Free Petition for Writ of Habeas Corpus - District Court of Delaware - Delaware

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 1 of 94

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE _________________________________ : Civil Action ROBERT JACKSON : (capital habeas corpus) : Petitioner, : : No. __________ v. : : STANLEY W. TAYLOR, JR., : Commissioner, Delaware Department of : Corrections; PAUL HOWARD, Bureau : Chief, Delaware Bureau of Prisons; : THOMAS L. CARROLL, Warden, : Delaware Correctional Center, : : Respondents. : _________________________________

PETITION FOR A WRIT OF HABEAS CORPUS BY A PRISONER IN STATE CUSTODY MICHAEL WISEMAN BILLY H. NOLAS REBECCA BLASKEY SHAWN NOLAN DAVID WYCOFF Assistant Federal Defenders MAUREEN K. ROWLEY Federal Defender Federal Community Defender Office For the Eastern District of Pennsylvania Suite 545 West - Curtis Center 601 Walnut Street Philadelphia, PA 19106 Dated: April 2, 2007

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 2 of 94

TABLE OF CONTENTS A. THE NEED FOR AN EVIDENTIARY HEARING . . . . . . . . . . . . . . . . . . . . 2 B. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. The State's Case at Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2. The Prosecutor's Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3. The New Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 C. PRIOR PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 D. STATEMENT REGARDING PENDING STATE COURT PROCEEDINGS, LACK OF EXHAUSTION, AND THE NEED FOR ABEYANCE/SUSPENSE . . . . . . . . . . . . . . . . . . 24 1. Petitioner's Claims Are Not Exhausted . . . . . . . . . . . . . . . . . . . . . . . . . 25 2. Petitioner Is Filing this Petition Now to Avoid a Statute of Limitations Barrier That Could Arise from a Post-Exhaustion Filing . . . . . . . . 25 E. THIS PETITION IS TIMELY UNDER 28 U.S.C. § 2244(d) . . . . . . . . . . . . 29 F. THIS PETITION SATISFIES 28 U.S.C. § 2244(b) (CONCERNING SECOND HABEAS PETITIONS) . . . . . . . . . . . . . . . . . Diligence ­ § 2244(b)(2)(B)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Innocence ­ § 2244(b)(2)(B)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Innocence of the offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Innocence of the death penalty . . . . . . . . . . . . . . . . . . . . . . . . . .

33 34 34 37 46

G. CLAIMS FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 CLAIM I. PETITIONER'S CONVICTION AND DEATH SENTENCE VIOLATE THE EIGHTH AND FOURTEENTH AMENDMENTS BECAUSE HE IS INNOCENT. . . . . . 51 PRIOR COUNSEL PROVIDED DISLOYAL, CONFLICTED AND INEPT REPRESENTATION AND PETITIONER'S RIGHT TO COUNSEL WAS VIOLATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

CLAIM II.

CLAIM III. THE PROSECUTION WITHHELD EVIDENCE AND ALLOWED MISLEADING
ii

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 3 of 94

AND FALSE TESTIMONY TO GO UNCORRECTED.

. . . . . . . . . . . . . . . . 64

CLAIM IV.

PETITIONER WAS DENIED DUE PROCESS WHERE THE SENTENCING JUDGE RELIED UPON A PSYCHOLOGICAL OR PSYCHIATRIC REPORT THAT WAS NOT DISCLOSED TO THE DEFENSE; WHERE PETITIONER HAS BEEN DENIED ACCESS TO HIS OWN PRISON MEDICAL RECORDS; AND WHERE THERE WAS JUROR MISCONDUCT BUT THE STATE HAS DENIED PETITIONER ACCESS TO THE JURY TO INVESTIGATE THE MISCONDUCT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

H. PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

iii

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 4 of 94

Petitioner, ROBERT JACKSON, through counsel, files this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 Petitioner's conviction and death sentence resulted from violations of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Petitioner was eighteen years old at the time of the offense for which he stands convicted and sentenced to death. Petitioner is innocent of the capital crime. He is not death-eligible, i.e., he is innocent of the death penalty. The capital conviction and death sentence resulted from the State's non-disclosure of material exculpatory and impeachment evidence, and from the State's failure to correct misleading and false testimony. The prior defense lawyers breached their duty of loyalty to Petitioner and had conflicts of interest denying Petitioner both assistance and effective assistance from counsel. The state court which sentenced Petitioner to death used mental health information that was not disclosed to the defense, and the state court has not allowed Petitioner access to information about juror misconduct or even access to his own prison medical records. The truth about Petitioner's case has never been told in any court. The facts demonstrating Petitioner's innocence and the constitutional violations that led to his All emphasis herein is supplied unless otherwise indicated. Parallel citations usually are omitted. The documents cited are included in the Appendix filed with this Petition.
1
1

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 5 of 94

unjust conviction and death sentence only recently came to light.2 A. THE NEED FOR AN EVIDENTIARY HEARING This case presents fact-intensive issues, both procedural and substantive, concerning innocence, diligence, non-disclosures of pertinent information, and constitutional error, that require an evidentiary hearing for fair resolution. See Townsend v. Sain, 372 U.S. 293, 312-19 (1963) (hearing appropriate when there is a material dispute); Smith v. Freeman, 892 F.2d 331, 338 (3d Cir. 1989) (in determining whether a hearing should be held, court must accept petitioner's allegations as true, and view those allegations in the light most favorable to petitioner). A hearing is necessary as to the substantive and procedural issues in this case. There are no procedural barriers to an evidentiary hearing. Petitioner cannot be

Undersigned counsel's office (the Federal Community Defender for the Eastern District of Pennsylvania) was approved by the Administrative Office of the United States Courts to begin work on Delaware capital cases in late March 2006. (Our office was asked to become involved in Delaware capital cases by the American Bar Association, the Federal Defender for Delaware, and the Administrative Office of the United States Courts.) Our office entered an appearance in the Third Circuit on April 10, 2006, and filed the certiorari petition and a civil rights action on Petitioner's behalf, both in May 2006. A Rule 61 state court post-conviction action in the Delaware Superior Court, submitting the new evidence we developed, was filed by state court counsel (Thomas Foley, Esq.) on October 19, 2006. The facts submitted through this petition came to light after the undersigned became involved in Petitioner's case.
2

