United States District Court, S.D. Indiana, Terre Haute Division
Patrick Casey U.S. ATTORNEY'S OFFICE
Michelle M. Law FEDERAL DEFENDER -- WESTERN DISTRICT OF
Kathleen D. Mahoney UNITED STATES ATTORNEY'S OFFICE
L. Reitz UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
Jeffrey E. Valenti UNITED STATES ATTORNEY'S OFFICE
REBECCA E. WOODMAN, ATTORNEY AT LAW, L.C.
ORDER DENYING PETITION FOR A WRIT OF HABEAS
PATRICK HANLON UNITED STATES DISTRICT JUDGE.
Purkey is a federal prisoner on death row at the United
States Penitentiary in Terre Haute, Indiana. He was sentenced
to death 16 years ago in the United States District Court for
the Western District of Missouri after a jury found him
guilty of kidnapping and murdering Jennifer Long. The
conviction and sentence were affirmed on direct appeal. Mr.
Purkey sought postconviction relief under 28 U.S.C. §
2255 in the district court where he was convicted and
sentenced. That request was denied by the district court and
affirmed on appeal.
Purkey cannot bring a successive § 2255 motion in the
court of conviction, so he seeks relief from this Court in
the form of a 28 U.S.C. § 2241 petition that raises
eight claims. These claims, however, cannot be raised and
adjudicated under § 2241 because they do not fall within
any of the limited circumstances the Seventh Circuit has
recognized when a federal prisoner may challenge a conviction
and sentence by way of § 2241. Moreover, there is not a
structural problem with § 2255 when applied to Mr.
Purkey's case. For these reasons, Mr. Purkey's §
2241 action must be dismissed and his petition for a writ of
habeas corpus denied.
recitation of the facts and procedural background is set
forth in the two opinions issued by the United States Court
of Appeals for the Eighth Circuit following Mr. Purkey's
appeals. See United States v. Purkey, 428 F.3d 738,
744-46 (8th Cir. 2005) (“Purkey I”);
United States v. Purkey, 729 F.3d 860, 866-68 (8th
Cir. 2013) (“Purkey II”).
the details of Mr. Purkey's crimes are not relevant to
the ultimate resolution of his legal claims, a brief summary
is appropriate for context.
Long, a sixteen-year-old high school sophomore, disappeared
in January 1998. Purkey I, 428 F.3d at 745. She was
walking on a sidewalk in Missouri when Mr. Purkey picked her
up in his truck and drove her to his house in Kansas.
Purkey II, 729 F.3d at 866-67. Mr. Purkey raped her
and, after she attempted to escape, “became enraged and
repeatedly stabbed [her] in the chest, neck, and face with
[a] boning knife, eventually breaking its blade inside her
body.” Id. Mr. Purkey dismembered her body
with a chainsaw, burned her remains in his fireplace, and
dumped them into a septic pond. Id.
knew what happened to Jennifer Long until December 1998.
Purkey I, 428 F.3d at 745. At that time, Mr. Purkey
faced a life sentence for murdering eighty-year-old Mary Ruth
Bales, whom Mr. Purkey bludgeoned to death with a hammer in
her own home. Purkey II, 729 F.3d at 867-68. Mr.
Purkey confessed to law enforcement that he had kidnapped,
raped, and murdered Jennifer Long earlier that year.
Id. He also admitted taking “extraordinary
measures to dispose of the body, including dismembering it
with a chain saw and burning the remains[.]” Purkey
I, 428 F.3d at 745. Law enforcement recovered remnants
of crushed human bones where Mr. Purkey told them he had
disposed of them, and in his former house where the murder
took place. Mr. Purkey led law enforcement to where he left
her remains. Id; Purkey II, 729 F.3d at
867; Dkt. 33-1 at 76-78.
Purkey was indicted for the kidnapping and murder of Jennifer
Long on October 10, 2001, in the United States District Court
for the Western District of Missouri. See United States
v. Purkey, No. 4:01-cr-00308-FJG (W.D. Mo. Oct. 10,
2001), Dkt. 1. On November 5, 2003, a jury found Mr. Purkey
guilty. Id., Dkt. 461.
separate penalty phase of the proceedings lasted seven days.
Mr. Purkey's counsel presented 27 mitigating factors,
including evidence of brain abnormalities and abuse as a
child. Dkt. 23-37 at 94-97. The mitigation evidence included
the testimony of 18 witnesses over two days. Dkt. 38-1; Dkt.
39-1; Dkt. 40-1; Dkt. 41-1; Dkt. 42-1. Finding the existence
of all six statutory aggravating factors, the jury
recommended a sentence of death. Purkey, No.
4:01-cr-00308-FJG, Dkt. 487. The District Court sentenced Mr.
Purkey to death on January 23, 2004. Id., Dkt. 505.
