Fleenor v. Farley, No. IP 94-717-C-H/G.

CourtU.S. District Court — Southern District of Indiana
Writing for the CourtHamilton
Citation47 F.Supp.2d 1021
Decision Date02 February 1998
Docket NumberNo. IP 94-717-C-H/G.
PartiesD.H. FLEENOR, Petitioner, v. Robert A. FARLEY, Respondent.
47 F.Supp.2d 1021
D.H. FLEENOR, Petitioner,
v.
Robert A. FARLEY, Respondent.
No. IP 94-717-C-H/G.
United States District Court, S.D. Indiana, Indianapolis Division.
February 2, 1998.

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COPYRIGHT MATERIAL OMITTED

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Alan M. Freedman, Freedman & Bornstein, Chicago, IL, Carol R. Heise, Attorney at Law, Evanston, IL, for Plaintiff.

Geoff Davis, Office of Attorney General, Indianapolis, IN, for Defendant.

ENTRY ON PETITION FOR WRIT OF HABEAS CORPUS

HAMILTON, District Judge.


Petitioner D.H. Fleenor is a prisoner of the State of Indiana under a sentence of death. He was convicted in the Johnson Circuit Court of two counts of murder and one count of burglary in the murders of his

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wife's mother and stepfather, Nyla Jean Harlow and Bill Harlow. His convictions and sentence were affirmed on appeal in Fleenor v. State, 514 N.E.2d 80 (Ind.1987) (Fleenor I). A state trial court denied his petition for post-conviction relief, and that denial was affirmed on appeal in Fleenor v. State, 622 N.E.2d 140 (Ind.1993) (Fleenor II). The Supreme Court of the United States denied certiorari review of both final decisions. In this action, Fleenor petitions for a writ of habeas corpus setting aside his convictions and sentence. The respondent has filed a return to the court's order to show cause, and Fleenor has filed his reply. The court has reviewed in detail the records of the proceedings in the state courts and finds no need for an evidentiary hearing. For the reasons explained below, the court denies Fleenor's petition for a writ of habeas corpus.

Background

The evening of December 12, 1982, Fleenor murdered Nyla Jean Harlow and Bill Harlow, the mother and stepfather of his estranged wife, Sandra Sedam. Fleenor committed the murders in the Harlows' home in front of Sandra, her son, and two other Harlow grandchildren. Fleenor was charged in the Jefferson Circuit Court with two counts of murder and one count of burglary. The trial was moved to Johnson County, where a jury found Fleenor guilty of each of the charges. The record shows the following facts.

The night before the murders, Fleenor was drinking in a bar. He told an acquaintance that he was going to "kill all five of them" and that he also ought to kill Judge Hoying of the Jefferson Superior Court. 11 TR 3567, 3569, 3581.1 Fleenor also told this acquaintance that he would see Fleenor in the paper. 11 TR 3575-76. Fleenor told the bartender that he would probably never see Fleenor again because he would be spending the rest of his life in jail. 11 TR 3590. Late the next morning, Sunday, December 12th, he told a friend about the problems he was having with the Harlows and said that he ought to get a gun and kill them. 11 TR 3603, 3613-14. That afternoon, with the help of another friend, Fleenor bought a .22 caliber pistol and some ammunition from an acquaintance. 11 TR 3622-26. The Supreme Court of Indiana continued the story in Fleenor I:

During the course of the afternoon, [Fleenor] consumed approximately four beers, and he smoked a marijuana cigarette. He did not appear to be drunk or out of control to his companion. Between 4:00 p.m. and 5:00 p.m., Sandra Sedam and Nyla Harlow were Christmas shopping at a department store. At the store, they encountered [Fleenor], and they talked to him for about ten minutes. [Fleenor] was agitated and might have been drinking before this conversation. At approximately 6:30 p.m., [Fleenor] sought out Sandra Sedam at a church service. He behaved properly in the church, he apologized for the earlier meeting, and then he left.

514 N.E.2d at 82-83. Fleenor then got a ride to the Harlows' home from two other friends, Michael Albert and Ron Griffin. Fleenor told them that two girls lived there and that their father did not like him. He asked Griffin to go to the front door and, if a man answered the door, to say he was looking for "John Smith." As Griffin went to the door, he saw Fleenor duck down in the back seat of the car. 11 TR 3700-06, 3682-84. No one answered the door. Griffin returned to the car. Fleenor then got out of the car and said he would wait for the people coming back to the house. After Griffin and Albert drove away, Fleenor broke into the Harlows' home by prying open the back door. He replaced the screws to conceal the breakin.

