Opinion
2:19-cv-00498-HL
09-09-2024
MELVIN DEON GIVENS, Petitioner, v. TROY BOWSER, Respondent.
FINDINGS AND RECOMMENDATION
ANDREWD. HALLMAN, UNITED STATES MAGISTRATE JUDGE
Petitioner, an individual in custody at the Oregon State Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Because Petitioner's claims are untimely and procedurally defaulted, and he has not made a colorable showing of actual innocence under Schlup v. Delo, 513 U.S. 298 (1995) to overcome the procedural bars or to otherwise warrant habeas relief on a freestanding claim of actual innocence, the Amended Petition (ECF No. 52) should be denied.
BACKGROUND
On April 21, 2000, a Lane County grand jury indicted Petitioner for aggravated murder, felony murder, attempted murder, assault in the first degree, robbery in the first degree, and burglary in the first degree. Resp't Ex. 102. The charge of felony murder alleged that:
“[Petitioner] on or about March 12, 2000, in Lane County, Oregon, acting together with Travis Lee Gibson, James Wesley Herlong, and Wendy Leanne Gates, in the course of and in furtherance of committing or attempting to commit the crime of Robbery in the First Degree . . . or Burglary in the First Degree . . . the [Petitioner], Travis Lee Gibson, or James Wesley Herlong, did unlawfully and with criminal negligence cause the death of Joshua Michael Copp[.]”Id.
On January 8, 2001, Petitioner pled guilty to felony murder, assault in the first degree, robbery in the first degree, and burglary in the first degree with an expected sentence of 30 years imprisonment and conditioned on his testimony for the prosecution at the trial of his co-defendant, Travis Gibson (“Gibson”). Petitioner was called to testify at Gibson's trial, and, after answering preliminary questions concerning the terms of his plea agreement, he invoked his right to remain silent. Resp't Ex. 108 at 4-6.
One of Petitioner's co-defendants, James Herlong (“Herlong”), testified at Gibson's trial. Resp't Ex. 109 at 5-6. Herlong testified that he, Petitioner, Gibson, and Wendy Gates planned to rob Joshua Copp (“Copp”) at his apartment. Id. at 10, 13, 20-22. Petitioner, Herlong, and Gibson were armed with guns when they entered Copp's apartment. Id. at 14, 19-20, 27-28.
Herlong used duct tape to bind Copp's hands and cover his eyes, and bound Copp's roommate, Steve Johnson (“Johnson”), as well. Id. at 25-28, 30. At some point, Johnson broke loose and “got into a wrestling match” with Petitioner. Id. at 28. Johnson was subdued, brought to the living room and laid down next to Copp, who was already on the floor. Id. at 29. Herlong left the room, and Johnson broke loose again and ran toward the door. Id. at 31. Herlong testified that he “heard gunshots and [saw] a red spot on the back of Johnson.” Id. He explained that he immediately turned around and saw Johnson between Petitioner and Gibson, and someone “blurted out, ‘Let's just smoke them.'” Id. at 32. About ten seconds later, Petitioner and Gibson started shooting Johnson and he fell out the door. Id. at 32-33.
Herlong testified that he and Petitioner ran out of the apartment to the car. Id. at 33. Herlong heard another shot, and then Gibson was “right behind” him. Id. Petitioner initially drove the car, with all of his co-defendants, away from the scene but pulled over around the corner so that Gibson could drive to his apartment. Id. at 36. There, they divided up the money and property taken from Copp's apartment. Id. at 36-39.
Copp died as a result of his injuries, but Johnson survived and testified at Gibson's trial. Resp't Ex. 108 at 6. Johnson testified that, on the morning of March 12, 2000, he was woken up by voices and “guns being cocked.” Id. at 8. Two people, who he identified as Petitioner and Gibson, kicked in his door and, with “guns out in [his] face,” pulled him out of bed and taped his hands behind his back. Id. He also saw “two people taping [Copp's] hands behind his back,” in Copp's room. Id. at 9. Petitioner and Gibson “kicked in [his] door again” and “started pistolwhipping [him] and hitting [him].” Id. at 11. He testified that Petitioner “tr[ied] to put a gun in [his] mouth.” Id. at 12. The two bound Johnson's hands again and laid him on the living room floor next to Copp. Id. 12-13.
