United States District Court, W.D. Virginia, Roanoke Division
Michael F. Williams, K. Winn Allen, William Kimmitt, and Maryam Mujahid, Kirkland & Ellis LLP, Washington, D.C., Matthew C. Stiegler, Philadelphia, Pennsylvania, and Elizabeth Peiffer, Virginia Capital Representation Resource Center, Charlottesville, Virginia, for Petitioner;
Matthew P. Dullaghan, Senior Assistant Attorney General, Alice T. Armstrong, Senior Assistant Attorney General, and Benjamin H. Katz, Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Respondent.
OPINION SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW
JAMES P. JONES, District Judge.
This opinion sets forth the court's findings of fact and conclusions of law relating to a petition for habeas corpus by a state prisoner under sentence of death.
The petitioner, Ivan Teleguz, was convicted by a Virginia jury in 2006 of murder-for-hire. The jury heard testimony that in 2001 Teleguz had hired two petty criminals, Edwin Gilkes and Michael Hetrick, to kill 20-year-old Stephanie Sipe, his former girl friend and mother of his young child, to whom he was paying child support.
Gilkes and Hetrick testified that Teleguz drove them the 200-plus miles from Lancaster, Pennsylvania, to Harrisonburg, Virginia, where Sipe lived, showed them her apartment, and then left them so that he could return to Pennsylvania to establish an alibi. After waiting a few hours, and while Gilkes waited outside, Hetrick surprised Sipe in the apartment and slit her throat, as Teleguz had directed. Sipe fought back and in the struggle, Hetrick's hand was cut with his own knife. Afterwards, while cleaning his wound in the apartment's bathroom, he discovered the couple's 21-month-old son Zachary in the bathtub, where Sipe had been bathing him. Hetrick turned off the water and left. Sipe's dead body was not discovered for two days. The child was miraculously unharmed.
Although Teleguz was an immediate suspect based upon accusations from Sipe's family, the murder remained a cold case until a third man, Aleksey Safanov, a Russian emigrant in trouble with federal authorities in Boston, confided to a deputy U.S. marshal that Teleguz had told him that he had hired someone to murder Sipe. This information led Harrisonburg police to Gilkes, who implicated Teleguz and Hetrick. Upon being questioned, Hetrick in turn confessed to having been hired by Teleguz to commit the murder. Gilkes and Hetrick thereafter entered into plea agreements in which they promised to cooperate in the prosecution of Teleguz in return for agreed sentences for their participation in the murder. In accord with the agreement, Gilkes was sentenced to 15 years imprisonment and Hetrick, who had actually murdered Sipe, received a life sentence. Gilkes, Hetrick, and Safanov all testified against Teleguz at trial.
Teleguz's direct appeal was unsuccessful, Teleguz v. Commonwealth, 643 S.E.2d 708 (Va. 2007), and after exhausting his state post-conviction remedies, Teleguz v. Warden of the Sussex I State Prison, 688 S.E.2d 865 (Va. 2010), he filed the present federal habeas petition pursuant to 28 U.S.C. § 2241. I denied relief, finding that Teleguz's claims had been either properly decided by the state court, or were unavailable for review in federal court because they had not been raised in the earlier state court proceedings. Teleguz v. Kelly, 824 F.Supp.2d 672 (W.D. Va. 2011).
Teleguz noted an appeal and the court of appeals granted a certificate of appealability and remanded the case to this court for consideration of Teleguz's contention that his actual innocence of the crime allowed him to present new claims that had otherwise been procedurally defaulted, in accord with the principles of Schlup v. Delo, 513 U.S. 298 (1995). The court of appeals found that I had inadequately analyzed the Schlup gateway innocence claim and had erred in applying the Schlup doctrine individually to each defaulted claim rather than "the totality of the evidence." Teleguz v. Pearson, 689 F.3d 322, 329 (4th Cir. 2012).
