Executed April 12, 2011 10:25 a.m. by Lethal Injection in Ohio
12th murderer executed in U.S. in 2011
1246th murderer executed in U.S. since 1976
3rd murderer executed in Ohio in 2011
44th murderer executed in Ohio since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(12) |
Clarence Carter B / M / 26 - 49 |
Johnny Allen Jr. B / M / 33 |
Citations:
State v. Carter, 64 Ohio St.3d 218, 594 N.E.2d 595 (Ohio 1992). (Direct Appeal)
Carter v. Anderson, 585 F.3d 1007 (6th Cir. 2009). (Habeas)
Final/Special Meal:
Carter had refused a special meal. He broke a fast by eating dates, then tuna and bread.
Final Words:
"I'd like to say I'm sorry for what I did, especially to his mother. I ask God for forgiveness and them for forgiveness."
Internet Sources:
Ohio Department of Rehabilitation and Correction
Name: Clarence Carter
Number: A213146
Date of Birth: 3/9/1962
Gender: Male Race: Black
Admission Date: 08/02/1989
County of Conviction: Hamilton
Institution: Southern Ohio Correctional Facility
Executed: 04/12/2011
On April 12, 2011, Clarence Carter was executed for the 1989 aggravated murder of Johnny Allen.
Offense Information:
AGG ASSAULT Counts: 1 ORC: 2903.12 2
Committing County: HAMILTON Admission Date: 05/27/1982 Degree of Felony: Fourth
AGG ROBBERY Counts: 1 ORC: 2911.01 2
Committing County: HAMILTON Admission Date: 05/27/1982 Degree of Felony: First
AGG MURDER Counts: 1 ORC: 2903.01 3
Committing County: HAMILTON Admission Date: 08/02/1989 Degree of Felony: AM
FEL ASSAULT Counts: 2 ORC: 2903.11 3
Committing County: HAMILTON Admission Date: 08/02/1989 Degree of Felony: A2
AGG MURDER Counts: 0 ORC: 2903.01 3
Committing County: HAMILTON Admission Date: 08/02/1989 Degree of Felony: AM
Ohio Department of Rehabilitation and Correction (Clemency Report)
Inmate: Clarence Carter
Number: A213146
Date of Birth: 3/9/1962
Gender: Male Race: Black
Admission Date: 08/02/1989
County of Conviction: Hamilton
Date of Offense: 01-11-89
Case Number: B890531
Victim: Johnny Allen
Date of Sentencing: August 1, 1989
Presiding Judge: Richard A. Niehouse
Prosecuting Attorney: Arthur M. Ney, Jr.
Institution: Southern Ohio Correctional Facility
Convictions: AGG MURDER (Death) (2 Specifications)
"Cincinnati inmate executed," by JoAnne Viviano. (Associated Press 5:26 AM, Apr. 12, 2011)
LUCASVILLE, Ohio (AP) — Ohio has executed a man who was waiting to be sentenced for aggravated murder in 1988 when he beat to death a fellow jail inmate after the two argued over what to watch on television. Forty-nine-year-old Clarence Carter died Tuesday morning at the Southern Ohio Correctional Facility in Lucasville. He was the second inmate killed using the surgical sedative pentobarbital as a stand-alone execution drug.
Carter was executed for killing 33-year-old Johnny Allen Jr., who died two weeks after being beating at the Hamilton County jail in Cincinnati. Investigators say Carter periodically stopped to mop blood from his sneakers during the half-hour assault. Carter's lawyers argued Allen's killing was not premeditated, that inmates used as witnesses were unreliable and that Carter was borderline mentally disabled.
"Jailhouse killer Clarence Carter executed," by Alan Johnson. (Tuesday, April 12, 2011 10:34 AM)
LUCASVILLE, Ohio -- Clarence Carter paid the ultimate price today for going into a rage and killing a fellow inmate during a jailhouse fight more than 22 years ago. Carter, 49, of Hamilton County, was lethally injected at the Southern Ohio Correctional Facility near Lucasville. His time of death was 10:25 a.m.
He apologized to the family of his victim: "Let them know I'm sorry for what I did." But the victim's mother, Helen L. Bonner, said in a statement, "I have no animosity against him and I have forgiven him for taking my child from me...I am glad that justice is finally served, but my forgiveness toward him will never ease the pain of the loss of my son Johnny."
Carter was the third Ohioan to be put to death already this year. There are seven more executions scheduled through November. Carter had refused a special meal. He broke a fast by eating dates, then tuna and bread.
On Dec. 28, 1988, while in the Hamilton County Jail Annex awaiting trial on a murder charge as a self-described "hit man" for a group of Cincinnati drug traffickers, Carter got into a fight with fellow inmate, Johnny Allen, 33. The muscular Carter choked, stomped, punched and kicked Allen during the 25-minute fight, beating him to the point that Allen's mother later said he was "so bruised he was unrecognizable." Carter paused long enough during the beating to wipe the blood from his boots, court records say.
Despite the brutality of the murder and his long, violent criminal record - Carter had strong support from several people who said his crime wasn't the "worst of the worst" for which the death penalty was intended. His backers included former Ohio Supreme Court Justice Herbert R. Brown and former state prisons director Terry Collins.
But Gov. John Kasich, who rejected Carter's clemency plea, the Ohio Parole Board and courts at all levels saw things differently.
Columbus Dispatch Data Center:
Search for Ohio prison inmates on death row and those executed since 1999.(Columbus Dispatch)
View a list of all executions from 2010 and 2011.(Columbus Dispatch)
"Past prisons chief urges clemency for condemned killer," by Alan Johnson. (March 29, 2011)
Former Ohio prisons director Terry Collins and a Cincinnati civil-rights attorney are jointly urging Gov. John Kasich to spare the life of condemned killer Clarence Carter. Carter, 49, is scheduled to be executed April 12 unless Kasich or the courts intervene. The Ohio Parole Board unanimously recommended against clemency for Carter.
A letter to Kasich jointly signed by Collins and attorney Alphonse Gerhardstein and obtained by The Dispatch said the death of inmate Johnny Allen resulted from a "jailhouse fight" with Carter in 1988 and does not warrant the death penalty. "It is much more likely that this was an inmate fight that got tragically out of hand," Collins and Gerhardstein wrote. "Inmate-on-inmate violence in lockups is often pursued to establish oneself as fearsome and to deter others from threatening or attacking the inmate."
There is no evidence that Carter planned to kill Allen, they said. Although he had a hand-made prison knife, he did not use it. The prisoners fought for 25 minutes before guards intervened. The incident occurred Dec. 28, 1988, in the Hamilton County jail annex.
