Osborne v. Epps et al

Filing 24

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS for 21 Report and Recommendations. No Certificate of Appealability will issue as Osborne has failed to make a substantial showing of the denial of a constitutional right in that his Petition was untimely filed. Signed by District Judge William H. Barbour, Jr on 3/28/17. (TLC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

JOSEPH EUGENE OSBORNE

PETITIONER

VS.

CIVIL ACTION NO. 3:13-cv-784-WHB-RHW

MARSHALL FISHER, Commissioner,
Mississippi Department of Corrections; and
JIM HOOD, Attorney General of the
State of Mississippi

RESPONDENTS

OPINION AND ORDER
This cause is before the Court on the Objection of Petitioner,
Joseph Eugene Osborne (“Osborne”), to the Report and Recommendation
(“R and R”) of United States Magistrate Judge Robert H. Walker.
Having considered the R and R, Osborne’s Objection thereto,1 the
other pleadings in this case, as well as relevant authorities, the
Court finds the R and R should be adopted in its entirety over
Osborne’s Objection.

I.

Discussion

Osborne was charged with murder following the suffocation of
five-year-old Charlie Hopkins, the son of his live-in girlfriend.
The death-by-suffocation determination was made by pathologist, Dr.
Steven
1

Hayne

(“Hayne”)

who,

while

performing

an

autopsy

on

Respondents have not filed any objections to the subject R
and R, and the time period for so doing has expired.

Charlie’s body, observed, inter alia, (1) multiple abrasions and
bruises on Charlie’s face that were consistent with a hand having
been held over his nose and mouth, and (2) the presence of
petechia, which are often associated with asphyxiation.

Following

trial, at which Hayne and several other witnesses testified,
Osborne was found guilty of murder, and was sentenced to a term of
life imprisonment.

Osborne’s conviction was affirmed on direct

appeal. See Osborne v. State, 942 So.2d 193 (Miss. Ct. App. 2006),
cert. denied, 942 So.2d 164 (Miss. 2006).
In November of 2012, Osborne filed a Petition for PostConviction Relief in the Mississippi Supreme Court, alleging, inter
alia, that the State had violated his constitutional rights to due
process, a fair trial, and to confront witnesses. Osborne’s claims
were predicated on Hayne’s qualifications (or alleged lack thereof)
to offer forensic evidence, and Hayne’s testimony in his and other
trials.

Osborne’s Petition was denied as follows:

In the present application, Osborne maintains that he has
obtained evidence regarding Dr. Steven Hayne’s alleged
arrangement with the State, professional qualifications,
and instances of “forensic fraud,” all of which
purportedly constitute “newly-discovered evidence.” See
Miss. Code Ann. §§ 99- 39-5(2)(a)(i), 99-39-27(9).
Relatedly, Osborne raises claims of alleged violations of
“fundamental constitutional rights based upon such
“newly-discovered
evidence”
(i.e.,
violations
of
Osborne’s: (1) due process rights under Napue v.
Illinois, 360 U.S. 264 (1959), via the presentation of
false evidence during trial; (2) due process rights under
Brady v. Maryland, 373 U.S. 83 (1963); (3) substantive
right to a fair trial via “gross violations of [the]
Rules of Evidence” (namely, Mississippi Rule of Evidence
702); and (4) rights under the Confrontation Clause)).
2

After due consideration, the panel finds that Osborne’s
claim of “newly discovered evidence” is without merit as
the subject evidence was “reasonably discoverable at the
time of trial” and/or not “of such nature that it would
be practically conclusive that, if it had been introduced
at trial, it would have caused a different result in the
conviction or sentence.”
Miss. Code Ann. §§ 99-395(2)(a)(i), 99-39-27-(9). As such, that claim is timebarred and should be denied. Since Osborne’s alleged
“fundamental” constitutional right claims are predicated
upon evidence which is not “newly-discovered,” the panel
finds that those claims are waived. See Miss. Code Ann.
§ 99-39-21(1). Alternatively, the panel finds that
Osborne’s alleged “fundamental” constitutional right
claims are without merit and should be denied. Finally,
the panel finds that Osborne has failed to present a
substantial showing of the denial of a state or federal
right. Accordingly, the panel finds that Osborne’s
present application should be denied.
Osborne v. State, No. 2012-M-1845, slip order at 1-2 (Miss. May 29,
2013).
Following the decision of the Mississippi Supreme Court,
Osborne file a Petition, pursuant to 28 U.S.C. § 2254, for Writ of
Habeas Corpus by a Person in State Custody (“2254 Petition”) in
this Court.

