Baker v. Coursey, No. 2:2013cv01612 - Document 51 (D. Or. 2015)
Court Description: Opinion and Order - The Petition for Writ of Habeas Corpus (#1) is dismissed. The court does, however, grant a Certificate of Appealability on the issue of whether petitioner has made a sufficient showing of actual innocence to excuse his untimely filing. Signed on 7/30/2015 by Judge Michael H. Simon. (mja)
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Baker v. Coursey Doc. 51 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ERNEST H. BAKER, III, Case No. 2:13-cv-01612-SI Petitioner, v. RICK COURSEY, OPINION AND ORDER Respondent. Anthony D. Bornstein, Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Ellen F. Rosenblum, Attorney General Nick M. Kallstrom, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com SIMON, District Judge. Petitioner brings u.s.c. § 2254 this challenging conviction for Murder. habeas the corpus legality case pursuant of his to 28 state-court Because petitioner is unable to excuse the untimely filing of this case, the Petition for Writ of Habeas Corpus (#1) is dismissed. BACKGROUND The State of Oregon charged petitioner with one count of aggravated murder in March 2004 based on the death of his six-month old son, hereinafter Exhibit 102. referred to as Ernest IV. Respondent's Where petitioner appeared to face long odds at trial and claimed he could not recall the events of that day clearly, he As a agreed to enter a no-contest plea to intentional murder. result, the trial court dismissed the aggravated murder charge and sentenced minimum. him to a term of life imprisonment with a 2 5-year Respondent's Exhibits 101, 104. On March 28, 2006, petitioner filed for post-conviction relief ("PCR") Respondent's Exhibit in Umatilla County Circuit Court. 106. Petitioner's appointed attorney in the PCR action felt that trial counsel had performed well negotiated plea." Petitioner's and achieved Exhibit 1. an PCR "outstanding counsel also advised petitioner that in the unlikely event they could find a meritorious claim so as to secure relief and proceed to a criminal trial, he would once again face the possibility of receiving a 2 - OPINION AND ORDER death sentence. Id. not with to proceed Counsel therefore strongly urged petitioner the PCR challenge. As Id. a result, petitioner voluntarily dismissed his PCR action on November 14, 2006. Respondent's Exhibits 107, 108. On August 21, 2008, petitioner filed his first federal habeas corpus action challenging his murder conviction. Court dismissed the certificate of case as untimely appealability. The District and declined to Respondent's issue Exhibit a 118. Petitioner appealed those decisions, but the Ninth Circuit Court of Appeals also denied petitioner's request for a certificate of appealability. On May 6, 2010, petitioner filed a second state PCR action which the PCR trial court dismissed as untimely and improperly successive. Respondent's Exhibit 111. The Oregon Court of Appeals affirmed that decision without opinion, Court denied review. and the Oregon Supreme Baker v. Coursey, 250 Or. App. 144, 281 P.3d 685, rev. denied, 352 Or. 377, 290 P.3d 813 (2012). On March 15, 2013, petitioner applied to the Ninth Circuit for permission to bring a successive 28 U.S.C. this District. The Court of Appeals § 2254 habeas action in granted petitioner's application and directed the Clerk to transfer the Petition to this court. to Petitioner's Exhibit D, p. 16. dismiss the Petition concedes that the because it Respondent asks the court is Petition is untimely, 3 - OPINION AND ORDER untimely. but asks Petitioner the court to conduct an evidentiary hearing where he can establish his actual innocence so as to overcome the timeliness bar. DISCUSSION Habeas corpus petitioners must generally file their federal challenges to their state convictions within one year of the time those convictions become final by the conclusion of their direct review. 28 U.S.C. 2244 (d) (1) (A). A petitioner who fails to comply with this deadline may overcome such a default if he is able to show that conduct. (2013). he is actually innocent of his underlying criminal U.S. ----, 133 S.Ct. 1924, 1928 McQuiggin v. Perkins, In order to make a gateway showing of actual innocence, a petitioner must present "new reliable evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence--that was not presented at trial" which establishes reasonable juror reasonable doubt." that would "it have is more found Schlup v. Delo, likely than petitioner not guilty that no beyond a 513 U.S. 298, 324, 327 (1995). In the context of a habeas petitioner who seeks to introduce new evidence in an evidentiary hearing to establish his claim of actual innocence, "the court may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence." Id at 331-32. " [A] federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner's part, not 4 - OPINION AND ORDER as an absolute barrier to relief, but as a factor in determining whether actual innocence has been reliably shown[.]" McQuiggin v. Perkins, 569 U.S. ----, 133 S.Ct. 1924, 1928 (2013). Where petitioner opted to forego his trial in favor of a nocontest plea, trial. 