2

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 6 of 94

deemed to have "failed to develop the factual basis of a[ny] claim in State court proceedings," 28 U.S.C. § 2254(e)(2), since the claims presented herein are now pending in state court, see § D, infra, where Petitioner has requested an evidentiary hearing and is trying to "develop the factual basis" for his claims. Moreover, many of the issues that require evidentiary development, including diligence and innocence, see §§ E-F, infra, concern Petitioner's request for this Court's review on this second habeas petition. Section 2254(e)(2) does not apply to such issues and the federal court has wide authority to hold a hearing. See Cristin v. Brennan, 281 F.3d 404, 416 (3d Cir. 2002) (AEDPA's restrictions on federal evidentiary hearings do not apply to procedural matters regarding the federal court's power to hear a petitioner's claims). B. STATEMENT OF THE CASE Before trial, Petitioner's first lawyer, Joseph Hurley, moved to withdraw from the case and told Judge Bifferato ­ who would preside at trial, rule on motions, and ultimately make the life-or-death sentencing decision ­ that Hurley had an "absolute sense of revulsion toward the defendant." Transcript, State v. Jackson, Motion to Withdraw as Counsel (11-10-92) at 4-5. In the presence of the prosecutor and codefendant Anthony Lachette's lawyer, Hurley told Judge Bifferato that he had not met with Petitioner for weeks due to the "emotional strain" meeting such a man had on Hurley. Id. Hurley also told Judge Bifferato, the prosecutor, and the codefendant's
3

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 7 of 94

lawyer that Petitioner was guilty and "ought to die." Id. at 5. Hurley said these things at "side bar," so that the Judge, the prosecutor and Lachette's lawyer could hear them, but his client, Petitioner, could not. The transcript of the "side bar" conference was then sealed. Petitioner had no chance to challenge what his "defense lawyer" stated about him and his guilt to the Judge who would preside and sentence, in the presence of the prosecutor who would cut a deal with codefendant Lachette.3 Hurley violated every tenet of loyalty and advocacy. And Hurley was wrong ­ Petitioner did not commit the murder. Petitioner's codefendant, Anthony Lachette, committed the murder. The evidence that shows Lachette's guilt and Petitioner's innocence was not presented to the courts earlier because it was withheld by prosecutors and because of the conflicts and utter ineffectiveness of the lawyers previously involved. Further, the jury never learned that key State witnesses lied about the benefits they received in exchange for their testimony against Petitioner. Defense attorney Hurley proclaimed that his client was guilty and ought to die. Codefendant Lachette blamed Petitioner and maneuvered his way to a deal. The Judge Bifferato should have recused himself, but did not. Moreover, Judge Bifferato never told subsequent defense counsel what he had heard. To the contrary, the Judge ordered that the transcript of this proceeding be sealed, and it remained undisclosed throughout the direct appeal and the prior post-conviction and habeas litigation.
4
3

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 8 of 94

prosecutors latched onto the theory that codefendant Lachette was not guilty but Petitioner was. They turned potential informant witnesses into state agents. Deals were covered up. What witnesses knew about Lachette's guilt never got to the jury. And more, Petitioner suffered from a debilitating shoulder dislocation injury that required surgery just months before the offense. This injury made it impossible for Petitioner to have wielded a heavy axe at all, as the State alleged, let alone to have swung it over his head numerous times as the victim's attacker must have done. Witnesses told the prosecutors about this, but this also was suppressed. The issues in this capital case cry out for review. 1. The State's Case at Trial The Delaware Supreme Court found that "evidence presented at trial reflected the following events": During the afternoon of April 3, 1992, Jackson and Anthony Lachette ("Lachette") decided to burglarize a house in order to obtain money to buy marijuana. Lachette suggested they break into the home of Elizabeth Girardi. Lachette was familiar with the residence since he was acquainted with one of Mrs. Girardi's children. No one was at home when the two broke into the house through the back door. Jackson wore a pair of gardening gloves he had brought with him. Once inside, the two gathered property that included jewelry, rare coins, compact discs, firecrackers, and a camera. After placing the stolen property in paper bags, Jackson and Lachette left the house the way they entered. As they headed toward the driveway, where Jackson had parked the car, they saw Mrs. Girardi, who had arrived home and was walking towards Jackson's car. Lachette decided to flee despite Jackson's attempt to
5

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 9 of 94

persuade him to stay. Lachette then dropped his bag and ran off, leaving Jackson behind. After Lachette ran off, Jackson grabbed an ax from a shed and confronted Mrs. Girardi in the driveway. A struggle ensued, during which Mrs. Girardi fell to the ground, whereupon Jackson struck her several times in the face with the ax. Jackson then loaded his car with the stolen property. Before leaving, Jackson noticed that Mrs. Girardi was still alive. He struck her several more times in the face with the ax, killing her, and then left the scene. Shortly thereafter, Jackson found Lachette walking along the road and picked him up. Jackson then told Lachette that he had killed Mrs. Girardi. Lachette noticed blood on Jackson's gloves and pant legs. Over the course of the next week, Jackson watched television news reports and spoke with Lachette and James Burton ("Burton"), his roommate and longtime friend, about the Girardi murder. During that time, Jackson told Burton that he had killed Mrs. Girardi. On April 9, 1992, Burton and Carl Roca ("Roca"), a friend, sold a bracelet stolen in the Girardi burglary to a pawn shop in Elsmere. Pawn shop owners in the area had been alerted by the police to be on the lookout for certain pieces of property stolen from the Girardi residence. The pawn shop owner contacted the police, who, following an investigation, obtained warrants authorizing the search of Burton's and Roca's residences and also authorizing the police to take Burton and Roca into custody to obtain clothing, fingerprints, and hair and blood samples from their persons. When the police arrived at Burton's residence, they learned from his parents that he had moved out and was living with Jackson. Conducting surveillance in the area near Burton's and Jackson's apartment, police observed Burton and two companions enter a car and drive off. The police followed, eventually stopping the car for two motor vehicle violations. Lachette was driving, Jackson was in the front passenger seat, and Burton was in the rear seat. Upon opening the driver's door, the police observed a 14-inch metal pipe partially concealed between the driver's seat and door. After Lachette exited the
6

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 10 of 94

vehicle, the police folded the driver's seat-back forward to allow Burton access to the door. Upon doing this, a plastic bag containing marijuana was discovered in the folding area where the seat-back and cushion meet. All three of the vehicle's occupants, including Jackson, were then arrested for carrying a concealed deadly weapon and possession of marijuana. Before placing Jackson in a holding cell, the police, pursuant to standard procedures, removed certain articles of property and clothing from his person, including his sneakers. Later that night, when police discovered that Lachette and Jackson were involved in the Girardi burglary/homicide, the sneakers were seized as evidence. The sole of one of Jackson's sneakers was later determined to be consistent with foot prints found at the murder scene. While in custody on the concealed weapon and marijuana charges, Lachette confessed to his role in the burglary and implicated Jackson in the Girardi murder. Subsequently, he gave a full statement to the police regarding the details of the burglary and Jackson's remarks regarding the murder. Additionally, Burton eventually gave a full statement to police, which included details of Jackson's remarks to him regarding the murder. Both Lachette and Burton testified for the State at trial. Jackson v. State, 643 A.2d 1360, 1363-64 (Del. 1994) ("Jackson-1"). The trial evidence about "what happened on the day" of the offense "came mainly from Lachette and Burton." State v. Jackson, Sentencing Decision at 9, Bifferato, J. (Oct. 26, 1995). Both Lachette and Burton had strong motives to lie, and shift responsibility from themselves to Petitioner. See Jackson v. State, Opinion of Bifferato, J., denying post-conviction relief, at 14 (Aug. 25, 1999) ("Lachette and ... Burton both ... had motives to fabricate stories in order to extricate themselves from

