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Fields v. White

United States District Court, E.D. Kentucky, Southern Division

December 22, 2016

SAMUEL FIELDS, Petitioner,
RANDY WHITE, Warden, Respondent.


          Amul R. Thapar United States District Judge.

         Samuel Fields sits on Kentucky's death row, convicted of murdering a woman named Bess Horton. For twenty years, he has fought that conviction in the state and federal courts. The fight has included a habeas petition stating numerous grounds for relief, all of which this Court denied. R. 68. Fields now submits three more briefs, asking the Court to (1) order the government to pay for his expert witnesses, R. 62, (2) allow him to assert a habeas claim that he has procedurally defaulted, R. 63, and (3) reconsider its previous decision denying his other habeas claims, R. 69. For the following reasons, none of his arguments have merit. These motions must therefore be denied.


         These facts have been told before. See R. 68 at 2-11; Fields v. Commonwealth, 12 S.W.3d 275, 277-79 (Ky. 2000); Fields v. Commonwealth, 274 S.W.3d 375, 390-91 (Ky. 2008). The Court will give the CliffsNotes version here. On the afternoon of August 18, 1993, Fields and some friends were having a lively time: drinking beer, drinking whiskey, buying more beer, and taking horse tranquilizers. Among the revelers was Minnie Burton, with whom Fields had been in a relationship for a few days that August, and to whose niece he had once been married. The group ended up at a house owned by Fields's mother and brother, intending to stay the night. There the party turned wilder as Fields turned violent. He quarreled with Burton; threw food, furniture, and knives around the house; and then started to cry. Burton left because Fields was scaring her. After she left, Fields punched through the glass on the kitchen door, cutting up his right arm; grabbed more cans of beer; and then followed after Burton.

         She lived in the neighborhood-and rent-free-in a duplex owned by Bess Horton. But relations between the women had soured. Now Horton was apparently trying to evict Burton by turning off the power and water in the duplex. And when she made it home that night, Burton found herself locked out. She sat down on the front porch.

         The night had turned to fog. As she sat, Burton heard lots of hooting and hollering and a sound like someone hitting street signs. Through the fog came Fields, holding a knife. He said that he had killed his brother-which he had not-and gave her the knife to dispose of. She threw it in some bushes. He then became frantic, ripping screens off the windows. Burton fled again. Elmer Pritchard, the other resident of the duplex, was inside and called the police. Fields left the porch, too, apparently to find Burton, who, he would later testify, had said that she wanted to rob Horton.

         Two officers arrived at the scene to investigate the potential break-in at the duplex. Searching the buildings in the area, they noticed that the garage door was open at Horton's house nearby. Sweeping around back, they saw lights on in the house. Funny, they thought: Horton never left her lights on that late. Then they saw Fields-he was inside the house.

         One officer looped back around front. Seeing that a front window been removed, he climbed through. In the bedroom he found Fields rummaging through a drawer. Also in the room was Horton, lying on the bed, with her throat slashed and a knife protruding from her skull. Fields had blood on his clothes. His pockets were bulging with knives, other sharp objects, and jewelry. With the officer holding him at gunpoint and waiting for backup, Fields confessed to the murder on the spot. And then he confessed twice more: first after the other officer had arrived and read him his Miranda rights, and then, after being put under arrest, to an EMT on the way to the hospital.

         Eventually Fields was indicted for burglary and the murder of Bess Horton. The state jury found him guilty of both and sentenced him to death. But the Kentucky Supreme Court overturned the conviction because jury had heard impermissible evidence and the trial judge had instructed them improperly. See Fields, 12 S.W.3d at 277.

         Fields was tried again. At the second trial, his defense theory was that “Ms. Horton was dead before [he] ever entered that house.” R. 30-13 at 1874. He built that defense on three main pillars. The first was about the blood. See R. 68 at 9. The bricks of that argument were all the evidence of where blood was at the crime scene and where it was not. The mortar was simple logic. Fields was leaving blood on the sidewalk, on the back steps, on the front-screen-porch handle-everywhere he went, really. Horton, of course, had let out a good amount of blood herself. Yet all that blood was not quite where one would think it should have been if Fields had killed Horton. Fields argued that the true culprit of such a gruesome murder would have had some of the victim's blood on him. And none of Horton's blood was found on Fields. Plus, Fields had cut himself earlier and dripped blood everywhere he went. And none of his blood was found on Horton. From the beginning of trial until the end, Fields's lawyer hammered away at this point: Where's the blood? See R. 30-23 at 3367.

