United States District Court, E.D. Arkansas, Pine Bluff Division
ROY WILSON UNITED STATES DISTRICT JUDGE
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,  I adopt much of Judge Volpe's
fact-finding and analysis. However, I decline to adopt the
reasons set out below, Petitioner John Brown's petition
for writ of habeas corpus is GRANTED. Mr. Brown's Motion to
Authorize Discovery, Compel a Search for Evidence, and Order
DNA Testing (Doc. No. 33) is DENIED as MOOT. 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 bring new criminal
proceedings against him.
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 guilty of murder and aggravated robbery of
Ms. Holmes. The convictions followed an April 1992
“hung jury” mistrial on rape and capital murder
fourth co-defendant, Charlie Vaughn, pled guilty before the
first trial, after an enticed confession to an undisclosed
government informant. Mr. Vaughn recanted, but his confession
was critical trial evidence leading to the convictions. The
Arkansas Supreme Court noted how critical the confession was
when it found sufficient evidence to uphold Mr. Brown's
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 [sic]
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.
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. Mr. Vaughn's former employer (and
important state witness), Ellis Tidwell, thought Mr. Vaughn
had the IQ of a seven-year-old.
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.
details of the brutal rape, robbery, and murder of Ms. Holmes
and the subsequent investigation are
well-documented. I adopt the factual findings and
summaries of Judge Volpe and Judge Kearney, made after their
respective evidentiary hearings in these related
cases. I adopt Judge Volpe's summary of the
procedural history of Mr. Brown's case,  and
incorporate Judge Kearney's summary of the evidence in
the trial leading to Mr. Brown's
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;(3) a violation of due process rights
under Arizona v. Youngblood; (4) a
violation of due process because of the failure to disclose
additional interviews and incentives provided to witnesses
Ellis Tidwell and Kenny Parsons in exchange for testifying;
(5) a violation of due process when the prosecutor failed to
correct known, false evidence; and (6) multiple instances of
ineffective assistance of counsel. Respondent argues the
petition is time-barred, the claims are procedurally
defaulted, and the claims fail on their merits.
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.Corroborating testimony also presented
Brady and Giglio issues. The State
violated Youngblood by destroying evidence directly
related to the confession. Finally, it appears that the State
violated Napue by knowingly permitting a government
witness to give false testimony.
multiple constitutional violations and irregularities
seriously undermine any confidence in the outcome of the
trial. Even without the Brady
violations, there is a reasonable probability that the result
for Mr. Brown would have been different.
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. With few exceptions, a
petitioner must exhaust remedies available in state courts,
and file a timely petition, before a court can consider
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. Mr. Brown's conviction is 26 years
typical habeas proceeding, the limitations period begins to
run when the judgment becomes final by the conclusion of
direct review. Direct review concluded in
1994. Mr. Brown did not file any
post-conviction proceedings that would statutorily toll the
limitations period. The one-year limitations period
commenced in 1996, giving Mr. Brown until 1997 to bring any
claim for which the factual predicate was discoverable in a
timely petition. He filed the instant petition on December
Ineffective Assistance Claims
Brown's ineffective assistance of counsel claims are
time-barred, subject only to equitable tolling. Failure to
present exculpatory DNA evidence during the second trial was
a strategic mistake. Failing to investigate witnesses more
thoroughly was well below any reasonable standard. Failing to
timely file motions or to preserve any points for appeal was
deficient. In 1998, too late for Mr. Brown, the
Arkansas Supreme Court permanently barred his lead counsel
from practicing law in Arkansas. This came after a guilty
plea to a federal suborning perjury charge.
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.
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.
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.
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. In reality though, that would have
required Mr. Brown to continually review federal district
court filings over the last 26 years - and 28 U.S.C. §
2244(d)(1)(D) requires only reasonable diligence, not
“maximum feasible diligence.”
“[D]iligence can be shown by prompt action on the part
of the petitioner as soon as he is in a position to realize
that he has an interest in challenging” a
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. Though Mr. Brown's petition is
timely under Judge Volpe's conclusion, I find that even
this date required more than reasonable diligence. Mr. Brown
was indigent, incarcerated, and had no counsel at that time.
