Willoughby v. Simpson

• Decision Date: 29 August 2014
• Docket Number: CIVIL ACTION NO. 08-179-DLB
• Parties: MITCHELL WILLOUGHBY PETITIONER v. THOMAS L. SIMPSON, Warden, Kentucky State Penitentiary RESPONDENT
• Court: U.S. District Court — Eastern District of Kentucky

MITCHELL WILLOUGHBY PETITIONER v. THOMAS L. SIMPSON, Warden, Kentucky State Penitentiary RESPONDENT

CIVIL ACTION NO. 08-179-DLB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION AT LEXINGTON

August 29, 2014

MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on the petition of Mitchell Willoughby, by counsel, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On July 22, 1983, a state-court jury found Willoughby guilty of three counts of first-degree murder for the deaths of Joe Norman, Joey Durrum and Jacqueline Greene. The jury recommended that Willoughby be sentenced to death for the murder of Durrum and Greene, and to life imprisonment for the murder of Norman. On August 31, 1983, the Fayette Circuit Court followed the recommendation of the jury and imposed the sentence of death accordingly. Willoughby is presently imprisoned in the Kentucky State Penitentiary as a result of his conviction and sentence.

In this § 2254 petition, Willoughby contends that he is being held in violation of the Constitution of the United States because of constitutional errors that occurred during his trial. Willoughby is not arguing that he is actually innocent of the crimes of conviction. Rather, he argues that his constitutional rights were violated by juror misconduct, confusingjury instructions, prosecutorial misconduct, and being deprived of effective assistance of counsel. For the following reasons, the Court will deny Willoughby's habeas petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Trial in Fayette Circuit Court

Willoughby, Leif Halvorsen and Susan Hutchens were indicted on March 7, 1983 by the Fayette County Grand Jury on three counts of murder and two counts of robbery in the first degree. Willoughby was also charged with being a persistent felony offender in the second degree, while Halvorsen and Hutchens were each charged with carrying a concealed weapon. Hutchens agreed to plead guilty to two counts of hindering prosecution, and subsequently testified at Willoughby and Halvorsen's joint trial before a jury in Fayette Circuit Court in the Commonwealth of Kentucky.

The Honorable Armand Angelucci, Fayette County Circuit Court Judge, presided over the trial. Willoughby was represented by Joe A. Jarrell, an attorney from the Fayette County Legal Aid office. The Kentucky Supreme Court has ably summarized the evidence presented at Willoughby's trial as follows:

The bodies of Joe Norman and Joey Durrum were found on the side of the Brooklyn Bridge on the Jessamine-Mercer County line. The body of Jacqueline Greene was found in the Kentucky River below the bridge. Each of the victims had been shot to death. David Warner, who lived on the Jessamine County side of the Brooklyn Bridge, became suspicious when he noticed a light blue Ford van and a dark pickup truck lurking at various points around the bridge. At one point, the pickup truck parked on the bridge, a person got out of the passenger side, and Warner heard a big splash. Forty-five minutes later, Warner heard a noise that sounded like a car hitting a guardrail or a sign. He looked out to see the blue van and the pickup truck speeding off across the bridge toward Lexington. Warner called the police.

When the police arrived, they found two of the victims on the side of the bridge, each bound with a blue-and-yellow rope that was attached to a heavy rock. The third victim was found in the river below the bridge, wrappedin a sheet that was also bound with a blue-and-yellow rope and attached to a heavy rock. A traffic sign near the bridge had been knocked over by a vehicle. It had paint smears on it and broken glass lying at its base.

Officer William Foekele testified that around 1:30 p.m., on January 13, he was on Loudon Avenue in Lexington, looking for a car involved in another investigation, when he noticed a blue Ford van stopped at 215 Loudon Avenue. He wrote down the van's license number. On the following day, police learned that two of the victims had lived in the house at 215 Loudon Avenue. A truck belonging to the third victim was found parked at the house. When police entered, they found blood at various places in the house.

Upon learning that a blue Ford van was seen in the area where the bodies were discovered, Officer Foekele suspected that it was the same vehicle which he had seen near the house at 215 Loudon the day before. A registration check revealed that the van was registered to Halvorsen. Foekele then went to Halvorsen's home but saw no vehicles in the driveway. A neighbor indicated that two men and a woman had just left in a blue pickup truck and would probably return shortly. Police staked out all routes to the house, located and cornered the truck, and demanded that its occupants exit. The driver, Mitchell, jumped out immediately. Halvorsen, after hesitating, slid out of the passenger side. The officers found a .38-caliber revolver where he had been sitting. As the officers approached the truck, the woman, Susan Hutchens, threw her hands up and said, "The gun's in my purse." A 9-millimeter pistol was found sticking out of her purse.