Johnson testified that, while he was laying on the floor, Gibson said, “‘Fuck it. Get a pillow. I'm going to shoot them in the head.'” Id. at 13. Then, Petitioner walked towards the couch and Gibson took a few steps towards the hallway. Id. at 13-14. Johnson “realized it was [his] chance to get out, so [he] broke loose again of the tape and went for the door.” Id. at 14. Petitioner wrestled with him at the door, hitting Johnson's arms. Id. Johnson couldn't tell if Petitioner was hitting him with “both of his hands and the pistol or it if was just his hands or what it was.” Id. Johnson explained:
I was struggling with him, and I think I pushed him. The gun went off through my arm here, and the last thing I remember was reaching for the dead bolt to get out the door. I don't remember anything from there on.Id. at 14.
Petitioner previously made statements to police and prosecutors prior to trial. In a police interview conducted shortly after the incident, Petitioner admitted that he had entered Copp's residence with a gun and began “looking around searching, looking for guns and stuff.” Resp't Ex. 110 at 10, 30-32. After Johnson broke loose and went for the door, he and Petitioner “wrestl[ed] for a minute.” Id. at 12. Petitioner was holding his gun, and acknowledged that “[i]t's a possibility” that it fired during the struggle. Id. at 43. Petitioner said that when he “ran out the door there was like a couple more shots . . . I just ran to the car.” Id. at 28. Petitioner agreed that the final gunshot occurred as he was attempting to flee the scene, stating:
It kind of like happened so fast, I'm like, as soon as I got out the door I heard a couple more shots. But when I got in the car, [Gibson and Herlong] was right in the car behind me.Id. at 29. He stated that “as soon as I got in the car everybody else liked (sic) followed me, jumped in the car too.” Id. at 22. Petitioner drove “around the corner,” where Gibson told him to pull over so he could drive to his apartment, and they divided up the proceeds of the robbery. Id. at 22-24. Petitioner stated he used a 9-millimeter gun and that he threw it “in a river or a lake” after the robbery. Id. at 45. When he later learned that someone had been killed and another had been wounded, he assumed Johnson had died and Copp had survived. Id. at 76.
The prosecutor interviewed Petitioner on January 9, 2001. Resp't Ex. 111. Again, Petitioner admitted that he went to Copp's apartment with a gun intending to rob him. Id. at 4243. Petitioner again acknowledged that, when he struggled with Johnson, “the gun it could have went off in my hands.” Id. at 22. He stated that he heard five shots “at the most” before running out of the apartment and heard another shot when he “had just got in the car.” Id. at 72-74. After he drove away from the scene, he pulled over and Gibson drove to his house, and Petitioner received a portion of the proceeds from the robbery. Id. at 30-34. While he had told police that he threw his gun “off the bridge,” he claimed to have instead sold it to someone in Portland. Id. at 41.
On March 19, 2001, after Gibson's trial, Petitioner was sentenced to a total of 32 years. Petitioner filed a notice of appeal, but the direct appeal was later dismissed on his motion. Resp't Exs. 104-06. The appellate judgment issued on September 14, 2001. Resp't Ex. 106. Petitioner did not file a petition for post-conviction relief.
On April 4, 2019, Petitioner filed a pro se habeas corpus petition in this Court and, with the assistance of appointed counsel, filed an Amended Petition asserting two grounds for relief:
Ground One: Petitioner's trial attorneys provided constitutionally ineffective representation for failing to move to withdraw his guilty plea.