For the reasons set out below, I believe June 2016 is the
earliest possible date, based on reasonable diligence.
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. This was the first reasonable
opportunity for Mr. Brown to learn of the investigations
already underway on behalf of Mr. Early and Ms. Jimerson, Mr.
Early's confession, and the claims submitted in Ms.
Jimerson's petition. On June 15, 2016, during Ms.
Jimerson's evidentiary hearing, Mr. Brown learned of
Ronnie Prescott's role as an informant or
agent. Mr. Brown's trial counsel had never
even heard of Mr. Prescott until Mr. Brown's evidentiary
hearing on October 4, 2017.By August 2016, Mr. Brown had
discovered additional claims related to the testimony of Lee
Parsons, Kenny Parsons, and Ellis Tidwell.
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. Accordingly, Mr. Brown timely filed
these claims in his December 21, 2016 petition.
petitioner challenging state custody must exhaust available
state court remedies before seeking federal habeas
review. To exhaust state remedies, a petitioner
uses the state's established review procedures to present
the substance of each claim to the appropriate state court,
thereby giving it an opportunity to pass upon and correct any
constitutional error.“Claims in a federal habeas
petition not presented in the state court proceedings and for
which there is no remaining state court remedy are
defaulted.” Default is excused only if a petitioner
shows cause and prejudice for the default or a miscarriage of
justice. A showing of “actual
innocence” satisfies the miscarriage of justice
exception to procedural default.
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. Generally, Mr. Brown defaulted any claim
he could bring in a federal habeas petition. But, based on
this record, I find merit in Mr. Brown's claims.
Brown meets the actual innocence gateway exception to
procedural default recognized in Schlup,
House,  and McQuiggin. Separately,
Mr. Brown excused his default by showing cause and prejudice.
I also find that under the circumstances here, the State
failed to provide a corrective process, or, at least, the
process was ineffective to protect Mr. Brown's rights.
Accordingly, the State cannot rely on procedural default to
defeat Mr. Brown's claims.
Volpe found Mr. Brown failed to establish actual innocence
because Mr. Early's confession was not
reliable. Comparing this case to the claims of
actual innocence presented in Schlup, 
House,  and McQuiggin,  I find Mr.
Brown proved a colorable-gateway claim of actual
innocence. I decline, as has the Supreme Court, to
recognize a freestanding habeas claim of actual
innocence may serve as a gateway to overcome procedural
default or the expiration of the limitations
period. A threshold showing of actual innocence
requires new, credible evidence sufficient so that no
reasonable juror would have found the petitioner guilty
beyond a reasonable doubt. A petitioner must support the
allegations with “reliable evidence-whether it be
exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence-that was not
presented at trial.”
actual-innocence standard is demanding. “The
gateway should open only when a petition presents
‘evidence of innocence so strong that a court cannot
have confidence in the outcome of the trial unless the court
is also satisfied that the trial was free of non-harmless
constitutional error.'” The standard does not
require, however, “absolute certainty about the
petitioner's guilt or innocence.”
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.
Brown's first trial resulted in a hung jury split
six-to-six. Ms. Holmes was brutally raped, stabbed,
beaten, and murdered. The State's theory was that Mr.
Brown, personally, raped and repeatedly stabbed Ms. Holmes,
with Mr. Vaughn and Mr. Early participating. Police found
hair in both Ms. Holmes's hands and genetic material
under her fingernails. Evidence also included a satin pillow
case, blue sheet, yellow throw rug, a fitted sheet, a top
sheet, a blue pillowcase, white apparel, a blue house coat,
green pajama top, white top, a shirt, a telephone cord, a
pot, a saucepan, a knife handle, and two
knives. Yet none of the physical
evidence connected Mr. Brown to the crime. Furthremore, DNA
evidence presented at the first trial excluded Mr. Brown as
the donor; instead, the DNA came from Mr. Early, who now
swears he raped and murdered Ms. Holmes alone.
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. Mr. Early clearly committed the murder.
The only question is if he committed the murder alone.
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.
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
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
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. Mr. Tidwell
knew it was Mr. Brown because Mr. Vaughn introduced them. Mr.
Tidwell now claims he only identified Mr. Brown after having
been shown a previously undisclosed photo lineup.
