INGE PRYTZ JOHNSON, District Judge.
This is an action by an Alabama state prisoner, William Ernest Kuenzel, pursuant to 28 U.S.C. § 2254. He challenges the constitutional validity of the conviction he received in the Talladega County Circuit Court on September 23, 1988, for capital murder, for which he was sentenced to death. The petitioner, with the assistance of an attorney, filed the instant petition for writ of habeas corpus on February 7, 2000. He is incarcerated on Death Row at Holman Correctional Facility in Atmore, Alabama.
This is the third time this court has found that the instant habeas petition is barred by the time limitation mandated in 28 U.S.C. § 2244(d). The first time, in September 2002, this court dismissed the petition as time-barred by § 2244(d). That decision was vacated and remanded for further proceedings consistent with the Eleventh Circuit Court of Appeals' opinion in Siebert v. Campbell, 334 F.3d 1018, 1032 (11th Cir.2003)("Siebert I"). On remand, this court in February 2006 determined that the intervening authority of Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), effectively overruled Siebert I and compelled the conclusion that the petition is barred by the one-year limitation of § 2244(d) because petitioner's untimely filed Rule 32 petition in state court had no tolling effect. Petitioner appealed that decision, which the Eleventh Circuit Court of Appeals vacated and remanded for further proceedings including the resolution of Kuenzel's assertion that he is actually innocent and thus excepted from the procedural bar described in Siebert II. Kuenzel v. Allen, 488 F.3d 1341 (11th Cir.2007).
On September 23, 1988, the petitioner was convicted after a jury trial for the capital murder of Linda Offord, a convenience store clerk who was shot to death in 1987 during a robbery. Evidence presented at trial can be summarized as follows:
Around 11:00 p.m. on the night of Monday, November 9, 1987, Linda Offord was shot to death at Joe Bob's convenience store in Sylacauga, Alabama, where she worked as a clerk. The petitioner was charged with capital murder. Petitioner's co-worker and roommate, Harvey Venn,
A co-worker testified that Venn and Kuenzel were together early in the evening, and came by the company where they worked to sell him some pills. A teenage girl who knew Venn and Kuenzel, April Harris, said she was riding in a car past the convenience store about 9:30 or 10:00 p.m. the night of the murder and could see Venn's car in the parking lot. She testified that she saw Venn and Kuenzel just inside the store.
Testimony indicated that Offord was shot with No. 1 buckshot fired from a 16-gauge shotgun. A shell fired from the Kuenzel gun was found in the rubbish bin outside Kuenzel's home. Also found in the search of Kuenzel's home was a notebook in which Kuenzel had written down what Venn had told police about the night of the murder.
The defense presented testimony from Glenn Kuenzel, who said that he went to petitioner's house around 10:30 the night of the murder, and saw through the window that Kuenzel was asleep on the sofa. The defense also offered testimony from Hope Champion, a visitor to Glenn Kuenzel's home, who said that petitioner and Venn had returned the 16-gauge shotgun the day before the murder. The defense further attacked Venn's credibility, showing that he had given prior inconsistent statements, and was also charged in the crime, but was accepting a plea deal.
There was no physical evidence linking Kuenzel to the crime scene. The only blood found was on Venn's left pants leg, and it was the same type as the victim's. Venn's shoes were also tested, and no blood was found on the shoes. A lot of blood was present at the crime scene, but none was on the customer side of the counter that
The jury returned a verdict of guilty to the capital crime. After the penalty phase of the trial concluded, the jury recommended that petitioner be sentenced to death, and, on November 7, 1988, following the jury's 12-0 recommendation in favor of imposition of the death penalty, the trial judge sentenced petitioner to death by electrocution. Petitioner appealed his conviction to the Alabama Court of Criminal Appeals, which affirmed the conviction and sentence on June 29, 1990. Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990). On January 11, 1991, the Alabama Supreme Court affirmed the decision of the appellate court. Ex parte Kuenzel, 577 So.2d 531 (Ala.1991). A certificate of judgment was issued by the Alabama Court of Criminal Appeals on March 28, 1991. On October 7, 1991, the United States Supreme Court denied petitioner's application for writ of certiorari. Kuenzel v. Alabama, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991)(Memo).
On October 4, 1993, petitioner filed a petition for post-conviction relief in the trial court pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. The petition initially was denied on October 6, 1994, as time-barred under Rule 32.2(c), but on May 6, 1996, the trial court granted petitioner's motion to set aside the October 6, 1994, order. After an answer was filed and petitioner sought discovery, the State filed a motion to reinstate the October 6, 1994, order dismissing the petition as time-barred. On February 18, 1999, the trial court granted the State's motion and entered an order dismissing the petition as time-barred. Petitioner appealed the dismissal, which was affirmed by the Alabama Court of Criminal Appeals on January 28, 2000. He sought rehearing, but that was denied a month later, on February 25, 2000. He next sought review in the Alabama Supreme Court, which denied certiorari on July 28, 2000. The United States Supreme Court denied certiorari on January 16, 2001.
On February 7, 2000, while still litigating his appeals from the dismissal of a Rule 32 petition in the Alabama state courts, the petitioner, represented by counsel, filed a motion in this court seeking a ruling that his one-year limitation period set forth in 28 U.S.C. § 2254 "is tolled until all state court proceedings and possible appeals therefrom" were exhausted. With the motion, he filed a habeas corpus petition, requesting that it be filed if the motion for tolling were denied. On February 15, 2000, the court denied the motion on the ground that it was premature, deemed the petition filed, treating it as a "place-holder" petition, and stayed proceedings pending notification that all appeals from the state court proceedings had been concluded.
On January 22, 2001, petitioner notified the court that the United States Supreme Court had denied certiorari of the appeal from the state Rule 32 denial. By order dated February 5, 2001, the court lifted the stay and gave petitioner 30 days in which to amend his petition. Petitioner filed an amended petition on March 23, 2001.
On June 15, 2001, respondents filed a motion to dismiss the petition, contending that the petition is time-barred by operation of 28 U.S.C. § 2244(d)(1) and, alternatively, that the claims are without merit. Petitioner filed a memorandum of law and a supplemental memorandum in opposition to the motion to dismiss. Respondents filed an answer on July 11, 2001, together with a memorandum of law and a copy of
On September 27, 2002, this court entered a memorandum opinion and order dismissing the petition as time-barred. Petitioner appealed to the Eleventh Circuit Court of Appeals, which issued a mandate on October 15, 2003, vacating and remanding for further proceedings consistent with Siebert v. Campbell, 334 F.3d 1018 (11th Cir.2003). On May 11, 2005, however, the respondents filed a renewed motion to dismiss on time-bar grounds based upon the Supreme Court's opinion in Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Petitioner sought and received an extension of time in which to respond to the motion, with his response being filed on August 5, 2005. Respondents filed a reply on August 11, 2005, and petitioner sought to file a sur-reply, which was granted. The sur-reply was filed on August 19, 2005. On September 2, 2005, the court issued an order that the parties may file additional authority or argument related to the application of Pace in light of the Eleventh Circuit Court of Appeals' August 16, 2005, unpublished decision in Colbert v. Head, 146 Fed.Appx. 340 (11th Cir.2005). Both parties filed responses on September 12, 2005. This court entered an order on February 9, 2006, dismissing the claims on the basis that Pace rendered the instant petition untimely.
Petitioner again appealed, and the Eleventh Circuit Court of Appeals entered an order on June 13, 2007, remanding for a determination of Kuenzel's claim that he is actually innocent. Relying on the panel decision in Siebert v. Allen, 480 F.3d 1089 (11th Cir.2007), the court of appeals again rejected this court's determination that the instant petition is time barred. The court of appeals found, however, that the petition is procedurally defaulted because the state courts rejected the Rule 32 petition as being untimely filed, subject to petitioner's argument that he can avoid the default because he is actually innocent under the "miscarriage of justice" exception to the procedural-default doctrine.
This court recently faced essentially the same question of timeliness under § 2244(d) in Siebert v. Campbell, Case No. 1:01-cv-2323-IPJ-TMP. The respondents in the instant case, as in Siebert, assert that the decision made by the Supreme Court in Pace constitutes a change in law on a controlling issue. Further, the court of appeals' reliance on the authority of Siebert v. Allen, 480 F.3d 1089 (11th Cir. 2007) ("Siebert III"), is fatally undermined by the fact that the Supreme Court reversed it after the panel decision was announced in the instant case. The court agrees that a change in law has occurred, and thus examines whether the intervening decision affects the mandate to treat Kuenzel's petition as timely filed.