1 State the court cannot weigh any evidence adduced at a However, during petitioner's entry of plea hearing, indicated that had the case proceeded to trial, it the was prepared to present the following evidence: The baby in this case was almost seven months old. His throat had been cut. [D'Ann Honea], the mother of the victim, would have testified that she want over to the home of the defendant to retrieve a dresser and when she arrived there, she noticed the defendant had an injury to his own neck, that she tried to get him to get medical attention for that, to go with her to the hospital or a doctor, that he refused. That she then placed the baby in a car carrier in the back seat of her car and she lost track of where the defendant was. She went looking for the defendant and while she was looking for the defendant, the defendant had come around and gotten the baby out of the back seat of the car and taken the baby inside the house. She saw them head inside the house. The door was locked, she was unable to get inside. She could hear the infant crying. She heard the crying suddenly stop. She was pounding on the door, screaming, trying to get inside. She went around back, she got inside through a back sliding glass door. The defendant was no longer in the In this way, application of the Schlup actual innocence test to cases such as this one is difficult. See Smith v. Baldwin, 510 F.3d 1127, 1140 n. 9 (9th Cir. 2007) (en bane) (recognizing "a potential incongruity between the purpose of the actual innocence gateway announced in Schlup and its application to cases involving ... no contest[ ] pleas."). 5 - OPINION AND ORDER home, nobody was in the home at that time, and she saw that the infant was injured, grabbed the baby, put it in the car and took it to Rogue River where she tried to obtain some medical assistance and got 911 and so forth, but the baby did die of the injury of loss of blood at the hospital. A sword was found in the residence, that was determined to be the cause of the injury. That sword, witnesses would have testified, belonged to the defendant, it had the baby's blood on that sword. The defendant, when he returned to the residence, made a statement to the police that he had taken a life today and someone took his life today. There would have been numerous other witnesses that would have further just filled in and corroborated [D' ann Honea' s] statement as to her actions. Neighbors who heard her screaming, saw her running to the car with the infant. Respondent's Exhibit 104, pp. 5-6. Against this backdrop, petitioner asserts that he can establish his innocence so as to overcome the untimely nature of this habeas action. Writ of Habeas In his Brief in Support of the Petition for Corpus, petitioner specifically "Evidence Supporting Innocence" to consist of: identifies his ( 1) the fact that his own blood was not on the murder weapon; (2) the victim's blood was found to be on the right leg of Honea; (3) his statements to the circumstances police questioning; were not reliable given the of the (4) Honea had said "How could I have done this to my baby"; and (5) Dash Terry, an investigator with the Federal Public Defender's Office, discovered new evidence when petitioner's sister told him that she had seen Honea place a pillow over the Ernest 6 - OPINION AND ORDER IV' s face ( # 3 8) r in the weeks before the homicide. Brief In Support pp. 8-11. Before assessing this evidence of innocence, the court first notes that petitioner's second PCR Attorney, Manuel Perez, hired an investigator, Bowen. 2 Mark Stephens, who met with a woman named Erica According to the contents of Stephens' unsworn letter, Bowen related the following to him when he met with her on June 10: [Erica Bowen] has known D'Ann Honea for sometime. Approximately three days after the baby was killed she saw D'Ann Honea sitting on the hood of her car at the Shell gas station on Morgan Lane in Grants Pass. She recalled it being about 2: 0 0 am. The car was a blue car with a white racing stripe. She asked D'Ann how she was doing and D'Ann replied "I am doing good I am high". Erica replied to D' Ann that she thought that was understandable after what she had been though. D'Ann then got in the car and began crying. Erica then bent down to speak to D'Ann through the window of the car, at which time she saw the backseat of the car covered in blood. Erica asked her what the blood was from and she said it was from her son. She then asked D'Ann why she did not wash it off and D'Ann told her it was the only memory she had of her son. Erica asked her how the blood got there and D'Ann told her she put her son in the car to go get help and drove around for four hours because she was afraid to get help. Erica then asked her what had happened and D'Ann told her that she and Ernie were fighting and that Ernie attacked her. At the 2 In his report, Stephens refers to the woman as both Erica Bowen and Erica Baker. Petition Exhibit A, p. 2. 7 - OPINION AND ORDER time he was holding the baby in his arms and refused to give the baby back. D'Ann said she had a knife and swiped at Ernie and when she did that she cut Ernie and the baby. Erica then asked D'Ann what was going on with Ernie and she told her that Ernie is protecting her because Ernie does not want her to go to jail. D'Ann then became very hysterical and said she wanted help at which time Erica told her if it was an accident God would forgive her. Petition Exhibit A, pp. 2-3. In his Brief in Support, petitioner alludes to this document but does not argue its contents, reference it within the "Evidence Supporting Innocence" section of Brief, or state that he would like to produce Bowen at any evidentiary hearing. As a result, on June 25, file 2015, the court ordered petitioner to a Supplemental Memorandum specifically addressing whether he anticipated calling Bowen as a witness if the court were to allow an evidentiary hearing. Petitioner responded, "Upon thorough investigation of the case, Ms. Bowen would not be called at the hearing in this case, should the Court grant Memorandum (#48), p. 2. an evidentiary hearing." Supplemental As a result, the court views the Stephens' unsworn letter containing triple-hearsay a nullity for purposes of the actual innocence analysis. With respect to the evidence of innocence petitioner does argue, he points to a single piece of new evidence: Dash Terry's interview with petitioner's sister, Amanda Baker. Amanda Baker informed Terry that in the weeks prior to Ernest IV's murder, Honea 8 - OPINION AND ORDER attempted to smother his face with a pillow. 