BILLY ROY WILSON, District Judge.
I have received Proposed Findings and Recommendations ("Recommendation") (Doc. No. 45) from United States Magistrate Judge Joe J. Volpe. After careful consideration of the Recommendation and the parties' objections, and after a de novo review of the record, which includes the record incorporated from Jimerson v. Kelley,
For the reasons set out below, Petitioner John Brown's petition for writ of habeas corpus is GRANTED.
The night of September 21 or early September 22, 1988, Reginald Early brutally raped, robbed, and murdered Myrtle Holmes, an elderly woman living in Fordyce, Arkansas. In August 1992, a Dallas County jury found Mr. Early, Mr. Brown, and Tina Jimerson
A fourth co-defendant, Charlie Vaughn, pled guilty before the first trial, after an enticed confession to an undisclosed government informant.
Without Mr. Vaughn's confession, it is doubtful that there was sufficient evidence to support Mr. Brown's convictions. Judge Volpe noted that it was troubling that law enforcement targeted Mr. Vaughn, who had significant mental deficiencies.
All four co-defendants received life sentences. After years of maintaining his innocence, Mr. Early has now sworn in affidavits, and open court, that he committed this horrific crime alone. Deoxyribonucleic acid ("DNA") evidence, presented during the first trial but not at the second trial, confirmed Mr. Early raped Ms. Holmes. No physical evidence connected any of the other defendants to the crime. Newly discovered evidence has also called into question the fundamental fairness of Mr. Brown's trial.
The details of the brutal rape, robbery, and murder of Ms. Holmes and the subsequent investigation are well-documented.
On December 21, 2016, Mr. Brown filed the instant Petition for Writ of Habeas Corpus alleging: (1) actual innocence; (2) a violation of due process rights under Brady v. Maryland;
The record is fairly clear. Mr. Brown is entitled to relief if he timely filed his claims and can overcome procedural default. By far the most important evidence — and only direct evidence — against Mr. Brown was the result of a "glaring" Brady violation; the enticed confession of a mentally deficient co-defendant, to an undisclosed government informant or agent.
These multiple constitutional violations and irregularities seriously undermine any confidence in the outcome of the trial.
This Court may entertain Mr. Brown's petition only on the ground that he is in state custody in violation of the Constitution or federal law.
The Antiterrorism and Effective Death Penalty Act of 1996 established a one-year limitations period for a state prisoner to file a federal habeas corpus petition under 28 U.S.C. § 2254.
In the typical habeas proceeding, the limitations period begins to run when the judgment becomes final by the conclusion of direct review.
Mr. Brown's ineffective assistance of counsel claims are time-barred, subject only to equitable tolling.
Although these facts are troubling, they were, for the most part, discoverable by Mr. Brown years ago. He did not present these claims in a timely fashion.
However, using due diligence, neither Mr. Brown nor counsel could have discovered the factual predicates for the majority of his Brady, Giglio, Youngblood, Napue, and actual-innocence claims.
Under 28 U.S.C. § 2244(d)(1)(D), the limitations period begins the date on which the factual predicate of the claims could have been discovered through the exercise of due diligence. This requires "claim-by-claim consideration," meaning the provision only applies to the claims based on the newly discovered facts.
Mr. Brown possibly could have discovered the factual predicate for the majority of his claims when Ms. Jimerson filed her initial Petition for Habeas Corpus on June 30, 2015.
Judge Volpe noted that, with due diligence, Mr. Brown could have discovered the factual predicate of his actual innocence claim on December 21, 2015, at the earliest, when Mr. Early signed his confession.
Midwest Innocence Project — wholly independent of the Innocence Project representing Mr. Early and the Legal Clinic representing Ms. Jimerson — agreed to represent Mr. Brown in June 2016 in the evidentiary hearing in Ms. Jimerson's habeas case.
Exercising due diligence, the factual predicates for Mr. Brown's Brady, Giglio, Youngblood, Napue, and actual innocence claims were discoverable on December 21, 2015, at the earliest, but more reasonably by June 2016.
A petitioner challenging state custody must exhaust available state court remedies before seeking federal habeas review.
Mr. Brown's trial counsel did not preserve any grounds for review for the state appellate courts. Mr. Brown failed to present any of his claims to state courts through post-conviction petitions, likely because he had no way to discover the factual predicate of his claims in time. Respondent notes that, at the time of filing, Mr. Brown had no unexhausted, non-futile state remedies available to him.
Mr. Brown meets the actual innocence gateway exception to procedural default recognized in Schlup,
Judge Volpe found Mr. Brown failed to establish actual innocence because Mr. Early's confession was not reliable.
Actual innocence may serve as a gateway to overcome procedural default or the expiration of the limitations period.
The actual-innocence standard is demanding.
Mr. Brown's showing of actual innocence rests primarily with the credibility of Mr. Early's confession and its potential impact on a reasonable juror. The weakness of the case against Mr. Brown and the prejudicial constitutional violations at trial are also relevant.
Mr. Brown's first trial resulted in a hung jury split six-to-six.
