

carboxyhemoglobin levels and smokers. Trial Record 2927.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 31 of 84

Lacy argues an independent pathologist would have

emphasized that Laswell inflicted the primary blows causing Walker's

death, while he stabbed Walker and cut his throat only after death

was inevitable. He says an independent pathologist would have

testified that Dr. Peretti's conclusions were compromised due to

Walker's decomposed body. Lacy contends that, after hearing this

kind of testimony, there's a reasonable probability the jury would

have found him guilty of first-degree murder. Lacy also argues that

his trial lawyers should have worked harder to challenge Dr. Peretti's

testimony that Walker was still alive when he set the fire. He says

they should have presented evidence that Walker was a heavy

cigarette smoker and also smoked marijuana. He says an independent

pathologist would have attacked Dr. Peretti's assumption that a heavy

smoker's carboxyhemoglobin level can reach only ten percent. Lacy

contends that, absent these errors, he would have avoided the death

penalty because the jury wouldn't have found the cruelty aggravator.

The trial lawyers' decision not to retain an independent expert or

present more evidence was professionally reasonable. Cross-

examination was constitutionally adequate. Pirani challenged Dr.

Peretti's carboxyhemoglobin analysis during closing argument. Lacy

hasn't shown his trial lawyers were "not functioning as the counsel

guaranteed.. by the Sixth Amendment." Strickland, 466 U.S. at 687.

There isn't a reasonable probability, moreover, that the additional

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 32 of 84

steps urged by Lacy would have made a difference at guilt or

sentencing. 466 U.S. at 694. Dr. Peretti acknowledged that his

conclusions were incomplete because Walker's body was burned. He

determined Walker was a smoker. He said that each set of blows

could have independently caused death, and that Walker was

probably unconscious after suffering the head trauma.

Lacy also argues his trial lawyers should have raised a

Confrontation Clause objection to Dr. Peretti's testimony of Walker's

carboxyhemoglobin level. The Confrontation Clause prohibits

admission of "testimonial statements" from a witness not at trial,

unless the witness is unavailable and the defendant had an earlier

opportunity for cross-examination. Crawford v. Washington, 541 U.S.

36, 59 (2004). Lacy contends the lab results were admissible only with

the forensic toxicologist's testimony.

Under controlling precedent at the time of Lacy's trial, the

Confrontation Clause was not violated when an expert testifies about

independent conclusions from another scientist's test results. United

States v. Richardson, 537 F.3d 951, 960 (8th Cir. 2008). The toxicology

test results aren't testimonial. Ibid. Dr. Peretti was permitted to

"analyze data" and make "independent conclusions" based on

Walker's carboxyhemoglobin level at the time of his death. Ibid.

Lacy's trial lawyers weren't required to make a meritless objection.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 33 of 84

Lacy next argues that a more thorough cross-examination of

Simonson, the forensic DNA examiner from the State Crime Lab,

would have challenged the prosecution's theory that Lacy was the

primary assailant. He contends his trial lawyers' work was

constitutionally deficient when they didn't cross-examine her about

the skin cells found on the rag. Lacy says his lawyers should have

elicited from Simonson that, if DNA samples from him and Laswell

had been made available, test results may have excluded him as a

handler of the rag. Lacy, however, hasn't shown a reasonable

probability that a more rigorous cross-examination of Simonson

would have made a difference in sentencing.

Under a Martinez -Trevino analysis, none of Lacy's ineffectiveness

arguments related to forensic evidence are substantial. Reasonable

jurists would not debate whether the Strickland standard was satisfied.

Dorsey, 30 F.4th at 756-57. Procedural default is not excused. Claim 2

is denied.

Criminal Responsibility. Lacy contends his trial lawyers

missed the argument that, due to a mental disease or defect, he wasn't

criminally responsible for killing Walker, or, alternatively, he lacked

the capacity to form the mens rea for capital murder. He says that,

because his lawyers knew about his head injuries and substance

abuse, more investigation was required. He contends that, if his

lawyers had presented this evidence, there's a reasonable probability

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 34 of 84

that he wouldn't have been found guilty of capital murder. This is

Claim 11.

Lacy similarly argued in state court that his trial lawyers failed

to present the affirmative defense of mental disease or defect. The

Arkansas Supreme Court held the trial lawyers' work wasn't

constitutionally deficient for three reasons: (1) "Harper conducted a

thorough investigation into Lacy's cognitive abilities and at least three

psychologists failed to diagnose him with a mental disease or defect";

(2) only one doctor found Lacy had a mental disease or defect, and the

circuit court gave more weight to the criticism of his methodology;

and (3) no expert testified that Lacy was incompetent or couldn't

remember the murder. Lacy II, 2016 Ark. 38, *7_8, 480 S.W.3d at

860-61. The Supreme Court didn't reach the issue of Strickland

prejudice. Lacy says his state court claim has been fundamentally

altered by his new argument related to the effects of fetal alcohol

exposure. But he hasn't developed any argument challenging his

lawyer's guilt phase effectiveness based on undiscovered maternal

drinking. This claim is exhausted, so habeas review is under 28 U.S.C.

§ 2254(d) deference. This Court may consider only the facts before the

state court. Cullen v. Pinhoister, 563 U.S. 170, 182 (2011).

The Arkansas Supreme Court's decision was not contrary to, or

an unreasonable application of, clearly established federal law; nor

was it an unreasonable determination of the facts. 28 U.S.C. § 2254(d).

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 35 of 84

The Supreme Court's Strickland analysis was proper. Review of the

trial lawyers' work is "highly deferential" and "every effort [must] be

made to eliminate the distorting effects of hindsight." 466 U.S. at 689.

"[S]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation." 466 U.S. at 691.

The Supreme Court wasn't unreasonable in holding Lacy failed

to satisfy the Strickland performance element. Harper testified at the

Rule 37 hearing. He admitted there were signs pointing to possible

brain damage. Lacy reported head injuries. He twice attempted

suicide. He started drinking alcohol when he was eleven years old

and huffing chemical fumes when he was fifteen years old. Lacy had

shown symptoms of alcohol-induced amnesia, affecting his memory

of events (including the Walker murder) occurring while he was

under the influence. He had participated in a substance abuse

program. He suffered from depression and alcohol dependence.

Two years before killing Walker, Lacy twice attempted suicide

and was admitted to Vista Heath, a psychiatric hospital. Some of

Harper's information came from the Vista Health evaluation report

prepared by Dr. Donnie Holden, a psychiatrist. Dr. Holden

diagnosed Lacy with depressive disorder, not otherwise specified;

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 36 of 84

alcohol dependence; and alcohol amnestic disorder. Other

information came from Lacy and his family. But there were stumbling

blocks to the trial lawyers' investigation. Harper ruled out Lacy's

mother, step -father, and grandparents as "reliable sources" for "an

adaptive skills assessment." Rule 37 Record (CR 15-171) 86.

The trial lawyers nonetheless acted on their suspicions and

consulted with mental health experts about Lacy's brain functioning.

Their first step was requesting a competency evaluation. The court -

appointed expert, Dr. Robin Ross, a forensic psychiatrist, made three

findings: (1) Lacy had the capacity to assist in his own defense;

(2) Lacy did not have a mental disease or defect; and (3) Lacy didn't

lack the capacity to appreciate the criminality of his conduct, or

conform his conduct to the requirements of the law. Dr. Ross

diagnosed Lacy with alcohol dependence; depressive disorder, not

otherwise specified; a history of cannabis and methamphetamine

dependence, and hallucinogen abuse.

The trial lawyers next consulted with Dr. Curtis Grundy, a

forensic psychologist, about Lacy's "blacking out, his mental status,

mental state, [and] intelligence." Rule 37 Record (CR15 -171) 956. Dr.

Grundy conducted a clinical interview and mental-status assessment,

and he gave Lacy a battery of psychological tests. He made

behavioral observations and interviewed Lacy's family members. He

reviewed Lacy's school and medical records, and Dr. Ross's report.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 37 of 84

Dr. Grundy orally reported the psychological test results and his

findings to Lacy's lawyers. There was "ongoing communication"

between them. Rule 37 Record (CR15-171) 1271.

Looking for a more conclusive opinion on possible

neuropsychological deficits, the trial lawyers contacted a third

expert -

Dr. Robert Forrest, a neuropsychologist. They provided him

with extensive records and asked for an oral opinion. Harper

prepared a file memo summarizing Dr. Forrest's opinion:

Dr. Forrest called today regarding Brandon. He has looked

over the records we gave him and has talked to Dr. Grundy.