In directing a remand, the court of appeals suggested that because Teleguz's Schlup argument was bottomed on his contention that two of the three principal witnesses against him had recanted their testimony, "an evidentiary hearing may be necessary to assess whether [the] recantations are credible." Id. at 331.
The court of appeals further directed that upon remand this court "may make determinations about the probative force of relevant evidence that was either excluded or unavailable at trial, and assess how reasonable jurors would react to the overall, newly supplemented record, but the district court may not reject the factual findings of a state court absent clear error." Id. at 332 (internal quotation marks and citations omitted).
In his appeal, Teleguz had complained about the lack of an evidentiary hearing on his Schlup claim, but after the remand, both Teleguz and the respondent Warden opposed such a hearing, contending that the issues could be decided on the existing record. Nevertheless, as suggested by the court of appeals, I scheduled an evidentiary hearing in order that I could properly evaluate the reliability of the new evidence. Teleguz v. Pearson , No. 7:10CV000254, 2012 WL 6151984, at *2 (W.D. Va. Dec. 11, 2012). That hearing was held on November 12 through 14, 2013. Hetrick, the actual killer, confirmed his trial testimony that he had been hired by Teleguz. Gilkes appeared but refused to testify. Safanov, now a resident of Kazakhstan in Central Asia and not amenable to subpoena, refused to appear either by deposition, Skype, or telephone.
After preparation of the hearing transcript, the parties have briefed the issues and the case is now ripe for decision.
In summary, I find that Teleguz has not shown that he is actually innocent of the murder-for-hire of Stephanie Sipe. Based upon my consideration of all of the new evidence, and without regard to whether it would necessarily be admissible under the rules of evidence, see Wolfe v. Johnson, 565 F.3d 140, 170 (4th Cir. 2009), I find that it is not likely that any reasonable juror would have had a reasonable doubt as to Teleguz's guilt of this crime.
In addition, I find that Teleguz's alternative ground for removing the bar on one of the defaulted claims - his state habeas attorney's failure to raise an issue as to Teleguz's trial counsel's handling of an implication that Teleguz had been involved in another murder - is insufficient.
Finally, I find that Teleguz has not demonstrated cause sufficient to overcome the procedural default of his claim that the prosecution knowingly used false testimony.
I. THE MURDER OF STEPHANIE SIPE.
The following facts surrounding the murder and its investigation and the resulting prosecution of Teleguz are undisputed.
On Monday, July 23, 2001, Stephanie Sipe's mother, Pamela Woods, went to her daughter's apartment after she had been unable to reach her by telephone that day or the day before. Woods discovered Sipe's body in the entryway and found her grandson unharmed in the bathroom.
Harrisonburg Police Detective Michael Whitfield was assigned to lead the homicide investigation. His first and primary suspect was Teleguz.Whitfield based this lead on reports from Sipe's family of a strained relationship between Sipe and Teleguz, primarily precipitated by a court order requiring Teleguz to pay child support. On July 24, 2001, Whitfield interviewed Teleguz at his home in Pennsylvania, and he denied involvement in the murder. He claimed that he been staying at his current girlfriend's apartment in Pennsylvania from July 20 through July 23, but could not establish an alibi from 10:30 p.m. on July 21, 2001 until 8:30 a.m. on July 22, 2001. On December 14, 2001, Investigator Whitfield executed a search warrant, collecting samples of Teleguz's blood, hair, and saliva. The blood evidence from the crime scene did not match the samples taken from Teleguz. Despite canvassing Sipe's apartment complex and collecting DNA samples from other individuals of interest, more than one year passed without any major developments.