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.” The jury did not hear
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
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
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.
Cause and Prejudice
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.” Independent
of actual innocence, Mr. Brown has shown cause and prejudice
sufficient to excuse his default.
is established when “some objective factor external to
the defense” impedes efforts to comply with state
procedural rules. The Supreme Court has found cause with
facts almost identical to Mr. Brown's:
In summary, petitioner has established cause for failing to
raise a Brady claim prior to federal habeas because
(a) the prosecution withheld exculpatory evidence; (b)
petitioner reasonably relied on the prosecution's open
file policy as fulfilling the prosecution's duty to
disclose such evidence; and (c) the Commonwealth confirmed
petitioner's reliance on the open file policy by
asserting during state habeas proceedings that petitioner had
already received “everything known to the
case concerned a Brady violation, and its reasoning
applies equally to Mr. Brown's Giglio,
Youngblood,  and Napue claims. Mr. Brown
firmly established cause for his procedural default when
considering the withheld evidence; reliance on an open-file
policy; the State's knowledge that the reliance prevented
Mr. Brown from discovering critical impeachment evidence; the
destruction of evidence; and the potentially false,
uncorrected testimony presented at trial.
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' within the meaning of Brady
when there is a reasonable probability that, had the evidence
been disclosed, the result of the proceeding would have been
different.”Accordingly, I will address the prejudice
prong within the merits of Mr. Brown's claims.
Merits of Mr. Brown's Claims
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.
Brady v. Maryland
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.” Evidence is material when there is
“any reasonable likelihood” it could have
“affected the judgment of the
jury.” A new trial is required when a
petitioner proves a Brady violation.
Volpe found one of the Brady violations in this case
to be glaring:
Mr. Brown has clearly proven a predicate constitutional
Brady v. Maryland, 373 U.S. 83 (1963), violation
whereby law enforcement enticed a confession out of Mr.
Vaughn and deliberately failed to disclose this information
to the defense. This conduct is deeply troubling and is the
kind of conduct that causes courts and the public to lose
trust in our law enforcement officers and the judicial
process. The fact that Mr. Vaughn was specifically targeted
in this effort is also not lost on me.
Kearney found the State's excuses for the conduct
Respondent's argument that the factual predicate of
Petitioner's claims was discoverable before trial, had
trial counsel taken advantage of the prosecutor's
open-file policy and reviewed the case files, is
unpersuasive. There is no question that the prosecutor's
responses to trial counsel's discovery requests in this
case were misleading at best, and arguably untruthful. The
police did use an informant; tape recordings with
co-defendant Vaughn talking to the informant did exist; and
the informant did have pending charges against him dropped as
a result of his help with the case. It was not unreasonable
for trial counsel to rely on, not just the presumption that
the prosecutor would fully perform his duty to disclose all
exculpatory materials, but also the implicit representation
that such materials would be included in the open files
tendered to defense counsel for their examination. The
problem here is that the prosecutor's file, for whatever
reason, did not contain the tape recordings or any
information that indicated they had used an informant. So
whether trial counsel reviewed the file or not, nothing was
there. Because it is presumed that prosecutors will fully
“discharge their official duties, ” it was not
unreasonable for trial counsel to rely on the
prosecutor's open-file policy as fulfilling the
prosecution's duty to disclose exculpatory evidence.
Whether the nondisclosure was inadvertent or deliberate,
under Brady, it has the same impact on the fairness of the
proceedings. See id. Likewise, it was not
counsel's job to review the prosecutor's file to
determine if there had, in fact, been a misrepresentation as
to these matters.
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.
entire record is relevant when considering the materiality of
a Brady violation.That makes the lack of reliable
evidence showing Mr. Brown's guilt important. Failure to
disclose exculpatory or impeachment evidence would not
undermine confidence in the verdict if there was other
overwhelming evidence against Mr. Brown. Here, the
“State's trial evidence resembles a house of cards,
” built on a highly questionable confession, supported
by jail-house trustees and testimony from witnesses who were
so drugged-out, they cannot even remember testifying in a
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.
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.
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. Investigator Earley recently testified,
however, that Mr. Tidwell had some type of “I'll
scratch your back and you'll scratch ...