Ground Two: Petitioner is actually innocent of felony murder.See Am. Pet. at 3-6. Petitioner concedes that Ground One of his Petition is both untimely and procedurally defaulted, but relies upon the miscarriage of justice exception articulated in Schlup to excuse his procedural default and failure to comply with the statute of limitations. Am. Pet. at 5. He asserts that Ground Two of his Petition is timely because a freestanding claim of actual innocence can never be time barred. Id. Respondent urges this Court to deny habeas relief, arguing that 1) Petitioner's ineffective assistance of counsel claim is untimely and procedurally defaulted, he has failed to demonstrate that he is “actually innocent” of felony murder such that he can overcome the procedural bars to federal habeas review, and his underlying claim is without merit, and 2) to the extent that a freestanding claim of actual innocence is cognizable, Petitioner has failed to make the extraordinary showing necessary to obtain relief. Resp. to Am. Pet. at 9-21 (ECF No. 66).
DISCUSSION
I. Ground One: Ineffective Assistance of Counsel Claim
A. Legal Standards
i. Timeliness and Procedural Default
The Antiterrorism and Effective Death Penalty Act provides that a one-year statute of limitations applies to federal habeas corpus actions filed by state prisoners. The statute begins to run on the date on which the judgment of conviction became final after the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).
A habeas petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). A petitioner is deemed to have “procedurally defaulted” his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
A procedural default may be excused if a petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991), holding modified by Martinez v. Ryan, 566 U.S. 1 (2012). In the habeas-corpus context, a fundamental miscarriage of justice occurs when a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 327; Smith v. Baldwin, 510 F.3d 1127, 1137-38 (9th Cir. 2007). Thus, a petitioner may overcome the expiration of the limitation period with a colorable showing of actual innocence under Schlup. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).
ii. A Colorable Claim of Actual Innocence
A colorable claim of actual innocence does not by itself provide a basis for relief, but rather serves as a “gateway” through which a petitioner must pass in order to have his constitutional claims considered. McQuiggin, 569 U.S. at 386; Schlup, 513 U.S. at 315. A habeas petitioner may secure review of his procedurally barred claims if he “presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” Schlup, 513 U.S. at 316. To be credible, the claim of actual innocence must be supported with “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence- that was not presented at trial.” Id. at 324. Ultimately, a petitioner must prove that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Id. at 327; Downs v. Hoyt, 232 F.3d 1031, 1040 (9th Cir. 2000).
In evaluating a claim of actual innocence, the court must consider all the evidence, both old and new, and conclude that “it is more likely than not that no reasonable juror would have found [P]etitioner guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327. This is an exacting standard that is satisfied “only in the extraordinary case.” House v. Bell, 547 U.S. 518, 538 (2006). Indeed, cases in which the Schlup standard has been satisfied have “typically involved dramatic new evidence of innocence.” Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013).
A gateway showing of actual innocence may be established despite the fact that a petitioner entered a guilty plea. See Bousley v. United States, 523 U.S. 614, 624 (1998); see also Smith, 510 F.3d at 1140 (assuming that gateway actual innocence exception applies in guilty plea context). In this circumstance, however, the petitioner must prove his actual innocence of the charge to which he pled, as well as any more serious charges that were dismissed as a result of the plea bargain. Bousley, 523 U.S. at 624; Jaramillo v. Stewart, 340 F.3d 877, 883 (9th Cir. 2003); United States v. Benboe, 157 F.3d 1181, 1184 (9th Cir. 1998).
B. Analysis
Petitioner did not pursue a direct appeal or file a state petition for post-conviction relief. As such, he has never presented his claim to the Oregon Supreme Court in a manner in which it could be considered on the merits and he is time-barred from doing so now. Accordingly, his Petition is untimely, and his ineffective assistance of counsel claim is procedurally defaulted. Therefore, the resolution of Petitioner's ineffective assistance claim requires the Court to address whether the untimeliness of the Petition and the procedural default of the claim are excused by a colorable showing of actual innocence.