Collins is a veteran of three decades in the prison system who ran the Department of Rehabilitation and Correction for 31/2 years. After his retirement in January 2010, he revealed that he opposes capital punishment because, he said, it cannot be fairly administered, is expensive and offers no second chances. Collins witnessed 33 executions as a prison official.
Gerhardstein is well-known for lawsuits on behalf of inmates and former inmates. Collins was one of the officials Gerhardstein sued in several cases. The two pointed out that the option of a sentence of life without parole was not available to jurors in Carter's case in 1988.
The parole board split on Allen's case four years ago, opposing clemency 6-3. The March 21 vote by the board was 9-0 opposing clemency. Since becoming governor in January, Kasich has allowed two men to be executed. He can use his executive-clemency power to stop or postpone Allen's execution, or he can allow it to proceed.
Ohio executes man for beating, stomping fellow inmate. (Associated Press April 12, 2011, 12:02 PM)
"LUCASVILLE, Ohio -- A man was executed today for beating and stomping to death a fellow jail inmate days after the two had argued over what to watch on television. Clarence Carter, 49, died at 10:25 a.m. at the Southern Ohio Correctional Facility. He was the second inmate killed using the surgical sedative pentobarbital as a stand-alone execution drug.
Carter, who was waiting to be sentenced for aggravated murder in 1988 when he attacked Johnny Allen Jr., looked to see if any of Allen's family members were present. Seeing none, he still delivered an apology. "I'd like to say I'm sorry for what I did, especially to his mother. I ask God for forgiveness and them for forgiveness," he said. He smiled at his brother and appeared to pray as the lethal injection began. After several deep breaths, his eyes closed. He fell silent about a minute into the procedure.
Allen's mother did not attend, but released a statement saying she has no animosity against Carter and has forgiven him. "But my forgiveness of him will never ease the pain of the loss of my son," she wrote.
Allen died two weeks after the December 1988 beating in the Hamilton County jail in Cincinnati. Investigators said Carter punched, choked, kicked and stomped on Allen for a half-hour period, periodically stopping to mop blood from his sneakers. Witnesses said Carter had punched Allen in the eye earlier in the month when one of the men changed a TV channel. Allen was being held on a theft charge. Carter was in the jail waiting to be sentenced on a prior conviction of aggravated murder in the death of Michael Hadnot. He told the Ohio Parole Board in February that Hadnot was a fellow drug trafficker he killed over the theft of drugs, money and incriminating documents from an operation in which both were involved.
Carter's lawyers argued against the execution, claiming Allen's killing was not premeditated, that Allen was a former U.S. Army soldier who likely instigated the fight and that the inmates used as witnesses were unreliable. They said Carter is borderline mentally disabled and that his upbringing was marked by violent role models, including a stepfather who beat him when he stuttered and a cousin who paid him 50 cents to fight other children.
Gov. John Kasich denied clemency last week, based on a unanimous recommendation of the parole board. Carter had been scheduled for execution in 2007, but was spared by a lawsuit pending at the time that challenged lethal injection. That year, the parole board had voted 6-3 against clemency, with those dissenting saying they were troubled by what appeared to be contradictory or inaccurate testimony by inmate witnesses.
"Ohio executes man who killed jail mate as he awaited sentence in murder." (ASSOCIATED PRESS)
LUCASVILLE, Ohio — A man was executed Tuesday for beating and stomping to death a fellow jail inmate days after the two had argued over what to watch on television. Clarence Carter, 49, died at 10:25 a.m. at the Southern Ohio Correctional Facility. He was the second inmate in the nation killed using the surgical sedative pentobarbital as a stand-alone execution drug.
Carter, who was waiting to be sentenced for another aggravated murder when he attacked Johnny Allen Jr. in 1988, looked to see if any Allen family members were present. Seeing none, he still delivered an apology. "I'd like to say I'm sorry for what I did, especially to his mother. I ask God for forgiveness and them for forgiveness," he said. He smiled and nodded at his brother and appeared to pray as the lethal injection began. After several deep breaths, his eyes closed. He fell still about a minute into the procedure.
Allen's mother, Helen L. Bonner, did not attend, but released a statement saying she has no animosity against Carter and has forgiven him. "But my forgiveness of him will never ease the pain of the loss of my son," she wrote.
Allen died two weeks after the December 1988 beating in the Hamilton County jail in Cincinnati. Investigators said Carter punched, choked, kicked and stomped on Allen for a half-hour period, periodically stopping to mop blood from his sneakers. Witnesses said Carter had punched Allen in the eye earlier in the month when one of the men changed a TV channel.
Allen was being held on a theft charge. Carter was in the jail waiting to be sentenced on a prior conviction of aggravated murder in the death of Michael Hadnot. He told the Ohio Parole Board in February that Hadnot was a fellow drug trafficker he killed over the theft of drugs, money and incriminating documents from an operation in which both were involved.
Carter had been calm and in good spirits Monday, meeting with two imams, laughing during visits with his brother and lawyers and at one point saying, "doing good, happy and I'm a smiling," said prisons department spokesman Carlo LoParo. Just ahead of the lethal injection, Carter knelt and put his head to the ground in prayer.
Witnessing the execution were Carter's brother, Lamarck Carter, and an attorney. They clasped hands after the execution, and Carter smiled. Only two media representatives witnessed the execution: a reporter from The Associated Press and one from The Columbus Dispatch representing the Ohio Legislative Correspondents Association. Larry Greene, a spokesman at the prison, said it was the fewest number of media to witness an execution since the state resumed executions in 1999.
Prisons director Gary Mohr said that, despite the low media attendance, each execution is a "significant event." LoParo said about five protesters gathered outside the prison.
Carter's lawyers argued against the execution, claiming Allen's killing was not premeditated, that Allen was a former U.S. Army soldier who likely instigated the fight and that the inmates used as witnesses were unreliable. They said Carter is borderline mentally disabled and that his upbringing was marked by violent role models, including a stepfather who beat him when he stuttered and a cousin who paid him 50 cents to fight other children.
Gov. John Kasich denied clemency last week, based on a unanimous recommendation of the parole board. Carter had been scheduled for execution in 2007, but was spared by a lawsuit pending at the time that challenged lethal injection. That year, the parole board had voted 6-3 against clemency, with those dissenting saying they were troubled by what appeared to be contradictory or inaccurate testimony by inmate witnesses.
Carter was the third Ohio inmate executed this year, and the 44th since the resumption of executions in 1999.