The issue presented here is discussed fully in the memorandum opinion entered by the court in Siebert, which is attached hereto. Stated succinctly, the question is whether petitioner's state Rule 32 petition was "properly filed" for purposes of statutory tolling under 28 U.S.C. § 2244(d)(2) of the time period for filing
In this case, petitioner filed his post-conviction motion in the state trial court on October 4, 1993, less than two years after the Supreme Court denied certiorari, but more than two years after the certificate of judgment was issued by the Alabama Court of Criminal Appeals. Upon motion of the respondents, the trial court dismissed the petition as untimely filed pursuant to Rule 32.2(c), specifically noting that the certificate of judgment following petitioner's direct appeal was issued by the Alabama Court of Criminal Appeals on March 28, 1991, making any Rule 32 petition filed later than March 28, 1993, untimely.
Based on this finding by the Alabama state courts, this court concluded that the instant habeas petition filed in February 2000 also was not timely filed under 28 U.S.C. § 2244(d), which mandates a one-year limitation period for the filing of federal habeas actions. The one-year limitation period began to run for petitioner on the date § 2244(d) was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") by Congress, April 26, 1996, and would have expired on April 26, 1997. Section 2244(d)(2), however, provides for the tolling of the limitation period during the pendency of a "properly filed" state post-conviction
Relying on Siebert I, the court of appeals reversed this court's earlier dismissal and remanded for further proceedings on the instant habeas petition. When the United States Supreme Court announced its decision in Pace, however, the respondents renewed their motion to dismiss the petition as untimely filed. As discussed much more extensively in this court's memorandum opinion in Siebert v. Campbell, Case No. 1:01-cv-2323-IPJ-TMP (attached), this court believed (and still believes) that Pace constituted an intervening controlling authority that excused the court from following the mandate of the court of appeals under the law-of-the-case doctrine. This court noted in its memorandum opinion dismissing this petition as time barred for a second time (Doc. 93) that the Supreme Court in Pace said:
(Doc. 93, p. 7). Thus, the essential holding and rationale of Pace is that, once state courts apply state law to the question of the timeliness of the filing of a state petition, the federal courts are not free to second-guess whether that determination creates a "condition to filing" or a "condition to obtaining relief." It is a "condition to filing," which precludes a finding that an untimely petition was, nonetheless, "properly filed" for § 2244(d)(2) purposes. The court concluded in 2006 (Doc. 93), therefore, that notwithstanding the mandate of the court of appeals, Pace, as intervening and controlling authority, required the court to hold that the petition is time barred.
On appeal from that dismissal, the court of appeals stated that the only issue was whether Pace overruled Siebert I. Citing to yet another decision in Siebert v. Allen, 480 F.3d 1089 (11th Cir.2007) (Siebert III), the court of appeals again reversed this court, holding that Pace had not overruled Siebert I and, thus, was not sufficient intervening authority to warrant the court's departure from the mandate. The appellate court remanded the case to this court with the instruction that it proceed to consider the petitioner's arguments that the procedural default of his claims can be excused because he is actually innocent. Once again, however, this court believes that intervening authority from the Supreme Court fatally undermines the court of appeals' reliance on Siebert I and Siebert III.
In concluding that Siebert I had not been overruled by the Supreme Court in
Kuenzel v. Allen, 488 F.3d 1341, 1342 (11th Cir.2007) (Doc. 108 in this case). Thus, whether petitioner's habeas petition is timely filed under AEDPA rests on the strength of the authority in Siebert III that Pace did not overrule the holding in Siebert I that only state time deadlines for filing post-conviction petitions that are "jurisdictional" could be "conditions to filing" sufficient to prevent an untimely filed state petition from being "properly filed" for purposes of tolling the AEDPA limitation period.
Siebert III, however, was itself reversed by the Supreme Court. In Allen v. Siebert, 552 U.S. 3, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007), decided five months after the court of appeals' decision in the instant case,
Allen v. Siebert, 552 U.S. 3, 5-7, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007). With the reversal of the court of appeals' decision in Siebert III, the foundation for the holding in this case, that the AEDPA time bar was tolled by the untimely filed state post-conviction petition, crumbled. The intervening authority of Allen v. Siebert, therefore, requires the court to return — for the third time — to its original conclusion that the habeas petition in this action is time barred under § 2244(d) and that the state post-conviction petition rejected by the state courts as untimely filed was not "properly filed" for purposes of tolling the AEDPA one-year limitation.
As Supreme Court authority on point, this court is required to follow Pace, even though it apparently undermines the Eleventh Circuit's decision in Siebert v. Campbell, 334 F.3d 1018 (11th Cir.2003), and the mandate in this case. The mandate in this case was fatally undermined by Allen v. Siebert, which reversed the very case the court of appeals relied on for its decision in this case. Allen v. Siebert leaves no doubt that Pace indeed overruled Siebert I. Applying Pace to this case, therefore, leads the court to the conclusion that, because petitioner's state Rule 32 petition was not timely filed, it was not "properly filed" for purposes of statutory tolling under § 2244(d)(2) and thus, the instant petition is due to be dismissed as untimely filed as well.
Finding that statutory tolling does not apply, the court also rejects the petitioner's equitable tolling argument. Petitioner has made the argument that he is entitled to equitable tolling because the state court did not ultimately find that the Rule 32 petition was untimely until long after the one-year AEDPA limitation period had expired. Even though there is no statutory tolling available to petitioner, the limitation period might be equitably tolled
Having concluded that the instant habeas petition is time barred, the court nonetheless faces the question remanded by the court of appeals, albeit for a different reason. In remanding the case to this court, the court of appeals found, not that the petition was time barred under § 2244(d), but that it was procedurally defaulted. The appellate court then instructed this court to consider whether the procedural default can be excused under the "miscarriage of justice" exception to procedural default. This exception requires the petitioner invoking it to prove his actual, factual innocence of the crime. Preliminary to that issue, however, is whether the petition is even timely filed, which this court has determined that it was not. Nevertheless, the caselaw appears to suggest that, notwithstanding the time bar, habeas relief may be available to a petitioner who is "actually innocent." See, e.g. Helton v. Secretary for the Department Of Corrections, 259 F.3d 1310, 1315 n. 2 (11th Cir. 2001), cert. denied, 535 U.S. 1080, 122 S.Ct. 1965, 152 L.Ed.2d 1025 (2002); Wyzykowski v. Department of Corrections, 226 F.3d 1213, 1218 (11th Cir.2000).
Petitioner argues that "actual innocence" provides an exception to the AEDPA one-year statute of limitations. Kuenzel asserts that he is "actually innocent" of the murder for which he was convicted, and argues that he was at home sleeping when the murder occurred. He further argues that he is "actually innocent" of the death penalty in that his attorney failed to present sufficient evidence of mitigating
An "actual innocence" exception has been well established in the context of a procedural default since the Supreme Court held that a claim of actual innocence may "avoid a procedural bar" to consideration of the merits of a habeas petitioner's claims. Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In Schlup, a habeas petitioner sought review of claims of ineffective assistance of counsel and other constitutional errors at trial in a successive habeas petition. Those claims were procedurally barred, but petitioner sought to escape the bar by demonstrating that he was actually innocent and, being so, the court's refusal to hear his claims would result in a miscarriage of justice. 513 U.S. at 321, 115 S.Ct. 851. Accordingly, the claim of actual innocence provides a "gateway" through which otherwise procedurally barred constitutional claims may be considered. Id. at 315, 115 S.Ct. 851. An "actual innocence" exception to the bar on successive habeas petitions was codified through AEDPA at 28 U.S.C. § 2244(b)(2)(B)(ii), but Congress did not include the same or any similar
To date, the Supreme Court never has held that actual innocence may be used to overcome the one-year deadline.
The trend toward recognizing that justice demands an exception exist for those who demonstrate actual innocence, however, has begun. In January of 2005, the Sixth Circuit Court of Appeals held that a credible claim of actual innocence will equitably toll the limitations period, allowing an otherwise time-barred habeas claim to be evaluated on the merits. Souter v. Jones, 395 F.3d 577, 588-590; cf. Escamilla v. Jungwirth, 426 F.3d 868, 871-72 (7th Cir.2005); but see Workman v. Bell, 227 F.3d 331, 342 (6th Cir.2000)(en banc), cert. denied, 531 U.S. 1193, 121 S.Ct. 1194, 149 L.Ed.2d 109 (2001), (noting in dicta that a petitioner who lets the time run "either purposefully or by inadvertence" cannot receive relief on an untimely petition even if he claims actual innocence); Barreto-Barreto v. United States, 551 F.3d 95, 102 (1st Cir.2008)(finding that the actual innocence exception does not apply to the § 2255 one-year limitation period, and noting that defendants who are innocent are "constrained by the same explicit statutory or rule-based deadlines as those against whom the evidence is overwhelming.").
