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Brown v. Kelley

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

August 21, 2018

WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT



         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, [1] I adopt much of Judge Volpe's fact-finding and analysis.[2] However, I decline to adopt the Recommendation.

         For the reasons set out below, Petitioner John Brown's petition for writ of habeas corpus is GRANTED.[3] 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.[4] Respondent has thirty days from the entry of this order to release Mr. Brown or bring new criminal proceedings against him.

         I. BACKGROUND

         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[5] guilty of murder and aggravated robbery of Ms. Holmes. The convictions followed an April 1992 “hung jury” mistrial on rape and capital murder charges.

         A fourth co-defendant, Charlie Vaughn, pled guilty before the first trial, after an enticed confession to an undisclosed government informant.[6] 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 convictions:

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.[7]

         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.[8] Mr. Vaughn's former employer (and important state witness), Ellis Tidwell, thought Mr. Vaughn had the IQ of a seven-year-old.[9]

         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.[10] I adopt the factual findings and summaries of Judge Volpe and Judge Kearney, made after their respective evidentiary hearings in these related cases.[11] I adopt Judge Volpe's summary of the procedural history of Mr. Brown's case, [12] and incorporate Judge Kearney's summary of the evidence in the trial leading to Mr. Brown's conviction.[13]


         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;[14](3) a violation of due process rights under Arizona v. Youngblood;[15] (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.[16] Respondent argues the petition is time-barred, the claims are procedurally defaulted, and the claims fail on their merits.[17]

         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.[18]Corroborating testimony also presented Brady and Giglio[19] 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.[20]

         These multiple constitutional violations and irregularities seriously undermine any confidence in the outcome of the trial.[21] Even without the Brady violations, there is a reasonable probability that the result for Mr. Brown would have been different.


         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.[22] With few exceptions, a petitioner must exhaust remedies available in state courts, and file a timely petition, before a court can consider granting relief.[23]

         A. Timeliness

         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.[24] Mr. Brown's conviction is 26 years old.

         In the typical habeas proceeding, the limitations period begins to run when the judgment becomes final by the conclusion of direct review.[25] Direct review concluded in 1994.[26] Mr. Brown did not file any post-conviction proceedings that would statutorily toll the limitations period.[27] 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 21, 2016.[28]

         1. Ineffective Assistance Claims

         Mr. Brown's ineffective assistance of counsel claims are time-barred, subject only to equitable tolling.[29] Failure to present exculpatory DNA evidence during the second trial was a strategic mistake.[30] 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.[31] In 1998, too late for Mr. Brown, the Arkansas Supreme Court permanently barred his lead counsel from practicing law in Arkansas.[32] This came after a guilty plea to a federal suborning perjury charge.[33]

         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.

         2. Other Claims

         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.[34]

         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.[35] 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.”[36] “[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 conviction.[37]

         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.[38] 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.

         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.[39] 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.[40] Mr. Brown's trial counsel had never even heard of Mr. Prescott until Mr. Brown's evidentiary hearing on October 4, 2017.[41]By August 2016, Mr. Brown had discovered additional claims related to the testimony of Lee Parsons, Kenny Parsons, and Ellis Tidwell.[42]

         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.[43] Accordingly, Mr. Brown timely filed these claims in his December 21, 2016 petition.

         B. Procedural Default

         A petitioner challenging state custody must exhaust available state court remedies before seeking federal habeas review.[44] 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.[45]“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.”[46] Default is excused only if a petitioner shows cause and prejudice for the default or a miscarriage of justice.[47] A showing of “actual innocence” satisfies the miscarriage of justice exception to procedural default.[48]

         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.[49] 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.

         Mr. Brown meets the actual innocence gateway exception to procedural default recognized in Schlup, [50] House, [51] and McQuiggin.[52] 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.

         1. Actual Innocence

         Judge Volpe found Mr. Brown failed to establish actual innocence because Mr. Early's confession was not reliable.[53] Comparing this case to the claims of actual innocence presented in Schlup, [54] House, [55] and McQuiggin, [56] I find Mr. Brown proved a colorable-gateway claim of actual innocence.[57] I decline, as has the Supreme Court, to recognize a freestanding habeas claim of actual innocence.[58]

         Actual innocence may serve as a gateway to overcome procedural default or the expiration of the limitations period.[59] 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.[60] 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.”[61]

         The actual-innocence standard is demanding.[62] “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.'”[63] The standard does not require, however, “absolute certainty about the petitioner's guilt or innocence.”[64]

         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.[65] 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.[66] 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.[67] 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.

         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.[68] Mr. Early clearly committed the murder. The only question is if he committed the murder alone.

         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.[69]

         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.[70] 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.

         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.”[71] The jury did not hear their testimony.

         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.

         2. Cause and Prejudice

         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.”[72] Independent of actual innocence, Mr. Brown has shown cause and prejudice sufficient to excuse his default.

         Cause is established when “some objective factor external to the defense” impedes efforts to comply with state procedural rules.[73] 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 government.”[74]

         That case concerned a Brady violation, and its reasoning applies equally to Mr. Brown's Giglio, Youngblood, [75] 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.

         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.”[76]“Evidence 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.”[77]Accordingly, I will address the prejudice prong within the merits of Mr. Brown's claims.

         C. Merits of Mr. Brown's Claims

         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.

         1. Brady v. Maryland

         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.”[78] Evidence is material when there is “any reasonable likelihood” it could have “affected the judgment of the jury.”[79] A new trial is required when a petitioner proves a Brady violation.[80]

         Judge 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.[81]

         Judge Kearney found the State's excuses for the conduct unpersuasive:

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.[82]

         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.[83]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.[84] 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 murder trial.[85]

         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.[86] Investigator Earley recently testified, however, that Mr. Tidwell had some type of “I'll scratch your back and you'll scratch ...

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