Purkey appealed his conviction and sentence to the United
States Court of Appeals for the Eighth Circuit. He raised
several challenges to the pretrial proceedings, jury
selection, and the guilt and penalty phases. Purkey
I, 428 F.3d at 746-64. One of those challenges-which is
similar to claims before this Court-was that the District
Court erred by accepting the mitigating factors portion of
the verdict without requiring the jury to write out their
specific findings. Id. at 763. The Eighth Circuit
rejected Mr. Purkey's claims and affirmed his conviction
and sentence. Id. at 764. Mr. Purkey's petition
for writ of certiorari was denied by the United States
Supreme Court on October 16, 2006. See Purkey v. United
States, 127 S.Ct. 433 (2006).
November 25, 2006, Mr. Purkey initiated postconviction
proceedings by filing a motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 in the United
States District Court for the Western District of Missouri.
See Purkey v. United States, 2009 WL 3160774 (W.D.
Mo. Sept. 29, 2009). The same District Judge who presided
over Mr. Purkey's trial presided over his § 2255
Purkey made 17 allegations of ineffective assistance against
his trial counsel-Frederick Duchardt, Jr. and Laura
O'Sullivan. Id. at *1-3. Mr. Duchardt submitted
a 117-page affidavit to “refute” Mr. Purkey's
claims. Id. at *2. The District Court substantially
relied on Mr. Duchardt's affidavit in rejecting the
ineffective assistance of counsel claims. Id. Mr.
Purkey also alleged several due process violations.
Id. at *3-5. The District Court rejected these
claims as well and denied Mr. Purkey's § 2255
motion. Id. at *6. The District Court later denied
Mr. Purkey's Rule 59(e) motion to alter or amend the
judgment, see Purkey v. United States, 2009 WL
5176598, *3 (W.D. Mo. Dec. 22, 2009), and his request for a
certificate of appealability, see Purkey v. United
States, 2010 WL 4386532, *10 (W.D. Mo. Oct. 28, 2010).
Purkey sought a certificate of appealability from the Eighth
Circuit on several claims, see Dkt. 48-13, but the
Eighth Circuit granted Mr. Purkey a certificate of
appealability on only two of them, see Purkey II,
729 F.3d at 861; Dkt. 48-14. First, the Eighth Circuit
permitted Mr. Purkey to raise three issues regarding the
ineffectiveness of his trial counsel during the penalty
phase: “(1) his alleged failure to adequately prepare
and present the testimony of three expert witnesses, (2) his
alleged failure to adequately investigate and prepare two
mitigating witnesses, which resulted in their testimony being
more prejudicial than beneficial, and (3) his alleged failure
to adequately investigate and present other mitigating
evidence.” Purkey II, 729 F.3d at 862. These
issues are similar to the second claim Mr. Purkey raises in
this Court. Second, the Eighth Circuit permitted Mr. Purkey
to challenge whether the District Court abused its discretion
by denying relief without an evidentiary hearing.
Eighth Circuit rejected both of Mr. Purkey's claims. It
reasoned that it need not decide whether Mr. Purkey could
establish deficient performance- and consequently did not
consider Mr. Duchardt's affidavit-because Mr. Purkey
could not establish prejudice given the “particularly
gruesome” nature of the crime. Id. at 862-68
& n.2. As to whether the District Court should have held
an evidentiary hearing, the Eighth Circuit reasoned that Mr.
Purkey could not establish prejudice even taking his evidence
as true, so it was not an abuse of discretion to decline to
hold an evidentiary hearing. Id. at 869.
Purkey petitioned for panel rehearing, Dkt. 48-15, which the
Eighth Circuit denied on December 17, 2013, Dkt. 48-16. The
Supreme Court denied Mr. Purkey's petition for writ of
certiorari on October 14, 2014. See Purkey v. United
States, 135 S.Ct. 355 (2014).
25, 2019, the Department of Justice set Mr. Purkey's
execution date for December 13, 2019. He filed the instant
habeas petition under 28 U.S.C. § 2241 on August 27,
2019. He filed an amended petition on September 12, 2019. The
petition was fully briefed on October 28, 2019.
Purkey raises eight claims in his § 2241 petition:
(1) trial counsel provided ineffective assistance by failing
to challenge Juror 13;
(2) trial counsel provided ineffective assistance by failing
to investigate, develop, and present compelling mitigation
(3) Mr. Duchardt perpetrated a fraud on the Court during the
§ 2255 proceedings by submitting an affidavit containing
false and misleading statements to undermine Mr. Purkey's
ineffective assistance of counsel claims;
(4) Mr. Purkey's death sentence violates the Eighth
Amendment because there is a substantial possibility that the
jury instructions led the jury to believe that they could not
consider certain mitigating evidence;
(5) Mr. Purkey's death sentence violates the Sixth
Amendment because the jury did not find beyond a reasonable
doubt each fact necessary to impose a death sentence;
(6) imposition of the death penalty under the Federal Death
Penalty Act violates the Eighth Amendment;
(7) imposition of the death penalty on individuals such as
Mr. Purkey who suffer from a severe mental illness violates
the Eighth Amendment; and
(8) trial counsel provided ineffective assistance by
improperly advising Mr. Purkey before he testified at the