The Eleventh Circuit Court of Appeals similarly noted in February 2005 that innocence may serve "to lift the procedural bar
While Montano does not enunciate its reasoning for extending the "actual innocence" exception to time-barred claims, the Second Circuit Court of Appeals carefully examined the question in Doe v. Menefee, 391 F.3d 147, 159-161 (2d Cir.2004), cert. denied, 546 U.S. 961, 126 S.Ct. 489, 163 L.Ed.2d 364 (2005), but ultimately found, as it did in Lucidore, that the issue need not be decided because the petitioner failed to make a sufficient showing of actual innocence. In Doe, the appellate court determined that the AEDPA's one-year limitations period "protects the same values of comity and finality as do the procedural limits on successive and defaulted petitions" and should therefore be subject to the same exception for those who show their actual innocence. Id. at 161. The court further noted that the standards for assessing innocence set forth in Schlup must be applied, and that if a petitioner shows that it is "more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt," he may then access review of his otherwise time-barred claims via the "actual innocence" gateway. Doe, 391 F.3d at 161-62, citing Schlup, 513 U.S. at 324, 327-28, 115 S.Ct. 851. It is interesting to note that in Doe the Second Circuit Court of Appeals limited the application of the actual innocence exception to those instances in which the claim of innocence is supported by "new reliable evidence" that "was not presented at trial." 391 F.3d at 161. Once the new evidence is proffered, the court "must determine whether the new evidence is trustworthy by considering it both on its own merits and, where appropriate, in light of the pre-existing evidence in the record." 391 F.3d at 161, citing Schlup, 513 U.S. at 327-28, 115 S.Ct. 851.
This court finds that Montano provides binding precedent that an "actual innocence" exception applies to time-barred claims as well as to those that have been procedurally defaulted or are successive.
Entering the gateway provided by a claim of actual innocence was not designed to be an easy task, and the burden placed on the habeas petitioner is a heavy one. It is rooted in the long-held notion that "it is far worse to convict an innocent man than to let a guilty man go free." Schlup, 513 U.S. at 325, 115 S.Ct. 851, quoting In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 1077, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). Having already been convicted of a capital offense, however, a petitioner like Schlup or Kuenzel no longer has the benefit of any presumption of innocence, and instead "comes before the habeas court with a strong-and in the vast majority of the cases conclusive-presumption of guilt." Schlup, 513 U.S. at 326 n. 42, 115 S.Ct. 851. The Supreme Court has noted that "experience has taught us that a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare." 513 U.S. at 324, 115 S.Ct. 851. While the burden is on the petitioner to show his actual innocence, the burden for proving a Herrera innocence claim is higher than that imposed on a petitioner seeking to make merely a procedural or gateway innocence claim. Schlup, 513 U.S. at 316, 115 S.Ct. 851. A Herrera innocence claim requires a showing that the execution would be "`constitutionally intolerable' even if his conviction was the product of a fair trial." 513 U.S. at 316, 115 S.Ct. 851. A gateway claim of innocence carries a slightly lower burden, and requires the petitioner to provide evidence that "must establish sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial." 513 U.S. at 316, 115 S.Ct. 851.
As explained in Souter and Doe, the petitioner seeking to enter the "actual innocence gateway" must make a "credible showing" of innocence by providing the court with "new reliable evidence." See Davis v. Terry, 465 F.3d 1249, 1251 n. 2 (11th Cir.2006) ("To pass through the Schlup `gateway,' a petitioner's new evidence must `establish sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial.'")(quoting Schlup, 513 U.S. at 316, 115 S.Ct. 851). A sufficient showing "requires the petitioner to produce "`new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented
A threshold question then becomes whether the evidence proffered in support of an innocence claim is new. "New evidence" has not been defined by the Supreme Court or the Eleventh Circuit Court of Appeals in the context of the actual innocence gateway, but the Fifth Circuit Court of Appeals, evaluating both a free-standing actual innocence claim and a "gateway" claim in Lucas v. Johnson, 132 F.3d 1069, 1074 (5th Cir.1998), set the same evidentiary standard for both. That court noted that "much of the evidence alleged by Lucas to be newly discovered is neither new nor newly discovered, but in its essence and character, was presented, or available to present, to the trial jury." That court went on to require a showing that: "(1) the evidence is newly discovered and was unknown to the defendant at the time of trial; (2) the defendant's failure to detect the evidence was not due to a lack of diligence; (3) the evidence is material, not merely cumulative or impeaching; and (4) the evidence would probably produce acquittal at a new trial." 132 F.3d at 1075 n. 3. Similarly, both the Seventh and Eighth Circuit Court of Appeals have required that a claim of actual innocence be brought within a year of the date on which the facts could have been discovered through the exercise of due diligence. Araujo v. Chandler, 435 F.3d 678, 680-81 (7th Cir.2005), cert. denied, 549 U.S. 810, 127 S.Ct. 39, 166 L.Ed.2d 18 (2006)(finding that the petitioner failed to exercise the requisite diligence in bringing to federal court the facts he claimed show that he is innocent); Flanders v. Graves, 299 F.3d 974 (8th Cir.2002), cert. denied, 537 U.S. 1236, 123 S.Ct. 1361, 155 L.Ed.2d 203 (2003). In the Tenth Circuit, the appellate court has required that a petitioner demonstrate due diligence in addition to satisfying the "high actual innocence standard." Fleenor v. Scott, 37 Fed.Appx. 415, 417 (10th Cir.2002). The Ninth Circuit Court of Appeals, in contrast, has taken a broad view of "new" evidence, allowing a petitioner to proceed on the basis of evidence he possessed at trial, but did not present to the jury. See, e.g., Griffin v. Johnson, 350 F.3d 956, 961-63 (9th Cir.2003), cert. denied, 541 U.S. 998, 124 S.Ct. 2039, 158 L.Ed.2d 510 (2004).
Once the petitioner has come forward with new evidence, a habeas court next must evaluate the reliability of that evidence. The court may consider "the timing of the submission and the likely credibility of the affiants" in judging the reliability of the evidence. Melson, 548 F.3d at 1002. The court is "not required to test the new evidence by a standard appropriate for deciding a motion for summary judgment." Bosley v. Cain, 409 F.3d 657, 664 (5th
The court may grant the petitioner an evidentiary hearing to examine the assertion of actual innocence, but a hearing is not required where additional testimony from the affiants is "unlikely to make their revised account any more credible." Adams v. Harrison, 266 Fed.Appx. 560, 562 (9th Cir.2008)(noting that the affidavits in question were submitted more than a decade after trial and were of "questionable credibility"). It has been noted that requiring that the district court hold an evidentiary hearing for every proffer of innocence defeats the goal of finality. In Amrine v. Bowersox, 128 F.3d 1222, 1230-31 (8th Cir.1997)(Beam, J., dissenting), cert. denied, 523 U.S. 1123, 118 S.Ct. 1807, 140 L.Ed.2d 946 (1998), it was noted: "In attempting to implement Schlup, the court exacerbates the confusion inherent in death penalty habeas litigation and opens the door to repetitive Schlup-type hearings in the federal district courts of this circuit by encouraging death-sentenced petitioners to release new and different bits of evidence, piecemeal, at various stages of the habeas proceeding." Moreover, while a hearing may assist the court in determining reliability, hearings are not appropriate where a petitioner seeks to further "develop sufficient evidence of his actual innocence." Weeks v. Bowersox, 119 F.3d 1342, 1353 (8th Cir.1997). In Weeks, the appellate court noted that the gateway is not intended to provide petitioner with a new trial "with all the attendant development of evidence, in hopes of a different result," but instead is an "opportunity for a petitioner, aggrieved by an allegedly defective trial and having inexcusably defaulted the available remedies, to raise such a strong doubt to his guilt that, in hindsight, we cannot have confidence in the trial's outcome." 119 F.3d at 1354.
