Ivan Teleguz v. Loretta Kelly
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 7:10-cv-00254-JPJ. [999707725]. [11-9, 14-2]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-9
IVAN TELEGUZ,
Petitioner - Appellant,
v.
DAVID ZOOK, Warden, Sussex I State Prison,
Respondent - Appellee.
No. 14-2
IVAN TELEGUZ,
Petitioner - Appellant,
v.
DAVID ZOOK, Warden, Sussex I State Prison,
Respondent - Appellee.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke.
James P. Jones, District
Judge. (7:10−cv−00254−JPJ)
Argued:
September 16, 2015
Decided:
November 30, 2015
Before MOTZ and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.
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Affirmed by published opinion. Judge Wynn wrote the opinion, in
which Judge Motz joined.
Senior Judge Davis wrote a separate
opinion concurring in part and dissenting in part.
ARGUED: Michael Francis Williams, KIRKLAND & ELLIS LLP,
Washington, D.C., for Appellant.
Alice Theresa Armstrong,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee. ON BRIEF: Kenneth W. Allen, William P.J. Kimmitt,
KIRKLAND & ELLIS LLP, Washington, D.C.; Matthew C. Stiegler,
Philadelphia, Pennsylvania; Elizabeth J. Peiffer, VIRGINIA
CAPITAL
REPRESENTATION
RESOURCE
CENTER,
Charlottesville,
Virginia, for Appellant.
Mark R. Herring, Attorney General of
Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.
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WYNN, Circuit Judge:
In 2006, a jury convicted Ivan Teleguz of capital murder
for hire of his ex-girlfriend.
After making his way through the
Virginia state courts, Teleguz sought habeas corpus relief in
federal court.
In 2012, this Court held that the district court
had
engage
failed
habeas
to
petition,
innocence claim.
Before
us
several-day
sufficient
as
it
inquiry
related
into
to
Teleguz’s
his
gateway
Accordingly, we remanded for reconsideration.
is
the
evidentiary
by
a
particularly
now
determinations
supported
in
using
the
fruit
of
hearing,
the
record.
that
the
appropriate
The
remand.
district
legal
district
After
court
standard
court’s
denial
a
made
and
of
Teleguz’s petition for a writ of habeas corpus therefore stands.
I.
In
2001,
Stephanie
Sipe
was
found
murdered
in
the
Harrisonburg, Virginia apartment she shared with her infant son.
While Teleguz, Sipe’s ex-boyfriend and her son’s father, had
been
a
suspect,
Safanov, 1
the
imprisoned
investigation
in
had
Massachusetts
stalled
on
until
federal
Aleksey
charges,
provided a tip to United States Marshal Michael Nelson that “he
knew of a Russian male that had his wife killed.
1
He said that a
Safanov was also Teleguz’s co-defendant in a firearms
possession and sales case in which Safanov pled guilty and
Teleguz went to trial and was convicted on all counts.
United
States v. Teleguz, 492 F.3d 80 (1st Cir. 2007).
3
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Russian male hired a black male from Pennsylvania, Lancaster,
Pennsylvania to kill his wife.”
J.A. 2828.
Safanov’s tips led
to Edwin Gilkes, and U.S. Marshal Nelson passed the information
on
to
the
Harrisonburg
Police
Department.
Ultimately,
the
investigation resulted in, among other things, a capital murder
for hire case against Teleguz.
In February 2006, a jury convicted Teleguz of murder for
hire.
Teleguz v. Pearson, 689 F.3d 322, 325 (4th Cir. 2012).
Michael
Hetrick,
testified
at
who
trial
had
that
actually
Teleguz
committed
had
paid
the
him
killing,
two
thousand
dollars to slit Sipe’s throat.
Hetrick’s murder-for-hire allegations were corroborated by
both Gilkes and Safanov.
present
at
a
birthday
commit the murder.
Hetrick
to
Sipe’s
during the murder.
Gilkes testified that he had been
party
where
Teleguz
hired
Hetrick
to
Gilkes also testified that he accompanied
apartment
and
waited
outside
for
Hetrick
Gilkes further claimed that he was afraid of
Teleguz because he had heard rumors that Teleguz was a member of
the Russian mafia.
Safanov testified at Teleguz’s trial that Teleguz attempted
to
hire
him
to
murder
Sipe
to
avoid
paying
child
support.
Safanov also testified that Teleguz had spoken to him about the
murder after it had occurred, complaining that the man he had
hired to kill Sipe had left blood at the scene and offering
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Safanov money to “eliminate” the killer.
Teleguz, 689 F.3d at
326.
In February 2006, a Virginia jury recommended that Teleguz
be sentenced to death upon finding two statutory aggravating
factors: vileness and future dangerousness.
The Supreme Court
of Virginia affirmed Teleguz’s conviction and sentence.
v. Commonwealth, 643 S.E.2d 708 (Va. 2007).
Teleguz
Teleguz proceeded
to file a petition for writ of habeas corpus in state court,
which
the
Supreme
Court
of
Virginia
dismissed.
Teleguz
v.
Warden of Sussex I State Prison, 688 S.E.2d 865 (Va. 2010).
Teleguz
then
turned
to
the
federal
courts,
filing
a
petition for writ of habeas corpus in the United States District
Court for the Western District of Virginia in November 2010.
Some of Teleguz’s claims had been adjudicated on the merits in
state
court
while
others
Teleguz, 689 F.3d at 326.
had
been
procedurally
defaulted.
Teleguz argued that his defaulted
claims should nevertheless be considered, primarily because he
had
new,
reliable
evidence
that
he
was
actually
innocent
(“Gateway Innocence Claim”).
In support of his Gateway Innocence Claim, Teleguz offered
what we previously described as three categories of evidence.
First, Teleguz presented affidavits of witnesses who indicated
that they had not seen him at the birthday party during which he
was alleged to have hired Hetrick to kill Sipe.
5
Second, he
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presented
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evidence
to
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establish
that
a
murder
in
Ephrata,
Pennsylvania alluded to during his trial never occurred.
and
most
importantly,
Teleguz
presented
affidavits
Third,
in
which
Gilkes and Safanov recanted testimony they offered at Teleguz’s
trial.
Gilkes claimed that he had been coerced into testifying
against Teleguz by the prosecutor, who “made clear that if [he]
did not, [he] would have been the one on death row today, not
Teleguz.”
J.A. 3546.
Gilkes executed affidavits in both 2008
and 2010 disavowing aspects of his trial testimony.
Similarly,
Kazakhstan
and
Safanov,
who
Kyrgyzstan,
had
left
ostensibly
the
United
submitted
an
States
for
affidavit.
According to that affidavit, as well as affidavits submitted by
Teleguz’s defense team, which had been in contact with someone
claiming
discussed
to
falsely
be
Sipe’s
during
Safanov,
murder
Teleguz’s
Safanov
with
asserted
Teleguz
trial
that
and
because
he
agreed
both
the
had
to
never
testify
prosecutor
pursuing Teleguz and a United States marshal told him that if he
cooperated, he would be eligible for perks including an S visa
allowing him to remain in the United States despite pending gun
charges.
In August 2011, the district court denied Teleguz habeas
relief without holding a hearing.
Supp.2d 672 (W.D. Va. 2011).
Teleguz v. Kelly, 824 F.
Teleguz appealed, arguing that he
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was
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“entitled
to
an
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evidentiary
hearing
to
demonstrate
miscarriage of justice.”
Petitioner’s Br. at ii.
vacated
a
and
remanded
for
rigorous
Gateway
a
This Court
Innocence
Claim
analysis, strongly suggesting that an evidentiary hearing may be
warranted to assess the credibility of the recanting witnesses.
Teleguz, 689 F.3d 322.
On
remand
in
district
court,
Teleguz
changed
his
tune,
“arguing that an evidentiary hearing [was] unnecessary” and that
the district court should decide his Gateway Innocence Claim “on
the cold record.”