In December 1988, Clarence Carter and Johnny Allen were inmates in Range "E" at the Jail Annex to the Hamilton County Courthouse. Allen was being held on a theft offense. Carter had been found guilty of aggravated murder on December 9, 1988, and was awaiting sentencing. On December 28, Carter struck and kicked Allen numerous times over a twenty to twenty-five minute period, necessitating Allen's hospitalization. On January 5, 1989, Carter was sentenced to life imprisonment for the prior aggravated murder. On January 11, 1989, Allen died as a result of Carter's assault.
Inmate Joseph Carroll testified that he and Allen were watching television on a mid-December evening when Carter came in and switched channels. Allen said to Carter, "Don't we vote on this?" Without saying anything, Carter punched Allen in the eye, then resumed watching television. Allen left to clean up the blood flowing from a cut above his eyebrow. Inmates Calvin Johnson and Phillip Brewer confirm that Allen and Carter exchanged words, and that Carter struck Allen. However, Johnson and Brewer assert that Carter was watching TV, and Allen changed the channel. Allen did not report this incident to jail authorities.
Carroll further testified that about a week before December 28, Carter found a broken metal spoon handle in a hole in the shower ceiling. After a brief discussion with Brewer, Carter returned the handle to its hiding place. On December 28, after lunch, Johnson saw Carter retrieve the metal handle from the shower ceiling. Johnson asked Carter what he was going to do. Carter did not reply. About ten minutes later, around 1:10 p.m., the confrontation which led to Allen's death began in "E" range, a common area into which approximately twelve cells open. According to Carroll, Allen was in his cell when Carter told him it was his turn to sweep the floor. As Allen walked past Carter to get a broom, Carter "jumped on him, punched him, and knocked him down." As Allen lay on the floor, Carter "leaned over him, punched him, kicked him and choked him." Several times during the assault Carter stopped and walked away before returning to the attack. Twice he used a mop to wipe blood off his tennis shoes. During the assault Carroll said to Carter, "damn C.C., you don't like him, do you." Carter replied "no," and went "back down to where Johnny Allen was, punched him, kicked him some more, stomped on him."
After the second beating, Allen managed to get up and sit on a bench, but Carter came back, knocked him off the bench, and continued to kick and choke Allen. Allen never threw a punch or provoked Carter. Inmate Calvin Steele described Carter's initial blow to Allen as a "sucker punch," delivered suddenly and without warning. Carter struck Allen ten or fifteen times. Allen never struck or attempted to strike a blow at Carter. At one point, Carter returned to his cell and stuck his own leg with some kind of object; he then came back and stomped on Allen's head with his foot. Carter's assault on Allen lasted twenty or twenty-five minutes. When Steele asked Carter to stop, Carter told Steele to "get my ass back downstairs." (Steele was standing outside the range in the "bull run," the guard's access way.)
Richard Cunningham saw Carter hit Allen four or five times, then choke Allen, who lay on the floor. As he was beating Allen, Carter said, "that m . . . . . f . . . . . tried to stab me." Carter seemed to be in a rage, but appeared to know what he was doing. Cunningham testified that "Carter started kicking him down the range by his head, and by his ribs, and . . . he was pulling his head in my bars and stomping his head like a pop can on the floor. And his head was bouncing up off the floor. Blood was everywhere. Guys was on the range saying: Come on, CC, you are going to kill the man. Quit. Leave him alone. . . . Carter wouldn't let up. He kept on doing it and doing it, he wouldn't quit."
Carter claimed that Allen assaulted him with the shank and that he, Carter, merely defended himself, being carried away with rage. According to inmate Robert Chapman, a defense witness, the fight began when Allen, holding the metal spoon handle, began hitting Carter. However, Chapman acknowledged that he previously told investigators he was asleep. Howard "Tub" Burns, a high school friend of Carter, heard Carter yell, "Tub, get the police."
Brewer said he saw Carter and Allen arguing on December 28, and Allen was holding some kind of metal object in his hand. After a few seconds, Brewer returned to his cell. He explained, "in a place like that you mind your own business, and that's what I was doing." Around 1:30 p.m., sheriff's deputies heard unusual noises, like an object being banged against steel bars, and went to investigate. When they arrived at "E" range, they found Allen lying face down on the floor, in a pool of blood. Deputy Raymond J. Loebker saw Carter drop the shank. Loebker described Carter as sweating, breathing heavily, but without any visible signs of injury.
Sheriff's Lieutenant John Douglas saw the metal handle on the floor, four feet from Allen, and retrieved it for later examination. Around 5:00 p.m., on December 28, Carter showed Detective John Hinrichs scratches Carter said he sustained in his fight with Allen. Carter had two or three scratches on his right thigh, scratches on his right arm, and a cut on his chest. None was deep or serious, and only the chest cut showed any sign of possible bleeding.
Carter, muscular and strong, was in excellent physical condition. Forensic examination revealed that Carter's socks, pants, and tennis shoes all contained type "O" human blood. Allen had type "O" blood, but Carter's blood type was not revealed at trial. Carter's T-shirt also had human blood, but the stain was not typed. Forensic examination revealed two human blood stains on the metal shank-one stain was type O, the other was undetermined. The shank had no fingerprints on it.
The jury had to assess the credibility of the principal witnesses under unusual circumstances. Only inmates witnessed the assault, and they all had prior felony records. Additionally, the prosecution made various beneficial arrangements with inmates who testified for the prosecution. Several inmates who testified for the defense had known Carter before they were incarcerated.
When found, Allen was unconscious and had difficulty breathing. His ribs were pulsating, and blood was running out of his mouth. At University Hospital, Doctor Christopher Miller, a resident neurosurgeon, found bruises and lacerations about Allen's head, face, and neck. Blood exuded from behind Allen's eardrums, signifying probable basilary skull fractures. Allen had a low level of brain system reflex functioning and was neither conscious nor able to communicate. Doctors connected life support systems. Allen had suffered soft tissue swelling between his larynx and spine, but the cervical region was not fractured. A December 28 CAT scan revealed prominent soft tissue swelling over Allen's left front temporal region, a subdural hematoma between the brain's surface and the skull, and diffuse bleeding within the brain. Trauma was the cause of the injuries. However, deprivation of oxygen to Allen's brain could have been an additional factor.
According to Doctor Harry J. Bonnell, Chief Deputy Coroner, Allen's heart and breathing stopped on January 10th, but doctors revived him. A January 11th examination revealed that Allen was brain dead. Doctors then disconnected life support systems.
Dr. Bonnell performed an autopsy on January 12th. Allen was 5'10", and weighed 122 lbs. He died as a result of multiple bruises and swelling of the brain, caused either by blunt objects striking his head or by his head striking blunt objects. His brain had been deprived of oxygen prior to arrival at the emergency room. His injuries were consistent with his head having been banged against the floor or against steel bars. In Dr. Bonnell's opinion, these injuries were fatal, and Allen would have died within twenty-four hours of the trauma without medical intervention.
