United States District Court, D. Utah, Central Division
ORDER AND MEMORANDUM DECISION GRANTING EVIDENTIARY
CAMPBELL, U.S. District Court Judge
case involves death-row inmate Von Lester Taylor's
petition under 28 U.S.C. § 2254. Mr. Taylor previously
pleaded guilty to the capital murders of Beth Potts and Kaye
Tiede. Now, Mr. Taylor proffers new evidence and asserts that
he is actually innocent of both murders. Determining that Mr.
Taylor has established the potential to advance his claim of
actual innocence, the court grants his motion for an
days before Christmas 1990, two men, Petitioner Von Lester
Taylor and Edward Steven Deli, broke into a remote mountain
cabin owned by the Tiede family in Summit County, Utah.
Although members of the family were spending the holidays at
the cabin, they had gone to Salt Lake City for the evening
and the cabin was empty. After breaking in, Mr. Taylor and
Mr. Deli spent the night in the cabin.
following day, Kaye Tiede, her twenty-year-old daughter Linae
Tiede, and her mother Beth Potts, returned to the cabin. When
the women entered the cabin, Mr. Taylor and Mr. Deli shot
Kaye and Beth, but they did not shoot Linae. Both women died
of their wounds.
Taylor and Mr. Deli took Linae outside the cabin where they
encountered two other members of the Tiede family who had
just arrived: Tricia Tiede (Linae's sister) and Rolf
Tiede (Linae's father). Mr. Taylor shot Rolf twice before
he set the cabin on fire. Then he and Mr. Deli drove away
from the cabin in a snowmobile, forcing Linae and Tricia to
leave with them.
they arrived at the Tiedes' car, they abandoned the
snowmobile and took the car, keeping Linae and Tricia as
hostages. Soon the police began a high-speed pursuit which
ended when Mr. Taylor lost control of the car and crashed.
police arrested Mr. Taylor and Mr. Deli. Both men were
charged with multiple crimes, including two charges of
capital homicide for the murders of Kaye and Beth. Initially,
Mr. Taylor and Mr. Deli pleaded not guilty by reason of
insanity, but both men were found legally sane. Mr. Taylor
then pleaded guilty to the two capital-homicide charges and
was sentenced to death. Mr. Deli went to trial and was found
guilty of second-degree murder. He is serving a life sentence
with possibility of parole.
filing a direct appeal and pursuing his post-conviction
remedies, with no success, Mr. Taylor filed an initial
petition under 28 U.S.C. § 2254 in 2007, followed by a
first amended petition. In 2012, he filed a second amended
petition (Petition) which raises the issues now before the
court. Mr. Taylor asserts twenty-six claims in the Petition,
including a claim of actual innocence, a claim of ineffective
assistance of counsel, and a claim that his guilty plea was
constitutionally defective. (Second Am. Petition, Docket No.
2013, the court granted Mr. Taylor's motion for
discovery. (See Docket Nos. 141, 166.) During
discovery, he obtained documents and video footage and
Taylor now moves for an evidentiary hearing on seventeen of
his twenty-six claims, including his actual-innocence claim.
In that claim, Mr. Taylor does not deny that he took part in
the shootings at the Tiede cabin, but he contends that he did
not fire the bullets that killed Kaye and Beth. Because a
successful actual-innocence claim, as explained later,
creates a gateway through which a petitioner can litigate his
procedurally barred constitutional claims, the court
determined that it would first consider whether Mr. Taylor is
entitled to an evidentiary hearing on the actual-innocence
Taylor contends that he deserves an evidentiary hearing
because he has reliable new evidence showing that he did not
fire the shots that killed Beth or Kaye. Accordingly, Mr.
Taylor brings this actual-innocence claim to establish a
gateway by which he can litigate his procedurally barred
constitutional claims. The State responds that even if Mr.
Taylor's proffered evidence were true, he would not meet
the actual-innocence standard and, consequently, he does not
deserve an evidentiary hearing on his claim.
common law “res judicata did not attach to a
court's denial of habeas relief.” McCleskey v.
Zant, 499 U.S. 467, 479 (1991). Instead, petitioners
could seek habeas relief successively. Id. Federal
courts tolerated successive petitions, in part, because
habeas relief historically performed only the “narrow
function of testing either the jurisdiction of the sentencing
court or the legality of Executive detention.”