         His second pillar was that the alleged timeline simply does not work, an argument again made of hard evidence and simple logic. Triangulating from the police reports and witness testimony, Fields had fewer than fifty minutes to commit the murder: Pritchard had called the police around 1:57 a.m.; by 2:47 a.m., they had found Fields in Horton's house and were radioing the incident in. See R. 30-23 at 3373-74. In that time, the prosecution said, Fields had walked from the duplex to Horton's house, found a way inside, murdered Horton, and robbed her. And he did not just waltz through the front door, either: he took out a storm window. How? With a knife that had a bent tip and became affectionately known at trial as the “twisty knife.” The jury got to check this knife out for themselves. See R. 30-13 at 1880 (“You will get to hold this knife, and feel this knife and look at this knife.”). Apparently, Fields used this odd instrument to unscrew the seventeen screws holding the window in place-without making any sound to alert the officers already prowling the area. In the black of night, this is an arduous task even for the stone-cold sober. But Fields was drunk, boisterously so. He had spent the better part of the last day making noise, not suppressing it. Thus, Fields argued at trial, the chronology simply did not hold up: He could not have entered Horton's house when-and how-the government said. See R. 30-23 at 3380-82.

         So who did kill Bess Horton? That is the last pillar: According to Fields, it was Minnie Burton. Burton, who had been drinking before the murder, too. Who had motive: Horton was trying to evict her from a cushy, rent-free living situation; indeed, Fields argued she had been “soliciting others to rob Ms. Horton.” R. 30-13 at 1876. Who had knowledge: Burton knew where Horton lived and where she kept her valuables. Who had opportunity: She is largely unaccounted for in the couple hours before the murder, hours she apparently spent evading Fields. And who, Fields has argued, has told conflicting stories about that night ever since-including at both trials. See id. at 1876; R. 63 at 19. Testimony supported this pillar. Trial witnesses described Burton confessing to the murder, taking a shower and changing clothes after the event, and acting nervous the rest of the night. See R. 30-22 at 6926, 7529-60.

         In sum, the defense argued that evidence recovered from the scene, the pictures taken of the scene, the forensic evidence-or, in the case of the blood, the gaps in that evidence- and the testimony all pointed away from Fields. But once again, the jury found Fields guilty and sentenced him to death. See R. 68 at 11. This time, the Kentucky Supreme Court affirmed. Id. After the United States Supreme Court denied his petition for certiorari and the state court denied his motion for post-conviction relief, Fields came to this Court with a petition for a writ of habeas corpus. Id.

         That petition contained thirty claims for relief. R. 6. The Court denied one claim (number eighteen) on procedural grounds. R. 58. In that claim, Fields argues that his trial and appellate lawyers were ineffective, but he has conceded that he failed to raise that claim in accordance with state rules. Id. at 3-4; R. 6 at 87. The Court therefore dismissed the claim, but it dismissed the ineffective-assistance-of-appellate-counsel (IAAC) part of it without prejudice. Fields had argued that the “actual-innocence exception” applies to that claim and asked for more time to prove why. Id. at 5-6. If Fields proves actual innocence, the law will allow him to reassert his procedurally defaulted IAAC claim.

         In a separate one-hundred-and-eighteen-page opinion, the Court denied the rest of Fields's claims. R. 68.


         “The quintessential miscarriage of justice is the execution of a person who is entirely innocent.” Schlup v. Delo, 513 U.S. 298, 325 (1995). If an innocent man sits on death row because of a constitutional error in his trial, and cannot get off because he has defaulted his constitutional claim, the law provides a remedy: He may argue that he is actually innocent. And if he can prove that he is, then he may assert his defaulted claim. Thus, proving one's actual innocence does not itself entitle him to relief, but is “instead a gateway through which [he] must pass” before the Court can consider his barred constitutional claims on the merits. Herrera v. Collins, 506 U.S. 390, 404 (1993).

