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Jimerson v. Kelley

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

September 28, 2018

TINA JIMERSON ADC #704449 PETITIONER
v.
WENDY KELLEY, Director Arkansas Department of Correction RESPONDENT

          ORDER

         Tina Jimerson's petition for writ of habeas corpus is granted as to her Brady and Youngblood claims and denied as to her actual innocence claim; her convictions are vacated, and she is ordered released from the Arkansas Department of Correction within thirty days. Jimerson's motion to cite additional authority [Doc. No. 68] is granted, and her motion to expand the record [Doc. No. 69] is denied.

         I. PROCEDURAL HISTORY

         The factual findings, summary of the evidence, and summary of the procedural history detailed by Magistrate Judge Jerome Kearney are adopted. See Proposed Findings and Recommendations, Doc. No. 61.

         Myrtle Holmes was raped and murdered at her home in Fordyce, Arkansas, on September 22, 1988. See Record on Appeal, Resp.'s Ex. 11 (“R.”) at 669-73. On March 16, 1991, Charlie Vaughn, John Brown, Jr., and Reginald Early were charged with her murder. See Id. at 1. A week later, Vaughn pleaded guilty to first degree murder and was sentenced to life in prison. See R. 1051. Vaughn's testimony at his plea hearing implicated Brown, Early, and Jimerson. Vaughn testified that Jimerson drove the men to Holmes's residence and stayed in the car while the men carried out the crime. See R. 1043, 1049.

         Jimerson was charged as an accomplice and, over her objection, was jointly tried with Brown and Early for capital murder. DNA evidence connecting Early to Holmes's rape was presented, and the prosecution argued that Brown and Early committed the assault, rape, and murder, while Jimerson drove them and Vaughn to Holmes's residence. A mistrial was declared.

         Brown, Early, and Jimerson were subsequently charged with first degree murder and aggravated robbery. R. 404, 510. The DNA evidence linking Early to the crime was not presented at the second trial, and Vaughn-whose testimony first implicated Jimerson-recanted his testimony, stating that he was told what to say and that he was afraid of being sentenced to death. See R. 1059-61, 1069. Nevertheless, his earlier testimony implicating Jimerson was read into evidence. See R. 1035-1055. Based on witness testimony, Brown, Early, and Jimerson were convicted by a jury and sentenced to life in prison on August 19, 1992. See R. 1263-64.

         Jimerson timely appealed to the Arkansas Supreme Court, which affirmed her conviction in January 1994. See Brown v. State, 869 S.W.2d 9 (Ark. 1994). Jimerson has, however, steadfastly proclaimed her innocence. See, e.g., R. 1264 (stating at her sentencing, “The only thing I can say is it's gonna be an innocent person put in prison because I'm not guilty of this crime.”). Her habeas petition, under 28 U.S.C. section 2254, was filed on June 30, 2015, and is based on new material evidence that was not available at the time of her direct appeal. See Doc. No. 1. On January 26, 2016, she amended her petition to include a freestanding claim of actual innocence based on an affidavit executed by co-defendant Early on December 21, 2015. In that affidavit, Early states that he raped and murdered Holmes by himself. Doc. No.15-1 at 100-06. Jimerson petitions for relief, asserting violations of her due process rights under Brady v. Maryland, 373 U.S. 83 (1963), and Youngblood v. Arizona, 488 U.S. 51 (1988), and because she is actually innocent. In Brady, the Supreme Court held that withholding evidence favorable to the defendant, where that evidence is material to the defendant's guilt or punishment, violates due process. In Youngblood, the Supreme Court held that failing to preserve potentially useful evidence, when done in bad faith, denies the defendant due process.

         The proposed findings and recommendations submitted by Judge Kearney recommend denying relief for all claims. See Proposed Findings and Recommendations, Doc. No. 61 at 2, 47.

         II. MOTIONS TO EXPAND RECORD AND TO CITE ADDITIONAL AUTHORITY

         John Brown's habeas petition was granted on August 21, 2018. See Brown v. Kelley, No. 5:16-cv-00381, 2018 WL 3999705 (E.D. Ark. Aug. 21, 2018). The order in that case found that “the only direct evidence against . . . Brown, ” was “Vaughn's confession, the use of which in . . . Brown's trial was the result of a glaring Brady violation.” Id. at 13. On August 30, 2018, Jimerson moved for permission to cite the order granting Brown's petition. See Doc. Nos. 68, 76. That motion is granted. See, e.g., O'Connor v. Credit Prot. Ass'n LP, No. 4:11-cv-2187-SNLJ, 2013 WL 5340927, at *4 (E. D. Mo. Sept. 23, 2013) (granting a motion to cite an order “by a fellow district court involving the same defendant and considering the same issues”).