Teleguz v. Pearson, No. 7:10CV00254, 2012 WL
6151984, at *2 (W.D. Va. Dec. 11, 2012).
“In light of th[is
Court’s] instructions,” however, the district court found that
an
evidentiary
Accordingly,
it
hearing
held
was
a
“necessary.”
several-day
Id.
evidentiary
at
hearing
*3.
in
November 2013.
At the hearing, Gilkes appeared but refused to testify.
And Safanov did not appear, even by deposition or phone.
In
other words, neither of the recanters testified in support of
their recantations.
Meanwhile, Hetrick appeared and testified
in detail and consistent with his trial testimony, i.e., that
Teleguz had hired him to kill Sipe.
whom
Gilkes
and
Safanov
accused
Prosecutor Marsha Garst,
of
threatening
them
into
testifying against Teleguz, appeared and testified that those
accusations were false.
And U.S. Marshal Nelson testified that
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Safanov’s
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accusation
that
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Nelson
had
told
Safanov
he
could
benefit from an S visa for assisting the government was also
false.
Ultimately, in July 2014, the district court again denied
Teleguz’s petition.
The district court held that it “c[ould]
not conclude that more likely than not, given the overall, newly
supplemented
Teleguz
record,
guilty
no
beyond
reasonable
a
juror
reasonable
would
doubt.
have
As
found
such,
the
petitioner has not made a threshold showing of actual innocence
to permit review of his procedurally-defaulted claims.”
Teleguz
v. Davis, No. 7:10CV00254, 2014 WL 3548982, at *20 (W.D. Va.
July
17,
2014)
(quotation
marks
and
citation
omitted).
The
district court also rejected Teleguz’s claim that he had made a
sufficient showing that his habeas attorneys had been deficient
in
failing
to
pursue
(“Martinez Claim”).
the
This
Ephrata,
appeal
Pennsylvania
ensued.
We
murder
now
issue
review
the
district court’s denial of Teleguz’s habeas petition de novo.
Wolfe v. Johnson, 565 F.3d 140, 160 (4th Cir. 2009).
II.
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) sharply limits federal habeas relief.
Sharpe v. Bell,
593
a
F.3d
372,
378-79
(4th
Cir.
2010).
If
state
court
adjudicates a petitioner’s claims on the merits, a federal court
may provide relief only if the resulting state court decision
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“[i]s contrary to or involved an unreasonable application of
federal law” or “[i]s based on an unreasonable determination of
the facts in light of the evidence” that was before it.
28
U.S.C. § 2254(d).
Generally, a federal court may not consider claims that a
petitioner
failed
to
raise
at
required under state law.
(2006).
Exceptions
demonstrates
cause
asserted error.”
time
and
in
the
manner
House v. Bell, 547 U.S. 518, 536
exist,
for
the
the
however,
default
and
when
“the
prejudice
prisoner
from
the
Id.
One such exception is made for cases in which a compelling
showing of actual innocence enables a federal court to consider
the merits of a petitioner’s otherwise defaulted claims.
See
Schlup
new
v.
Delo,
513
U.S.
298
(1995).
In
such
cases,
evidence “establish[es] sufficient doubt about [a petitioner’s]
guilt to justify the conclusion that his execution would be a
miscarriage of justice unless his conviction was the product of
a fair trial.”
Id. at 316 (emphasis omitted).
Another such exception exists for ineffective-assistanceof-trial-counsel claims where “(1) the ineffective-assistanceof-trial-counsel claim is a substantial one;” (2) the “cause”
for
default
ineffective
“consist[s]
counsel
of
during
there
the
being
state
no
counsel
collateral
or
only
review
proceeding;” (3) “the state collateral review proceeding was the
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initial
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review
proceeding
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in
respect
to
the
ineffective-
assistance-of-trial-counsel claim;” and (4) state law requires
that an ineffective assistance claim “be raised in an initialreview collateral proceeding.”
461
(4th
Cir.
2014),
cert.
Fowler v. Joyner, 753 F.3d 446,
denied,
135
S.
Ct.
1530
(2015)
(quotation marks and citations omitted).
When these conditions
are
defaulted
met,
the
merits
of
an
otherwise
assistance claim may be reached.
ineffective
Martinez v. Ryan, 132 S. Ct.
1309, 1320 (2012).
Both
of
mechanisms.
otherwise
merits.
these
If
exceptions
the
defaulted
are,
requisite
in
showing
substantive
essence,
claims
is
to
made,
be
procedural
they
reached
allow
on
the
Id.; Sibley v. Culliver, 377 F.3d 1196, 1207 n.9 (11th
Cir. 2004) (distinguishing between a substantive claim and a
gateway claim through which a habeas petitioner must pass to
have his substantive claims considered on the merits).
Stated
differently, although a petitioner claims actual innocence, for
example, for purposes of asserting a gateway innocence claim,
such an innocence claim “does not by itself provide a basis for
relief.
Instead, his claim for relief depends critically on the
validity”
Hardy,
of
628
his
F.3d
procedurally
314,
318
defaulted
(7th
omitted).
10
Cir.
claims.
2010)
Coleman
(quotation
v.
marks
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With this legal framework in mind, we turn to Teleguz’s
Schlup and Martinez arguments.
A.
With his main argument on appeal, Teleguz challenges the
district
court’s
rejection
of
his
Gateway
Innocence
Claim.
Teleguz contends that the district court’s analysis was unsound
and that its conclusion constitutes reversible error.
With both
contentions, we disagree.
When a petitioner raises a gateway innocence claim, it
must be supported by “new reliable evidence.”
at 324 (emphasis added).
Schlup, 513 U.S.
However, in its consideration of a
petitioner’s Schlup gateway innocence claim, the district court
“must consider ‘all the evidence’ old and new, incriminating and
exculpatory, without regard to whether it would necessarily be
admitted
trial.’”
under
‘rules
of
admissibility
that
would
govern
at
House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at
327–28).
In cases with recantations, evidentiary hearings “may be
necessary
to
assess
whether
[they]
are
credible.
.
.
.”
Teleguz, 689 F.3d at 331 (quotation marks and citation omitted).
Without doubt, “the district court is permitted under Schlup to
‘make some credibility assessments’ when, as here, a state court
has
not
presented
evaluated
evidence
the
reliability
[that]
may
of
indeed
11
a
call
petitioner’s
into
‘newly
question
the
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credibility of the witnesses presented at trial.’”
Id. at 331-
32 (quoting Schlup, 513 U.S. at 330).
Ultimately, the district court must determine whether “it
is more likely than not that no reasonable juror would have
found
[the]
petitioner
Schlup, 513 U.S. at 328.
guilty
beyond
a
reasonable
doubt.”
Or, as this Court put it, “to satisfy
the Schlup standard, a petitioner must . . . demonstrate that
the totality of the evidence would prevent any reasonable juror
from finding him guilty beyond a reasonable doubt, such that his
incarceration is a miscarriage of justice.”
at 329.
Teleguz, 689 F.3d
Only then may the district court reach the merits of
the petitioner’s procedurally defaulted claims.
House, 547 U.S.
at 538.
The Supreme Court has underscored that “the Schlup standard
is demanding” and permits merits review only in “extraordinary”
cases.
House, 547 U.S. at 538 (quotation marks omitted).
See
also McQuiggin v. Perkins, 133 S. Ct. 1924, 1936 (2013) (“We
stress once again that the Schlup standard is demanding.
The
gateway should open only when a petition 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.”) (quotation
marks and citation omitted).
At the same time, though, the
Schlup standard does not require absolute certainty about the
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petitioner’s innocence.
that
more
likely
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Rather, the petitioner must demonstrate
than
not,
in
light
of
new
and
reliable
evidence, no reasonable juror would find him guilty beyond a
reasonable doubt.
House, 547 U.S. at 538.