Because of the importance of the evaluation of actual innocence, a district court "is not bound by the rules of admissibility that would govern at trial" and can consider evidence that is "claimed to have been wrongly excluded" or which "became available only after the trial." Schlup, 513 U.S. at 328, 115 S.Ct. 851. Although inadmissible evidence may be considered, its reliability still must be evaluated by the court. Similarly, the district court may evaluate the credibility of witnesses who testified at trial, in light of the newly discovered evidence. 513 U.S. at 330-32, 115 S.Ct. 851. A petitioner meets the threshold requirement if he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt. 513 U.S. at 327, 115 S.Ct. 851.
It has been noted that actual innocence "means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Milton v. Secretary, Department of Corrections, 347 Fed. Appx. 528, 530-31 (11th Cir.2009). Actual innocence means that the person convicted did not commit the crime. Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir.1997), cert. denied, 520 U.S. 1267, 117 S.Ct. 2438, 138 L.Ed.2d 198 (1997), quoting Johnson v. Hargett, 978 F.2d 855, 859-60 (5th Cir. 1992).
A review of cases in which habeas petitioners have attempted to demonstrate their actual innocence compels the conclusion that a mere accumulation of additional evidence that would have bolstered the defense and would have persuaded some jurors to acquit still is insufficient to propel a petitioner through the narrow Schlup gateway. In Schlup, the petitioner was an inmate convicted of murder in a jailhouse
A search for instructive case law further indicates that a successful showing of actual innocence is very rare. The Supreme Court apparently only once has found that a habeas petitioner met the heavy burden. In House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006), an inmate sentenced to death for a murder conviction brought forward new evidence that semen evidence entered at the trial belonged to the victim's husband, not to him, in "direct contradiction" of the trial presentation. 547 U.S. at 540, 126 S.Ct. 2064. The jury had been informed that the semen on the victim's clothing could have come from the petitioner, who had a previous conviction for sexual assault. Discovery that the semen belonged to the victim's husband served to drop from the case the only direct evidence of sexual assault. 547 U.S. at 541, 126 S.Ct. 2064.
In House, the district court granted petitioner's request for an evidentiary hearing, a motion apparently unopposed by the state. After examining petitioner's new evidence, along with the evidence presented at trial, the Court made "a probabilistic determination about what reasonable, properly instructed jurors would do." 547 U.S. at 538, 126 S.Ct. 2064, citing Schlup, 513 U.S. at 329, 115 S.Ct. 851. The court further noted that its function "is not to
While new scientific evidence, such as DNA results that were unavailable at the time of trial, exemplify the type of "new evidence" envisioned by the Court in opening the innocence gateway, a petitioner's own protestations seem inapposite to any definition of "new evidence." As the Third Circuit Court of Appeals recognized in Hubbard v. Pinchak, 378 F.3d 333, 340 (3d Cir.2004), cert. denied, 543 U.S. 1070, 125 S.Ct. 910, 160 L.Ed.2d 805 (2005), a petitioner's "own sworn testimony" cannot be considered new where the petitioner chose not to testify at trial even though he was available to do so. Such a "choice does not open the gateway," the court opined. 378 F.3d at 340. To permit such self-serving testimony to suffice would set the bar "so low that virtually every [actual innocence] claimant would pass through it." 378 F.3d at 340. In short, a petitioner's own insistence on his innocence should not sway the habeas court. As the Eighth Circuit Court of Appeals has noted: "Were protestation of innocence the only prerequisite to application of this exception, we fear that actual innocence would become a gateway forever open to habeas petitioners' defaulted claims." Wyldes v. Hundley, 69 F.3d 247, 254 (8th Cir.1995), cert. denied, 517 U.S. 1172, 116 S.Ct. 1578, 134 L.Ed.2d 676 (1996).
The Eleventh Circuit Court of Appeals has found that recantations of trial testimony, attacks on the credibility of witnesses, or evidence that merely adds support to a defense or alibi presented at trial generally do not meet the high standard required for a showing of actual innocence. The appellate court recently examined the requirement of "trustworthy, reliable evidence that Schlup envisioned" when evaluating affidavits produced by the petitioner in Melson v. Allen, 548 F.3d 993, 1003 (11th Cir.2008). Melson offered the court two statements by a co-defendant who swore that Melson was not his accomplice; a recantation from a witness who had testified at trial that Melson asked her to provide a false alibi, and other affidavits implicating another man as the accomplice. Such were deemed insufficient to satisfy Schlup. Melson, 548 F.3d at 1003-04. The court further noted that "because Melson failed to make a threshold showing of actual innocence, the district court properly denied his motions for discovery and an evidentiary hearing." 548 F.3d at 1004.
Similarly, in Ray v. Mitchem, 272 Fed. Appx. 807 (11th Cir.2008), the court found that "an affidavit from a man claiming responsibility for the [crime], an affidavit from a woman claiming the victim told her that she had `made up' the fact that Ray had beaten her, and a letter purportedly from the victim" were insufficient to make a threshold showing of actual innocence. 272 Fed.Appx. at 811. Moreover, where a petitioner fails to make his threshold showing of actual innocence, the court need not conduct an evidentiary hearing. 272 Fed. Appx. at 811 n. 3.
Other courts have examined evidence that exonerates the petitioner and points to other suspects and still have found it insufficient to meet the strict Schlup threshold. The Sixth Circuit Court of Appeals reversed a district court's order that
499 F.3d at 573. In McCray, the petitioner provided "no scientific evidence linking anyone else to the crime, no confession by [the alleged shooter], and no evidence casting sufficient doubt on [the eyewitness's] testimony so as to ensure that no reasonable juror would have convicted McCray of the crime." 499 F.3d at 576. The court in McCray ultimately found that:
499 F.3d at 575-76.
The "new evidence" standard was met, and the time-bar lifted, by the Sixth Circuit Court of Appeals in Souter v. Jones, 395 F.3d 577, 600 (6th Cir.2005). There, a petitioner brought forward new evidence that included the recantation from an expert witness about his testimony that the defendant's whiskey bottle had been the murder weapon and other forensic evidence that the bottle did not contain sharp edges, as the prosecution's witnesses had contended at trial. 395 F.3d at 583-84.
Findings of actual innocence — regardless of how leniently the courts define the requirement that evidence be "new" — remain extremely rare. The Fifth Circuit Court of Appeals examined the weight to be given "new evidence" that another man had committed the crime in Dowthitt v. Johnson, 230 F.3d 733, 742 (2000), cert. denied, 532 U.S. 915, 121 S.Ct. 1250, 149 L.Ed.2d 156 (2001). The petitioner came forward with a "signed declaration" from his nephew, who said that another man, Delton, admitted that he killed the victim; an unsigned affidavit from an inmate imprisoned with Delton who said Delton admitted guilt; a signed affidavit from the petitioner's brother who said his son had told him that Delton had admitted guilt; and the petitioner's own affidavit asserting his innocence. The court held an evidentiary hearing, at which Delton testified that he had not confessed to the crime. The district court concluded that Dowthitt failed to raise substantial doubt as to his guilt, and noted that his evidence "consists solely of affidavits, and these affidavits are `particularly suspect ... because they consist of hearsay.'" 230 F.3d at 742, quoting Herrera, 506 U.S. at 417, 113 S.Ct. 853.
Even a victim's statement that the defendant did not commit the crime will not necessarily constitute "new reliable" evidence sufficient to meet the Schlup standard. In Doe v. Menefee, 391 F.3d 147 (2d Cir.2004), the Second Circuit Court of Appeals found that the district court had committed clear error in crediting the testimony of the victim and the defendant, who both came forward in a belated habeas petition and stated that the offense had not occurred. Likewise, new scientific evidence
Affidavits that support a defendant's alibi have been deemed insufficient to raise "sufficient doubt" about guilt to meet the Schlup standard. In Washington v. Delo, 51 F.3d 756 (8th Cir. 1995), cert. denied, 516 U.S. 876, 116 S.Ct. 205, 133 L.Ed.2d 138 (1995), a defendant brought forth two affidavits of witnesses who established that the defendant was with them, and not at the crime scene, when the murder occurred. Without holding a hearing, the court deemed the affidavits unreliable and stated: "At best, these affidavits serve only to narrow the time frame in which Washington could have committed the crime. At worst, they can be considered potentially biased statements made by a friend and a relative about events that are now over twelve years old." Washington, 51 F.3d at 761.