In his 2254 Petition, Osborne raises the following

claims:
(1)

He

was

denied

his

right

to

due

process,

as

articulated in Napue v. Illinois, 360 U.S. 264 (1959),
based on Hayne’s offering false and misleading evidence
regarding (a) his qualifications and (2) his findings
with respect to Charlie’s death;

3

(2)

He

was

denied

his

right

to

due

process,

as

articulated in Brady v. Maryland, 373 U.S. 83 (1963),
based on the failure of the State to disclose material
evidence regarding (a) its business relationship with
Hayne, (b) Hayne’s license and credentialing history, and
(c) Hayne’s time-of-death determination; and

(3)

He

was

denied

his

Sixth

Amendment

to

confront

witnesses based on the failure of the State to disclose
impeaching information regarding Hayne.

The 2254 Petition came before United States Magistrate Judge Robert
H. Walker who, upon review, entered a Report and Recommendation (“R
and R”) recommending that Osborne’s Petition be dismissed as
untimely.
In making his recommendation, Judge Walker first found that
Osborne’s

Petition

was

governed

by

a

one-year

statute

limitations that began to run from the 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; [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.

4

of

28 U.S.C. § 2244(d)(1)(A),(D).

Judge Walker reasoned that if the

applicable statute of limitations began to run on the date on which
judgment in Osborne’s state criminal case became final in 2006, his
2254 Petition was clearly untimely as it had not been filed until
2013.

See R and R [Docket No. 21], 10.

Judge Walker next

considered Osborne’s argument that his 2254 Petition was timely
under

2244(d)(1)(D)

because

he

did

not

know

of

the

factual

predicate underlying his claims until a deposition given by Hayne
was made public in 2012.

Judge Walker rejected Osborne’s argument

on the grounds that his claims are based on information that was
known, or discoverable by due diligence, well before Hayne’s
deposition was made public.

See id.

The sources of information

identified by Judge Walker include:
1. There is anecdotal evidence suggesting that, as early
as 1992 or 1993, the Jackson Advocate ran a letter to the
editor from Dr. Lloyd White criticizing Dr. Hayne’s “lack
of credentials and poor practices” that permitted him to
“generate hundreds of thousands of dollars in personal
income as a result of his extremely cozy relations with
... state employees and officials.” This publication was
over ten years before Osborne’s trial.
2. Similarly, as early as 1995, the Clarion Ledger ran a
story reporting on the efforts of several coroners
associated with Dr. Hayne to force Dr. Emily Ward to
resign as state medical examiner after she attempted to
take on more of the state’s autopsy work. This was also
well before Osborne’s trial.
3. In 2007, in his concurring opinion on the reversal of
Tyler Edmonds’s conviction for capital murder, a
Mississippi Supreme Court Justice criticized Dr. Hayne’s
testimony in the case, noting that he failed the ABP exam
and likely fabricated or exaggerated his other

5

credentials. The opinion relies on an article written by
Radley Balko and published in October, 2006.
4. Also in 2007, another article written by Radley Balko
was published, in which he repeats the information about
Hayne’s lack of certification. In addition, the article
estimated his annual income as “millions,” noting that
the Department of Public Safety estimated that he did 80
percent of all forensic autopsies performed in the state.
5. In February, 2008, the Jackson Free Press published an
article describing Hayne’s workload as “six times the
recommended number of autopsies per year .... [and] nets
roughly $1 million annually.” A few months later, the
Clarion Ledger published an article describing Hayne’s
certification deficiencies, criticizing the number of
autopsies he performed, quoting another forensic
pathologist as saying that Hayne had made some serious
mistakes, and estimating his income.
6. The Innocence Project issued a press release in
February, 2008, reporting on Hayne’s workload and his
lack of board certification. In March, the Innocence
Project issued a press release accusing Dr. Hayne of
forensic misconduct. In August, the Innocence Project
issued a press release announcing that the Public Safety
Commissioner had severed all ties with Hayne.
7. The August press release also contained a link to the
Innocence Project’s fourteen-page letter to the State
Board of Medical Licensure, written in April 2008,
calling for the revocation of Dr. Hayne’s license to
practice medicine. The letter goes into great detail on
the deficiencies in Dr. Hayne’s medical testimony in
various
cases
and
ultimately
accuses
him
of
“unprofessional, dishonorable, and unethical conduct
likely to deceive, defraud or harm the public by
providing false, fraudulent, or forged statements under
the pretext of his allegedly ‘medical expert’ status.”
Id.

at

23-24.

After

considering

the

information

that

was

publically available beginning in the early 1990s through 2008,
Judge

Walker

was

of

the

opinion

that

that

information

was

sufficient to trigger the statute of limitations long before

6

Hayne’s deposition was unsealed in 2012.

See id. at 24-26.

Based

on the available public information, Judge Walker was likewise of
the opinion that “Osborne has not met his burden of showing that he
exercised due diligence by waiting until after Dr. Hayne’s 2012
deposition to file his Petition.

While he did not have all of the

information before the deposition that he has now, there was enough
information available to him to alert him to a potential habeas
claim based on Hayne’s testimony in his trial.”

