Marshall v. Dunn

• Decision Date: 23 October 2020
• Docket Number: Civil Action Number 2:15-CV-1694-AKK
• Citation: 497 F.Supp.3d 1124
• Parties: William Bruce MARSHALL, Petitioner, v. Jefferson S. DUNN, Commissioner of the Alabama Department of Corrections, Respondent.
• Court: U.S. District Court — Northern District of Alabama

497 F.Supp.3d 1124

William Bruce MARSHALL, Petitioner,

v.Jefferson S. DUNN, Commissioner of the Alabama Department of Corrections, Respondent.

Civil Action Number 2:15-CV-1694-AKK

United States District Court, N.D. Alabama, Southern Division.

Signed October 23, 2020

Anna Marie Manasco, Christopher Jason Avery, Glenn Edward Glover, Tiffany J. deGruy, Davis Shuford Vaughn, Thomas Lee Oliver, III, Cortlin Lee Bond, Hillary Chinigo Campbell, Bradley Arant Boult Cummings LLP, Birmingham, AL, for Petitioner.

Lauren A. Simpson, Office of the Attorney General State of Alabama, Montgomery, AL, for Respondent.

MEMORANDUM OPINION

ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE

William Bruce Marshall, an Alabama death row inmate, has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 7. Marshall challenges his 2005 capital murder conviction and death sentence, contending that a variety of constitutional violations require reversal of his conviction and/or sentence. The court held an evidentiary hearing regarding two of Marshall's claims related to alleged ineffective assistance of trial counsel, specifically the introduction of mitigation evidence and forensic testing of a tissue sample. Docs. 23; 45.

Marshall's guilt is not in dispute – he confessed to the murder and led law enforcement to the victim's body. And his allegations of alleged error at the guilt phase of his trial are without merit and do not warrant any relief from the underlying conviction. However, he is entitled to relief on his allegations related to the failure of his trial counsel to present mitigation evidence at the penalty phase of the trial. As the state trial judge noted during the Rule 32 proceedings, "trial counsel presented no mitigation evidence during the penalty phase [and] mitigation evidence is presented during the penalty phase of most capital murder trials." Vol. 15 at 1004. Certainly, as the state trial judge noted, trial counsel are not "per se ineffective for not presenting mitigation evidence." Id. After all, "no absolute duty exists to introduce mitigating or character evidence." Chandler v. United States , 218 F.3d 1305, 1319 (11th Cir. 2000). But, where, as here, the failure to do so was based on an inadequate investigation and trial counsel overlooked potential mitigation evidence in their files, their performance rises to the level of unconstitutional ineffectiveness.

An attorney representing a capital defendant has an "obligation to conduct a thorough investigation of the defendant's background," Williams v. Taylor , 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), "or to make a reasonable decision that makes particular investigations unnecessary," Wiggins v. Smith , 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quotation and citation omitted). And when counsel fails to "conduct an adequate background investigation," Cooper v. Sec'y, Dep't of Corr. , 646 F.3d 1328, 1351 (11th Cir. 2011), or declines to pursue "all reasonably available mitigating evidence," their assistance may be deemed ineffective, see Wiggins v. Smith , 539 U.S. at 524, 123 S.Ct. 2527 (emphasis and citation omitted). Therefore, after careful consideration of the record, the pleadings, and the applicable provisions of 28 U.S.C. § 2254, the court grants Marshall's petition for a writ of habeas corpus, doc. 7, solely as to his claim related to trial counsel's failure to adequately investigate and present mitigating evidence at the penalty phase of his trial. In all other respects, the petition is due to be denied.

I.

On April 22, 2005, a grand jury in Jefferson County, Alabama indicted Marshall on three counts of murder in the death of Alicia Nicole Bentley: (1) Ala. Code § 13A-5-40(a)(4) —murder in conjunction with an unlawful entry into a dwelling with the intent to cause assault (Count I); (2) Ala. Code § 13A-5-40(a)(3) — murder in conjunction with an attempt to engage in forcible sexual intercourse (Count II); and (3) Ala. Code § 13A-5-40(a)(8) —murder in conjunction with an attempt to sexually assault a minor (Count III). Vol. 1, Tab 1 at 17-18.¹ Erskine Mathis and Linda Hall represented Marshall at trial. Id. at 7, 54. The jury convicted Marshall on two counts of capital murder (Counts I and III), and one count of murder (Count II). Vol. 6, Tab 14 at 735-738. The jury subsequently voted 11 to 1 during the penalty phase to recommend a sentence of death. Vol. 7, Tab 24 at 808-809. The trial court followed the recommendation and sentenced Marshall to death, and the ACCA affirmed. See Marshall v. State , 992 So. 2d 762 (Ala. Crim. App. 2007). The Supreme Court of Alabama denied Marshall's application for certiorari on April 25, 2008, and the United States Supreme Court also denied review. See Marshall v. Alabama , 555 U.S. 918, 129 S.Ct. 277, 172 L.Ed.2d 205 (2008).

