Lambert v. Payne

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
DORLETHA LAMBERT 	PETITIONER
VS. 	No. 3:24-cv-00050 KGB/PSH
DEXTER PAYNE, Director,
Arkansas Division of Correction (“ADC”) 	DEFENDANT
FINDINGS AND RECOMMENDATION
INSTRUCTIONS
The following recommended disposition has been sent to Chief United States
District Judge Kristine G. Baker. You may file written objections to all or part of
this Recommendation. If you do so, those objections must: (1) specifically explain
the factual and/or legal basis for your objection; and (2) be received by the Clerk of
this Court Clerk within fourteen (14) days of this Recommendation. 	By not
objecting, you may waive the right to appeal questions of fact.
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DISPOSITION
Petitioner Dorletha Lambert (“Lambert”) seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. 	For the reasons stated below, the undersigned
recommends the petition be dismissed.
State Court Proceedings
Lambert was convicted following a March 2023 jury trial in Craighead
County of misdemeanor driving DWI with a suspended license, and felony driving
while intoxicated – sixth offense (“DWI”). 	At the sentencing phase, the jury was
presented 	with 	certified 	copies 	of 	five 	prior 	convictions 	for 	driving 	while
intoxicated, all of which occurred during the preceding ten years. 	Doc. No. 49-1,
pages 389-396. 	The jury was instructed that the prosecution had the burden of
proving the five prior convictions and, if that burden was met, the sentencing range
for a sixth DWI was five to twenty years. Id. at 352. The jury found Lambert guilty
and fixed her sentence at twenty years. Id. at 364.
The sentencing order was entered on March 14, 2023. Doc. No. 40-1, pages
92-95. 	Six days later Lambert’s retained counsel filed a motion to withdraw,
indicating he had advised her of her right to appeal and provided her with a pro se
notice of appeal in the event she was unable to retain counsel. 	Id. at 96-97. 	The
motion to withdraw was granted on March 23. 	Id. at 98. 	Lambert filed a pro se
notice of appeal on April 24, which was untimely. Id. at 102. (A defendant has thirty
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days from entry of the sentencing order to timely file a notice of appeal in Arkansas.
See Ark. R. App. P. 2(a)). 	In her petition, Lambert acknowledged that she did not
obtain direct review by appeal. Doc. No. 2, page 2.
Lambert filed four other state-court actions attacking her conviction:1
1. Petition to correct an illegal sentence, filed on April 24, 2023,
alleging she was improperly charged with DWI sixth offense.2 Doc.
No. 20-1. 	This petition was summarily denied on July 29, 2024.
Doc. No. 40-1, page 170. 	(Lambert later petitioned the Arkansas
Supreme Court for a writ of mandamus pertaining to her petition to
correct an illegal sentence. This request was granted and a writ of
mandamus issued on November 25, 2024, directing the circuit court
to rule on the petition to correct an illegal sentence within thirty
days. Doc. No. 40-1, page 184. The circuit court denied the petition
to correct an illegal sentence on December 18, 2024. 	The order
1 All four of these petitions were pending when Lambert filed her federal habeas corpus
petition. As a result, this case was stayed while those state actions were resolved. 	Doc.
No. 22. The case was reopened on May 2, 2025, and proceeded. 	Lambert subsequently
filed an amended petition. Doc. Nos. 33 & 54. Payne responded to the amended petition
on November 17. Doc. No. 56.
2 The allegation in this petition is the common thread running through most of Lambert’s
pleadings – the prosecution should not have counted two Mississippi convictions for
driving under the influence (“DUI”) toward the total number of convictions. 	Lambert
concedes she had three prior DWI convictions in Arkansas. See Doc. No. 20-1, page 2.
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denying the petition identified the five previous convictions which
supported the conviction for DWI sixth offense. Id. at 190-191);
2. Rule 37 petition, filed on May 16, 2023, alleging ineffective
assistance of trial counsel, admission of evidence obtained pursuant
to an unlawful arrest, prosecutorial misconduct, violation of double
jeopardy, denial of a fair and impartial trial, and denial of the right
to appeal. Doc. No. 9-2. The trial court found no fault with counsel
for advising Lambert how she should file motions or the notice of
appeal. 	The trial court also found that sufficiency of the evidence
of prior convictions should have been raised on direct appeal. Doc.