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He hid in a bedroom closet and waited. 12 TR 3780-81.

At about 7:30 p.m., Bill and Nyla Jean Harlow returned home from church with Sandra Sedam, Sandra's son Justin, and Bill Harlow's grandchildren Billy and Angie. At that time Justin was two years old, Billy was ten, and Angie was twelve. Bill and Nyla Jean started talking about Fleenor having shown up at the church. At that point, Fleenor appeared in the hallway. He shot Bill in the abdomen. Bill collapsed to the floor, but that wound was not fatal. (The coroner testified that the shot to Bill's abdomen did not penetrate the subcutaneous tissue, did not enter the abdominal cavity, and would not have been fatal. 10 TR 3429-30.) Fleenor ordered the two women and the children to sit on the couch and not to help Bill. To make his point, Fleenor threatened to kill two year old Justin if they did not follow his orders. 11 TR 3737. After a time Fleenor allowed Nyla Jean to go to her husband Bill. As she tried to assist Bill, Fleenor took aim and shot her in the top of the head from across the room. The shot was fatal, but she made noises for a time as if she were suffering. 11 TR 3739-40; 12 TR 3933. Fleenor then ordered Sandra and the two older children to carry her into the bedroom. 11 TR 3739-40.

Fleenor later discovered that Bill Harlow was still conscious. Bill was asking about his wife and begged Fleenor not to leave him there. Bill told him that he was unable to get up, but Fleenor said that he had once been shot and had been able to move. 12 TR 3938. Sandra pleaded with Fleenor not to shoot Bill again, but Fleenor said, "You know I have to ... I can't let him suffer any more." Fleenor then fired one more shot into the back of Bill's head, killing him. 10 TR 3429-30, 12 TR 3908, 3938.

During the evening Fleenor became concerned that other family members might come to the Harlows' home, so he forced Sandra, Billy, Angie, and Justin to drive with him to the home of James Sedam, Sandra's brother.2 Fleenor then ordered Angie to tell James that they were going out of town for a few days, and he threatened to shoot the others in the car and the people in James' house if she did not follow his orders. 11 TR 3743; 12 TR 3909, 3940. Angie gave James the message, and Fleenor, Sandra, and the children then returned to the Harlow home. Fleenor barricaded the children into one room, and he and Sandra spent the night in another bedroom. 12 TR 3875-76. The bodies of Nyla Jean and Bill Harlow were still in the house. The next morning, Fleenor took money and a checkbook from Bill's wallet and Nyla Jean's purse. Then he, Sandra, Billy, Angie, and Justin drove to Tennessee. While in Tennessee, Fleenor called his mother in Indiana and told her that he thought he had killed the Harlows. A few days later, a SWAT team of Tennessee police surrounded the house where Fleenor and his family were staying. Fleenor held his family hostage for a time, threatening to kill the children if the police interfered. 12 TR 3776, 3951. He was eventually arrested by the use of force. 10 TR 3446-60; 12 TR 3771-78, 3952-53.

Fleenor was returned to Indiana to face charges of murder and burglary. He was held in the Jefferson County Jail. The prosecutor filed notice of his intention to seek the death penalty. While in jail, Fleenor wrote several letters to a girl-friend, Debra Slaughter. 12 TR 3982-97. He begged her to break him out of jail by obtaining a gun and a car, and by then forcing the night police dispatcher to unlock his cell at gunpoint. The letters contain detailed instructions for carrying out an escape. Fleenor had his mother secretly take those letters to Slaughter. One letter read in part:

This hurt's me deeply to say but sweet heart I've only got a matter of time to live. I talked with my to attorney's the

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past to day's. There is no hope for me I'm getting the death sentence. I didn't think they had it here in Indiana but they do I've got 2 charge's of first degree murder one charge is enough on the way I done thing's that's not all burgular to comit bodily harm kidnapping Interstate Flight. My lawyer's told me I was for sure to get the chair and I know myself. I've got 17 witness against me. I went for the crazy test today They said there was nothing wrong with me at the time.

12 TR 3983-3(sic). Another letter said in part:

Yesterday a guy from the State Hospital came down to talk to me I blew up on him I admitted I done it said I'd do it again if I had it to do all over I went wild with my mouth. I'm hung before I even go to court. Dam they got more witness from out of these bar's down here that heard me say time and time again I was going to do it. What the hell can I say but get me out of this fuckin place while you can if you love me and want to be with me.