While the district court may hold an evidentiary hearing to examine the new evidence presented by a habeas petitioner asserting an actual innocence claim, such hearings are not necessary where the affidavits come long after the trial and are of "questionable credibility." See, e.g., Adams v. Harrison, 266 Fed.Appx. 560, 562 (9th Cir.2008); c.f. Wilkerson v. Cain, 233 F.3d 886, 893 (5th Cir.2000) (Garza, J., concurring)(After assuming that the affidavits made a showing of actual innocence, the court addressed petitioner's constitutional claims; however, a concurring opinion noted that such examination was premature and that the "district court must hold an evidentiary hearing to assess the newly introduced affidavits because there are reasons to doubt their reliability."). To warrant an evidentiary hearing, the petitioner first must demonstrate that an evidentiary hearing would "produce evidence more reliable or more probative than the [affidavits] that were before the district court." Adams, 266 Fed.Appx. at 562, quoting Griffin v. Johnson, 350 F.3d 956, 966 (9th Cir.2003). Speculation as to what evidence might arise is insufficient to warrant holding a hearing or granting a request for discovery. O'Boyle v. Ortiz, 242 Fed.Appx. 529, 531 (10th Cir.2007). In O'Boyle, the appellate court affirmed the district court's determination, reached without a hearing and after denying a motion for discovery, that a death penalty petitioner had failed to present the requisite "new, reliable evidence." The petitioner had asserted that his fingerprints were not found on the weapon, and that ballistic tests, gunshot residue tests, and trace metal tests were not performed on his hands or the hands of the prosecution's witness. The court stated:
242 Fed.Appx. at 531.
Most of the cases examining whether a habeas petitioner has entered the gateway provided by Schlup involve questions of whether the defendant committed the crime. In the context of the death penalty, however, a petitioner also may prove actual innocence of the sentence itself. Such an inquiry focuses on whether the defendant is eligible, under the applicable state or federal law, for the death penalty. Sawyer v. Whitley, 505 U.S. 333, 345-46, 112 S.Ct. 2514, 2523, 120 L.Ed.2d 269 (1992). In Sawyer, the Supreme Court adopted the reasoning of the Eleventh Circuit Court of Appeals in holding that the actual-innocence inquiry must "focus on those elements that render a defendant eligible for the death penalty, and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error." 505 U.S. at 347, 112 S.Ct. 2514, citing Johnson v. Singletary, 938 F.2d 1166 (11th Cir. 1991) (en banc), cert. denied, 506 U.S. 930, 113 S.Ct. 361, 121 L.Ed.2d 274 (1992). A finding that a defendant is actually innocent of the death penalty, then, requires a finding that the defendant was not legally eligible to have the death penalty imposed upon him and not that he has additional mitigating evidence that might have persuaded a jury to reach a different decision. 505 U.S. at 347, 112 S.Ct. 2514. The Eleventh Circuit Court of Appeals has stated:
The cases illustrative of the strict Schlup standard compel the conclusion in this case that Kuenzel is entitled to have his time-barred claims considered only if he has come forward with new, reliable evidence that would persuade a reasonable juror that he was not guilty of the crime beyond a reasonable doubt, or if he has shown by clear and convincing evidence that no reasonable juror would have found him eligible for the death penalty. The evidence Kuenzel presents must be evaluated as to its reliability, taking into account such matters as when it was uncovered, any motive or bias on the part of any affiant, whether the evidence contains hearsay or other indicia of unreliability, and whether the evidence supports a finding of factual innocence, as opposed to a mere attack on the sufficiency of the evidence offered against him at trial. Discovery relating to new evidence is appropriate only if the petitioner has met his threshold burden, and not merely because he speculates that discovery might uncover additional evidence in his favor.
The evidence offered by petitioner in support of his claim of actual innocence of the crime consists of the following:
1. A memorandum apparently prepared by the forensic firearms expert who testified at trial, relating that evidence from the crime scene was consistent with a finding that the murder was committed with use of a 16-gauge shotgun which fired No. 1 buckshot.
2. The 1999 affidavit of Carolyn Lewis-Gibbons. (Ex. 2, Doc. #45). Gibbons states that her husband told her that Harvey Venn borrowed her husband's shotgun about two weeks before the murder. She did not see Venn borrow the gun, and does not know when the gun was returned to her husband. She "believes" that the police interviewed her husband, and that he showed them the shotgun borrowed by Venn. Her husband died in 1991. In 1998, she provided the gun that she claims was her husband's to investigators hired by the petitioner's attorney.
3. The 2002 affidavit of Carl Majesky, a self-described firearms expert.
4. The 2002 declaration of Luther Brannon, a private investigator. (Ex. 4 to Doc. # 45). Brannon states that he visited the crime scene more than 13 years after the crime was committed for the purpose of evaluating the credibility of witness April Harris, who testified at trial that she saw Kuenzel inside the convenience store the night of the murder. He says that the store is twice as far from the street as the witness had said it was, and that it was "physically impossible" for the witness to have identified Kuenzel.
5. The 2002 declaration of Everson Thompson, a private investigator. (Ex. 5 to Doc. # 45). He states that he interviewed Crystal Epperson Ward in 1999, the driver of the vehicle in which Harris was riding when she saw Kuenzel inside the store. He states that he contacted Ward 12 years after the murder and asked her to drive by the crime scene in a manner similar to the way she had driven past on the night of the crime. He states that she told him that "there is no way in hell that April could have seen Harvey and Billy inside the store that night," and that she believes Harris was lying. Attached to his declaration is a document he identifies as a transcript of the taped interview he conducted with Ward in 1999, although the tape has been lost and investigators have been unable to locate Ward since 1999.
6. The 1997 declaration of Crystal Anne Floyd, the then-13-year-old girlfriend of Venn at the time of the murders. (Ex. 6 to Doc. # 45). She states that she told police shortly after the murder that Venn visited her at her parents' home for about 10 minutes at about 10:00 p.m. on the night of the murder, that he was alone, was "high on drugs and/or alcohol," and was "acting nervous and paranoid." She further confirms that Venn had visited her earlier in the day, and that Kuenzel had been with Venn on that occasion, when both had been high on drugs or alcohol.
7. The unsigned declaration of petitioner, who did not testify at the guilt phase of his trial on "advice" of counsel. (Ex. 8 to Doc. # 45). He further asserts that he had returned the shotgun identified as the murder weapon to his stepfather
8. The declaration of Glenda Kuenzel, petitioner's half-sister. (Ex. 11 to Doc.
9. The declaration of Kenneth Kuenzel, petitioner's half-brother. (Ex. 12 to Doc. # 45). He states that, sometime over the weekend before the murder, he saw his father's shotgun in the kitchen of the father's home. He further disputes trial evidence that demonstrated that he and his father left the hospital around 1 p.m. on the afternoon of the murder, asserting that it was later in the day, and that he heard his father's truck start around 10:00 p.m. the night of the murder.
10. The declaration of William Willingham, Kuenzel's trial counsel. (Ex. 14 to Doc. # 45). He states that he was not experienced in capital cases, did not "adequately" prepare for the guilt phase of trial, and prepared "hardly at all" for the sentencing phase. He further states that he did not believe the evidence against his client was strong and was "lulled into complacency."
Before addressing whether the evidence presented is new and reliable, the court makes a preliminary assessment that some of the evidence must simply be disregarded as irrelevant because, even if new and reliable, it does not address the core issue of actual innocence. Certainly, the affidavit of trial counsel that he did not prepare adequately and did not believe the evidence against his client was strong has no bearing on whether the petitioner committed the crime. Accordingly, the Willingham declaration merits no consideration in determining the petitioner's showing of factual innocence of the murder of Linda Offord.
Considering in turn the other evidence presented in relation to guilt, the court finds that the Gibbons declaration is little more than a hearsay account of what Gibbons was told by her husband. Mindful, however, that inadmissible evidence may be considered, the court looks to the substance of her testimony. Assuming, without deciding, that the substance of what Gibbons testified her husband told her more than 20 years ago is true, it provides nothing more than that Venn had a shotgun in his possession around the time of the murder. Venn admitted at trial that the night of the murder, he had a shotgun with him in the car when he and Kuenzel were riding. Assuming, again without deciding, that the gun Gibbons showed petitioner's counsel some 12 years after the murder was the same gun lent to Venn in 1987, petitioner has shown only that Venn lied or was mistaken about the gauge of the shotgun he testified about at trial. While this might impeach some of Venn's credibility, it does not refute his basic story. The new evidence does not refute Venn's testimony, which the jury clearly believed, that Kuenzel took one of the two shotguns out of the car, went into the convenience store to rob it, then shot and killed Linda Offord.
