Opinion
CIV-22-406-PRW
10-21-2022
ANTONIO GARCIA ELLIS, Petitioner, v. WILLIAM “CHRIS” RANKINS, Respondent.
REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner, filed this action challenging his state criminal conviction for Murder in the First Degree in Oklahoma County District Court, Case No. CF-1999-218. Before the Court is Respondent's Motion to Dismiss (Doc. No. 13), to which Petitioner has filed a Response. Doc. No. 18. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Motion to Dismiss be denied.
I. Background
On July 26, 2001, Petitioner was convicted, following a jury trial, of Murder in the First Degree, and sentenced to life imprisonment without the possibility of parole. Doc. No. 1 at 7; see also Oklahoma State Courts Network, State v. Ellis, Oklahoma County District Court, Case No. CF-1999-218. Petitioner filed an appeal with the Oklahoma Court of Criminal Appeals (“OCCA”), which affirmed Petitioner's conviction and sentence on September 5, 2003. Ellis v. State, 76 P.3d 1131 (Okla. Crim. App. 2003).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF- 1999-218
On March 27, 2017, Petitioner filed an application for post-conviction relief challenging the constitutionality of his sentence because he was a juvenile at the time the crime was committed. Doc. No. 14-3. On March 20, 2018, the state court granted Petitioner's application and modified Plaintiff's sentence to life imprisonment. Doc. No. 14-4.
On December 26, 2018, Petitioner filed a second application for postconviction relief. Doc. No. 14-5. Therein, Petitioner argued the previous sentence modification was not an adequate remedy. Id. The State filed a response to the same on January 25, 2019. Doc. No. 1 at 8; see also Oklahoma State Courts Network, State v. Ellis, Oklahoma County District Court, Case No. CF-1999-218, supra.
On September 19, 2019, while Petitioner's second application remained pending before the state trial court, Michael Lang, the only eyewitness to testify at Petitioner's trial, sent an email to The Innocence Network explaining that he wanted to recant his testimony and that the testimony he offered at trial was the result of coercive tactics on the part of Warr Acres Police Department officers investigating the murder underlying Petitioner's conviction. Doc. No. 1 at 23; Doc. No. 1-3. The Innocence Network forwarded the same to the Oklahoma Innocence Project. Id.
On November 1, 2019, Petitioner's counsel filed Petitioner's motion to hold in abeyance his pending post-conviction application and leave to file an amended post-conviction application. Doc. No. 14-6. On November 8, 2019, the state court entered an agreed order, granting Petitioner's motion. Id.
On July 6, 2020, Petitioner filed an amended second application for postconviction relief, in which, in addition to the previously asserted argument regarding his sentence, he raised five more claims for relief. First, Petitioner argued Mr. Lang's complete recantation of his testimony required vacating Petitioner's conviction. Doc. No. 14-7 at 3-19. Second, Petitioner asserted that Mr. Lang's recantation constituted newly discovered evidence of factual innocence, requiring Petitioner's conviction be vacated. Id. at 19-22. Third, Petitioner contended the procedure used to secure Mr. Lang's initial testimony was coercive, unnecessarily suggestive, and violative of due process. Id. at 22-26. Fourth, Petitioner argued that the use of coercive police questioning resulted in Mr. Lang's false accusation and subsequent trial testimony, violating Petitioner's right to due process and a fair trial. Id. at 2628. Finally, Petitioner asserted that the suppression of information relating to a photograph of Petitioner being shown to Mr. Lang prior to Mr. Lang picking Petitioner out of a lineup also violated Petitioner's rights to due process and a fair trial. Id. at 28-31.
The state court held a hearing on Petitioner's application on February 2, 2021. Doc. No. 14-8 at 2. On May 3, 2021, the state court denied Petitioner's application. Doc. No. 14-8. Petitioner filed an appeal with the OCCA, which affirmed the lower court's decision on March 15, 2022. Doc. No. 14-9.
Petitioner filed the instant action on May 18, 2022. Doc. No. 1. Herein, Petitioner raises essentially the same claims he raised in his amended second application for post-conviction relief, with the exception of the claim regarding the constitutionality of his sentence. Respondent filed a Motion to Dismiss, arguing Petitioner's action is untimely. Doc. No. 13.
II. Applicable Statute of Limitations Period
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one-year limitations period for claims of a habeas petitioner in state custody. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). The one-year limitations period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the
Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1)(A)-(D). Unless a petitioner alleges facts implicating subsection (B), (C), or (D), the limitations period generally begins to run from the date on which the conviction becomes final. Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000).
