Bragan v. Poindexter

• Decision Date: 06 December 2000
• Docket Number: No. 99-6322,99-6322
• Citation: 249 F.3d 476
• Parties: (6th Cir. 2001) Jeris E. Bragan, Petitioner-Appellant, v. David Poindexter, Warden, Respondent-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 476

249 F.3d 476 (6th Cir. 2001)

Jeris E. Bragan, Petitioner-Appellant, v. David Poindexter, Warden, Respondent-Appellee.

No. 99-6322

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: December 6, 2000

Decided and Filed: April 23, 2001

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 96-00309, Robert L. Echols, Chief District Judge.

John E. Herbison, Nashville, Tennessee, for Appellant.

Ellen H. Pollack, OFFICE OF THE ATTORNEY GENERAL, CRIMINAL JUSTICE DIVISION, Nashville, Tennessee, for Appellee.

Before: BOGGS and GILMAN, Circuit Judges; BECKWITH, District Judge^*.

BECKWITH, District Judge.

OPINION

Jeris Bragan appeals the district court's decision denying his petition for writ of habeas corpus based on his allegation of prosecutorial vindictiveness. For the reasons provided below, we affirm.

I. Facts and Procedural History

In the evidentiary hearing held on this matter before the United States Magistrate Judge William Haynes, the parties stipulated to the following facts:

The Petitioner, Jeris E. Bragan, was charged along with Darleen Bragan, who was then the wife of the Petitioner, with the premeditated and deliberate murder of George Nesbitt Urice in an indictment filed March 30, 1977. The Petitioner and his co-defendant spouse were jointly tried in September 1977. Mr. Bragan was convicted of first degree murder and sentenced to 99 years imprisonment. The former Mrs. Bragan was convicted of second degree murder and sentenced to not less than 15 years nor more than 20 years imprisonment, modified on appeal to a determinate sentence of fifteen years. Mr. Bragan's conviction was affirmed by the Court of Criminal Appeals of Tennessee on January 18, 1979. The Supreme Court of Tennessee denied certiori [sic] as to Mr. Bragan on April 9, 1979.

Mr. Bragan filed a petition for a writ of habeas corpus in the United States District Court on July 11, 1989. The writ was granted by the Honorable John T. Nixon in a memorandum and order filed April 17, 1992. The case was reported as Bragan vs. Morgan, 791 F. Supp. 704, [sic] (M.D. Tenn. 1992). The Court ordered Mr. Bragan released from custody if he was not provided a new trial within sixty (60) days, page 721 of the reported opinion.

Among the bases for this Court's previously granting habeas corpus relief were its findings that prosecuting attorneys at Mr. Bragan's 1977 trial knowingly suppressed evidence favorable to the defense and failed to correct the false or misleading testimony of the State's key witness, William Harold (Buggy) Torbett. The Court opined that Mr. Torbett's false statements were literally put in Torbett's mouth by the prosecutor on direct examination and later repeated in closing argument. The Respondent has acknowledged that Judge Nixon's findings in Bragan vs. Morganas to the prosecuting attorneys' misconduct at the 1977 trial have become the law of the case.

The State complied with this Court's 1992 order by releasing Mr. Bragan from custody on May 22, 1992. Subsequent to his release from custody, Mr. Bragan remained at liberty without bond even though he was subject to being retried in state court on the 1977 indictment.

(Pages 5-6 of Transcript of February 5, 1998 hearing before Magistrate Judge Haynes).

According to Petitioner, after the State dropped its appeal of the 1992 order granting Petitioner's habeas writ, he asked Fred Steltemeier, an attorney, to pursue disciplinary proceedings against Gary Gerbitz, the district attorney general and the lead prosecutor in Petitioner's original trial, and Stan Lanzo, an assistant district attorney involved in the initial prosecution of Petitioner. On June 22, 1992, Steltemeier filed a complaint with the Board of Professional Responsibility against Gerbitz and Lanzo. Steltemeier based the substance of the complaint primarily on Judge Nixon's memorandum granting Petitioner's habeas writ.