7

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 11 of 94

criminal responsibility").4 Lachette had good reason to fear that he would be accused as the killer. The physical evidence did not exclude Lachette as the killer, and even the State's evidence showed that it was Lachette who had the most compelling motive to kill: Lachette was the one who targeted the Girardi house for the burglary; Lachette had broken into the house; and Mrs. Girardi knew Lachette, but did not know Petitioner. Thus, Lachette was the one that Mrs. Girardi would have recognized; Lachette had the greatest motive to kill her. But Lachette got to the authorities. He blamed Petitioner. He got special treatment from the State.5 The evolution of Lachette's statements to the authorities tells the tale of a calculating man whose story to the police started with feigned complete innocence and progressed toward finger-pointing at Petitioner. All the while, Lachette was gauging how he could best extricate himself. When the police first told Lachette that they were investigating the murder, he said he had heard about it, said he had gone to school with Mrs. Girardi's son, and

Under 28 U.S.C. § 2244(b)(2)(B)(ii), all of the evidence suggesting innocence ("the evidence as a whole") must be considered. Accordingly the Court should consider the new evidence of innocence along with the evidence from earlier proceedings. See § F, infra (discussing § 2244(b)(2)(B)). Lachette was ultimately sentenced to a total of five years. See Lachette Sentencing Order.
8
5

4

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 12 of 94

said his mother was very upset because she had been friendly with Mrs. Girardi. 4/10/92 Lachette Statement at 2. He said he used to visit their house and said that he had no problem talking to the police ­ "None whatsoever." Id. at 3. He feigned ignorance beyond that, saying the story had been all over the press, that he had been following it, and that's all he knew. Id. As the police asked more questions, Lachette sought some control over the situation, wanting to know first what the police knew: A. Do you think we, we had something to do with this or you have reason to believe we have or? Q. A. Q. Yeah, you tell me. We have Bob, we have you. Yeah for what? We have property that was taken out of the Girardi residence.

A. Who had property taken out of Girardi residence. No I didn't. I most certainly did not. If I do I did not know it was from Girardi residence. ... you can check my car ... Id. at 4-5. (Lachette may not have been holding the proceeds, but he knew how they were disposed, because he participated in disposing of them.) What followed next was Lachette's first version of the events. He claimed he had driven around with Petitioner ­ "yeah we took his car, my car stayed home"; they visited Petitioner's sister's house; then they went back to Petitioner's apartment,

9

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 13 of 94

where they "hung out and watched TV"; a few other people came by. Lachette included some friendly conversation about the poor condition of Petitioner's car. 4/10/92 Lachette Statement at 3-6. The police challenged this tale, suggesting (falsely) that Petitioner had already implicated Lachette. Id. at 6. Lachette would not commit until he knew what Petitioner (supposedly) had said: "What are you hearing from him?" Id. Led further to believe that Petitioner had described the incident, Lachette considered whether he should get a lawyer before saying more, but decided it would be to his advantage to proceed. He said he and Petitioner "pulled up in his car and ah she came home"; Lachette claimed that he then ran away. In this version, Petitioner found Lachette and picked him up in the car. "Straight up man," said Lachette, Petitioner "said she couldn't talk." Id. at 9. The questioning continued. Lachette said they had stolen things when they were together, but they "left everything lying right there." Id. As the police asked each new question that incriminated Lachette ­ e.g., How did they get in the house? Were they wearing gloves? ­ Lachette began to balk at continuing without a lawyer. The police asked if he understood he was going to be charged with the crime, and his answer was: "As long as I'm not charged with fucking murder." Lachette thought he had extricated himself from a murder charge, but was told that he had not. Id. at 9-10.
10

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 14 of 94

Lachette then retained a lawyer who approached the State on his behalf. On August 26, after his lawyer went to the State with proffered information from Lachette, Lachette met with the authorities again, anticipating that at worst he would be convicted of burglary, given his cooperation. 8/26/92 Lachette Statement at 2. All told, Lachette gave the State four versions of the events. It is the fourth version that Lachette and the State presented to the jury. This story included personal admissions only to what could not plausibly be denied ­ e.g., Lachette knew the Girardis and their home, so he admitted that he had suggested the burglary of the Girardi home and that he directed Petitioner to it; Lachette admitted he broke into the house (he knew he had touched the door without his gloves); Lachette admitted he participated in collecting items from around the house (he knew he touched some items in the house without his gloves). This version also contains an oddly precise account of the killing, especially strange because Lachette claimed he was not there. To cover himself, Lachette claimed Petitioner confessed the details to him. Given Lachette's reasons to lie, e.g., he planned the burglary and had a motive to kill the decedent because she knew him and could identify him, together with the tortured history of his statements to police, there are questions about his veracity. Much more significantly, as the new evidence shows, he had a very good reason to lie ­ he was the killer. Nevertheless, Lachette managed to protect himself and work
11

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 15 of 94

out a deal with the State. James Burton also had good reason to lie. Burton, along with Carl Roca, sold fruits of the Girardi burglary at a pawnshop, using Burton's driver's license as identification. The physical evidence did not exclude Burton (or Roca) as the killer. It was police suspicion and surveillance of Burton that led to the arrest of Lachette and Petitioner. Police stopped the car which carried all three of them. All were charged with possessing the weapon (a 14-inch metal pipe) that was concealed next to Lachette (the driver), and the marijuana that was observed when the driver's seat was moved so that Burton (the back seat passenger) could exit. To extricate himself, Burton would claim at trial that Petitioner made an admission of guilt to him. As with Lachette, even the trial evidence raises questions about the veracity of Burton's testimony that Petitioner confessed to him on the same day as the murder. In addition to Burton's general interest in extricating himself from the serious charges involved, it seems very unlikely that Burton would have used his own identification to pawn a bracelet connected to the crime if Petitioner had actually confessed to him that the crime was murder. As described later, Burton's account is also now belied by new evidence showing Lachette's guilt and Petitioner's innocence. The State also called a witness who was presented to the jury as a person with no reason to implicate Petitioner ­ Andre Johnson. Johnson testified
12

