Glenn v. Salinas
Filing
19
OPINION AND ORDER DISMISSING WITH PREJUDICE 1 Petition for Writ of Habeas Corpus as untimely. Signed by Judge Rudy Lozano on 8/3/11. (mc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROOSEVELT GLENN,
Petitioner,
vs.
YVETTE SALINAS,
Respondent.
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CAUSE NO. 2:10-CV-351
OPINION AND ORDER
This matter is before the Court on the Petition for Writ of
Habeas Corpus By a Person in State Custody Pursuant to 28 U.S.C. §
2254, filed by Petitioner, Roosevelt Glenn, through counsel, on
September 10, 2010 (DE #1). For the reasons set forth below, the
petition is DISMISSED WITH PREJUDICE as untimely.
BACKGROUND
In 1993, Roosevelt Glenn was convicted of rape in Lake County,
Indiana, and sentenced to 36 years in prison.1
45G01-9001-CF-003.
See State v. Glenn,
On direct appeal, the Indiana Court of Appeals
set forth the facts regarding Glenn’s conviction as follows:
At approximately 1:00 a.m. on December 7, 1989, several
men in a light green 1973 Pontiac Catalina bumped into
1
In deciding this habeas petition, the Court must presume
the facts set forth by the state courts are correct. See 28
U.S.C. § 2254(e)(1). It is Glenn’s burden to rebut this
presumption of correctness with clear and convincing evidence.
Id.
Jill Martin’s automobile as she drove south on I–65 in
Lake County. Martin pulled over to the side of the road,
but remained in her car with the engine running. The
driver and two other men exited the green Pontiac and
approached her car, asking whether she was all right.
When a pickup truck pulled up behind Martin's car, the
men sped away. Martin noted the license plate number of
the car and later identified it as belonging to Gary
Daniels.
Approximately one-half hour later, a light green Pontiac
rear-ended or bumped M.W.’s car. M.W. exited her vehicle
to inspect it for damage. Darryl Pinkins approached her
and inquired whether she was all right. Then he grabbed
her and, with the help of Glenn and another man, dragged
her back to the green Pontiac. Glenn held the victim
down in the back seat and told her, “Don't look at us,
bitch. We’ll kill you.” . . . Glenn gave the victim his
green coveralls from work to put over her eyes. Then
Glenn undressed her and, despite her protestations that
she had just suffered a miscarriage, raped her. After
ejaculating on the victim’s stomach, Glenn used the
sleeve of her ski jacket to wipe off both their genital
areas. During the next two hours, four other men in the
car brutally raped and sodomized M.W.
Later, the men took M.W. back to her car. As another
vehicle approached, they began throwing her clothes at
her and threatened to kill her and her husband if she
went to the police. M.W. still had the green coveralls
used to cover her eyes during the assault. After telling
her husband about the incident, M.W. informed the police
and submitted to a rape kit. As a result of the attack,
she hemorrhaged vaginally for three weeks and ultimately
suffered a miscarriage.
After severing his case from that of his co-defendants,
Glenn’s first trial ended in a mistrial due to a
deadlocked jury. At his second trial, however, Glenn was
convicted of Rape, a class A felony. . . . The trial
court sentenced him to thirty-six years of imprisonment.
Glenn v. State, No. 45A03–9307–CR–244, slip op. at 2–3 (Ind. Ct.
App. Aug. 29, 1995) (internal footnotes and citations omitted).
Glenn appealed, challenging his conviction and sentence on
2
numerous grounds.
of
Appeals
respects.
Id. at *3-4.
affirmed
Glenn’s
Id. at *4-13.
Supreme Court.
In August 1995, the Indiana Court
conviction
and
sentence
in
all
Glenn did not seek review in the Indiana
(See DE #13-2.)
On November 14, 2003, Glenn filed a petition for postconviction relief.
(DE #13-1 at 2.)
The Indiana Public Defender
filed an appearance on his behalf, and in the course of the postconviction proceedings he amended his petition three times.
(DE
#13-6.) In November 2004, Glenn filed a motion seeking DNA testing
of a hair taken from the victim’s sweater, which was presented as
evidence at trial as likely belonging to him.
(Id. at 5.)
The
results of the DNA test showed that the hair did not belong to
Glenn. Glenn v. State, No. 45A05-0808-PC-462, slip op. at *6 (Ind.