Petitioner presents the following evidence and arguments: 1) there was no plan to shoot or kill anyone, and Petitioner did not shoot anyone during the course of the robbery; 2) Petitioner withdrew his involvement after the completed crimes of burglary, robbery, and assault and completely separated himself from the crime scene by fleeing the apartment before Gibson fatally shot Copp; 3) Copp's murder was not committed “in the course of and in furtherance of” the crimes the burglary and robbery; and 4) Petitioner is therefore actually innocent of felony murder pursuant to the Oregon decisions in State v. Lopez-Minjarez, 350 Or. 576 (2011), and State v. Perez-Chi, 251 Or.App. 661 (2012), invalidating the “natural and probable consequences” jury instruction on accomplice liability and as applied to felony murder. Am. Pet at 2, 5; Pet'r Br. in Support at 13-17 (ECF No. 53); Pet'r Sur-Reply at 3-5 (ECF No. 87).
Whether Petitioner intended to, or in fact did, shoot or kill anyone during the course of the robbery is not relevant as to whether he can establish that he is actually innocent of felony murder. Under former OR. REV. STAT. § 163.115(1)(b) (1999), felony murder “is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit [robbery in the first degree or burglary in the first degree] and in the course of and in furtherance of the crime the person is committing or attempting to commit, or during the immediate flight therefrom, the person, or another participant if there be any, causes the death of a person other than one of the participants.” “[T]he requisite culpable mens rea pertaining to the victim's death is established, as a matter of law, by the defendant's commission or attempted commission of the predicate felony.” State v. Blair, 348 Or. 72, 80 (2010)
Here, Petitioner admitted to both police investigators and the prosecutor, and testimony at Gibson's trial established, that he entered Copp's residence with a gun and with the intent to rob Copp. After Johnson was shot and as Petitioner was fleeing from the scene, one of his codefendants killed Copp. Petitioner, at least initially, drove the getaway car with all his codefendants and the proceeds of the robbery.
Petitioner now argues that he withdrew from the robbery after Gibson shot Johnson, and before Gibson shot and killed Copp. Am Pet. at 5. In support, Petitioner submits his own declaration. Pet'r Ex. 201 (ECF No. 55). Among other things, Petitioner states that, after Johnson was shot, he “ran out the front door because I did not want to have anything to do with this anymore. It was too far beyond what I had gone there for.” Id. at 4. He again admits that he initially drove the getaway car, but claims he did not receive any proceeds. Id.
Petitioner also submits a declaration from his co-defendant, Herlong, Pet'r Ex. 204 (ECF No. 90). Herlong re-states much of his trial testimony - including that Petitioner “immediately ran to the car” after Johnson was shot, and Herlong was “right behind [Petitioner].” Id. at 5. Herlong and Petitioner were both outside the apartment when Gibson shot and killed Copp. Id. He acknowledges “the plan was to rob a drug dealer who would not call the cops.” Id. But when Gibson shot Johnson, it “changed the situation,” and Herlong “knew neighbors heard the gunshots and we had to get out of there.” Id. He also makes some statements that are inconsistent with his trial testimony or Petitioner's own account of the events, regarding whether Petitioner actually shot Johnson or received any proceeds of the robbery. Id. at 5-6.
