Helton v. Singletary

• Decision Date: 23 December 1999
• Docket Number: No. 98-10110-CIV.,98-10110-CIV.
• Parties: Kris Edward HELTON, Petitioner, v. Harry SINGLETARY, Respondent.
• Court: U.S. District Court — Southern District of Florida

85 F.Supp.2d 1323

Kris Edward HELTON, Petitioner, v. Harry SINGLETARY, Respondent.

No. 98-10110-CIV.

United States District Court, S.D. Florida.

December 23, 1999.

Order Denying Stay January 20, 2000.

Melvin Sidney Black, Miami, FL, for plaintiff.

Michael J. Neimand, Jonathan Ellsworth, Florida Atty. General's Office, Miami, FL, for defendant.

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

ROETTGER, District Judge.

THIS CAUSE is before the court upon a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is Kris Helton (Petitioner), and Respondent is Harry Singletary, Secretary of the Department of Corrections for the State of Florida (State).

FACTS

In 1991, Petitioner was living with his fiancee, Marcella Gunderson, and her three children — Matthew who was age six, Michael who was age four, and Marshall, who was twenty-two months. They lived in a rental home in Little Torch Key, Florida. Petitioner sold computers. Marcella Gunderson was the director of a kindergarten, and baby-sat children.

On July 31, 1991, at around 6:30 P.M., Marcella Gunderson was trying to feed Marshall supper, chicken and rice, but the child was feeling ill and was reluctant to eat. She got Marshall to eat a little bit of strawberry yogurt instead. Later, at 8:30 P.M., Marcella Gunderson put Marshall and the four year old to bed.

Petitioner was out of the house. He came home that evening at 9:30 P.M. All of the children were in bed by then. At 11 P.M., Marcella Gunderson and Petitioner lay in their bed watching TV. Marcella Gunderson checked on the children, and then she and Petitioner fell asleep at around 11:15 P.M. Marcella Gunderson awoke at 1:30 A.M., finding Petitioner sitting up in bed smoking, with a worried look on his face. Petitioner told Marcella Gunderson that she had awakened him with her kicking. In the meantime, while she was up, Marcella Gunderson decided to check on the children again. Marshall was not in his crib. Alarmed, Marcella Gunderson got Petitioner to help her look for the child.

In the kitchen the refrigerator door was open, and a jar of Kool-Aid lay spilled on the floor. The front door of the house was also open. In the front yard, at the bottom of the front-door steps, they found Marshall's body lying face down. The child was not breathing. Marcella Gunderson picked him up, and his head and arms flopped back. Marshall was moved into an ambulance and taken to Fisherman's Hospital in Marathon. The ambulance arrived at 2:20 A.M. Resuscitation attempts failed, and the boy was pronounced dead upon arrival.

An autopsy was performed at 3:00 P.M. the following afternoon. The official cause of death was severe trauma to the head, represented by two massive fractures of the skull. The Medical Examiner noted finding pink particulate in the boy's stomach, along with fibrous white matter described as rice. A specific time-of-death assessment was not made on the body at the autopsy. Still, the Medical Examiner would later testify at trial that the death likely occurred one to two hours prior to the child's discovery at 1:30 A.M., though he conceded that this range could conceivably be upwards of four hours. See infra.

Petitioner was charged with first degree murder. The State's case against him was entirely circumstantial. On March 17, 1992, a jury returned a guilty verdict, and Petitioner received life imprisonment as a sentence. On direct appeal, the Florida Third District Court of Appeal unanimously reversed the conviction, finding that the evidence was insufficient to support a circumstantial evidence conviction. But in July of 1994, the court of appeal granted re-hearing upon the State's motion, and withdrew its former reversal. See Helton v. State, 641 So.2d 146 (Fla.App.1994).

The issue on appeal, whether there was enough evidence to support the conviction, got different treatment from the district court of appeal the second time around. To begin, the court restated the special standard of review applicable to convictions based on circumstantial evidence: a conviction can stand only if the evidence is inconsistent with any reasonable hypothesis of innocence. Id. at 146 (citing State v. Law, 559 So.2d 187, 188-89 (Fla.1989)). Applying this standard, the court of appeal reviewed all hypotheses which exculpated Petitioner, and measured them against the evidence.

