Schornhorst v. Anderson, IP-99-1851-C H/G.

Decision Date07 December 1999
Docket NumberNo. IP-99-1851-C H/G.,IP-99-1851-C H/G.
Citation77 F.Supp.2d 944
PartiesF. Thomas SCHORNHORST, Alan M. Freedman, and Carol R. Heise, Counsel, as next friend on behalf of D.H. Fleenor X-Row (Doc No. 14942), P.O. Box 41, Michigan City, Indiana 46360, Plaintiffs, v. Ron ANDERSON, Superintendent, Indiana State Prison, P.O. Box 41, Michigan City, Indiana, Defendant.
CourtU.S. District Court — Southern District of Indiana

Alan M. Freedman, Midwest Center for Justice, Ltd., Chicago, IL, for Plaintiffs.

Geoffrey Slaughter, Michael Hurst, Office of Atty. Gen., Indianapolis, IN, for Defendant.


HAMILTON, District Judge.

The State of Indiana has sentenced D.H. Fleenor to die during the time after 12:01 a.m. and before the hour of sunrise on December 9, 1999, a window of time beginning about 30 hours from now. In this action, filed first thing this morning, December 7, 1999, three attorneys who have represented Fleenor in past proceedings have filed a petition for a writ of habeas corpus seeking to act as Fleenor's "next friends." The petitioner-attorneys seek an emergency stay of the imminent execution, an order authorizing discovery and payment of expenses, and an evidentiary hearing on the issue whether Fleenor is mentally competent to be executed. See Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (Eighth Amendment prohibits execution of insane prisoners). The respondent has filed a response, and the court held a hearing this afternoon in which the attorney-petitioners and counsel for the respondent participated. Fleenor was notified of the hearing and chose not to participate.

As explained below, the court denies the petitioner-attorneys' request for an emergency stay of execution and all other forms of relief, and dismisses their petition for lack of jurisdiction. Under the law, Fleenor is presumed sane, and there is no professional opinion to the contrary. A substantial volume of communications between Fleenor and prison staff shows that Fleenor knows he is about to be executed and why. The conclusory lay opinion to the contrary is not a sufficient substantial threshold showing of insanity to justify the further litigation being sought here. The petitioner-attorneys have not made a sufficient threshold showing that Fleenor is mentally incompetent. That failure means both that they are not entitled to act as his "next friends" in seeking relief, and that relief is not warranted on the merits of the Ford claim.

Factual and Procedural Background

On December 12, 1982, Fleenor murdered his mother-in-law and her husband, Nyla Jean Harlow and Bill Harlow. Fleenor committed the murders by shooting the Harlows in their home in front of his estranged wife Sandra Sedam, her son, and two other grandchildren of the Harlows. Armed with a gun, Fleenor then took Sandra and the children to Tennessee, where he barricaded the family in a house. After a stand-off, Fleenor was taken into custody.

Fleenor was charged with murder in Jefferson County, Indiana, but the trial was moved to Johnson County. Fleenor was found guilty of both murders. The jury recommended the death penalty, and on January 4, 1984, the trial judge sentenced Fleenor to death for both murders. Fleenor's convictions and sentences were upheld on direct appeal, Fleenor v. State, 514 N.E.2d 80 (Ind.1987), in a 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 writs of certiorari in each of the three proceedings.

The Supreme Court of the United States denied Fleenor's most recent petition on October 4, 1999. The Supreme Court of Indiana then issued an order on October 25, 1999, setting the date of Fleenor's execution for December 9, 1999, before the hour of sunrise.

Fleenor has refused all contact with the petitioner-attorneys since approximately October 25, 1999, when they informed him that the new execution date had been set and when they notified him of the deadline for petitioning the Governor of Indiana for clemency. Under the schedule, the Indiana Parole Board provided a Petition for Clemency form to Fleenor on October 27, 1999, and the deadline for submitting the petition was November 3, 1999. The deadline for submitting additional written materials, such as letters from family and friends, was November 17, 1999. The Parole Board scheduled an interview with Fleenor at the Indiana State Prison for November 24, 1999, and a public hearing in Indianapolis on November 29, 1999, with a Board vote on a recommendation to the Governor scheduled for November 30, 1999.

On November 3, 1999, petitioners Alan M. Freedman and F. Thomas Schornhorst filed with this court in Cause No. IP 94-717-C (the earlier habeas action) an emergency petition pursuant to 21 U.S.C. § 848(q)(8) to appoint them as counsel for Fleenor in state clemency proceedings. The emergency petition reported that Fleenor had refused to communicate with these attorneys after the denial of the writ of certiorari. Freedman and Schornhorst stated that they believed in good faith that Fleenor was not competent to be executed. The attorneys sought emergency action because of the Parole Board deadlines. The attorneys also reported that they were filing a Petition for Clemency on Fleenor's behalf.