         In practice, that gateway is not wide. This is because society has an interest in preserving the “finality” of court decisions, maintaining “comity” between the different courts that make those decisions, and conserving “scarce judicial resources.” Schlup, 513 U.S. at 324. Moreover, experience teaches that defendants who remain in prison based on an unaddressed constitutional error-after passing through the many levels of the judicial system-are “extremely rare.” Id. Thus, actual-innocence claims are themselves “rarely successful.” Id.

         What makes a viable actual-innocence claim is evidence-and not just any evidence, but “new reliable evidence.” Id. To pass through the gateway, the petitioner must show the Court that “it is more likely than not that no reasonable juror, ” after seeing the new evidence, “would have found [him] guilty beyond a reasonable doubt.” Id. at 327. New evidence could include “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Id. at 324. Results from a new DNA analysis. A previously unknown witness come forth to tell all. A different murder weapon found under the floorboards, still smoking (at least figuratively) after all these years. Such evidence could support an actual-innocence claim.

         But whatever it might be, that evidence must always be two things: First, “new.” Id. Something is only new, of course, if it was not available before. A petitioner's evidence is therefore only “new” if he could not have used it at trial, either because the trial judge “wrongly excluded” it or because it “bec[a]me available only after the trial.” Id. at 328 (quoting Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)). Second, the new evidence must be “reliable.” Id. at 324.[1]

         Putting the pieces back together: If Fields presents new reliable evidence, and if it is more likely than not that a jury would find him innocent in light of that new evidence, then the Court can consider the merits of his defaulted IAAC claim. See Schlup, 513 U.S. at 327. Of his three new motions, two pertain to actual innocence. In the first, Fields argues that he needs the help of experts to establish his innocence. R. 62. But experts take money, and Fields does not have enough. He has therefore asked the Court to appoint him the experts and to make the government pay for them. And in the second, Fields develops his actual-innocence claim, relying in part on the evidence he says his experts will provide. R. 63.

         The Court will take the motions in their logical order. First, the Court must assess whether Fields really needs the experts he wants. If he does, then the inquiry is presently at an end, since Fields will need time to develop his claims with their help. But if he does not need them, then the Court must move on to assess whether-aside from requesting experts- Fields has presented any new, reliable evidence to get him through the actual-innocence gate.


         Fields wants experts-about fourteen-thousand-dollars' worth of them altogether. R. 62. And he wants the government to pay for them. To loosen the federal purse strings for this purpose, Fields must satisfy the requirements of 18 U.S.C. § 3599(f), a statute permitting the Court to allocate public funds for expert services when they are “reasonably necessary” to a defendant's case. Id. Experts are always nice to have, insofar as people are more apt to believe a story told or verified by someone with a Ph.D. Under the statute, however, the expert must be reasonably necessary, and an expert is not reasonably necessary when his testimony will merely “duplicat[e] [the] information already available.” Fautenberry v. Mitchell, 572 F.3d 267, 271 (6th Cir. 2009). For the taxpayer to pay for his experts, then, Fields must show two things: first, that this case involves a “substantial question, ” and second, that he cannot tackle that substantial question “without professional assistance.” Matthews v. White, 807 F.3d 756, 760 (6th Cir. 2015) (quoting Wright v. Angelone, 151 F.3d 151, 163 (4th Cir. 1998)).

         How substantial is “substantial”? The higher courts have not quite said, which makes sense: Appointing experts is a matter for the district court's discretion. Fautenberry, 572 F.3d at 268. But the Sixth Circuit has mentioned that questions which “could affect the outcome of proceedings” may “be considered ‘substantial.'” Matthews, 807 F.3d at 760. Which also makes sense: After all, if a question had no effect on the outcome, that question would be clearly insubstantial. Was planet Mars in the ascendant on the night of the murder? That question is insubstantial-and thus, a defendant does not need an astrologist to testify. Were someone else's fingerprints on the murder weapon? That question is more substantial, and thus, if the question is really an open one, the defendant might need a forensicist to resolve it. For the Court to appoint him an expert, at the government's expense, Fields must first show that the expert would affect the outcome of this particular proceeding, i.e., help establish his innocence.