In his opinion, neuropsych testing is not necessary unless

our threshold for finding something wrong is very low or

[we] want to be absolutely sure nothing is wrong. Brandon

manages to function well socially and functions well when

he is sober. He did well on the memory testing that Grundy

gave. He doubts very seriously that neuropsych testing

would indicate anything significant. The testing would not

be "foolish" but not worth the time and money.

Cost/benefit issue would lead to small yield. No deficit

jumped out in any area. Brandon is not impaired in ability

to do a trial. As far as Alcohol Amnesia is concerned, it is

not uncommon to bring back memories with cues but some

of the memories won't come back at all.

Rule 37 Record (CR15 -171) 1421.

After receiving Dr. Forrest's oral report, the defense team met

with Dr. Grundy. They discussed Dr. Forrest's conclusion that there

was "no need" for more testing for "organic brain damage." Rule 37

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 38 of 84

Record (CR15-171) 89. They reviewed Lacy's test scores and

recognized he was "low functioning." Ibid. They noted Lacy had

"alcohol amnesia," and denied the version of events that he told

investigators. Ibid. The defense team considered the best way to tell

the jury about Lacy's substance abuse. They talked about Lacy's other

qualities: addictive personality, stunted emotional development, and

volatility. The defense team decided Dr. Grundy's testimony

wouldn't be helpful in the guilt phase. After considering Dr. Forrest's

opinion, the trial lawyers didn't request funding for

neuropsychological testing or pursue an affirmative defense based on

the lack of criminal responsibility.

Two months later, Dr. Grundy evaluated Lacy a second time and

determined he was competent to stand trial.4 In his written report,

Dr. Grundy diagnosed Lacy with major depressive disorder,

recurrent, moderate; alcohol dependence, in remission; and abuse of

multiple substances. He concluded Lacy's "expressed thoughts" were

"coherent, logical, and goal-directed." Trial Record 3464; Rule 37

Harper was concerned that, without specific memories of the

night that he and Laswell killed Walker, Lacy wasn't competent to

stand trial. In a written motion, Harper asked the trial court to

authorize "treatment to regain suppressed memory" at the State

Hospital. Trial Record 231. He also asked Dr. Grundy to prepare a

written evaluation report on Lacy's competency to stand trial. After

hearing Dr. Grundy's testimony and the parties' arguments, the trial

court denied Lacy's motion.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 39 of 84

Record (CR15 -171) 1552. He found Lacy was able to engage in

"rational decision-making." Rule 37 Record (CR15-171) 1556.

Three experts addressed Lacy's brain functioning at the Rule 37

hearing. Dr. Jeffrey Gould, a forensic psychiatrist, testified that, based

on an interview with Lacy and some collateral information, he did not

see signs of neurological deficits. But he said that, in California where

he practices, all capital murder defendants receive brain imaging and

neuropsychological testing. He would have recommended

neuropsychological testing. Dr. Gould diagnosed Lacy with

depressive disorder, not otherwise specified; alcohol dependence; and

cannabis dependence.

Dr. Barry Crown, a neuropsychologist, diagnosed Lacy with

cognitive disorder, not otherwise specified, finding that Lacy had

"significant neuropsychological impairment impacting multiple

functional areas." Rule 37 Record (CR15-171) 1117. He determined

Lacy had functional impairment in the areas of delayed memory,

reasoning, judgment, and language -based critical thinking. Dr.

Crown believed a significant portion of the damage occurred during

Lacy's childhood or early adolescence. He referred to possible

fetal-alcohol exposure.

Dr. Jack Randall Price, a neuropsychologist, criticized Dr.

Crown's methodology and challenged his diagnosis. He testified

there were no clinically significant findings that Lacy's brain function

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 40 of 84

was compromised. He said Dr. Crown's diagnosis meant only that

there is some documentation of a brain injury or illness with testing

showing mild neurocognitive problems. Dr. Price found no evidence

of brain trauma in Lacy's medical records. He testified that, while

Lacy's long history of alcohol abuse likely compromised his brain

functioning, Dr. Crown's testing didn't show significantly

compromised brain functioning in areas "most likely damaged or

impaired by a traumatic brain injury or by alcohol abuse." Rule 37

Record (CR15-171) 1339.

Based on this Court's review of the steps taken by Lacy's trial

lawyers, their choices were constitutionally adequate. Their decision

not to raise a mental disease or defect defense was informed by three

expert opinions. Their investigation, and their decision not to pursue

the affirmative defense, "fell within the wide range of reasonable

professional assistance." Strickland, 466 U.S. at 689. Under deference

review, Claim 11 is denied.

Other Guilt Phase Claims. Lacy makes other arguments that

his trial lawyers' work was constitutionally deficient during the guilt

phase. He says that, if his lawyers had made different decisions,

there's a reasonable probability that the jury would not have found

him guilty of capital murder, or sentenced him to death. These are

Claims 14, 15, 17, 19, and 20. All are procedurally defaulted.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 41 of 84

Lacy contends his trial lawyers failed to ensure a unanimous

jury found him guilty of capital murder. The prosecutor submitted

two theories of capital murder premeditated and deliberated

murder, and capital felony murder. The trial court instructed the jury

that all jurors must agree on the verdict. Because a general verdict

form was used, the jury was not required to specify if the guilty

verdict was based on general capital murder, capital felony murder,

or both.

Lacy says his trial lawyers should have requested a special

verdict form requiring the jury to designate the capital murder theory,

or an instruction that the capital murder theory must be unanimous.

He alternatively argues his lawyers should have made that argument

in closing. He says that, after the jury didn't find as an aggravating

circumstance that he committed the capital murder for pecuniary

gain, they should have moved for a new trial on the ground that the

guilty verdict was not unanimous. Lacy says that, if his trial lawyers

had made this effort, there's a reasonable probability that the jury

wouldn't have reached a unanimous verdict on either capital murder

theory. He argues the guilty verdict isn't reliable. The Arkansas

Supreme Court summarized the evidence supporting the jury's

verdict as to capital felony murder, finding "[s]ubstantial evidence

abounded." Lacy I, 2010 Ark. 388, *7_il, 377 S.W.3d at 233-35. The

related factual findings are presumed correct. 28 U.S.C. § 2254(e)(1).

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 42 of 84

Lacy hasn't shown Strickland prejudice. He has not demonstrated a

reasonable probability that, absent the alleged error, the jury wouldn't

have found him guilty of capital murder. Strickland, 466 U.S. at 694.

Lacy also argues his trial lawyers should have called Richard

Feast as a guilt phase witness. Feast, then an investigator for the

Benton County Sheriff's Department, collected the evidence from

Walker's trailer. Lacy says Feast would have testified that

investigators didn't secure Walker's trailer as a crime scene until after

he (Lacy) had confessed. He says Feast's testimony would have

convinced at least one juror that a death sentence wasn't warranted

due to the bungled crime-scene investigation. Lacy contends his trial

lawyers also should have argued Dr. Grundy was an appropriate guilt

phase witness based on his anticipated testimony of Lacy's unreliable

memory. Dr. Grundy believed Lacy had "amnesia surrounding

[Walker's murder] due to alcohol." Rule 37 Record (CR15 -171)

1260-61. He determined that, while Lacy had "some specific

memories about the event," some could have been "given" to him by

Laswell afterwards. Ibid. Lacy argues his trial lawyers failed to object

when a juror saw him in shackles outside the courtroom; or when,

from the jury room, the jury heard the clanging of his shackles and the

court security officer's call to "clear the hail." And Lacy contends his

trial lawyers failed to object when the prosecutor mischaracterized the

evidence in closing argument.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 43 of 84

The jury's purported exposure to Lacy's shackles isn't part of the

state court record. Expanding the record with the new evidence is

barred by § 2254(e)(2). Shinn, 142 S. Ct. 1718. None of the alleged

errors rise to the level of constitutional ineffectiveness. Other

witnesses provided the same story that Feast would have told; his

testimony wouldn't have made a difference at sentencing. There's not

a reasonable probability that, with Dr. Grundy's memory -related

testimony or more closing argument objections, the jury would have

reached a different verdict. Strickland, 466 U.S. at 694. Evidence of

Lacy's guilt was overwhelming. Under a Martinez -Trevino analysis,

Lacy's ineffectiveness claims aren't substantial. Procedural default is

not excused. Claims 14, 15, 17, 19, and 20 are denied.

Mitigation Evidence. Lacy argues his trial lawyers'

investigation and presentation of mitigation evidence was

constitutionally inadequate. He says that, if the jury had heard

evidence of his family history, childhood and marital circumstances,

susceptibility to alcohol and substance abuse, depression and anxiety,

or brain damage, at least one juror would have chosen a life sentence.

