Clark v. Dunn
| Decision Date | 02 January 2018 |
| Docket Number | CIVIL ACTION 16-0454-WS-C |
| Parties | CHARLES GREGORY CLARK, Petitioner, v. JEFFERSON S. DUNN, etc., Respondent. |
| Court | U.S. District Court — Southern District of Alabama |
This matter is before the Court on the petitioner's amended petition for writ of habeas corpus. (Doc. 13). The parties have filed briefs in support of their respective positions, (Docs. 13, 52, 55, 57),1 and the petition is ripe for resolution. After carefully considering the foregoing and all other relevant materials in the file,2 the Court concludes that the petition is due to be denied in its entirety.
On the morning of February 14, 1998, the petitioner killed William Fuller Ewing at Ewing's gas station/convenience store on Fort Morgan Road in Baldwin County. The petitioner was convicted of capital murder under Section 13A-5-40(a)(2) of the Alabama Code (). The trial judge imposed the death penalty after the jury, by a vote of 11-1, recommended thatsanction. The Alabama Court of Criminal Appeals ("CCA") remanded for additional written findings and possible resentencing.3 The trial judge did not alter the sentence and, on return from remand, the CCA affirmed the conviction and sentence.4 The Alabama Supreme Court denied a petition for writ of certiorari.5 The Supreme Court thereafter also denied certiorari,6 concluding the petitioner's direct appeals.
The petitioner began his collateral attack on his conviction and sentence by a petition filed under Alabama Rule of Criminal Procedure 32. The trial court denied relief in July 2013. The CCA affirmed,7 and the Alabama Supreme Court denied certiorari,8 whereupon the petitioner timely filed his federal petition. The petitioner prays for discovery, a full evidentiary hearing, and issuance of the writ. (Doc. 13 at 108).
The petitioner did not and does not deny that he killed Ewing. Moreover, he and the state were and are in substantial agreement regarding the evidence of events preceding and following the fatal encounter. They disagree strongly, however, over what transpired during that encounter, which was witnessed by no other person and chronicled by no recording device.
Over a period of approximately three years preceding the killing, the petitioner developed an addiction to crack cocaine, resulting in the depletion ofmost of his assets. In the seven to ten days prior to the killing, the petitioner spent approximately $2,800 (received as an income tax refund) on crack cocaine, which he and his girlfriend, Rhonda Kenny, consumed. On the night of February 13, 1998, the petitioner arrived at Kenny's apartment in Pensacola, Florida after smoking crack during the day, and he and Kenny stayed up all night smoking crack. At some point during the night, the petitioner left in his truck but returned on foot. At approximately 5:00 a.m. on February 14, 1998, the petitioner, still high on crack, borrowed Kenny's vehicle to go to Seminole, Florida. Before leaving, he borrowed $40 from Kenny's brother-in-law. The petitioner at some point drove to Gulf Shores, Alabama, where his mother and step-father had a beach house on Fort Morgan Road. He pulled in to Ewing's gas station/convenience store, which was closed, and waited.
At approximately 7:20 a.m., as he drove down Fort Morgan Road past Ewing's establishment, James Iles saw an individual on his hands and knees in the parking lot and saw another individual walk towards a car parked at the gasoline pumps, enter the car and drive away. Suspicious, Iles followed the car, got its tag number and called 911.
Law enforcement arrived at the gas station at approximately 7:45 a.m. Ewing was dead, his body on the ground facing the convenience store, his head and chest at its threshold. He had been stabbed and cut repeatedly, and the blood extended approximately six feet outside the store. Several drops of blood were found on the counter, and several more drops were found on the floor behind the counter, along with a pack of cigarettes impressed with a clump of human hair. A stick with no visible blood on it was standing on end in the corner behind the counter. A baseball-style cap was in front of the counter. The cash register was on the floor in front of the counter, and there were loose coins on the floor and on the counter. Ewing had over $600 in cash on his person. A gas pump was on and reflected that $14.72 in gas had been pumped from it. The gas hose and nozzlewere lying on the ground, and a shoeprint was discovered nearby. The cash-register tape indicated no transactions since the previous night.