No. 20-4, page 2. Regarding the late filing of the notice of appeal,
the trial court observed that Lambert sent documents to a relative to
be filed with the court by hand delivery and the notice of appeal was
two days late. Doc. 20-4, page 3. This petition was denied on July
26, 2024. The trial court addressed all claims advanced by Lambert.
Doc. No. 20-4;
3. Petition for reduction of sentence, filed on May 16, 2023, alleging
insufficiency of the evidence, denial of a fair and impartial jury due
to the racial composition of the jury (“all white jury besides 2 young
black males”), and admission of unfairly prejudicial evidence. Doc.
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No. 9-3 (quotation at page 3). This petition was summarily denied
on July 29, 2024. Doc. No. 20-5; and
4. Petition for habeas corpus filed pursuant to Ark. Code Ann. §§ 16-
112-101-23, filed on July 17, 2023, alleging she was wrongfully
charged with DWI sixth offense and illegally sentenced. Doc. No.
9-4. The petition was denied on July 29, 2024. Doc. No. 20-7. As
in the Order denying Rule 37 relief, the trial court observed that this
claim should have been raised on direct appeal.
On August 14, 2024, Lambert filed a notice of appeal of the trial court’s denial
of the four state court petitions described above. Doc. No. 40-1, pages 176-180. The
appeal never proceeded, however, because Lambert did not file the record on appeal
with the appellate court during the 90-day period after filing the notice of appeal.
See Ark. R. App. P. – Crim. 4(b).
Federal Habeas Corpus Claims
In her petition and amended habeas corpus petitions, Lambert advances the
following claims:
1. 	Insufficient evidence was presented to support the conviction for DWI-
sixth offense;
2. She is being held unlawfully because the DWI-sixth offense charge was
illegal;
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3. The prosecution entered false evidence of a DUI conviction from Horn
Lake, Mississippi;
4. Ineffective assistance of trial counsel for telling her the circuit court
suppressed evidence of her blood alcohol concentration, for failing to tell
the trial judge that jurors were falling asleep, for failing to argue there were
not five prior DWI convictions, and for convincing her not to testify; and
5. Denial of the right of appeal due to ineffective assistance of counsel.
Procedural Default
Respondent Dexter Payne (“Payne”) contends that Lambert’s claims should
be dismissed because she failed to fully present them in state court. 	Specifically,
Payne asserts that claims one, two, and three are all challenges to the sufficiency of
the evidence, claims which are and should have been properly raised on direct
appeal. Lambert failed to file a timely notice of direct appeal. As for claims four
and five, Payne asserts that ineffective assistance of counsel claims are properly
raised in a Rule 37 petition, which Lambert timely pursued with the trial court.
Lambert did not, however, appeal the trial court’s denial of Rule 37 relief.
In Wainwright v. Sykes, 433 U.S. 72 (1977), the United States Supreme Court
held that a federal court should not reach the merits of a litigant's habeas corpus
allegation if she has procedurally defaulted in raising that claim in state court: that
is, if she was aware of the ground, but failed to pursue it to a final determination.
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The exception created by the Supreme Court permits such an allegation to be
addressed if the litigant can establish "cause" for her failure to assert the known
ground and "prejudice" resulting from that failure. 	See, also, Clark v. Wood, 823
F.2d l24l, l250-5l (8th Cir. l987); Messimer v. Lockhart, 822 F.2d 43, 45 (8th Cir.
l987). 	The Wainwright v. Sykes cause and prejudice test was clarified by two
subsequent Supreme Court decisions, Smith v. Murray, 477 U.S. 527 (l986), and
Murray v. Carrier, 477 U.S. 478 (l986).
With respect to cause, these cases explain that the Court has "declined in the
past to essay a comprehensive catalog of the circumstances that [will] justify a
finding of cause." 	Smith v. Murray, 477 U.S. 533-34. 	However, one can discern
from these cases several circumstances in which cause might be found: first, where
some objective factor external to the defense impeded counsel's efforts to comply
with the State's procedural rules, see Murray v. Carrier, 477 U.S. at 488; second,
where a constitutional claim is so novel that its legal basis is not reasonably available
to counsel, see Reed v. Ross, 468 U.S. l (l984); or third, if the litigant failed to receive
the effective assistance of counsel. 	See Murray v. Carrier, 477 U.S. at 488. 	In
addition, there is one extraordinary circumstance where a federal habeas court may
grant relief without a showing of cause: 	where a constitutional violation has
probably resulted in the conviction of one who is actually innocent. Id. at 496.