Petitioner argues that this evidence, when combined with the declaration of Majesky, demonstrates that the Venn gun was probably the murder weapon. Assuming without deciding that the firearms "expert" proffered by the petitioner is qualified to testify as an expert, the new evidence by Majesky does no more than make it possible that the Venn shotgun was the murder weapon, and that the trajectory of the pellets and the amount of pressure required to pull the trigger of the Venn gun make it possible that the shooting was unintentional. Even if this court were to find that such evidence is both new and reliable, it cannot find that it is of sufficient weight to meet the Schlup standard. Venn testified that there were three weapons in the car the night of the murder: two shotguns and a pistol. He testified that one shotgun was a 12-gauge he had borrowed from Gibbons, one shotgun
The subtle implication in much of this evidence is that Venn was the shooter, not Kuenzel. The possibility that Venn also borrowed a 16-gauge shotgun falls far short of proving that he and not Kuenzel was the shooter. The forensic evidence at the crime scene pointed to the use of a 16-gauge shotgun, not any particular 16-gauge shotgun.
There is no reason to believe that, if faced with testimony that the shotgun Venn borrowed had been a 16-gauge instead of a 12-gauge, the jury would have found the substance of his testimony to be incredible. Finally, any expert testimony as to whether the gun could have been fired unintentionally would not likely have changed the outcome of the trial.
The testimony of Luther Brannon and Crystal Ward, who testified about the visibility of the inside of the convenience store, even if admissible, does nothing more than impeach the credibility of April Harris. Brannon testifies about the conditions of visibility on a night 14 years after the murder, with no predicate as to whether the location of the lanes of traffic, the lighting, the windows, or the store itself (which is no longer the same business) have remained the same for 14 years. Ward's testimony
There is at least some question as to how reliable Ward's testimony could be, coming about 14 years after the fact. The jury had Venn's unequivocal testimony that it was Kuenzel who went into the store shortly after 11:00 p.m. with a shotgun and murdered the victim. Even though petitioner argues that Ward's testimony would have made Harris's testimony impossible to believe, and would have left Venn's testimony uncorroborated, this argument ignores the other evidence of Kuenzel's involvement: the shotgun shell found in his rubbish, undisputed testimony that he and Venn were together that afternoon and earlier in the evening, and evidence that Venn was with another man at the convenience store shortly before the murder.
The petitioner next offers the testimony of Crystal Floyd. Her sworn affidavit purports to demonstrate that Kuenzel was not with Venn at 10:00 p.m. on the night of the murder. While this testimony could support petitioner's alibi that he was at home after 8:00 p.m. that night, and that the police knew of Floyd's testimony and did not disclose it to petitioner in violation of Brady, it falls far short of demonstrating factual innocence. Floyd's testimony is contradicted by Venn, who testified that he visited Floyd early in the evening, but was riding around in the car with Kuenzel at about 10:00 p.m., and was at the convenience store near that time. Floyd's affidavit also is directly contradicted by the testimony of James Clement, who testified that he saw Venn at the convenience store in Venn's car with another man he could not identify at about 10:00. Clement had no connection to Venn or Kuenzel, and the time at which he saw them is corroborated by the fact that he was officiating at a basketball game that did not end until 9:45 or 9:50 p.m. and he went to the convenience store after the game. Furthermore, Clement testified that Venn remained at the store until after 10:00, and that fact is corroborated by the testimony of Dale Templin, who arrived at the store around
Given all of the evidence that Venn was at the convenience store from around 10:00 p.m. until after 10:30 p.m., with another male, the court cannot find that Crystal Floyd's testimony that Venn was alone at her house for about 10 minutes at around 10:00 p.m. would have been credible to a reasonable juror. Assuming, without deciding, that Floyd's testimony could be deemed "new" evidence, it cannot be considered reliable for purposes of an actual innocence claim.
Petitioner next submits, as evidence that he is actually innocent of the crime, his own declaration. This testimony simply provides his account of his whereabouts on the night of the murder. Petitioner concedes that he could have testified at the guilt phase of his trial, but took the advice of counsel and declined to do so. Clearly, petitioner's own account of what happened the night of the crime, or during the trial, cannot be deemed "new evidence" because petitioner knew at trial where he was the night of the crime and chose not to take the stand and offer that evidence. Any evidence that he was manacled during the trial has no bearing whatsoever on the fact of his guilt or innocence. More importantly, the evidence of petitioner's alibi — that he was alone at home asleep on the sofa — was put before the jury through the testimony of Glenn Kuenzel,
Glenn Kuenzel testified that he went to his son's house about 10:00 p.m. on the night of the murder for the purpose of repairing a broken toilet. He testified that he looked through a window and saw petitioner asleep on the sofa, and that he then left. Apparently, the jury found this testimony unreliable. Glenn Kuenzel had testified that he took his other son, Kenneth, to the emergency room earlier in the evening, and that the emergency was the reason that he made such a late visit to the defendant's house. That testimony was
Kuenzel also relies upon the declarations of his half-sister and half-brother to support his claim that, before the crime, he returned the 16-gauge shotgun that was entered into evidence at trial as the murder weapon. They also state that they could have testified that Glenn Kuenzel left the house sometime on the evening of the crime, bolstering his claim that he went to Kuenzel's house at 10:15.
In sum, all of the evidence Kuenzel offers now to support his allegation of actual
Petitioner has failed to demonstrate diligence in bringing forward his evidence, as required by Lucas, 132 F.3d at 1075 n. 3. He has failed to show that most of the evidence is anything more than hearsay or attacks on credibility of witnesses, which is insufficient to support a showing of actual innocence. See Dowthitt, 230 F.3d at 742. Finally, petitioner's evidence, even assuming that it can been considered both new and reliable, is nothing more than testimony that may have swayed jurors in his favor or may have provided some doubt. The question is not whether petitioner was prejudiced at his trial because the jurors were unaware of the new evidence, but whether all the evidence, considered together, proves that Kuenzel is actually innocent of the murder of Linda Offord, so that no reasonable juror would vote to convict him. See Goldblum v. Klem, 510 F.3d 204, 231 (3d Cir.2007). This court's own trepidation regarding a jury's finding does not mean the petitioner has made a showing of actual innocence. In this case, Kuenzel's evidence does not persuade the court that no reasonable juror could have found the petitioner guilty beyond a reasonable doubt.
As to actual innocence of the death penalty, Kuenzel offers mitigation evidence that was not presented at his trial. Evidence offered in the instant habeas proceeding includes:
1. The affidavit of Barbara Kuenzel, petitioner's mother (Ex. 10 to Doc. #45), who testified about her own upbringing in a poor family, and her difficulty in relationships that include violence. She states that she does not know which of many men she was with was Kuenzel's biological father. She also states that Kuenzel witnessed domestic abuse she suffered at the hands of Glenn Kuenzel, and episodes when she and Glenn drank heavily. She further states that her son moved around a lot as a child, was beaten regularly by a school teacher at one of the many schools he attended, and witnessed Glenn bringing home a succession of women as sex partners. She further described Kuenzel as a good brother to his half-siblings, and a young man who developed a problem with drugs and alcohol.
2. The sworn affidavit of Glenda Kuenzel Bean, Kuenzel's half-sister. (Ex. 11 to Doc. # 45). She states that Kuenzel was a caring and attentive brother and son, and that he was beaten by his stepfather, Glenn Kuenzel.
3. The declaration of Kenneth Kuenzel, petitioner's step-brother (Ex. 12 to Doc. # 45), who states that Kuenzel "really
4. The declaration of Mary C. Goody, a self-declared "mitigation specialist"
5. Petitioner's own testimony (Ex. 8 to Doc. # 45).
Petitioner first offers the affidavit of his mother, Barbara Kuenzel. While the affidavit of Barbara Kuenzel, on its face, looks as if it may have been useful as mitigation testimony in the penalty phase of the trial, a review of the transcript indicates that she testified at the penalty phase of the trial. She testified at trial that her son was moved around a lot as a child, that he did not have a father around for much of his youth, and that he was a nonviolent person. She did not testify that they had lived in poverty; rather she testified that her son "pretty much" had everything he could want. She also did not testify about any abuse. Her credibility and veracity were severely impaired on cross-examination, however, when the prosecutor brought out evidence that she had "guaranteed" payment to a man if he would testify that he was the one with Venn at the convenience store on the night of the murder. During this cross-examination, she became belligerent and defiant when faced with the prosecutor's tape recording of a phone call in which she offered payment to the potential witness, even though she never denied making the offer. A review of the transcript convinces the court that Barbara Kuenzel's additional testimony could have done little if anything to provide mitigating evidence for her son because she was wholly incredible and had, in fact, demonstrated a willingness to encourage a witness to commit perjury in order to help her son.