Based on the record before us now, we, like the district
court, are unable to reach the conclusion that “the totality of
the evidence would prevent any reasonable juror from finding
[Teleguz] guilty beyond a reasonable doubt.”
Teleguz, 689 F.3d
at 329.
1.
We
focus
first
on
the
Gilkes
and
Safanov
recantations,
which are at the heart of Teleguz’s Gateway Innocence Claim.
Gilkes
recanted
several
key
aspects
of
his
trial
testimony,
which he claimed were the products of coaching and intimidation.
Specifically,
in
his
post-trial
affidavits,
Gilkes
recanted,
among other things, his claim that Teleguz was present at David
Everhart’s birthday party, where Hetrick contended that Teleguz
had hired him to kill Sipe.
Further, Gilkes claimed that he
“never heard or overheard Ivan Teleguz hiring Michael Hetrick to
kill his ex-girlfriend,” J.A. 3484, and claimed that he did not
“know who hired Hetrick to kill Ms. Sipe, or if anyone hired
him.”
J.A. 3548.
Gilkes claimed that he had been coerced into testifying
against Teleguz by the prosecutor, who “made clear that if [he]
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did not, [he] would have been the one on death row today, not
Teleguz.”
J.A. 3546.
Per, Gilkes “[m]ost of [his] testimony
was fabricated,” id., and he “said those things because Marsha
Garst told [him] that she was only interested in information
that put this murder on Ivan Teleguz.”
J.A. 3484.
Gilkes
plainly stated in his affidavits that Garst and Investigator
Whitfield, the police detective on the case, told him to say
that
Teleguz
was
responsible
for
Ms.
Sipe’s
murder.
For
example, Gilkes asserted:
I said those things because Marsha Garst told me
that she was only interested in information that put
this murder on Ivan Teleguz.
During at least one
interrogation of me by Marsha Garst, she directed the
investigator to turn off the tape recorder. While the
tape was off, she told me that it was Ivan Teleguz
that she was interested in.
She already knew that
Michael Hetrick had done the killing because she had
his DNA at the scene.
She said that any deal I got
would depend on me giving her Ivan Teleguz, and she
told me to give her as much about Ivan Teleguz as I
could.
J.A. 3484.
Likewise,
Sipe’s
murder
Teleguz’s
Teleguz
Safanov
trial
and
cooperated,
a
he
with
later
claimed
Teleguz
only
because
United
States
and
would
be
that
agreed
both
the
marshal
eligible
for
never
to
testify
discussed
prosecutor
told
perks
allowing him to stay in the United States.
14
he
him
that
including
during
pursuing
if
a
he
visa
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Because Safanov had left the United States, contact with
him has been only long-distance.
Teleguz’s defense team had had
conversations with someone claiming to be Safanov and submitted
affidavits stating, for example:
In the first phone call, we identified ourselves
as Teleguz’s lawyers.
Safanov told us that Marcia
[sic]
Garst,
the
Commonwealth’s
Attorney
who
prosecuted Teleguz, guaranteed she would get Safanov
an S Visa. An S Visa would allow him to stay in the
country despite his criminal convictions.
Garst
promised Safanov she would get him an S Visa, if
Safanov would help Garst get the death penalty for
Teleguz.
J.A.
3555.
someone
Similarly,
claiming
to
be
the
recanting
Safanov
affidavit
himself
stated,
executed
among
by
other
things:
Ivan has never told me that he had arranged to
have Stephanie Sipe killed, and my testimony at his
capital murder trial, that he did tell me this, was
false. I was pressured by Marsha Garst, the Virginia
prosecutor in Ivan’s capital case, to testify that
Ivan had arranged the murder so that Ivan would get
the death penalty.
In exchange for my testimony,
Garst offered to help me in a number of ways,
including help getting a good deal on federal criminal
charges I was facing at the time.
J.A.
3595.
Neither
hearing.
Safanov
nor
testified
at
the
evidentiary
The district court thus noted its “limited ability to
judge their truthfulness.”
By
Gilkes
contrast,
misconduct—Garst,
the
Teleguz, 2014 WL 3548982, at *9.
government
Whitfield,
and
15
witnesses
accused
Nelson—testified
at
of
the
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evidentiary hearing.
visited
him
in
Garst’s
response
For example, Safanov claimed Garst had
prison
at
Pg: 16 of 46
with
the
cookies
she
evidentiary
had
baked
him.
“I
not
bake
hearing:
for
do
cookies for inmates, nor would I have done that.”
J.A. 2893.
When asked if she had made Safanov any guarantees about an S
visa,
she
flatly
local
state
denied
any
such
constitutional
officer;
representation.”
J.A. 2892.
instructed
Safanov
either
allegations,
I
noting
“I’m
a
make
such
a
cannot
And Garst flatly denied having
or
Gilkes
to
lie—either
to
secure
Teleguz’s capital conviction or for any other reason.
Similarly, when U.S. Marshal Nelson was asked, for example,
if he had spoken “with Mr. Safanov about any visa issues that he
was facing,” he flatly denied with a “No, sir.”
J.A. 2838.
Nelson similarly denied having any discussions with Safanov’s
girlfriend
about
Safanov’s
visa
issues.
Instead,
Nelson
confirmed that he had not even known about the S visa program
for government cooperators at the pertinent time.
Nelson also
made plain that he had had no involvement with the Virginia
investigation
Harrisonburg
of
the
police
Sipe
the
tip
murder
after
information
he
relayed
that
to
the
rekindled
the
stalled investigation and ultimately led to Teleguz.
Despite
the
claims
of
prosecutorial
misconduct,
at
the
evidentiary hearing, Garst, Whitfield, and Nelson testified and
denied
Gilkes’s
and
Safanov’s
16
accusations
of
coaching,
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intimidation,
and
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misconduct.
Teleguz’s
opportunity to cross-examine these witnesses.
counsel
had
the
And the district
court found Garst’s, Nelson’s, and Whitfield’s versions of the
pertinent events “reasonable,” and their testimony “credible.”
Teleguz, 2014 WL 3548982, at *10-11.
In other words, the district court had before it affidavits
asserting that Gilkes and Safanov had falsely testified about
Teleguz’s
guilt
at
the
behest
of
the
prosecution.
But
the
recanting affiants chose not to testify and were not subject to
cross-examination.
Meanwhile,
the
government
witnesses
implicated in Gilkes’s and Safanov’s affidavits took the stand
and gave reasonable accounts that the district court believed.
The district court therefore credited the prosecution’s version
of
events
and
specifically
discredited
finding
the
Gilkes’s
recanting
and
Safanov’s
affidavits
versions,
“unreliable.”
Teleguz, 2014 WL 3548982, at *10.
When we remanded this matter for an evidentiary hearing—at
Teleguz’s express request—we made plain that the district court
could,
and
indeed,
determinations.
might
need
to,
Teleguz, 689 F.3d at 331.
make
credibility
See also Schlup, 513
U.S. at 330 (“[T]he newly presented evidence may indeed call
into
question
trial.
the
credibility
of
the
witnesses
presented
at
In such a case, the habeas court may have to make some
credibility
assessments.”).
The
17
district
court
heard
our
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instructions loud and clear, held a several-day hearing, and
made the necessary credibility determinations. 2
Credibility
degree
Norfolk
of
determinations
appellate
Dredging
are
deference.”
Co.,
531
“deserving
Evergreen
F.3d
302,
(quotation marks and citation omitted).
of
the
Int’l,
308
(4th
highest
S.A.
Cir.
v.
2008)
See also, e.g., O’Dell
v. Netherland, 95 F.3d 1214, 1250 (4th Cir. 1996) (en banc)
(noting that “the district court’s factual findings regarding
the credibility of testimony it has actually heard are findings
subject to review only under a clearly erroneous standard”).
Indeed, the court below, and “not the reviewing court, weighs
the credibility,” and we generally “do not review credibility
determinations.”