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None of Lambert’s claims were litigated to a final determination in state court.
Lambert offers reasons why “cause” should be found for her failure to obtain final
state court review of her claims. In her petition, she observes that her attorney did
not file a direct appeal, that the trial court did not respond to “several motions,” that
she lacks legal knowledge, and that she was without an attorney. Doc. No. 2, pages
5, 9, and 10. In a pleading filed with the trial court, she also explained that her trial
attorney mailed the notice of appeal to her at the local detention center on March 20,
2023, but she had already been transported to the ADC and she did not receive the
mail until April 22. 	She also states she was “locked down” from March 17 until
April 5 and had a broken right leg, two circumstances which made it difficult to
access legal material. 	Doc. No. 40-1, pages 178-180. 	Lambert asserted the same
explanations in her reply to Payne’s response to the petition. Doc. No. 21. In her
reply, Lambert attached an April 8 letter from her trial counsel reiterating that he
advised her of her right to appeal, and that he received a call from a local attorney
indicating he had been contacted by Lambert to do the appeal. Doc. No. 21, page 4.
Lambert claims she would have timely filed the notice of appeal but for the
deprivation of her legal mail. Doc. No. 40-1, page 179.
Lambert is correct that her attorney did not file a direct appeal. She was
sentenced on March 14, 2023. 	Doc. No. 40-1, page 92. 	Her trial attorney filed a
motion to withdraw on March 20 which states that he advised Lambert of her right
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to appeal and drafted a pro se motion in the event Lambert was unable to retain
counsel. 	Id. at 96. 	The motion to withdraw was granted on March 23. 	Id. at 98.
Lambert filed a motion for appointment of counsel on April 17 and filed a notice of
appeal with the trial court on April 24, after the allowed time. Doc. No. 40-1, pages
99 & 102. The failure of counsel to file a notice of appeal does not constitute “cause”
that would excuse Lambert’s failure to file a timely appeal notice. The record
establishes that Lambert’s counsel notified her of her appellate rights and that he
was allowed to withdraw as counsel. He had no obligation to file a notice of appeal
on her behalf.
Lambert’s assertion that the trial court’s failure to respond to motions amounts
to cause for her procedural failure is without merit. 	She does not indicate which
motions she references, or when they were filed. Further, if Lambert was able to file
motions this indicates an ability to file a notice of appeal. The mere allegation of a
lack of legal knowledge falls short of demonstrating cause. 	See, e.g., Smittie v.
Lockhart, 843 F.2d 295, 298 (8 th Cir. 1988) (pro se status and ninth grade education
not cause for failing to pursue state-court remedies). And though Lambert is correct
that she was without an attorney (his motion to withdraw was granted nine days after
her conviction) this did not impede her efforts after his withdrawal and before the
time lapsed for filing a notice of appeal.
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Lambert’s additional reasons for her procedural omission in state court do not
amount to cause. Lambert’s attorney advised her of the right to appeal. She does
not demonstrate she was prevented from filing a timely notice of appeal.
Even if it is assumed that cause is present, the second prong of the analysis,
prejudice, must also be satisfied. In this instance, Lambert cannot carry her burden3
of demonstrating prejudice arising from an inability to raise the claims in state court.
While the Supreme Court has not yet provided a precise definition of prejudice, in
the context of cause and prejudice, the Court has stated that it requires more than the
“possibility of prejudice” and that the error must have worked to the petitioner’s
“actual and substantial disadvantage.” 	United States v. Frady, 456 U.S. 152, 170
(1982). 	Lambert does not establish that failure to file a timely notice of appeal
actually and substantially disadvantaged her in any way.