On February 3, 2003, Deputy United States Marshal Mike Nelson in Springfield, Massachusetts, contacted Whitfield and told him that a confidential informant had come forward with information about a murder in Harrisonburg. The informant was Aleksay Safanov, who had been charged and detained in connection with a federal gun trafficking case in Springfield.Nelson was not involved in the investigation of the Sipe murder, nor was he involved in the prosecution of Safanov in Massachusetts, and he and Safanov had "developed a relationship where [they] talked about family, hockey, girlfriends, [and] life in general." (Hr'g Tr. 142:16-17, Nov. 13, 2013.) Safanov had approached Nelson with information that "indicated that [Safanov] had some information that may assist in a homicide investigation in Harrisonburg, Virginia." (Resp't's Ex. 3, at 1.) According to Whitfield's report of the investigation, Safanov said that
Teleguz told Safanov that on or about 07-01 he had hired a black male from the Lancaster, Pennsylvania, area to kill Sipe because he, Teleguz, was angry about having to make child support payments to Sipe. The information regarding child support payments had never been released to the public or to the news media.
(Pet'r's Ex. 198, at 7.) Safanov returned a few days later and added that "the black male from Lancaster, PA lives on the same one way street as the Lancaster County Jail, " which was East King Street. (Resp't's Ex. 3, at 1.) Whitfield later delivered telephone records to Nelson, who uncovered five calls from Teleguz's known number to an East King Street address. It turned out to be the residence of Edwin Gilkes, who had a prior criminal record.After Safanov identified Gilkes from a photographic array, Whitfield questioned Gilkes on July 17, 2003. He claimed no personal knowledge of the murder but said that he had heard that Teleguz had paid Hetrick to travel to Virginia and kill Sipe.
In May 2004, Hetrick was initially interviewed by the Pennsylvania State Police and denied involvement. Right before Whitfield interviewed Hetrick on June 30, 2004, Whitfield served him with a search warrant for a blood sample and DNA cheek swabs. After reviewing the attached probable cause affidavit, which detailed Safanov's and Gilkes' statements implicating him and Teleguz, Hetrick confessed that he and Gilkes had been hired by Teleguz to murder Sipe for $2, 000. In this interview, he never confirmed the child support motive but instead claimed that "[Teleguz] stated that [Sipe] had been robbing him of drug money and drugs, and there would be drugs on the premises, and I would be able to get money and drugs and stuff to [inaudible] my losses in the situation." (Pet'r's Ex. 20, at 68.) He further reported that Teleguz "had a friend that was going to cover for him, say he was there all night or something. Whatever the time period that he drove us down there and came back." (Pet'r's Ex. 20, at 71.) The samples taken from Hetrick that day were later matched to blood found at the crime scene.
Teleguz was arrested in Pennsylvania on July 1, 2004, and extradited to Virginia. He was represented by two court appointed attorneys, lead counsel Paul A. Maslakowski, the acting head of the Virginia Capital Defender office for northern Virginia, and co-counsel John S. Hart, Jr. The prosecutor was Marsha L. Garst, the long-serving Commonwealth's Attorney for Rockingham County and the City of Harrisonburg.
After a four-day trial in the Circuit Court of Rockingham County the jury found Teleguz guilty of capital murder-for-hire on February 9, 2006. Following a penalty phase proceeding on February 13 and 14, 2006, the jury fixed Teleguz's punishment at death, finding that the Commonwealth had proved the aggravating factors of "future dangerousness" and "vileness" beyond a reasonable doubt. The trial court entered judgment on July 20, 2006, sentencing Teleguz to death in accordance with the jury's verdict.
II. ACTUAL INNOCENCE CLAIM.
The governing statute, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, generally bars federal habeas relief unless a petitioner has first properly exhausted available state court remedies. 28 U.S.C. § 2254(b)(1). Proper exhaustion requires that the petitioner provide the state court with the "opportunity to correct the constitutional violation in the first instance" by presenting to the state court "the operative facts and the controlling legal principles associated with each claim." Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks and citations omitted). If the petitioner's claims were not presented to the state court, they are generally procedurally defaulted, and a federal court cannot adjudicate them. See Vinson v. True, 436 F.3d 412, 417 (4th Cir. 2006). A federal habeas claim is also barred where procedurally defaulted because a state court relied upon an adequate and independent state procedural rule to deny relief on that claim. See Gray v. Netherland, 518 U.S. 152, 162 (1996).