Ct. App. Apr. 22, 2009).
Glenn argued, among other claims, that
the new DNA hair evidence warranted a new trial; that his due
process rights were violated by the admission of the hair and blood
evidence presented at trial, which he claimed was false and
misleading; and that his trial counsel was ineffective in failing
to properly refute the hair and blood evidence presented at trial.
Id. at *2, 5-7.
After two evidentiary hearings, the trial court
denied the petition.
See id. at *5-10.
Glenn appealed, and the Indiana Court of Appeals affirmed the
denial of post-conviction relief.
Id. at *10-27.
The court
concluded that, given the other evidence in the record, the DNA
3
evidence would not be likely to produce a different result at
trial.
Id. at *10-24.
The court also concluded that, in light of
the science known at the time of trial, the state’s hair and blood
evidence was not false or misleading, and thus Glenn’s due process
rights were not violated in connection with this evidence.
The
court further concluded that Glenn’s counsel did not provide
ineffective assistance in connection with this evidence.
*24-26.
Id. at
Glenn sought transfer to the Indiana Supreme Court, which
was denied.
(DE 13-7 at 7.)
On September 10, 2010, Glenn filed this federal petition
through counsel, raising the following claims: (1) his due process
rights were violated by the admission of hair and blood evidence
the state knew or should have known was “false and misleading”; and
(2) his trial counsel provided ineffective assistance in connection
with the admission of this evidence.
(DE #1 at 4-7.)
DISCUSSION
Glenn’s
petition
is
governed
by
the
provisions
of
the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
Under the AEDPA,
habeas corpus petitions are subject to a strict one-year statute of
limitations, stated as follows:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State
court. The limitation period shall run from the
4
latest of——
(A) the date on which the judgment became
final by the conclusion of direct review or
the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing
an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively
applicable
to
cases
on
collateral review; or
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due
diligence.
(2) The time during which a properly filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward any period of limitation under this
subsection.
28 U.S.C. § 2244(d).
The respondent argues that Glenn’s petition is untimely by
several years.
(DE #14 at 6-12.)
As the Respondent points out,
because Glenn’s conviction became final prior to the enactment of
the AEDPA, he had until April 24, 1997, to pursue federal habeas
relief.
Newell v. Hanks, 283 F.3d 827, 832-33 (7th Cir. 2002).
Glenn filed this petition in 2010, some 13 years after that
deadline.
Although the limitations period is tolled during the
5
pendency of a properly filed post-conviction relief petition, the
federal deadline expired long before Glenn sought post-conviction
review in 2003. Therefore, the state post-conviction proceeding is
“irrelevant” for statute of limitations purposes.
De Jesus v.
Acevedo, 567 F.3d 941, 943 (7th Cir. 2009).
In an effort to avoid dismissal, Glenn claims that his
petition
is
timely
§ 2244(d)(1)(D).
that
the
under
the
provisions
(DE #1 at 7; DE 18.)
factual
predicate
for
his
of
28
U.S.C.
Specifically, he asserts
claims,
“the
necessary
science——was not available and reliable until around 2003 such that
the applicable 1-year statute of limitations for filing this
Petition should not be deemed to have started to run until that
time.”
(DE #1 at 7.)
The Court agrees with the respondent that
this argument is flawed in several respects.
First, a careful review of the petition reveals that the DNA
test results are not the factual predicate for either of Glenn’s
claims.
Glenn’s first claim is that his due process rights were
violated by the admission of the hair and blood evidence presented
at his trial.
(DE #1 at 4-5; DE #4-2 at 11-18.)
As to the blood
evidence, his claim is premised on the trial testimony of Kim
Epperson, a serologist with the Indiana State Police who conducted
DNA and serology tests on seminal fluid obtained from the victim’s
vaginal cavity, jacket, and sweater. Glenn, No. 45A05-0808-PC-462,
slip op. at *13-15.
In Glenn’s view, Epperson’s trial testimony
6
was misleading because she suggested that he could not be excluded
as a source of the seminal fluid, even though DNA testing conducted
at the time of trial did not detect his DNA profile in the stains.2
Upon review, this claim is not premised in any way on the results
of the DNA tests conducted on the hair evidence in 2004.