During the sentencing phase of the trial the prosecutor offered certified copies
of five previous convictions – (1) a 2013 DWI conviction from Phillips County,
Arkansas; (2) a 2016 DWI conviction from Craighead County, Arkansas; (3) a 2017
DWI conviction from Craighead County, Arkansas; (4) a 2022 DUI conviction from
DeSoto County, Mississippi; and (5) a 2019 DUI conviction from Horn Lake
Mississippi Municipal Court. Doc. No. 49-1, pages 334-338. The trial judge noted
3 Lambert bears the burden of advancing an explanation for cause and offering specific
allegations of prejudice. 	Wainwright v. Sykes, 433 U.S. at 90-91, and United States v.
Frady, 456 U.S. at 170.
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that Lambert was represented by counsel in all the prior cases. 	Lambert’s trial
counsel objected to the admission of the Mississippi DUI’s, arguing there was no
proof that these convictions “would meet the standard of driving while intoxicated
under Arkansas law.” 	Id. at 336-337. 	The trial judge admitted the Mississippi
convictions 	over this 	objection, 	noting “we 	routinely 	admit 	judgments 	from
Missouri, for example.” Id. at 337. (The certified copies are found in Doc. No. 49-
1, pages 390-398).
Arkansas law provides that a certified judgment of driving while intoxicated
“or other equivalent offense from another state or jurisdiction may be used to
enhance the penalties as a previous offense.” 	Ark. Code Ann. § 5-65-111(g).
Lambert does not argue or establish that the Mississippi DUIs are not “an equivalent
offense” to the crime of DWI in Arkansas. The Arkansas DWI statute provides it is
unlawful “for a person who is intoxicated to operate . . . a motor vehicle.” Ark. Code
Ann. § 5-65-103(a)(1).4 In Mississippi it is unlawful “for a person to drive or
otherwise operate a vehicle . . . if the person is under the influence of intoxicating
liquor.” 	Miss. Code Ann. § 63-11-30(1)(a). 	The statutes of Arkansas and
4 The Arkansas statute also contains a provision that a person with a blood alcohol
concentration of 0.08 or more cannot lawfully operate a motor vehicle. Ark. Code Ann. §
5-65-103(a)(2). 	(Mississippi contains a similar provision – Miss. Code Ann. § 63-11-
30(1)(d)(i)). Lambert, who refused a breathalyzer test, was convicted under section (a)(1)
based upon the testimony of the officers, along with the dash- and body-cam footage. 	See
Hodnett v. State, 2023 Ark. App. 336 (DWI conviction was not based on blood alcohol
concentration but established by testimony of police officers and dash-cam footage).
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Mississippi differ only in trivial ways, and the offense of DUI in Mississippi is an
equivalent offense to the offense of DWI in Arkansas. See State v. Brown, 300 Neb.
57, 63 (2018) (comparison of the two states’ statutory language is the starting point
and “if it is clear that the offense as statutorily defined in the other state would have
been a violation of the relevant [second state’s] statute, no further inquiry is
required.”). There was no error by the trial court in admitting the Mississippi
convictions and Lambert would not have been successful even had she filed a timely
notice of appeal.
In summary, claims one, two, and three target the sufficiency of the evidence
supporting her DWI-sixth offense conviction. 	These sufficiency challenges were
not raised on direct appeal in state court. Lambert has not established cause for this
failure in state court. Even if cause were shown Lambert fails to prove the second
prong of the “cause and prejudice” test. Claims one, two, and three are procedurally
barred.
Claims four and five are ineffective assistance of counsel assertions, claims
which are properly raised in state court via Rule 37. As with claims one, two, and
three, Lambert failed to fully litigate these claims in state court. 	She did raise the
claims in her Rule 37 petition, which was denied by the trial court in July 2024.
However, Lambert failed to perfect an appeal of this decision. Doc. Nos. 9-2 & 20-
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4. As a result, these claims are barred from consideration absent a showing of cause
and prejudice.
Lambert contends the trial court is at fault for her failure to appeal the Rule
37 denial. Doc. No. 46. Lambert concedes that the trial court’s Order denying Rule
37 relief informed her that a notice of appeal was required within thirty days of the
denial. But the trial court failed to inform her of the duty to lodge the record within
the ninety-day period after the denial. According to Lambert, her efforts to appeal
the Rule 37 Order were thwarted by the lack of information and a lack of cooperation
by the Craighead County Circuit Clerk, who failed to provide her with original
documents needed to support a motion for belated appeal. She also notes she was
proceeding without the assistance of counsel, and points to her “little legal
knowledge and limited access to legal material that caused her to proceed with the
best of he[r] knowledge and understanding.” Id. at 3.