He also says that, if the jury had heard evidence that he was

remorseful or that he was less culpable than Laswell, or that Walker

was having an affair with his estranged wife, Melissa, there's a

reasonable probability that he would have received a life sentence.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 44 of 84

This is Claim 1. Lacy divides the claim into seven parts. Most are

procedurally defaulted.

In Claim 1-1, Lacy argues his trial lawyers failed to present

available mitigation evidence of his family history and unfortunate

childhood circumstances. He also contends his trial lawyers should

have presented evidence of his estranged wife's infidelity, and her

boyfriend's attacks on him. Lacy alternatively argues his trial lawyers

should have done more investigation.

Lacy similarly alleged in his Rule 37 petition that his trial

lawyers' work was constitutionally deficient for not calling as

witnesses the experts and family members who could have told his

life story. Five family members testified at the Rule 37 hearing. The

circuit court rejected Lacy's argument, finding his trial lawyers "made

a full investigation into [his] life and successfully used the information

available to them." Rule 37 Record (CR17-404) 33. Lacy's appellate

argument focused only on his trial lawyers' decision not to call Dr.

Grundy as a penalty phase witness. He said Dr. Grundy would have

testified about his depression diagnosis, "early exposure to substance

abuse," and alcoholism. Doc. 7-5 at 33.

The Arkansas Supreme Court denied relief, holding Lacy's trial

lawyers' decision not to call Dr. Grundy to testify was trial strategy.

Lacy IV, 2018 Ark. 174, *7_9, 545 S.W.3d at 751-52. The Supreme

Court also held Lacy's trial lawyers didn't commit constitutional error

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 45 of 84

in relying on his family's testimony. The Supreme Court held the

family members "spoke to Lacy's history of substance abuse as well as

his troubled upbringing." Ibid. The Court held the family witnesses

were adequately prepared; and the trial lawyers were more effective

than Rule 37 counsel in eliciting testimony from them about Lacy's

childhood. Ibid.

The habeas claim is procedurally defaulted. The new evidence

and argument "fundamentally alter" the argument considered by the

Arkansas Supreme Court. Vasquez v. Hillery, 474 U.S. 254, 260 (1986).

Review therefore is limited to the state court record, 28 U.S.C.

§ 2254(e)(2); Shinn, 142 S. Ct. 1718.

Whether Lacy raised the habeas argument in circuit court and

then abandoned it on appeal is a closer question. The outcome,

however, is the same, regardless of when the procedural default

occurred. Under either the Martinez -Trevino equitable exception for

attorney errors in the initial review proceeding, Franklin v. Hawley, 879

F.3d 307, 313 (8th Cir. 2018), or a general cause and prejudice analysis,

procedural default isn't excused.

Five family members Kitty Barnhill (mother), Gary Lacy

(maternal uncle), John Fender (maternal uncle), Doug Barnhill (step-

father), and Jennifer Hubbard (cousin) testified in the penalty phase.

Their testimony largely focused on the family's alcohol and substance

abuse during Lacy's childhood. Kitty testified that she was an

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 46 of 84

unmarried teen mother, and that her parents had custody of Lacy

when he was a baby. She said her first husband, James Rollo, was an

alcoholic and verbally abusive. She testified they both used drugs.

She married her second husband, Barnhill, when Lacy was five years

old. She could not remember how many places they lived while Lacy

was in elementary school. She said that her parents were helpful, and

that Lacy sometimes stayed with them. Kitty admitted she and

Barnhill drank alcohol and used drugs at various times during Lacy's

childhood. She denied knowing Lacy drank alcohol in elementary

school. She said that she was a "good mother," Trial Record 3034, and

never missed a parent-teacher conference. She agreed that Barnhill

was Lacy's "father figure." Trial Record 3041. She said that Barnhill

was "stern" with Lacy, and that he "spanked" and "grounded" him.

Trial Record 3043, 3045.

Barnhill testified Lacy got drunk when he was around thirteen

years old. He said that he learned about the incident after it

happened, and that it was a one-time thing, as far as he knew. Gary

Lacy said that, once when Rollo brought Lacy to his grandparents'

home, Lacy had blue powder on his face and "acted like he was really

high as a kite." Trial Record 3051. Hubbard testified her father

physically abused Lacy when the families lived together. She said the

adults in the family smoked marijuana with the children present.

Fender recalled Lacy once stealing marijuana from his parents. He

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 47 of 84

testified that, beginning when Lacy was sixteen or seventeen years

old, the two regularly drank alcohol together. Fender said that they

also smoked marijuana, and that both had a methamphetamine

addiction at one time.

At least one juror found eleven mitigation circumstances related

to Lacy's childhood and substance abuse: (1) Lacy was born to an

unmarried teen mother and placed in the custody of the Department

of Human Services while a baby due to his mother leaving him with

strangers; (2) Lacy was a witness to physical abuse; (3) Lacy was a

victim of psychological abuse; (4) Lacy was a victim of physical

abuse; (5) Lacy was a witness to verbal abuse; (6) Lacy's mother and

step -father had substance abuse problems; (7) Lacy was supplied

alcohol by an uncle, John Fender, while still in junior high school;

(8) during his teen years, it was not uncommon for Lacy to drink

alcohol with his uncle all weekend; (9) in his early twenties, Lacy

began using methamphetamine; (10) Lacy had attempted suicide at

least once; and (11) Lacy was cared for primarily by his uncle, Gary

Lacy, and his grandparents.

At the Rule 37 hearing, Lacy attempted to elicit from five

witnesses more details of his difficult childhood. Only Kitty had

testified at trial. Her Rule 37 testimony was that, between the ages of

fourteen and sixteen, Lacy began drinking alcohol in her presence.

She said that, at some point, Lacy began abusing alcohol and would

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 48 of 84

drink until he passed out. Rule 37 Record (CR15-171) 833, 850-51.

The other family witnesses were Lacy's ex-wife, Jamie Booher, and her

mother, Barbara White; Lacy's maternal aunt, Kathy Delafuente; and

Lacy's daughter, Brittany Lacy. They testified that Kitty neglected

Lacy, and that he often stayed with other family members or Booher's

family. Booher said Lacy began drinking alcohol and huffing in high

school. White testified she met Lacy when he was thirteen or fourteen

years old and living with his parents at a motel.

Harper testified about numerous meetings with family members

before trial. He decided not to call Booher as a trial witness because

she previously reported false information under oath. Lacy didn't

want his daughter to testify. Harper said the family was a "little

vague" about Lacy's childhood. Rule 37 Record (CR15-171) 1027-28.

Lacy's cousin, Hubbard, told Harper that the family wasn't being

truthful. Saxton testified the penalty phase witnesses were either not

prepped well or went "rogue." Rule 37 Record (CR15-171) 1186. He

said Kitty "got [him] the most" because "she didn't come through

with what we thought she was going to come through with." Ibid. He

remembered Harper had concerns about the information provided by

the family. He said the trial lawyers expected Kitty to confirm Lacy

began drinking alcohol when he was eleven.

The trial lawyers' efforts to present mitigation evidence related

to Lacy's life history were constitutionally adequate. Harper worked

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 49 of 84

hard to extract from Lacy's family the mitigation story that was

available. His investigation and penalty phase choices "fell within the

wide range of reasonable professional assistance." Strickland, 466 U.s.

at 689. Lacy's ineffectiveness claim doesn't have "some merit."

Martinez, 566 U.S. at 14. Procedural default isn't excused under the

Martinez -Trevino equitable exception. And Lacy fares no better under

a traditional cause and prejudice analysis. Claim 1-1 is denied.

In Claim 1-2, Lacy says he is predisposed to alcohol and

substance abuse due to the wide availability of methamphetamine, a

genetic predisposition to alcohol and substance abuse, depression and

anxiety disorders, in utero exposure to alcohol, childhood exposure to

alcohol and substance abuse, and family encouragement to drink

alcohol at a young age. He says that, if his trial lawyers had argued

that his alcoholism was "almost inevitable," there's a reasonable

probability that the jury would have voted for a life sentence. Doc. 16

at 44. In Claim 1-3, Lacy says that his trial lawyers were remiss in not

introducing medical records and expert testimony on his history of

anxiety and depression, and two suicide attempts. Both claims are

procedurally defaulted.

On this record, Lacy hasn't shown that either ineffectiveness

claim has "some merit." Martinez, 566 U.S. at 14. Reasonable jurists

would not debate the trial lawyers' constitutional effectiveness.

Dorsey, 30 F.4th at 756-57. There's not a reasonable probability that

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 50 of 84

this evidence and argument would have made a difference. Even if

the jury had heard more about the causes of Lacy's life-long addiction,

or medical evidence of his depression and attempted suicides, there's

not a reasonable probability that it would have opted for a life

sentence. Under a Martinez -Trevino analysis, procedural default is not

excused. Claims 1-2 and 1-3 are denied.