Smith v. Bank of Am., N.A., 443 F. App’x 808,
809 (4th Cir. 2011) (unpublished).
We
see
no
basis
for
substituting
our
determinations for the district court’s.
own
credibility
Gilkes and Safanov
claimed that they lied at trial because they were instructed and
intimidated into doing so by the prosecution.
But Gilkes and
Safanov refused to testify at the evidentiary hearing and affirm
their
recantations
Meanwhile,
the
or
be
subject
implicated
to
prosecution
2
cross-examination.
witnesses—Garst,
Nowhere in our prior opinion did we “order,” Petitioner’s
Br. at 28, the district court to make a finding on remand
regarding whether the circumstances surrounding the Gilkes and
Safanov recantations were the result of coercion, bribery, or
misdealing.
18
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Whitfield,
Teleguz’s
Filed: 11/30/2015
and
Nelson—did
counsel,
and
Pg: 19 of 46
testify,
were
deemed
were
cross-examined
credible.
Under
by
these
circumstances, we uphold the district court’s determination that
the recanting affidavits did not constitute the “reliable” new
evidence that Schlup requires.
Schlup, 513 U.S. at 324. 3
2.
In contrast to Gilkes and Safanov, Hetrick testified at the
evidentiary hearing.
Teleguz argues that the district court
erred in finding Hetrick’s testimony credible.
Again, we see no
basis for disturbing the district court’s determination. 4
At trial and at the evidentiary hearing, Hetrick testified
that Teleguz agreed to pay him two thousand dollars to kill
Sipe, who had taken money and drugs from Teleguz and sought
child support for their infant son.
and
Gilkes
from
Lancaster,
Teleguz later drove Hetrick
Pennsylvania
to
Harrisonburg,
Virginia, where Sipe lived, showed them her apartment, and then
left them to establish an alibi.
3
Hetrick gained entry into the
The district court also noted inconsistencies and gaps in
the recanting affidavits.
That discussion is, however,
tangential to the larger thrust, i.e., the prosecutorial
intimidation and influence, which is thus our focus.
4 Teleguz plainly overreaches in trying to suggest that in
stating “having observed his demeanor and testimony first-hand,
I believe that Hetrick’s evidence alone was sufficient to have
convinced the jury of Teleguz’s guilt,” Teleguz, 2014 WL
3548982, at *17, the district court thereby “rejected” the state
court’s statement that “to return a guilty verdict, the jury had
to believe the testimony of Safanov, Gilkes, and Hetrick.”
Petitioner’s Br. at 30-32.
19
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apartment
Filed: 11/30/2015
and
slit
Sipe’s
Pg: 20 of 46
throat
as
Teleguz
had
directed.
However, Sipe fought back and, in the struggle, Hetrick wounded
his hand with his own knife.
Afterwards, while cleaning his
wound, he discovered the couple’s infant son in the bathtub.
Hetrick turned off the bathtub water and left.
The
district
[Hetrick’s]
account
court
demeanor
detailed,
and
because
court
he
cooperating
opportunity
testimony
with
to
“observe[]
first-hand”
and
found
his
testimony,
and
his
trial
Teleguz, 2014 WL 3548982, at *17.
did
not
secured
or
the
consistent
“highly creditable.”
district
had
a
wholly
better
because
changing his account.
of
discount
deal
the
with
risks
Hetrick’s
the
The
testimony
government
associated
with
for
later
Instead, the district court noted, for
example, that “[l]eniency for government cooperators is common,
and absent evidence of other misconduct, their motivation to
help
themselves
unreliable.”
“deserving
Evergreen
does
not
Id. at *16.
of
the
Int’l,
render
statements
necessarily
Again, credibility determinations are
highest
S.A.,
their
531
degree
F.3d
at
of
308
appellate
(quotation
deference,”
marks
and
citation omitted), and we see no basis for swapping the district
court’s credibility determination out in favor of our own.
Teleguz attempts to make much of the fact that the district
court, at the warden’s request, appointed Hetrick—and Gilkes—
independent counsel for purposes of the evidentiary hearing.
20
We
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refuse Teleguz’s invitation to read impropriety into either the
warden’s
or
the
district
court’s
looking
out
for
Gilkes’s,
Hetrick’s, or anyone’s, rights and interests by appointing them
independent
counsel
under
circumstances
such
as
these.
And
while the language the warden’s counsel used in the motions to
appoint independent counsel was, no doubt, stark, the warden’s
counsel was stating a seemingly obvious truth: that testifying
at an evidentiary hearing in a manner that contradicted how they
testified at trial could have serious legal consequences such as
perjury or broken plea agreements for Gilkes, Safanov, Hetrick,
or any witness.
Further, Teleguz heavily relies on Wolfe v. Clarke, 718
F.3d 277 (4th Cir. 2013), cert. denied, 134 S. Ct. 1281 (2014).
But we fail to see how Wolfe advances the ball for Teleguz.
In
Wolfe, the prosecution illicitly threatened a recanting witness
whose recantation had already been deemed candid and persuasive
at an evidentiary hearing to impact how he would testify at
Wolfe’s retrial.
Indeed, the Wolfe proceedings were riddled
with grave prosecutorial misconduct such as interview recordings
that authorities refused to hand over and joint meetings with
key witnesses to choreograph and coordinate testimony.
Under
those circumstances, the district court found that Wolfe had met
the
Schlup
claims.
standard
and
Id. at 280-81.
that
he
had
presented
meritorious
Yet even in the face of all that, this
21
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Court held
that
the
Pg: 22 of 46
district
court
abused
its
discretion
in
barring the government from retrying Wolfe, stating “[w]e are
confident that the retrial will be properly handled, and, if
convictions result, that the appellate courts will perform their
duties.”
Id. at 289.
3.
Teleguz
also
contends
that
he
“presented
substantial
evidence that he was not even present at the birthday party”
where, according to Hetrick’s and Gilkes’s trial testimony and
Hetrick’s hearing testimony, Teleguz had hired Hetrick to kill
Sipe.
Petitioner’s
undermines
the
Br.
at
credibility
41.
of
According
Hetrick’s
to
Teleguz,
story.
In
this
reality,
however, the evidence presents a much more mixed picture as to
whether Teleguz attended the birthday party.
Teleguz submitted several affidavits in which individuals
stated that they had not seen Teleguz at the birthday party.
Importantly, two such affidavits belonged to the party hosts,
whom
Teleguz
hearing.
deposed
de
bene
esse
before
the
evidentiary
The female host—Latesha Everhart, who is also Gilkes’s
sister—testified at deposition that her husband was so drunk the
night of the party that he would not have been in a position to
know who was there.
Further, and crucially, Everhart testified that “half of
the stuff in [her affidavit] isn’t true.”
22
J.A. 3231.
She
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stated that Teleguz “could have been there.”
J.A. 3204.
“Edwin
[Gilkes] could have let him in upstairs without coming through
the front door.”
J.A. 3237. 5
In other words, the party hosts
had no idea whether Teleguz was at the party or not.
The female
host thus expressly disavowed the statement in her affidavit
that “Ivan Teleguz was definitely not at my husband[’s] birthday
party.”
J.A. 3204.
What’s more, she raised serious questions
about the integrity of the affidavits. 6
In light of the open question the affidavits present as to
whether Teleguz had attended the birthday party, we share the
district court’s reluctance to find this evidence to be the kind
of “reliable” new evidence needed to meet the demanding Schlup
standard.
Schlup, 513 U.S. at 324
4.
The last category of evidence supporting Teleguz’s Gateway
Innocence
Claim
purportedly
Pennsylvania
murder
occurred.
But
alluded
this
establishes
to
evidence,
5
during
even
that
the
Teleguz’s
more
than
Ephrata,
trial
never
the
other
Gilkes independently confirmed that, to enter his room, he
would “go up through the back of the house through the fire
escapes and come in through a window.” J.A. 4372.
