United States District Court, E.D. Arkansas, Pine Bluff Division
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.
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.
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.
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.
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.
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.
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.
MOTIONS TO EXPAND RECORD AND TO CITE ADDITIONAL AUTHORITY
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”).
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)).
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.
Timeliness and Due Diligence
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).
Timeliness of Jimerson's Actual Innocence Claim
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.
Timeliness of Jimerson's Brady Claim
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).
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.
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