Similarly,
Glenn’s
claim
regarding
the
hair
evidence
is
premised on the testimony of Dana Peterson, a hair comparison
expert who conducted an analysis of a hair taken from the victim’s
sweater.
At that time, hair comparison was performed by visually
examining the hair evidence and comparing it to a hair sample taken
from the defendant.
(See Trial Tr. at 1354-70; PCR Tr. at 24-32.)
Peterson
that
testified
based
on
her
analysis,
the
unique
characteristics of the hair obtained from the victim’s sweater
suggested that it came from Glenn; she acknowledged, however, that
unlike fingerprint evidence hair analysis was not definitive, and
she could not say definitively that the hair did not come from
someone else.
(Trial Tr. at 1390-99.)
2
Epperson conducted her own serological tests, which
involved blood typing and enzyme typing, and also sent the
samples out for DNA testing at a laboratory. The DNA testing
detected two DNA profiles, neither of which matched Glenn’s, and
those results were presented at trial. However, Epperson
testified that with DNA testing a larger quantity of fluid is
needed to obtain a result; it was her view that based on the
serological testing Glenn could not be completely excluded as a
potential source of the stains. (Tr. at 1310-46, 2303-38.) At
the post-conviction hearing, Glenn presented an expert who
disagreed with Epperson’s opinions regarding the serological
testing. (PCR Tr. at 84-186.)
7
At the post-conviction hearing, Glenn presented the testimony
of a hair comparison expert who took issue with the manner in which
Peterson made her visual comparisons.3
Based
on
his
expert’s
opinion,
(PCR Tr. at 37-45, 69-71.)
Glenn
analysis was faulty and misleading.
claims
that
Peterson’s
(DE #18 at 2-5.)
Although
Glenn’s claim relates to hair evidence, it is apparent that the
claim is based on the evidence presented and available at the time
of trial, not on the results of the DNA test performed nearly a
decade after the trial was over.
Glenn’s second claim is that his counsel was ineffective in
failing to properly investigate and prepare so that she could
uncover the above flaws in the state’s expert testimony.4
at 4-7; DE #4-2 at 11-12.)
(DE #1
As explained above, Glenn’s claim
pertaining to the blood evidence is wholly unrelated to the
subsequent DNA testing on the hair evidence.
Furthermore, that
aspect of the claim pertaining to the hair evidence is premised on
evidence presented and available at the time of trial, not on the
results of the DNA test performed nearly a decade later. For these
3
Glenn’s expert opined that, contrary to Peterson’s
testimony, the two hairs did not have sufficient visual
similarities to be classified as “of common origin” under
prevailing standards. (PCR Tr. at 37-45.) Nevertheless, he too
concluded that based on a visual analysis the hair evidence was
inconclusive and could not be ruled out as belonging to Glenn.
(Id. at 69-71.)
4
Glenn does not address his ineffective assistance of
counsel claim in his traverse. (See DE #18.)
8
reasons, Glenn has not established that the factual predicate for
either of his claims was unavailable until 2003.
Even if Glenn could show that his claims were premised on the
new
hair
evidence
he
obtained
in
2004,
under
28
U.S.C.
§ 2244(d)(1)(D), a claim based on newly discovered evidence must be
raised
within
predicate
of
one
the
year
from
claim
or
“the
claims
date
on
which
presented
could
discovered through the exercise of due diligence.”
§ 2244(d)(1)(D).
the
factual
have
been
28 U.S.C.
The Seventh Circuit has made clear that the time
runs from the date the evidence could have been discovered through
diligent inquiry, not when it was actually discovered or when its
significance was realized.
Owens v. Boyd, 235 F.3d 356, 359 (7th
Cir. 2000).
Here, Glenn makes a vague assertion that the “necessary
science” needed to obtain the new hair evidence “was not available
and reliable until around 2003.”
(DE #1 at 7) (emphasis added).
He offers nothing to substantiate his assertion that DNA testing
was not available until 2003; in fact, at the post-conviction
hearing his own expert testified that DNA testing was available and
used in criminal proceedings as far back as the mid-1990s.
Tr. at 149.)
(PCR
Furthermore, case law indicates that DNA testing of
hair evidence was being conducted in Indiana as far back as 1999.
See Anderson v. State, 718 N.E.2d 1101, 1102 (Ind. 1999).