A jury found Carter guilty of aggravated murder with prior calculation and design. Carter stipulated to the first death-penalty specification that the offense occurred while Carter was a prisoner in a detention facility. The second specification, that Carter was previously convicted of an offense an essential element of which is the purposeful killing of another, was tried to the court, which ultimately found Carter guilty. The only evidence Carter submitted at mitigation was his own statement. The jury recommended a capital sentence. The trial court adopted the recommendation and sentenced Carter to death.
Ohio Death Row: Clarence Carter News & Blog
Ohio Attorney General - 2009 Capital Crimes Annual Report
List of individuals executed in Ohio
A list of individuals convicted of murder that have been executed by the U.S. State of Ohio since 1976. All were executed by lethal injection.
1. Wilford Berry, Jr. (19 February 1999) Charles Mitroff
2. Jay D. Scott (14 June 2001) Vinnie M. Price
3. John William Byrd, Jr. (19 February 2002) Monte Tewksbury
4. Alton Coleman (26 April 2002) Tonnie Storey and Marlene Walters
5. Robert Anthony Buell (24 September 2002) Krista Lea Harrison
6. Richard Edwin Fox (February 12, 2003) Leslie Renae Keckler
7. David M. Brewer (April 29, 2003) Sherry Byrne
8. Ernest Martin (June 18, 2003) Robert Robinson
9. Lewis Williams, Jr. (14 January 2004) Leoma Chmielewski
10. John Glenn Roe (3 February 2004) Donette Crawford
11. William Dean Wickline (30 March 2004) Peggy and Christopher Lerch
12. William G. Zuern, Jr. (8 June 2004) Phillip Pence
13. Stephen Allan Vrabel (14 July 2004) Susan Clemente and Lisa Clemente
14. Scott Andrew Mink (July 20, 2004) William Mink and Sheila Mink
15. Adremy Dennis (October 13, 2004) Kurt Kyle
16. William Smith (March 8, 2005) Mary Bradford
17. Herman Dale Ashworth (27 September 2005) Daniel L. Baker
18. William James Williams, Jr. (25 October 2005) William Dent, Alfonda R. Madison, Sr., Eric Howard and Theodore Wynn Jr.
19. John R. Hicks (29 November 2005) Brandy Green
20. Glenn L. Benner II (7 February 2006) Trina Bowser, Cynthia Sedgwick
21. Joseph L. Clark (4 May 2006) David Manning
22. Rocky Barton (12 July 2006) Kimbirli Jo Barton
23. Darrell Ferguson (8 August 2006) David A. Gowdown, Dennis J. Langer, Jeffrey M. Welbaum
24. Jeffrey Lundgren (24 October 2006) Dennis Avery, Cheryl Avery, Trina Avery, Rebecca Avery, Karen Avery
25. James J. Filiaggi (24 April 2007) Lisa Huff Filiaggi
26. Christopher J. Newton (24 May 2007) Jason Brewer
27. Richard Cooey (October 14, 2008) Wendy Offredo and Dawn McCreery
28. Gregory Bryant-Bey (November 19, 2008) Dale Pinkelman
29. Daniel E. Wilson (June 3, 2009) Carol Lutz
30. John Fautenberry (July 14, 2009) Joseph Daron Jr.
31. Marvallous Keene (July 21, 2009) Joseph Wilkerson, Danita Gullette, Sarah Abraham, Marvin Washington, Wendy Cottrill
32. Jason Getsy (August 18, 2009) Ann R. Serafino
33. Kenneth Biros (December 8, 2009) Tami Engstrom
34. Vernon Lamont Smith (January 7, 2010) Sohail Darwish
35. Mark Aaron Brown (February 4, 2010) Isam Salman, Hayder Al Tuyrk
36. Lawrence Reynolds Jr. (March 16, 2010) Loretta Mae Foster
37. Darryl Durr (April 20, 2010) Angel Vincent
38. Michael Francis Beuke (May 14, 2010) Michael Craig
39. William Garner (July 13, 2010) Deondra Freeman, Richard Gaines, Markeca Mason, Mykkila Mason, and Denitra Satterwhite
40. Roderick Davie (August 10, 2010 John Ira Colema Tracey Jeffries
41. Michael Benge (October 6, 2010) Judith Gabbard
42. Frank G. Spisak Jr. (February 17, 2011) Rev. Horace Rickerson, Timothy Sheehan, Brian Warford
43. Johnnie R. Baston (March 10, 2011) Chong Mah
44. Clarence Carter (April 12, 2011) Johnny Allen
State v. Carter, 64 Ohio St.3d 218, 594 N.E.2d 595 (Ohio 1992). (Direct Appeal)
PER CURIAM.
This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Court of Common Pleas of Hamilton County, Ohio, the transcript of the proceedings, the briefs and arguments of counsel.
On February 1, 1989, the Grand Jury of Hamilton County, Ohio, returned an indictment against the defendant-appellant, Clarence Carter (hereafter “appellant”), charging him in a single count with the aggravated murder of Johnny Allen. There were two specifications to the count: (1) that, at the time of offense, the appellant was a prisoner in a detention facility as defined in R.C. 2921.01 and (2) that, prior to the offense, the appellant had been convicted of aggravated murder, an essential element of which was the purposeful killing or purposeful attempt to kill another.
After a trial lasting from July 17, 1989, through August 1, 1989, a jury found the appellant guilty of aggravated murder as charged in the indictment and of the first specification that the offense had been committed while the appellant was a prisoner in a detention facility. By request of the appellant, the second specification was then tried separately to the court and resulted in a finding of guilty.
On July 27, 1989, the penalty phase of the proceedings commenced. That cause concluded on July 28, 1989, with the jury recommending the imposition of the death penalty. On August 16, 1989, the trial judge placed of record his separate opinion in which he independently reviewed the evidence and determined that the aggravating circumstances of the case outweighed the mitigating factors beyond a reasonable doubt. The trial judge then followed the jury's recommendation and sentenced the appellant to death.FN1
In the review of a death penalty under R.C. 2929.05, we have three tasks. First, we must address the assignments of error presented by the appellant, which are six in number. Second, we must independently determine whether the aggravating circumstances the appellant was found guilty of committing outweigh the mitigating factors in the case. Third, we must determine whether the sentence of death is appropriate, after considering whether it is excessive or disproportionate to the penalty imposed in similar cases.
