McGiboney v. Yordy
Filing
36
MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Respondents Motion to File Oversize Reply Brief (Dkt. 32 ) is GRANTED. 2. Petitioners Motion for Oral Argument (Dkt. 34 ) is DENIED. 3. Respondents Renewed Motion for Summary Dismissal (Dkt. 28 ) i s GRANTED, and this case is DISMISSED with prejudice. 4. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOSHUA LEE McGIBONEY,
Case No. 1:16-cv-00150-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER
v.
KEITH YORDY, Warden of the Idaho
State Correctional Institution,
Respondent.
INTRODUCTION
In this habeas corpus matter, Petitioner Joshua Lee McGiboney (“Petitioner” or
“McGiboney”) challenges his state court convictions of robbery, aggravated battery, and
burglary—all of which stemmed from an incident that occurred on April 3, 2008. The
parties are familiar with the underlying facts, and the Court will not repeat them except as
necessary to explain this decision.
Now pending before the Court is Respondent’s Renewed Motion for Summary
Dismissal. The Court previously determined that Petitioner’s claims were procedurally
defaulted but that it did not have sufficient information to determine whether cause and
prejudice, or actual innocence, excused the default. (See Dkt. 34.) The Court therefore
ordered discovery, pursuant to Rule 6 of the Rules Governing § 2254 Cases (“Habeas
Rules”), as to the following types of evidence:
MEMORANDUM DECISION AND ORDER - 1
(1) State’s trial exhibits 61 (gun magazine), 61B (unused
round), 61C (unused round), 61D (unused round); 62 (used
round), 63 (fired shell casing), 64 (fired shell casing), 65
(fired shell casing), 66 (unfired 9MM round), and 67 (unfired
9MM round), to be sent to Bode Cellmark Forensics for
testing; (2) “all notes, DNA profiles, allele tables, test results,
charts, and reports associated with forensic DNA testing” in
Petitioner’s case that are in the possession of the Idaho State
Police; [and] (3) records from Buckhorn Gun and Pawn
related to the firearm at issue in Petitioner’s case.
(Id. at 20.)
Although the Court denied Petitioner’s request for discovery as to four other
categories of evidence, Petitioner has utilized public records requests to obtain certain
evidence in those categories:
(4) crime scene photographs in the possession of the Ada
County Prosecuting Attorney’s Office; (5) crime scene
photographs in the possession of the Ada County Public
Defender’s Office; (6) two audio CDs of officers’ initial
witness interviews in the possession of the Ada County
Prosecuting Attorney’s Office; and (7) two audio CDs of
officers’ initial interviews in the possession of the Ada
County Public Defender’s Office (to the extent they were
produced during discovery in Petitioner’s underlying criminal
proceedings).
The parties stipulated to expand the scope of discovery to two additional
categories of evidence. Pursuant to the stipulation, Petitioner subpoenaed (8) “the Boise
Police Department for an unredacted copy of a letter from American Bankers Insurance
Company of Florida” and (9) “America Bankers Insurance company of Florida, or its
successor in interest, for documents related to the loss and the paid claim recited in the
letter.” (Dkt. 24 at 1-2.) Petitioner has obtained this evidence, and the Rule 6 discovery
has been completed.
MEMORANDUM DECISION AND ORDER - 2
Petitioner acknowledges that discovery with respect to Categories 1 through 3 was
not fruitful. (Dkt. 30 at 2 (“Buckhorn Gun and Pawn has informed McGiboney’s counsel
that, despite searching, it was unable to find ownership or sales records for the gun. And,
Bode Cellmark did not find sufficient material on the spent and unspent shell casings, and
the gun magazine, to test for a match to the known DNA profiles.”) (internal citations
omitted).) However, relying on (1) evidence previously presented to the state courts and
(2) evidence in Categories 4 through 9 that was recently obtained, Petitioner renews his
argument that all of his claims are excused from procedural default based on the actual
innocence exception.1 See Schlup v. Delo, 513 U.S. 298, 329 (1995).
The parties have consented to the jurisdiction of a United States Magistrate Judge
to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c) and Federal
Rule of Civil Procedure 73. (Dkt. 9.) Having fully reviewed the record, including the
state court record, the Court finds that oral argument is unnecessary. See D. Idaho L. Civ.
R. 7.1(d). As explained below, the Court also finds that an evidentiary hearing on actual
innocence is unnecessary.
For the reasons that follow, the Court concludes that, although Petitioner has
submitted impeachment evidence with more than de minimis value—primarily with
respect to the credibility of the victim—he has not met the strict standards of the actual
innocence gateway exception. Accordingly, Petitioner has not established an excuse for
1
Petitioner has withdrawn his argument that certain claims are excused from procedural default pursuant
to Martinez v. Ryan, 566 U.S. 1 (2012). (See generally Dkt. 30.)
MEMORANDUM DECISION AND ORDER - 3
the default of his habeas claims, and the Court will grant Respondent’s Renewed Motion
and dismiss the Petition with prejudice.
DISCUSSION
1.
The Actual Innocence, or Miscarriage-of-Justice, Exception to Procedural
Default
A procedurally defaulted claim may be heard on the merits if the petitioner
demonstrates that failure to consider the claim will result in a fundamental miscarriage of
justice, meaning that “‘a constitutional violation has probably resulted in the conviction
of someone who is actually innocent.’” Schlup, 513 U.S. at 327 (quoting Murray v.
Carrier, 477 U.S. 478, 496 (1986)). In asserting actual innocence, a petitioner must
“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.” Id. at 324.
A court considering whether a petitioner has established actual innocence in light
of that “new reliable evidence” must consider “all the evidence, old and new,
incriminating and exculpatory, admissible at trial or not.” Lee v. Lampert, 653 F.3d 929,
938 (9th Cir. 2011) (en banc) (internal quotation marks omitted). An actual innocence
analysis “requires a holistic judgment about all the evidence and its likely effect on
reasonable jurors applying the reasonable-doubt standard”; in other words, the federal
court must “make a probabilistic determination about what reasonable, properly
instructed jurors would do.” House, 547 U.S. at 538-39 (2006) (internal quotation marks
MEMORANDUM DECISION AND ORDER - 4
omitted). A court must assess the “likely impact” of the new reliable evidence “on
“reasonable jurors in light of the complete record.” Lee, 653 F.3d at 945.
To apply the actual innocence exception, a court must conclude that, “in light of
all of the evidence, ‘it is more likely than not that no reasonable juror would have found
[the petitioner] guilty beyond a reasonable doubt.’” United States v. Avery, 719 F.3d
1080, 1083 (9th Cir. 2013) (quoting Schlup, 513 U.S. at 327). That is, the petitioner must
show that every reasonable juror would vote to acquit.
This is a particularly exacting standard, one that will be satisfied “only in the
extraordinary case.” House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation marks
omitted). Indeed, cases where the Schlup standard has been satisfied have “typically
involved dramatic new evidence of innocence.” Larsen v. Soto, 742 F.3d 1083, 1096 (9th
Cir. 2013). However, because a Schlup claim is, by definition, accompanied by “an
assertion of constitutional error at trial,” the petitioner’s conviction “may not be entitled
to the same degree of respect as one ... that is the product of an error-free trial.” Schlup,
513 U.S. at 316.
Direct evidence of innocence is not necessarily required for an actual innocence
gateway claim; in rare circumstances, impeachment evidence alone can satisfy the Schlup
standard. See Sistrunk v. Armenakis, 292 F.3d 669, 676 (9th Cir. 2002). But impeachment
evidence can meet the Schlup standard only if it is so compelling that it “fundamentally
call[s] into question the reliability of [the petitioner’s] conviction.” Id. at 677.
MEMORANDUM DECISION AND ORDER - 5
For example, a “detailed third-party confession” that “undermine[s] the validity of
the prosecution’s entire case” would be compelling impeachment evidence. Id.; see also
Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir. 1997) (actual innocence standard met
where witness whose trial testimony led to petitioner’s conviction later gave a sworn
confession to the crime); Larsen, 742 F.3d at 1096 (actual innocence standard met with
“witnesses who were never called to speak on his behalf at his trial and who gave
credible testimony that someone other than [petitioner] committed the acts for which he
was convicted and sentenced”). However, evidence that “would not have cast doubt on
the first-hand account of the victim, who positively identified [the petitioner] in open
court” would not. Sistrunk, 292 F.3d at 677. The actual innocence exception is not
satisfied by evidence that is speculative, collateral, cumulative, or “insufficient to
overcome otherwise convincing proof of guilt.” Larsen, 742 F.3d at 1096.
Further, if the evidence relied upon is not truly “new” but, instead, was in
substance already before the jury, it is unlikely to weigh heavily in favor of actual
innocence. See Lee, 653 F.3d at 944-45 (holding that (1) evidence of potential
misidentification was insufficient for actual innocence when “[m]uch of th[at] evidence
was presented to [petitioner’s] trial jury, and (2) “[g]iven all that [petitioner’s] jury heard
about [the second potential perpetrator] at trial,” it was not “more likely than not that no
reasonable juror viewing the record as a whole would lack reasonable doubt.”) (internal
quotation marks omitted).
MEMORANDUM DECISION AND ORDER - 6
Petitioner claims that he is entitled to application of the actual innocence exception
without the need to further develop the evidence on which he relies. Alternatively, he
asserts that, “if the Court finds that there are unresolved factual issues,” an evidentiary
hearing is warranted. (Dkt. 30 at 2.)
An evidentiary hearing on actual innocence “is not necessary ... if the court
determines as a matter of law that [the petitioner] cannot satisfy the standard. Clark v.
Lewis, 1 F.3d 814, 820 (9th Cir. 1993) (cause-and-prejudice context). And in considering
an actual innocence gateway claim, including whether to hold a hearing on such a claim,
the Court has the discretion to assess the reliability and probative force of the petitioner’s
proffer, including making some credibility determinations, if necessary. A district court’s
assessment of the credibility and reliability of the new evidence is not corralled by “a
standard appropriate for deciding a motion for summary judgment.” Schlup, 513 U.S. at
332. Rather, a district court “must assess the probative force of the newly presented
evidence in connection with the evidence of guilt adduced at trial.” Id. Hence, unlike in a
Rule 56 context, the Court is not prohibited from weighing the evidence, and—in so
doing—it “may consider how the timing of the submission and the likely credibility of
the affiants bear on the probable reliability of that evidence.” Id.
As explained below, there is “ample support” in the record for a conclusion that
the “newly-discovered evidence d[oes] not tip the Schlup determination in [Petitioner’s]
favor.” Stewart v. Cate, 757 F.3d 929, 943 (9th Cir. 2014). The Court need not hold an
MEMORANDUM DECISION AND ORDER - 7
evidentiary hearing on this issue because, as a matter of law, Petitioner is unable to
establish that he is actually innocent. See Clark, 1 F.3d at 820.
2.
The Two Differing Theories of the Case
Petitioner testified that, on April 3, 2008, he was walking alone on Orchard Street,
on his way to a bowling alley to meet a friend named Darby Lusk. He stated that a
person, whom he learned later was Ryan Lowe, yelled at him, grabbed him, and
threatened him with a gun. The gun was Lowe’s, not Petitioner’s. A struggle ensued, and
Petitioner hit Lowe in the head with a landscaping brick that he found on the ground.
Petitioner dropped the brick and began to run away. Lowe warned Petitioner to stop or
Lowe would shoot him. Petitioner slowed down but kept walking away with his hands in
the air. Lowe fired a shot toward Petitioner. There was another struggle, and Lowe fired
several more shots, one of which injured Lowe’s roommate, David Bergerson, who had
by that point joined the fray. Petitioner grabbed the gun and ran away. No other witnesses
testified for the defense. (State’s Lodging A-2 at 1151-69, 1177-79.)
The state’s theory was vastly different and was supported primarily by the
testimony of Lowe and Bergerson. (See id. at 339-479.) According to that testimony,
Petitioner and two other individuals burglarized and robbed a residence shared by Lowe,
Bergerson, and Bergerson’s girlfriend and infant son. These four residents were in the
house at the time of the robbery, but the perpetrators personally interacted only with
Lowe and Bergerson. After searching Lowe’s room and taking various items of property,
the robbers began to leave. Lowe immediately ran after the perpetrators, two of whom got
away and left the scene in a car. Lowe caught Petitioner, and they began to struggle.
MEMORANDUM DECISION AND ORDER - 8
Petitioner, not Lowe, drew a gun. Petitioner hit Lowe in the head with the gun and the
two fought over the gun. Although Lowe’s fingerprint was found on the magazine—
inside the gun—Lowe testified that he might have touched the magazine if it was ejected
during the altercation.2 Bergerson, after ensuring the safety of his girlfriend and son,
retrieved a knife and stabbed Petitioner in the leg in an attempt to help Lowe. Petitioner
fired the gun and shot Bergerson in the shoulder.3 Petitioner fled the scene and dropped
the gun. He was apprehended shortly afterwards.
In addition to Lowe and Bergerson, the following trial witnesses—among other
evidence—supported the state’s theory: (1) Bergerson’s girlfriend, April Williamson,
who testified that Bergerson woke her up immediately after the robbery and that she
watched, through her bedroom window, as two men ran across the street, got into a car,
and sped away (id. at 583-86); (2) Nicholas Anderson, a neighbor who testified that he
saw four to six individuals in a confrontation outside Lowe’s residence and that he saw
Petitioner draw and fire the gun (id. at 617-37); (3) Michael Roberts, who encountered
Petitioner later that night and who testified that Petitioner was acting suspiciously, by
lingering in a backyard after he was told to leave and by jumping a fence to get away
rather than walking down an open path (id. at 667-71); and (4) Officer Michael
2
Lowe discovered after the incident that he had a wound on his thumb that, he speculated, might have
been caused by the magazine being reinserted into the gun during the struggle. (State’s Lodging A-2 at
510-11.)
3
Petitioner was charged with aggravated battery, as to Bergerson, based on the shooting. The jury
acquitted Petitioner of that charge—an element of which was that the shooting was willful or intentional.
See Idaho Code §§ 18-903(a), 18-907(1).
MEMORANDUM DECISION AND ORDER - 9
Richmond, who apprehended Petitioner and who testified that Petitioner initially looked
at Richmond but then started to walk away (id. at 694-96).
The jury believed the prosecution’s evidence and found Petitioner guilty.
3.
Petitioner Has Not Established Actual Innocence to Excuse Procedural
Default
Petitioner relies on several pieces of evidence not presented at trial to argue that no
reasonable juror could now find him guilty beyond a reasonable doubt. Having carefully
considered this evidence, along with the trial evidence, the Court concludes that
Petitioner cannot meet the Schlup standard.
A.
Affidavit of Darby Lusk
Darby Lusk, the friend Petitioner testified he was meeting the night of the robbery,
stated in a 2010 affidavit that she had plans to meet Petitioner at the bowling alley the
night of the robbery. Lusk said that she tried to contact Petitioner’s trial attorney, but her
calls were never returned. (Dkt. 30-2 at 2.) This affidavit supports Petitioner’s testimony
at trial as to “why he was on Orchard Street that night”—he was going to meet Lusk at
the bowling alley. (Dkt. 30 at 18.)
This evidence has only slight relevance, however. That Petitioner had planned to
meet Lusk that evening does not mean that he did not also rob and assault Lowe and
Bergerson. It also fails to contradict April Williamson’s testimony that she saw two men
run across the street away from the residence, get into a car, and speed away—indicating
that Petitioner was not simply walking down the street by himself that night. The Court
thus gives the Lusk affidavit little weight.
MEMORANDUM DECISION AND ORDER - 10
B.
Fingerprint Examiner and Firearms Expert
Petitioner has submitted the affidavit of Robert Kerchusky, a fingerprint examiner.
Kerchusky states that he examined the report regarding Lowe’s fingerprint on the
magazine of the gun, the photographs of the magazine, and the photographs of the
fingerprint. Kerchusky’s “professional opinion” is that Lowe left the print “when he was
loading the magazine” and that the print “was not placed there during a struggle between
two people for the possession” of the gun (Dkt. 30-3 at 2-3.) The affidavit also claims
that Lowe’s “print is not smeared and of good quality, indicating that the magazine was
stable when the print was deposited.” (Id. at 3.)
Petitioner has also presented the Declaration of Don Cameron, a firearms expert.
Cameron states that a semiautomatic firearm, like the one at issue in this case, must be
loaded when the magazine is outside of the gun and that, after the magazine is loaded, it
must be inserted back into the gun in order for the gun to fire. (Dkt. 30-4 at 3.) Cameron
opines as follows:
The exterior walls of the magazine can only be touched when
the magazine is outside of the pistol. It would be impossible
for a finger or thumb print to be put on the magazine when
any other part of the pistol is touched with the magazine
inserted in the pistol. The only way a finger or thumb print
could be found on the magazine is if the magazine is handled
when it is outside of the pistol.
(Id.)
The Court questions whether these expert declarations are “new” evidence. The
declarations are merely cumulative of evidence presented at trial—the jury knew Lowe’s
fingerprint was on the magazine, was able to see the gun, and heard testimony from a
MEMORANDUM DECISION AND ORDER - 11
firearms expert about how the gun was loaded and otherwise functioned. The “new”
declarations simply restate the obvious question posed and probed at trial—if the
magazine was inside the gun, and Lowe’s fingerprint was on the magazine, how could the
gun not have belonged to Lowe? The jury was well aware that the placement of Lowe’s
fingerprint perhaps meant that Lowe—not Petitioner—had inserted the magazine into the
gun before the altercation and, thus, that the gun could have been Lowe’s.
On these points, Lowe testified at trial that he was not sure how his fingerprint got
onto the magazine, but he guessed that the magazine might have been ejected out of the
gun but reinserted during the struggle for the control of the gun:
Q.
... I want to ask you about—the jury’s going to hear
testimony, and I think you know, too, that your
fingerprint was found on the magazine of the gun, kind
of toward the butt of the magazine of the gun.
Can you tell the jury if you have any idea how your
thumbprint ended up there?
A.
Like I said, we were struggling. I had my hand all over
that gun and easily could have ejected the clip, which
is just, I guess—you, some guns just have a button
where you push. And—and I—I don’t know.
But later that night—or that night, I had a—like I
pinched myself on my thumb. So, easily could have
came [sic] out, came back in, and pinched myself.
Q.
Okay. And do you have any recollection of that
happening, as far as that—I mean, do you recall the
magazine coming out, or the gun jamming at any
point, or anything like that?
A.
No.
MEMORANDUM DECISION AND ORDER - 12
Q.
Okay. And as far as the—the—the thumb, did you
have any bruising or any injury?
A.
It was pinched. So, yeah, there was a little bruising.
Q.
Okay. And, at that time, did you know what that was
from?
A.
I didn’t, no.
(State’s Lodging A-2 at 510-11.) The jury evidently believed this explanation, and
Petitioner’s “new” expert opinions on the topic of Lowe’s fingerprint add little to the mix
that was not already presented at trial.
On the other hand, Lowe’s fingerprint on the magazine was—and is—the
strongest piece of evidence supporting Petitioner’s story of what happened. Though the
new declarations are “far from conclusive,” they do have “some impeachment value.”
Sistrunk, 292 F.3d at 676. The Court thus gives the Petitioner’s expert declarations some
weight.
C.
Polygraph Results
Petitioner has taken a polygraph test. Petitioner answered “No” to the following
four questions: (1) “Prior to April 3, 2008 - had you ever touched the gun used in this
incident?”; (2) “Did you ever touch the magazine of the gun used in this incident?”; (3)
“On April 3, did you take anything from within the residence at 810 S. Orchard?”; and
(4) “During this incident - did you hit Ryan [Lowe] first?” (Dkt. 30-5 at 6.)
According to the polygrapher, Petitioner “showed no significant prevailing
reactions to the relevant questions,” which was “consistent with truthfulness.” (Id. at 7.)
But the polygrapher qualified these results, stating that “[e]thical empirical practices
MEMORANDUM DECISION AND ORDER - 13
dictate the application of normative data to exceptional individuals (i.e., persons whose
functional characteristics are outside the normal distribution of individuals in the
intended sample or population),” and that, therefore, polygraph test results “should
always be regarded with caution.” (Id.)
Though polygraph results are inadmissible in Idaho courts, the fact that Petitioner
passed the polygraph constitutes some evidence that Lowe’s and Bergerson’s trial
testimony might have been false and that Petitioner’s might have been true. However,
because (1) polygraphs are not entirely reliable, (2) some individuals will pass a
polygraph despite lying to the polygrapher, and (3) the results of polygraph tests must
“always be regarded with caution,” the Court does not believe that Petitioner’s polygraph
test is entitled to significant weight. Additionally, the jury had the opportunity to assess
the demeanor of all of the witnesses, circumstances that a polygraph examination simply
cannot replicate. See Sistrunk, 292 F.3d at 676 (“The jury, of course, saw and heard the
victim testify and therefore was afforded the first-hand opportunity to judge her
credibility.”). Finally, Petitioner’s recent polygraph does not explain away his failure to
seek aid from Michael Roberts or his attempt to avoid Officer Richmond when he was
first discovered—behavior which, as the prosecution pointed out in closing argument, is
inconsistent with that of an innocent victim whom Lowe had just attacked, threatened at
gunpoint, and tried to shoot. (State’s Lodging A-2 at 1279-80.)
D.
Statements of Justin Loera
Justin Loera, a friend of Bergerson’s, stated in a February 2014 affidavit that
Lowe told him he was “hit in the head with a brick” during the struggle and that Lowe
MEMORANDUM DECISION AND ORDER - 14
“got his gun taken away by Josh McGiboney.” (Dkt. 30-6 at 2.) Loera also executed an
April 2014 affidavit, in which he again stated that Lowe told him “he had been hit on the
head with a brick” and that Lowe “never said that he was hit on the head with a pistol.”
(Dkt. 30-7 at 2.) Loera reported that Lowe told him these things a “few days” after the
incident. (Id.)
That the affidavits contain hearsay does not prohibit the Court from considering
this evidence. Lee, 653 F.3d at 938. Nonetheless, the Court concludes that, though
Loera’s affidavits have some limited impeachment value, they do not constitute
particularly strong evidence of Petitioner’s innocence.
First, Loera did not describe Lowe’s alleged statements until nearly six years after
the incident. (See Dkt. 30-6 & 30-7.) The lateness of the Loera affidavits suggests they
are of questionable reliability. See Schlup, 513 U.S. at 332 (“[A] court may consider how
the timing of the submission and the likely credibility of the affiants bear on the probable
reliability of that evidence.”).
Second, Lowe testified at trial that there were landscaping bricks at the scene and
that he was unsure whether he was hit in the head with a brick or a gun: “I mean, we had
bricks laying around. It could have easily been a brick....” (State’s Lodging A-2 at 510.)
This is unsurprising, given that Lowe and Petitioner were—by all accounts—locked in a
potentially deadly struggle, and Loera’s statement that Lowe said it was a brick is
cumulative of Lowe’s own testimony as to what might have happened.
MEMORANDUM DECISION AND ORDER - 15
Third, Lowe’s alleged statement to Loera about getting his gun taken away by
Petitioner could mean something other than that Lowe came into the confrontation armed
with his own gun. As Respondent argues, during his conversation with Loera about what
happened, Lowe could have meant that he was “disarmed of a gun that he had his hands
on at some point during the struggle,” rather than “specifically and necessarily asserting
that Lowe actually produced the gun in the course of the confrontation.” (Dkt. 33 at 16.)
Fourth, Lowe’s alleged hearsay statement to Loera that Lowe got “his” gun taken
away does not “cast doubt on the first-hand account” of Nicholas Anderson, “who
positively identified [Petitioner] in open court” as the person who drew and fired the gun.
Sistrunk, 292 F.3d at 677. Anderson testified as follows:
Q.
Can you describe what happened?
A.
... [W]e look out that window and we see everybody
that had worked their way from here, right over to here
behind our four cars.
And we hear people yelling and screaming, as—as
well as pull back a curtain and see a handgun being
drawn out of a waistline.
And we see, initially, one shot with a—I guess with
what I would describe as a burst out of the end of
the—of a handgun.
...
... [T]here is our personal cars parked right here. At
that point, everybody comes from here, you just see
nonstop chaos.
One guy takes off this way, one guy goes this way, and
the individual with a handgun pulls it out right here
and fires off one shot. You can see with the—like I
MEMORANDUM DECISION AND ORDER - 16
said, the flame or burst or—out of the end of the barrel
of the handgun.
...
Q.
.... And would you be able to identify the individual ...
who pulled the gun out of his waistband, if you saw
that person again?
A.
Yes, I could.
Q.
Is that person seated in the courtroom today?
A.
Yes, he is.
Q.
And if you could, please, point him out and describe
an article of clothing that he’s wearing?
A.
He is sitting next to the gentleman in the gray suit, and
has a white dress shirt on.
Q.
Okay. And are you certain that that’s the person who
you saw on April 3, 2008, that you’ve described...?
A.
Yes, I am.
...
Q.
Is that the same individual, that pulled the handgun
from his waistband, that you’ve just described?
A.
Yes, it is.
Q
And is it the same person who fired the weapon?
A.
Correct. Yes.
(State’s Lodging A-2 at 618, 625, 636-37.)
Anderson did not know Lowe or Bergerson other than by sight, and he had no
reason to lie about what he saw. Petitioner argues that Anderson’s identification is
unreliable, but the potential weaknesses in that identification were already exposed at
MEMORANDUM DECISION AND ORDER - 17
trial. Anderson was a distance away from Petitioner at the time and it was fairly dark, but
Petitioner’s trial counsel cross-examined Anderson on these points. (State’s Lodging A-2
at 637-56.) Hence, the jury knew of the possible problems with the identification and
presumably considered them when evaluating Anderson’s testimony.
In sum, although Loera’s 2014 affidavits constitute some evidence that Lowe
owned the gun and pulled it on Petitioner—instead of the other way around as Lowe
testified at trial—this less-than-reliable impeachment evidence is not especially “dramatic
new evidence of innocence.” Larsen, 742 F.3d at 1096.
E.
Photograph of Landscaping Brick
Petitioner testified that he hit Lowe with a landscaping brick he found at the scene.
In closing argument, the prosecutor assailed that testimony by relying on various
photographs of the scene, none of which showed such a brick:
You recall the defendant’s testimony, a short time ago,
where he indicated that this is generally the area where he
believed that he picked that brick up .... And if you look at the
photographs, go back and look at all the crime scene
photographs, ladies and gentlemen, you’re not going to see a
brick there.
And we’ve looked at some of the other ones earlier
here, today, but there is no brick. And again, the defendant
said, yeah, I think it was here, somewhere in this area. And he
was certain that he used a brick, but there is no brick, in the
crime scene, in these photographs.
(State’s Lodging A-2 at 1273-74.)
Now, Petitioner presents a contemporaneous photograph of the scene that does, in
fact, show a landscaping brick. The brick is on the ground, a bit apart from the rest of the
MEMORANDUM DECISION AND ORDER - 18
organized landscaping bricks (Dkt. 30-1 at 10.) Petitioner argues that this photograph
corroborates his testimony that he hit Lowe with a brick.
Once again, Petitioner’s new evidence is only somewhat relevant to impeach
Lowe’s testimony. As explained above, Lowe himself acknowledged that there were
bricks on the property and that he might have been hit with a brick instead of a gun.
(State’s Lodging A-2 at 510.) Additionally, that a landscaping brick might have been
used during the struggle does not mean that Petitioner did not also pull a gun and hit
Lowe in the head with the gun (or the brick). The photograph certainly does not impeach
Anderson’s unequivocal testimony that it was Petitioner who drew and fired the gun, nor
does the photograph explain away Petitioner’s suspicious behavior with respect to
Michael Roberts or Officer Richmond.
F.
Declaration of Travis Williams
Petitioner also relies on the Declaration of Travis Williams, Anderson’s
roommate. Williams did not testify at trial, but said the following in an initial statement:
At about 11:15 pm I was in my room getting ready for bed
when my roommate [Anderson] came and told me that the
neighbors were fighting. I came out with him to the living
room window and we peeked out behind the drapes. I saw
one kid run down Orchard in the south direction while two
other kids were arguing. One of these two kids were [sic]
walking away from the other with his hands in the air. The
kid pulled a gun out on the kid walking away and fired a shot.
As soon as I heard and saw the gun shot I hit the floor and
crawled away from the window back to my room and my
roommate called 911. While on the phone we heard 3 more
shots and screaming.
MEMORANDUM DECISION AND ORDER - 19
(Dkt. 30-8 at 5.) In a July 2018 declaration, Williams again states that, on the night of the
incident, he heard people fighting and that, when he looked outside, one of them “ran
down South Orchard.” (Id. at 3.) He also reiterates that “[o]ne of the two [other] kids
started to walk away with his hands in the air,” and the “other kid pulled a gun out on the
one walking away and fired a shot.” (Id. at 4.)
Petitioner is correct that Williams’s declaration is consistent with Petitioner’s
testimony that he was walking away with his hands in the air when Lowe fired a shot
towards him. But it does not compel that conclusion.
Indeed, Williams’s statements, though corroborating portions of Petitioner’s
testimony, contradict others. Petitioner states he was walking alone when Lowe suddenly
attacked him. Williams’s statements indicate that the person walking away from the
confrontation had not been alone, but had initially tried to run away along with the other
person who “ran down South Orchard.” Therefore, part of Williams’s statement
buttresses the testimony of Bergerson and Lowe that there was more than one robber and
that Petitioner was the only one of the robbers that Lowe was able to catch. Williams’s
statements, while somewhat helpful to Petitioner, do not wholly support his Schlup claim.
G.
Renter’s Insurance Policy
Petitioner has uncovered evidence that Lowe had a renter’s insurance policy, that
he submitted a claim for the cash and property taken in the robbery, and that his claim
was paid. (Dkt. 30-9 & 30-10.) Petitioner points to the insurance policy as a potential
motive to fabricate the robbery and to frame Petitioner. But he offers nothing but pure
speculation. See Lee, 653 F.3d at 944 (expert testimony undermining victim’s account
MEMORANDUM DECISION AND ORDER - 20
insufficient for Schlup claim when the expert’s conclusions “hinge[d] on ... speculation
from the trial record.”). The fact that a person renting an apartment has renter’s insurance
is unremarkable, and the Court cannot assume from the existence of the policy, or Lowe’s
claim under that policy, that Lowe (1) planned to commit fraud by staging a robbery,
(2) enlisted Bergerson to go along with the fraud with no obvious benefit to Bergerson,
and (3) lay in wait for someone—who happened to be Petitioner—to walk past Lowe’s
residence so they could frame him as their patsy. It could be that Lowe came up with the
idea of faking a robbery after the altercation with Petitioner—which would be less
bizarre than framing Petitioner from the start—but, again, this is simply speculation. The
insurance policy has only marginal value as impeachment evidence.
H.
Audio Recordings and Transcripts of Police Interactions
Petitioner presents various audio recordings and transcripts of the initial
discussions undertaken by the responding police officers the night of the robbery. The
recordings and transcripts merely document the officers doing their jobs—by gathering
statements from witnesses and discussing what might have happened earlier in the
evening when, everyone agrees, there was a chaotic, life-or-death struggle involving at
least three people. Nothing in the recordings calls into question any of the state’s
evidence at trial.
I.
Evidence Regarding Brooke Holloway
Prior to trial, the prosecutor informed defense counsel that Lowe had told her of a
possible connection between Lowe and Petitioner—a woman named “Brooke.” (Dkt. 30-
MEMORANDUM DECISION AND ORDER - 21
1 at 27-28.) Brooke was an ex-girlfriend both of Lowe and of Petitioner; she began dating
Lowe after her relationship with Petitioner ended. The prosecutor’s letter stated:
Brooke (who now lives out of state somewhere) called
[Lowe] at one point after all this happened and said she would
give him the names of the other people involved if [Lowe]
dropped charges against McGiboney. She gave him two first
names. He thinks she was involved to a certain extent and she
had acknowledged that in text to another friend....
[Lowe] can only speculate as to motive. It is possible the
motive was your client was upset because [Lowe] dated his
ex-girlfriend or Brooke knew about marijuana or money.
(Id.) It does not appear that Petitioner’s trial counsel investigated Brooke further.
The full name of this person is Brooke Holloway. Petitioner’s attorney in this
matter contacted Holloway and reported the following:
I have been unable to get a signed declaration from Ms.
Holloway, but I can proffer to the Court that, if subpoenaed to
testify under oath, I believe she would testify to the
following. Lowe was interested in dating her, and he may
have seen McGiboney, who she was then dating, at some
point. Lowe and McGiboney would pick her up at different
times, and they may have crossed paths. She was not really
interested in Lowe, but he hung around her. He was
possessive and jealous. She does not recall making any phone
call to Lowe, as reported in the prosecutor’s letter. To her
recollection, no one contacted her to discuss testifying.
(Dkt. 30-1 at 4, ¶ 10.) Petitioner claims that the Brooke Holloway evidence “would have
provided context for McGiboney’s testimony for why he was harassed by Lowe while he
was walking down Orchard Street” before the incident. (Dkt. 30 at 18.)
This evidence is a double-edged sword, however. From the prosecutor’s letter and
habeas counsel’s investigation, one could reasonably infer—as invited by Petitioner—
MEMORANDUM DECISION AND ORDER - 22
that contrary to Lowe’s testimony, Lowe knew Petitioner and hassled and attacked him
on Orchard Street because Lowe was jealous of Petitioner’s relationship with Brooke
Holloway. On the other hand, one could also reasonably infer that Petitioner’s motive in
robbing Lowe stemmed from the same type of jealousy. It is also possible that, though
Lowe may have known about Petitioner (in the way one might know about a girlfriend’s
previous boyfriend), he did not in fact know Petitioner. In other words, it could be that at
the time of the robbery and at trial Lowe simply had not connected a face to a name he
might not even have known. Finally, Holloway’s purported phone call to Lowe about the
“other people involved” contradicts Petitioner’s claim that he did not participate in any
robbery and that he was innocently walking alone on Orchard Street when Lowe attacked
him.
As with Petitioner’s other evidence, the Holloway information is not particularly
convincing evidence of innocence.
J.
Lowe’s 2013 Criminal Conviction
Petitioner’s reliance on Lowe’s guilty plea to drug charges in 2013 (see Dkt. 30-1
at 33-67)—nearly five years after the April 2008 incident—is misplaced. Lowe’s (and
Bergerson’s) drug use was explored at trial, and the jurors presumably considered it when
they decided whose testimony to believe.
K.
A Holistic Review of All the Evidence Does Not Establish Actual
Innocence
The Court has discussed the relative weight of each piece of evidence presented by
Petitioner. In addition, as required by Schlup and House, the Court has considered that
MEMORANDUM DECISION AND ORDER - 23
evidence collectively—whether admissible or not—along with all of the evidence
presented at trial. Petitioner has certainly shown more doubt as to his guilt than the trial
evidence established. But the question is whether every reasonable juror would be
compelled to find reasonable doubt. The Court concludes, after careful deliberation, that
the answer must be no.
The strongest piece of evidence in Petitioner’s favor is Lowe’s fingerprint on the
gun magazine. It is not especially likely, though not impossible, that Lowe’s fingerprint
ended up on the magazine in the way Lowe speculated—that the magazine was ejected
and that Lowe left the print on the magazine during the struggle for the gun. It is more
likely that the fingerprint was left when Lowe loaded the gun. However, the question is
not what this Court finds to be more likely. The question is not even whether this Court
finds reasonable doubt. Schlup, 513 U.S. at 329 (“It is not the district court’s independent
judgment as to whether reasonable doubt exists that the [actual innocence] standard
addresses.”). Instead, the Court must make a probabilistic determination about what
reasonable jurors would do. Id.
Here, the fingerprint evidence is not new. The jurors were well aware of the
fingerprint on the magazine, and Petitioner’s trial counsel relied on that print to argue
reasonable doubt. The jurors knew that the magazine, once loaded, was inside the gun
and that the magazine would have had to have been outside the gun at some point in
order for Lowe’s print to have been left there. Despite this knowledge, the jury believed
the testimony of Lowe, Bergerson, and Anderson that Petitioner drew and fired the
MEMORANDUM DECISION AND ORDER - 24
weapon—not Lowe. See Lee, 653 F.3d at 944-45 (holding that petitioner did not meet the
actual innocence standard where much of the evidence relied upon was already before the
jury).
Given that the jury already knew about the fingerprint evidence, the Court must
consider whether the other evidence in Petitioner’s favor would be enough for every
reasonable juror to tip the balance to a finding of reasonable doubt. Justin Loera’s
statement that Lowe told him Lowe “got his gun taken away,” if reliable and credible,
would provide some weight to Petitioner’s end of that scale. But, as previously described
by the Court, Loera’s 2014 affidavits (based on a memory from nearly six years earlier)
are not entirely reliable, and Lowe could have meant something different, when speaking
to Loera, than that Lowe himself actually produced the gun.
Finally, the remainder of the new evidence “only thinly supports [Petitioner’s]
innocence claim.” Lee, 653 F.3d at 945. The polygraph results are not entirely reliable.
The Brooke Holloway and Travis Williams pieces of evidence weigh in favor of some
parts of Petitioner’s version of the story but weigh against others. The Lusk affidavit, the
brick photograph, the renter’s insurance policy, the initial police interactions, and Lowe’s
2013 criminal conviction are not strongly relevant.
The Court’s conclusion is reinforced by the serious weaknesses of Petitioner’s
defense. See Sistrunk, 292 F.3d at 676 (weak alibi defense). Petitioner’s claim of
innocence rings false in light of his suspicious behavior when he encountered Michael
Roberts and Officer Richmond. If, just out of the blue, Lowe and Bergerson had attacked
MEMORANDUM DECISION AND ORDER - 25
Petitioner, why on earth wouldn’t Petitioner have sought help when he came across these
witnesses? Petitioner offers no convincing explanation. Nor has Petitioner called into
question Anderson’s identification of Petitioner as the shooter. Anderson was a
disinterested observer with no reason to lie, and the potential weaknesses in Anderson’s
identification were already explored at trial.
A reasonable juror, considering all that is now available, would be confronted with
differing evidence as to what precisely happened on April 3, 2008. Was Petitioner
innocently walking to a bowling alley when a gun-wielding Lowe and a knife-wielding
Bergerson suddenly attacked him? Were Lowe and Bergerson both lying about what
happened in a scheme to defraud an insurance company? Or did Petitioner (along with
others) instead commit a robbery against Lowe and Bergerson, resulting in the
confrontation outside the house? Was Petitioner or Lowe the aggressor during the
struggle, and who drew and fired the gun? The evidence on all these points remains—at
best—debatable. When such an equivocal record is measured against what the law
requires for a Schlup gateway claim, Petitioner cannot prevail.
CONCLUSION
The Court finds that an evidentiary hearing as to the actual innocence gateway
exception is unnecessary. A reasonable juror, considering all of the evidence now
available, would not be compelled to vote to acquit. Rather than “exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence,” Schlup, 513
U.S. at 324, Petitioner has presented some impeachment evidence that does not
MEMORANDUM DECISION AND ORDER - 26
“specifically exculpate” him, Stewart, 757 F.3d at 940. Because he has not satisfied his
extremely heavy burden of establishing actual innocence, Petitioner’s habeas claims are
not excused from procedural default. Therefore, the Court must dismiss the Petition.
ORDER
IT IS ORDERED:
1.
Respondent’s Motion to File Oversize Reply Brief (Dkt. 32) is GRANTED.
2.
Petitioner’s Motion for Oral Argument (Dkt. 34) is DENIED.
3.
Respondent’s Renewed Motion for Summary Dismissal (Dkt. 28) is
GRANTED, and this case is DISMISSED with prejudice.
4.
The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Habeas Rule 11. If Petitioner intends to appeal, he must file a
timely notice of appeal with the Clerk of Court. Petitioner may seek a
certificate of appealability from the Ninth Circuit by filing a request in that
court.
DATED: March 26, 2019
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge
MEMORANDUM DECISION AND ORDER - 27
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