In Claim 1-4, Lacy argues his trial lawyers' work was

constitutionally deficient when they didn't investigate whether he

sustained organic brain damage due to in utero exposure to alcohol.

He says his lawyers failed to uncover the key piece of evidence -

maternal drinking, even though they were aware of Kitty's history of

alcohol and substance abuse. He says his lawyers should have

investigated whether he met the diagnostic criteria for Fetal Alcohol

Spectrum Disorder (FASD). This claim is procedurally defaulted. A

Martinez -Trevino analysis applies.

Harper wrote Dr. Grundy that he suspected maternal substance

abuse, but he said that Kitty was in "complete denial." Rule 37 Record

(CR15-171) 86. At the Rule 37 hearing, Dr. Crown testified

fetal-alcohol exposure was a possible cause of Lacy's cognitive

disorder. An FASD diagnosis, however, isn't part of the state court

record. And Lacy hasn't demonstrated that, with more effort from his

trial lawyers, Kitty or other witnesses would have admitted that she

drank alcohol during her pregnancy. On this record, Lacy hasn't

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 51 of 84

shown a substantial ineffectiveness claim. There are too many

missing pieces. Under a Martinez -Trevino analysis, procedural default

isn't excused. Claim 1-4 is denied.

In Claim 1-5, Lacy contends his trial lawyers should have

pursued neuropsychological testing and brain imaging. He says

testing would have uncovered multiple deficits; he says the imaging

would have shown significant brain damage. Lacy argues these

results would have reduced his moral culpability and explained why

he acted the way he did. At pages 33 through 40, this Court denied

Lacy's related guilt phase claim -that his lawyers were

constitutionally negligent for not pursuing an affirmative defense of

mental disease or defect, or alternatively arguing that he lacked the

capacity to commit capital murder. The background material in those

pages is relevant here. This penalty phase claim is exhausted. It is

reviewed with deference to the state court decision. 28 U.S.C.

§ 2254(d).

Lacy argued in state court that his trial lawyers failed to

investigate neuropsychological deficits and introduce test results as

mitigating evidence. The Arkansas Supreme Court determined

neither Dr. Ross's nor Dr. Grundy's report indicated Lacy had a

mental disease or neuropsychological defects. The Supreme Court

also concluded Dr. Forrest told Lacy's lawyers that he "did not believe

neuropsychological testing would be beneficial." Lacy IV, 2018 Ark.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 52 of 84

174, *7, 545 S.W.3d at 751. The Court held that, based on expert

opinions obtained by Lacy's trial lawyers and other record evidence,

the lawyers' investigation was constitutionally adequate:

Far from ignoring the issue of neuropsychological testing,

counsel explored it and was told by an independent expert

that it was not needed. This conclusion was repeated

during the Rule 37 proceeding by Dr. Price, who testified

that he saw no indication of brain damage and was highly

critical of the conclusions reached by Dr. Crown.

Ibid. The Supreme Court didn't address the Strickland prejudice

element.

The Arkansas Supreme Court's decision was not contrary to, or

an unreasonable application of, clearly established federal law; nor

was it an unreasonable determination of the facts. 28 U.S.C. § 2254(d).

Lacy argues the Supreme Court unreasonably applied Wiggins v.

Smith and failed to consider "whether the known evidence would lead

a reasonable attorney to investigate further." 539 U.S. 510, 527 (2003).

He says the Supreme Court didn't recognize that the trial lawyers'

duty to investigate was governed by prevailing professional norms

emphasizing the importance of neuropsychological testing. Lacy also

challenges Dr. Forrest's assessment, and the trial lawyers'

interpretation of his recommendation.

Lacy's arguments aren't convincing. The Arkansas Supreme

Court considered whether the trial lawyers' decision not to pursue

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 53 of 84

neuropsychological testing was "the result of reasonable professional

judgment." Lacy IV, 2018 Ark. 174, *3, 545 S.W.3d at 749. And the

Court considered the "information available to Lacy's trial lawyers."

2018 Ark. 174, *6_7, 545 S.W.3d at 750-51.

Harper testified at the Rule 37 hearing about his initial concerns

of a possible brain injury, the challenges the trial lawyers faced in

uncovering more evidence, and the expert opinions (particularly Dr.

Forrest's) that didn't support neuropsychological testing. Dr.

Forrest's assessment, moreover, was adequate to give an informed

opinion. He reviewed Lacy's medical records and evaluation reports,

Harper's notes about Lacy's family, and police interviews of Lacy and

his family. Dr. Forrest also talked with Dr. Grundy about Lacy's test

results. Dr. Forrest then informed Harper by telephone that he

"doubt{edj very seriously that neuropsych testing would indicate

anything significant." Rule 37 Record (CR15-171) 11421. Lacy's

lawyers also faced the risk recognized in Forrest v. Steele, 764 F.3d 848

(8th Cir. 2014). Because the prosecutor "might have acquired any

unfavorable results, . the consequences of negative results were

. .

potentially severe." 764 F.3d at 856.

Under deference review, the trial lawyers' investigation of

neuropsychological deficits was more than adequate. Their decision

not to pursue neuropsychological testing was professionally

reasonable. Lacy's lawyers didn't ignore evidence of possible brain

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 54 of 84

damage but, instead, pressed forward with their investigation until

this path ended. Claim 1-5 fails.

In Claims 1-6 and 1-8, Lacy argues his trial lawyers should have

presented more evidence that he was remorseful and given the jury an

explanation for the murder -Walker's purported relationship with

Lacy's ex-wife. Both claims are procedurally defaulted. Under a

Martinez -Trevino analysis, the default isn't excused. On this record,

neither ineffectiveness claim is substantial. Claims 1-6 and 1-8 are

denied.

In Claim 1-7, Lacy contends his lawyers' decision not to call

Rebecca Chaddock and Jeff Tillotson as penalty phase witnesses was

professionally unreasonable. He says their testimony would have

supported the defense theory that Laswell was more culpable in

Walker's murder. This claim is procedurally defaulted.

During the guilt phase, the prosecution moved to exclude

Chaddock from testifying. After Lacy proffered the testimony, the

trial court found it was inadmissible hearsay and granted the

prosecution's motion. During the penalty phase, Harper assumed

Chaddock's testimony would again be excluded and proffered her

testimony a second time. Lacy contends his trial lawyers should have

called Chaddock as a penalty phase witness based on less stringent

admissibility requirements for mitigation evidence.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 55 of 84

Chaddock and Lacy had been friends since high school; they

began exchanging letters after Lacy's arrest. Chaddock had never

talked to Laswell. Her proffered guilt phase testimony was that

Laswell began sending her kites (prohibited jail correspondence) "out

of the blue" when the two were in the Benton County Jail. Trial

Record 2793. She testified one or two of Laswell's kites described the

Walker murder. According to Chaddock, Laswell wrote her that,

during an argument between Walker and Lacy, Walker "pulled a

gun." Trial Record 2796-97. She said Laswell claimed to have

"reacted" and "beat [Walker] down." Ibid.

The Arkansas Supreme Court's related factual findings in -

reviewing the admissibility of Chaddock's guilt phase testimony are -

presumed correct. 28 U.S.C. § 2254(e)(1). Chaddock's proffered

testimony didn't address Lacy's participation in the murder. Her

story didn't contradict Lacy's confession that, after Laswell struck

Walker with the weight bar, he stabbed him with the fire poker and

cut his throat. Lacy I, 2010 Ark. 388, *15_16, 377 S.W.3d 277, 236-37.

And Lacy stated in his police interview and to his cousin, Fender, that

Laswell hit Walker with the weight bar. Ibid.

Lacy also argues he could have avoided the death sentence if the

jury had heard Tillotson's anticipated penalty phase testimony:

Laswell admitted killing Walker without implicating Lacy; and

Walker was the aggressor, pulling a gun on them that night. Early in

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 56 of 84

the investigation, Tillotson called the Benton County Sheriff's

Department and talked to Investigator Hines. Tillotson said Laswell

had admitted to him that he was involved in the Walker murder.

According to Investigator Hines, Tillotson was intoxicated and

recalled Laswell's name only after looking back at his newspaper. He

asked Hines to "take care of his warrants." Trial Record 2318.

Tillotson later talked to the defense investigator and the prosecutor.

He told different stories about a gun. Lacy's lawyers intended to

proffer Tillotson's testimony on the last day of the guilt phase, but

Tillotson was too drunk to appear in court. The Arkansas Supreme

Court, reviewing a potential Brady violation, made findings related to

Tillotson's anticipated testimony. Lacy I, 2010 Ark. 388, *26_27, 377

S.W.3d 227, 242-43. The Supreme Court held Lacy wasn't prejudiced

by the prosecutor's failure to timely turn over the recording of

Tillotson's telephone call to Investigator Hines. During the guilt

phase, Fender testified that Lacy told him about Walker pulling a gun.