The Ninth Circuit has stated that “[d]eclarations are not a strong form of evidence because “the affiants' statements are obtained without the benefit of cross-examination and an opportunity to make credibility determinations.'” Garcia v. Evans, 670 Fed.Appx. 622, 623 (9th Cir. 2016) (quoting Herrera v. Collins, 506 U.S. 390, 417 (1993)). Indeed, these self-serving declarations fail to constitute new reliable evidence for Petitioner's claim of actual innocence. Schlup, 513 U.S. at 324; Jackson v. Beard, No. 12-CV-2479-BEN (BGS), 2014 WL 2657536, at *7 (S.D. Cal. June 12, 2014) (“A self-serving declaration is not the kind of evidence that meets the Schulp ‘more than likely that no reasonable jury would have convicted him' standard.”). To the extent that Herlong's declaration contradicts his trial testimony, such recantation evidence is properly viewed with great suspicion. Jones v. Taylor, 763 F.3d 1242, 1248 (9th Cir. 2014); Herrera, 506 U.S. at 423 (O'Connor, J., concurring) (cautioning that affidavits made many years after trial, purporting to exculpate a convicted prisoner through a new version of events, are “not uncommon” and “are to be treated with a fair degree of skepticism.”). Herlong's declaration is based on the same facts and circumstances that existed when Petitioner entered his guilty plea and Petitioner has provided no explanation for the twenty-year delay in obtaining it. See Schlup, 513 U.S. at 332 (the reviewing court “may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence”); Herrera, 506 U.S. at 423 (O'Connor, J., concurring) (stating that affidavits “produced ... in the 11th hour with no reasonable explanation for the nearly decade-long delay” are suspect). The reliability of Herlong's declaration is further undermined by the fact that he faces no consequences for lying. Smith, 510 F.3d at 1141-43 (discussing codefendant's recantation of testimony years after trial with skepticism as it was unlikely that reasonable jurors would believe a co-defendant's new version of the events given that the perjury limitations period had passed, he was serving a life sentence and, thus, could lie with impunity).
Finally, Petitioner argues that Copp's murder was committed after the crimes of burglary and robbery were completed and therefore not “in the course of and in furtherance of” them. Pet'r Sur-Reply at 3-5. Specifically, Petitioner argues that Copp's murder was “not closely related to the time, place and circumstance of the underlying felonies,” and Petitioner had left the apartment and was in the car when Copp was shot. Id. at 5. Notwithstanding the fact that Petitioner was charged as a principal and pled guilty to felony murder, Petitioner contends that he is actually innocent because the “natural and probable consequences” jury instruction, which was given in Gibson's trial, was later repudiated by Lopez-Minjarez and Perez-Chi. Pet'r Sur-Reply at 7.
In Lopez-Minjarez, the Oregon Supreme Court held that a uniform jury instruction regarding accomplice liability misstated Oregon law. The jury instruction provided that “[a] person who aids and abets another in committing a crime . . . is also criminally responsible for any act or other crime that [was] committed as a natural and probable consequence of the planning, preparation, or commission of the intended crime.” 350 Or. at 582 (internal quotation marks omitted and emphasis added). The court explained that accomplice liability requires a specific intent to “promote or facilitate the commission of the crime committed by another.” Id.
In Perez-Chi, a jury that had been given the “natural and probably consequences” instruction on accomplice liability convicted the defendant of burglary, robbery and felony murder. 251 Or.App. at 663. The Court of Appeals applied Lopez-Minjarez and reversed that conviction for felony murder, reasoning that while the jury could have correctly found that the murder was committed “in the furtherance of” the burglary and robbery, the jury could have found that it was the “natural and probable consequence” of those crimes, instead. Id. at 668.
Respondent argues that Petitioner has not shown that a properly instructed jury could not convict now him of felony murder. Petitioner participated in the robbery and burglary. Petitioner does not - and cannot - contest that Gibson shot and killed Copp as Petitioner was attempting to flee from the scene of the crime. He admits, and testimony at Gibson's trial establishes, that he ran to the car and waited for his co-defendants to join him before driving away with the proceeds of the robbery. See, e.g., Pet'r Ex. 201 at 4 (“I started the car and was going to leave but didn't. I waited for [Herlong], and then [Gibson] came running up to the car a few minutes later.”). Because at least one reasonable juror could conclude that Copp was killed “in the course of and in furtherance of,” or “during the immediate flight” from the robbery and burglary, Petitioner has not established that he is actually innocent of felony murder. See OR. REV. STAT. § 163.115(1)(b) (1999).
