United States v. Fell
| Decision Date | 10 May 2013 |
| Docket Number | Case No. 2:01–cr–12. |
| Citation | 944 F.Supp.2d 297 |
| Parties | UNITED STATES of America v. Donald FELL, Defendant–Movant. |
| Court | U.S. District Court — District of Vermont |
OPINION TEXT STARTS HERE
Jacabed Rodriguez–Coss, Esq., United States Department of Justice, Washington, DC, William B. Darrow, United States Attorney's Office, Burlington, VT, for Plaintiff United States of America.
Avram E. Luft, Esq., Lewis J. Liman, Esq., Cleary Gottlieb Steen & Hamilton LLP, Cathleen Price, New York, NY, Richard I. Rubin, Rubin, Kidney, Myer & DeWolfe, Barre, VT, for Defendant–Movant.
Donald Fell has moved under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence of death, to vacate and set aside his judgment of conviction and to grant him a new trial. The Government has opposed the motion, and requested summary dismissal of Fell's claims. Fell has separately moved for leave to conduct discovery pursuant to the Federal Rules of Civil and Criminal Procedure, and to serve document requests and subpoenas pursuant to those rules. Following review of the § 2255 motion, the Court orders summary dismissal in part. The claims regarding juror misconduct and the requests for discovery are addressed in separate decisions.
I. Background and Procedural History
The following narrative is taken from the record and the exhibits and sworn declarations submitted with the motion.
On November 26, 2000, in Rutland, Vermont, Donald Fell and Robert Lee repeatedly knifed Donald's mother Debra and her friend Charles Conway, killing them. The next morning, Fell and Lee kidnapped Teresca King, a grocery store worker, and stole her car. After crossing into New York, they stopped by the road, accompanied her into the woods and beat her to death.
On November 30, 2000, Fell and Lee were arrested in Clarksville, Arkansas, driving King's car. Upon their transfer to the District of Vermont they were charged with interstate kidnapping and car-jacking, in violation of 18 U.S.C. § 1201(a) and 2119. The Federal Public Defender was appointed to represent Fell, and attorneys Alexander Bunin and Gene Primomo of the Albany office of the Federal Public Defender for the Northern District of New York 1 entered their appearance on December 14, 2000.
On February 1, 2001, a federal grand jury returned a four-count indictment charging Fell and Lee with car-jacking resulting in death in violation of 18 U.S.C. § 2119(3) (Count 1); kidnapping resulting in death in violation of 18 U.S.C. § 1201(a) (Count 2); brandishing a firearm in furtherance of crimes of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 3); and being fugitives who transported a firearm in interstate commerce in violation of 18 U.S.C. § 922(g)(2) (Count 4). Counts 1 and 2 were capital offenses. Fell and Lee were arraigned on February 7, 2001.
Under 18 U.S.C. § 3005, a capital defendant has the right to the appointment of two attorneys, at least one of whom “shall be learned in the law applicable to capital cases.” 18 U.S.C. § 3005. The Court must consider the recommendation of the Federal Public Defender. Id. Attorney Bunin sought the appointment. Letter dated Dec. 11, 2000, Fell Ex. 202.2 He represented that he had capital case experience in the state of Texas, and that attorney Primomo had tried a federal capital case. Hr'g Tr. 10, June 11, 2002, ECF No. 67. In fact, although Bunin had some state court capital appellate and habeas experience during the early 1990s, this was his first capital trial. Primomo's one capital trial experience dated from 1993 in the Eastern District of Oklahoma. Fell Ex. 263. After Bunin leaked information discussed in a sealed hearing concerning a potential plea agreement to local newspapers, and filed bare-bones motions to suppress and for change of venue, the Court expressed concerns about the quality of Fell's defense, and appointed Paul Volk, a Vermont attorney, to team with Bunin and Primomo. Hr'g Tr. 10–12; Order of App't, ECF No. 54. Although Volk had extensive criminal trial experience, he had never been involved in a capital trial. From late 2000 through 2001, Fell's defense attorneys focused on resolving the case with a guilty plea to life imprisonment without the possibility of release. They had reason to believe that the United States Attorney's Office for the District of Vermont would accept such a resolution. Counsel hired mental health experts, 3 and retained a mitigation specialist who undertook a preliminary investigation of Fell's social history. In early May 2001, defense counsel received a report from their expert Dr. Mills, that detailed the results of a two-day evaluation of Fell. The evaluation included two hours of psychological test administration, as well as review of twenty-four documents concerning his case provided by the defense. Dr. Mills concluded that Fell was an alcoholic with incipient psychosis or pre-psychotic breakdown. Fell's score on one of the tests suggested that he was easily dominated, supporting Fell's claim that Lee was the dominant one of the pair. Dr. Mills also concluded that Fell's psychiatric condition was “overwhelmingly” caused by the biological and environmental influences to which he had been subjected in his youth, and that his psychiatric condition was not something he chose. Fell Ex. 4. Fell's counsel provided this information and reports from the other experts to the United States Attorney's Office in May 2001.