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 16 of 94

that Jackson had solicited ... Johnson, a fellow inmate at the MultiPurpose Criminal Justice Facility (Gander Hill Prison), to kill Burton upon Johnson's release from prison. After Johnson's release, Jackson sent him a letter discussing, in code, Burton's death, along with a photograph of Burton and a map to his residence. Johnson decided not to participate and delivered these materials to the Attorney General's office. Jackson-1 at 1369. The supposedly "coded" letter to Johnson does not mention killing Burton.6 Thus, Johnson's testimony about the supposed "coded" meaning of the letter was essential to the State's claim that Petitioner had solicited Johnson to kill Burton and was crucial to the State's case. Indeed, the content of the letter is not

6

The handwritten letter (see Appendix) states, verbatim:

Andre How's it going? I'm following your advice so things are fine. Since you've left, things seem pretty messed up cause no one to talk too and the state is really trying to fuck me hard. I Hope your right about things getting worse before they get better. JusticE has to prevaiL if not I'll go fucking nuts. I'm glad we had the opportunity to become friends and hopefully if things work out the friendshiP will be benificial to the both of us. My brain and thinking patterns have increased thanks to you if it wasn't for that I don't think I'd still be here. If shit hits the fan, I'm out of this place for good. I pray, I don't have to take that rought but if so I may need help. Well good luck with your legal matters and keep in touch. Later your walking partner PS I don't know how to say every thing I want to. Understand?
13

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 17 of 94

damning. On its face, it is a cry for justice and a suicide threat. The State asserted that this apparently benign letter was in a "code" that could only be unlocked by Johnson's testimony about its supposed meaning. Johnson's credibility thus was essential to the State's claim that Petitioner solicited Johnson to kill Burton and the implication that Petitioner therefore was guilty. Johnson testified that he had open criminal charges, including burglary, theft and weapons charges, which carried a potential sentence of life imprisonment. Tr. 3/23/93 at 338-41. However, Johnson testified steadfastly that he had not been promised and would not receive any consideration from the State with respect to the pending charges. Id. at 342. Johnson claimed that his only motivation for contacting the prosecutor and testifying was that Petitioner's alleged request was just "wrong" and Johnson did not want anything to do with it. Id. at 357. When defense counsel pressed Johnson on this topic on cross-examination, Johnson insisted: "The State ain't giving me nothing, just like you aren't." Id. at 371.7 In closing argument, the prosecutor, argued strenuously that Johnson had no possible credibility problems because he "was promised nothing" for his testimony: Let's look at Andre Johnson's motivation. We know he was then arrested and reincarcerated and he's facing life in jail. He was promised nothing by the State. The only thing that he got for testifying was that he will not be prosecuted for conspiracy to commit murder. That is the immunity he was given that he will not be prosecuted based upon his testimony. And under a rather intense cross examination what did we learn
14
7

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 18 of 94

The new evidence shows that Lachette and Burton, who had obvious reasons to lie, did lie ­ the truth is that Lachette, not Petitioner, was the killer. The evidence also shows that Andre Johnson lied, as he now admits.8 He lied about his deal; he lied about what he believed; and he lied about Petitioner's guilt. He told the prosecutors pre-trial that Petitioner was innocent and Lachette was the real killer, but what he knew and told the prosecutors was suppressed. Thus, the new evidence shows that the jury never heard the truth ­ that Lachette was the real killer; that Lachette admitted it; that Lachette was a violent, unpredictable drug addict and dealer; that Petitioner physically could not have committed the crime; and that testimony of State witnesses was fabricated. 2. The Prosecutor's Argument In accord with Delaware law, the prosecutor told the jury that only the actual killer was guilty of first degree-murder and subject to the death penalty. In the prosecutor's words: Anthony Lachette will be a witness in this case. You will conclude after you hear all the evidence, hear all the witnesses, that Anthony Lachette pled guilty to burglary second degree and conspiracy second degree about Andre Johnson? Andre Johnson told you that, look, the State is giving me nothing. Just like you are giving me nothing. Tr. 3/29/93 & 3/30/93 at 81. So did another informant, used only at sentencing, Victor Talmo, as he also now admits. See Claim III, infra.
15
8

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 19 of 94

because that is all Anthony Lachette did. And that the other remaining defendant [Petitioner] seated here today in this courtroom you'll conclude is a cold blooded, remorseless killer. Tr. 3/16/93 at 27. Thus, Petitioner became the man responsible, and guilty of capital murder, while Lachette became the State's cooperating witness, and not guilty of murder. 3. The New Evidence The new evidence shows that Petitioner is innocent of this murder. The new evidence shows that Lachette is the actual killer. Paul Webber served time with Lachette on the same tier at Gander Hill prison, before Petitioner's trial. Lachette confessed to Webber that Lachette killed Mrs. Girardi. "When Lachette got on the tier, he told me that he was the one who killed the lady." Paul Webber Declaration ¶ 2. Webber further describes Lachette as "a very scary guy," who "was using drugs while in jail" and was a "dealer on the outside." Id. ¶ 4. Another inmate who was in prison with Lachette before Petitioner's trial, Christopher Desmond, states: "I remember a conversation with Lachette on the tier about Joe Hurley, who was Jackson's lawyer. Derrick Johnson was there, too. Lachette was saying that he was the one who killed the woman. He always said I did what I had to do. What triggered the conversation was Hurley on television. Lachette
16

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 20 of 94

always said he was the first one in to talk so everybody blamed Jackson." Christopher Desmond Declaration ¶ 4. "Lachette would brag about the fact that he got to the cops first to tell his story so he would get his deal." Id. ¶ 3. Christopher Desmond's description of Lachette's admissions is corroborated by (now-Pastor) Derrick Johnson, who was also detained in Gander Hill while Petitioner and Lachette were awaiting trial. Johnson states that Petitioner always maintained that he was innocent and Lachette did the killing. Derrick Johnson Declaration ¶ 4. Lachette threatened Johnson, admitted that he had already killed someone, and stated he would do the same to Johnson. Id. ¶ 3. Johnson describes Lachette as a bully, arrogant and aggressive. Id. ¶ 2-3. Indeed, everyone on the block where they were housed knew Lachette was responsible for the killing and that Lachette was blaming Petitioner to save himself. Id. ¶ 2. A former cell mate of Lachette, Jonathon Freeman, provides further evidence that Lachette was the killer. Lachette told Freeman that he knew from the beginning that he had to get to the prosecutor first to tell his story. Lachette told Freeman that when the woman drove into the garage, Lachette knew she had to be killed because she knew him, and he found the axe right there. Lachette admitted to Freeman that he was the killer. Even now, Freeman is afraid of Lachette, because of Lachette's violent reputation and Lachette's actions in prison. See Declaration of Victor Abreu,
17

