Halverson v. Simpson

• Decision Date: 22 October 2014
• Docket Number: CIVIL ACTION NO. 08-484-DLB
• Parties: LEIF HALVERSON PETITIONER v. THOMAS L. SIMPSON, Warden, Kentucky State Penitentiary RESPONDENT
• Court: U.S. District Court — Eastern District of Kentucky

LEIF HALVERSON PETITIONER v. THOMAS L. SIMPSON, Warden, Kentucky State Penitentiary RESPONDENT

CIVIL ACTION NO. 08-484-DLB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION AT LEXINGTON

October 22, 2014

MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS*** *** *** ***

This matter is before the Court on Petitioner Leif Halverson's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On July 22, 1983, a Kentucky state-court jury convicted Halvorsen on three counts of first-degree murder for the deaths of Joe Durrum, Jacqueline Greene and Joe Norman. The trial court sentenced Halverson to death for Durrum and Greene's murders and life imprisonment for Norman's murder. Kentucky state courts affirmed Halverson's convictions and sentences on direct appeal and denied him post-conviction relief. Halvorsen is currently incarcerated at the Kentucky State Penitentiary in Eddyville, Kentucky.

In his § 2254 petition, Halverson contends that he is being held in violation of the United States Constitution because of errors that occurred both during his trial and on appeal. Halverson does not argue that he is innocent. He argues that his constitutional rights were violated because of juror and prosecutorial misconduct, improper jury instructions, ineffective assistance of trial and appellate counsel, and improper sentencing.Halverson's petition is fully briefed and ripe for review. For the following reasons, the Court will deny Halverson's habeas petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Trial in Fayette Circuit Court

On March 7, 1983, a Fayette County Grand Jury indicted Halvorsen, along with Mitchell Willoughby and Susan Hutchens, on three counts of intentional murder and two counts of robbery. The grand jury also charged Halverson and Hutchens with carrying a concealed weapon. Hutchens, who was present when the murders took place, pled guilty to two counts of hindering prosecution and testified at Halvorsen and Willoughby's joint trial. The trial took place in Fayette County Circuit Court with the Honorable Armand Angelucci presiding. The Kentucky Supreme Court provided the following factual summary:

The bodies of Joe Norman and Joey Durrum were found on the side of the Brooklyn Bridge on the Jessamine-Mercer County line. The body of Jacqueline Greene was found in the Kentucky River below the bridge. Each of the victims had been shot to death. David Warner, who lived on the Jessamine County side of the Brooklyn Bridge, became suspicious when he noticed a light blue Ford van and a dark pickup truck lurking at various points around the bridge. At one point, the pickup truck parked on the bridge, a person got out of the passenger side, and Warner heard a big splash. Forty-five minutes later, Warner heard a noise that sounded like a car hitting a guardrail or a sign. He looked out to see the blue van and the pickup truck speeding off across the bridge toward Lexington. Warner called the police.

When the police arrived, they found two of the victims on the side of the bridge, each bound with a blue-and-yellow rope that was attached to a heavy rock. The third victim was found in the river below the bridge, wrapped in a sheet that was also bound with a blue-and-yellow rope and attached to a heavy rock. A traffic sign near the bridge had been knocked over by a vehicle. It had paint smears on it and broken glass lying at its base.

Officer William Foekele testified that around 1:30 p.m., on January 13, he was on Loudon Avenue in Lexington, looking for a car involved in another investigation, when he noticed a blue Ford van stopped at 215 Loudon Avenue. He wrote down the van's license number. On the following day,

police learned that two of the victims had lived in the house at 215 Loudon Avenue. A truck belonging to the third victim was found parked at the house. When police entered, they found blood at various places in the house.

Upon learning that a blue Ford van was seen in the area where the bodies were discovered, Officer Foekele suspected that it was the same vehicle which he had seen near the house at 215 Loudon the day before. A registration check revealed that the van was registered to Halvorsen. Foekele then went to Halvorsen's home but saw no vehicles in the driveway. A neighbor indicated that two men and a woman had just left in a blue pickup truck and would probably return shortly. Police staked out all routes to the house, located and cornered the truck, and demanded that its occupants exit. The driver, Mitchell, jumped out immediately. Halvorsen, after hesitating, slid out of the passenger side. The officers found a .38-caliber revolver where he had been sitting. As the officers approached the truck, the woman, Susan Hutchens, threw her hands up and said, "The gun's in my purse." A 9-millimeter pistol was found sticking out of her purse.