A ballistics expert positively identified several of the projectiles recovered from the victims' bodies as having come from the revolver and semi-automatic pistol found in the truck. Two 9-millimeter shell casings were additionally recovered at 215 Loudon. Fingerprints from both Willoughby and Hutchens were found on the 9-millimeter pistol. Hutchens' fingerprints were found on the refrigerator at 215 Loudon as well.

Also recovered from 215 Loudon, by the police, was a plastic blue-and-yellow rope identical to that found tied around the victims' bodies. Paint samples taken from Halvorsen's van matched the paint smears found on the highway sign near the bridge. A comparison between pieces of glass taken from a broken headlight on Halvorsen's van and pieces of broken headlight recovered from the base of the highway sign proved them to have come from the same headlight. Lastly, blood samples from Halvorsen's van were positively identified as having come from one of the victims.

At trial, Hutchens testified that in December 1982, she and Willoughby moved into the house at 215 Loudon, and Willoughby was employed by the victim, Joe Norman, to help him remodel the house. Willoughby and

Hutchens moved out a month later when Norman refused to pay Willoughby for the work he had done.

Hutchens testified that on January 13 Willoughby and Halvorsen asked her to buy ammunition for their pistols. Later that day, she decided to go visit the victim, Jacqueline Greene, who lived at 215 Loudon with Joe Norman. When she arrived, Willoughby, Halvorsen, and Norman were standing in the driveway talking. Hutchens went into the house where Greene introduced her to the victim, Joey Durrum. Willoughby, Halvorsen, and Norman then came inside when "all of a sudden" the shooting began.

Hutchens put her hands over her face, covering her eyes. She heard numerous shots. When the shooting was over, she opened her eyes to see Willoughby and Halvorsen each wielding a pistol. Norman and Durrum had fallen to the floor. Hutchens then saw Willoughby shoot Greene twice more, since she was still alive. Willoughby and Halvorsen then screamed at Hutchens to begin picking up the shell casings while they dragged the bodies of the victims through the hallway to the back door where they were placed in the van. Later, Halvorsen left in the van, and Willoughby left in the truck to get rid of the bodies.

Willoughby testified at trial in his own behalf that on January 13 he and Halvorsen went to 215 Loudon to smoke marijuana with Joe Norman. He and Norman began arguing about a cold check that Norman had given to him, when Norman poked him in the chest and threatened him with a bayonet. Willoughby then reached for his gun and began shooting. He remembered shooting Norman two or three times but did not remember shooting the other victims.

In his statements, Willoughby took all of the blame for the shootings. Halvorsen did not testify during the guilt phase. The jury found both Willoughby and Halvorsen guilty of the three murder charges, and Halvorsen guilty of carrying a concealed weapon. The penalty phase then proceeded, after which the jury returned verdicts sentencing Halvorsen and Willoughby to life imprisonment for the murder of Norman and to death for the murders of Greene and Durrum.

Halvorsen v. Commonwealth, 730 S.W.2d 921, 922-23 (Ky. 1986). The trial court followed the jury's recommendation and sentenced Willoughby to death for the murders of Green and Durrum, and life imprisonment for the murder of Norman.

B. State court procedural history

1. Willoughby's direct appeal to the Kentucky Supreme Court

Willoughby appealed his conviction to the Kentucky Supreme Court, raising thirty assignments of error. The Kentucky Supreme Court consolidated Willoughby's appeal with his co-Defendant's, Leif Halvorsen, for consideration. After thoroughly reviewing the issues raised on appeal, the Supreme Court held that: (1) Willoughby's rights were not violated by the prosecutor's comments that the jury's sentencing decision was a "recommendation"; (2) the "combination" jury instruction did not deprive Willoughby of due process; (3) the "combination" jury instruction did not deprive Willoughby of his right to a unanimous verdict; (4) the trial court did not err in choosing not to give an instruction on wanton murder; (5) the prosecutor's comments during penalty-phase closing arguments were not improper; (6) Willoughby's counsel from Legal Aid was not constitutionally ineffective even though another attorney from Legal Aid represented Willoughby's co-defendant, Hutchens; (7) trial court did not err in admitting Willoughby's pretrial taped and oral confessions; (8) trial court did not err in failing to instruct on all mitigating factors. Id. at 923-28. Although the Kentucky Supreme Court did not offer its...