Ibid.

This ineffectiveness claim isn't substantial. Reasonable jurists

would not debate whether the Strickland standard was satisfied.

Dorsey, 30 F.4th at 756-57. Lacy hasn't cleared the Strickland prejudice

hurdle. There's not a reasonable probability that either Chaddock's or

Tillotson's testimony would have resulted in a life sentence. Under a

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 57 of 84

Martinez -Trevino analysis, procedural default is not excused. Claim

1-7 is denied.

Other Penalty Phase Claims. Lacy argues his trial lawyers

made other missteps in the penalty phase, mostly related to the

avoid -arrest aggravator. Claim 22 is procedurally defaulted.

The trial court submitted to the jury three aggravating

circumstances: the murder was committed in an especially cruel and

depraved manner; the capital murder was committed for pecuniary

gain; and the capital murder was committed for the purpose of

avoiding or preventing an arrest. The jury found that the first and

third circumstances existed. Lacy contends his trial lawyers should

have made better arguments that there was insufficient evidence of

the avoid -arrest aggravator. He says Fender's guilt phase testimony

was the only evidence supporting the aggravator. Lacy also argues

his trial lawyers should have raised a due process violation

challenging the service of the prosecutor's subpoena on Fender as "an

exercise in raw authority." Doc. 16 at 119. And Lacy says his trial

lawyers should have done a better job cross-examining Fender.

Under Arkansas law, the prosecutor was authorized to serve a

subpoena on Fender for a witness interview. Ark. Code Ann.

§ 16-43-12(a). Fender was interviewed twice pursuant to the state

statute. During the guilt phase, the prosecutor questioned Fender

about his statement given under the challenged subpoena: Lacy told

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 58 of 84

Fender that he stabbed Walker because he and Laswell "knew they

were going to be in trouble either way." Trial Record 2115. The

prosecutor worked hard to get Fender to admit that he heard Lacy

make those statements. Lacy's lawyer, Barnica, did not object during

this part of direct examination or include this point in her

cross-examination. She didn't give Fender the opportunity to

distinguish between what Lacy told him and what he interpreted Lacy

to mean.

Barnica argued at the end of the guilt phase that there was

insufficient evidence of the avoid-arrest aggravator. The trial court

deferred a ruling. At the beginning of the penalty phase, Harper

summarily stated that there was insufficient evidence to submit the

avoid -arrest aggravator to the jury. Denying the motion, the trial

court found "a great deal of evidence" supported the aggravating

circumstances. Trial Record 2968.

Based on the circumstances of the capital murder and Lacy's

acquaintance with Walker, there's not a reasonable probability that

more argument, a due process challenge, or a better guilt phase

cross-examination of Fender would have changed the trial court's

decision on submitting the avoid -arrest aggravator or the jury's

finding that the aggravator existed. Lacy also says he could not have

stabbed Walker for the purpose of avoiding arrest because Walker

was already dying from Laswell's fatal blows. But Lacy wasn't certain

!1J

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 59 of 84

Laswell's blows were fatal. He admitted stabbing Walker and cutting

his throat "to make sure he was dead." Trial Record 3616 (Audio

Recording), 3623, 3625.

Lacy's remaining ineffectiveness arguments challenging his

lawyers' work also fall short. Different decisions about the

police -interview recording heard by the jury during the guilt phase

wouldn't have made a difference at sentencing. Other choices about

witnesses, more objections, a better closing, or an Allen charge request

would not have mattered either. None of these penalty phase

ineffectiveness claims have "some merit." Martinez, 566 U.S. at 14.

Because Lacy's ineffectiveness claims aren't substantial, procedural

default is not excused. Ibid. Claim 22 fails.

8. Trial Error Claims. Lacy contends several trial errors

resulted in a violation of his constitutional rights. These are Claims 3,

4, 9, 12, 13, 16, 18, 21, 25, 26, and 27. Most are intertwined with related

ineffectiveness of trial counsel claims. Lacy admits in his traverse that

Claim 13, a jury instruction challenge, is based on state law and

therefore outside habeas review. Doc. 16 at 101.

Lacy says that, due to the prosecutor's contribution to the trial

judge's election campaign, there was an impermissible appearance of

judicial bias. He says his trial was fundamentally unfair because his

clanging shackles were heard in the jury room, and a juror saw him

shackled outside the courtroom. He contends Juror Gildehaus wasn't

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 60 of 84

impartial, based on a sworn statement of her death penalty views. He

says his right to an impartial jury was also violated when the trial

court dismissed four jurors for cause; he argues their death penalty

qualms would not have impaired their performance. He contends the

trial court prevented adequate voir dire on mitigation evidence. He

says there was a Confrontation Clause violation when Dr. Peretti

testified about Walker's post-mortem lab results of his

carboxyhemoglobin level. And he says there was insufficient

evidence of the avoid -arrest aggravator.

These claims are procedurally defaulted. The new evidence is

barred from this Court's review. 28 U.S.C. § 2254(e)(2). And the

Court rejects Lacy's argument that the Martinez-Trevino equitable

exception extends to his judicial bias claim. Procedural default is not

excused. Claims 4, 9, 13, 18, 21, 25, 26, and 27 are denied.

Inconsistent Testimony. Lacy says there was a due process

violation because Dr. Peretti knew his testimony about the timing of

Walker's death -wasn't supported by scientific research. But there's

no support for Lacy's argument in the record. He also contends there

was constitutional error because Dr. Peretti gave a different opinion at

Laswell's trial. This is Claim 3.

Four months after Lacy's trial, Dr. Peretti testified at Laswell's

trial. His testimony on direct was that Walker's fifteen percent

carboxyhemoglobin level "could be a combination of his heavy

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 61 of 84

smoking and just taking a breath. . . as he's dying." Doc. 7-7 at 24-25.

On cross-examination, Dr. Peretti said Walker's elevated

carboxyhemoglobin level could be due to a "combination" of smoking

and "agonal breathing a tad." He added, "[T]here is no way for me to

truthfully tell you." Doc. 7-7 at 70. Lacy argues that Dr. Peretti's

testimony at his trial, outlined at pages 28 and 29, offered more

certainty that Walker was alive when the fire was burning.

Lacy didn't present this claim in state court. He contends the

claim isn't procedurally defaulted because it accrued after he filed his

Rule 37 petition, and the circuit court wouldn't allow amendments to

the petition. This Court's review of the Rule 37 record, outlined at

pages 13 through 15, doesn't support Lacy's argument. Lacy didn't

timely allege facts supporting an amended Rule 37 petition.

Lacy alternatively argues the habeas exhaustion requirement is

excused because the other state court remedy -the coram nobis

procedure -isn't part of the ordinary review process. Arkansas

courts, however, recognize a writ of error coram nobis as the remedy

for "certain fundamental errors extrinsic to the record." Isoin v. State,

2015 Ark. 225, *2, 462 S.W.3d 662, 663. The Arkansas Supreme Court

considers reinvesting jurisdiction in the circuit court to consider a

coram nobis petition if the petitioner exercised due diligence in seeking

relief. Wallace v. State, 2018 Ark. 164, *5_6, 545 S.W.3d 767, 771.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 62 of 84

Lacy acknowledges that Laswell's trial record was filed more

than ten years ago. But he first challenged Dr. Peretti's testimony in

his habeas petition. And he has yet to seek coram nobis relief in state

court. Because of this delay, the Arkansas Supreme Court would

decline to reinvest jurisdiction in the circuit court to consider Lacy's

coram nobis petition. Dansby v. Payne, 47 F.4th 647, 658 (8th Cir. 2022).

With no state remedies available, the claim is procedurally defaulted.

Lacy hasn't demonstrated any excuse for the default. Under an

alternative merits analysis, Lacy hasn't shown any error "fatally

infected the fairness of his trial, thereby depriving [him] of due

process." Harris v. Bowersox, 184 F.3d 744, 755-56 (8th Cir. 1999). Nor

has he shown any error had "substantial and injurious effect or

influence" on the verdict or sentence. Brecht, 507 U.S. at 623.