On April 23, 2009, Marshall, through new counsel,² filed a timely Rule 32 petition for post-conviction relief pursuant to the Alabama Rules of Criminal Procedure. Vol. 10, Tab 41. Marshall filed an amended petition on July 10, 2009, Vol. 10, Tab 42, and the State moved to dismiss thereafter, Vol. 11, Tabs 43-44. Although the trial court summarily dismissed the majority of Marshall's claims at a hearing that September, Vol. 12, Tab 46 at 495; Vol. 35, Tab 58, the court also allowed Marshall to amend some of the claims he raised in his petition. Vol. 10, Tabs 39 and 40. Thereafter, the court dismissed Marshall's ineffective assistance claims related to appellate counsel. Vol. 10, Tab 40 at 29.

On February 16 and 17, 2010, the circuit court held an evidentiary hearing on trial counsel's failure to secure a forensic pathologist to challenge the forcible sexual intercourse charge (Count 1),³ and to investigate mitigation evidence during the penalty phase of the trial. Vol. 35-38. Two of Marshall's expert witnesses were unable to attend the hearing, and the court refused to continue the hearing or allow counsel to offer the experts’ deposition testimony in evidence. Vol. 35-38. The court also denied Marshall's request for his forensic pathologist to examine the wet tissue samples collected from the victim. Vol. 37 at 391-92. Ultimately, the court denied the Rule 32 petition, holding, in relevant part, that Marshall had failed to establish that trial counsel's failure to hire a forensic pathologist rose to a constitutional violation under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), or that counsel's investigation into a mitigation case was deficient and prejudicial. Vol. 14, Tab 56. The ACCA affirmed, Marshall v. State , 182 So. 3d 573 (Ala. Crim. App. 2014), and the Alabama Supreme Court denied certiorari , Vol. 46, Tab 67.

Marshall filed this petition for writ of habeas corpus on September 28, 2015, doc. 1, and an amended petition thereafter. The Respondent filed an answer and brief, docs. 11 and 12, and Marshall filed a reply, doc. 17. Marshall then moved for an evidentiary hearing pursuant to 28 U.S.C. § 2254(e)(1)-(2),⁴ arguing that he did not receive a full, fair, and complete hearing in state court and that the records of those proceedings are insufficient to determine the issues in his 2254 habeas petition. Doc. 16. In support of the motion, Marshall filed an affidavit from Dr. George R. Nichols, II (forensic pathologist licensed in Kentucky) and testimony from Janet Vogelsang (clinical social worker and mitigation expert licensed in South Carolina).

This court granted the motion for a discovery and evidentiary hearing with respect to two claims. See doc. 23. Using the Section 2254(e)(2) framework, the court found that Marshall had established that (1) his claims relied on facts previously unavailable to him despite an exercise of due diligence and (2) the proffered evidence, if true, would entitle him to habeas relief. Id. (citing 28 U.S.C. 2254(e)(2) ). The court subsequently held an evidentiary hearing, and the parties filed post-hearing briefs, docs. 46; 48; 50.

II.

For general background, the court turns to the ACCA, which explained the offense, proceedings, and sentence as follows:

In 2005, Marshall was convicted of two counts of capital murder for the killing of his stepdaughter, Alicia Nicole Bentley—one count of murder made capital because it occurred during a burglary, see § 13A–5–40(a)(4), Ala.Code 1975, and one count of murder made capital because it occurred while Marshall, who was over the age of 19 years, sexually abused or attempted to sexually abuse Alicia, who was between the ages of 12 and 16 years, see § 13A–5–40(a)(8), Ala.Code 1975.1 This Court, on direct appeal, summarized the facts underlying Marshall's convictions as follows:

Marshall did not deny that he killed 15–year–old Alicia. Indeed, while in police custody he confessed to the killing and eventually led police to Alicia's body. His attorneys, however, presented a defense in which Marshall attempted to call into question the allegation that he had had any kind of sexual contact with Alicia.

The evidence adduced at trial tended to show the following facts. On December 28, 2004, Tonya Bentley called the Vestavia Hills Police Department to report that her daughter, Alicia, was missing from their apartment. Tonya Bentley and Marshall had separated in early December 2004. Tonya, Alicia, and Tonya's newborn son had moved from the apartment they had shared with Marshall into an apartment in a different complex. Tonya still had personal belongings at Marshall's, and her name was on the lease for that apartment.

Tonya told police that she believed that Marshall may have known of Alicia's whereabouts. She based her belief on the fact that she had discovered a videocassette recorder, or VCR, that Alicia had left at the old apartment in a chair in the new apartment when she got home. Tonya was positive that the VCR had not been in the apartment when she left for work that morning. When Tonya called Marshall to ask whether he had seen Alicia that day, however, he

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