Following his release from prison, Petitioner gave interviews to the Associated Press, The Tennessean, the Banner, and the Chattanooga Times regarding his 1977 trial. He also appeared on several network radio programs as well as at least two radio talk shows in Nashville. The substance of those interviews concerned the perjury of an informant, William "Buggy" Torbett, and Petitioner's allegations that Gerbitz and Lanzo arranged for Petitioner and the informant to be locked in the same cell, that Gerbitz and Lanzo suborned perjury, and that they coached the informant as to what to say. Petitioner also communicated to the media that a witness at his original trial, Ralph Janow, had expressed that he was in fear of his life, and that Janow was subsequently murdered. Petitioner also appeared on television and spoke before groups about his trial and his prosecutors. In January 1993, Petitioner completed a book entitled Beyond Prison Walls, an autobiography scheduled for release on April 19, 1993. Petitioner summarized the content of the book's discussion of Gerbitz and Lanzo:

[t]hat I believe the evidence shows that they were corrupt prosecutors that suborned Mr. Torbett to perjury. That they arranged to have me placed in a cell with him so he could identify me. And that they went to great lengths to cover that up and keep it from ever being exposed.

(Page 46 of Transcript of February 5, 1998 hearing before Magistrate Judge Haynes).

In the fall following Petitioner's release, Lanzo telephoned Thomas Bloom, an attorney who represented Petitioner in his successful habeas corpus challenge in 1992. Lanzo proposed a meeting to discuss settlement and offered, in general terms, that Petitioner plead guilty to second-degree murder for time served. Lanzo communicated this offer to Petitioner who responded "rather immediate[ly] and clear[ly] that he was not guilty of the crime" and refused to plead guilty to second-degree murder.

The stipulated facts presented to the United States Magistrate Judge during the evidentiary hearing continue as follows:

On motion of the State of Tennessee, the murder prosecution was reinstated to the trial court's docket by order filed March 31, 1993. The Petitioner was arraigned in the Criminal Court of Hamilton County, Tennessee on April 19, 1993.

On the day of the state court arraignment, attorneys for the State of Tennessee filed in open court a motion seeking that, as a condition of the Petitioner being released upon his own recognizance, the Petitioner be prohibited 'from making any pre-trial, extrajudicial statements that would be in violation of the requirements that Counsel for the Defendant and the State must comply with as set out in Disciplinary Rule 7-107 of the Tennessee Code of Professional Responsibility.' The trial court granted the State's motion, and an order prohibiting the Petitioner from making certain extrajudicial statements remained in effect until vacated on the Petitioner's application by the Court of Criminal Appeals of Tennessee.

On motion of the Petitioner, the district attorney general for the eleventh judicial district, Hamilton County, and all assistant district attorneys general for that district were disqualified and a district attorney general pro tempore was appointed to prosecute case [sic] on behalf of the State.

(Pages 6-7 of Transcript of February 5, 1998 hearing before Magistrate Judge Haynes).

James Michael Taylor, District Attorney General for the 12th Judicial District for the State of Tennessee since 1992, served as District Attorney General pro tempore. At the time, he had approximately 17 years of legal experience. Taylor considered Gerbitz and Lanzo acquaintances but not friends.

Once assigned to the case in July 1993, Taylor met with the investigator in charge of the case and requested all of the files, evidence, and transcripts from the case. Taylor read all of the transcripts, some several times; examined the evidence; reviewed witness statements taken by the police; and accompanied one of his investigators to the scene where they took photographs and measurements and re-examined the evidence. Taylor interviewed several of the police officers, the man who was the medical examiner at the time of the murder, and Petitioner's ex-wife. Either Taylor's investigator or Taylor's assistant interviewed the remaining, available witnesses. After review of the entire case file, Taylor determined that at the very least he had a "good circumstantial evidence case for first degree murder."

Taylor's review of the evidence did not disclose any evidence that would not have been available to Gerbitz at the time he decided to reinstate the case. Taylor did not know of any change in the law between the time of the reinstatement and the time he entered the case that would have affected the decision to reinstate.

Taylor confirmed that he made an independent decision to prosecute the case and that it was not colored by anything that had previously occurred in the case between the Chattanooga District Attorney's office and Petitioner. Taylor denied that he had any personal stake in the prosecution of the case other than performing his duty as a district attorney. He does not recall ever seeing the complaint filed before the disciplinary board against Gerbitz and Lanzo. The media and others asked Taylor about that complaint during the Bragan trial, and he responded that the complaint was not his concern. He volunteered that he did not handle this case any differently from other murder cases pre-dating or subsequent to the Bragan case.

The following concludes the stipulated facts offered at the evidentiary hearing: The Petitioner filed a pre-trial motion to dismiss for vindictive prosecution in the Hamilton County Criminal Court. This motion was denied following an evidentiary hearing. Following conviction [of first-degree murder], the Petitioner presented the denial of this motion as an issue on appeal as of right to the Court of Criminal Appeals of Tennessee and in his ...