After studying the death-penalty cases decided by the Ohio Supreme Court and by this Court, and after reviewing the record, we find no prejudicial error and overrule all six assignments of error. Further, we are persuaded that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt, and we decide that the sentence of death is appropriate in this case.
I.
To provide a factual backdrop for a better understanding of the various aspects of our review, we begin with a summary of the evidence adduced in the guilt phase of the proceedings below. The appellant was found guilty of aggravated murder in a separate case on December 9, 1988. While awaiting sentence he was incarcerated in the Hamilton County Jail Annex on “E” range. The “range” is an area in which the individual cells of the inmates are regularly unlocked so they can interact freely. Sometime in mid-December the appellant became involved in a dispute with another inmate, Johnny Allen, regarding what program would be watched on the inmates' shared television. Prosecution and defense witnesses, consisting of inmates, gave differing testimony on who instigated the dispute, but the result was that the appellant punched Allen in the eye.
Apparently there were no further incidents between the appellant and Allen until December 28, 1988. According to prosecution witnesses, on that date, following lunch, the appellant yelled to Allen to sweep the range. When Allen responded by leaving his cell to get a broom, the appellant ambushed him and knocked him down. The appellant then began punching, kicking, and choking Allen until Allen was essentially helpless to defend himself. At that point the appellant left Allen to go wipe Allen's blood off his shoes with a mop, then returned to Allen and resumed kicking him, choking him, and stomping on his head. There was testimony that the appellant once again left Allen to wipe blood off his shoes, and that Allen was able to get up and sit, barely conscious, on a bench, only to have the appellant return, knock him back down on the floor with a punch, and then continue to pummel his essentially inert body. Prosecution witnesses described the appellant jumping with both feet on Allen's back, choking him from behind, and stomping on his head as if it were a soda pop can.
The beating, according to witnesses, lasted as long as twenty-five minutes. When the guards arrived, they found Allen in an unconscious state and separated the appellant from him. They also recovered from the scene a “shank,” which was described as the sharpened end of a spoon. At trial, the appellant's theory of defense was that Allen, seeking revenge for the punch that he had suffered as a result of the television incident, had attacked the appellant, and that the appellant had suffered injuries fending off the shank in Allen's hands. The prosecution, conversely, presented testimony that the appellant had been the one who harbored the shank before the fight, and that when the fight was over the shank fell from the appellant's hands.
Allen was transported to University Hospital, where he was received in the emergency room with what was described by a neurosurgeon as “the lowest level of [brain] functioning you can have” as a result of the beating he had endured. He was placed on life-support systems and died on January 12, 1989. A forensic pathologist testified that the cause of death was brain damage caused by blunt-force injuries or trauma. The pathologist testified further that the injuries sustained by Allen were not survivable, and that his death was simply a matter of time after he was brought to the hospital. According to the pathologist, Allen would have died in less than twenty-four hours had he not received medical intervention.
II.
In his first assignment of error, the appellant contends that the trial court's finding that he had been previously convicted of an offense, an essential element of which was the purposeful killing of another, was based on insufficient evidence. This issue arises in the context of the second specification under R.C. 2929.04(A)(5), which reads as follows: Prior to the offense at bar, the offender was convicted of an offense an essential element of which was the purposeful killing of another.
The appellant claims that prior to December 28, 1988, the date upon which he inflicted Allen's eventually fatal injuries, he had not been “convicted” of a prior aggravated murder. According to the appellant's reasoning, although he had been tried and found guilty by a jury of a prior aggravated murder on December 9, 1988, he was not, under Ohio law,FN2 “convicted” until he was later sentenced and judgment entered on January 5, 1989.
We are not persuaded by this argument. In the case sub judice, the “offense at bar” to which R.C. 2929.04(A)(5) refers is the aggravated murder of Johnny Allen. Concededly, the appellant committed an act for which he could have been held criminally liable on December 28, 1988. However, the “offense at bar,” the aggravated murder of Johnny Allen, did not exist until Johnny Allen died on January 12, 1989. Therefore the langauge of the specification, “prior to the offense at bar,” refers to the period of time prior to January 12, 1989. Prior to that date, the appellant had been tried, found guilty, and sentenced on the prior aggravated murder, thus satisfying the requirement of R.C. 2929.04(A)(5). The appellant's first assignment of error is, therefore, overruled.
In his second assignment of error, the appellant asserts that it was plain error for the jury to have been informed during the mitigation phase that the defendant had previously been convicted of killing someone else. This assignment is premised upon the same argument advanced under his first assignment of error: that there was insufficient evidence to support a finding that he had been convicted of aggravated murder “prior to the offense at bar.” As we have already rejected this argument, the appellant's second assignment of error is also overruled.
In his third assignment of error, the appellant asserts that he was denied effective assistance of counsel because of his trial attorney's failure to raise the issues which he sets forth in his first two assignments of error. As we have held that these issues lack merit, it was not ineffective assistance of counsel for the appellant's trial attorney not to have raised them during trial. The appellant's third assignment of error is, therefore, overruled.
In his fourth assignment of error, the appellant asserts that the trial court committed prejudicial error in considering the nature and circumstances of the offense as aggravating circumstances to be weighed against the mitigating factors.
Pursuant to 2929.03(F), the trial judge, after receiving the trial jury's recommendation that the death sentence be imposed, stated in a separate opinion his specific finding as to the existence of the mitigating factors and aggravating circumstances. (T.d. 162.) He then concluded: Proof of the manner in which defendant murdered Johnny Allen as weighed against the direct evidence and inferences in support of the mitigating factors, permitted the jury to find that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt. Accordingly, the court finds that the verdicts are supported by the evidence and adopts the recommended sentence of death as set forth in the jury's verdict.FN3
The appellant claims that this language demonstrates reversible error pursuant to the Ohio Supreme Court's decision in State v. Davis (1988), 38 Ohio St.3d 361, 528 N.E.2d 925. In Davis, the trial court, consisting of a three-judge panel, issued a separate opinion in which the nature and circumstances of the offense were expressly identified as aggravating circumstances, and the opinion further indicated that these non-statutory aggravating circumstances were then weighed by the panel directly against the mitigating factors. Id. at 371, 528 N.E.2d at 931. The Ohio Supreme Court concluded that the panel thus violated R.C. 2941.14(B), which limits the aggravating circumstances which may be considered in imposing the death penalty to those specifically enumerated in R.C. 2929.04(A).
Unlike the panel in Davis, however, the trial judge in the case sub judice separately identified the proper statutory aggravating circumstances in his opinion, thus clearly indicating that he understood the difference between statutory aggravating circumstances and other facts describing the nature and circumstances of the offense. Therefore, we perceive no basis for concluding that the trial judge improperly considered non-statutory aggravating circumstances and weighed them directly against the mitigating factors. FN4 The appellant's fourth assignment of error is overruled.