To the theory that Marshall died by accident, the court found that there was no way the child could have opened the dead-bolt-locked front door. To the theory that an intruder committed the murder, the court found there was no sign of intrusion, that there was a tall, strong, well-locked fence around the house, that there were dogs, and a child-proof lock which could only have been opened from the outside with force; accordingly, the court dispensed with the intruder theory. To the theory that Marshall's older brothers could have done it — a theory not actually argued by Petitioner — the court summarily found no supporting evidence. To the theory that Marcella Gunderson's estranged husband did it, the court found that he did not have keys to the house, and in any event, with the child proof lock, he would have had to force the door open. Considering the theory that Marcella Gunderson committed the murder, the court found that her testimony was believable, and that the jury was entitled to rely on her testimony as evidence. See Helton, 641 So.2d at 148-53.

The court of appeal addressed two new theories as well. The first of these, a hybrid of a couple theories, suggested that the brothers opened the front door locks, and either an accident ensued, or an intruder came along. The court rejected this theory on many grounds, but basically because the children could not have reached the child-proof latch six feet off the ground. See id. at 153-54. The other theory postulated that Marcella Gunderson committed the murder prior to Petitioner arriving home at 9:30 P.M. The court found this theory inconsistent with the trial testimony of the Medical Examiner, who, based on the apparent lack of rigor mortis on the body, originally placed the time of death within two hours prior to the discovery of the body — at 11:30 P.M. or later.¹ Id. Thus, in finding evidentiary contradiction to all logical hypotheses of Petitioner's innocence, the court of appeal affirmed the conviction. Id. at 154.

Notably, in a dissenting opinion, Judge Joseph Nesbitt stated that he would reverse the conviction and award a new trial. See id. at 154-55 (J. Nesbitt, dissenting). Judge Nesbitt found it significant that the Medical Examiner acknowledged that death could have occurred as many as four hours prior to discovery of the body. Judge Nesbitt further noted that gastric evidence, combining the fact that Marshall still had the small meal in his stomach with what is known about digestive times, suggested that the boy died prior to 9:30 P.M., the time Petitioner arrived home. In view of these circumstances, Judge Nesbitt found that defense counsel's failure to discern and employ this seemingly exculpatory gastric evidence in Petitioner's defense qualified as substantially deficient representation. Judge Nesbitt concluded his dissent: "There can be no doubt that this evidence might have affected the verdict rendered." Id. at 156.

The Florida Supreme Court denied review of Petitioner's direct appeal on January 31, 1995, and the United States Supreme Court did the same on October 2, 1995. Petitioner then pursued collateral relief in state trial court pursuant to Florida Rule of Criminal Procedure 3.850, based in large part on Judge Nesbitt's deficient representation concerns. The trial court denied Petitioner's motion, and the Third District Court of Appeal for Florida denied appeal of Petitioner's collateral motion on December 10, 1997. Petitioner later filed a pro se habeas corpus petition in the state appeals court, and that was denied May 26, 1998. The Supreme Court of Florida denied review of that ruling on August 24, 1998.

Petitioner filed the instant action under 28 U.S.C. § 2254 on December 9, 1998. The petition includes twenty-seven claims of ineffective assistance of counsel. The most prominent claims center around counsel's failure to properly investigate and employ a time-of-death argument based on the gastric evidence.² The State replied to the petition on February 24, 1999. In large part, the response attacks the petition as untimely. This court specifically reserved judgment on the issue of timeliness, and held an evidentiary hearing on the gastric evidence/time-of-death claims on May 11 and 12, 1999, in Key West, Florida.

TIMELINESS

The State argues that the petition is untimely under the Antiterrorism and Effective Death Penalty Act of 1996 (ADEPA). The ADEPA prescribes a period of one year from the conclusion of a Defendant's direct appeal, minus time spent litigating collateral post-conviction claims, within which to bring a habeas corpus petition. See 28 U.S.C. §§ 2244(d)(1)(A), 2244(d)(2). In the instant case, Petitioner's direct appeal concluded with the United States Supreme Court's denial of certiorari on October 2, 1995. However, since this date was prior to the date the AEDPA became effective, the one year statutory period did not begin running until that date of effectiveness, April 24, 1996. See Wilcox v. Fla. Dept. of Corrections, 158 F.3d 1209 (11th Cir.1998). As mentioned, this petition was filed December 9, 1998. According to the State, factoring out the time Petitioner spent pursuing post-conviction relief, 412 days elapsed between April 24, 1996 and December 9, 1998. Thus, the State argues, the instant petition is barred under the AEDPA.

Petitioner responds with an equitable tolling defense. Equitable tolling can be used to prevent the harsh application of the ADEPA's statutory deadline when "extraordinary circumstances" have worked to prevent an otherwise diligent petitioner from making a timely filing. Sandvik v....