Accordingly, a federal court generally cannot review such claims in a habeas proceeding in the absence of cause and prejudice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). However, "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration." Murray v. Carrier, 477 U.S. 478, 495 (1986) (alterations, internal quotation marks, and citation omitted). In accord with this principle, the Schlup Court concluded that as an alternative to the cause and prejudice standard, a petitioner may reach procedurally defaulted claims if he can "establish sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial." 513 U.S. at 316. A habeas petitioner may demonstrate a "miscarriage of justice, " through "[a] proper showing of actual innocence." Wolfe, 565 F.3d at 160.
A credible claim of actual innocence "requires petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Schlup, 513 U.S. at 324. The Supreme Court has held that those petitioners claiming innocence as a gateway to their defaulted claims must demonstrate that, given their newly presented evidence, "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. at 327.As such, a claim of actual innocence will succeed only in a "severely confined category [of] cases." McQuiggin v. Perkins, 133 S.Ct. 1924, 1933 (2013).In evaluating the evidence, "[t]he court's function is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors." House, 547 U.S. at 538.
In this case, Teleguz has offered three categories of new evidence in support of his Schlup gateway innocence claim:
(1) affidavits in which Safanov and Gilkes recanted their trial testimony and claimed to being coerced into testifying falsely; (2) affidavits of multiple third-party witnesses who affirmed that Teleguz did not attend the birthday party at which he allegedly hired Hetrick; and (3) police reports and affidavits establishing that - contrary to the evidence presented at his trial - Teleguz was not involved in a murder in Ephrata, Pennsylvania.
(Pet'r's Post-Hr'g Br. 10.) The petitioner also has provided a fourth category of evidence that he contends further undermines the trial testimony of Hetrick. Each category will be addressed in turn. First, however, I will summarize the testimony of state's principal witnesses linking Teleguz to the murder - Michael Hetrick, the actual killer; his accomplice, Edwin Gilkes; and the informant who ultimately led investigators to the conspirators, Aleksay Safanov.
A. THE KEY WITNESSES.
Safanov testified at Teleguz's trial through a Russian language interpreter. He testified that he had met Teleguz in 1998 while both were working in construction. He stated that in the spring of 2001 Teleguz had asked him to kill Sipe in order to avoid his child support obligation. They discussed a fee between $3, 000 and $5, 000, but Safanov "took this as a joke and [he] declined." (J.A. at 2660:15.) Safanov also had a discussion with Teleguz after the murder, in which Teleguz was concerned about "blood evidence" left at the scene of the crime. (J.A. at 2661:12.) Teleguz told Safanov that he had paid the "black man, " and that he had "to be taken out." (J.A. at 2661:17.) This was a reference to Gilkes, whom Safanov later identified in a lineup. On cross-examination, defense attorney Maslakowski suggested that Safanov "told [investigators] this story because [he] wanted to get out from under the charges, " and Safanov agreed. (J.A. at 2681:17-18.)
According to his testimony, Gilkes had known Teleguz for four years, but saw him infrequently. At the time of the murder, Gilkes was living at his sister Latesha Everhart's house on East King Street in Lancaster, Pennsylvania. Teleguz approached him and "said he wanted a murder done. He didn't specify who, female, or where it was going to be... [and] he offered a price from $3, 000.00 to $10, 000.00." (J.A. at 2820:15-16;18-19.) Gilkes refused the offer and that was the last the two men spoke of a murder-for-hire scheme. However, in June or July 2001, Gilkes overheard a conversation in his home "about a murder, " in which Teleguz "was speaking of a price from $3, 000.00 to $4, 000.00 and Hetrick was basically trying to get him to go up and down." (J.A. at 2821:25; 20-22.) When Teleguz realized that Gilkes was listening, he warned Gilkes to remain silent, and this concerned him because he had heard "that [Teleguz] had ties with the Russian mob at the time." (J.A. at 2822:24-25.) He noticed Teleguz and Hetrick speaking once again at his brother-in-law David Everhart's birthday party but he "didn't hear them talking about anything that had to do with the murder." (J.A. at 2825:21-22.)