6 Everhart testified in her deposition that a young woman
visited her, wrote some things down, and left.
Several weeks
later, Everhart was asked to sign a paper, presumably the
affidavit, but never given her own copy.
Everhart was asked:
“Do you have any reason to think that the affidavit you signed
was altered or changed?”
J.A. 3230-31.
And she responded in
the affirmative: “Yeah, I do . . . . Because half of the stuff
in there isn’t true.” Id. at 3231.
23
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categories already discussed, fails to add the requisite heft to
Teleguz’s Gateway Innocence Claim.
Gilkes’s specific testimony about the Ephrata, Pennsylvania
murder was that “down in Ephrata one day . . . a couple of []
Russians on Main Street were outside the parking lot of the rec
center.
they
There was two men that got out of the car.
were
both,
knowledge.”
they
J.A. 4420.
were
both
Russians
to
the
We figured
best
of
my
Gilkes continued that “the one walked
up and said that . . . 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.”
Id. at 4421.
Gilkes testified that Teleguz did not
make that statement but “was present during the statement.”
Id.
Gilkes reported that someone was later killed, “a week, three
days to a week after that in Ephrata Street, on Main Street.”
Id. at 4422.
In other words, Gilkes plainly did not testify
that Teleguz had killed anyone in Ephrata, Pennsylvania.
During the evidentiary hearing, Teleguz presented evidence
that no murder had ever occurred outside the recreation center
in Ephrata, Pennsylvania (though other evidence indicated that a
murder in which Teleguz may have been involved had occurred in a
nearby town).
He thus suggested that the jury was misled into
believing that he had been behind a phantom murder.
We fail to see how the Ephrata, Pennsylvania murder issue
could show that Teleguz was actually innocent of Sipe’s murder
24
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in Harrisonburg, Virginia.
related
evidence
thus
Pg: 25 of 46
The Ephrata, Pennsylvania murder-
cannot
support
a
determination
Teleguz had met the “demanding” Schlup standard.
that
House, 547
U.S. at 538.
5.
Even in the face of the broadened record, we cannot say
that this is the “rare” and “extraordinary” case in which it is
more
likely
than
not
that
no
reasonable
convicted Teleguz as the jury did here.
554.
jury
would
have
House, 547 U.S. at 538,
A brief overview of a case in which the Supreme Court
found the gateway innocence standard to be met is instructive
regarding
what
a
sufficiently
strong
gateway
innocence
case
looks like and why the mixed picture here does not meet the
standard.
In
House,
the
defendant
was
convicted
and
sentenced
to
death in large part based on forensic evidence, specifically
semen found on the victim’s nightgown and underwear, and blood
stains found on the defendant’s pants.
41.
House, 547 U.S. at 540-
Later DNA analysis, however, showed that the semen was in
fact the victim’s husband’s, not the defendant’s, and that the
blood stains on the defendant’s pants likely resulted from the
victim’s blood spilling out of vials taken into evidence and
transported in the same container, at the same time, as the
defendant’s
pants.
Id.
at
541-45.
25
Further,
there
existed
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evidence that the victim’s husband physically abused her, that
she had reported shortly before her death that she was afraid of
her husband and wanted to leave him, and even that her husband
had later confessed to having killed her.
Id. at 548-49.
While
the Supreme Court stressed that “it bears repeating that the
Schlup standard
is
demanding
and
permits
review
only
in
the
‘extraordinary,’ case,” id. at 538, it deemed House to be that
“rare
case
where—had
the
jury
heard
all
the
conflicting
testimony—it is more likely than not that no reasonable juror
viewing the record as a whole would lack reasonable doubt.”
at 554.
This case, while perhaps troubling, is no House.
In
sum,
the
district
court
applied
the
correct
framework to the totality of the evidence before it.
the
Id.
credibility
authority
to
determinations
make.
We
must
we
had
give
indicated
those
legal
It made
it
had
determinations
the
“the
highest degree of appellate deference,” Evergreen Int’l, S.A.,
531
F.3d
at
308
(quotation
marks
and
citation
omitted).
Particularly in light of those credibility determinations, we,
like the district court, “cannot conclude that more likely than
not, given the overall, newly supplemented record, no reasonable
juror
would
doubt.” 7
have
found
Teleguz
guilty
beyond
a
reasonable
Teleguz, 2014 WL 3548982, at *20 (quotation marks and
7
Teleguz seizes on the district court’s use of the word “I”
to suggest that the court failed to consider how a jury would
26
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Filed: 11/30/2015
citation omitted).
Pg: 27 of 46
And because the Gateway Innocence Claim was
Teleguz’s hook for moving past procedural default, we refrain
from addressing the underlying, defaulted claims.
B.
With his second argument on appeal, Teleguz challenges the
district
court’s
rejection
of
his
Martinez
Claim.
Teleguz
contends that the district court’s analysis was fatally flawed
by
a
mistaken
belief
that
the
jury
had
not
been
told
that
Teleguz had been involved in the Ephrata, Pennsylvania murder.
We see no such fatal flaw.
As an initial matter, we note that the district court erred
to the extent it suggested that Teleguz had failed to preserve
the
Martinez
issue.
See
Teleguz,
2014
WL
3548982,
at
*22
(“Martinez was decided by the Supreme Court on March 20, 2012,
prior
to
oral
argument
in
Teleguz’s
appeal
Circuit, but was not raised there . . . .”).
to
the
Fourth
In footnote 12 on
pages 23 to 24 of his pre-remand opening brief, Teleguz raised
the
Martinez
issue
and
acknowledged
the
lack
of
then-extant
react to the newly supplemented evidentiary record. We reject a
myopic focus on the pronouns used but instead look to what the
district court actually did.
Without doubt, the district court
held that it was not “more likely than not, given the overall,
newly supplemented record, [that] no reasonable juror would have
found Teleguz guilty beyond a reasonable doubt.” Teleguz, 2014
WL 3548982, at *20. Teleguz’s assertion that the district court
“never answered” the “essential question” of whether “reasonable
jurors . . . would still find guilt beyond a reasonable doubt,”
Petitioner’s Br. at 26, is thus plainly incorrect.
27
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legal support but expressly noted the argument for preservation
purposes.
We therefore move to the merits, which the district
court also addressed.
Like Schlup, Martinez is an exception that enables habeas
petitioners to obtain merits review of otherwise procedurally
defaulted
claims
under
certain
circumstances.
Specifically,
Martinez claims may be reviewed only if, among other things,
“the
ineffective-assistance-of-trial-counsel
substantial
one,”
counsel
only
or
and
the
cause
ineffective
review proceedings.
behind
counsel”
claim
is
a
the
default
was
“no
during
the
collateral
Fowler, 753 F.3d at 461 (quotation marks
and citations omitted).
Regarding
the
requirement
that
there
be
a
“substantial”
claim, the Supreme Court held that a prisoner must “demonstrate
that
the
underlying
ineffective-assistance-of-trial-counsel
claim is a substantial one, which is to say that the prisoner
must demonstrate that the claim has some merit.”
S. Ct. at 1318.
Martinez, 132
Relatedly, to show ineffective assistance, “the
petitioner must make a ‘substantial’ showing with respect to
both counsel’s competency (first-prong Strickland) and prejudice
(second-prong
Strickland).”
Brian
R.
Means,
Federal
Habeas
Manual § 9B:62 (citing Clabourne v. Ryan, 745 F.3d 362, 376 (9th
Cir. 2014)).
28
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As to the specific elements of the ineffective assistance
claim,
a
petitioner
must
make
a
substantial
showing
of
incompetency, i.e., “that counsel made errors so serious that
counsel was not functioning as the counsel guaranteed . . . by
the Sixth Amendment.”
(4th
Cir.
2011)
DeCastro v. Branker, 642 F.3d 442, 450
(quotation
marks
and
citation
omitted).
Further, the petitioner must make a substantial showing that
“counsel’s errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable,” i.e., that
there was “a substantial, not just conceivable, likelihood of a
different result.”