The other mitigating evidence submitted by petitioner is testimony from petitioner's two half-siblings, who say that he was a loving and caring brother, who practically raised them. They did not testify at the penalty phase, but the evidence they offer cannot be deemed "new." There is no assertion that they could not or would not have provided that testimony if called during the mitigation presentation. Moreover, even if such evidence had been before the jury, it is not worthy of such weight that it convinces this court that the outcome of the trial would have been different.
The only other evidence offered by petitioner as new, reliable evidence that he is not guilty of the death penalty is the testimony of a "mitigation expert" who states that trial counsel failed to fully investigate all of the "relatives, friends, fellow workers and supervisors who would have testified" on Kuenzel's behalf. While counsel admits that he failed to conduct a thorough preparation for the penalty phase of trial, evidence that more mitigating evidence could have been presented does not provide a basis for a finding that the petitioner is actually innocent of the death penalty. While Goody points to flaws in the investigation, she provides no real evidence that would have been presented. For example, Goody hints that the petitioner may have suffered from some medical condition for which he required treatment; even so, she does not provide any evidence that Kuenzel, in fact, had any medical problems that would have served as a mitigating circumstance. She further mentions that she would have had Kuenzel tested for "organic brain damage, learning disabilities, depression, anxiety or other impairments," but she does not allege, and the facts do
Taking together all of the petitioner's evidence relating to his alleged actual innocence of the death penalty, the court finds that it amounts to nothing more than "additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error." Sawyer, 505 U.S. at 347, 112 S.Ct. 2514. These facts, even if new and credible, are completely insufficient to demonstrate that the petitioner is actually innocent of the death penalty. Petitioner does not assert that the aggravating factor — that the murder was committed during an attempted robbery — was not proven at trial.
Accordingly, for the reasons stated above, the court finds that the petition for writ of habeas corpus under 28 U.S.C. § 2254 is due to be dismissed with prejudice as time-barred by 28 U.S.C. § 2244(d). Under the Supreme Court's precedent in Pace and Allen v. Siebert, 552 U.S. 3, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007), intervening controlling authority regarding the very issue presented here, the meaning of the term "properly filed" in § 2244(d)(2), the untimely state petition filed by Kuenzel was not a "properly filed application" capable of tolling the limitation period. Petitioner, represented by counsel, waited until February 2000 to file the instant habeas petition, more than three years after the limitation period was enacted in 1996. The Rule 32 petition pending at the time the AEDPA became law did not act to toll the running of the limitation period under § 2244(d)(2), because it was found to be itself untimely filed under Alabama state law and procedure. Pace compels the conclusion that the Rule 32 petition, being untimely filed, was not a "properly filed application" within the meaning of § 2244(d)(2) such that it could toll the running of the federal limitation period.
Petitioner has attempted to demonstrate that he should be exempted from the time-bar because he is actually innocent of the crime, or because he is actually innocent of the death penalty. The court must conclude that the evidence he has offered in support of his claim that he is entitled to
By separate order, the court will GRANT the respondents' motion to dismiss the instant petition with prejudice.
In accordance with the Memorandum Opinion entered herewith, the court finds that the petition for writ of habeas corpus filed in this action is time barred from consideration by 28 U.S.C. § 2244(d) and that petitioner cannot make an adequate showing that he is actually innocent of the crime for which he is convicted in order to avoid application of the § 2244(d) time limitation. Consequently, the respondents' motion to dismiss this action is due to be and hereby is GRANTED, and the petition is DISMISSED WITH PREJUDICE as time barred.
This is an action by an Alabama state prisoner pursuant to 28 U.S.C. § 2254, challenging the constitutional validity of the conviction he received in the Talladega County Circuit Court on March 19, 1987, for capital murder, for which he was sentenced to death. The petitioner, Daniel Siebert,
On September 14, 2001, the petitioner, represented by counsel, filed the instant habeas corpus petition. Petitioner filed an amended petition on October 26, 2001. On February 5, 2002, the respondents filed an answer and a motion to dismiss supported by a memorandum of law, contending that the petition is time-barred by operation of 28 U.S.C. § 2244(d)(1).
Following the announcement of the Supreme Court's decision in Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), on April 27, 2005, the respondents filed a renewed motion to dismiss on May 11, 2005, contending that Pace severely undermined the rationale in Siebert, requiring this court to dismiss on time-bar grounds, notwithstanding the mandate from the Court of Appeals. Petitioner filed a response on June 13, 2005, and respondents filed a reply on July 11, 2005. By order dated August 31, 2005, the court noted that the Eleventh Circuit Court of Appeals had mentioned the instant case in its unpublished opinion in Colbert v. Head, 146 Fed.Appx. 340, 344-345 and n. 4 (11th Cir.2005), and the order directed the parties to file any additional authority or argument related to the application of Pace to the instant motion in light of Colbert. On September 12, 2005, petitioner and respondents filed memoranda in response to the order.
On March 19, 1987, the petitioner was convicted after a jury trial for the capital murder of Linda Ann Jarman
On or about August 25, 1992,
The first question the court must address is whether the issue of timeliness of the filing of the instant habeas petition may be revisited in light of Pace, or whether the law-of-the-case doctrine requires the court to deem the petition timely filed and address it on the merits. While it is well settled under the law-of-the-case doctrine that the determination of "an issue decided at one stage of a case is binding at later stages of the same case," Schiavo v. Schiavo, 403 F.3d 1289, 1291 (11th Cir. 2005), there are established exceptions to that general rule. The doctrine, designed to promote the efficiency of the judicial process and to provide certainty and finality to matters litigated, also must provide for just and correct adjudications of fact and law. See, e.g., Klay v. All Defendants, 389 F.3d 1191, 1197 (11th Cir.2004), citing Burger King Corp. v. Pilgrim's Pride Corp., 15 F.3d 166, 169 (11th Cir.1994). Thus, an exception exists when "controlling authority has been rendered that is contrary to the previous decision." Schiavo, 403 F.3d at 1292. As discussed below, Pace constitutes controlling authority that is contrary to the previous decision of the Eleventh Circuit Court of Appeals in Siebert. Accordingly, the law-of-the-case doctrine does not prevent a reexamination of the issue in light of the new authority.
The respondents assert that the proclamation made by the Supreme Court in Pace constitutes a change in law on a controlling issue; accordingly, the court must examine whether the intervening decision affects the mandate to treat Siebert's petition as timely filed. Petitioner argues that Pace is inapplicable and that his claims must be reviewed on the merits.
There is no dispute among the parties, or in the mandate issued by the Eleventh Circuit Court of Appeals, that the instant petition is untimely under a strict reading of Section 2244(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which establishes a one-year deadline for the filing of habeas actions under § 2254 challenging the validity of state criminal convictions. Unless the Rule 32 petition filed in state court counts to toll the running of the one-year limitation, almost eleven years of untolled time
Subsection 2244(d)(2) provides for the tolling of the limitation period during those times the petitioner has pending a "properly filed" post-conviction petition in state court. If, as the appellate court determined in its 2003 mandate, petitioner's Rule 32 petition was "properly filed," the habeas petition is timely because the time from the enactment of the AEDPA until September 15, 2000, was tolled by the pendency of the Rule 32 petition, and petitioner filed the instant petition within one year after that date. On the other hand, if the untimeliness of the Rule 32 petition prevents it from being characterized as "properly filed" under the definition set forth in Pace, there was no tolling of the federal habeas limitation, and the petitioner's claims are time-barred.
In the nine years since the enactment of the AEDPA, the issue of whether a post-conviction petition is "properly filed" has been examined in different contexts, as was discussed in this court's earlier memorandum opinion dismissing the petition. As of the date the mandate was issued in this case, the controlling law was set forth in Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000), in which the Court affirmed the Second Circuit Court of Appeals and determined that a state post-conviction petition that contained claims that were procedurally barred was nonetheless "properly filed." It is important to note that Artuz did not involve the assertion that the state collateral petition was procedurally defaulted because it was not timely filed; the alleged procedural defaults were of a different nature. Nevertheless, in rejecting the argument, the Supreme Court noted that conditions for proper filing include "the form of document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Id. at 8, 121 S.Ct. at 364 [Italics added].