At Lacy's trial, Harper cross-examined Dr. Peretti about the

journal article contradicting his assumption related to smoking and

elevated carboxyhemoglobin levels. Dr. Peretti referred to the

"literature" at Laswell's trial, Doc. 7-7 at 24; and he was less certain of

the timing of Walker's death. But the prosecutor's theory Walker's

carboxyhemoglobin level indicated he was alive when Lacy set the

fire was the same at both trials. There wasn't an "inconsistency

. .

at the core of the prosecutor's case" against Lacy. Smith v. Groose, 205

F.3d 1045, 1052 (2000). Lacy's conviction wasn't "rendered

unreliable." Ibid. Claim 3 is denied.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 63 of 84

Testimony Exclusion. In Claim 16, Lacy argues the trial court

violated his due process right by excluding the guilt phase testimony

of Chaddock and Dr. Grundy, and Dr. Holden's psychiatric

evaluation report from Vista Health. He says that Chaddock's

testimony Laswell admitted that he "was the one that beat Walker

down" would have supported his defense theory that he was a

minor player in Walker's murder. Trial Record 2789. He contends Dr.

Grundy's memory-related testimony, described at page 42, and Dr.

Holden's alcohol anmestic disorder diagnosis would have rebutted

the prosecutor's argument that, during the police interviews, he

wasn't forthcoming about the crime. Lacy says this evidence also

would have supported an argument that his interview responses came

from information that Laswell told him, not his independent

memories.

Lacy similarly challenged the trial court's exclusion of this

evidence in the Arkansas Supreme Court. He argued the trial court

misapplied state evidentiary rules and unconstitutionally hampered

his defense. Lacy I, 2010 Ark. 388, *11_23, 377 S.W.3d at 235-40; Doc.

7-2 at 2-13, 70-80. The Arkansas Supreme Court held Chaddock's

testimony was impermissible hearsay, and Dr. Holden's report was

cumulative evidence of Lacy's alcohol abuse. 2010 Ark. 388, *15_16,

19-21, 377 S.W.3d at 236-37, 239-40. The Court determined Lacy's

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 64 of 84

argument about Dr. Grundy's testimony wasn't preserved for

appellate review. 2010 Ark. 388, *12_14, 377 S.W.3d at 235-36.

Lacy contends his habeas claim isn't exhausted because the state

court's decision rested only on state law grounds. But he hasn't

rebutted the presumption that the Arkansas Supreme Court

adjudicated his due process claim as -

to Chaddock's testimony and

Dr. Holden's report on the merits.

Johnson v. Williams, 568 U.S. 289,

300-01 (2013). The constitutional claim wasn't "rejected as a result of

sheer inadvertence." 568 U.S. at 302-03. The Supreme Court

recognized Lacy's constitutional challenges. But there was no basis

for finding a due process violation after the Court affirmed the trial

court's evidentiary rulings. The Court, moreover, independently

reviewed the entire record, as required by state rules, and found no

reversible error. Lacy I, 2010 Ark. 388, *31....32, 377 S.W.3d at 244-45.

The mandatory review "fortifies the presumption" that the state court

decided Lacy's due process claim on the merits. Dansby v. Hobbs, 766

F.3d 809, 832 (8th Cir. 2014).

The Arkansas Supreme Court's decision was not contrary to, or

an unreasonable application of, clearly established federal law. 28

U.S.C. § 2254(d). The constitutional right to present a defense is

violated when evidence rules "infringe upon a weighty interest of the

accused and are arbitrary or disproportionate to the purposes they are

designed to serve." Holmes v. South Carolina, 547 U.S. 319, 324-25

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 65 of 84

(2006) (quotations omitted). Evidence rules are arbitrary, as written or

applied, if they "excluded important defense evidence" but "did not

serve any legitimate interests." Ibid. Lacy argues the Arkansas

Supreme Court arbitrarily applied state court rules on hearsay and

cumulative evidence. He challenges the Supreme Court's holding that

Chaddock's hearsay testimony wasn't admissible under the

statement-against-interest exception to the hearsay rule, Ark. R. Evid.

804(b)(3). He says the Supreme Court overlooked his argument

supporting admission of Dr. Holden's report: Dr. Holden's alcohol -

amnesia diagnosis would have supported the defense theory that

Lacy wasn't withholding information during his interview. But

Lacy's constitutional right to present a defense wasn't impaired.

Hearsay and cumulative evidence rules are "well-established" and

"widely accepted." Holmes, 547 U.S. at 326-27. Neither Chaddock's

testimony nor Dr. Holden's report would have been significant

defense evidence. There was other evidence that Laswell struck the

initial fatal blow; Chaddock's testimony wouldn't have exculpated

Lacy. Lacy I, 2010 Ark. 388, *15_16, 377 S.W.3d at 236-37. Dr. Holden

diagnosed Lacy with alcohol amnesia two years before Walker's

murder. Without his testimony explaining the basis for his diagnosis

and its implications, the written report had limited evidentiary value.

Whether Lacy was forthcoming during his police interview,

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 66 of 84

moreover, had no bearing on the crux of the prosecution's case.

Under deference review, this part of Claim 16 is denied.

The Arkansas Supreme Court held that, because Lacy didn't

argue at trial that Dr. Grundy's memory-related testimony was

admissible, the issue wasn't preserved for appeal. Lacy I, 2010 Ark.

388, *12_14, 377 S.W.3d at 235-36. State court decisions aren't

reviewable when they are based on independent and adequate state

grounds. Coleman, 501 U.S. at 729-30. Lacy, however, contends that

Payne fails to raise a procedural default defense and therefore waives

it.

Merits review is the more efficient approach. There wasn't a due

process violation based on memory-related testimony. The trial court

found Dr. Grundy's testimony was impermissible voluntary

intoxication evidence. Lacy didn't revisit the issue. Because there was

no constitutional error, the remainder of Claim 16 is denied.

Sufficiency Of The Evidence. Lacy also contends there was

insufficient evidence to find him guilty of capital murder under either

submitted theory premeditated and deliberated murder or capital

felony murder. This is Claim 12.

Though a general verdict form was used, Lacy assumed in his

direct appeal that his capital murder conviction was based only on the

felony murder theory because the jury also found him guilty of

aggravated robbery. Doc. 7-2 at 31. He argued that the prosecutor

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 67 of 84

didn't prove beyond a reasonable doubt that he was guilty of capital

felony murder. Ibid.

Denying relief, the Arkansas Supreme Court held substantial

evidence supported the guilty verdict based on the capital felony

murder theory. Lacy I, 2010 Ark. 388, *10 fn.3, 377 S.W.3d at 234 fn.3.

The Supreme Court didn't consider whether sufficient evidence

supported premeditated and deliberated capital murder. Ibid. The

Court relied on Arkansas law that a general guilty verdict will be

affirmed if there is sufficient evidence to prove any submitted theory.

Ibid. The Supreme Court's denial of Lacy's sufficiency point under the

substantial evidence standard was an adjudication of his habeas due

process claim. Dansby, 766 F.3d at 817-18. Deference review under 28

U.S.C. § 2254(d) (1) therefore is appropriate.

The Arkansas Supreme Court's decision was not contrary to, or

an unreasonable application of, federal law. 28 U.S.C. § 2254(d)(1).

The Due Process Clause forbids a conviction when "no rational trier of

fact could have found proof of guilt beyond a reasonable doubt."

Jackson v. Virginia, 443 U.S. 307, 324 (1979). The Jackson standard

doesn't permit reweighing the evidence; inconsistencies must be

resolved in favor of the prosecution. 433 U.S. at 319. Under Arkansas

law, a person commits capital felony murder if, acting alone or with

another person, he commits or attempts to commit robbery, and in the

course of and in furtherance of the robbery or in immediate flight

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 68 of 84

therefrom, he or an accomplice causes the death of any person under

circumstances manifesting extreme indifference to the value of human

life. Ark. Code Ann. § 5-10-101(a). Applying the capital felony

murder definition, the Arkansas Supreme Court held substantial

evidence -based on Lacy's police interviews and Fender's

testimony -supported the jury's verdict that Lacy committed

aggravated robbery and capital felony murder:

[Lacy's] statementsall substantiate that the robbery

and murder took place very close in time. The evidence

presented by the State was that Lacy knew about the safe,

hit Walker over the head with the poker, and then forced

him to open the safe. Lacy also admitted that he expected

there to be money or something of value in the safe. This

was all ample circumstantial proof that Lacy intended to

commit a robbery. Moreover, the statements from Lacy's

cousin, Fender, that Lacy took the .22 caliber gun and some

money from Walker's house support the jury's conclusion

that a robbery did in fact occur. The fact that a robbery did

not occur until after Walker was dead is unimportant.

In sum, the evidence supports the conclusion that the

death of Walker occurred during a robbery under

circumstances manifesting extreme indifference to the

value of human life. The additional fact that Lacy set fire to

the trailer confirms that conclusion. Substantial evidence

abounded.

Lacy I, 2010 Ark. 388, *10_li, 377 S.W.3d at 234-35.