Id. at 30.

Based

on these findings, Judge Walker recommended that Osborne’s 2254
Petition be dismissed as time-barred.
Osborne timely filed Objections to the R and R.
judge

has

authority

to

review

a

magistrate

judge’s

A district
R

and

R

regarding prisoner petitions, and is required to make a de novo
determination of any portion of the R and R to which a specific
written objection has been made.
CIV. P. 72(b).

See 28 U.S.C. § 636(b); FED. R.

Thereafter, the district judge may accept, reject,

or modify the recommendation of the magistrate; receive further
evidence in the case; or recommit the matter to the magistrate with
further instructions.
In

his

Id.

Objection,

Osborne

argues

that

the

anecdotal

information relied upon by Judge Walker was insufficient to trigger
the statute of limitations because that information, at most,
raises only suspicions – as opposed to facts – concerning Hayne’s
alleged misinformation/misconduct.

7

Osborne also argues that Judge

Walker held him to an unreasonably high standard with respect to
whether he exercised due diligence in attempting to discover the
bases

for

the

claims

alleged

in

his

2254

Petition.

Having

considered Judge Walker’s R and R, and the governing authorities,
the Court finds no error with respect to Judge Walker’s opinions
regarding

whether

the

information

regarding

Hayne

that

was

publically available prior to 2012 would have been sufficient to
permit Osborne to discover the factual predicate for the claims he
alleges in his 2254 Petition more than one year before that
Petition was filed.

The Court additionally finds no error with

respect to Judge Walker’s opinion that Osborne did not demonstrate
that he acted with due diligence in pursuing and/or seeking to
discover the predicate for his habeas claims.
Osborne also objects to the R and R on the grounds that Judge
Walker did not address his actual innocence arguments. Relevant to
this Objection, Osborne relies on McQuiggin v. Perkins, 133 S. Ct.
1924 (2013), a case in which the United States Supreme Court held
that a claim of actual innocence could survive a procedural bar in
a habeas corpus proceeding, including a statute of limitations. As
noted

by

Osborne,

to

avail

himself

to

the

actual

innocence

“gateway”, he must “demonstrate [that] more likely than not, in
light of the new evidence, no reasonable jury would find him guilty
beyond a reasonable doubt.”

House v. Bell, 547 U.S. 518, 538

(2006)(citing Schlup v. Delo, 513 U.S. 298 (1995)).

8

Having reviewed the pleadings, the Court finds that the
evidence on which Osborne relies in support of his 2254 claims is
not “new” because, as concluded by Judge Walker, the information
contained in that evidence was previously available from other
public sources.

Additionally, the evidence relied upon by Osborne

is not of the type previously held by courts to be sufficient
predicate for an actual innocence claim.

See e.g. Fairman v.

Anderson, 188 F.3d 635, 644 (5th Cir. 1999)(explaining that to
establish

the

“petitioner

requisite

must

support

probability
his

of

allegations

actual
with

innocence,
new,

a

reliable

evidence that was not presented at trial and must show that it was
“‘more

likely

than

not

that

no

reasonable

juror

would

have

convicted him in the light of the new evidence’”, and that “new,
reliable evidence that may establish factual innocence include
exculpatory scientific evidence, credible declarations of guilt by
another, trustworthy eyewitness accounts, and certain physical
evidence.”)(quoting Schlup, 513 U.S. at 327, and citing Schlup, 513
U.S. at 324; Sawyer v. Whitley, 505 U.S. 333, 340 (1992)).

While

the purported new evidence referenced by Osborne may have had
bearing on Hayne’s credibility, the Court cannot find that a
reasonable juror would not have convicted Osborne if that evidence
had been presented at trial.
testimony

does

not

Thus, because Hayne’s deposition

constitute

new

evidence,

but

reflects

information that was otherwise available from other sources, and

9

does not demonstrate actual innocence, the Court finds Osborne has
not shown that his actual innocence argument survives his untimely
2254 Petition.
For

these

reasons,

the

Court

finds

Judge

Walker’s

recommendation that Osborne’s 2254 Petition be dismissed as timebarred, and the grounds for that recommendation, should be adopted
as the ruling of the Court over Osborne’s objections.
Accordingly:
IT IS THEREFORE ORDERED that the Report and Recommendation of
the Magistrate Judge [Docket No. 21] is hereby accepted and adopted
as the ruling of this Court, and Petitioner’s Objection [Docket No.
23] is hereby overruled.
IT

IS

FURTHER

ORDERED

that

a

Final

Judgment

dismissing

Osborne’s Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254
with prejudice shall be entered this day.
Appealability

will

issue

as

Osborne

has

No Certificate of
failed

to

make

a

substantial showing of the denial of a constitutional right in that
his Petition was untimely filed.
SO ORDERED this the 28th day of March, 2017.

s/ William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE

10