Schlup v. Delo, 513 U.S. 298, 317 (1995). But the
scope of habeas relief later “expanded beyond its
original narrow purview to encompass review of constitutional
error that had occurred in the proceedings leading to
conviction.” Id. The broadening of the scope
of habeas relief risked bogging down federal courts in
repetitious and meritless petitions. This, in combination
with the respect for finality of judgements and principles of
comity and federalism, motivated Congress to fashion
procedural bars to second and subsequent petitions.
Id. These same concerns also led the Supreme Court
to hold that “a habeas court may not ordinarily reach
the merits of successive claims.” Id.
the Supreme Court held that habeas courts shouldn't
ordinarily reach the merits of successive claims, it also
stated that habeas corpus's distinct “equitable
nature” precludes the “application of strict
rules of res judicata.” Id. at 319. As a
result, a court must adjudicate even successive habeas claims
when required by the “ends of justice.”
Sanders v. United States, 373 U.S. 1, 15-17 (1963).
If a habeas petitioner has defaulted a claim of
constitutional error, he may excuse the default by
establishing that “he falls within the ‘narrow
class of cases . . . implicating a fundamental miscarriage of
justice.'” Schlup, 513 U.S. at 314-15
(citation and internal quotations omitted) (ellipsis in
this “fundamental miscarriage” exception must be
“rare” and applied only in the
“extraordinary case, ” the Supreme Court has tied
it to a petitioner's actual innocence. Id.
“[I]n rare cases, an assertion of innocence may allow a
petitioner to have his accompanying constitutional
claims heard despite a procedural bar.” Rivas v.
Fischer, 687 F.3d 514, 540 (2d Cir. 2012) (citing
Schlup, 513 U.S. at 315). The term “[a]ctual
innocence means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523
U.S. 614, 623 (1998). Accordingly, an actual-innocence claim
is a “gateway” through which a habeas petitioner
may pass to have his otherwise-barred constitutional claims
heard on the merits. Schlup, 513 U.S. at 316.
establish actual innocence, a petitioner bears the burden of
establishing that “it is more likely than not that no
reasonable juror would have convicted him in the light of the
new evidence.” Id. at 327. This standard
requires courts to determine what “reasonable, properly
instructed jurors would do.” Id. at 329. And
the new evidence must be reliable-“whether it be
exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence.” Id.
a petitioner's actual-innocence claim must be based on
new evidence, district courts often require evidentiary
hearings so they can weigh that evidence. And district courts
have broad discretion on whether to hold an evidentiary
hearing on a petitioner's actual-innocence claim.
Johnson v. Medina, 547 F.App'x 880, 886 (10th
Cir. 2013). A court should exercise its discretion and hold
an evidentiary hearing if the hearing has “‘the
potential to advance the petitioner's claim.'”
Lopez v. Miller, 906 F.Supp.2d 42, 53 (E.D.N.Y.
2012) (quoting Campbell v. Vaughn, 209 F.3d 280, 287
(3d Cir. 2000)). In other words, a court should grant an
evidentiary hearing “if it could enable a habeas
applicant to prove his petition's factual allegations,
which, if true, would entitle him to federal habeas
relief.” Coleman v. Hardy, 628 F.3d 314,
319-20 (7th Cir. 2010).
actual-innocence evidentiary hearing, a court must
“must make its determination concerning a
petitioner's innocence in light of all the evidence,
including that alleged to have been illegally admitted (but
with due regard to any unreliability of it) and evidence
tenably claimed to have been wrongly excluded or to have
become available only after the trial.”
Schlup, 513 U.S. at 328 (citation and internal
quotation marks omitted). At such a hearing, the
“Government is not limited to the existing record to
rebut any showing that petitioner might make. Rather, on
remand, the Government should be permitted to present any
admissible evidence of petitioner's guilt even if that
evidence was not presented during petitioner's plea
colloquy and would not normally have been offered.”
Bousley, 523 U.S. at 624.
Mr. Taylor asks this court for an evidentiary hearing on his
actual-innocence claim. Mr. Taylor pleaded guilty to the
murders of both Beth and Kaye. As a result, Mr. Taylor need
only be found innocent of one of those murders to avoid the
procedural bars to his constitutional claims. Mr.
Taylor's constitutional claims are based not on his
innocence, but rather on his contention that he was denied
“the full panoply of protections afforded to criminal
defendants by the Constitution.” Schlup, 513
U.S. at 314. Accordingly, Mr. Taylor's “claim of
innocence is offered only to bring him within this
“narrow class of cases.” Id. at 315
(citation and internal quotation marks omitted).
