Hill v. Mitchell, Case No. 1:98-cv-452

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtEDMUND A. SARGUS
PartiesGENESIS HILL, Petitioner, v. BETTY MITCHELL, Warden, Respondent.
Decision Date29 March 2013
Docket NumberCase No. 1:98-cv-452

GENESIS HILL, Petitioner,
BETTY MITCHELL, Warden, Respondent.

Case No. 1:98-cv-452


Dated: March 29, 2013

Magistrate Judge Terence P. Kemp


Petitioner, a prisoner sentenced to death by 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 Petitioner's Second Amended Petition (ECF No. 137), Respondent's Return of Writ/Answer (ECF No. 154), Petitioner's Traverse/Reply (ECF No. 194), Respondent's Sur-Reply (ECF No. 213), and Petitioner's Reply (ECF No. 214). Also before the Court are Petitioner's third amended petition (ECF No. 231)—adding grounds twenty-five and twenty-six—, Respondent's Supplemental Return of Writ (ECF No. 238), and Petitioner's Supplemental Reply/Traverse (ECF No. 239).

For the reasons that follow, this Court concludes that the Petitioner is entitled to a Writ of Habeas Corpus as to the Fourth Ground for Relief, sub-part (c).

I. Overview

This case began with the brutal murder of a defenseless six month old baby. Genesis Hill, the father of the infant, was convicted of capital murder and sentenced to death.

No matter how heinous the crime, our system of justice requires that a defendant be

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accorded the rights guaranteed by the United States Constitution. The Constitution requires that exculpatory evidence, that is material evidence favorable to the defense, be turned over to the defense. Brady v. Maryland, 373 U.S. 83 (1963).

In this case, the prosecution's case was based almost exclusively upon the testimony of the victim's mother, Teresa Dudley. There were no eyewitnesses, no DNA results, no fingerprint comparisons, or other corroborating evidence. While this fact alone in no way discredits a conviction, it does indicate that evidence discrediting the primary accuser of the defendant is critical to a defense against a charge of murder.

Here, Dudley testified that Hill threatened to kill the baby if she sought child support. A witness initially corroborated her statement, but at trial testified that the threat may have been to Dudley, not the baby. Dudley's mother testified that Hill never threatened the baby.

The only physical evidence linking Hill to the murder was a shirt in which the victim's body had been found. Dudley and one other witness described the shirt as similar to one Hill wore. Police also found in Hill's residence a garbage bag similar to the one in which the victim's body had been placed.

Dudley also testified that she found the child's barrette in the garage adjoining Hill's residence, although police searched the premises the day before and made no such discovery. Finally, a bus driver told police that he overheard a man on a bus tell his acquaintance that he had killed a baby. The bus driver picked Hill from a lineup, but could not identify him at trial.

This Court does not question the sufficiency of the evidence in this Opinion. What the nature of the evidence discloses is that this case turned in large part on the jury's assessment of Dudley's credibility. Within this context, evidence compiled by the police, but not turned over

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to the defense, was material and calls into question whether the same jury would have convicted the Defendant, had this evidence been considered.

The first officer to respond to the missing child was James Givens. He wrote a preliminary investigation report, Appendix A, which included the following question and answer:

Investigate why the mother ran from police and asked for the police to check the alley behind the house (several times).

Givens questioned why Dudley ran from police, a fact not known to the jury. Further, Givens questioned why Dudley asked police to check the alley behind the house, a day before the victim's body was found in that location.

Hill's trial lawyer has sworn that he did not receive Officer Givens' report. (ECF No. 219, at 19-20.) Givens testified at trial and was extensively cross-examined. His entire testimony is annexed at Appendix B. Tellingly, no mention was made to the preliminary investigation report. No questions were asked as to why Dudley fled from police or why she insisted they search Hill's garage.

In the course of the lengthy Opinion to follow, this Court finds that the failure to disclose Givens' report deprived Hill of his constitutional right to receive exculpatory evidence, in violation of Brady, supra. The undisclosed evidence is material; the prejudice to him is compelling. This Court makes no finding that the evidence presented was insufficient to convict him. It does find, however, that the evidence was incomplete to a sufficient degree warranting the issuance of a writ of habeas corpus.