Lacy argues there was insufficient evidence that he intended to

conirrdt robbery. He also contends the murder couldn't have been in

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 69 of 84

the course of and in furtherance of a felony because he inflicted the

fatal blows after completing the failed robbery and left six dollars in

Walker's shorts pocket. Lacy says the jury's failure to unanimously

agree on the pecuniary-gain aggravator supports his arguments.

The Arkansas Supreme Court's analysis "was not an

unreasonable way for a state court to ensure that a rational trier of fact

could have found the requisite elements [of capital felony murderj

beyond a reasonable doubt." Dansby, 766 F.3d at 818. First, the

Supreme Court wasn't unreasonable in applying state court precedent

interpreting Arkansas's capital felony murder statute. Lacy I, 2010

Ark. 388, *10_li, 377 S.W.3d at 235 (citing Grigsby v. State, 260 Ark.

499, 509, 542 S.W.3d 275 (1976)). In Grigsby, the state court held that,

when considering the sufficiency of evidence supporting felony

murder, "[tjhe sequence of events is unimportant and the killing may

precede, coincide with or follow the robbery and still be committed in

its perpetration." 260 Ark. at 507-510, 542 S.W.2d at 280-82. Second,

the Court's conclusion that there was substantial evidence supporting

the elements of capital felony murder wasn't unreasonable. The jury

heard Lacy's recorded statement that he forced Walker to open his

bedroom safe because he mistakenly believed it held something of

value. And the jury heard evidence that Lacy took Walker's wallet

and .22 caliber pistol. The evidence more than satisfies the due

process standard.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 70 of 84

The parties spar over whether the remainder of Lacy's claim -

insufficient evidence to find that he committed premeditated and

deliberated murder is procedurally defaulted. While Lacy made this

sufficiency argument in his directed verdict motion at trial, he argued

on appeal only that there was insufficient evidence to support the

capital felony murder theory. Doc. 7-2 at 28-311. Lacy says that he

raised the point based on the heading in his appellate brief- "The

Trial Court Erred By Failing To Grant Lacy's Motions For Directed

Verdict." Ibid. Lacy's heading, however, didn't give the Arkansas

Supreme Court an opportunity to review the sufficiency argument

based on the capital felony murder theory. This part of Claim 12 is

procedurally defaulted, and Lacy hasn't shown any excuse for the

default. The argument also fails under an alternative merits theory.

Arkansas courts have recognized that "[pjremeditation and

deliberation may be formed in an instant." Marcyniuk v. State, 2010

Ark. 257, *9, 373 S.W.3d 243, 250. Based on the murder circumstances,

a rational trier of fact could have found beyond a reasonable doubt

that Lacy acted with premeditation and deliberation. Claim 12 is

denied.

9. Prosecutorial Misconduct Claims. Lacy next contends

there were several incidents of prosecutorial misconduct during the

trial. This is Claim 23.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 71 of 84

Lacy contends the prosecutor's subpoena of Fender for a second

interview was a due process violation. He says there wasn't a similar

procedure available to him, and the prosecutor didn't timely provide

this evidence to his lawyers. Lacy also argues the prosecutor's voir

dire comments created an expectation of a mental health defense

thereby impermissibly shifting the burden of proof. He says the

prosecutor's statements during guilt and penalty phase closings

deprived him of a fair trial. These sub-claims, Claim 23-1, 23-2, 23-4,

and 23-5, are procedurally defaulted. Lacy hasn't demonstrated any

excuse for his default. This part of Claim 23 is denied.

Evidence Suppression. In Claim 23-3, Lacy says the prosecutor

made false statements, or suppressed evidence, when challenging the

admissibility of Chaddock's testimony about Laswell's kite. The

prosecutor argued Chaddock's proffered testimony wasn't credible

partially due to the jail segregation of male and female inmates. Lacy

says the prosecutor knew or should have known that jail segregation

wouldn't have prevented Laswell from passing a kite to Chaddock;

he points to Laswell's undisclosed disciplinary report for passing a

kite to another female inmate.

Lacy didn't raise this sub -claim in state court. He urges de novo

review, again arguing the exhaustion requirement is excused because

there's no available state court remedy in the ordinary review process.

Lacy's argument fails, as outlined at page 61. The coram nobis

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 72 of 84

procedure isn't outside the state's ordinary review of

evidence -suppression claims. Isom, 2015 Ark. 225, *2, 462 S.W.3d at

663.

Lacy's alternative argument the prosecutor's failure to disclose

Laswell's jail records is cause to excuse procedural default -fares no

better. Lacy hasn't shown that the prosecutor knew, or should have

known, of Laswell's disciplinary report and "deliberately withheld it."

Evans v. Luebbers, 371 F.3d 438, 443-44 (8th Cir. 2004). Nor has Lacy

demonstrated procedural bar prejudice to excuse the default. He

hasn't shown Laswell's disciplinary report was material to his

conviction or sentence. Banks v. Dretke, 540 U.S. 668, 698-99 (2004). As

this Court found at page 55, Chaddock's cumulative testimony would

not have made a difference. Claim 23-3 is denied.

Lacy also urges de novo review of his sub -claim that the

prosecutor withheld, and continues to withhold, work-product and

victim-impact files. This is Claim 23-6. Lacy didn't raise the sub -

claim in state court. He says Payne has responded only to the claim's

merits and therefore has waived the procedural default defense. An

alternative merits analysis is the more efficient approach. The claim is

empty. Lacy makes no argument that the files contain evidence

material to his conviction or sentence. "Mere speculation is not

sufficient to sustain a Brady claim." United States v. Aleman, 548 F.3d

1158, 1164 (8th Cir. 2008) (quotations omitted). Claim 23-6 is denied.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 73 of 84

10. Ineffectiveness Of Appellate Counsel. Lacy argues that

his lawyer on direct appeal, Janice Vaughn, failed to raise several

meritorious points on appeal. The claim is procedurally defaulted,

and Lacy hasn't demonstrated any excuse for the default. Claim 28 is

denied.

11. Ineffectiveness Of Postconviction Counsel. Lacy

challenges his Rule 37 lawyers' work only to preserve the claim. Doc.

16 at 145. "There is no constitutional right to an attorney in state

post -conviction proceedings." Coleman, 501 U.S. at 752. Claim 29 is

denied.

12. Murder Statute Challenge. Lacy argues that his capital

murder conviction was arbitrary due to overlapping definitions of

first-degree murder, Ark. Code Ann. § 5-10-102, and capital murder,

Ark. Code Ann. § 5-10-101. This is Claim 31. The claim is

procedurally defaulted, and Lacy hasn't shown any excuse for the

default. The Eighth Circuit, moreover, rejected Lacy's argument in

Simpson v. Lockhart, 942 F.2d 493, 496-97 (8th Cir. 1991). Claim 31 is

denied.

13. Death Penalty Challenges. Lacy raises several

constitutional challenges to the Arkansas death penalty statute, Ark.

Code Ann. § 5-4-603, on its face and as applied. These are Claims 30,

32, and 33. All are procedurally defaulted.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 74 of 84

Lacy says cause exists to excuse the default because his legal

arguments challenging the death penalty are novel. He also says

Claims 30 and 32 rely on death penalty data originating after his trial.

Lacy's arguments, however, are not so novel that the "tools . . . to

construct" them weren't available when Lacy's case was in state court.

Frizzell v. Hopkins, 87 F.3d 1019, 1021 (8th Cir. 1996). Procedural

default is not excused.

Lacy's death penalty challenges, moreover, fail under an

alternative merits basis. Lacy says that the death penalty is imposed

more frequently in Benton County than in other Arkansas counties.

But he hasn't demonstrated a "constitutionally significant risk" that

the state's geography affects the application of the death penalty.

McCleskey v. Kemp, 481 U.S. 279, 308-13 (1987). Lacy next argues that

the death penalty is unconstitutional based on evolving standards of

decency. But there's no direct authority to support his argument, and

the United States Supreme Court reaffirmed the constitutionality of

the death penalty in Glossip v. Gross, 576 U.S. 863 (2015). There's also

no authority supporting Lacy's argument that he's ineligible for the

death penalty due to mental illness. Claims 30, 31, and 33 are denied.

14. Cumulative Error. Lacy's final argument is that his trial

lawyers' cumulative errors amounted to constitutional ineffectiveness.

This is Claim 34.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 75 of 84

Lacy made a similar argument during his Rule 37 proceedings.

The Arkansas Supreme Court rejected the claim, holding that it

doesn't recognize cumulative error in ineffectiveness allegations. Lacy

IV, 2018 Ark. 174, *9_b, 545 S.W.3d at 752. Lacy also asked the

Supreme Court to overrule state court precedent. The Court denied

his request, holding Lacy had not shown "injustice or great injury"

would result if precedent wasn't overruled. The Court noted that

Lacy had not shown attorney error in the penalty phase, "much less

that an accumulation of error should result in his receiving a new

sentencing hearing." Ibid.