Dr. Leroy Riddick, a medical examiner, found fifteen stab wounds and seventeen cuts on Ewing's body.9 Ten of the stab wounds were to the front of Ewing's torso. The single most serious was a stab wound into the heart, but there was also a 3½-inch deep stab wound into the big right chest muscle and a stab wound that struck the sixth rib (which is located just below the level of the heart). In addition to the ten stab wounds, Ewing's torso was cut seven times - twice above the left nipple, twice at the rib cage, and three times on the side of the abdomen. Ewing also received three stab wounds in the back, two of which struck bone. His right hand was sliced over an inch deep and a separate stab wound reached bone. Ewing's face received five cuts, the most serious over an inch long and almost an inch deep, creating a flap on the lip. There was a shallow "scratch" cut on the neck that, had it gone deeper, could have cut the jugular vein. Other minor cuts were found on Ewing's back, left buttock, left flank and right arm.
Dr. Riddick concluded the wounds were most likely caused by a knife and that Ewing was alive when each wound was inflicted. The stab wound to the heart would have been fatal within minutes, but Dr. Riddick could not determine the order in which the wounds were inflicted. Dr. Riddick concluded that wounds to Ewing's hands and arms were defensive and that the small number of them indicated that Ewing and his assailant were within two feet and struggling at the time of the stabbing.
The petitioner was stopped by law enforcement on Highway 59 in Gulf Shores shortly after he left Ewing's store.10 He had a significant amount of bloodon his hands, neck and clothes but no apparent wounds. He also had a bald spot near the crown of his head. Bills totaling $397 were found stuck between the two front seats, and a ski mask and that morning's Mobile Register newspaper were on the floor of the passenger seat. The vehicle's gas gauge indicated a full tank, and the door to the gas tank was open.
The petitioner was arrested and taken to the Gulf Shores police station, where he waived his Miranda rights and gave his version of events, which was recorded on tape. The petitioner admitted stabbing Ewing with the petitioner's hunting/skinning knife and taking Ewing's bank bag. He agreed to take the investigators to where he had discarded these items along Fort Morgan Road, and the bag was located, still containing Ewing's checkbook. Two knives were located along the road, either of which Dr. Riddick concluded could have been the weapon, but they had insufficient blood to allow DNA testing. There was testimony that the hair clump appeared to match the petitioner's hair and that the shoeprint matched the soles of the boots the petitioner was wearing when arrested. A forensic expert conducted DNA testing of blood samples from the petitioner's jeans, neck and right hand and concluded that the blood was Ewing's.
The petitioner did not testify at trial, but the jury heard an audiotape of his statement to police, which was recorded about 1:00 p.m. on February 14. The petitioner stated that the previous morning he had pawned his boat motor and his step-father's rifle and smoked the crack he bought with the proceeds. Throughout the day he borrowed money multiple times to buy more crack, which he smoked. Some time after midnight, the truck he was driving ran out of gas in a rough neighborhood. He had money but wanted to spend it on crack rather than gas, so he walked to Kenny's place. Because of the hour and the neighborhood, he took with him his hunting jacket and the knife (but not the sheath) he kept in the truck. Shortly before 5:00 a.m., he borrowed Kenny's car and drove to his house in Seminole, checked the mail, then drove to Gulf Shores to go to his mother's andstep-father's beach house. The petitioner left the beach house, noticed the car was low on gas, and stopped at Ewing's gas station, which was the closest one.
When Ewing showed up ten or fifteen minutes later, the petitioner (who had known Ewing for ten years) asked Ewing to turn on the gas pump. Ewing did so. The petitioner started pumping and left it running on automatic while he entered the convenience store, wearing a camouflage ball cap. He talked with Ewing and asked for a pack of Doral 100 cigarettes, which Ewing retrieved and laid on the counter. Ewing told the petitioner the gas was fourteen dollars and some change, which the petitioner gave him. The petitioner noticed Ewing's money bag laying open on the cash register, the door of which was open because Ewing hadn't put the money from the money bag in the register. Ewing gave the petitioner his change and they talked another five minutes. When the petitioner started to walk away, Ewing asked if he was going to pay for the gas. The petitioner said he already had. Ewing said the petitioner had not paid and that he was going to call the sheriff's department. The petitioner said to call because he had already paid. Ewing came from around the counter and the two kind of tussled back and forth a little bit, pushing and shoving.
According to the petitioner, Ewing returned to behind the counter and got a stick, about 20 to 24 inches long and over an inch thick. In the little aisle leading behind the...
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