A ballistics expert positively identified several of the projectiles recovered from the victims' bodies as having come from the revolver and semi-automatic pistol found in the truck. Two 9-millimeter shell casings were additionally recovered at 215 Loudon. Fingerprints from both Willoughby and Hutchens were found on the 9-millimeter pistol. Hutchens' fingerprints were found on the refrigerator at 215 Loudon as well.

Also recovered from 215 Loudon, by the police, was a plastic blue-and-yellow rope identical to that found tied around the victims' bodies. Paint samples taken from Halvorsen's van matched the paint smears found on the highway sign near the bridge. A comparison between pieces of glass taken from a broken headlight on Halvorsen's van and pieces of broken headlight recovered from the base of the highway sign proved them to have come from the same headlight. Lastly, blood samples from Halvorsen's van were positively identified as having come from one of the victims.

At trial, Hutchens testified that in December 1982, she and Willoughby moved into the house at 215 Loudon, and Willoughby was employed by the victim, Joe Norman, to help him remodel the house. Willoughby and Hutchens moved out a month later when Norman refused to pay Willoughby for the work he had done.

Hutchens testified that on January 13 Willoughby and Halvorsen asked her to buy ammunition for their pistols. Later that day, she decided to go visit the victim, Jacqueline Greene, who lived at 215 Loudon with Joe Norman. When she arrived, Willoughby, Halvorsen, and Norman were standing in the driveway talking. Hutchens went into the house where Greene

introduced her to the victim, Joey Durrum. Willoughby, Halvorsen, and Norman then came inside when "all of a sudden" the shooting began.

Hutchens put her hands over her face, covering her eyes. She heard numerous shots. When the shooting was over, she opened her eyes to see Willoughby and Halvorsen each wielding a pistol. Norman and Durrum had fallen to the floor. Hutchens then saw Willoughby shoot Greene twice more, since she was still alive. Willoughby and Halvorsen then screamed at Hutchens to begin picking up the shell casings while they dragged the bodies of the victims through the hallway to the back door where they were placed in the van. Later, Halvorsen left in the van, and Willoughby left in the truck to get rid of the bodies.

Halvorsen v. Commonwealth, 730 S.W.2d 921, 922-23 (Ky. 1986).

The jury found Halverson guilty of all three murder charges and guilty of carrying a concealed weapon; the trial court granted a directed verdict on the robbery charge. Halvorsen testified at the penalty phase. During his testimony, Halvorsen admitted shooting two of the victims, but claimed he did so because of extreme intoxication and duress. On August 31, 1983, the trial court followed the jury's recommendation and sentenced Halvorsen to death for Durrum and Greene's murders and life imprisonment for Norman's murder.

B. State court procedural history

1. Halvorsen's direct appeal to the Kentucky Supreme Court

Halvorsen appealed his conviction to the Kentucky Supreme Court, raising twenty-eight assignments of error. The court consolidated Halvorsen's appeal with Willoughby's. Two attorneys from the Kentucky Department of Public Advocacy represented Halvorsen. On December 18, 1986, the Kentucky Supreme Court affirmed Halvorsen's conviction and sentence. Halvorsen, 730 S.W.2d 921.

In denying Halvorsen's appeal, the Court held as follows: (1) the prosecutor did not commit reversible error by telling the jury its sentencing verdict was a "recommendation"; (2) the trial court's "combination" murder instruction did not violate due process or deprive Halvorsen of his right to a unanimous verdict; (3) the trial court did not err by choosing not to give a wanton murder instruction; (4) the prosecutor's closing argument during the penalty phase did not deprive Halvorsen of a fair trial; (5) the prosecutor's cross-examination of Willoughby did not result in comments about Halvorsen's decision not to testify; (6) the prosecutor did not introduce evidence of other crimes or bad acts that impermissibly prejudiced Halvorsen; (7) Halvorsen was not entitled to an instruction on extreme emotional disturbance; (8) the trial court properly instructed the jury on Halvorsen's intoxication defense; (9) the trial court was not required to sua sponte instruct the jury on nonstatutory mitigating factors; and (10) the trial court was not required to instruct the jury that Halvorsen's accomplice participation was a mitigating factor. Id. at 924-26. While the Kentucky Supreme Court did not provide an analysis for denying Halvorsen's other claims, it stated that it "reviewed the other assertions of error and are of the opinion none of them merits comment." Id. at 928.

The Kentucky Supreme Court denied Halvorsen's petition for rehearing. On November 30, 1987, Halverson's convictions and sentences became final when the United States Supreme Court denied Halverson's petition for a writ of certiorari. Halvorsen v. Kentucky, 484 U.S. 970 (1987).

2. Hal...