The Court notes that Petitioner's co-defendant, Herlong, raised many of the same arguments in his own habeas corpus proceeding. Herlong v. Amsberry, No. 2:17-CV-00326-SB, 2019 WL 8331480 (D. Or. Oct. 10, 2019), report and recommendation adopted, No. 2:17-CV-326-SB, 2020 WL 1532283 (D. Or. Mar. 31, 2020). While that court analyzed the issues in the context of a freestanding claim of actual innocence, it acknowledged that, “whether this Court considers Herlong's claim of actual innocence as a gateway showing to excuse the untimeliness of his petition under Schlup, or as a freestanding actual innocence claim, Herlong has failed to make a satisfactory showing of actual innocence.” Id. at *3 (citing House, 547 U.S. at 555 (holding that “whatever burden a hypothetical freestanding innocence claim would require,” it would be higher than that required for a gateway showing under Schlup)). The court concluded that Herlong “failed to demonstrate how Lopez-Minjarez and Perez-Chi, clarifying state law on the scope of accomplice liability and potential jury confusion caused by a uniform instruction, prove he is actually innocent of felony murder.” Id. at *4. Herlong also argued that “he did not intend for anyone to be shot or killed, but only intended to participate in a robbery” or “that as soon as the shooting began he fled the scene.” Id. The court found the arguments and evidence presented “[did] not render [Herlong] actually innocent of the underlying robbery and burglary, or the felony murder conviction premised on those felonies and the death of Copp caused by one of the participants.” Id. (citing OR. REV. STAT. § 163.115(1)(b) (1999)).
For all these reasons, the Court concludes that Petitioner has failed to make a colorable showing of actual innocence under Schlup to overcome his procedural default or to excuse the untimeliness of his Petition, and the district judge should deny habeas relief as to Petitioner's ineffective assistance of counsel claim.
II. Ground Two: Freestanding Claim of Actual Innocence
Petitioner also raises a freestanding claim of actual innocence, which he argues is never time-barred. Am. Pet. at 5. The Supreme Court has yet to hold that a freestanding claim of actual innocence is cognizable as an Eighth or Fourteenth Amendment claim in a federal habeas proceeding. McQuiggin, 569 U.S. at 392; House, 547 U.S. at 554-55; Jones, 763 F.3d at 1246. However, on several occasions both the Supreme Court and the Ninth Circuit have assumed, without deciding, that such a claim may exist. House, 547 U.S. 554-55; Herrera, 506 U.S. at 41719, 427; Jones, 763 F.3d at 1246; see also Roberts v. Howton, 13 F.Supp.3d 1077, 1113 (D. Or. 2014) (collecting cases). In so doing, the court has opined that a petitioner must ‘“go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.'” Jones, 763 F.3d at 1246 (quoting Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997)). A petitioner's burden under this standard is “extraordinarily high” and requires a showing that is “truly persuasive.” Carriger, 132 F.3d at 476 (quoting Herrera, 506 U.S. at 417).
Even assuming that such a claim is cognizable, Petitioner's failure to establish a “gateway” claim of actual innocence necessarily means he has failed to meet the “extraordinarily high” standard required to establish a freestanding claim of actual innocence. House, 547 U.S. at 555 (Supreme Court precedent implies that freestanding claim of actual innocence requires more convincing proof of innocence than Schlup). Accordingly, the district judge should deny habeas relief as to Petitioner's freestanding actual innocence claim.
CONCLUSION
Based on the foregoing, the district judge should DENY the Amended Petition for Writ of Habeas Corpus (ECF No. 52), and should DISMISS this proceeding, with prejudice. Petitioner has not made a substantial showing of the denial of a constitutional right, and therefore the district judge also should DENY a Certificate of Appealability. See 28 U.S.C. § 2253(c)(2).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections.