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Brown v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

February 8, 2018

JOHN BROWN PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          PROPOSED FINDINGS AND RECOMMENDATIONS

          JOE J. VOLPE UNITED STATES MAGISTRATE JUDGE

         INSTRUCTIONS

         The following recommended disposition has been sent to United States District Judge Billy Roy Wilson. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.

         If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before either the District Judge or Magistrate Judge, you must, at the time you file your written objections, include the following:

1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the new hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The details of any testimony desired to be introduced at the new hearing in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the new hearing.

         From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and “Statement of Necessity” to:

Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR 72201-3325

         I. BACKGROUND

         A. Procedural History

         After an April 1992 mistrial resulting from a “hung jury, ” a Dallas County jury in August 1992 found Petitioner John Brown guilty of the murder and aggravated robbery of Myrtle Holmes. (Doc. Nos. 1 at 2, 11-8 at 953.) Mr. Brown was tried alongside two co-defendants, Reginald Early and Tina Jimerson. (Id.) Another co-defendant, Charlie Vaughn, pleaded guilty before trial to murder in the first degree. (Id.) All four co-defendants were sentenced to life in prison. (Doc. No. 1 at 3.)

         Defendants Brown, Early, and Jimerson appealed their convictions, arguing to the Arkansas Supreme Court that the trial court erred: 1) in denying a motion for a directed verdict over Vaughn's testimony not being corroborated; 2) by not granting a motion to dismiss because of a procedural delay in filing the charges; 3) in refusing to exclude any testimony about any subject not included in the statement; and 4) for not directing a verdict in their favor based on the insufficiency of the evidence to sustain their convictions. Brown v. State, 315 Ark. 466 (1994). However, the Arkansas Supreme Court affirmed their convictions after finding these claims meritless. Id. In affirming, the Arkansas Supreme Court stated:

Myrtle Holmes was found murdered on September 22, 1988. The evidence at the scene showed that she had been beaten and stabbed while inside her home and that her body was then placed in the trunk of her car. A year and one-half later, on March 16, 1991, the State charged Charlie Vaughn, and appellants John Brown, Jr. and Reginald Early, with capital murder in three separate informations. A little over a week later, on March 25, 1991, Charlie Vaughn pleaded guilty to murder in the first degree and was sentenced to life in prison. Vaughn's guilty plea implicated appellants Brown and Early and also implicated appellant Tina Jimerson. On March 27, 1991, appellant Tina Jimerson was charged as an accomplice in a separate information. On July 12, 1991, the State moved to consolidate the cases since all three would require proof of the same facts. On July 19, 1991, separate defendant Tina Jimerson objected to consolidation, and, at the same time, moved for a severance. In an order dated July 17, and entered on July 23, 1991, the trial court ordered the cases consolidated for trial purposes. A jury trial ended in a mistrial. The informations were amended to charge appellants with first degree murder and aggravated robbery. A jury returned verdicts of guilty for all three appellants on both charges and sentenced each to life in prison on both of the charges. Appellants Early and Jimerson, together, have filed an appeal, and appellant Brown has filed a separate appeal. We have consolidated the appeals and address all assignments of error in this one opinion. There is no reversible error, and we affirm the three judgments of conviction on both charges.

Brown v. State, 315 Ark. 466, 468-69 (1994).

         In addressing the insufficiency of the evidence claim, the Court said:

Here, there is substantial evidence of both crimes. Charlie Vaughn pleaded guilty to the murder, and at the time of his plea, testified that the three appellants “wanted to do a robbery.” He said appellant Jimerson drove the foursome to the victim's home where appellant Brown entered through a window and let appellants Early and Vaughn inside. Jimerson remained in the car. Vaughn further testified that they looked for and found money which they took. He stated that appellant Brown beat the victim, an elderly woman, with pots and pans and then raped her. He said he and appellant Brown then raped her, and appellant Brown slit her throat. Vaughn testified that he and Brown then took the body and placed it in the trunk of the victim's car. In addition, Darrell Jenkins testified that appellant Early told him that he had killed the victim by hitting her with pots and pans and stabbing her. Michael Early's testimony placed appellant Early near the scene close to the time the crime was committed. The testimony of three other witnesses, Taura Bryant, Lee Parsons, and Kenny Parsons, placed the three appellants together on the night of the crime, with appellant Jimerson driving the group. Without question, the foregoing constitutes substantial evidence of the crimes for which appellants were convicted.