         Second, Fields must show that he could not establish his actual innocence “without professional assistance.” Matthews, 807 F.3d at 760. For this to be true, the proposed expert testimony must be a reasonably necessary source of “the information [the Court] need[s]” to decide whether to let Fields through the actual-innocence gate. Foley v. White, 835 F.3d 561, 563 (6th Cir. 2016). Many types of information do not require expert messengers. “Blood was on the walls”-that testimony requires only an eye witness, not an expert. But “the blood splatter indicates the victim was shot by a nine millimeter at a distance of three feet”- that takes an expert. Thus, for the Court to appoint an expert, Fields must show not only that experts would help his actual-innocence claim, but also that his actual-innocence claim depends on information that only an expert can reasonably provide.

         Though providing experts under Section 3599(f) is usually a two-step dance, this case requires an extra shimmy. Fields is not trying to prove his innocence at trial. He has already been to trial-where a jury already convicted him-and is now trying to show that he is actually innocent. As discussed, actual-innocence claims face unique obstacles, namely the condition that they must be accompanied by some new reliable evidence. So unless Fields's experts can provide new and reliable evidence, their testimony will not affect the outcome of this proceeding. For example, if an actual-innocence claimant finds a vial of never-before-tested crime-scene DNA, and that DNA could potentially exonerate him, the Court could make the taxpayer pay for an expert to examine it. If the petitioner merely wants a new expert to look at old DNA test results, however, he offers no glimmer of new evidence-and thus no reason for the Court to make the taxpayer pay for the expert.

         This standard is admittedly difficult to meet. There are just not that many vials of untested DNA lying about. And because of the public interest in letting final judgments lie, the actual-innocent gateway remains closed unless the petitioner can identify new evidence. See Schlup, 513 U.S. at 324. Ultimately, therefore, Fields must show that his experts will provide new, reliable evidence on a question that could prove his actual innocence.


         Fields requests four types of experts. First, he wants a metallurgical expert to show how “highly improbable” it was that a drunk Fields could have quickly unscrewed the storm window-in the dark, no less-with the “twisty knife.” R. 62 at 3. Anyone with some background in amateur handiwork might guess that, after Fields had gone at the screws with such a faulty tool, the screw heads would probably appear mangled. But as Fields points out, “there appears to be no scoring of the screws to the naked eye.” Id. at 4. He asserts that an expert in the properties of metals could “examine” the knife and screws for “any markings” and “offer an opinion as to the[ir] presence or absence.” Id. at 4-5. The expert would also explain “what level of difficulty, effort, and time it would take” to open a window with only a twisty knife. Id. at 5. “This, ” Fields says, “would be based on science.” Id.

         Fields has mentioned an expert of this ilk before. In his habeas petition, Fields argued that his trial attorney was constitutionally ineffective for failing to call an expert who could “determine whether the twisty knife could or did unscrew the storm window.” R. 6 at 91. This argument failed for two main reasons. First, a fairminded jurist could agree that the attorney's strategic choice was a reasonable one, given that he could-and did-present the commonsense-based twisty-knife argument without shelling out for an expensive expert. R. 68 at 83-84. And second, Fields only speculated as to what this hypothetical tool-mark specialist would even say. Id. at 85.

         Dressing up his claim a little more, Fields now asks for a metallurgist. But he still fails to show what exactly this expert will help him prove-or disprove. Regardless of how he got in the house, the undisputed fact remains that he was in the house. A metallurgist could likely talk until sundown about the various effects of grating one metal against another. But that testimony would not change the fact that Fields was found next to a dead woman with sharp objects and her valuables stuffed in his pockets. Nor would it bolster Fields's timeline argument. Expertise in metals is not expertise in opening storm windows. Thus, this expert could not reliably testify about the time it might have taken Fields to open the window, about whether Fields could have gotten into the house before Horton died, or about any other part of the government's chronology. Without much to say on the relevant facts, this expert would not bring Fields any closer to proving his actual innocence.

