DAVID LEE LEWIS, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 8, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000120-MR
DAVID LEE LEWIS, JR.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE FARMER H. HELTON, JUDGE
ACTION NO. 93-CR-00001
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; COMBS and McANULTY, Judges.
COMBS, JUDGE:
On March 2, 1993, David Lee Lewis, Jr., was
indicted for Capital Murder.
507.020.
Kentucky Revised Statute (KRS)
The indictment resulted from the allegation that on
December 26, 1992, Lewis assaulted his wife, Sheila Mills Lewis,
stabbing her to death with a knife.
On December 1, 1993,
following a jury trial, Lewis was found guilty of murder and was
sentenced to life imprisonment.
On January 19, 1995, the Supreme
Court rendered an opinion affirming Lewis’s conviction.
On October 17, 1995, Lewis filed a motion to vacate his
conviction pursuant to Rule of Criminal Procedure (RCr) 11.42.
On March 7, 1996, the trial court entered an order denying the
motion.
On April 4, 1997, in Case No. 96-CA-0983-MR, we rendered
an opinion affirming the trial court.
On October 8, 1999, Lewis filed the present RCr 11.42
motion to vacate his conviction; he also filed a motion to file a
successive RCr 11.42 petition.
On December 22, 1999, the trial
court entered an order denying both the RCr 11.42 motion and the
motion to file a successive RCr 11.42 petition.
This appeal
followed.
First, Lewis contends that the trial court abused its
discretion when it denied his motion for leave to file a
successive RCr 11.42 motion.
RCr 11.42(3) provides that an RCr 11.42 motion
shall state all grounds for holding the
sentence invalid of which the movant has
knowledge. Final disposition of the motion
shall conclude all issues that could
reasonably have been presented in the same
proceeding.
A movant is “ precluded from raising issues in a successive RCr
11.42 motion which were or could have been raised in the first
motion.”
McQueen v. Commonwealth, Ky., 949 S.W.2d 70, 71 (1997).
Lewis’s brief identifies five reasons in support of his
position that he should be permitted to file a second RCr 11.42
motion: (1) when he filed his first RCr 11.42 motion, he was
incarcerated in Virginia and therefore did not have access to
proper and adequate copies of Kentucky statutes and case law to
utilize in order to file a complete and meaningful postconviction motion; (2) he had a three-year time limit in which to
file an RCr 11.42 motion; (3) he was unable to procure a copy of
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his trial transcript prior to filing his first RCr 11.42 motion;
(4) he did not discover until just prior to filing his second RCr
11.42 motion that the Commonwealth had made trial counsel a plea
offer — a fact that was not communicated to him; and (5) in
December 1999, he was informed that the chief prosecution witness
had been romantically involved with his wife, the murder victim.
We have carefully considered the factors identified by
Lewis as to why he should be permitted to file a successive RCr
11.42 motion, and we are persuaded that, despite any
disadvantages experienced by Lewis by being incarcerated in a
foreign jurisdiction, the bases for relief identified in his
second RCr 11.42 motion could just as easily have been raised in
the first RCr 11.42 motion as in this one and that, therefore,
Lewis’s second RCr 11.42 motion is barred. Id.
Lewis’s second RCr 11.42 motion also violates the
three-year limitation of RCr 11.42(10).
RCr 11.42(10) provides
in relevant part that:
[A]ny motion under this rule shall be filed
within three years after the judgment becomes
final, unless the motion alleges and the
movant proves
(a) that the facts upon which the claim is
predicated were unknown to the movant and
could not have been ascertained by the
exercise of due diligence;
The three-year limitations period for filing an RCr
11.42 motion runs from the entry of the judgment on direct appeal
by the appellate court.
S.W.3d 763 (1999).
Palmer v. Commonwealth, Ky. App., 3
The Supreme Court rendered its final decision
in this case on January 19, 1995, and, therefore, the three-year
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limitations period in this case expired on January 19, 1998.
Lewis filed his second motion on October 8, 1999.
The facts upon
which Lewis’s present claim is predicated either were known to
him or —
with the exercise of reasonable diligence — could have
been ascertained within the three-year limitations period.
Therefore, Lewis’s second RCr 11.42 motion is also barred by RCr
11.42(10).
Nonetheless, we have reviewed the merits of Lewis’s
arguments for post-conviction relief.
Lewis’s second RCr 11.42
motion identified the following bases for relief: (1) the trial
court erred when it failed to instruct the jury on extreme
emotional disturbance; (2) Lewis received ineffective assistance
of counsel because trial counsel failed to request funds to hire
a forensic witness on stab wounds; (3) Lewis received ineffective
assistance because trial counsel failed to inform him that the
Commonwealth had made a plea offer available to him prior to
trial; (4) Lewis received ineffective assistance because trial
counsel failed to object when the prosecutor misstated the
evidence during closing argument regarding the location of the
stab wound; and (5) trial counsel was ineffective because he
failed to request the lesser included offense of manslaughter.
His first allegation concerns an alleged error by the
trial court and could have been raised on direct appeal.
The
trial court’s failure to instruct on extreme emotional distress
is not a proper issue to raise in an RCr 11.42 motion as such an
issue is limited to issues that were not — and could not be —
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raised on direct appeal.
Sanborn v. Commonwealth, Ky.,
975
S.W.2d 905, 908-909 (1998).
As to the other four allegations of ineffective
assistance of counsel, we are persuaded that those issues do not
meet the standard set forth in Strickland v. Washington, 466 U.S.
668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
For the foregoing reasons, the judgment of the Bell
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
David Lee Lewis, Jr.
LaGrange, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Matthew D. Nelson
Assistant Attorney General
Frankfort, Kentucky
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