It is undisputed that under subsection (A), the Petition in this matter is untimely. However, Petitioner asserts that, pursuant to subsection (D), the beginning date of the applicable one-year limitations period should be re-set to September 9, 2019, when in an email to The Innocence Network, Mr. Lang disavowed his trial testimony that he saw Petitioner shoot the victim. Mr. Lang recanted his testimony stating that he did not see who shot the victim. In his subsequent Affidavit, Mr. Lang stated that during his interviews with police, officers coerced and pressured him into stating that he saw Petitioner shoot the victim. Doc. No. 1-4. He also stated that he was shown a photograph of Petitioner prior to identifying him as the shooter. Id. at 4.
Generally, a witness's recantation triggers subsection (D) because knowledge of a witness's willingness to recant is not usually known before the witness does so. See Daniels v. Uchtmann, 421 F.3d 490-92 (7th Cir. 2005) (holding that under § 2244(d)(1)(D), the one-year statute of limitations period begins to run when a witness executes an affidavit recanting his trial testimony because the predicate facts are deemed to arise on that date); Robinson v. Johnson, No. CV 21-9750-DSF (PLA), 2022 WL 2892404, at *6 (C.D. Cal. May 5, 2022) (holding § 2244(d)(1)(D) applied to the petitioner's habeas claims based on a witness's recantation of trial testimony) (citing Shabazz v. Filion, 402 Fed.Appx. 629, 631 (2d Cir. 2010) (holding date of witness's recantation “provides the requisite basis” for habeas claim and “properly controls calculation of the one-year limitations period under § 2244(d)(1)(D)”); Mora v. Almager, CV 08-1147-DMG (SP), 2012 WL 845920, at *4 (C.D. Cal. Jan. 23, 2012) (holding the limitations period began running under § 2244(d)(1)(D) when the petitioner “first learned that [the witness] may have recanted her identification of petitioner ....”)); Bowman v. Dunn, No. 18-00278-JB-B, 2021 WL 1971514, at *6 (S.D. Ala. April 26, 2021) (“Multiple courts have held that a witness's recantation can serve as the factual predicate from which the limitations period begins to run.” (quoting DiCaprio-Cuozzo v. Johnson, 744 F.Supp.2d 548, 557 (E.D. Va. 2010) (collecting cases); citing Cooper v. McDaniel, No. 3:97-cv-0222-JCM-WGC, 2013 WL 1315079, at *8 (D. Nev. Mar. 28, 2013) (“Knowledge of Wells' recantation was not available to petitioner until Wells signed the declaration recanting his trial testimony on July 30, 1997. The factual predicate of the Brady and Napue related claims . . . could not have been discovered by petitioner until July 30, 1997. This triggered a new one-year statute of limitations under § 2244(d)(1).”)).
Respondent argues Mr. Lang's recantation does not trigger § 2244(d)(1)(D) because Petitioner knew or should have known about the facts underlying his grounds for relief at the time of trial. Doc. No. 14 at 16. In asserting this argument, Respondent relies on defense counsel's vigorous cross examination of Mr. Lang during trial, including highlighting the police's threat to charge Mr. Lang with first degree murder and “reminding the jury that Mr. Lang had previously lied about what had happened multiple times.” Id. at 15-16. Essentially, Respondent presents a circular argument that because Mr. Lang now contends his false identification of Petitioner was the result of coercive police tactics and Petitioner was aware at trial that police officers used coercive tactics toward Mr. Lang, then the “factual predicate of Petitioner's claims has been available to him the whole time.” Id. at 16. The flaws in Respondent's logic are highlighted by the case law upon which he relies in his Motion to Dismiss.
Respondent cites to the Tenth Circuit's decision in Craft v. Jones, 435 Fed.Appx. 789 (10thCir. 2011) to support his contention that perceived weaknesses in Mr. Lang's testimony during cross-examination forecloses § 2244(d)(1)(D)'s application to his subsequent recantation. Doc. No. 14 at 16. In Craft, the petitioner had been convicted of assault and battery with a dangerous weapon for stabbing an individual. Craft, 435 Fed.Appx. at 790. Following the expiration of the statute of limitations for habeas relief under § 2244(d)(1)(A), the petitioner obtained an affidavit from an alleged witness, Joshua Grams, to the stabbing who stated that the petitioner acted in self-defense. Id. at 791. Petitioner argued the affidavit constituted new evidence that triggered § 2244(d)(1)(D). The court, however, disagreed, explaining, “Craft was aware that Grams witnessed the stabbing, yet nothing in the record or briefing suggests that Craft exercised ‘due diligence' in attempting to obtain the testimony of Grams prior to [when Grams signed the affidavit in] June 2009, five years after the events in question.” Id.