         Jimerson also moved on August 30, to expand the record [Doc. No. 69] to include testimony from Brown's evidentiary hearing. See Brown, No. 5:16-cv-00381, Doc. Nos. 37-38. That motion is denied. Jimerson had an opportunity to object to the magistrate judge's findings, including why the record was inadequate and why evidence she wished to include was not offered at the evidentiary hearing. She also received a two-month extension to file her objections. See Doc. Nos. 61, 63; Local Rule 72.1(VIII)(C-D) (providing fourteen days to file objections and submit additional evidence); see also Rules Governing Sec. 2254 Cases Rule 7 (explaining how the record may be expanded)).

         Jimerson timely filed her objections to the magistrate judge's findings and recommendations, which was more than one month after Brown's evidentiary hearing and three weeks after the transcript of the hearing became available. See Doc. No. 64. Her objections, however, failed to request that evidence from Brown's hearing be included in the record. She is not excused from her lack of diligence in this regard.

         III. DISCUSSION

         A. Timeliness and Due Diligence

         Jimerson must file her federal habeas petition under 28 U.S.C. section 2254 within one year of the date on which she could have discovered, through the exercise of due diligence, the factual predicate of, or “the vital facts underlying, ” her claims. 28 U.S.C. § 2244(d)(1)(D); Earl v. Fabian, 556 F.3d 717, 725 (8th Cir. 2009).

         1. Timeliness of Jimerson's Actual Innocence Claim

         Jimerson's actual innocence claim is timely because it was filed one month and five days after Early executed the affidavit upon which Jimerson's claim of actual innocence is based-well within one year of discovering the vital facts underlying her claim. See Earl, 556 F.3d at 725. Early maintained his innocence until he confessed to his lawyer in November 2015, that he committed the crime by himself. Evid. Hr'g Tr. (“Tr.”), Doc. No. 51, at 57, 65-68, 79. Jimerson could not have known of Early's confession until she became aware of his December 21, 2015, affidavit in which he swore out his confession. See Early Aff., Doc. No. 51, Pet. Ex. 1. Therefore, Jimerson timely discovered and pursued her actual innocence claim.

         2. Timeliness of Jimerson's Brady Claim

         Jimerson's Brady and Youngblood claims are based on her discovery of the same set of facts. See Doc. No. 59 at 28. For Jimerson's Brady claim, she must show that, in the year preceding the filing of her petition, she discovered through the exercise of diligence, evidence that (1) the prosecution suppressed evidence (2) that was favorable to her in that it is exculpatory or impeaching and (3) was material to her guilt or punishment. See United States v. Pendleton, 832 F.3d 934, 940 (8th Cir. 2016). Favorable evidence “is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Whitehill, 532 F.3d 746, 753 (8th Cir. 2008) (internal quotation marks omitted). “A reasonable probability of a different result is shown when the government's failure to disclose [the favorable evidence] undermines confidence in the outcome of the trial.” United States v. Jeanpierre, 636 F.3d 416, 423 (8th Cir. 2011) (citation omitted); Kyles v. Whitley, 514 U.S. 419, 434 (1995).

         The first question is whether Jimerson diligently worked to prove her innocence before discovering the new evidence. See Johnson v. United States, 544 U.S. 295, 311 (2005). The magistrate judge found that she did not. See Proposed Findings and Recommendations, Doc. No. 61 at 39-40. Jimerson testified that since the Arkansas Supreme Court affirmed her conviction, she filed an application and an update with the Innocence Project; she paid a lawyer to file a habeas petition, but the lawyer did nothing and was later disbarred; she filed clemency petitions; and her brother wrote organizations on her behalf. See Tr., Doc. No. 51 at 139-47. Jimerson's efforts were rewarded when her case was finally accepted by her current counsel in 2013. See Id. at 141-42. Given the prosecution's success in concealing and destroying useful evidence as described below, Jimerson's efforts as an incarcerated and indigent person were diligent.

         Once the legal clinic accepted Jimerson's case, it retained a private investigator named Greg Stimis, who spoke to Dallas County Sheriff Donny Ford in January 2014, and discovered Brady ...


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