On some later date around 10:00 or 10:30 p.m., Teleguz appeared at Gilkes' residence. Gilkes claimed that he was unaware that Sipe's murder was the true intention of that evening's trip, because "Hetrick... said that he wanted [Gilkes] to go with him to watch his back on a drug run because it was the first time [he was] doing a drug run with the Russians." (J.A. at 2826:12-14.) Gilkes recalled that Teleguz was driving, and that he did not know where they were going but eventually arrived at a Walmart in Harrisonburg, Virginia. Both Hetrick and Gilkes entered the store but Gilkes did not see what was purchased. When they returned to the car where Teleguz was waiting, Hetrick opened the shopping bag to reveal "a hard plastic container with a handle." (J.A. at 2828:10.) Teleguz then dropped the two men off at an apartment complex and handed Hetrick a picture of what "looked to be a female." (J.A. at 2828:21.) After realizing the true purpose of the trip, Gilkes panicked. Hetrick attempted to persuade him to assist in the murder of Stephanie Sipe, but Gilkes refused to participate. Hetrick and Gilkes returned to Walmart by taxi, and Gilkes did not understand why Hetrick was waiting to commit the murder. Once back at the apartment complex, Hetrick removed a knife and clothes from the Walmart shopping bag, approached Sipe's apartment, and returned "about fifteen minutes later and [had] a shirt wrapped around his hand." (J.A. at 2835:15-16.)
When Gilkes asked how they were to get back to Pennsylvania, Hetrick told him that Teleguz had already returned to Pennsylvania to establish an alibi. Hetrick and Gilkes called a taxi from a local restaurant, which took them to a train station but no train was running. However, "[t]here was a white male there with three young females and they were telling [Hetrick and Gilkes] about some bus that was supposed to be coming so they drove [them] to the bus station." (J.A. at 2837:20-23.)
On cross-examination, Gilkes admitted that he had initially told Detective Whitfield that he had not been involved in the murder and that he had only learned of it through two Russians - Eugene Popov and Anatoly Rymarenko. Defense counsel then asked, "Do you remember telling the investigators that you were at the recreation center in this small town and that Ivan Teleguz and two other people came in, walked up to some guy, blew him away and told you they'll be back for the other two?" (J.A. at 2852:6-10.) Gilkes said that he did not so recall. On redirect, Gilkes explained that he did not actually witness a murder at the recreation center in Ephrata but, rather, witnessed the following:
Well, there was two males that got out of the car. And the one walked up and said that, told Gene Papov [sic] if his boys didn't have the money at a certain time that in a couple of days that some of them would be killed. And then after they left Gene explained the situation to me a little bit. But at the time I did not realize that, I didn't know Teleguz so I didn't know that that was him at the time until he showed up at the party for the first time.
(J.A. at 2870:7-15.) Gilkes testified that it had not been Teleguz who had made the threat although he had been present. He reported that "[s]ome other Russian" was murdered on Main Street in Ephrata approximately three days to one week after the confrontation, remarking that "you can check the records on that." (J.A. at 2871:4-5;10.)