Mr. Taylor's proffered evidence, as discussed below, the
court determines that an evidentiary hearing on Mr.
Taylor's actual-innocence claim is necessary. Because Mr.
Taylor pleaded guilty to the murder of both Beth and Kaye, he
must establish only that he is actually innocent of one of
those murders to create a gateway through which he may
litigate his procedurally barred claims. Mr. Taylor has
sufficiently demonstrated “‘the potential to
advance'” his actual-innocence claim. Lopez v.
Miller, 906 F.Supp.2d 42, 53 (E.D.N.Y. 2012) (quoting
Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir.
MR. TAYLOR'S PROFFERED
the shooting began, Mr. Deli was holding a .44-caliber
handgun and Mr. Taylor was holding a .38-caliber handgun. No
one disputes that Mr. Taylor fired the first shot from the
.38 and hit Kaye. Immediately after he shot her, Kaye doubled
over, cried “I've been shot, ” put her hands
up to her chest or shoulder area, and fell to the
ground. A second or two later, Beth was shot in
the head. Although Linae saw Mr. Taylor shoot Kaye, she did
not see who fired at Beth because she “was looking at
[her] grandmother. . . . [she] saw her shot and blood spray
everywhere.” (Tr. of Penalty Phase Trial
(“Penalty Trial Tr.”) at 509.) At that point,
Linae turned away and looked at the fireplace
wall. More shots were fired, and at the end of
the shooting commotion Kaye and Beth were lying on the floor
had been shot five times. She was shot twice in the chest,
including the shot causing the fatal wound, referred to as
“Gunshot Wound #2.” The bullet that caused Gunshot
Wound #2 entered the front of Kaye's left shoulder,
crossed at a downward angle through Kaye's torso, and
exited at the back of Kaye's right shoulder. In addition,
Kaye was shot with bird-shot pellets on her left side,
suffered a superficial graze wound on her upper-left arm and
had “an irregular superficial abrasion having a similar
configuration to that of a nose of a bullet” in the
middle upper-chest region. (Report of Kaye Tiede Autopsy at
6, Ex. 84 to Petition, Docket No. 20-87.) Other than the
pellets, no bullet lodged in her body.
was shot three times: once in the head (the fatal wound), and
twice in the chest. It is undisputed that the head wound was
caused by a .44. All of the bullets went straight through her
to the State's theory of its case, Mr. Taylor killed both
women. The State's case was based largely on
forensic evidence and testimony from Dr. Sharon Schnittker
(the medical examiner who performed the autopsies),
Linae's testimony, and statements made by Mr. Taylor.
During the Penalty Trial, Linae testified about the shooting,
including a description of where Mr. Taylor and Mr. Deli were
standing when Kaye and Beth were shot and which gun each man
was holding. According to Linae's description, Mr. Taylor
possessed the .38, not the .44 during the crime, at least
when Linae was looking at the two men. (Linae's
sister Tricia, who encountered Mr. Taylor and Mr. Deli after
the two women had been shot, also associated the .38 with Mr.
Taylor and the .44 with Mr. Deli.) At Penalty Trial, Dr.
Schnittker opined that the bullet that Mr. Taylor shot from
the .38 caused Gunshot Wound #2 and concluded that Beth's
fatal head wound was caused by a .44. And Mr. Taylor
admitted, during a psychiatric exam, to grabbing the .44 from
Mr. Deli and shooting both women.
the State filed multiple charges against Mr. Taylor, it held
a preliminary hearing. It also provided autopsy reports and other
documents to Mr. Taylor's attorney, after which Mr.
Taylor pleaded guilty to two counts of capital murder. The
State then presented more extensive evidence to a jury during
the penalty phase trial (“Penalty
pleading guilty, Mr. Taylor admitted that he caused the death
of Kaye and Beth by firing the bullets that caused the fatal
wounds. But, according to Mr. Taylor, he entered into his
plea agreement based on his mistaken belief that he fired
both fatal shots. He says he held that mistaken belief
because he only had the State's unquestioned forensic
evidence to assess his guilt, evidence that he now contends
is wrong. In particular, he disputes the State's evidence
that the .38 he fired caused Gunshot Wound #2 and that he
fired the .44 that killed Beth.
Taylor presents new evidence, discussed below, that raises
significant concerns about the State's case against him.