Teleguz
Id. (quotation marks and citations omitted).
faults
his
state
habeas
counsel
for
failing
to
investigate and raise an ineffective assistance of trial counsel
claim relating to the Ephrata, Pennsylvania murder allegations
not just at the guilt phase but also at the penalty phase.
According to Teleguz, “the jury was told that Teleguz was ‘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.’”
Petitioner’s Br. at 59 (citing J.A. 4403).
In reality, however, the jury was not “told” that Teleguz
“blew”
anyone
“away,”
but
rather
that
Gilkes
did
not
recall
having made any such statement and that he saw no such thing.
Specifically, on cross-examination, Gilkes was asked, “Do you
29
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remember
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telling
the
Pg: 30 of 46
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. 4403.
Gilkes responded, “No, I don’t recall it.”
When asked
again,
“You
don’t
stated “No.”
recall
saying
that?”
Id.
Gilkes
again
plainly
Id.
On redirect, Gilkes clarified: “[D]own in Ephrata one day .
. . a couple of [] Russians on Main Street were outside the
parking lot of the rec center.
of the car.
There was two men that got out
We figured they were both, they were both Russians
to the best of my knowledge.”
J.A. 4420.
Gilkes continued that
“the one walked up and said that . . . 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.”
Id. at 4421.
Gilkes testified that
Teleguz did not make that statement but “was present during the
statement.”
Id.
Gilkes reported that someone was later killed,
“a week, three days to a week after that in Ephrata Street.”
Id. at
4422.
But
Gilkes
did
not
state
or
suggest
that
he
witnessed that murder or knew who had committed that murder—and
he certainly did not testify, nor did any other trial witness,
that Teleguz “blew someone away” in Ephrata, Pennsylvania.
The alleged Ephrata, Pennsylvania murder resurfaced during
the
prosecution’s
closing
argument
30
at
sentencing.
The
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prosecutor stated “you heard the background of the defendant,
how Gilkes told you about this issue in Ephrata, how they had
this situation with the Russian folks approaching and posturing
about killing someone, and someone ends up dead.”
J.A. 5209.
Again, no one argued, much less presented evidence, that Teleguz
“blew someone away” outside the Ephrata, Pennsylvania recreation
center.
Teleguz’s suggestion that the jury was informed that
“Teleguz
was
inaccurate.
responsible
for
another
murder”
is,
therefore,
Petitioner’s Br. at 60.
Because the jury heard evidence that at best shows that
Teleguz was present when another individual threatened to murder
someone outside the recreation center in Ephrata, Pennsylvania
and that a murder did occur about a week later, and because the
lone comment on the issue at sentencing, in the form of closing
arguments, referenced “Russian folks” and did not state that
Teleguz had murdered anyone in Ephrata, Pennsylvania, it comes
as
no
surprise
that
habeas
counsel
failed
to
make
the
ineffective assistance claim that Teleguz now presses—one based
on “a misconception of the evidence.”
Teleguz, 2014 WL 3548982,
at *24. 8
8
Our own characterization
opinion was also not as tightly
it could have been.
But
extensively above but not in
itself.
of the evidence in our earlier
tethered to the actual record as
the trial transcript, quoted
our prior opinion, speaks for
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Moreover,
had
fully
counsel
pursued
the
Ephrata,
Pennsylvania murder issue, they may well have decided to let
things lie—because evidence presented at the hearing suggested
that a murder with a connection to the Ephrata recreation center
had in fact taken place and that Teleguz may have been involved.
A Pennsylvania State Police “master trooper” who investigated
Russian organized crime in Lancaster County testified that a man
of
Russian
Elizabeth
While
dissent
Township,
investigating
named
Yvegeniy
Pennsylvania
the
Belyy
in
Belyy
April
murder,
the
was
2001.
murdered
in
J.A.
2852.
Pennsylvania
State
Police interviewed “various individuals who talked about a fight
or embarrassment at the Ephrata Rec Center or in that vicinity.”
Id. at 2855.
The master trooper testified that “Ivan Teleguz
first came to light in the [Belyy] homicide investigation.”
at 2854.
Id.
Record evidence also suggests that Teleguz may have
been the source of the firearm for the Belyy murder (see, e.g.,
J.A.
3814)—a
fact
consistent
with
eager vendor of deadly weapons.”
Teleguz’s
having
been
“an
Teleguz, 492 F.3d at 85.
A brief overview of a case in which the Supreme Court found
prejudice is instructive as to why the record does not support
finding
prejudice
here.
In
Wiggins
v.
Smith,
539
U.S.
510
(2003), the defendant was convicted of murder and sentenced to
death.
Wiggins’s sentencing jury heard only one significant
mitigating factor-that Wiggins had no prior convictions.
32
Id. at
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537.
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Pg: 33 of 46
But “mitigating evidence counsel failed to discover and
present in this case [was] powerful.”
Id. at 535.
The evidence
showed that “Wiggins experienced severe privation and abuse in
the first six years of his life while in the custody of his
alcoholic,
sexual
absentee
mother.
molestation,
and
years in foster care.
He
repeated
suffered
rape
physical
during
his
torment,
subsequent
[And] [t]he time Wiggins spent homeless,
along with his diminished mental capacities, further augment his
mitigation
case.”
Id.
Given
this
“powerful”
evidence,
the
Supreme Court concluded that, “[h]ad the jury been able to place
petitioner’s excruciating life history on the mitigating side of
the scale, there is a reasonable probability that at least one
juror
would
have
struck
a
different
balance.”
Id.
at
537.
Accordingly, the Supreme Court found the high prejudice bar to
have been met.
Without doubt, this case is no Wiggins.
Finally, completely independent of anything having to do
with
the
Ephrata,
Pennsylvania
murder
issue,
the
jury
recommended that Teleguz be sentenced to death based on finding
vileness beyond a reasonable doubt.
Teleguz, 643 S.E.2d at 723
(“In this case, the Commonwealth presented evidence on both the
vileness and future dangerousness aggravators.
both
aggravators
Evidence
were
supporting
proven
that
beyond
finding
a
The jury found
reasonable
included:
doubt.”).
Teleguz’s
having
“planned the murder to avoid his responsibility of supporting
33
Appeal: 11-9
his
Doc: 105
child;”
Filed: 11/30/2015
Teleguz’s
having
Pg: 34 of 46
directed
that
“the
murder
be
committed in the apartment without regard to the well-being of
his child who would likely be present;” and Teleguz’s having
specified “the actual manner of the murder—cutting the victim’s
throat,” with physical attributes including “a deep stab wound
to Sipe’s neck which resulted in massive external and internal
bleeding, causing Sipe to drown in her own blood.”
Id. at 724.
In light of the independent, additional statutory aggravator of
vileness, Teleguz’s death sentence would stand regardless of his
Martinez claim.
In sum, on the record as it exists—as opposed to how it has
been mischaracterized—we must reject Teleguz’s suggestion that
“false evidence that Teleguz was responsible for another murder
was the most powerful imaginable aggravating evidence” and thus
also his contention that there exists a “reasonable probability
that disproving that evidence would have changed the outcome.”
Petitioner’s Br. at 65 (quotation marks and citation omitted).
Instead, Teleguz has failed to “demonstrate that the claim”—
grounded in a misconception of the trial transcript—“has some
merit.”
Martinez, 132 S. Ct. at 1318.
And he has likewise
failed to make a substantial showing that his “counsel’s errors
were so serious as to deprive [him] of a fair trial, a trial
34
Appeal: 11-9
Doc: 105
Filed: 11/30/2015
whose result is reliable.”
Pg: 35 of 46
DeCastro, 642 F.3d at 450 (quotation
marks and citation omitted). 9
III.
For these reasons, we affirm the district court’s dismissal
of Teleguz’s petition.
