Opinion
Case No. 03-0538-CV-W-HFS.
March 21, 2005
MEMORANDUM AND ORDER
Petitioner seeks release from imprisonment for second-degree murder of a small child. He contends the medical evidence presented in post-conviction proceedings compellingly supports a defense that the child's injury occurred before it was in his day-care custody. A post-conviction motion filed by current counsel and making the same argument in support of an ineffective assistance claim (regarding trial counsel) was denied May 31, 2002. Yoksh v. State, 75 S.W. 3d 375 (Mo.App.W.D. 2002). The petition here, filed in June, 2003, was out of time, as petitioner acknowledges. Petitioner asserts no theory of equitable tolling. He simply contends that the one-year statute of limitations ( 28 U.S.C. § 2244 (d) (1)) is constitutionally invalid as a bar whenever actual innocence is claimed and can be demonstrated in the legal sense used by the Supreme Court.
This acknowledgment seems dictated by Flanders v. Graves, 299 F.3d 974 (8th Cir. 2002) as well as by the procedural facts.
The State of Missouri relies on the statute of limitations, and declines to present defenses on the merits until the court rules its motion to dismiss.
As petitioner points out, however, there is Second and Eleventh Circuit authority directing the district judges to consider the merits of an actual innocence contention before reaching the constitutional question posed under the Suspension Clause. Whitley v. Senkowski, 317 F. 3d 223 (2nd Cir. 2003); Wyzykowski v. Department of Corrections, 226 F.3d 1213 (11th Cir. 2000).
Article I, section 9, clause 2, providing that the "writ of habeas corpus shall not be suspended . . ."
The constitutional validity of the one-year statute of limitations has not been ruled in the Eighth Circuit, although constitutionality was assumed in Flanders, supra. I find no cases that fully endorse respondent's theory, however, so as to completely ignore the question of innocence in this context. There are cases apparently allowing a dispositive ruling without an in-depth analysis of the innocence claim. That is the procedure I will use here.
The most recent appellate ruling that seems pertinent isSouter v. Jones, 395 F. 3d 577 (6th Cir. 2005). It allows equitable tolling when there is "newly discovered evidence" establishing a "credible claim" of actual innocence. 395 F. 3d at 588. Since we have no claim of newly discovered evidence after post-conviction proceedings were closed, the tolling point cannot be relied on here, and is not in fact asserted by petitioner.
More pertinent is the First Circuit ruling in David v. Hall, 318 F. 3d 343 (1st Cir. 2003). It affirms dismissal based on the one-year statute of limitations. The rationale largely supports the State. It states that "defendants who may be innocent are constrained by the same . . . deadlines as those against whom the evidence is overwhelming . . ." 318 F.3d at 347. But the final paragraph recites a view that, in any event, that petitioner had "not made out a predicate showing of `actual innocence', if the phrase is taken to mean that no jury would likely convict . . . based on the currently known evidence . . . In the end, the defense would depend largely on whether the jury believed (petitioner's) own self-serving testimony about his own mental state — a conclusion which . . . a jury might easily resist." 318 F. 3d at 348. Thus David is not a "clean win" for the State's view that out of time means out of time.
David does state that the Suspension Clause is not violated by the time limits of the statute, given the statutory exceptions from the bar and the "ample time" allowed by the statute for a petitioner to bring his claim within the statutory deadline. 318 F. 3d at 347. In such circumstances, Chief Judge Boudin opined, "the limitation is not even arguably unconstitutional." Ibid. As a supporting citation, the First Circuit cited the Fifth. Molo v. Johnson, 207 F. 3d 773, 775 (5th Cir. 2000).
One might guess that the David court would have affirmed dismissal without the observation about the innocence claim, but certainty cannot be asserted.
Molo is of special interest because a member of the panel was Judge John Gibson of our Circuit. It is also not a clean win for the State's theory, however, because, in affirming a dismissal, the panel stated that Molo "does not show he is factually innocent." 207 F. 3d at 775. The panel, therefore, did not decide "whether proof of factual innocence would toll the limitations period . . ." Somewhat pertinent here, however, was the court's rejection of the view that a family doctor's testimony about the defendant's mental illness should win favor over the testimony of two psychiatrists employed by the prosecution who examined him one and seven weeks after the offense. Only in that context did the panel reject the factual innocence contention. Molo does say, with David, that the Suspension Clause is not violated by the one-year statute of limitations, and noted that "nothing prevented him from filing a petition before the limitations period expired."
I will follow the lead of Molo and David in not delaying consideration of the validity of the one-year statute of limitations until there has been an in-depth fully briefed analysis of the innocence claim. It does not seem that what might be called "Second Circuit practice" adequately protects the trial court workload from a chorus of prisoner claims that they are innocent of the crimes for which they were convicted and thus may totally disregard the time limits imposed by Congress. I do agree that some peripheral attention to a claim of innocence should be given early on, despite other interests in finality. But a the trial court's tentative view of the merits, when a claim is plainly out of time, should, in my judgment be enough to sustain a dismissal. As the cases suggest, there should be a limited appraisal, to the extent feasible, about whether there is a plausible assertion of "actual innocence" — in the sense of a very probable acquittal on retrial.