The import of Mr. Taylor's evidence is that he did not
fire either of the fatal shots and so the legitimacy of his
guilty plea is undermined.
The Cause of Kaye's Death
Penalty Trial, Dr. Schnittker opined that Gunshot Wound #2
was caused by the .38 bullet Mr. Taylor fired at Kaye. She
based her opinion largely on the location of a .38 bullet she
recovered from the inside of Kaye's sweatshirt-a bullet
that had no blood on it. She described the recovery in her
autopsy report: “During removal of the sweatshirt, a
projectile is located in the right shoulder region which
appears to be adjacent to the exit of gunshot wound
#2.” (Report of Autopsy of Kaye Tiede at p. 5, Ex. 84
to Petition, Docket No. 20-87.) And she testified at the
Penalty Trial that “[w]e found a medium caliber
projectile in the sweatshirt of the [right] shoulder region .
. . [t]hat would be consistent with [Gunshot Wound #2]
that we found in the right shoulder during removal of
the sweatshirt.” (Penalty Trial Tr. at 708 (emphasis
added).) But no characteristic of Gunshot Wound #2 played a
part in Dr. Schnittker's opinion. Instead, she
“assumed that [Gunshot Wound #2] was caused by a
.38” based on its proximity to the exit wound,
“not because of anything found in [Gunshot Wound #2]
itself . . . .” (2014 Dep. of Sharon Schnittker at 118,
Ex. 2 to Mot. Evid. Hr'g, Docket No. 217-3.)
Taylor challenges Dr. Schnittker's original opinion with
subsequent statements she made in her 2007 Declaration and
her 2014 deposition. According to Mr. Taylor, new evidence
shows that Dr. Schnittker's assumption was incorrect.
on that new evidence, primarily presented through
post-conviction statements of Dr. Schnittker, it appears that
the bullet's proximity to Gunshot Wound #2 had very
little, if any, probative value in the cause-of-death
determination. Dr. Schnittker assumed that the bullet landed
there because it traveled through Gunshot Wound #2. But, as
she conceded, given the handling of Kaye's body after she
died, the bullet likely moved around before Dr. Schnittker
discovered it. As Dr. Schnittker notes, “An unattached
bullet in the clothing may have changed position within the
clothing by movement of the body after being shot and
post-mortem.” (2007 Decl. of Sharon Schnittker ¶
5, Ex. 117 to Petition, Docket No. 31-6.)
body was moved a lot. After Kaye was shot, she fell to the
ground. After Kaye died, Mr. Taylor and Mr. Deli dragged her
body outside. During the investigation at the cabin,
Kaye's fully-dressed body was put in a body bag and
transported to the autopsy. And in preparation for the
autopsy, Kaye was removed from the body bag after which the
examiners rocked her from side to side and undressed her.
Given that caveat, Dr. Schnittker, in 2007, said that,
“[b]ecause the bullet I recovered was not recovered
from the body itself, I know of no characteristics on the
bullet at this point, that allow me to definitively conclude
that it went through Kaye Tiede.” (Id. ¶
other aspects of the physical evidence, all of which were
highlighted and clarified by Dr. Schnittker's declaration
and deposition, raise questions about her original opinion.
the condition of the t-shirt Kaye wore under her sweatshirt
was inconsistent with the conclusion that the .38 caused
Gunshot Wound #2. In 2007, Dr. Schnittker declared that she
“found no exit perforation through the underlying
T-shirt between the exit of the skin and the
sweatshirt” and that she “would have expected to
find such a perforation if the recovered projectile was
responsible for Gunshot Wound #2.” (Id. ¶
5.) In other words, if the .38 bullet had traveled through
the path of Gunshot Wound #2 and ended up in the sweatshirt,
it likely would have traveled through the t-shirt before
coming to rest by Kaye's right shoulder. The lack of a
perforation further undermines the validity of Dr.
Dr. Schnittker conceded that her measurements of the entrance
and exit wounds of Gunshot Wound #2 do not conclusively tie
the .38 to the fatal wound. They could have been caused by a
The type of tissue beneath the skin or a wobbly bullet and
other factors such as distance or an intermediate target can
change the way an entrance wound looks. I reviewed a
photograph of the entrance wound of Gunshot Wound #2. Gunshot
Wound #2 appears to measure about 1.1 or 1.2cm in diameter.
The exit wound measured 1.5cm vertically according to the
autopsy report and would not exclude a .44 caliber bullet.
I cannot rule out a .44 ...