         Fields responds that his point about the absence of scoring nevertheless makes the government's timeline unlikely. R. 62 at 3. If Fields could not have gotten into the house the way the government says he did, the argument has to go, it is more likely than not that a jury would have actually found him innocent. For the reasons just discussed, that is not so. But even assuming it is so, Fields himself has shown that an expert is unnecessary to show why. By Fields's own telling, the metallurgist would discuss details already obvious “to the naked eye, ” namely the lack of scoring on the knife and screws. Id. at 4. So this expert testimony would merely “duplicat[e] [the] information already available.” Fautenberry, 572 F.3d at 271. Moreover, Fields wants the expert to voice the same, commonsensical theory he used at trial: Fields was not trained in the art of the twisty knife, so where's the scoring? But applying common sense is the job of the factfinder, not the expert. If an expert can only speak in terms of common sense, his testimony is not even relevant, let alone reasonably necessary. See Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 905 (6th Cir. 2006). Rather than assist the factfinder, this expert would merely invade its province.

         And most importantly for current purposes, this expert testimony would not be “new.” It would merely bring old arguments back to life. Indeed, Fields's trial attorney made the very same points about the twisty knife to the jury-without needing the help of an expert- that Fields seeks the help of an expert to make now. See R. 68 at 82-86 (discussing the role of the twisty knife at trial). And Fields himself has shown that he can get by just fine without an expert: He makes all these same twisty-knife arguments-and at some length-in his new actual-innocence memorandum. See R. 63 at 6-10 (arguing that the timeline does not work). Thus, Fields does not reasonably need a metallurgist to support his actual-innocence claim.


         Second, Fields wants an expert to test the DNA from four cigarette butts found in Horton's house after her death. R. 62 at 5. That DNA has already been tested, but the tests did not identify the smokers, and Fields thinks modern technology will yield better results. “This is important, ” Fields says, “because Ms. Horton was not a smoker.” Id. at 5 n.3. Thus, the theory goes, any new DNA test that yielded a match “would place a different suspect on the scene, ” specifically one with a bad habit. Id. at 6. So Fields wants an expert to conduct new tests. Then he wants the Kentucky police to run the results through its DNA index, “compel[ling]” samples “from possible suspects” that it does not already have on file. Id.

         But Kentucky need not do all that. This DNA evidence would admittedly be “new.” But it would not go to any substantial question. Again, Fields must show not that the expert is reasonably necessary for proving just any point, but for showing new evidence in the light of which a jury would more likely than not find him innocent. The cigarette butts might conceivably be relevant to his innocence-if they could prove someone else was in the house the night Bess Horton died. So the issue is not just who, but when. Fields does not say when the butts were deposited. Nor does he say the DNA tests would (or could) show when they were smoked. Could have been the night of. Could have been days, weeks, maybe even months before. All the factfinder-here played by the Court-can do is guess. And without more than a guess, the cigarette butts prove little. Nor do they disprove that Fields was the only person found next to Horton's dead body. Whoever else might have been in the house, Fields was the one there are the wrong time, not to mention the one who quickly confessed. Up against those facts, the Court cannot say that a jury would more likely than not find Fields guilty even if someone else smoked those cigarettes.

         Thus, this DNA expert is not reasonably necessary to prove Field's actual innocence; the expert could only hope to prove a point that bears little relevance to who killed Horton. And an expert is not even reasonably necessary for proving that point. According to Fields, the facts already show that (1) Horton did not smoke, (2) four cigarette butts were in her ash tray, and (3) Fields was only in the house for a little while. Logic, again, is all one needs to connect the dots: If Horton smoked none of those butts, and Fields did not have enough time to smoke all four, then someone else must have visited the house. And if Horton was a reasonably tidy person, who cleaned her ashtray somewhat regularly, someone else might have been in the house that day. Even in its strongest form, this argument still is not very convincing. When was this person there? Who was he (or she)? What were his motives to kill? But the point is: It does not take an expert to make the argument. As such, this expert would not provide any “information [the Court] need[s]” to determine whether Fields is actually innocent. Foley, 835 F.3d at 563. If what he says about Horton's smoking habits is true, it seems likely that someone else smoked those cigarettes. The argument is thus as convincing without experts as it would be with them. The problem is that the argument is just not that convincing.

         So even if the Court took Fields at his word-that someone other than he or Horton was the smoker-the DNA tests would not change the facts. Fields, not the mystery smoker, was found beside Horton and confessed to killing her. Nor would the tests add facts that would likely have pushed the jury the other way than the one it went. And needless to say, Section 3599(f) does not allow defendants to order the state police to drum up new suspects. Because a DNA ...

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