AFFIRMED
9
While Teleguz argues that the district court should have
allowed additional discovery and presentation on this claim, the
record is replete with evidence about the Ephrata, Pennsylvania
murder issue.
Further, the “record refutes the applicant’s
factual allegations.”
Schriro v. Landrigan, 550 U.S. 465, 474
(2007). We thus reject this argument.
35
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Filed: 11/30/2015
Pg: 36 of 46
DAVIS, Senior Circuit Judge, concurring in part and dissenting
in part:
I agree with my friends in the majority that Ivan Teleguz
has
failed
to
support
his
gateway
innocence
claim
with
sufficient evidence as required under Schlup v. Delo, 513 U.S.
298 (1995).
I also agree that Teleguz preserved his ineffective
assistance of counsel claim asserted under Martinez v. Ryan, 132
S. Ct. 1309 (2012).
But I disagree, respectfully, with the
conclusion that Teleguz has failed to satisfy Martinez.
Because
the district court prevented Teleguz from engaging in discovery
on his Martinez claim, the record is too sparse to determine
whether
his
state
habeas
counsel
was
ineffective.
I
would
remand the case to the district court for further evidentiary
development of Teleguz’s Martinez claim.
Accordingly, I concur
in part and dissent in part.
I.
In 2001, Teleguz hired Edwin Gilkes and Michael Hetrick to
kill Stephanie Sipe, Teleguz’s ex-girlfriend.
In February 2006,
a jury convicted Teleguz of murder for hire.
Gilkes, Hetrick,
and Aleksey Safanov, a third prosecution witness, each testified
at trial that he was approached by Teleguz and offered money to
kill Sipe.
received
Hetrick testified that he committed the murder and
payment
corroborating
soon
thereafter.
testimony,
Gilkes
36
In
addition
testified,
during
to
offering
the
guilt
Appeal: 11-9
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Filed: 11/30/2015
Pg: 37 of 46
phase of the trial, that he once saw Teleguz and another man
approach two men in a parking lot outside a recreation center in
Ephrata, Pennsylvania.
Gilkes testified that the man standing
with
other
Teleguz
told
the
two
men
killed” if certain debts went unpaid.
that
someone
J.A. 4421.
“would
be
Gilkes then
testified that someone was in fact killed a few days later on
Main Street in Ephrata.
Ephrata
murder,
as
It has since been established that the
Gilkes
described
it,
never
occurred.
Although prosecutors did not use the Ephrata murder testimony
against Teleguz during the guilt phase, they used the testimony
during the penalty phase of the trial to establish Teleguz’s
future dangerousness, one of two potential aggravating factors
that might justify a death sentence.
Following trial, Teleguz exhausted claims for state habeas
relief
before
pursuing
federal
habeas
relief
in
the
United
States District Court for the Western District of Virginia.
In
an amended petition for writ of habeas corpus at the district
court, Teleguz asserted, among other things, a Schlup gateway
innocence claim.
ineffective
during
He also argued that his trial counsel was
the
penalty
address
the
prosecution’s
namely,
his
involvement
in
phase
evidence
the
because
of
alleged
future
they
failed
to
dangerousness——
Ephrata
murder.
The
district court denied Teleguz’s amended petition.
Teleguz v.
Kelly,
17,
824
F.
Supp.
2d
672,
723
37
(W.D.
Va.
July
2014).
Appeal: 11-9
Doc: 105
Relevant
Filed: 11/30/2015
here,
the
Pg: 38 of 46
district
court
determined
that
his
ineffective assistance of trial counsel claim was procedurally
barred because he had failed to raise it during the state habeas
proceedings.
Id. at 695.
Teleguz appealed, and we remanded the
proceedings for further analysis of his Schlup gateway innocence
claim.
On
Teleguz v. Pearson, 689 F.3d 322, 330 (4th Cir. 2012).
remand
at
the
district
court,
and
in
an
effort
to
resurrect his procedurally defaulted ineffective assistance of
trial counsel claim, Teleguz raised a claim under Martinez that
his state habeas counsel provided ineffective assistance because
they, too, failed to investigate the alleged Ephrata murder.
The
district
encompass
court
the
concluded
Ephrata
that,
murder
while
claim,
our
remand
Teleguz’s
did
state
not
habeas
counsel “was not so deficient as to fall below the wide range of
reasonable
assistance
professional
of
trial
assistance,”
claim
was
not
and
his
substantial.
ineffective
Teleguz
v.
Davis, No. 7:10CV00254, 2014 WL 3548982, at *25 (W.D. Va. July
17, 2014).
The district court denied both Teleguz’s Martinez
claim and his request for additional discovery on the issue.
Id. at *25–26.
II.
On appeal, Teleguz argues under Martinez that his state
habeas counsel was ineffective in their failure to investigate
and
present
evidence
that
the
38
alleged
Ephrata
murder
never
Appeal: 11-9
Doc: 105
occurred.
Filed: 11/30/2015
Pg: 39 of 46
The majority concludes that state habeas counsel was
effective and that Teleguz cannot demonstrate prejudice as a
result
of
state
habeas
It is here where the majority and I disagree.
counsel.
any
purported
error
on
the
part
of
While
the majority concludes that Teleguz loses on a merits review of
his Martinez claim, I conclude there is insufficient evidence in
the record to make a choice either way.
its
core,
is
whether
Teleguz
The contention here, at
should
be
afforded
further
discovery on his Martinez claim so that there can be a more
substantial evidentiary basis to resolve the issue.
We
review
a
district
court’s
decision
not
to
discovery on a habeas claim for abuse of discretion.
v. Branker, 570 F.3d 198, 207 (4th Cir. 2009).
the
Rules
Governing
petitioner
to
show
opportunity
for
Taylor,
F.3d
162
satisfies
Section
good
good
2254
cause
discovery.’”
273,
cause
279
“if
before
Id.
(4th
the
Cases
is
(quoting
Cir.
a
habeas
afforded
an
Quesinberry
v.
1998)).
petitioner
Stephens
“‘Rule 6(a) of
requires
he
grant
makes
A
petitioner
a
specific
allegation that shows reason to believe that the petitioner may
be
able
to
demonstrate
that
he
is
entitled
to
relief.”
Quesinberry, 162 F.3d at 279.
Before
turning
to
whether
Teleguz
has
demonstrated
good
cause, a description of the Martinez standard is appropriate.
One avenue for a habeas court to review a procedurally defaulted
39
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Filed: 11/30/2015
Pg: 40 of 46
claim exists where the petitioner can demonstrate both cause for
the default and prejudice as a result of the default.
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Virginia,
where
claims
of
ineffective
See
In states like
assistance
of
trial
counsel must be raised in initial post-conviction proceedings,
see
Lenz
Martinez
v.
Commonwealth,
permits
petitioner
either
a
544
S.E.2d
petitioner
lacked
state
to
299,
304
establish
habeas
(Va.
cause
counsel
or,
2001),
if
the
under
the
standard established in Strickland v. Washington, 466 U.S. 668
(1984), state habeas counsel was ineffective, Martinez, 132 S.
Ct.
at
1318.
underlying
A
petitioner
may
establish
ineffective-assistance-of-trial-counsel
substantial
one,
which
is
to
say
that
demonstrate that the claim has some merit.”
Strickland
deficient
prejudice
if
instructs
it
(1)
falls
that
below
the
claim
“the
is
prisoner
a
must
Id. at 1318-19.
counsel’s
an
if
performance
objective
standard
is
of
reasonableness, and (2) the deficiencies prejudiced the defense
such
that
“there
is
a
reasonable
probability
that,
but
for
counsel’s unprofessional errors, the result of the proceeding
would have been different.”
694.
Strickland, 466 U.S. at 688, 692,
“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
40
Id. at 694.
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Doc: 105
Filed: 11/30/2015
Pg: 41 of 46
A.
The
current
record
is
insufficient
to
determine
with
confidence whether Teleguz’s state habeas counsel’s performance
fell below an objective standard of reasonableness, and Teleguz
has at least shown good cause for more discovery.
court
interpreted
our
remand
order
as
The district
limiting
development to the Schlup actual innocence claim.
the
district
additional
court
precluded
discovery
related
Teleguz
to
his
from
evidentiary
As a result,
engaging
Martinez
in
claim.
any
See
Teleguz, 2014 WL 3548982, at *26.
At the start of the Schlup evidentiary hearing on remand,
Teleguz’s federal habeas counsel told the district court that
they intended to present evidence on the Martinez issue.
The
district court responded that it was “disinclined to allow the
petitioner to expand the scope of the hearing,” but it would
withhold final judgment on the issue until the presentation of
Martinez evidence actually occurred.
J.A. 2458.
The district
court allowed Teleguz to examine Jennifer Givens, one of his
state
habeas
attorneys,
in
support
of
his
Martinez
claim.
Givens was the only witness who offered testimony directly on
the Martinez issue during the evidentiary hearing.
Givens readily admitted that neither she nor any member of
her
state
habeas
counsel
team
investigated
the
Teleguz had been involved in a murder in Ephrata.
41
claim
that
She provided
Appeal: 11-9
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Filed: 11/30/2015
Pg: 42 of 46
no excuse for her error, noting that, “we clearly missed the
issue” and that she would be “hard pressed to come up with a
worse one than this because evidence that my client would have
been involved in another alleged murder that was presented at
the guilt and the penalty phase of a capital murder trial was
unbelievably prejudicial.”
Givens’s
revelation
J.A. 2952.
is
significant
in
light
of
evidence
that Teleguz’s connection with an earlier Pennsylvania murder
may not be as strong as originally conveyed.
State
Police
law
enforcement
officer
A Pennsylvania
testified
during
the
evidentiary hearing that a victim was murdered a short distance
from Ephrata in Elizabeth Township, Pennsylvania, and that the
murder was connected to purported organized criminal activity at
the Ephrata recreational center.
that
several
people,
not
just
But the officer also testified
Teleguz,
were
activity at the Ephrata recreational center.
connected
to
Although Teleguz
first came to law enforcement’s attention during the Elizabeth
Township
murder
investigation,
the
officer
established
another individual was convicted for the murder.
that
Teleguz was
not present at the scene of the murder, and he was neither
charged nor arrested in connection with the crime.
While Strickland does not impose upon counsel an obligation
to “pursue an investigation that would be fruitless, much less
one that might be harmful to the defense,” see Harrington v.
42
Appeal: 11-9
Doc: 105
Richter,
Filed: 11/30/2015
562
“reasonable
U.S.
86,
professional
108
Pg: 43 of 46
(2011),
judgment”
and
counsel
“a
must
particular
exercise
decision
not to investigate must be directly assessed for reasonableness
in all the circumstances, applying a heavy measure of deference
to counsel’s judgments,” Strickland, 466 U.S. at 691.
A single
error, if “sufficiently egregious and prejudicial” can support
an ineffective assistance claim, but the error must be measured
against counsel’s overall performance.
111.
Richter, 562 U.S. at
The record, as it currently stands, demonstrates only a
single error on the part of state habeas counsel.
Yet, in my
view, given the testimony from Givens and the law enforcement
officer,
the
error
is
significant
enough
to
warrant
further
factual development.
B.
At
this
juncture,
the
record
more
clearly
shows
that
Teleguz was prejudiced by the failure of counsel to investigate
the alleged Ephrata murder.
The district court assumed for the
sake of argument that the performance of state habeas counsel
was
deficient,
and
concluded
that,
under
prong
two
of
Strickland, the deficiencies of counsel were not so prejudicial
as to create a reasonable likelihood that the outcome of the
case would have been different.
The district court reasoned
that any investigation by trial or state habeas counsel into the
Ephrata
murder
claim
would
have
43
concluded
that
Gilkes’s
Appeal: 11-9
Doc: 105
testimony
Filed: 11/30/2015
was
likely
Pg: 44 of 46
based
upon
a
rumor
that
complicit in the Elizabeth Township murder.
3548982, at *25.
Teleguz
was
Teleguz, 2014 WL
The Warden adds that the sentencing outcome of
the state trial could not have been different absent counsel’s
error
because
independent
the
sentenced
aggravating
dangerousness.
relating
jury
to
Absent
future
countervailing
to
death
factors——vileness
the
introduction
dangerousness,
vileness factor would still stand.
reasoning, in part.
Teleguz
the
on
two
and
false
of
future
evidence
Warden
argues,
the
The majority relies on such
I believe this approach overlooks important
interests
in
a
sober
assessment
of
prejudice
under the circumstances presented here.
An error of a constitutional magnitude occurs where a jury
considers “as aggravation properly admitted evidence that should
not have weighed in favor of the death penalty” and “where the
jury could not have given aggravating weight to the same facts
and
circumstances
under
the
rubric
of
some
other,
valid
sentencing factor.”
Brown v. Sanders, 546 U.S. 212, 221 (2005)
(emphasis omitted).
Here, the evidence of the alleged Ephrata
murder
went
only
to
future
dangerousness,
not
vileness.
Vileness requires the jury to find that the defendant’s “conduct
in committing the offense for which he stands was outrageously
or
wantonly
torture,
vile,
depravity
horrible
or
of
or
mind
44
inhuman
an
in
that
aggravated
it
battery
involved
to
the
Appeal: 11-9
Doc: 105
victim.”
Filed: 11/30/2015
Va.
Code.
Ann.
Pg: 45 of 46
§
19.2-264.2
(West
2015).
Thus,
evidence of an alleged prior crime would not be relevant for
vileness, the only other aggravating sentencing factor the jury
considered
during
the
penalty
phase,
yet
the
jury
may
have
improperly considered evidence of that alleged prior crime in
weighing the propriety of the death penalty.
Essential
to
this
conclusion
is
the
idea
that
two
independent aggravating factors equal more than just multiple
legs to stand on if one breaks.
The stakes here are high and
the jury was tasked with a nuanced moral judgment; prejudice is
inherent when an invalid aggravating factor is considered in
combination
with
a
valid
one.
However
“vile”
and
therefore
deserving of capital punishment the murder of Stephanie Sipe was
under controlling Virginia law, the jury knew that the actual
killer
got
introduction
a
pass
of
from
evidence
the
of
Commonwealth.
a
murder
in
Trial
counsel’s
Ephrata,
the
circumstances of which are now known to be less straightforward
than was suggested at trial, could very well have “skew[ed]”
Teleguz’s sentence toward the ultimate one.
221.
Brown, 546 U.S. at
For the prosecution, who portrayed Teleguz as a man who
“solves problems” with murder, J.A. 5209, the implication was
not just that Teleguz had previously been involved in taking a
life, but also that he associated with unsavory characters who
45
Appeal: 11-9
also
Doc: 105
take
Filed: 11/30/2015
lives.
The
Pg: 46 of 46
Ephrata
murder
reference
during
the
penalty phase most certainly had its desired effect.
Furthermore,
Teleguz’s
own
trial
counsel
counsel’s
was
the
error
first
to
was
alert
significant.
the
jury
that
Teleguz may have been involved in a prior murder, even though
the district court barred the prosecution from referencing the
alleged murder during the guilt phase.
The door thus opened,
the prosecution then seized on the evidence during the penalty
phase.
III.
Given
the
administration
“‘heightened
of
death,’”
need
for
Teleguz
fairness
should
be
in
provided
the
an
opportunity to develop fully the claims upon which he may be
afforded
habeas
relief.
Teleguz,
689
F.3d
at
Callins v. Collins, 510 U.S. 1141, 1149 (1994)).
the
district
court’s
decision
to
preclude
331
(quoting
I would find
evidentiary
development of Teleguz’s Martinez claim an abuse of discretion,
and I would remand for further proceedings.
46
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