On April 27, 2005, the Supreme Court had the opportunity to expound on Artuz in the specific context of time limits for filing. In Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), the Court held that a post-conviction petition rejected by the state courts as untimely filed under state law is not considered "properly filed" within the meaning of the AEDPA's tolling provision. The court stated simply: "[W]e hold that time limits, no matter their form, are `filing' conditions." Id. at 417, 125 S.Ct. at 1814 [italics added]; see also Anderson v. Attorney General of Florida, 135 Fed.Appx. 244, 246 (11th Cir.2005), cert. denied, 546 U.S. 1078, 126 S.Ct. 835, 163 L.Ed.2d 711 (2005).
In Pace, the Court decided whether the untimely filing of a post-conviction petition pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA") could serve to toll the AEDPA one-year limitation. The governing Pennsylvania statute provided that post-conviction petitions must be filed within one year from the date the conviction becomes final, but further provided three exceptions to the timebar when: (1) governmental interference prevents filing; (2) new constitutional rules are made retroactive;
When Pace reached the Supreme Court, the Court reviewed the question that was raised but not decided in Artuz: "whether the existence of certain exceptions to a timely filing requirement can prevent a late application from being considered improperly filed." Pace, 125 S.Ct. at 1811. The Court determined that, regardless of whether the state's statutory scheme provided exceptions to the post-conviction petition deadline, there exist "no grounds for treating the two differently." Id. The court went on to explain:
Id. at 1811-12. The Court further explained that, when the state courts hold that a post-conviction petition is untimely under state law, "`that is the end of the matter' for purposes of § 2244(d)(2)." Id. at 1812.
The Court's discussion in Pace of its earlier decision in Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002), is illuminating. The Court wrote:
Pace v. DiGuglielmo, 544 U.S. 408, 413-14, 125 S.Ct. 1807, 1812, 161 L.Ed.2d 669 (2005). This reference to Saffold makes clear that, regardless of whether the state courts alternatively address the merits of an untimely filed petition, the time limit itself is a "condition to filing," which, if not met, prevents the state petition from being timely filed for purposes of tolling the federal habeas limitation at § 2244(d). The definition of "properly filed" under Pace does not include a time-barred state post-conviction petition, even if it ultimately is reviewed on the merits in the state court, so long as the state court has deemed it untimely. Pace, 125 S.Ct. at 1815-16 (J. Stevens, dissenting).
In this case, petitioner filed his Rule 32 post-conviction motion in the state trial court on August 25, 1992. Upon motion of the respondents, the trial court dismissed the petition as untimely filed pursuant to Rule 32.2(c), noting that the certificate of judgment following petitioner's direct appeal was issued by the Alabama Court of Criminal Appeals on May 22, 1990, making any Rule 32 petition filed later than May 21, 1992, untimely.
In his response to the current motion to dismiss, Siebert contends that Pace is inapposite because the Pennsylvania statute
Hurth, 400 F.3d 857, 862 (11th Cir.2005).
The court believes that Pace effectively overruled Siebert, mandating, instead, that state time limits for filing post-conviction petitions are "conditions to filing," and not merely "conditions to obtaining relief," and that, regardless of whether the state court also addresses the merits of an untimely filed state petition, once the state court determines that the state petition was untimely filed, that "ends the matter" as far as considering the petition "properly filed" for tolling under § 2244(d). The essential rationale of Siebert — that, because the Alabama state courts occasionally addressed the merits of time-barred petitions before 2000, the time limitation of Rule 32.2(c) was a "condition to obtaining relief," rather than a "condition to filing," — simply cannot be squared with Pace and its reference to Saffold. The Supreme Court cannot state more clearly than it did in Pace that "time limits, no matter their form, are `filing' conditions." Pace, 125 S.Ct. at 1814. Siebert's focus on whether the time limitation in Rule 32.2(c) was "jurisdictional" is meaningful only in determining
Id. at 417, 125 S.Ct. at 1814. At footnote seven, the Court then gives examples of the types of state procedural rules that constitute "conditions to filing," explicitly identifying Alabama's Rule 32.2(c) time limit as one. Footnote seven in Pace reads:
Id. at 417 n. 7, 125 S.Ct. at 1814 n. 7. Plainly, the Supreme Court considered Alabama's Rule 32.2(c) to be the type of rule that is a "condition to filing," violation of which would preclude the petition from being "properly filed" for § 2244(d)(2) purposes.
Because Pace is controlling contrary authority, the mandate issued in Siebert does not preclude the court from again considering the timeliness of the instant habeas petition. Because the Alabama state courts clearly and explicitly found Siebert's 1992 Rule 32 petition to be untimely filed, this court has no option but to conclude that it was not "properly filed" for purposes of tolling the § 2244(d) time limitation. Accordingly, Pace compels the
Finally, the court also believes that the Eleventh Circuit's unpublished opinion in Colbert v. Head, 146 Fed.Appx. 340 (11th Cir.2005), does not require a different result. Colbert is the only case involving this question decided by the Eleventh Circuit Court of Appeals after the Supreme Court announced Pace. But, for the reasons explained below, Colbert cannot be read as a binding statement of authority, at least with respect to application of Pace to Alabama's Rule 32.2(c) time limitation.
After Pace, it appeared clear that the untimely state petition filed by Siebert could not be used to toll the § 2244(d) limitation. Even so, in Colbert v. Head, the Court of Appeals quoted its earlier opinion in Siebert for the proposition that the state's "consistent application" of its own procedural rules must be present before the rules are due deference. Colbert, 146 Fed.Appx. at 344. The court wrote in Colbert the following about Siebert:
Id. at 344. At first blush, this reference to Siebert I might indicate that the Eleventh Circuit Court of Appeals does not interpret Pace as having any application here. Upon closer examination, however, this court is convinced that the reference to Siebert I does not constitute binding authority regarding the issue of timeliness in the instant matter because Colbert is an unpublished opinion with no precedential force and, even within the context of Colbert, it is dicta.
First, Colbert is an unpublished opinion and thus provides no binding precedent. See Eleventh Circuit Court of Appeals Rule 36-2, which states in part, "Unpublished opinions are not considered binding precedent." Second, the reference to Siebert in Colbert is dicta. Colbert dealt with the question whether, under Georgia law, the filing of a motion to withdraw a guilty plea after the end of the term of court in which the guilty plea was entered was "properly filed" for purposes of tolling § 2244(d). The Court of Appeals concluded that, because the state court had no jurisdiction to act on such a motion, the motion was not "properly filed." This says nothing about the effect of the time limitations for filing Rule 32 petitions under Alabama law. A determination that Alabama's Rule 32.2(c) limitation was not jurisdictional until 2000 was not necessary to a resolution of the Georgia procedural question. Thus, even though Siebert is
Accordingly, this court must be guided by the clear holding in Pace. Because the United States Supreme Court has clearly stated that a state court's determination that a petition for post conviction relief is untimely constitutes the "end of the matter," petitioner's argument that he is entitled to statutory tolling is unavailing. Pace constitutes an intervening controlling authority regarding the very issue presented here — the meaning of "properly filed" in § 2244(d)(2). Under Pace, the untimely state petition filed by Siebert was not a "properly filed application" capable of tolling the limitation. Petitioner's habeas petition therefore is time-barred pursuant to § 2244(d)(1), and the motion to dismiss is due to be granted.
The court has not undertaken the task at hand lightly or with disrespect toward the mandate of the Court of Appeals. The court is well aware of its obligation to follow the law, including the law of the case when it applies. The court is mindful of the high stakes involved for the petitioner, who is facing a sentence of death and whose post-conviction claims have gone unheard so far. Nevertheless, the court is sworn to uphold the law — all of the law — even when doing so may seem unfair and harsh. The only tools the court may work with are those given it by Congress, the Supreme Court, and the Court of Appeals, and the court is obligated to harmonize those tools in arriving at an outcome dictated by the law. Using those tools, the court believes that Pace requires a second look at Siebert.
Accordingly, for the reasons stated above, the court finds that the petition for writ of habeas corpus under 28 U.S.C. § 2254 is due to be dismissed with prejudice as time-barred by 28 U.S.C. § 2244(d). Petitioner, with the assistance of counsel, waited until September 2001 to file the instant habeas petition, more than five years after the limitation period was enacted in 1996. The Rule 32 petition pending at the time the AEDPA became law did not act to toll the running of the limitation period under § 2244(d)(2), because it was found to be itself untimely filed under Alabama state law and procedure. Being untimely itself, the Rule 32 petition was not a "properly filed application" within the meaning of § 2244(d)(2), such that it could toll the running of the federal limitation period. See Pace, 125 S.Ct. at 1811-12.
By separate order, the court will GRANT the respondents' motion to dismiss the instant petition with prejudice.