4, p. Petitioner's Exhibit Petitioner asserts that Ms. Baker should be allowed to 2. testify at an evidentiary hearing about this episode to assist him in meeting his burden under Schlup. He asserts that this testimony is especially important in light of the following inconsistences in the existing record: (1) despite having bloody hands from his own neck wound his blood was never found on Ernest weapon, IV, or in the room where the murder took place; the murder ( 2) Honea' s initial statement in the wake of the crime was incriminating when she said, times; "How could I have done this to my baby" four or five ( 3) Honea had Ernest IV' s blood on her clothes whereas petitioner did not; and (4) the prosecutor's statement of the case to the trial court appears to be internally inconsistent where it has petitioner taking Ernest IV from the back of Honea's car, and also wresting control of the baby from Honea's grasp. With the exception of his sister's statements to Terry, all of the evidence of innocence petitioner points to is old evidence that was available to him when he entered his no-contest plea and voluntarily dismissed his PCR action when his appointed attorney, following feared investigation that any with "victory" a would possibility of a capital sentence. seasoned expose capital him to investigator, the very real In addition, the discrepancies petitioner points to are somewhat difficult to evaluate in the absence of a trial record. 9 - OPINION AND ORDER Nevertheless, the inconsistencies can be largely explained insofar as: ( 1) petitioner's blood may not have been found everywhere, but it was found at the scene of the crime, including on the baby seat in which Ernest IV was murdered; (2) Honea explained that her statements concerning how she could have done "this" to her baby pertained to the fact that petitioner had been able to wrestle Ernest IV away from her before taking him inside the residence where the murder took place Exhibit 3, p. 15); her clothes where ( Petitioner's (3) Honea predictably had Ernest IV's blood on she carried him out of the residence and accompanied him to the hospital before he died of loss of blood; and (4) consistent with the prosecutor's statement of the case to the trial court, Honea stated to authorities that petitioner removed Ernest IV from the car, but she had him in her arms before petitioner grabbed the baby away from her, and saw him go into the house. Id. Petitioner fails to effectively explain: (1) his statement to police that he had "taken a life" that day; 3 (2) how Honea came to use his sword to murder petitioner, Ernest IV when the sword belonged to and where she was no longer living with petitioner following a recent separation; and (3) why multiple witnesses were 3 While petitioner claims this was a delusional response to the officer's question, this was a highly incriminating statement a jury would have been hard-pressed to disregard, especially in light of the other evidence tending to show petitioner's guilt. 10 - OPINION AND ORDER prepared to testify that Honea's actions on the day of the murder were consistent with her own statements. Moreover, while Amanda Baker obviously recounted a troubling story to the investigator, minimal where: of years (2) Baker could be considered to be a biased (3) and she is offering her story for the first time nine after her brother's variety impact of that new evidence is (1) the events do not directly bear upon the crime conviction; witness; the of unsuccessful conviction. evidence original plea state and and in the wake of a federal challenges to his See McQuiggin, 133 S.Ct. at 1936 (delay in presenting of actual innocence "should seriously undermine the credibility of the actual-innocence claim."). For these reasons, even if Ms. Baker were to testify during an evidentiary hearing in a manner consistent with the investigator's Affidavit, likely than petitioner would be unable to not that convict him of murder. evidentiary hearing. 1940 (2007) no reasonable As such, show that it is more juror would have voted to the court declines to hold an See Schriro v. Landrigan, 127 S.Ct. 1933, (where the record in the case precludes habeas relief, a district court is not required to hold an evidentiary hearing) . Because petitioner is unable to make a gateway showing of actual innocence, the court dismisses this case because it is untimely. Ill Ill 11 - OPINION AND ORDER CONCLUSION For the reasons identified above , Habeas Corpus (#1) is dismissed . the Petition for Writ of The court does , ho wever , grant a Certificate of Appealability on the issue of whether petitioner has made a sufficient showing of actual innocence to e x cuse untimely filing . IT IS SO ORDERED . DATED this "Ji) """"' day 4 uly, 12 - OPINION AND ORDER United States District Judge his
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