On November 4, 1999, the undersigned judge denied in a written order the emergency petition for appointment of counsel. The court found that it had the power to grant the requested relief but that it should not do so in view of Fleenor's clearly expressed refusal to have these attorneys represent him. The court explained:

The habeas proceedings have come to a close. Mr. Fleenor himself has not indicated any desire to proceed with clemency proceedings. This court sees no reason to force such proceedings upon him, let alone to force upon him lawyers he does not want. The fact that Mr. Fleenor has been uncommunicative with his previous counsel is, in the court's view, too thin a reed to support a claim that Mr. Fleenor is "not competent" to be executed, or that he needs to have counsel he does not want for a proceeding he has shown no interest in pursuing.

Order at 3 (copy attached as Exhibit A).

On November 24, 1999, the Indiana Parole Board met at the facility where Fleenor is held in custody. Fleenor had not filed a clemency petition, which would be reviewed by the Parole Board, and he refused to appear before the Parole Board for an interview on that date. A member of the Parole Board met with Fleenor in his cell to urge him to talk to the Parole Board, but Fleenor refused.

The petitioner-attorneys then asked the Indiana Parole Board and the Department of Correction for records relevant to Fleenor's psychological and medical condition. Both agencies refused the request. On November 22, 1999, the petitioner-attorneys asked the Supreme Court of Indiana to order the agencies to provide them with copies of "all existing psychological records, including psychiatric interviews, evaluations, diagnoses, treatment, intervention, progress notes or summaries," "all medical records," "all medications records," and "all observation logs, records, notes or reports." The Supreme Court of Indiana issued an order on November 23, 1999, directing the Department of Correction to produce these records no later than November 24, 1999. The records were sent by Federal Express on that date.

On December 1, 1999, the petitioner-attorneys filed a petition with the Supreme Court of Indiana requesting authority to file a successive petition for post-conviction relief. The petition asserted the belief that Fleenor is not competent to be executed, relying on Ford v. Wainwright, supra. The petition also argued that Indiana should adopt a higher standard of competence for execution of prisoners sentenced to death. The petitioner-attorneys supported their petition with copies of records produced from the Indiana Department of Correction, and with affidavits from Father Joseph Lanzalaco and petitioner-attorney Carol Heise.

The State of Indiana opposed the petition in a filing submitted December 3, 1999. The state argued that the petitioner-attorneys lacked standing to seek relief on behalf of Fleenor. The state also argued that the available evidence was not sufficient to warrant a hearing, let alone to rebut the presumption of sanity that applies at this stage.

Last night, the evening of December 6, 1999, the Supreme Court of Indiana issued its order denying petitioner-attorneys' request for a stay of execution. The court found that the information submitted "does not adequately challenge the presumption that Fleenor is not insane, and we thus conclude that the pleadings conclusively show that the petitioner is entitled to no relief." Order at 4 (copy attached as Exhibit B). The court further found that the petitioner-attorneys did not have standing to act on Fleenor's behalf, especially in light of evidence showing that Fleenor has repeated on many occasions in the last six weeks that he does not want these attorneys to represent him any further. The court therefore denied the request to authorize filing of a successive petition for post-conviction relief and denied the request to stay the execution.

The petitioner-attorneys filed their petition with this court this morning, although they have kept the court staff advised of their intentions for several days, and both the petitioner-attorneys and the attorneys for respondent have provided courtesy copies of their filings in the Supreme Court of Indiana.

The Issues

The court considers first whether the instant petition is a successive petition subject to the requirements of 28 U.S.C § 2244, such that permission to file must first be sought and...

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5 cases
  • Thompson v. State
    • United States
    • Tennessee Supreme Court
    • May 12, 2004
    ...demonstrate that he understands the fact of his impending execution and the reason for it."); Cf. Schornhorst ex rel. Fleenor v. Anderson, 77 F. Supp. 2d 944, 955 (S.D.Ind. 1999) (stating that the prisoner considered his execution unfair, but finding that the prisoner had failed to make a t......
  • Coe v State
    • United States
    • Tennessee Supreme Court
    • March 6, 2000
    ...out actually demonstrate that he understands the fact of his impending execution and the reason for it. Cf. Schornhorst v. Anderson, 77 F. Supp. 2d 944, 955 (S.D. Ind. 1999) (stating that the prisoner considered his execution unfair, but finding that the prisoner had failed to make a thresh......
  • West v. Bell, Warden
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • February 27, 2001
    ...JJ., dissenting); Demosthenes v. Baal, 495 U.S. 731, 740 (1990) (Brennan & Marshall, JJ., dissenting); Schornhorst v. Anderson, 77 F. Supp. 2d 944, 953 (S.D. Ind. 1999)). But these facts cannot provide what petitioner has failed to provide -- a jurisdictional basis for us to assume control ......
  • Trattner v. Tegels
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • July 16, 2020
    ...v. Stewart, 41 F. Supp. 2d 1037, 1039, n.3 (D. Ariz. 1999) (a death penalty case involving a Ford claim) and Schomhorst v. Anderson, 77 F. Supp. 2d 944, 949 (S.D. Ind. 1999) (a death penalty case involving a Ford claim). Id. at 3. He proclaims that while the instant petition is "numerically......
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