Opinion
22-6201
12-27-2022
In re: CARL DEAN WYATT, JR., Movant.
D.C. No. 5:22-CV-00740-R (W.D. Okla.)
Before HARTZ, BRISCOE, and MATHESON, Circuit Judges.
ORDER
Carl Dean Wyatt, Jr., is an Oklahoma prisoner serving a life sentence for a murder committed in 1997. He has filed multiple 28 U.S.C. § 2254 petitions challenging his conviction, and he now moves pro se for authorization to file another. The state of Oklahoma filed a response. We deny Wyatt's motion for the reasons discussed below.
I. BACKGROUND &PROCEDURAL HISTORY
According to the evidence presented at his jury trial, Wyatt and an accomplice, Marcus McClendon, decided to rob Wyatt's acquaintance, Catherine Fortune, in her home. Wyatt and McClendon went to a 7-Eleven and bought items to disguise themselves (bandanas, gloves, and a hat). Then McClendon stood guard at Fortune's front door while Wyatt kicked it down and went inside to carry out the robbery. But Fortune's boyfriend was in the home. Wyatt "struggled with and fatally shot [him]," then fled the scene with McClendon. Resp. to Mot. for Auth., Ex. 1 at 2.
The record does not appear to contain the boyfriend's name.
McClendon agreed to testify against Wyatt in exchange for five years of prison and five years of parole. The jury knew of this plea deal when considering McClendon's testimony. The state presented various other witnesses and exhibits, which we will discuss as they become relevant below. The jury convicted Wyatt and recommended life without parole, and that is the sentence the state trial court imposed.
Following direct appeal and postconviction proceedings in state court, Wyatt filed a § 2254 petition in federal court. The district court denied relief, and we denied a COA. He filed a second § 2254 petition in 2007, which the district court transferred here because we had not authorized it. We denied authorization. Finally, he filed a third § 2254 petition earlier this year. The district court dismissed for lack of jurisdiction because we had not authorized that petition. The district court chose not to transfer the petition here.
Wyatt filed the motion for authorization at issue on November 23, 2022.
II. LEGAL STANDARD
This court may not authorize a second or successive § 2254 petition unless the movant "relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court," or offers evidence that reasonably could not have been discovered sooner and that clearly and convincingly shows he would not have been convicted. See 28 U.S.C. § 2244(b)(2). The movant's burden at this phase is to "make[] a prima facie showing that the application satisfies the [foregoing] requirements." § 2244(b)(3)(C).
III. ANALYSIS
A. Ground One
Wyatt's first proposed ground for relief is "Actual And Factual Innocence" based on recent DNA testing, which supposedly exonerates him. Mot. for Auth. at 8. This evidence is more relevant to Wyatt's proposed Ground Three, so we will discuss it in that context, below. As to this Ground One, his claim of actual innocence is unavailing for reasons independent of what the DNA reveals.
The court-created doctrine of actual innocence may excuse a petitioner's failure to timely bring a first federal habeas petition. See Fontenot v. Crow, 4 F.4th 982, 1029-30 (10th Cir. 2021), cert. denied, 142 S.Ct. 2777 (2022). This is not Wyatt's first federal petition, so that doctrine does not apply. Instead, Wyatt must satisfy the stricter standard established in 28 U.S.C. § 2244(b)(2)(B):
(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
See also Fontenot, 4 F.4th at 1030 ("Congress limited the operation of [the actual innocence] gateway" through § 2244(b)(2)(B)). Most important for present purposes, "subparagraph (B)(ii) requires the applicant to identify a constitutional violation and show that he would not have been found guilty 'but for' the violation." Case v. Hatch, 731 F.3d 1015, 1032 (10th Cir. 2013) (emphasis added).
Wyatt's Ground One does not connect his DNA evidence to any potential constitutional error (in contrast to Ground Three). Thus, we may not authorize Ground One.
B. Ground Two
Ground Two asserts that Wyatt recently discovered evidence showing the state's prosecutor violated Napue v. Illinois, 360 U.S. 264, 269 (1959) (holding that the state violates due process when it fails to correct testimony it knows to be false, even if the testimony only goes to credibility), and Giglio v. United States, 405 U.S. 150, 153-54 (1972) (holding that the state's due-process duty to disclose exculpatory evidence extends to material evidence regarding a witness's credibility).
In Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009), we held that the state's prosecutor violated two defendants' due-process rights by promising leniency to the crucial eyewitness, yet soliciting testimony from that same witness that no such promises had been made. See id. at 1167, 1174-76, 1180, 1192. The same prosecutor handled Wyatt's case, and Wyatt claims he now has evidence that the prosecutor engaged in tactics similar to those described in Douglas. Specifically, McClendon told the jury he had a deal for five years of prison and five years of probation, but when McClendon was eventually sentenced, he received a five-year suspended sentence-so, in effect, he received probation only.
Wyatt knew as early as 2007 that McClendon received no prison time. Indeed, he moved this court for authorization to file a successive § 2254 petition on that basis, claiming that the prosecutor "lied to the jury about the plea agreement" as evidenced by the fact that "McClendon has yet to serve a day in jail." Resp. to Mot. for Auth., Ex. 15 at 9. We denied that motion. In 2018, however, the state disclosed notes from the prosecutor's case file showing that McClendon's testimony at Wyatt's trial prompted the prosecutor to recommend no prison time. Wyatt then sought postconviction relief in state court, claiming (again) that the prosecutor and McClendon had lied about their deal, i.e., the prosecutor had promised McClendon from the beginning that he would recommend no prison time. Apparently Wyatt viewed the notes in the case file as a subterfuge to deflect suspicion, thus confirming his theory that the prosecutor and McClendon had lied. The state courts denied relief, and Wyatt now presents the same theory to us.
The state offers two procedural arguments why we should deny authorization. First, because Wyatt presented arguably the same theory in his 2007 motion for authorization, the state asserts it falls under § 2244(b)(1), which states, "A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." Second, the state says Wyatt did not "exercise . . . due diligence," § 2244(b)(2)(B)(i), in developing this claim. We need not address either argument because we would deny authorization regardless.
Again, Wyatt's task is to make a prima facie showing that "the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." § 2244(b)(2)(B)(ii). We may assume (generously) that the notes in the prosecutor's case file offer a false explanation about why he changed his sentencing recommendation-and the explanation, by virtue of its falsity, confirms Wyatt's claim that the prosecutor and McClendon had always understood that the real recommendation would be for no prison time. This still does not rise to even a prima facie showing that, had the jury known the real plea deal, it would not have found Wyatt guilty.
In Douglas, the relevant witness's testimony "played the indispensable role of identifying [the defendants] as the gunmen, thereby providing the only direct evidence linking them to the murder." 560 F.3d at 1174. Here, by contrast, the state presented much more than McClendon's testimony. As summarized by the state trial court:
Video surveillance footage admitted at trial captured [Wyatt] and McClendon purchasing blue bandanas, a knit cap, and gloves at a convenience store around the corner from the crime scene less than fifteen minutes before the murder. Officers later recovered a knit cap and blue bandana identical to the ones they bought, along with a baseball cap, discarded in the street near the crime scene
after the murder. The store clerk who sold the items to [Wyatt] and McClendon positively identified [Wyatt] in court as the one who had conducted the transaction. Eyewitness Sandra Gaddis testified that the individuals who broke into the house wore a stocking cap and a baseball cap and "something tied around their face." Cathy Fortune, the victim's girlfriend and the intended victim of the robbery, testified that although she could not see the shooter's face, she recognized his voice as belonging to [Wyatt], whom she had known for some time. She also testified that she had been receiving threats from [Wyatt] leading up to the murder. Teia Morrison, [girlfriend of a second accomplice who played a very minor role], testified that on the night of the murder, [Wyatt], McClendon, and [the second accomplice] arrived together at her apartment and she provided [Wyatt] a pair of pants to change into because he had blood on his pant leg. Morrison also testified that either [Wyatt] or [the second accomplice] gave her a "black and big" gun to hold on to, which she sold about a week later.