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 21 of 94

Esq. (describing Freeman's account). Andre Johnson, who testified for the State at trial, always knew that Lachette, not Petitioner, was the killer; and Andre Johnson told this to the prosecutors. Andre Johnson Declaration ¶ 2. They did not want to hear it. Id. ("They didn't want to hear any of that stuff. They obviously didn't want me to say that it was my understanding that the other guy did the killing"). Andre Johnson also told the prosecutors about Petitioner's severe shoulder injury, which would make it impossible for Petitioner to have wielded the axe. Id. None of this information from Johnson was disclosed to the defense.9 George Gentry knew Lachette, and provides further insight into Lachette's violent and unpredictable tendencies. He describes Lachette as a violent man, who would "fly off into a rage for no reason." George Gentry Declaration ¶ 6. Lachette was an arrogant bully and was heavily into drugs. "He used steroids ... and was a

At the behest of the prosecutors, Andre Johnson testified for the State at trial that Petitioner asked him to get rid of James Burton. At trial, Andre Johnson denied he was receiving any benefit for his testimony. This was false, as he now admits. He now describes his meetings with the prosecutors and explains that he understood he would get a very good deal. See Andre Johnson Declaration ¶ 4. In a pleading he filed in his own case, he stated: "Mr. Barron assured me that my chargies (sic) would be disposed of and that he could not put that in writing because if the defense counsel was to find out about this agreement, it would be used to destroy my credibility." Complaint for Specific Performance, Johnson v. State ¶ 8. See also Claim III, infra (describing Brady violations relating to Andre Johnson).
18

9

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 22 of 94

really big guy, much bigger than Bobby [Jackson]. He also used coke, acid and mushrooms." Id. Lachette sold drugs and would brag about getting kids hooked on drugs, and how he could get people to do what he wanted. Id. Gentry also knew James Burton. Gentry describes Burton as a drug addict and an inveterate liar. "He would lie about really strange things just to make himself look better. He would tell people that he had a better job than he really had .... You just couldn't trust anything James [Burton] said." Id. ¶ 5. Gentry also knew that Petitioner suffered a severe shoulder and head injury as a result of the car accident shortly before the offense. "He really couldn't do anything with his arm or shoulder after that. He couldn't even raise his arm above his head. He used to like to play baseball but he couldn't pick up or even swing a bat anymore after the accident" Id. ¶ 4. He describes Petitioner as non-violent, respectful and dependable. Id. ¶ 2. Victor Talmo, a State sentencing witness, told the police and prosecutors that Petitioner always denied killing the victim. Petitioner "was always adamant that he didn't do it." Victor Talmo Declaration ¶ 2. In spite of continuous pressure from the police and prosecutors to say that Petitioner confessed, Talmo knew "Jackson always maintained that he didn't kill the woman." Id. ¶ 4. This exculpatory evidence was not provided to the defense.
19

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 23 of 94

The prosecution also interviewed Angeline Willen, a former girlfriend of Petitioner's. She told them that Petitioner was never violent toward her in any way. Angeline Willen Declaration ¶ 7. She told the prosecution about the severe shoulder and arm injury that Petitioner had suffered, an injury that made it impossible for him to have done the killing. Id. ¶ 4, 7. According to the trial testimony, the killer struck the victim repeatedly with the axe. E.g., Tr. 3/24/93 at 550 (medical examiner's testimony). The condition of Petitioner's shoulder would make such actions by him impossible. According to Willen, and as corroborated by Gentry, supra, and other evidence, see infra, Petitioner "could not do much at all with that arm or shoulder. He was depressed over this shoulder injury. He was always active and played sports. After the accident, he couldn't do anything. He couldn't lift things or swing his arm or lift his arm in the air. He could not use his shoulder or arm to do much of anything." Angeline Willen Declaration ¶ 4; see also Riverside Hospital Records (describing the injury). As to Lachette, Angeline Willen describes him as a drug dealer and very aggressive: "He was very violent. He would often fly off the handle, slamming doors and throwing things around. He would fly into a rage for no reason." Id. at 5. Moreover, in spite of forceful questioning about Petitioner from the prosecution designed to elicit violent tendencies of Petitioner, Ms. Willen told the authorities that
20

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 24 of 94

Petitioner was not in any way violent. Id. ¶ 7. The jury heard none of this. David Gerhardt provides further evidence of Petitioner's innocence. Gerhart was the driver during the "bad car accident" involving Petitioner, in which the "car went off the road and flipped over a few times." David Gerhardt Declaration ¶ 2. Petitioner suffered severe injuries. Gerhardt describes Petitioner's shoulder as "never the same." Id. ¶ 4. "He had no range of motion and wouldn't horseplay at all. I remember Bobby had an operation on his shoulder and wore a bandage for a long time. He was in a lot of pain, and just never the same." Id. This evidence further shows that Petitioner could not have committed the killing. The jury never heard it. Robert Ashley was another passenger in the car during the accident. He was in the back seat of the truck and remembers the vehicle flipping over five or six times and landing upside down. "When Bobby [Jackson] finally got out of the truck he was very bloody. He was bleeding from his head and arm and feet. I know he hurt his shoulder real bad." Robert Ashley Declaration ¶ 10. Ashley recalls that after the accident Petitioner's shoulder was never the same ­ he could not lift his arm or play sports. Id. ¶ 7-8. When he visited Petitioner while he was incarcerated pre-trial, Petitioner was still complaining about his shoulder. Id. ¶ 9. Mr. Ashley also knew Petitioner for many years and describes him as respectful and non-violent. Id. ¶ 2-3. Cathy Barrett offers additional evidence. She knew Petitioner well. She states
21

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 25 of 94

that Petitioner was respectful, truthful and dependable. She never saw him behave violently in any way. Cathy Barrett Declaration ¶ 2. Barrett also could have offered evidence concerning State witness James Burton. She explains that Burton was a liar, a drug addict, a drug dealer and a thief. Burton "was just one of those people who you knew you couldn't trust and who would do anything to make sure he was okay regardless of other people." Id. ¶ 5. The jury never heard the evidence about Burton. Sharon Montgomery was another close friend of Petitioner. They grew up together. She describes him as "sweet and kind" and "the best kind of friend you could have." Sharon Montgomery Declaration ¶ 2. She also states that he was always respectful and never "behaved violently in any way." Id. ¶ 3. She recalls that he hurt his arm and shoulder severely in the auto accident. She, too, could have testified that Burton was known to be a liar and was only concerned for himself. Id. ¶ 5. Melissa Pullak dated Petitioner for a time. She states that Petitioner was supportive and sweet, and was never violent in any way toward her. See Melissa Pullak Declaration. Sandra Younker knew Petitioner since he was two years old. She notes that he was sensitive and slow to anger. Sandra Younker Declaration ¶ 2. When Petitioner was about 15 years old, he babysat Ms. Younker's child. She
22

