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Purkey v. United States

United States District Court, S.D. Indiana, Terre Haute Division

November 20, 2019

WESLEY IRA PURKEY, Petitioner,
v.
UNITED STATES OF AMERICA, et al. Respondents.

          Brian Patrick Casey U.S. ATTORNEY'S OFFICE

          Michelle M. Law FEDERAL DEFENDER -- WESTERN DISTRICT OF MISSOURI

          Kathleen D. Mahoney UNITED STATES ATTORNEY'S OFFICE

          Brian 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 CORPUS

          JAMES PATRICK HANLON UNITED STATES DISTRICT JUDGE.

         Wesley 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.

         Mr. 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.

         I.

         A full 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”).

         A. Factual Background

         While 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.

         Jennifer 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.

         No one 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.

         B. Procedural Background

         Mr. 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.

         The 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.

         Mr. 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).

         On 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 motion.

         Mr. 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).

         Mr. 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. Id.

         The 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.

         Mr. 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).

         On July 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.

         II.

         Mr. 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 evidence;
(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 pre-trial ...

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