In support of Ground One, Wyatt quotes a part of the transcript from the hearing on his request for DNA testing in which the trial court remarked that Fortune denied recognizing Wyatt's voice before she testified otherwise on the stand. Wyatt does not make anything more of this. Regardless, even if we subtract this part of Fortune's testimony from the body of evidence heard by the jury, our conclusion would not change.
Resp. to Mot. for Auth., Ex. 18 at 11-12 (footnotes omitted). Wyatt does not tell us how, in the face of this evidence, McClendon's real plea deal would have necessarily persuaded the jury to disbelieve his testimony, and, in turn, to acquit. We thus deny authorization on Ground Two.
C. Ground Three
Ground Three asserts that Wyatt's trial counsel was ineffective for failing to move to have the evidence DNA-tested. The relevant background is as follows.
Wyatt also appears to direct this ineffective-assistance claim at his attorney in his most recent state postconviction proceedings. "There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citations omitted).
In 2013, Oklahoma created a statutory procedure by which certain convicted defendants "may file a motion in the sentencing court requesting forensic DNA testing of any biological material secured in the investigation or prosecution attendant to the challenged conviction." Okla. Stat. tit. 22, § 1373.2(A). In 2018, the state trial court granted a motion to this effect from Wyatt and ordered the Oklahoma State Bureau of Investigation (OSBI) to test certain items, including the clothing recovered near the scene (such as the bandana) and fingernail clippings obtained from the victim. OSBI issued its report in 2019. It could not recover enough DNA from the clothing to make any findings. As to the fingernail clippings, however, it was able to develop a partial DNA profile that excluded Wyatt.
Based on this, Wyatt pursued postconviction relief in state court. He argued that his defense attorney should have sought DNA testing, which would have revealed what we know now (i.e., Wyatt's DNA does not appear on the victim's fingernail clippings). The state courts denied relief because Wyatt offered no reason why one would expect the shooter's DNA to be under the victim's fingernails, and so no reason to think that he was prejudiced by not being able to tell the jury that his DNA was not found on the victim's fingernails.
This claim presents at least two problems for Wyatt. First, his motion shows he knew before trial that DNA testing was a possibility because he says he asked his trial attorney to pursue testing and the attorney falsely responded that the trial judge would not allow it. The reality, he says, was that the trial judge had already authorized DNA testing but his attorney chose not to follow through. Given these allegations, we cannot say Wyatt pursued his ineffective-assistance claim with due diligence, § 2244(b)(2)(B)(i), because we do not know when he first learned that his trial attorney lied to him about the availability of DNA testing. And, to the extent Wyatt could not have brought a viable claim until the Oklahoma DNA-testing statute was enacted in 2013 (he never makes this argument), he does not explain why he waited until 2018 to invoke the statute.
Second, the state courts' analysis of this claim reveals an important shortcoming, namely, why should we expect the shooter's DNA to have been on the victim's fingernails? Wyatt does not explain, despite the state courts telling him that this was a major flaw in his theory. We know from other documents in the record that there was some sort of "struggle[]," Resp. to Mot. for Auth., Ex. 1 at 2, but Wyatt gives us no reason to believe that the struggle was of a kind likely to result in the shooter's DNA ending up on the victim's fingernails-and therefore no reason to believe that it would have mattered to a jury that his DNA was not detected on the fingernails. Thus, even assuming Wyatt's trial counsel performed deficiently, he has not made a prima facie showing that the deficiency prejudiced his case. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding that, to establish ineffective assistance, "the defendant must show that counsel's performance was deficient" and "the deficient performance prejudiced [his] defense"). Consequently, he has not shown that, "but for constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense." § 2244(b)(2)(B)(ii). We therefore deny authorization on Ground Three.
D. Grounds Two and Three Combined
Wyatt's argument about Ground Three circles back to his claims asserted under Ground Two regarding the prosecutor's alleged misconduct. To the extent he means to say that a reasonable jury likely would not have convicted if it had known about McClendon's real plea deal and that Wyatt's DNA was not detected on the victim's fingernails, we disagree. Given the strength of the state's other evidence, these two assertions combined do not amount to clear and convincing evidence that no reasonable jury would have convicted him.
IV. CONCLUSION
We deny the motion for authorization. This denial "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." § 2244(b)(3)(E).