Brown v. Rodgers

• Decision Date: 30 March 2015
• Docket Number: Case No. 1:99cv549
• Parties: DEBRA DENISE BROWN, Petitioner, v. SHIRLEY RODGERS, Warden and JEFFREY MODISETT, Indiana Attorney General, Respondents.
• Court: U.S. District Court — Southern District of Ohio

DEBRA DENISE BROWN, Petitioner, v. SHIRLEY RODGERS, Wardenand JEFFREY MODISETT, Indiana Attorney General, Respondents.

Case No. 1:99cv549

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

March 30, 2015

JUDGE MARBLEY

Magistrate Judge Preston Deavers

OPINION AND ORDER

Petitioner, a prisoner sentenced to death by the State of Indiana but incarcerated in the State of Ohio, has pending before this Court a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the Court upon Respondent's motion to dismiss procedurally defaulted claims, (ECF No. 107), Petitioner's response in opposition, (ECF No. 111), and Respondent's reply, (ECF No. 112.) Specifically, Respondent urges this Court to dismiss Petitioner's fourth, eighth, eleventh and twelfth grounds for relief in their entirety, as well as Part D of Petitioner's ninth ground for relief, due to procedural default. In her response, Petitioner elected to voluntarily withdraw her twelfth ground for relief, (ECF No. 111, at PageID 7847), but opposes Respondent's motion to dismiss as to the other grounds. (Id. at Page ID 7848.) Accordingly, this Court must decide whether Petitioner has defaulted her fourth, eighth, eleventh, and Part D of her ninth ground for relief. For the reasons that follow, the Court GRANTS Respondent's motion to dismiss with respect to Petitioner's fourth ground for relief, Part D of her ninth ground for relief, and her eleventh ground for relief but DENIES Respondent's motion with respect to Petitioner's eighth ground for relief.

I. Factual History

In the summer of 1984, Petitioner Debra Denise Brown, who was then nineteen-years old, and her companion, Alton Coleman, set off on a murderous crime spree spanning several states, including Ohio, Michigan, Indiana and Illinois. Petitioner is under a sentence of death in the State of Indiana but is incarcerated in the State of Ohio, where she is serving a life sentence for her role in the aggravated murder of fifteen-year old Tonnie Storey. See State v. Brown, 38 Ohio St.3d 305, 528 N.E.2d 523 (1988). Although Petitioner was sentenced to death by the State of Ohio in that case, on January 10, 1991, former Ohio Governor Richard Celeste commuted Petitioner's death sentence to a term of life imprisonment without the possibility of parole. (Am. Pet., ECF No. 88, at PageID 168.) Also in Ohio, Petitioner was convicted of the unrelated aggravated murder of Marlene Walters, and the attempted aggravated murder of her husband, Harry Walters, and was sentenced to life without parole for twenty years, as well as three consecutive terms of 10 to 25 years. See State v. Brown, 31 Ohio App.3d 86, 508 N.E.2d 1030 (1986). On April 26, 2002, Alton Coleman was executed by the State of Ohio.

The death sentence that is the subject of this habeas proceeding was imposed on June 23, 1986, in Lake County, Indiana. Petitioner and Alton Coleman were convicted and sentenced to death in separate proceedings for stomping a seven-year old girl to death and attempting to murder a nine-year old girl by choking her with a belt after sexually assaulting her. The Indiana Supreme Court summarized the evidence supporting Petitioner's conviction and death sentence as follows:

The evidence supporting the jury's verdict reveals that on June 18, 1984, A.H., then age nine, and her niece, Tamika Turks, then age seven, were walking back to Tamika's house after a trip to a candy store and a hot dog stand in Gary. A man and a woman, Alton Coleman and Deborah Brown, approached the girls. Coleman asked the children if they wanted some clothes. They seemed agreeable, and Coleman asked them to follow Brown. Coleman said he would catch up withthem later. Although Tamika commented to A.H. along the way that they should not have gone with these people, the children accompanied Brown on a walk to a secluded, wooded area. The walk was approximately 1.4 miles long, and was estimated to have taken 40 minutes for small children.

Coleman caught up with Brown and the children. At the woods he announced he was going to play a game. The adults removed Tamika's shirt and Brown then cut the shirt into strips which were used to tie up the hands, legs, and mouths of the children. At this point, Tamika began to cry and the attackers pushed her down. While Brown held Tamika's nose and mouth, Coleman stomped on Tamika's stomach and chest. The two assailants carried Tamika a short distance away, hidden in weeds out of A.H.'s view.

A.H. was then forced to perform oral sex on both Coleman and Brown. Coleman revealed a partially concealed gun and threatened to kill A.H. if she did not comply. He then raped A.H. Afterwards, A.H. heard a loud moan coming from where the two had taken Tamika. Brown stated that the girl was not dead yet, and went over to the area where Tamika was.

When Brown returned, she and Coleman began choking A.H. with their belts. A.H. lost consciousness. When she awoke, the assailants were gone. A.H. stumbled back out of the wooded area. She was discovered by a woman who called A.H.'s mother and an ambulance. Tamika lay dead in the woods.