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 26 of 94

describes him as a "dependable" and helpful person. Id. ¶ 4. The jury never heard the exculpatory evidence that has recently been uncovered. The proceedings that resulted in the capital conviction, death sentence, and affirmances on direct appeal and in prior collateral proceedings were not constitutionally reliable and constitute a miscarriage of justice. C. PRIOR PROCEEDINGS Petitioner's convictions were affirmed on his first direct appeal to the Delaware Supreme Court. The Court vacated the (non-unanimous) death sentence and

remanded for resentencing. See Jackson v. State, 643 A.2d 1360 (Del. 1994) ("Jackson-1"). The jury was again not unanimous at resentencing, and Judge Bifferato again imposed a death sentence. The Delaware Supreme Court affirmed. Jackson v. State, 684 A.2d 745 (Del. 1996) ("Jackson-2"). State post-conviction relief was denied. Jackson v. State, 770 A.2d 506 (Del. 2001) ("Jackson-3"). Federal habeas corpus relief was denied. Jackson v. Carroll, 2004 WL 1192650 (D. Del. 5/20/04) ("Jackson-4"), aff'd, Jackson v. Carroll, 161 Fed.Appx. 190, 2005 WL 3477556 (3d Cir. 2005) ("Jackson-5"), cert. denied, 127 S.Ct. 60 (2006). On May 9, 2006, in conjunction with pending civil rights litigation challenging the lethal injection execution procedures employed in Delaware, the District Court enjoined

23

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 27 of 94

Petitioner's execution. Jackson v. Taylor, No. 06-cv-300-SLR (D. Del.).10 D. STATEMENT REGARDING PENDING STATE COURT PROCEEDINGS, LACK OF EXHAUSTION, AND THE NEED FOR ABEYANCE/SUSPENSE The claims here presented are not exhausted. Counsel submit them now in order to protect Petitioner from the possibility that submitting them later would result in a statute of limitations barrier to review. Habeas law is ever-changing, and counsel cannot risk Petitioner's life by waiting until completion of exhaustion of state court remedies before filing in federal court. We therefore ask this Court to hold these proceedings in abeyance or suspense while state court remedies are exhausted. As described later, the United States Supreme Court and the Third Circuit both have endorsed this approach.

Undersigned counsel's office (the Federal Community Defender for the Eastern District of Pennsylvania) was approved by the Administrative Office of the United States Courts to begin work on Delaware capital cases in late March 2006. (Our office was asked to become involved in Delaware capital cases by the American Bar Association, the Federal Defender for Delaware, and the Administrative Office of the United States Courts.) Our office entered an appearance in the Third Circuit on April 10, 2006, and filed the certiorari petition and a civil rights action on Petitioner's behalf, both in May 2006. A Rule 61 state court post-conviction action in the Delaware Superior Court, submitting the new evidence we developed, was filed by state court counsel (Thomas Foley, Esq.) on October 19, 2006.
24

10

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 28 of 94

1. Petitioner's Claims Are Not Exhausted Petitioner has filed in the Delaware Superior Court a Motion for Postconviction Relief Pursuant to Superior Court Rule 61, and Consolidated Points of Law (dated October 19, 2006), setting forth the newly discovered evidence and claims described herein. The State sought and was granted additional time to respond. The State's substantive response is due on April 16, 2007. Thus, the claims set forth herein are now pending in state court. Petitioner files the instant petition within one year of the discovery of new evidence in order to protect Petitioner's right to eventual federal habeas review, as set forth immediately below. 2. Petitioner Is Filing this Petition Now to Avoid a Statute of Limitations Barrier That Could Arise from a Post-Exhaustion Filing Petitioner's pleading in state court is his second state post-conviction petition. Counsel's research indicates that Delaware's post-conviction statute allows for successive petitions under circumstances such as those in Petitioner's case.11 Because Delaware Criminal Rule 61(i)(5) provides exceptions to the procedural bars of Rule 61 where the petitioner, as here, raises a "colorable" claim that his conviction or sentence constitute a "miscarriage of justice" or deprivation of "fundamental fairness." De. Super. Ct.Crim. R. 61(i)(5). Rule 61(i)(5) "[i]s a general default provision, and permits a petitioner to seek relief if he or she was otherwise procedurally barred under Rules 61(i)(1)-(3)." Bailey v. State, 588 A.2d 1121, 1129 (Del.1991); see also Younger v. State, 580 A.2d 552, 555 (Del. 1990) (fundamental fairness exception of Rule 61(i)(5) applies where petitioner shows deprivation of a
25
11

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 29 of 94

Petitioner's state post-conviction proceedings are pending, he has not exhausted state court remedies and federal habeas review technically is premature at this time. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition"). If federal habeas corpus law was predictable, Mr. Jackson would not be compelled to file in federal court at this time, but would await completion of the pending state court proceedings. Unfortunately, federal habeas law keeps changing, and undersigned counsel wish to avoid having this death-sentenced client fall into traps that have ensnared other habeas petitioners.12 Mr. Jackson is compelled to seek the protection of the federal courts before exhausting state court remedies because his failure to do so could forever bar him from obtaining federal habeas review of the claims he is exhausting.

substantial constitutional right). See, e.g., Lawrence v. Florida, 127 S.Ct. 1079 (2007) (no federal habeas review in capital case where petitioner believed that time for seeking certiorari review of state court denial of post-conviction relief would toll AEDPA limitations); Burton v. Stewart, 127 S.Ct. 793 (2007) (no federal habeas review of sentencing issues where petitioner believed he had to seek separate federal review of his conviction before his sentence was final); Pace v. DiGuglielmo, 544 U.S. 408 (2005) (no federal habeas review where pro se petitioner made a mistake by seeking to exhaust state court remedies that he believed were available, before seeking federal habeas review, and AEDPA limitations period expired during pursuit of state review).
26
12

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 30 of 94

The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") has a one year limitations period. See 28 U.S.C. § 2244(d)(1). In recognition of the exhaustion requirement, AEDPA requires the tolling of this one year limitations period for the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). As we noted, Mr. Jackson does have pending in state court an "application for State post-conviction or other collateral review with respect to the pertinent judgment or claim," § 2244(d)(2). Thus, if Mr. Jackson could be certain that his currently pending state court application would be deemed "properly filed" within the meaning of § 2244(d)(2), he would not fear the AEDPA limitations period because the AEDPA year is tolled by the pending state proceedings. If that were the case, Mr. Jackson would have no reason to now seek this Court's protection, and would wait until after exhaustion of state remedies before seeking this Court's review, as was the case with the exhaustion requirement before the AEDPA. To be sure, counsel do believe that Mr. Jackson's state court proceedings are "properly filed." However, because of the way the United States Supreme Court has construed the term "properly filed," we will not know if we are right until after the state courts rule. See Pace v. DiGuglielmo, 544 U.S. 408 (2005). Under Pace, if the
27