Fell signed an agreement to plead guilty in exchange for life imprisonment without release on October 24, 2001. By the time Fell and the United States Attorney for the District of Vermont had reached their agreement however, the United States Department of Justice had determined that all local decisions not to seek the death penalty in death-eligible cases had to be confirmed by the Attorney General. In January 2002, the Attorney General rejected the plea agreement.
On January 30, 2002, the government filed a Notice of Intent to Seek Death Penalty with respect to Fell.4 It listed four threshold culpability factors as set forth in 18 U.S.C. § 3591(a)(2)(A)-(D), and three statutory aggravating factors identified in 18 U.S.C. § 3592(c).5 The notice also listed four non-statutory aggravating factors.6
After the government filed its Notice of Intent, the parties negotiated an agreement for the penalty phase to be tried to the Court following a guilty plea to the charges. This option was also rejected by the Attorney General.
In another attempt to resolve the case, the parties agreed to make Fell available to government mental health experts for examination. If those experts believed that there were mitigating factors that would support a guilty plea to life imprisonment without the possibility of release, the parties would jointly argue to the Justice Department that changed circumstances supported a plea bargain to a sentence of life without the possibility of release. The government's experts, Richard Wetzel, Ph.D. and John Rabun, M.D., examined Fell in September and December 2002. They were not permitted to inquire about the murders, Fell's state of mind during the murders or his use of a knife, and they conducted their interviews with defense counsel present. Both experts concluded that there were mitigating facts in Fell's background. See Fell Ex. 7, Ex. 8. The parties' request for reconsideration was submitted in February 2005.
Among pre-trial motions filed in mid–2002, Fell moved for a declaration that the Federal Death Penalty Act of 1994 (“FDPA”) was unconstitutional. ECF Nos. 44 & 65. On September 24, 2002, the Court held that the FDPA's relaxed evidentiary standard for a jury's finding of eligibility for imposition of the death penalty violated the United States Constitution's Sixth Amendment and Due Process Clause. United States v. Fell, 217 F.Supp.2d 469, 489 (D.Vt.2002), vacated360 F.3d 135 (2d Cir.), cert. denied543 U.S. 946, 125 S.Ct. 369, 160 L.Ed.2d 259 (2004). The Government filed an interlocutory appeal on October 22, 2002, and the decision was vacated and remanded on February 3, 2004. United States v. Fell, 360 F.3d 135, 146 (2d Cir.2004). On October 18, 2004, the United States Supreme Court denied Fell's petition for a writ of certiorari, and the mandate issued October 28, 2004. ECF No. 73.
On December 1, 2004, Fell filed a Rule 12.2(b)(2) notice of expert evidence of a mental condition indicating his intent to introduce expert evidence bearing on a mental condition should he be convicted of a capital crime. ECF No. 74. Upon receipt of the Rule 12.2 notice, the government sought an unrestricted examination of Fell, pursuant to Federal Rule of Criminal Procedure 12.2(c)(1)(B), by its psychiatrist Michael Welner, M.D., whom it had retained in early 2004.
The Court ordered that Fell undergo a complete psychiatric examination, but that the examination be conducted by either or both of the government's original experts, Dr. Rabun or Dr. Wetzel, who had conducted the limited examination of Fell in 2002. Pursuant to Rule 12.2(c)(2), the results or reports of the examination were to be sealed and not disclosed to attorneys for the defendant or the government unless the jury reached a guilty verdict on one or more of the capital counts and Fell confirmed his intent to offer expert evidence on mental condition during sentencing proceedings. SeeFed.R.Crim.P. 12.2(c)(2); Order, Apr. 7, 2005, ECF No. 101. Prior to any mental health testing the government was to provide to defense counsel a list of any tests its expert wished to perform; the list was not to include more than one test intended to assess the same functions; and the parties were to reach agreement on the testing or submit the issue to the Court for resolution. No mental health testing was to be performed by either party until a final decision was reached as to which tests were to be conducted by the government's expert. See Order 2–3.
At a status conference on December 16,...
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