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In a September 27, 2006 Opinion and Order, the Court dismissed as procedurally defaulted the following grounds for relief: seven, twelve (paragraphs 64-66), four, ten (sub-part a), five, eight, fourteen, three, eleven, two, and twenty-two. (ECF No. 151.) The Court also dismissed as "premature" Petitioner's twenty-fifth ground for relief, where he sought to preserve a claim that he was or would be incompetent to be executed due to mental illness.

The Court permitted certain factual development in this case. Petitioner filed his original habeas corpus petition on June 26, 1998. (ECF No. 6.) In September, 1998, Petitioner conducted depositions of attorneys Mark Krumbein and Myron Davis, as well as a deposition of the records custodian for the Hamilton County Coroner's Office. (ECF Nos. 18, 19, and 20.) Petitioner conducted a deposition of the records custodian for the Hamilton County Jury commission in October, 1998. (ECF No. 24.) In March, 1999, the state court record and transcript were filed. Petitioner filed his first amended petition on April 12, 1999. (ECF No. 71.) On March 22, 1999, the Court permitted Petitioner to expand the record with the affidavit of Dr. Michael Gelbort. (ECF No. 119.) The docket reflects that between 1998 and 2004, Petitioner litigated a second or successive postconviction action in the state courts, upon completion of which Respondent filed additional appendix volumes from those proceedings. (ECF No. 141.) On July 20, 2006, the Court issued an order (ECF No. 149) expanding the record with seven affidavits that Petitioner had offered on March 31, 2006 (ECF No. 146). In a September 27, 2007 Opinion and Order, the Court granted leave for Petitioner to conduct limited discovery on his claim of arbitrary or discriminatory imposition of the death penalty, allowing Petitioner to depose prosecutors Steven Tolbert and Jerome Kunkel, and to serve on Respondent

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requests for admissions, interrogatories, and requests for the production of documents. (ECF No. 158.) The Court also allowed Petitioner, in connection with his claim that he was incompetent during his direct appeals of right, to collect any records in possession of Hamilton County documenting Petitioner's mental or physical health between 1991 and 1996. Toward the end of 2009, Petitioner initiated "Atkins" proceedings in the state court alleging that he was mentally retarded and ineligible for the death penalty, although the Court issued an order on January 29, 2010 declining to stay and hold in abeyance the instant habeas corpus proceedings. (ECF No. 196.) Following a series of disputes concerning Respondent's compliance with the Court's order allowing discovery, the Court issued an Opinion and Order on September 30, 2010 allowing an in camera review of certain documents from the prosecutor's file concerning the decision to capitally charge Petitioner. (ECF No. 212.) Factual development of this case is now completed.

This case is now ripe for review of the grounds for relief that are properly before the Court.

III. Factual and Procedural History

The details of this capital murder and aggravated robbery are set forth in numerous state court opinions, including the Ohio Supreme Court's published opinion in State v. Hill, 75 Ohio St. 3d 195 (1996):

On May 31, 1991, defendant-appellant, Genesis Hill, crept into his girlfriend's apartment in Cincinnati and surreptitiously removed their six-month-old daughter, Domika Dudley. On June 2, police found Domika's body, wrapped in trash bags, in a vacant lot behind Hill's house.
Hill, age nineteen, and Teresa Dudley, age eighteen, lived near each other and had an on-going relationship. Their daughter, Domika Dudley, was born in November 1990. Around May 29, 1991, Barbara Janson, a neighbor, heard Teresa "making silly little comments" to Hill that she was going to take him to court for child support. Hill replied that "he'd kill that little bitch before he paid

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anything." Teresa recalled Hill saying, "I bet I don't pay," when she asked him about child support.
On May 31, in the late afternoon, Hill and Teresa were together in Hill's yard. Teresa became upset, they argued, and Teresa went home. That evening, Teresa went to sleep in her mother's second-floor apartment in the same room as Domika. Between 11:00 p.m. and midnight, Janson and

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