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 31 of 94

state court rejects Mr. Jackson's pending application as untimely under state law, then Mr. Jackson's state court application would be deemed never to have been "properly filed." The pending state court application then would not toll AEDPA's limitations period. Under Pace, the state courts make the call on the question of what is "properly filed," no matter how arbitrary or unpredictable their ruling may be. Given these circumstances, counsel cannot risk Mr. Jackson's life by assuming that the state courts will rule, as they should, that Mr. Jackson's state court proceedings are properly filed. Neither can counsel risk Mr. Jackson's life on the belief that "equitable tolling" of the AEDPA limitations period will be available. The United States Supreme Court repeatedly has declined to address whether equitable tolling is even available under AEDPA. E.g., Lawrence v. Florida, 127 S.Ct. 1079, 1085 (2007) ("We have not decided whether § 2244(d) allows for equitable tolling."). If the Supreme Court were to hold that equitable tolling is not available, Mr. Jackson's failure to seek federal review now would result in forfeiture of the possibility of obtaining federal review. The claims Mr. Jackson raises are worthy of federal review, and demonstrate that Mr. Jackson should have his rights to federal review preserved if relief is not granted in state court. The Supreme Court and Third Circuit have held that there is a mechanism for preservation of federal habeas remedies in situations such as this ­
28

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 32 of 94

"suspense" or "abeyance" of the federal litigation pending exhaustion in state court. See Rhines v. Weber, 544 U.S. 269 (2005); Crews v. Horn, 360 F.3d 146 (3d Cir. 2004). We therefore file this Petition now, even though federal habeas review is technically premature. Since state court remedies have not been exhausted, and because even a dismissal without prejudice by this Court could endanger Petitioner's right to seek federal review after exhaustion, federal habeas proceedings should be held in suspense or abeyance pending the outcome of the state court proceedings. E. THIS PETITION IS TIMELY UNDER 28 U.S.C. § 2244(d) This Petition is timely under AEDPA's limitations period, 28 U.S.C. § 2244(d). The provisions of the AEDPA statute of limitations that are relevant to Petitioner are: (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of­ * * * (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; [or] * * * (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

29

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 33 of 94

28 U.S.C. § 2244(d)(1)(B) & (D). The Administrative Office of the United States Courts first gave undersigned counsel approval to begin working on Delaware capital cases in the last week of March, 2006. Counsel first became involved in Petitioner's case in April-May, 2006, after Petitioner had been scheduled for execution. We entered an appearance in the Third Circuit on April 10, 2006, and we filed for certiorari review in the United States Supreme Court in May of 2006. The new evidence and claims we developed were submitted to the Delaware Superior Court through the pending Rule 61 petition on October 19, 2006. Petitioner has made a compelling showing that he is innocent of the murder and innocent of the death penalty. The courts have never reviewed the vast array of evidence that proves Petitioner's innocence. Neither have the courts reviewed the legitimate and substantial claims of constitutional error this case presents. Some of the evidence was in the hands of prosecuting authorities, who failed to disclose it. Other evidence was not heard because Petitioner was represented by attorneys whose representation was notable for its utter disloyalty, sheer ineffectiveness, and/or conflicts of interest. Other evidence was not heard because the witnesses have only now come forward. The facts upon which this Petition is based could not have been discovered
30

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 34 of 94

previously through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(D). Due diligence does not require that the defendant "leave no stone unturned and no witness unpursued," Berryman v. Morton, 100 F.3d 1089, 1101 (3d Cir. 1996), and "does not require maximum feasible diligence, only `due,' or reasonable, diligence" is required, DiCenzi v. Rose, 452 F.3d 465, 470 (6th Cir. 2006). Due diligence does not require counsel to disbelieve the government's claims about the case or about whether there is Brady information. See Banks v. Dretke, 540 U.S. 668, 695 (2004) ("Our decisions lend no support to the notion that defendants must scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed."); id. at 696 ("A rule ... declaring `prosecutor may hide, defendant must seek,' is not tenable in a system constitutionally bound to accord defendants due process."); Strickler v. Greene, 527 U.S. 263, 286-87 (1999) ("The presumption, well established by tradition and experience, that prosecutors have fully discharged their official duties, is inconsistent with the novel suggestion that conscientious defense counsel have a procedural obligation to assert constitutional error on the basis of mere suspicion that some prosecutorial misstep may have occurred." (citations and quotation marks omitted)).13 Here, not only did trial counsel request all Brady information in a discovery letter, see letter to prosecutor Timothy Barron (February 4, 1993), but counsel also filed a motion specifically requesting that the prosecution "reveal any agreement
31
13

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 35 of 94

Due diligence "is a fact-specific issue the resolution of which depends" upon all of the circumstances and, thus, generally requires evidentiary presentation and development. DiCenzi, 452 F.3d at 471. This Court should at least allow an evidentiary hearing on diligence. The first item of new evidence, the Declaration of Andre Johnson, was obtained on April 3, 2006. Petitioner is filing this Petition within one year of the date of discovery of this first piece of new evidence. All other evidence in support of this Petition was discovered after that date. Thus, this Petition is filed within one year of discovery of the new evidence. Due diligence is established for several reasons. Underlying evidence was concealed, the witnesses had not come forward before, the State misrepresented facts, and prior counsel were utterly disloyal. See Claims I, II, III, infra. Moreover, as to some claims, documents were sealed and facts remain undisclosed even today. See Claims II, IV, infra.

entered into with any witness that could influence his or her testimony." See Motion to Require Prosecution to Reveal any Agreement Entered into with any Witness that Could Influence his or her Testimony. The State assured prior counsel that it had abided by the requirements of Brady; that it had turned over all exculpatory and impeachment evidence; and that there was no evidence of Petitioner's innocence. Counsel relied on the prosecution's representations that all such material had been disclosed.
32

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 36 of 94

F. THIS PETITION SATISFIES 28 U.S.C. § 2244(b) (CONCERNING SECOND HABEAS PETITIONS) This is Petitioner's second habeas petition. It satisfies the requirements of 28 U.S.C. § 2244(b) concerning second and successive petitions. Section 2244(b)(1) states: "A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." The claims herein were not presented in Petitioner's prior habeas proceedings and, thus, satisfy this requirement. Since the claims presented herein were not presented before, they must satisfy § 2244(b)(2), which states in pertinent part: (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless­ * * * (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2). When a petitioner overcomes this hurdle "as to one of his claims, he may proceed upon his entire application in the district court." Woratzeck v. Stewart, 118
33