In
response to the respondent’s timeliness argument, Glenn again
9
offers
only
vague
assertions
about
when
the
testing
became
available rather than pinpointing a date, stating that he pursued
relief “[a]fter Mitochondrial DNA became known and accepted and as
the science of DNA mixtures advanced.”
(See DE #18 at 7.)
Glenn
has failed to establish that 2003 is the earliest date he could
have obtained the new hair evidence.
Glenn appears to argue that the Court should nevertheless
review his claims on the merits because he is actually innocent of
the offense.
(See DE #18 at 2-5.)
Glenn relies on House v. Bell,
547 U.S. 518 (2006), but this case governs review of a procedurally
defaulted claim, not an untimely claim. Although a claim of actual
innocence may provide a gateway for review of a procedurally
defaulted claim, a claim of actual innocence does not excuse the
failure to comply with time deadlines under the AEDPA.
Escamilla
v. Jungwirth, 426 F.3d 868, 872 (7th Cir. 2005) (“Prisoners
claiming to be innocent, like those contending that other events
spoil the conviction, must meet the statutory requirement of timely
action.”).
Even
if
untimeliness
there
of
were
Glenn’s
some
legal
petition,
basis
such
as
for
excusing
through
tolling, Glenn has not proven his actual innocence.
the
equitable
Under Supreme
Court standards actual innocence means “factual innocence, not mere
legal insufficiency.”
(1998).
Bousley v. United States, 523 U.S. 614, 623
A prisoner asserting actual innocence must show that “in
10
light
of
new
evidence,
it
is
more
likely
than
not
that
no
reasonable juror would find him guilty beyond a reasonable doubt.”
House, 547 U.S. at 537.
This is a difficult standard to meet, and
such claims are “rarely successful.” Schlup v. Delo, 513 U.S. 298,
324 (1995).
The petitioner must support the claim of innocence
“with new reliable evidence——whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence——that was not presented at trial.”
Id.
The reviewing
court must consider all the evidence, old and new, and make a
“probabilistic
determination
instructed jurors would do.”
about
what
reasonable,
properly
House, 547 U.S. at 538. “The court’s
function is not to make an independent factual determination about
what likely occurred, but rather to assess the likely impact of the
evidence on reasonable jurors.” Id.
Here, the DNA test results obtained in 2004 show that Glenn
was not the source of a hair taken from the victim’s sweater.
However, this evidence does not exonerate him.
Court
of
Appeals
recounted,
the
state
As the Indiana
developed
significant
circumstantial evidence of Glenn’s guilt, including testimony that
substantially undermined his alibi defense; testimony from two
inmates that Glenn made incriminating statements to them about his
involvement in the offense; and evidence regarding a pair of
coveralls one of the men gave to the victim to cover her face,
which were traced back to Glenn through his employer.
11
See Glenn,
No. 45A05-0808-PC-462, slip op. at *21-25.
Additionally, the jury
heard testimony from Glenn denying his involvement in the offense
and from Glenn’s alibi witness, and obviously found this testimony
to be lacking in credibility.
(See Trial Tr. at 1992-2132, 2365-
2402.) Given the evidence in the record, the Court cannot conclude
that it is more likely than not no reasonable juror would find
Glenn guilty beyond a reasonable doubt.
For all these reasons, Glenn’s petition must be dismissed as
untimely.
Because the petition must be dismissed, the Court does
not reach the respondent’s arguments that Glenn’s claims are
procedurally defaulted and/or fail on the merits.
(See DE #14 at
12-40.)
As a final matter, pursuant to RULE 11
OF THE
RULES GOVERNING
SECTION 2254 CASES, the Court must either issue or deny a certificate
of appealability in all cases where it enters a final order adverse
to the petitioner.
To obtain a certificate of appealability under
28 U.S.C. § 2253(c), the petitioner must make a substantial showing
of the denial of a constitutional right by establishing “that
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement
to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(internal quote marks and citation omitted).
As is fully explained
above, Glenn’s habeas petition is untimely by several years.
12
Nothing before the Court suggests that jurists of reason could
debate the correctness of this procedural ruling, or find a reason
to encourage him to proceed further.
Accordingly, the Court
declines to issue a certificate of appealability.
CONCLUSION
For the reasons set forth above, the petition (DE #1) is
DISMISSED WITH PREJUDICE as untimely.
DATED: August 3, 2011
RUDY LOZANO, Judge
United States District Court
13
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