Hetrick testified that he had met Teleguz about three months before the murder. At that time, he was living with David Everhart, Latesha Everhart, and Gilkes on East King Street in Lancaster, Pennsylvania. According to Hetrick, in June 2001, at David Everhart's birthday party, Gilkes "had approached [him] in the living room, [and] stated that [Teleguz] had this murder for hire that he wanted done and he'd stated that he was offering a thousand dollars." (J.A. at 2879:23-25.) Moving the conversation to the back porch, "Teleguz then stated to [Hetrick] that he would give [Hetrick and Gilkes] a thousand dollars to murder his ex-girlfriend." (J.A. at 2880:3-4.) Hetrick stated that Teleguz had been motivated to murder the mother of his child because "she had robbed him of some drugs and money [and because] she had asked him for child support, but that... didn't seem like the main point at the time." (J.A. at 2880:6-9.) Teleguz told Hetrick that he "wanted her dead, that he wanted her throat cut" and Hetrick and Teleguz bartered for a period of time." (J.A. at 2880:14-17.) The men ultimately arrived at a $2, 000 fee for Gilkes and for Hetrick. They did not decide on a specific date, but Teleguz stated that "he would contact [them] whenever he was prepared." (J.A. at 2881:4.) Hetrick stated that he had been under the impression that he was to "oversee" the murder and that Gilkes actually intended to commit the crime. (J.A. at 2881:14.) However, if Gilkes failed to follow through, Hetrick would murder Sipe in his place, because "[i]t was understood that the act was to be done one way or another." (J.A. at 2881:18-19.)
Hetrick recalled that Teleguz came to the East King Street residence about a month after this conversation, on July 21, 2001, at approximately 9:00 or 10:00 p.m. He gave Hetrick $1, 000 in advance, which Hetrick split evenly with Gilkes, and they began their trip to Harrisonburg. Hetrick claimed that he had never been to Harrisonburg nor did he know Stephanie Sipe. Arriving at the Harrisonburg Walmart, Gilkes and Hetrick purchased a gym bag, rubber gloves, a filet knife, a pair of shorts, and a pair of shoes. Hetrick showed Teleguz the knife and supplies upon returning to the car, and "he indicated that they were adequate for what was to be done." (J.A. at 2889:17-18.)
According to Hetrick, they subsequently drove to Deer Run Apartments where Teleguz pointed out Sipe's residence. Teleguz "wanted [Hetrick and Gilkes] to wait until he had time to get back to Pennsylvania so that he could meet up with a friend or whatever he had planned to do from there and establish his whereabouts at the time of the actual murder." (J.A. at 2891:23-2892:2.) Teleguz then dropped them about a quarter of a mile from the apartment and began his trip back to Lancaster. While they waited, Hetrick and Gilkes shopped at a nearby convenience store and returned to Walmart by taxi. According to Hetrick, both he and Gilkes panicked, but Hetrick felt that, if he did not murder Sipe, he "would die in her place." (J.A. at 2895:6.) He "was afraid of Ivan Teleguz" and "afraid that Mr. Teleguz was affiliated with the Russian Mafia." (J.A. at 2895:7; 20-21.) Hetrick then collected his supplies, crossed the street, and knocked on Sipe's door. When she answered, he told her that his car had broken down and asked if he could use her phone. He attacked her when she opened the door. Sipe and
Hetrick struggled, and at some point, the knife badly cut Hetrick's hand. After murdering Sipe, Hetrick left the knife in the kitchen sink and went to the bathroom to clean his wound, where he discovered Zachary, Sipe and Teleguz's child, in the bathtub. Hetrick turned off the water, tried to drain the tub, and left the child. He recalled fleeing the apartment and nearly colliding with "a brown skinned gentleman." (J.A. at 2901:21.) He estimated that it was "[e]arly morning" and "[r]ight around church time." (J.A. at 2901:23.)
Hetrick ran back to where Gilkes had been waiting, disposed of his clothing, and changed into the new clothes he had purchased at Walmart. The two men called a taxi from a nearby Exxon station and asked it to meet them at an adjacent restaurant. According to Hetrick, a middle-aged black taxi driver drove them to the train station but no train was running, so he then delivered them to a bus station in a nearby city, where they boarded a bus to Pennsylvania.
Hetrick and Gilkes phoned Teleguz the next day, and once he had received confirmation of Sipe's death, they were paid the balance of their fee. Hetrick recounted that Teleguz "noticed that [his] hand had been cut... [and] [h]e seemed upset by that." (J.A. at 2906:21-22.) Hetrick recalled being upset as well, "because [he] didn't expect the kid to be in the apartment. And [Teleguz] asked what was done and [Hetrick] said ...