Wayne Terrell Lee v. A.L. Lockhart, Director, Arkansas Department of Correction

ARNOLD, Circuit Judge.

Wayne Terrell Lee was convicted in 1979 in an Arkansas state court on three counts of second-degree forgery, one count of theft by receiving, and one count of criminal possession of a forgery device. Because Lee had been convicted of five previous felonies before the 1979 convictions, he was sentenced as a habitual offender. The jury gave him eighteen years on each of the five counts on which he had been convicted in the present trial, and the trial court ordered that these sentences run concurrently. On appeal, the Supreme Court of Arkansas affirmed the convictions for forgery and possession of a forgery device, but reversed the conviction for theft by receiving on grounds of insufficient evidence. Lee v. State, 270 Ark. 892, 609 S.W.2d 3 (1980). Lee then filed a post-conviction petition in the state courts, which was denied. Lee v. State, No. CR 80-97 (Ark. Jan. 11, 1982) (per curiam). Having exhausted his state remedies, he then brought this petition for habeas corpus in the United States District Court for the Eastern District of Arkansas. The court¹ dismissed the petition, and Lee appeals.

Lee first argues that he is being deprived of his liberty without due process of law because the Supreme Court of Arkansas should have sent his case back for resentencing, once the conviction on the charge of theft by receiving had been reversed, and that charge had been dismissed for lack of evidence. The conviction for theft by receiving involved a check in the amount of $11,687.50. The check was found in Lee’s apartment. It had not been negotiated. The checks forming the basis of the forgery counts were each for $158.66. Essentially, Lee’s argument is that the theft-by-receiving charge, because it potentially involved a larger amount of money, must have been regarded by the jury as more serious than the other four counts on which they convicted Lee, and that therefore the decision to impose an eighteen-year sentence on all five counts must have been influenced by the evidence relating to the count later overturned on appeal. In effect, Lee takes the position that, at least in the circumstances in this case, the state courts may not use a concurrent-sentence rule, under which a sentence appropriately imposed on four valid counts remains intact after the reversal of a concurrent sentence on a fifth count.

The Supreme Court of Arkansas answered this contention as follows:

The record indicates that petitioner was convicted of five separate charges as well as being found guilty of being an habitual offender with four or more prior felony convictions. He received five 18-year sentences on the five charges with the sentences to run concurrently. Since the sentences were to be served concurrently and are within the range provided by statute, his term of imprisonment was not lengthened by virtue of the conviction which this Court reversed and dismissed. Accordingly, he has not demonstrated prejudice which justifies postconviction relief.

Lee v. State, No. CR 80-97, slip op. at 2 (Ark. Jan. 11, 1982) (per curiam).

Certainly the state court might have chosen, as a matter of Arkansas law, to remand the case for resentencing. We decline to hold that the Due Process Clause of the Fourteenth Amendment requires that state courts employ such a procedure in every case. Here, the jury fixed eighteen years as the punishment on each of the five counts, and this sentence was within the limit fixed by statute for the crimes on which Lee’s convictions were affirmed. The Arkansas Supreme Court, after reviewing the record, was of the opinion that the conviction on the later-invalidated count did not affect the jury’s decision to fix Lee’s sentence on the other four counts at eighteen years. We cannot say that this conclusion lacks fair support in the record. The present proceeding has resulted in four valid convictions against Lee, and he had already been convicted of five felonies when the present charges were brought. In these circumstances, we are not persuaded that the evidence heard by the jury with respect to the later-reversed theft-by-receiving charge played a crucial role.

Lee also argues that certain evidence was introduced against him after an unlawful search and seizure. As the District Court held, this claim is barred by Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976). The state unquestionably provided an opportunity for full and fair litigation of his Fourth Amendment claim, and Lee does not contend otherwise. His only argument against the Stone bar is that his habeas petition in this case is not based solely on the Fourth Amendment, but also contains allegations of other constitutional violations. This argument is unavailing. Each claim of a constitutional deprivation asserted in a petition for federal habeas corpus must stand on its own, or, as here, fall on its own, and Lee’s Fourth Amendment claim must fall under Stone.

Finally, Lee argues that he was denied a fair and impartial jury because one of the jurors, Levenia Missouri, was the sister of Ed Missouri, who had been in Lee’s apartment, and whose name was mentioned at the trial. Ed Missouri had previously spent time in prison with Lee, and Lee now argues that the juror must have known this and must have considered the fact of Lee’s previous incarceration in reaching the verdict of guilty on the present charges. There are many insuperable difficulties with this argument. For one thing, the juror’s acquaintance with a former associate of Lee might well have inclined her in his favor. In fact, Lee’s petition for federal habeas corpus, paragraph 12(d), actually alleges that the juror and defendant “were lovers.” Whatever their relationship may have been, obviously Lee must have been well aware of it, and yet, at the conclusion of voir dire, Lee’s lawyer announced that the jury was satisfactory. No claim of ineffective assistance of counsel is made. In short, there is no reason to suppose that the presence of Levenia Missouri on the jury prejudiced Lee in any way.

The judgment of the District Court, dismissing the petition for habeas corpus, is

Affirmed.²

1 . The Hon. Henry Woods.

2 . Lee has been represented in this Court by appointed counsel, and we express our gratitude to him for his service to Lee and to the Court.