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Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C Case 4:14-cv-03438 Document 85 Filed on 02/28/20 in TXSD Page 1 of 384 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION GERALD MARSHALL, No. 4:14-CV-03438 Petitioner, District Judge Kenneth M. Hoyt v. LORIE DAVIS, Director, CAPITAL CASE Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. AMENDED PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 Nicole DeBorde JASON D. HAWKINS Federal ID No. 16839 Federal Public Defender TBA No. 00787344 3515 Fannin Street Jeremy Schepers (TX 24084578) Houston, Texas 77004 Supervisor, Capital Habeas Unit Telephone: (713) 526-6300 Facsimile: (713) 808-9444 Jennifer Giddings (TX 24096284) [email protected] Jessica Graf (TX 24080615) Assistant Federal Defenders Office of the Federal Public Defender Northern District of Texas 525 S. Griffin St., Ste. 629 Dallas, TX 75202 214-767-2746 [email protected] Case 4:14-cv-03438 Document 85 Filed on 02/28/20 in TXSD Page 2 of 384 AMENDED PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 Petitioner, Gerald Marshall, through undersigned counsel, pursuant to all rights available under the Constitution, laws, or treaties of the United States, respectfully petitions this Court for a writ of habeas corpus declaring unconstitutional and invalid his conviction for capital murder as well as the resulting death sentence. i Case 4:14-cv-03438 Document 85 Filed on 02/28/20 in TXSD Page 3 of 384 TABLE OF CONTENTS AMENDED PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 .................................................................................................................. i TABLE OF CONTENTS ............................................................................................... ii TABLE OF AUTHORITIES ....................................................................................... xii PARTIES ....................................................................................................................... 1 JURISDICTION AND VENUE .................................................................................... 1 PROCEDURAL HISTORY ........................................................................................... 1 STATEMENT OF FACTS ............................................................................................ 4 A. The crime. ................................................................................ 5 B. The State’s investigation: A case built on the self- serving statements of co-defendants who lied to police. ........ 6 1. The crime scene: bystanders find what the police missed. .............................................................................. 6 2. The shooter: Gerald “Tank” Marshall or Ronald “Bo” Worthy? ..................................................................... 8 3. Calliham and Worthy place the blame on Marshall after they are alerted to Marshall’s arrest. ................... 18 4. Calliham and Worthy, improperly housed together at the Harris County Jail, get their stories straight. ......................................................................................... 27 C. The defense: Marshall was represented at trial by one attorney overburdened by death penalty cases and one sanctioned by the State Bar for incompetent representation. ...................................................................... 28 1. While representing Marshall, lead counsel Mack Arnold was assigned to two simultaneous death- penalty cases and struggling to keep up. ...................... 29 2. Second-chair counsel Sid Crowley has a history of deficient performance in capital murder cases and was sanctioned by the State Bar for multiple violations of the rules of conduct. .................................. 30 ii Case 4:14-cv-03438 Document 85 Filed on 02/28/20 in TXSD Page 4 of 384 3. Trial counsel rarely met with Marshall and did not prepare him for trial. ...................................................... 33 D. The trial: Unreliable snitch testimony points to Marshall as the shooter. ....................................................... 34 1. Kenny Calliham testifies to get probation for his involvement in the murder............................................. 35 2. By testifying, Clarence Green wins a sentence of probation despite having assaulted a police officer—an offense for which, under normal circumstances, he would have been sentenced to 25 years-to-life. .................................................................... 36 3. Wilbert Marsh identifies Marshall as the shooter— something he was unable to do before he saw Marshall sitting at the defense table in trial. ............... 38 4. The State bolstered all its questionable evidence to convict Marshall as the shooter. .................................... 39 STATEMENT REGARDING PROCEDURAL DEFENSES ..................................... 41 CLAIMS FOR RELIEF ............................................................................................... 42 CLAIMS ONE, TWO, AND THREE: A PERVASIVE AND CONTINUING PATTERN OF STATE MISCONDUCT VIOLATED MARSHALL’S FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS OF LAW AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT. .......................................................................................................... 42 RELEVANT FACTS ................................................................................................... 42 A. A tale of two trials: The State used diametrically opposed evidence to convict both Marshall and Worthy of capital murder. .................................................................. 42 1. The State manipulated the evidence to convince Marshall’s jury that only Marshall entered the Whataburger and thus had to be the shooter. ............... 43 2. The same prosecutors that secured Marshall’s conviction and death sentence convinced Worthy’s jury that Worthy also entered the Whataburger. ......... 49 iii Case 4:14-cv-03438 Document 85 Filed on 02/28/20 in TXSD Page 5 of 384 B. To secure Marshall’s conviction and death sentence as the principal in Dean’s murder, the State withheld and otherwise misrepresented the evidence. .............................. 56 1. The State failed to introduce evidence at Marshall’s trial tying Worthy to the murder weapon. .................... 56 2. The State withheld and untimely disclosed material evidence that was favorable to Marshall’s defense. ...... 57 C. Widespread evidence that the State lacks credibility should inform how this Court treats Marshall’s claims of misconduct. ........................................................................ 68 1. The prosecutors in this case have a pattern of withholding evidence. ..................................................... 70 2. The prosecutors in this case have demonstrated that they do not understand Brady. .............................. 74 Claim 1 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights to due process and to be free from cruel and unusual punishment were violated by the State’s knowing use of false testimony at the guilt and penalty phases of his trial. ........................................................................ 77 A. The governing law. ................................................................ 78 B. The State knowingly presented, and failed to correct, false and misleading evidence at the guilt phase. ............... 79 C. The State knowingly presented, and failed to correct, false and misleading testimony at the penalty phase of Marshall’s trial. ..................................................................... 86 D. This claim is unexhausted. ................................................... 86 Claim 2 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated by the state’s deployment of fundamentally inconsistent theories of the crime. ................. 87 iv Case 4:14-cv-03438 Document 85 Filed on 02/28/20 in TXSD Page 6 of 384 A. The governing law. ................................................................ 87 B. The State presented inconsistent and irreconcilable theories of the offense in its prosecutions of Marshall and his co-defendant Worthy. ............................................... 91 C. The State’s use of inconsistent and irreconcilable theories violated Marshall’s due process rights and entitles him to relief from his conviction. ........................... 100 D. This claim is unexhausted. ................................................. 102 Claim 3 Marshall’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated by the State’s suppression of exculpatory and impeachment evidence. .............................. 102 A. The governing law. .............................................................. 104 B. The State engaged in a pattern of suppression and delayed disclosure in this case, validating concerns that to this day, the State is continuing to suppress evidence favorable to Marshall. ......................................................... 106 C. This claim is unexhausted. ................................................. 110 Claim 4 Marshall’s Sixth, Eighth, and Fourteenth Amendment rights were violated by trial counsel’s ineffective investigation and preparation for the guilt phase of trial. ....... 110 A. Because trial counsel failed to conduct an adequate investigation into the allegations against Marshall, they were unprepared to competently challenge the State’s claim
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