In his fifth assignment of error the appellant asserts that the trial court erred by instructing the jury at the penalty phase as to each statutory mitigating factor, regardless of whether it applied to the facts and circumstances of the case. Additionally, the appellant asserts that the prosecution improperly commented upon the appellant's failure to raise any statutory mitigating factors.
The Ohio Supreme Court has held that it is the defendant's prerogative to raise issues in mitigation, and “if he does not do so, no comment on any factors not raised by him is permissible.” State v. DePew (1988), 38 Ohio St.3d 275, 289, 528 N.E.2d 542, 557. However, while discouraging the practice, the court in DePew stated that it was “certainly not” prejudicial error for the trial court to instruct the jury on mitigating factors not raised by the defendant.
Even under DePew, therefore, it would not have been reversible error for the court in the case sub judice to have read all the mitigating factors to the jury even if the appellant had not raised them. Moreover, it is quite clear from the record that counsel for the appellant, during his closing argument at the penalty phase, chose a strategy of discussing each statutory mitigating factor as it applied or did not apply to the appellant's case. Thus, all the statutory miigating factors were raised by the defendant, and clearly DePew is inapposite. Furthermore, nothing in DePew prevented the trial court from advising the jury, as it did, that not all mitigating factors need be present to justify the conclusion that they outweighed the aggravating circumstances. Indeed, we find it somewhat difficult to understand how the appellant can argue, as he does, that he was prejudiced by this aspect of the trial court's instructions.
With regard to comments made by the prosecution after the appellant's unsworn statement, the most that can be said is that the prosecuting attorney expressed his doubts concerning which, if any, mitigating factors were being proffered by the appellant. The prosecutor did not in any way comment on any specific mitigating factor not raised by the defense, or attempt to underscore its absence. Hence, while it may have been better practice for the prosecutor not to have expressed his doubts, we do not find in the record anything which violates the holding of DePew or was prejudicial to the appellant. The appellant's fifth assignment of error is, therefore, overruled.
In the appellant's sixth assignment of error he asserts that the trial court erred in overruling his motion to dismiss based on the alleged unconstitutionality of the Ohio death-penalty scheme. The appellant advances twelve assertions in support of this contention, eleven of which he acknowledges were addressed and rejected by the Ohio Supreme Court in State v. Jenkins (1984), 15 Ohio St.3d 164, 473 N.E.2d 264; State v. Maurer (1984), 15 Ohio St.3d 239, 473 N.E.2d 768; and State v. Buell (1986), 22 Ohio St.3d 124, 489 N.E.2d 795. Understandably, appellate counsel raise these constitutional issues in order to preserve them for review.
In the twelfth constitutional protestation, the appellant argues that the Ohio death penalty is unconstitutional because it fails to provide for adequate appellate review. Specifically, the appellant asserts that the proportionality review required by R.C. 2929.05(A) is rendered meaningless because of decisions of the Ohio Supreme Court which limit the pool of comparative cases to only those in which the death penalty has been imposed. See State v. Stumpf (1987), 32 Ohio St.3d 95, and State v. Steffen (1987), 31 Ohio St. 111, 509 N.E.2d 383. According to the appellant's argument, an appellate court, having for purposes of comparison only those cases in which the death penalty was imposed, has no empirical data to arrive at the conclusion that imposition of the death penalty in the case before it is disproportionate. To remedy this, the appellant would have the appellate court also consider those cases in which the prosecutor did not seek the death penalty on similar facts, the trial judge rejected the jury recommendation of death, and the appellate court found that the death penalty was inappropriate.
These very arguments were rejected by the Ohio Supreme Court in State v. Henderson (1988), 39 Ohio St.3d 24, 538 N.E.2d 1237. Henderson reaffirms Stump and Steffen, and we find this precedent controlling. The appellant's sixth assignment of error is overruled.
III.
Having addressed each of the appellant's six assignments of error pursuant to App.R. 12(A), we now turn to the task of independently reviewing the record and weighing the aggravating circumstances surrounding the crime sub judice against the mitigating factors spread upon the record. In our independent review we shall be guided by the provisions of R.C. 2929.04(B) concerning the mitigating factors.
We have heretofore set forth the facts concerning the aggravating circumstances that were brought to light during the proceedings below in Section I of this Decision. We hereby incorporate that discussion into this analysis.
From our review of the record we discern nothing of a mitigating nature in the circumstances of this particularly brutal crime or in the background of the appellant. Pursuant to R.C. 2929.05, we have carefully reviewed all that has been certified to us, and we hold that the aggravating circumstances of the case outweigh the mitigating factors beyond a reasonable doubt.
IV.
The final step in the process mandated by R.C. 2929.05(A) is to determine whether the sentence of death is appropriate. This proportionality review is not constitutionally mandated, but is instead controlled by R.C. 2929.05(A), and it need encompass review of only those capital cases in which the death penalty has been imposed in Hamilton County. State v. Steffen, supra, paragraph one of the syllabus. We have compared the facts and circumstances in the case on review with our previous death-penalty decisions. Based upon that review, we conclude that the sentence of death imposed upon the appellant in this case is neither excessive nor disproportionate, and that it is an appropriate sentence.
V.
In conclusion, we have found that the appellant's six assignments of error concerning the proceedings below that resulted in his conviction for aggravated murder are without merit. We have further found that the aggravating circumstances of this case outweigh any and all mitigating factors beyond a reasonable doubt. Finally, we have held that the sentence of death is appropriate in this case, and it is neither excessive nor disproportionate to the penalty imposed in similar cases. Accordingly, pursuant to R.C. 2929.05(A), we affirm the appellant's conviction and the sentence of death imposed upon him in this case.
FN1. On December 12, 1990, this court entered an order of limited remand requiring the trial judge to clarify certain ambiguous language in the conclusionary paragraph of his sentencing opinion. On December 21, 1990, the trial judge's supplemental opinion was entered of record.
FN2. In support of this argument the appellant cites State v. Henderson (1979), 58 Ohio St.2d 171, 389 N.E.2d 494.
FN3. As alluded to previously, see fn. 1, supra, this court remanded this matter to the trial court for the limited purpose of clarifying the quoted language. Specifically, the trial judge was instructed to clarify whether he had independently determined that the aggravating circumstances outweighed the mitigating factors. In his supplemental opinion, the trial judge stated clearly that it was his independent judgment that the aggravating circumstances weighed in favor of the death penalty.