Unlike Craft, the present case does not involve Petitioner or his counsel failing to contact a potential exculpatory witness. To the contrary, Respondent establishes that Petitioner, through his counsel, subjected Mr. Lang to vigorous crossexamination in an attempt to weaken Mr. Lang's testimony and identification of Petitioner as the shooter. Thus, Craft does not provide support for Respondent's argument herein. See also, cf., Rivera v. Nolan, 538 F.Supp.2d 429, 433 (D. Mass. 2008) (“[U]nlike Wood, in which the petitioner's attorney failed to interview the police officer or call him to testify, the petitioner's attorney here duly cross- examined Pacheco. When asked if he had received any inducements or favors, Pacheco testified that he had not. Without any evidence contradicting Pacheco's testimony, petitioner had no reason to disbelieve him.” (citation omitted)).
Respondent also relies on Taylor v. Martin, 757 F.3d 1122 (10th Cir. 2014) to support an argument that because Petitioner would have known during trial that Mr. Lang's testimony was not accurate, Mr. Lang's subsequent recantation cannot be considered a new factual predicate to support habeas relief. Doc. No. 14 at 16-17. However, Taylor is highly distinguishable from the present case.
In Taylor, the Tenth Circuit was not considering strictly habeas relief but whether the petitioner could meet the requirements for a certificate of appealability. Id. at 1123. Like Petitioner herein, the petitioner in Taylor sought post-conviction and habeas relief based on a witness later admitting that he provided false testimony in the petitioner's trial. Id. However, unlike the present case, the petitioner in Taylor argued that he could not raise the issue until the date that witness completed an affidavit.
Mr. Taylor's assertion that “he was dependant [sic] on Chatham's [sic] decision to waive his Fifth Amendment Rights and prepare an affidavit[]” is without support. See United States v. Wong, 431 U.S. 174, 178 [] (1977) (“[T]he Fifth Amendment privilege does not condone perjury.”); Bellis v. United States, 417 U.S. 85, 90 [] (1974) (“[T]he Fifth Amendment privilege is a purely personal one.”). Mr. Taylor's assertion that “[w]ith no affidavit, no cause would have been available under the state law[]” is unavailing absent a demonstration of what state law requires. The same goes for his assertion that he “could not have complied with the state rules of evidence without” an affidavit;
Mr. Taylor leaves us guessing as to how the evidence rules barred him from pursuing his claim absent sworn testimony from Mr. Cheatham.Id. at 1124 (additional citations omitted).
Here, Petitioner does not insist that his limitations period began on the date Mr. Lang completed an affidavit, October 29, 2019. Instead, he contends his limitations period began on the date he first became aware Mr. Lang wanted to recant his testimony - September 9, 2019, the day Mr. Lang sent an email to The Innocence Network. As such, Taylor does not provide supportive or applicable reasoning to the issues presented herein.
Respondent also cited to Mehdipour v. Whitten, No. CIV-19-206-C, 2019 WL 4858346 (W.D. Okla. July 23, 2019) in support of his position that Mr. Lang's recantation does not constitute a new factual predicate for his claims for habeas relief. Doc. No. 14 at 16. However, in Mehdipour, the petitioner “attack[ed] the prosecutorial misconduct that allegedly produced the false testimony. The Court [] therefore [had to] determine whether Petitioner could have, with due diligence, discovered the prosecutorial coercion before filing his first habeas petition.” Id. at *2. The Mehdipour decision is clearly distinguishable from the present case.
Instead, the current case is more analogous to Robinson, supra. In Robinson, the petitioner asserted that the “start date of the limitations period [to request habeas relief was] . . . the date on which David Martin signed a declaration recanting his identification of petitioner as one of the men he saw on the night of the shooting.” Robinson, 2022 WL 2892404, at *6. The respondent argued that the petitioner was “not entitled to a later start date of the limitations period under § 2244(d)(1)(D) because petitioner was not diligent in his efforts to obtain a recantation from Martin after the trial.” Id. at *7. In this regard, the respondent made a similar argument to those Respondent has raised herein, and the court rejected the same. Id.
