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rejecting the petitioner's actual innocence claim, "that he was actually innocent because the DNA evidence found on the victim did not match his DNA," because he submitted no new DNA evidence to support his claim
Summary of this case from McCormick v. McFaddenOpinion
No. 3:01-CV-0081-M
July 25, 2002
ORDER ACCEPTING FINDINGS. CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
United States Magistrate Judge Paul D. Stickney made findings, conclusions and a recommendation in this case. No objections were filed. The District Court reviewed the proposed findings, conclusions and recommendation for plain error. Finding none, the Court accepts the Findings, Conclusions and Recommendation of the United States Magistrate Judge.
The Court makes the following additional findings regarding Petitioner's claim that he was actually innocent because the DNA evidence found on the victim did not match his DNA. To establish a claim of actual innocence, a petitioner must support his claim with new reliable evidence that was not presented at trial. See Schlup v. Delo, 513 U.S. 298, 324 (1995). Petitioner has submitted no new evidence regarding his claims. At Petitioner's trial, he raised the claim that he was innocent because the DNA evidence found on the victim did not match his DNA. Tr. Vol. 4, 72:18-74:2; 110:3-24. Further, there was no dispute at trial that the DNA evidence found on the victim did not match Petitioner's DNA. In fact, the state's expert forensic witness, Carolyn Van Winkle, testified that the DNA found on the victim did not match Petitioner's DNA. Tr. Vol. 3, 66:13-67:25. Ms. Van Winkle testified that a lack of DNA could have resulted if the perpetrator did not ejaculate, if he wore a condom, or if he used a foreign object to commit the sexual assault. Vol. 4:69:5-25.
The state appellate court also considered Petitioner's DNA claims in the context of Petitioner's sufficiency of the evidence arguments. The court stated: "To the extent that Appellant raised this issue, the lack of DNA evidence does not render the evidence insufficient. There was medical evidence from which the jury could have found that Appellant committed the sexual assault without leaving behind his DNA material." Simpson v. State of Texas, No. 12-99-00230-CR (Tex.App.-Tyler, April 28, 2000) at 7 n. 2.
At trial, the victim testified that on the night of January 24, 1998, she left her house in the late evening to look for Petitioner, who was her boyfriend. Vol. 3, 99:10-17; 103:17-18. She stated that as she walked along the street, a stranger drove up, and she got into the car with him. She stated she had consensual sex with the stranger in exchange for $20. Vol. 3, 107:18. She stated the stranger dropped her off unharmed. Vol. 3, 112:13-14. She then walked back to her house. As she approached the house, she heard Petitioner calling her name. Vol. 3, 112-113. She testified Petitioner started yelling at her, and was angry with her because he assumed she had sex with another person. Vol 3, 120:21-25; 123:11-12. She testified Petitioner started hitting her and that he knocked her unconscious. Vol. 3, 121:10. She stated she did not regain consciousness until she was at the hospital. Vol. 3, 121:18-19.
Doctor William Freije testified that he examined the victim when she arrived at the hospital. He testified the victim was comatose and in critical condition. Vol. 3, 27:10-11; 13-15; 31:13-16. Doctor Freije testified the victim had severe facial trauma, a broken facial bone, significant rectal wounds, a laceration of the rectum and that she was covered in blood. Vol. 3, 17:12-14; 24:18-19; 25:1-3. Doctor Freije testified that he believed the victim was assaulted rectally with either a sharp or blunt object. Vol. 3, 51:23-25, 32:20-25; 33:1-3.
Doctor David Euhus also testified that he examined the victim when she arrived at the hospital. Doctor Euhus testified that the victim was unconscious due to her injuries. Vol. 3, 58:6-9. He stated she had a "massive injury to her face" and a "tear in the anus through the anal sphincter muscles . . . and then up into the lining of the rectum and through the first layers of muscle in the rectum." Vol. 3, 60:1-7. He stated the rectal injuries were life-threatening. Vol. 3, 61:7-9. He testified that doctors repaired the rectum muscles, closed the injury to the rectal lining and performed a colostomy. Vol. 3, 61:7-9. Doctor Euhus testified that he believed it was unlikely the injury to the rectum was caused by a penis and was more likely caused by a knife, bottle, or blunt object. Vol. 3, 75:19-76:18.
The Court finds the state court's ruling that there was medical evidence from which the jury could have found that Petitioner committed the sexual assault without leaving behind his DNA material is not contrary to, and does not involve an unreasonable application of, clearly established precedent of the United States Supreme Court. Further, the state court's decision does not appear to be based on any unreasonable determination of the facts in light of the evidence presented. Petitioner is not entitled to relief on his petition for writ of habeas corpus.