First, Lambert cannot rely on the absence of counsel to establish cause. Rule
37 proceedings are post-conviction in nature, and not part of the direct appeal
process. As such, the Sixth Amendment right to counsel does not apply. Coleman
v. Thompson, 501 U.S. 722, 752 (1991). 	Absent this right to counsel, it was
Lambert’s responsibility to raise her claims and litigate them fully in state court. Her
assertions of lack of information and lack of cooperation from county officials fail
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to relieve her of this responsibility. She has not demonstrated cause for her failure
to present her claims in state court.
As with the her first three claims, even if there was cause for her failure in
state court, Lambert falls short of showing any prejudice. Regardless of whether she
pursued the argument on direct appeal or in a Rule 37 context, Lambert’s arguments
about the number of previous convictions are without merit and she suffered no
actual prejudice from her failure to fully litigate the claims. The result would have
been the same.
This lack of prejudice is decisive in two final arguments which, liberally
construing the pleadings, might be made on Lambert’s behalf. 	First, it could be
argued that under Martinez v. Ryan, 566 U.S.1 (2012), Lambert should be excused
for failing to fully raise her ineffective assistance of counsel claims in state court.
Martinez, however, only applies to “substantial” claims. 	A “substantial” claim is
one with “some merit,” which means that Lambert’s claims of ineffective assistance
of trial counsel “must at least be debatable among jurists of reason.” 	Dorsey v.
Vandergriff, 30 F.4 th 752 (8 th Cir. 2022). 	There would be no debate among
reasonable jurists whether Lambert’s trial counsel performed effectively under
Strickland v. Washington, 466 U.S. 668 (1984). Lambert does not establish either
prong of the Strickland test – she does not show her attorney acted unreasonably,
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nor does she show that but for counsel’s errors the result of her trial would have been
different.
Finally, the need for demonstrating cause and prejudice is obviated when a
constitutional violation has probably resulted in the conviction of one who is actually
innocent. The Supreme Court guides on the issue of actual innocence:
To be credible, such a claim requires petitioner to support his
allegations of constitutional error with new reliable evidence--whether
it be exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence--that was not presented at trial. Because
such evidence is obviously unavailable in the vast majority of cases,
claims of actual innocence are rarely successful.
Schlup v. Delo, 513 U.S. 298, 324 (1995). 	The Court goes on to set the
standard required of Lambert; she "must show that it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable doubt."
513 U.S. at 327. Lambert submits no new, reliable evidence of her innocence, and
falls far short of the requisite showing.5 The actual innocence exception to cause
and prejudice does not apply.
5 Payne maintains that Lambert is claiming mere legal insufficiency, rather than actual
innocence, and fails on that account. 	While legal insufficiency is not enough, it is not
necessary to determine if Lambert’s argument is of legal but not factual innocence. 	See
Silk v. United States, 955 F.3d 681 (8 th Cir. 2020) (Silk argued that two prior convictions
did not qualify as predicate offenses and he was therefore actually innocent of being an
habitual offender. 	Relying on the record, which showed Silk had two qualifying
convictions, the Court found it need not resolve whether Silk’s claim was for actual
innocence or for merely legal insufficiency.) 	Id. at 683. As in the Silk case, the record
demonstrates that Lambert had five previous convictions so she is unable to show either
legal insufficiency or actual innocence.
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Conclusion
Lambert did not fully litigate her five claims in state court, failing to file a
timely direct appeal and failing to appeal her Rule 37 denial. She does not establish
cause for these failures as described in Wainwright v. Sykes, supra, and its progeny.
Even if cause were presumed Lambert falls short of showing prejudice, the second
prong of the Wainwright analysis. She does not advance a substantial claim, opening
the path toward a consideration of claims under Martinez v. Ryan, supra. 	And she
does not meet the exacting standard in Schlup v. Delo, supra, to prove actual
innocence.
For the foregoing reasons, the claims are procedurally barred and the case
should be dismissed and the relief denied.
IT IS SO ORDERED this 8th day of December, 2025.
____________________________________
UNITED STATES MAGISTRATE JUDGE
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