FN4. We note also that it is evident from the trial judge's supplemental sentencing opinion, see fn. 1 and 2, supra, that he properly identified only statutory aggravating circumstances and did not consider the nature and circumstances of the offense as aggravating circumstances to be weighed against the mitigating factors.
Carter v. Anderson, 585 F.3d 1007 (6th Cir. 2009). (Habeas)
Background: Following affirmance of prisoner's aggravated murder conviction and death sentence, 64 Ohio St.3d 218, 594 N.E.2d 595, and affirmance of denial of his petition for habeas relief, 443 F.3d 517, the United States District Court for the Southern District of Ohio, Sandra S. Beckwith, J., 2008 WL 641381, denied prisoner's motion for relief from judgment. Prisoner appealed.
Holdings: The Court of Appeals, Suhrheinrich, Circuit Judge, held that: (1) warden did not engage in conduct that was intentionally false, willfully blind to truth, or in reckless disregard for truth, so as to commit fraud on court; (2) warden did not engage in conduct that was positive averment or concealment by one under duty to disclose, so as to commit fraud on court; and (3) warden did not engage in conduct that deceived the court, so as to commit fraud on court. Affirmed.
SUHRHEINRICH, Circuit Judge.
Death row inmate Clarence Carter appeals a district court order denying his claim for relief under Federal Rule of Civil Procedure 60(b)(6). For the following reasons, we AFFIRM.
I. Background
Carter is a death row inmate. The facts giving rise to his conviction, sentence, and habeas petition were set forth in this court's previous opinion and are incorporated by reference. See Carter v. Mitchell, 443 F.3d 517, 521-24 (6th Cir.2006). The following facts are germane to Carter's Rule 60(b)(6) motion.
In December 1988, Carter and Johnny Allen were inmates at the Jail Annex to the Hamilton County Courthouse. Carter had been found guilty of aggravated murder on December 9, 1988, and was awaiting sentencing. On December 28, 1988, Carter struck and kicked Allen numerous times over a twenty to twenty-five minute period, necessitating Allen's hospitalization. Several times during the altercation, Carter stopped and walked away before returning. At one point Allen managed to sit up on a bench. Carter returned, knocked him off the bench, and continued to kick and choke him. Twice Carter used a mop to wipe the blood off of his shoes. Allen never threw a punch or provoked Carter. On January 5, 1989, Carter was sentenced to life imprisonment for the prior aggravated murder. On January 11, 1989, Allen died as a result of Carter's assault.
The State of Ohio tried Carter for the aggravated murder of Allen in July of 1989. The prosecutors at the trial for the murder of Allen were Claude Crowe and Charles Gebhardt. Multiple witnesses testified against Carter at the Allen trial, many of whom were inmates who had witnessed the altercation between Carter and Allen. One witness who testified was inmate Calvin Steele. Steele testified that the fight started when Allen was walking down the hall, and Carter “sucker punched” Allen. Steele demonstrated the sucker punch for the jury. Upon impact, Allen fell to his knees, and Carter continued to hit him. Steele testified that Carter then walked into his cell, stabbed himself in the leg with an object, and then walked back towards Allen. He began to stomp on Allen's head with his foot. He left Allen again, and walked around for a bit. During this time Allen tried to get up, but could only manage to sit up briefly before collapsing. Carter returned and continued the attack. Carter at one point choked Allen repeatedly. Steele estimated that the choking lasted for ten to fifteen minutes. Allen never struck or attempted to strike a blow at Carter. Steele estimated that Carter's assault on Allen lasted twenty to twenty-five minutes. At one point Steele asked Carter to stop, and Carter told Steele to “[g]et [his] ass back downstairs.”
The jury found Carter guilty of the aggravated murder of Allen with prior calculation and design on July 26, 1989, and Carter admitted at his sentencing hearing that he killed Allen. The court sentenced Carter to death on August 1, 1989.
In 1994, after Carter's trial, one of Carter's attorneys contacted Steele, who was in prison at the time. After some discussion about the case, Carter's counsel provided Steele with a written affidavit to sign (“post-conviction affidavit”). The affidavit stated that Steele did not see who started the fight between Carter and Allen, and that he did not know how it started. The affidavit also declared that because Carter had previously killed a friend of Steele's, Steele had a motive to testify falsely against Carter. Steele signed the affidavit.
The State of Ohio prosecuted Steele for perjury based on the discrepancy between Steele's trial testimony and his post-conviction affidavit. On December 8, 1994, Steele pled guilty to state felony perjury. At his plea colloquy, Steele stated that he testified truthfully at trial. He disavowed his affidavit. The district court sentenced Steele to one year in prison, with the sentence to run consecutively with the sentence already being served.
One day after Steele pled guilty to the state perjury charge, two investigators from the Hamilton County Prosecutor's Office, John Jay and Bill Fletcher, interviewed Steele about his affidavit. This interview was recorded, and a transcript was made from the recording (“interview transcript”). They claimed that the purpose of the interview was to ascertain whether Steele had been coerced into signing his affidavit by Carter's counsel. The interview transcript serves as the basis for Carter's Rule 60(b)(6) motion.
In 1996, Carter filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition included seventy claims of relief. Two of his claims challenged the truthfulness of Steele's testimony at Carter's murder trial. The district court dismissed as meritless all of the claims except the two claims pertaining to Steele's allegedly false testimony, and ordered an evidentiary hearing. Specifically, Carter's nineteenth claim for relief argued that the prosecution used the false testimonies of Steele and Calvin Johnson. Both of these inmates recanted their trial testimonies in post-trial affidavits. The thirty-first claim for relief argued that Carter lacked the requisite mens rea of “prior calculation and design” for his aggravated murder conviction. Carter contended in the latter claim that false testimony about how the fight started led to his aggravated murder conviction. The district court granted leave for Carter to take the depositions of Crowe and Gebhardt in preparation for the hearing.
The evidentiary hearing was held on November 9, 1998. Carter called Crowe, Gebhardt, Steele, and Johnson to testify; however, both Steele and Johnson did not testify because they invoked their Fifth Amendment privilege against self-incrimination. The post-conviction affidavits signed by Steele and Johnson were presented into evidence, as was evidence related to the state perjury prosecution and guilty plea of Steele. Neither the district court nor Carter had possession of the interview transcript at the hearing. Crowe made a reference to the transcript at the hearing when he stated, “I talked to Mr. Fletcher and Mr. Jay, the investigators who took another statement from Mr. Steele,” but neither the district court nor Carter requested more information with regard to this statement. At the hearing, Carter argued that the existence of the post-conviction affidavit signed by Steele demonstrated that Carter deserved a new trial under the nineteenth and thirty-first claims for relief.