Although this petitioner may be only a few weeks out of time, his contention seems to be that he could just as well assert innocence five years after final disposition of the case in State Court.
In this case I do not see enough going for petitioner to save him from the time limits imposed by Congress.
The record here is stated with judicial objectivity by Judge Hardwick in her 2002 ruling. Yoksh, supra, 75 S.W. 3d 375. The child whose death resulted in petitioner's conviction had been alone with him for over an hour when the mother came to pick him up from day care. Petitioner's wife was absent during that last period of custodial care. The child was unconscious and limp, and paramedics suspected head trauma. The soft spot on the infant's head bulged and his condition worsened until he died four days later.
Petitioner's wife testified at trial the child was "fine" when she left him. Children also testified that he was "laughing and talking" after she left. They furhter testified that a child had later pushed him into a doorjamb and one saw him fall off a couch and hit his head against a coffee table. There was medical evidence that the doorjamb and coffee table incidents were not severe enough to cause the extent of trauma that was evidenced. A Medical Examiner and neurologist testified that severe shaking was most likely the cause of the fatal injuries. There had been a period when petitioner was alone with the child, while the child was crying. There was medical testimony that the child "could not have been walking and talking after the injuries occurred."
In post-conviction proceedings it was argued that trial counsel was ineffective in trying to attribute the death to injuries suffered in the doorjamb and coffee table incidents. Instead, counsel should have presented evidence from a pediatric neurologist that the death probably resulted from an earlier injury on the day in question, under a condition known as "delayed deterioration" or "talk and die" syndrome. In support of a claim of unprofessional lack of preparation petitioner contended that counsel should have been alert to the possibility of injury prior to the time the child was in petitioner's custody. Trial counsel was aware of a radiologist's report that the head injury would not have shown up on a CAT scan until a minimum of four to six hours after the injury occurred. The CAT scan on the child was taken only about three or three and one half hours after the time when petitioner was alone with the crying child. Trial counsel did not consider this opinion reliable because all other evidence pointed to a shaking by petitioner or the doorjamb and coffee table incident.
Trial counsel canvassed for expert testimony. The neurologist chosen testified there was a possibility but not likelihood that the coffee table incident caused the fatal injury. Counsel thought he had located the best available witness. He had not been alerted to the possible use of a pediatric neurologist. At trial, however, three pediatric experts supported the general proposition that trauma to children may present differently than with adults.
In the post-conviction proceeding petitioner's current counsel used an assistant professor of pediatric neurology from UMKC. He testified that ten to twenty percent of children treated for head injury suffered from delayed deterioration. He also cited a Canadian hospital study that was not available until after trial, reporting that half the deaths of pediatric trauma victims occurred with patients who were "conscious and talking" when they arrived at the hospital. The professor, who was not practicing medicine at the time of trial, was doubtful of the 50% statistic. Exh. 2 to the petition, page 29.
Based on this showing the opinion of the Missouri Court of Appeals found no violation of the constitutional right to effective counsel. See 75 S.W. 3d 377-380. The opinion is an application of the familiar rule of Strickland v. Washington, 466 U.S. 668 (1984). Although not ripe for ruling here, it seems quite unlikely that a federal habeas review would reject the Missouri Court's application of Strickland in this case.
On the use of innocence as a gateway to reexamination of theStrickland issue, this case may be somewhat harder to rule thanDavid and Molo but there are too many imponderables to credit petitioner with the probability of acquittal on retrial, using the new approach. The time period involved might caste some suspicion on petitioner's wife. Assuming her unreadiness to confess shaking the child roughly it seems unlikely that all members of a jury would conclude that a child in "fine" condition when she left the house was already suffering from a fatal head injury. Petitioner's expert witness was less than entirely helpful in his testimony that only ten to twenty percent of children treated for head injuries suffered from delayed deterioration. 75 S.W. 3d at 378. According to the transcript only those with delayed deterioration have edema delay of about 12 hours. Exh. 2, page 31. Moreover, the initial jury heard petitioner and was able to appraise his credibility.
In my judgment this is sufficient analysis to allow conscientious use of the one-year statute of limitations adopted by Congress. I accept David and Molo in rejecting the Suspension Clause challenges to the statute under the circumstances at bar. If my review here is less thorough than the Circuit wishes district judges to use, and a more exhaustive Second Circuit-type study of the innocence issue is deemed appropriate I await further direction from that Court.
If petitioner can mount a stronger innocence claim than I describe here, he may have available State Court relief, because that court recognizes actual innocence as a stand-alone basis for granting habeas corpus, at least in capital cases. State ex rel. Amrine v. Roper, 102 S.W. 3d 541, 546-7 (Mo. banc 2003). Federalism bars that theory in this case. Herrera v. Collins, 506 U.S. 390 (1993). There is, of course, the possibility of Executive Clemency if the Governor's Office can be convinced that an innocent man has been convicted.
The motion to dismiss is hereby GRANTED.