Id. at 471.

         Mr. Brown did not seek any further post-conviction relief from the Arkansas state courts. (Doc. No. 1.)

         On December 21, 2016, Mr. Brown filed the instant Petition for Writ of Habeas Corpus wherein he alleges six claims: (1) actual innocence; (2) a violation of due process rights under Brady v. Maryland, 373 U.S. 83 (1963); (3) a violation of due process rights under Arizona v. Youngblood, 488 U.S. 51 (1988); (4) a violation of due process from failure to disclose additional interviews and/or incentives that witnesses Ellis Tidwell and Kenny Parsons received in exchange for testifying; (5) a violation of due process when the prosecutor failed to correct false evidence; and (6) multiple instances of ineffective assistance of counsel violating Brown's Sixth and Fourteenth Amendment rights. (Doc. No. 1.)

         On September 11 and 12, 2017, I held an evidentiary hearing to address Mr. Brown's Petition. (Doc. Nos. 16, 37, 38.) Immediately after the hearing, Petitioner filed a Motion for Order to Authorize Discovery, Compel a Search for Evidence, and Order DNA Testing. (Doc. No. 33.) The parties also requested additional time to file post-hearing briefs and those briefs were filed on December 22, 2017. (Doc. Nos. 42-44.) The matter is now ripe for a determination.

         After carefully considering the evidence in this matter, for the following reasons, I find Mr. Brown's Petition should be DISMISSED with prejudice and no certificate of appealability should issue.

         B. Facts[1]

         On September 22, 1988, the body of Myrtle Holmes was discovered hidden in the trunk of her car, which was parked at her residence in Fordyce, Arkansas. (R. 669.)[2] When police responded to the scene, they found the inside of the house ransacked and blood all over the walls and floor. (R. 670.) Several knives were discovered in the residence, including one with a broken handle on the living room floor. (R. 669-670.) A trail of blood went from the master bedroom, through the kitchen, and out through the utility room that lead into the carport, where Ms. Holmes's car was parked. (R. 671.)

         Ms. Holmes's body revealed multiple stab wounds and a slit throat. (R. 824.) DNA was collected from vaginal swabs taken from her body. (Doc. 11-3 at 531.) Law enforcement later determined Ms. Holmes had been raped. (Doc. 11-3 at 474.)

         Charlie Vaughn, Reginald Early, and John Brown, Jr. were all charged with the capital murder of Ms. Holmes. (Doc. 11-3 at 10.) But due to the complexity of the investigation, the State did not file charges until March 1990 - nearly two years later. (Id.)

         While not disclosed to the defense, Charlie Vaughn was confronted by a police informant named Ronnie Prescott in March 1991 while in jail awaiting trial. (Doc. 1 at 290.) Mr. Prescott was fitted with a small tape recorder and told to talk to Mr. Vaughn about the murder of Myrtle Holmes in order “to see what information [he] could gather from him.” (Id. at 291.) Mr. Prescott recorded several conversations with Mr. Vaughn over the course of a few days in which Vaughn apparently confirmed involvement in the murder. These recordings, however, were never provided to the defense and no longer exist. (Id. at 308.) The day after his interactions with Mr. Prescott, Mr. Vaughn entered a plea of guilty and claimed that John Brown, Jr., Reginald Early, and Tina Jimerson had all participated in the murder with him. Brown v. State, 315 Ark. at 468. Mr. Vaughn later recanted this confession when testifying at the trial of Mr. Early, Mr. Brown, and Ms. Jimerson. (Doc. No. 1 at 141). Despite this, all three were found guilty of first degree murder and aggravated robbery and sentenced to life in prison. Brown v. State, 315 Ark. at 468.

         In 2012, Reginald Early began working with the Innocence Project in an attempt to vindicate himself from the murder of Ms. Holmes. (Doc. No. 1 at 20). However, after the Innocence Project eventually filed a motion to have the DNA collected from Ms. Holmes retested with modern scientific techniques, Reginald Early abruptly confessed to having killed Ms. Holmes. Mr. Early now claims he was the sole perpetrator of the rape and murder of Myrtle Holmes - purportedly vindicating Petitioner John Brown, Jr. (Id.)

         II. EVIDENTIARY HEARING

         At the hearing, Petitioner presented evidence from eleven witnesses: Reginald Early, Karen Thompson, Kenny Parsons, Lee Parsons, Lateefah Abdullah, Ellis Ray Tidwell, Robert Jeffrey, Terri Childs, Patsy Lou Harris, Michael Earley, and Shannon Manning. Respondent did not call any witnesses.

         A. Reginald Early

         Mr. Early testified that he was born and raised in Fordyce, Arkansas. (Tr. 6.) He spoke about the trials that resulted in his incarceration and indicated that the first trial for capital murder and rape resulted in a mistrial. (Tr. 8.) At the first trial, the prosecution presented DNA evidence implicating only Mr. Early in the rape of Ms. Holmes. At the retrial, the prosecution chose not to present the DNA evidence and the defense for all three defendants made the strategic choice to also not present that evidence. For the second trial, the charges were reduced to first-degree murder and aggravated robbery. (Id.)

         Mr. Early said he was picked up by the police the next day and only hours after the murder occurred. Police officers told him they needed to speak to him because “something had been broken into and they was looking into that.” (Id.) He was taken to the police station and a handprint sample was given. (Tr. 10.) Police also interviewed Mr. Early and made no mention of John Brown, Tina Jimerson, or Charlie Vaughn. (Id.)

         In the hearing, Mr. Early claimed he did not associate with any of his co-defendants. In fact, he testified he had never seen John Brown before in his life. (Tr. 13.) While he knew Tina Jimerson through school and family, he did not spend any time with her. (Id.) Similarly, he knew Charlie Vaughn through playing football together, but never had any sort of relationship with him. (Tr. 14.) Mr. Early testified that at the time of his trial, he knew all three of his co-defendants were innocent because he “had committed the crime by [himself].” (Id.) When asked why he pleaded not guilty if he knew he had committed the murder, Mr. Early responded, “Because of what I was charged with. I was charged with committing a crime with people that I knew hadn't committed no crime, so I had to be just as innocent as they was.” (Tr. 16.)

         Mr. Early was presented with the affidavit he wrote on December 21, 2015, which detailed how he committed the crime alone. (Tr. 17.) He testified that before creating and signing the affidavit with his attorney, he never told anyone that he alone had killed Myrtle Holmes. (Id.) While he originally applied to the Innocence Project on behalf of his co-defendant, Charlie Vaughn (Tr. 18), that application eventually lead to Early's confession on which Mr. Brown bases his current Petition.

         On cross examination, Mr. Early testified that he dropped out of school after the ninth grade and proudly remarked, “I ain't never worked in my life.” (Tr. 28.) Rather, he regularly burglarized and “Stole, took” as his source of income. (Id.) Mr. Early testified that he ended up in jail at the age of sixteen or seventeen after getting into an altercation with his girlfriend. (Tr. 33.) A deal was worked out with the local authorities at the time where Mr. Early would stay out of prison as long as he never returned to Fordyce, with the exception of family emergencies. (Id.) Mr. Early testified, “So the sheriff, he didn't -- you know, I was young, and the sheriff kind of felt like my uncle would have been a bad influence on me, and he asked the sheriff - called my mother and said, ‘If I can get him out of this jail, can you get him out of town and not come back?' Talking about me.” (Id.) Subsequently, Mr. Early moved in with his paternal grandmother in Detroit, Michigan. (Id.) When asked what he did in Detroit, Mr. Early responded with, “I ran the streets.” (Id.)

         Mr. Early returned to Fordyce upon the death of his other grandmother a few months later. (Tr. 44.) On September 20, 1988, the day before his grandmother's funeral, Mr. Early began drinking and “walking through the town after the last liquor store closed, around 10 p.m.” (Tr. 45.) After walking through the town, Mr. Early arrived at the intersection where Myrtle Holmes lived and decided to “get even with her” for calling the police on him earlier in the day for kicking over some signs. (Tr. 45.)

         Mr. Early testified that he entered Ms. Holmes's residence through an unlocked side door in the carport. (Tr. 46.) After walking through the house, he came upon Ms. Holmes asleep in the back bedroom. (Tr. 47.) When she woke up and began to panic, he told her that he was “just there for money.” (Tr. 47-48.) After finding $240 in a chest of drawers in the bedroom, Mr. Early accused Ms. Holmes of lying about not having more money in the home. (Tr. 48.) When he began to search for more money, Ms. Holmes got out of bed and ran towards the living room. (Id.) Mr. Early tackled her onto the living room couch. (Id.) According to Mr. Early, this opened up a previous surgical wound on Ms. Holmes, accounting for the blood stains on the couch. (Id.)

         Mr. Early said he ushered Ms. Holmes back to her bedroom and began to search for money again. (Tr. 50.) He found none and decided to tie up Ms. Holmes with a thin piece of fabric so she could not alert the authorities. (Id.) Instead of letting Mr. Early tie her up, Ms. Holmes grabbed an empty pot off a nearby table and “started to swing it at [him] with all her might.” (Tr. 51.) Mr. Early tackled her to the ground, punched her in the face “around five or six times, ” and then raped her. (Id.) Mr. Early put her back on the bed and Ms. Holmes began hitting him again. (Id.) Mr. Early testified that he began to get frustrated at this point and grabbed three knives from the kitchen. (Tr. 52). Upon seeing the knives in Mr. Early's hand, Ms. Holmes started running towards the front door. (Id.) Mr. Early tackled her to the floor in the living room and stabbed her five or six times in the back. (Tr. 54.) He said that he tried to cut her throat but did not think that wound was very deep. (Id.)

         When she stopped moving, he “took her feet and dragged her through the living room, through the bedroom, through the kitchen and out the carport door.” (Id.) Mr. Early indicated that dragging her through the house accounted for the trail of blood that was found. (Tr. 55.) Mr. Early indicated he found a set of keys and attempted to start the car, but it would not start. (Tr. 56.) After that, he placed the body of Myrtle Holmes in the trunk of the car and was careful not to get blood on him. (Tr. 56-57.) He left the carport between 11:15 and 11:30, and threw the car keys into the woods to the right side of the house. (Tr. 57.)

         Mr. Early was asked how the co-defendants, specifically Charlie Vaughn, would know details about the crime scene without ever having been there. (Tr. 90.) Mr. Early responded that the police must have told him about the crime scene. (Id.) Mr. Early also denied the validity of Charlie Vaughn's confession, which indicated that it was Mr. Vaughn and Mr. Brown that placed the body of Myrtle Holmes into the trunk of her car. (Tr. 91.)

         Mr. Early testified that he was engaged by the Innocence Project in 2012. (Tr. 119.) About his thoughts of claiming innocence when he was actually the murderer, Mr. Early testified, “I'm in prison for being an accomplice to a crime I committed, and that was what I was telling the Innocence Project. That's what I told them. I was saying, hey, man, I ain't no accomplice. You know what I'm saying? From what I knew from my self-teachings, you know, I just felt like I was just as wronged as [Brown and Jimerson] was.” (Tr. 116-117.)

         He said that he wanted to admit to acting alone to his Innocence Project attorney from the beginning, but was unclear on whether the attorney-client privilege would extend to the speakerphone conversation he ...


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