The Arkansas Supreme Court's decision was not contrary to, or

an unreasonable application of, clearly established federal law. 28

U.S.C. § 2254(d). Under circuit precedent, habeas relief isn't available

based on "the cumulative effect of attorney errors." Shelton v. Mapes,

821 F.3d 941, 951 (8th Cir. 2016). Claim 34 is denied.

15. Actual Innocence. Lacy argues that his actual innocence is

a gateway to considering procedurally defaulted claims. He says that

he isn't criminally responsible for murdering Walker, and that he is

innocent of the death penalty. Lacy's arguments fall short of

demonstrating actual innocence. Procedural default is not excused.

Lacy says that, due to fetal-alcohol exposure effects and his

intoxicated state when he killed Walker, he didn't have the capacity to

commit capital murder. He also says that he wasn't able to form the

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 76 of 84

premeditation and deliberation required for the crime. Lacy, however,

doesn't rely on evidence that "was not available at trial and could not

have been discovered with due diligence." Kidd v. Norman, 651 F.3d

947, 951-54 (8th Cir. 2011). He hasn't demonstrated that, in light of

new evidence, "it is more likely than not that no reasonable juror

would have convicted him." Schiup v. Delo, 513 U.S. 298, 327 (1995).

Lacy also argues that the jury wouldn't have imposed the death

penalty if it had heard more mitigation evidence. And he says that he

was unable to form the intent necessary for the aggravators. Death

penalty eligibility, however, refers to the underlying guilty verdict

and death-qualifying aggravators. Wooten v. Norris, 578 F.3d 767,

781-82 (8th Cir. 2009). And Lacy hasn't shown "by clear and

convincing evidence that, but for a constitutional error, no reasonable

juror would have found [him] eligible for the death penalty." Sawyer

v. TA/hitley, 505 U.S. 333, 336 (1992).

* * *

For all the reasons stated, Lacy's habeas petition fails and will be

dismissed. Early on, the Court granted Payne's motion, Doc. 8, to file

portions of the state court record under seal, with the caveat that the

Court would revisit the sealing issue after reviewing the record. Doc.

9. The Court has now reviewed the record. There is no reason for

these parts of the record to be sealed, and the Court directs the Clerk

to unseal them. Doc. 10.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 77 of 84

So Ordered.

r/lUt.

D.P. Marshall Jr.

United States District Judge

pvo\_y

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 78 of 84

APPENDIX A

Claim 1. Trial lawyers were constitutionally ineffective in investigating

and presenting penalty phase evidence.

1-1. Failed to develop a theme of intergenerational

poverty, neglect, and trauma.

1-2. Failed to explain Lacy's susceptibility to drug and

alcohol addiction.

1-3. Failed to present available evidence of Lacy's

depression and anxiety disorders.

1-4. Failed to discover and present evidence of Fetal

Alcohol Syndrome.

1-5. Failed to discover and present evidence of brain

damage.

1-6. Failed to develop a remorse theme.

1-7. Failed to present evidence that Lacy was less

culpable than Laswell.

1-8. Failed to present evidence of Walker's relationship

with Lacy's ex-wife.

Claim 2. Trial lawyers' handling of forensic evidence was

constitutionally ineffective.

2-1. Failed to retain an independent pathologist to

challenge Dr. Peretti's analysis of Walker's wounds.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 79 of 84

2-2. Failed to retain an independent pathologist to refute

Dr. Peretti's opinion that Walker was alive when his

body was set on fire.

2-3. Failed to challenge testimony that Walker's

carboxyhemoglobin level was fifteen percent.

2-4. Failed to cross-examine Mary Simonson.

Claim 3. Dr. Peretti's inconsistent testimony violated Lacy's due

process right.

Claim 4. Testimony that Walker's carboxyhemoglobin level was

fifteen percent violated Lacy's Confrontation Clause

right.

Claim 5. Trial lawyers' failure to move for suppression of Lacy's

confessions was constitutionally ineffective.

Claim 6. Trial lawyers were constitutionally ineffective for failing

to seek suppression based on the search of Lacy's

cellphone.

Claim 7. Trial lawyers' failure to move for a venue change was

constitutionally ineffective.

Claim 8. Trial lawyers were constitutionally ineffective for failing

to explore a plea bargain for life imprisonment based on

the wishes of the Walker's family.

Claim 9. The trial judge was biased.

Claim 10. Trial lawyers were constitutionally ineffective for failing

to seek the trial judge's recusal.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 80 of 84

Claim 11. Trial lawyers were constitutionally ineffective for failing

to develop and present a mental -defect or lack-of -

capacity defense.

Claim 12. The prosecutor presented insufficient evidence of Lacy's

guilt.

Claim 13. The trial court failed to instruct the jury that the capital

murder theory must be unanimous.

Claim 14. Trial lawyers were constitutionally ineffective for failing

to ensure the unanimous capital murder theory

instruction.

Claim 15. Trial lawyers' failure to call Richard Feast as a witness

was constitutionally ineffective.

Claim 16. The trial court unconstitutionally limited guilt phase

evidence.

Claim 17. Trial lawyers' arguments for admission of Dr. Grundy's

testimony were constitutionally deficient.

Claim 18. Courtroom security measures violated Lacy's due

process right.

Claim 19. Trial lawyers' failure to challenge courtroom security

measures was constitutionally ineffective.

Claim 20. Trial lawyers failed to object to the prosecutor's

unconstitutional closing remarks in the guilt phase.

111

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 81 of 84

Claim 21. The prosecutor presented insufficient evidence of the

avoid -arrest aggravator.

Claim 22. Trial lawyers were constitutionally ineffective during the

penalty phase.

22-1. Failed to explain the basis of the directed verdict

motion.

22-2. Failed to challenge testimony on the avoid -arrest

aggravator.

22-3. Unreasonably permitted alteration of Lacy's

confessions.

22-4. Failed to insist on presentation of the video-taped

recording of Lacy's confession.

22-5. Unreasonably presented witness testimony about

Lacy's knowledge of fire science.

22-6. Failed to present evidence that Walker was not

disabled to the extent claimed by the prosecutor.

22-7. Failed to inform the jury that one juror could decide

to show mercy.

22-8. Failed to request an Allen charge.

22-9. Failed to object to prosecutorial misconduct during

closing.

22-10. Failed to object to the subpoena of Zach Fender.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 82 of 84

Claim 23. The prosecutor engaged in misconduct.

23-1. Subpoenaed Zach Fender.

23-2. Made voir dire statements shifting the burden to

Lacy.

23-3. Made false statements about Rebecca Chaddock.

23-4. Made unconstitutional statements during guilt

phase closing.

23-5. Made unconstitutional statements during penalty

phase closing.

23-6. Withheld material evidence.

Claim 24. Trial lawyers were constitutionally ineffective during voir

dire.

24-1. Failed to strike Juror Afton Gildehaus.

24-2. Failed to rehabilitate a qualified juror.

24-3. Unreasonably struck favorable jurors.

24-4. Failed to strike jurors for cause.

24-5. Failed to seek individual sequestered voir dire.

24-6. Failed to object to prosecutorial misconduct.

Claim 25. Gildehaus's presence on the jury was unconstitutional.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 83 of 84

Claim 26. The trial court's dismissal of jurors was unconstitutional.

Claim 27. Voir dire restrictions were unconstitutional.

Claim 28. Lacy's appellate lawyer was constitutionally ineffective.

28-1. Failed to appeal the sufficiency of the avoid-arrest

aggravator.

28-2. Failed to appeal the omission of the jury instruction

that the capital murder theory must be unanimous.

28-3. Failed to raise the prosecutor's voir dire misconduct.

28-4. Failed to raise the Witherspoon violations.

28-5. Failed to appeal the trial court's limitations on voir

dire.

28-6. Failed to raise the prosecutor's misconduct during

closing argument.

Claim 29. Lacy's post-conviction lawyer was constitutionally

ineffective.

Claim 30. Geographic disparity in the application of the death

penalty violates the Eighth Amendment.

Claim 31. Lacy's conviction and sentence violate due process

requirements because his conduct met the definition of

first-degree murder.

Claim 32. The death penalty is unconstitutional based on evolving

standards of decency.

Case 5:19-cv-00095-DPM Document 26 Filed 05/01/23 Page 84 of 84

Claim 33. Lacy is exempt from the death penalty due to mental illness,

developmental disability, and brain damage.

Claim 34. Cumulative error violates due process requirements.

vii

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.