State v. Brown, 577 N.E.2d 221, 224-25 (Ind. 1991).

On November 26, 1984, an Information was filed in the Lake County, Indiana Superior Court, charging Petitioner with Murder, Murder in Perpetration of a Felony, Confinement, Attempted Murder and Confinement. The charges alleged that Alton Coleman and Petitioner murdered Tamika Turks and attempted to murder A.H. (Am. Pet., ECF No. 88 at PageID 153.) Attorney Daniel Toomey, from the Lake County Public Defender's Office, and Attorney Albert Marshall were appointed to represent Petitioner. On May 7, 1986, jury selection began and on May 13, 1986, the trial commenced. (Id. at PageID 154.) On May 17, 1986, the jury returned verdicts convicting Petitioner of the murder of Tamika Turks and the attempted murder and molestation of A.H. On May 17, 1986, the penalty phase began and on May 22, 1986, the juryreturned a recommendation of death. (Id.) On June 23, 1986, the trial court accepted the jury's recommendation and sentenced Petitioner to death. As to the non-death counts, the trial court imposed an additional eighty years to be served consecutively. (Id.)

II. Indiana State Court Procedural History

A. Direct Appeal

On December 18, 1986, Attorney Daniel Toomey, who served as Petitioner's lead trial counsel, was appointed to represent Petitioner in her direct appeal. In the Amended Petition, Petitioner characterizes the circumstances surrounding her direct appeal as follows:

Attorney Toomey agreed to represent Brown on appeal in December of 1986. He was the sole attorney on the appeal. The pleadings were voluminous and required several extensions, supplemental and amended pleadings, and motions to correct the record. On September 21, 1988, Toomey was granted a final extension to file his brief by November 21, 1988. On November 21, 1988, Attorney Toomey requested additional time to file his brief. Toomey was granted until November 28, 1988 but was informed that he was to appear and show cause why he should not be found in contempt on November 29 if the brief was not filed. (ROP PCR Vol. I p. 68-69.) On November 29, 1988, Toomey called the Clerk of Court on November 29 and explained that the brief would not be filed and that the majority of the work had not been started until November 2, 1988. (Id.) Toomey was informed that a decision on contempt would be made by the court on December 14, 1988. Toomey filed the brief on December 13, 1988. Toomey was held in contempt and fined $500.00 for failure to comply with two final extensions which the Indiana Supreme Court characterized as "willful disobedience."

Only the following issues were raised in the Direct Appeal.

Issue I: WHETHER THE TRIAL COURT ERRED IN ADMITTING THE IN-COURT IDENTIFICATION, OF THE DEFENDANT, BY PROSECUTING WITNESS, A.H.?

Issue II: WHETHER THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF UNCHARGED CRIMES AGAINST TONNIE STORIE?

Issue III: WHETHER THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF THE DEFENDANT'S ORAL CONFESSION?

Issue IV: WHETHER THE TRIAL COURT ERRED IN ADMITTING INTO

EVIDENCE AND PERMITTING THE JURY TO VIEW AN AUDIO/VIDEO RECORDING WHICH DEPICTED THE DEFENDANT WHILE TESTIFYING AT AN EARLIER TRIAL?

Issue V: WHETHER THE TRIAL COURT ERRED IN REJECTING DEFENDANT'S INSTRUCTION NO. 1?

(Am. Pet., ECF No. 88, at PageID 155-56.)

On August 29, 1991, the Indiana Supreme Court issued an opinion and order affirming Petitioner's convictions and sentence of death. See Brown v. State, 577 N.E.2d 221 (Ind. 1991). One judge filed a dissenting opinion, finding that Petitioner did not knowingly and voluntarily waive her right to counsel in the face of continued custodial interrogation after she invoked her right to speak to counsel. (Id. at 235.) Counsel for Petitioner filed a petition for rehearing before the Indiana Supreme Court on the interrogation issue, which was denied. (Am.Pet, ECF No. 88, at PageID 156.) Counsel then filed a Petition for Writ of Certiorari on the interrogation issue before the United States Supreme Court, which was also denied. Brown v. Indiana, 506 U.S. 833 (1992).

B. Post-Conviction Proceedings

Attorney Ken Murray moved for pro hac vice admission in Indiana to represent Petitioner in her state post-conviction proceedings. Attorney Murray was assisted by local counsel, James Thiros. (Am. Pet., ECF No. 88, at PageID 156.)

On April 8, 1993, Petitioner filed her petition for post-conviction relief. (ROP PCR Vol. I p. 102-164.) On May 8, 1993, and following the start of an evidentiary hearing, Petitioner filed an amended petition which complied with the trial court's instructions to renumber her claims. (ROP PCR Vol. II p. 388-444.) The Court will not recite herein each claim raised in the post-conviction petition or amended petition, but will reference the relevant claims as it addressesthe merits of Respondent's motion to dismiss.

The post-conviction court held an...