The district court denied Carter relief on both claims. The court reasoned, “In light of Mr. Steele's plea of guilty to the charge of perjury related to the affidavit, which constitutes the only evidence dehors the record in support of Petitioner's claim that he was convicted on the basis of false testimony from Mr. Steele, the Court concludes that the evidence dehors the record does not support the claim.” Carter timely appealed to this court.
This court rejected Carter's argument that the district court should have compelled Steele to testify. Carter, 443 F.3d at 539 n. 11. We held that Steele had a reasonable fear of prosecution based on his state perjury conviction because double jeopardy would not have protected him from a federal perjury prosecution. Id. This court affirmed the district court's denial of a writ of habeas corpus. Id. at 539. The Supreme Court denied Carter's petition for certiorari. Carter v. Mitchell, 549 U.S. 1127, 127 S.Ct. 955, 166 L.Ed.2d 730 (2007).
On June 14, 2007, Carter filed this Rule 60(b)(6) motion claiming that he was entitled to relief under Federal Rule of Civil Procedure 60(b)(6) because the Warden did not turn over the interview transcript to the court during the evidentiary hearing. The district court concluded that the Warden's counsel's failure to sua sponte turn this information over to the court during the federal civil § 2254 habeas proceeding did not warrant relief under Rule 60(b)(6) because it did not undermine the integrity of that proceeding. Carter appeals.
II. Analysis
Rule 60(b)(6) is a catchall provision that permits a district court to set aside a judgment for “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6). A proper Rule 60(b) motion “attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings.” Gonzalez v. Crosby, 545 U.S. 524, 532, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). A movant that seeks relief under Rule 60(b) must show “extraordinary circumstances justifying the reopening of a final judgment.” Id. at 535, 125 S.Ct. 2641. Carter argues that his Rule 60(b)(6) motion should be granted because the extraordinary circumstance of fraud on the federal habeas court has occurred. A Rule 60(b)(6) motion is an appropriate vehicle to bring forward a claim for fraud on the court, id. at 532 n. 5, 125 S.Ct. 2641; however, Carter's Rule 60(b)(6) motion fails because Carter cannot prove that the Warden committed fraud on the court.
Demjanjuk defined fraud on the court as conduct: 1) on the part of an officer of the court; that 2) is directed to the judicial machinery itself; 3) is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth; 4) is a positive averment or a concealment when one is under a duty to disclose; and 5) deceives the court. Demjanjuk v. Petrovsky, 10 F.3d 338, 348 (6th Cir.1993). Carter has the burden of proving the existence of fraud on the court by clear and convincing evidence. Info-Hold, Inc. v. Sound Merch., Inc., 538 F.3d 448, 454 (6th Cir.2008). Even if this court assumes for the purposes of this analysis that the first, second and fourth elements of fraud on the court are met, Carter's claim still falls short of satisfying the third and fifth elements of fraud on the court.
A. Conduct that is intentionally false, willfully blind to the truth, or is in reckless disregard to the truth - Most notably, for three different reasons, Carter has failed to demonstrate by clear and convincing evidence that the third element of fraud on the court has been satisfied. First, Crowe made a reference to the interview at the evidentiary hearing about Steele's post-conviction affidavit. During the hearing, while being questioned by Carter's counsel, Crowe stated, “Yes, and I talked to Mr. Fletcher and Mr. Jay, the investigators who took another statement from Mr. Steele.” As the district court noted: “Crowe's specific reference to the interview during his testimony belies any suggestion of an intentional coverup.” Carter's counsel could have posed follow-up questions about this statement. Their failure to make further inquiries does not suggest that the Warden acted intentionally, with willful blindness, or recklessly.
Second, Carter did not offer evidence that demonstrates that the failure to produce the transcript amounted to conduct that manifested an intentional disregard for the truth. Carter urges this court to find that Steele recanted his trial testimony during the interview; however, when Steele's statements are taken in context, it is evident that his comments in the interview transcript supported the testimony he gave at the original trial. Throughout the interview with investigators, Steele commented that he did not have a strong memory of the fight because it occurred six years before his interview. He then made the supposed recantation. He said, “I don't really remember, you know, hitting him. I don't really remember,” and “The fight was already underway. But I don't think I remember how it began. Or who hit who first.” The foregoing statements do not amount to a recantation of Steele's trial testimony. Instead, they show that he did not remember the details of how the fight started on the date of the interview. In any event, Steele extinguished any potential ambiguity created by these statements with his next response. When Jay asked, “But you testified in court that you did. To the best of your recollection, is that testimony is true,” Steele answered “Yes.” The “truth” was not affronted when the Warden's counsel did not turn over the transcript of the interview to opposing counsel.
Third, the Warden cannot be said to have purposefully disregarded the truth when the statement by Steele would be inadmissible hearsay at a new trial. Carter's counsel conceded that this statement was hearsay, and was inadmissible to prove the truth of the matter asserted. When asked a question about the admissibility of the interview transcript, Carter's counsel answered, “As substantive evidence, certainly not.”
B. Conduct that is a positive averment or a concealment when one is under a duty to disclose
Carter has also failed to satisfy the fourth element of fraud on the court by clear and convincing evidence. No evidence exists that demonstrates that the Warden shirked a duty to turn over this information. Carter urges this court to fashion an evidence disclosure rule for habeas proceedings that is similar to or identical to the Brady rule used in criminal trials. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, Brady involves the disclosure of evidence at a criminal trial. Id. Habeas corpus is a civil proceeding. Browder v. Dir., Dep't of Corr. of Ill., 434 U.S. 257, 269, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). Moreover, even if we were to find a duty to disclose prior to a habeas hearing that mirrored a Brady requirement, this new rule would not apply to the transcript in this case because the statements made in the interview are consistent with past statements made by Steele. Carter has failed for these reasons to satisfy the fourth element of fraud on the court.
C. Conduct that deceives the court
Carter has also failed to satisfy, by clear and convincing evidence, the fifth element of fraud on the court, which requires the judge to actually be deceived. The same district judge that dismissed the claims at the evidentiary hearing oversaw the Rule 60(b) hearing. In her opinion, she stated that if the interview transcript had been available at the evidentiary hearing, “it would not have changed the result” because “Steele's transcript lacks an affirmative statement that Steele lied when he testified at Carter's trial.” Since the judge has stated that she was not deceived, Carter cannot establish that the failure to disclose the interview transcript satisfied the fifth element of fraud on the court.
In sum, we conclude that the district court properly dismissed this Rule 60(b) claim.
III. Conclusion
For the foregoing reasons, the judgment of the district court is AFFIRMED.