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 37 of 94

F.3d 648, 650 (9th Cir. 1997). Here, Petitioner can overcome § 2244(b)(2) as to all of his claims. Petitioner has alleged facts which, when proved, will establish both prongs of the statutory standard ­ diligence, § 2244(b)(2)(B)(i), and innocence, § 2244(b)(2)(B)(ii). Diligence ­ § 2244(b)(2)(B)(i) For the reasons set forth in § E, supra, in connection with diligence requirement of the AEDPA statute of limitations, Petitioner meets the "diligence" standard of § 2254(b)(2)(B)(i). Innocence ­ § 2244(b)(2)(B)(ii) Petitioner's proffered facts also establish innocence under § 2244(b)(2)(B)(ii). Before discussing those facts, we describe two pertinent concepts. First, proof of innocence does not require that a petitioner show he would have been acquitted of all charges made against him in conjunction with the capital charge; a showing of innocence of the capital offense of which the petitioner was convicted is sufficient. See Sawyer v. Whitley, 505 U.S. 333, 343 (1992) (negation of an element of the offense accords with even the "strictest definition" of "actual innocence"). As the Court of Appeals for the Eighth Circuit has explained: Although "[a] prototypical example of `actual innocence' ... is the case where the State has convicted the wrong person of the crime," Sawyer, 505 U.S. at [340], one is also actually innocent if the State has the
34

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 38 of 94

"right" person but he is not guilty of the crime with which he is charged. See Schlup, 513 U.S. at [321] (noting prisoner interest in relief "`if he is innocent of the charge for which he was incarcerated'" (quoting Kuhlmann v. Wilson, 477 U.S. 436, 452, 106 S.Ct. 2616, 2626, 91 L.Ed.2d 364 (1986) (plurality opinion))). Jones v. Delo, 56 F.3d 878, 883 (8th Cir. 1995) (some citations omitted); see also In re Minarik, 166 F.3d 591, 607 (3d Cir. 1999) (assuming "that `actual innocence' of the crime charged would include the situation where the new evidence would show the petitioner not guilty of first degree murder, though guilty of some lesser offense"). Second, a petitioner can also meet § 2244(b)(2)'s innocence requirement if he can show that he is "innocent of the death penalty," even if he cannot show innocence of the underlying offense. Sawyer, 505 U.S. at 343. The Court of Appeals for the Ninth Circuit has explained why this is so: [W]e must decide whether a successive petition under 28 U.S.C. § 2244(b) as amended by the AEDPA may be used to challenge a death sentence, when the newly proffered evidence relates to [eligibility for the death penalty] and not to guilt of the homicide. We interpret the AEDPA's amendments to § 2244(b) to permit a petitioner, in a successive petition, to establish that he is ineligible for the death penalty. Prior to the enactment of the AEDPA, the Supreme Court articulated an "actual innocence exception" to the bar arising from the doctrine of "abuse of the writ" against bringing claims in a successive habeas petition. This exception requires that "one must show by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." Sawyer v. Whitley, 505 U.S. 333, 336
35

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 39 of 94

(1992). ... In amending § 2244(b), Congress adopted language similar to that articulated in Sawyer, requiring newly discovered facts which, "if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2244(b)(2)(B)(ii). We note the difference between the two standards ­ "eligible for the death penalty" under Sawyer, and "guilty of the underlying offense" under § 2244(b)(2)(B)(ii) as amended by the AEDPA. ... [W]e must decide whether the scope of the "actual innocence" standard articulated in Sawyer has been superseded by a narrower exception in the AEDPA. * * * Under the canons of statutory construction, the similarity of the language between Sawyer and § 2244(b)(2)(B)(ii) potentially cuts both ways. On the one hand, the fact that the standards are nearly identical suggests that Congress intended to codify the Sawyer standard. On the other hand, the slight difference between the two could be read as suggesting that Congress intended just the opposite: to enact a provision similar to but more stringent than the Sawyer standard. However, unlike Sawyer, the standard in § 2244(b) applies to all habeas petitions, not just capital habeas petitions. For that reason, it would not have made sense for Congress to adopt, without any changes, the Sawyer standard referring to eligibility "for the death penalty," since the statute would have to apply to cases where the petitioner did not receive the death penalty. Thus, the need to cover non-capital habeas petitions best explains the slight difference in wording between the Sawyer "actual innocence" standard and § 2244(b)(2)(B)(ii). Furthermore, the "underlying offense" in a death penalty case is capital murder rather than merely homicide. Under Gregg v. Georgia, 428 U.S. 153 (1976), and its progeny, the special circumstances or aggravating factors making a defendant eligible for the death penalty
36

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 40 of 94

must be particularly alleged in the indictment. Thus, by claiming the constitutional infirmity of the lone special circumstance that made him eligible for the death penalty, Thompson is challenging his conviction of the "underlying offense" of capital murder. Because the words "underlying offense" encompass a charge of capital murder and because of the likelihood that the difference in the language between the Sawyer standard and new § 2244(b)(2)(B)(ii) was to accommodate non-capital as well as capital habeas petitions, we hold that Thompson's claim that he is ineligible for the death penalty due to the constitutional infirmity of the rape conviction, which stands as his sole special circumstance, states a claim under § 2244(b). Thompson v. Calderon, 151 F.3d 918, 923-24 (9th Cir.) (en banc), cert. denied, 524 U.S. 965 (1998).14 1. Innocence of the offense The State asserted at trial that Petitioner himself killed Mrs. Girardi when she arrived home and discovered him and Lachette burglarizing her house. That Petitioner was the killer was the only conviction option available to the jury. The We should note that the Third Circuit has not decided this issue and that there is a split in the Circuits about the issue. As stated, the Ninth Circuit has held that innocence of the death penalty satisfies the § 2244(b)(2)(B)(ii) standard for second habeas petitions. The Tenth Circuit has assumed, without deciding, that innocence of the death penalty satisfies § 2244(b)(2)(B)(ii). LaFevers v. Gibson, 238 F.3d 1263, 1267 (10th Cir. 2001). The Seventh and Eleventh Circuits, on the other hand, have held that "a petitioner's claim of innocence of the death penalty [is] not cognizable under § 2244(b)(2)(B)." Thompson, 151 F.3d at 924 n.4 (citing Burris v. Parke, 116 F.3d 256, 258 (7th Cir.1997); In re Medina, 109 F.3d 1556, 1565-66 (11th Cir.1997)). This Court should adopt the Ninth Circuit's well-reasoned approach, as opposed to the parsimonious construction the Seventh and Eleventh Circuits have given the statute.
37
14

Case 1:07-cv-00188-SLR

Document 1

Filed 04/02/2007

Page 41 of 94

court's instructions were that the jury had to find either that Petitioner himself intentionally killed Mrs. Girardi,15 or Petitioner himself recklessly killed her during
15

The court gave this instruction on intentional murder, 11 Del. C. 636 (a)(1):

Count V charges the defendant with first degree mur