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Taylor v. Crowther

United States District Court, D. Utah, Central Division

January 17, 2017

VON LESTER TAYLOR, Petitioner,
v.
SCOTT CROWTHER, Warden, Utah State Prison, Defendant.

          ORDER AND MEMORANDUM DECISION GRANTING EVIDENTIARY HEARING

          TEN A CAMPBELL, U.S. District Court Judge

         This 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 evidentiary hearing.

         I. BACKGROUND

         A few 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.

         The 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.[1] Both women died of their wounds.

         Mr. 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.

         When 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.

         The 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.

         After 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. 94.)

         In 2013, the court granted Mr. Taylor's motion for discovery. (See Docket Nos. 141, 166.) During discovery, he obtained documents and video footage and deposed witnesses.

         Mr. 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 claim alone.

         II. LEGAL STANDARD

         Mr. 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.

         At 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.

         Though 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 original).

         Because 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.

         To 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. at 324.

         Because 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).

         In an 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.

         Here, 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).

         Given 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. 2000)).

         III. MR. TAYLOR'S PROFFERED EVIDENCE[2]

         Before 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.[3] 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.[4] More shots were fired, and at the end of the shooting commotion Kaye and Beth were lying on the floor dead.

         Kaye 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.”[5] 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.

         Beth 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 body.

         According to the State's theory of its case, Mr. Taylor killed both women.[6] 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.[7] (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.

         After the State filed multiple charges against Mr. Taylor, it held a preliminary hearing.[8] 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 Trial”).[9]

         By 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.

         Mr. 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.

         A. The Cause of Kaye's Death

         At the 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.)

         Mr. 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.

         Based 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.)

         The 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. ¶ 6.)

         Three 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.

         First, 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. Schnittker's conclusion.

         Second, 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 .44.

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 ...

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