[Respondent] argues that Martin's conflicting statements to police, his inconsistent testimony at trial, and his reluctance to be a “snitch” should have put petitioner on notice that Martin would cooperate with the defense in overturning the conviction prior to 2016. This assertion, however, is purely speculative. Respondent offers no evidence that Martin was willing to sign a declaration recanting his 2008 trial testimony before 2016. Nor is a petitioner required to “regularly solicit recantations to demonstrate due diligence under § 2244(d)(1)(D).” Shabazz, 402 Fed.Appx. at 631. Accordingly, the Court finds unpersuasive respondent's argument that petitioner failed to diligently obtain a recantation from Martin.Id. (citation omitted).
The Court finds this reasoning persuasive regarding the issues presented herein. Although Petitioner's counsel was able to elicit certain weaknesses in Mr. Lang's testimony during cross-examination, Mr. Lang maintained to the jury that he witnessed Petitioner shoot the victim. Respondent has not presented any basis for Petitioner to have known that Mr. Lang would be willing to recant his testimony prior to his September 2019 email, nor was Petitioner required to regularly attempt to solicit a recantation from Mr. Lang in order to demonstrate due diligence for purposes of § 2244(d)(1)(D). Id.; see also, cf., DiCaprio-Cuozzo, 744 F.Supp.2d at 557 (“If the petitioner knew or could have discovered that the witness was willing to recant his or her testimony prior to the time the affidavit is executed, the limitations period begins to run on the prior date. However, where, as here, there is no evidence that the petitioner possibly could have discovered the recantation previously, the date of the recantation becomes the date on which the limitations period begins to run.” (citation omitted)).
Mr. Lang's testimony is all the more significant when one considers that, according to the Petition, the State presented no other eyewitness testimony, nor any forensic evidence, placing Petitioner at the scene of the crime. Doc. No. 1 at 10-11.
Based on the record before the Court, Petitioner had no knowledge that Mr. Lang would be willing to recant his testimony prior to September 9, 2019, when Mr. Lang contacted The Innocence Network. Thus, pursuant to 28 U.S.C. § 2244(d)(1)(D), the start date for Petitioner's limitations period in which to file a habeas action is September 9, 2019, the date Mr. Lang contacted The Innocence Network indicating he wanted to recant his trial testimony. Accordingly, absent any applicable tolling period, Petitioner had until September 9, 2020, to file his federal Habeas Petition.
III. Statutory Tolling
As established, Petitioner's statute of limitations began to run on September 9, 2019, the date upon which Mr. Lang notified The Innocence Network that he wanted to recant his trial testimony. 28 U.S.C. § 2244(d)(2) provides, “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending” will generally toll the statute of limitations applicable to filing a habeas petition. (emphasis added); see also Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“[S]tate petitions for post-conviction relief filed within the one year allowed by AEDPA will toll the statute of limitations.”). Petitioner filed his amended second application for post-conviction relief, raising claims based on Mr. Lang's recantation, on July 6, 2020, tolling his statute of limitations. Doc. No. 14-7. Thus, his statute of limitations was tolled from that date until the OCCA affirmed the state court's denial of his application on March 15, 2022. Doc. No. 14-9.
Petitioner's statute of limitations began to run again on March 16, 2022, when Petitioner had 64 days left to timely seek habeas corpus relief, or until May 19, 2022. Petitioner filed this action on May 18, 2022. Doc. No. 1. Thus, Petitioner's action is timely under the AEDPA and Respondent's Motion to Dismiss should be denied. IV. Further Consideration of Petitioner's Grounds for Relief
In his Response to the Motion to Dismiss, Petitioner argues that because Respondent chose to initially only address the timeliness of Petitioner's request for habeas relief, he waived his right to address the merits of the same. Doc. No. 18 at 6. The Court disagrees.
In the Court's Order directing Respondent to respond to the Petition, the Court clearly stated that the Response should address “whether the limitations period for filing the Petition has expired; and, if not,” Respondent should address whether Petitioner exhausted his state and/or administrative remedies, whether an evidentiary hearing is necessary, and analysis of each ground for relief. Doc. No. 5 at 1-2 (emphasis added). Here, Respondent contends the statute of limitations expired prior to Petitioner filing his request for habeas relief. Although the Court disagrees, Respondent followed the Court's directive in first asserting his timeliness argument prior to addressing exhaustion, whether a hearing is necessary, and the merits of Petitioner's requests for relief. In doing so, Respondent did not waive his right to address the merits of Petitioner's claims herein.
RECOMMENDATION
Based on the foregoing findings, it is recommended Respondent's Motion to Dismiss (Doc. No. 13) be DENIED. Additionally, should the Court adopt this Report and Recommendation, Respondent should be directed to respond to the merits of Petitioner's grounds for habeas relief.
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by November 10th , 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation does not dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motions not specifically addressed herein are denied.