12 TR 3987-2(sic). Another letter told Slaughter: "Don't kill nobody unless it's the last thing you can do," and to shoot the dispatcher in the arm if he tried to touch the radio. 12 TR 3984-4 & -5. Fleenor told Slaughter it was urgent that she help him escape before he was transferred to a more secure jail in another county. Police arrested Slaughter in a Laundromat across the street from the jail one night before Fleenor was scheduled to be transported to the other jail. She was driving a recently borrowed car and was carrying a recently purchased pistol. 12 TR 3979-81.

In a trial conducted in December 1983, a Johnson County jury found Fleenor guilty on two counts of murder and one of burglary. Indiana statutes provide that after a guilty verdict is returned on a capital offense, the jury hears evidence, arguments and instructions on the death...

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6 practice notes
  • Lowery v. Anderson, No. IP 96-71-C-H/G.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • July 6, 1999
    ...to the jury recommendation procedure in Indiana in Fleenor v. Anderson, 171 F.3d 1096 (7th Cir.1999), affirming Fleenor v. Farley, 47 F.Supp.2d 1021 (S.D.Ind.1998). In Fleenor the jury was told repeatedly and correctly that its decision would be a recommendation. The trial judge instructed ......
  • Hurst v. Branker, 1:10CV725
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • September 7, 2012
    ...v. Collins, 100 F. Supp. 2d 647, 732 (S.D. Ohio 2000) (internal brackets and quotation marks omitted); see also Fleenor v. Farley, 47 F. Supp. 2d 1021, 1049 (S.D. Ind. 1998) ("The ability to turn up new evidence in mitigation (even evidence fully consistent with counsel's strategic choices)......
  • Schornhorst v. Anderson, No. IP-99-1851-C H/G.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • December 7, 1999
    ...post-conviction challenge in state court, Fleenor v. State, 622 N.E.2d 140 (Ind.1993), and in federal habeas review, Fleenor v. Farley, 47 F.Supp.2d 1021 (S.D.Ind.1998), aff'd, Fleenor v. Anderson, 171 F.3d 1096 (7th Cir.1999). The Supreme Court of the United States has denied petitions for......
  • United States v. Dill, No. 15–1425.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 25, 2015
    ...the judge from making the sentencing decision. See Pulley, 601 F.3d at 665 ; Pless, 982 F.2d at 1129–30 ; see also Fleenor v. Farley, 47 F.Supp.2d 1021, 1052–53 (S.D.Ind.1998) (sentencing judge's statement to counsel at start of hearing that he was leaning toward imposing death sentence mea......
  • Request a trial to view additional results
6 cases
  • Lowery v. Anderson, No. IP 96-71-C-H/G.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • July 6, 1999
    ...to the jury recommendation procedure in Indiana in Fleenor v. Anderson, 171 F.3d 1096 (7th Cir.1999), affirming Fleenor v. Farley, 47 F.Supp.2d 1021 (S.D.Ind.1998). In Fleenor the jury was told repeatedly and correctly that its decision would be a recommendation. The trial judge instructed ......
  • Hurst v. Branker, 1:10CV725
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • September 7, 2012
    ...v. Collins, 100 F. Supp. 2d 647, 732 (S.D. Ohio 2000) (internal brackets and quotation marks omitted); see also Fleenor v. Farley, 47 F. Supp. 2d 1021, 1049 (S.D. Ind. 1998) ("The ability to turn up new evidence in mitigation (even evidence fully consistent with counsel's strategic choices)......
  • Schornhorst v. Anderson, No. IP-99-1851-C H/G.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • December 7, 1999
    ...post-conviction challenge in state court, Fleenor v. State, 622 N.E.2d 140 (Ind.1993), and in federal habeas review, Fleenor v. Farley, 47 F.Supp.2d 1021 (S.D.Ind.1998), aff'd, Fleenor v. Anderson, 171 F.3d 1096 (7th Cir.1999). The Supreme Court of the United States has denied petitions for......
  • United States v. Dill, No. 15–1425.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 25, 2015
    ...the judge from making the sentencing decision. See Pulley, 601 F.3d at 665 ; Pless, 982 F.2d at 1129–30 ; see also Fleenor v. Farley, 47 F.Supp.2d 1021, 1052–53 (S.D.Ind.1998) (sentencing judge's statement to counsel at start of hearing that he was leaning toward imposing death sentence mea......
  • Request a trial to view additional results

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