The exculpatory DNA in this case is not new scientific evidence. It was available, but not presented, at Mr. Brown's second trial. However, Mr. Early's confession is new, exculpatory evidence. Judge Volpe found the confession not credible, but courts have considered confession evidence among the strongest possible evidence for more than one hundred years.
The only direct evidence against Mr. Brown was Mr. Vaughn's confession, the use of which in Mr. Brown's trial was the result of a glaring Brady violation. Comparing the inconsistencies in Mr. Vaughn's and Mr. Early's dueling confessions, it appears Mr. Early provided substantially more detail. Additionally, he did not require prompting and redirection like Mr. Vaughn. Mr. Early also more accurately described the crime scene.
The morning after the murder, police picked up Mr. Early and questioned him about his involvement. Before trial, Mr. Early confessed to Darrell Jenkins that Mr. Early had killed Ms. Holmes by hitting her with pots and pans and stabbing her. Investigator Michael Earley's testimony placed Mr. Early near the scene close to the time the crime was committed.
Circumstantial evidence from four witnesses, Taura Bryant, Lee Parsons, Kenny Parsons, and Ellis Tidwell, placed all the defendants together on the night of the crime. But, new evidence from three of these eyewitnesses calls into question their trial testimony.
Mr. Tidwell testified at trial that Mr. Brown appeared with confessed-murderer Mr. Vaughn at Mr. Tidwell's home the night of the murder, 200 yards from Ms. Holmes's house, "wild-eyed" and looking for money.
Ms. Bryant is deceased, but evidence of her undisclosed familial relationship with Investigator Earley somewhat undermines the credibility of her testimony. Two witnesses, Stephanie Rogers and Mary Chambers, challenged Ms. Bryant's testimony during a closed court session. They both would have testified that they overheard Ms. Bryant say to Sheriff Donny Ford before her trial testimony, "What am I supposed to say? I don't know what I'm supposed to say, I don't even know why I'm here."
Lee Parsons and Kenny Parsons now both call into question their own testimony. Kenny Parsons was a jail trustee, in a program run by his father, when he offered incriminating evidence years after the murder. It appears the State never disclosed his severe mental illness or drug abuse. Both the Parsons claim they don't even remember testifying due to drug use.
What additional evidence could a petitioner in Mr. Brown's situation provide to show actual innocence? The only direct evidence against him was the enticed, recanted confession of a mentally deficient co-defendant that was the result of a glaring Brady violation. Police collected numerous items of physical evidence, yet none of it connected Mr. Brown to the scene of a brutal rape and murder. DNA evidence excluded Mr. Brown as a donor. The DNA did, however, match co-defendant Mr. Early, who has now provided a sworn, detailed confession that exonerates Mr. Brown. The circumstantial evidence against Mr. Brown was unreliable at best— and it is likely false and the result of several constitutional violations.
Mr. Brown's actual innocence claim is compelling when the evidence of innocence is compared to the evidence of guilt. Had Mr. Early's confession been presented during the second trial, absent the Brady violations, no reasonable juror could have convicted Mr. Brown. I could possibly have confidence in the outcome of Mr. Brown's trial, but only if the trial was free of non-harmless constitutional error. Instead, Mr. Brown's trial was shot through with several material constitutional violations.
A petitioner's default is excused if he can demonstrate "cause for the default and actual prejudice as a result of the alleged violation of federal law."
Cause is established when "some objective factor external to the defense" impedes efforts to comply with state procedural rules.
That case concerned a Brady violation, and its reasoning applies equally to Mr. Brown's Giglio, Youngblood,
To show prejudice, Mr. Brown must essentially prove the merits of his claims. Proof of suppressed evidence is sufficient to overcome procedural default only if it is "material."
Mr. Brown raised a number of claims. Again, his ineffective assistance of counsel claims are time-barred. His gateway actual innocence showing still requires proof of an underlying constitutional violation. I find several, all stemming from the Brady violations.
A state's failure to disclose "evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."
Judge Volpe found one of the Brady violations in this case to be glaring:
Judge Kearney found the State's excuses for the conduct unpersuasive:
Again, the only direct evidence against Mr. Brown was Mr. Vaughn's confession. If the jury believed Mr. Vaughn initially gave a truthful, voluntary confession, then the jury had little choice but to convict Mr. Brown. Conversely, if the jury had reason to doubt Mr. Vaughn's confession, the only remaining evidence against Mr. Brown was circumstantial — weak circumstantial evidence placing him only in the company of his co-defendants.
The entire record is relevant when considering the materiality of a Brady violation.
The State's failure to disclose the use of an informant to entice the confession is sufficient, alone, to undermine the confidence in the verdict. But this was not its only failure.
The State also failed to disclose, and actually destroyed, a recording of the informant eliciting the confession. Independently, this Brady/Youngblood violation also undermines confidence the verdict.
The State also offered informant incentives that it never disclosed to the defense. Mr. Prescott had major felonies dismissed after his "assistance" in procuring Mr. Vaughn's confession. Mr. Tidwell was two years into a twenty-year sentence when Sheriff Donny Ford procured his release to act as a jail trustee. Shortly after, Mr. Tidwell decided to volunteer some of the most important state evidence. The conviction and trustee evidence came out during trial.
The Supreme Court has "long recognized the serious questions of credibility informers pose."
The State failed to disclose the photo lineup identification of Mr. Brown. This evidence deprived Mr. Brown of the ability to challenge his identification.
Mr. Brown proved the three components of a true Brady violation: the existence of exculpatory or impeaching evidence, willfully or inadvertently suppressed by the state, and resultant prejudice.
Standing alone, the most serious Brady violations in this case would require a new trial. Considering the materiality of each piece of evidence cumulatively, rather than in isolation, lays bare the extent to which the Brady violations undermine confidence in Mr. Brown's conviction.
Under Giglio, the government must disclose evidence impacting the credibility of prosecution witnesses.
Lee and Kenny Parsons's undisclosed interactions with police fall under Giglio/Brady. Kenny Parsons's severe drug use and mental illness also impacted his credibility.
The prosecutor denied "knowledge of any prior records of criminal conviction of witnesses."
Ms. Bryant had an undisclosed familial relationship with Investigator Earley. Her brother lived with Investigator Earley and was apparently involved in taking her statements.
While these might be minor issues compared to the previously outlined Brady violations, they are still part of the overall record to consider in this case.
Napue prohibits the use of false evidence to obtain a conviction, and applies even when the state does not solicit the false evidence, but merely allows it to go uncorrected.
Mr. Tidwell either lied about crucial evidence during Mr. Brown's trial or he lied during the evidentiary hearing. Mr. Tidwell testified that Mr. Vaughn came to Mr. Tidwell's house the night of the crime, introduced him to Mr. Brown, and asked for money.
Mr. Tidwell now swears Investigator Earley mentioned Mr. Brown to him during an undisclosed, suggestive photo line-up. So, Mr. Vaughn did not introduce Mr. Tidwell to Mr. Brown, as Mr. Tidwell previously told the jury. He had no idea who Mr. Brown was until law enforcement identified him.
When questioned shortly after the crime, specifically about Mr. Vaughn, Mr. Tidwell said he had his own problems and did not have anything to share. Having information that both Mr. Vaughn and Mr. Brown were at his house, 200 yards from Ms. Holmes's house, the night of the murder, would seem quite significant.
Based on this record, Mr. Brown has not established a Napue violation based on Mr. Tidwell's testimony. It seems unlikely Mr. Tidwell would fabricate the photo-lineup-identification story at this juncture. Regardless, Mr. Tidwell's current story does not add confidence to Mr. Brown's verdict.
More troubling was the State's failure to correct false or misleading testimony regarding Mr. Vaughn's confession. Both Chief Poole and Lt. Bradshaw's testimony left the impression that Mr. Vaughn decided to confess to law enforcement spontaneously.
A state denies a criminal defendant's right to due process when the state destroys potentially useful evidence in bad faith.
Negligently failing to refrigerate semen samples, and disclosing the failure to a defendant before trial, is not bad faith.
Here, the State used an undisclosed informant or agent to get a confession from a mentally deficient pretrial detainee who was represented by counsel. That confession was the only direct evidence against Mr. Brown. The State recorded the undisclosed informant eliciting the confession. Instead of disclosing or preserving the recording, the deputy prosecutor destroyed it. This after the deputy prosecutor reviewed the recording for evidentiary value.
The presence or absence of bad faith "necessarily turn[s] on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed."
The facts in this case sufficiently establish bad faith in the destruction of critically important evidence. The only direct evidence against Mr. Brown was the confession of Mr. Vaughn, who, arguably, had the IQ of a seven-year-old. He was in jail, with representation of counsel attached, when the state sent in an undisclosed informant or agent, who possibly told Mr. Vaughn to confess to avoid the death penalty. The state destroyed the recording of the confession. Mr. Vaughn recanted almost immediately.
The only reliable circumstantial evidence in this case points to Mr. Early. The testimony of the four witnesses placing Mr. Brown with his co-defendants the night of the murder is questionable at best, likely the result of multiple constitutional violations. Under these circumstances, Mr. Brown has adequately proven this Youngblood claim.
As a final note, I question the State's reliance on procedural default in this case. A federal court cannot grant habeas relief unless the petitioner exhausts state-court remedies,
The adequacy of state procedural bars to the assertion of federal rights is itself a federal question.
Absent the procedural hurdles behind Mr. Brown, this case is fairly cut and dried. The State failed to disclose, concealed, and destroyed the most important exculpatory and impeachment evidence in the case. The concealed evidence related to the State's most critical evidence of guilt. There was little other reliable evidence of guilt. The constitutional violations in this case thoroughly undermine confidence in Mr. Brown's conviction. There is a reasonable likelihood that the constitutional violations affected the judgment of the jury to the point the outcome would have been different. Mr. Brown has likely also shown that with Mr. Early's confession and the new eyewitness testimony, no reasonable juror would have found Mr. Brown guilty beyond a reasonable doubt.
For these reasons, I decline to adopt Judge Volpe's Recommendation.
Mr. Brown's murder and aggravated robbery convictions are VACATED, subject to retrial. Respondent has thirty days from the entry of this order to release Mr. Brown or institute new criminal proceedings against him.
IT IS SO ORDERED.
