Moore v. Embry

Filing 139

ORDER ADOPTING 135 Findings of Fact and Conclusions of Law; ORDER REFERRING CASE to Magistrate Judge Robert Bacharach.. Signed by Honorable Robin J. Cauthron on 10/28/11. (lg, )

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BEVERLY M. MOORE,
Petitioner,
vs.
MILLICENT NEWTON EMBRY,
Warden,
Respondent.

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No. CIV-09-985-C

ORDER
Petitioner was convicted of first degree murder for the homicide of her boyfriend’s
son. After trial, a jury determined that she had shaken the child to death January 13, 2004.
After pursuing various state court remedies without success, Petitioner filed the current
Petition for Writ of Habeas Corpus on September 4, 2009. In support of her Petition,
Petitioner argued her conviction was a fundamental miscarriage of justice as she was actually
innocent. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), the Court referred the case
to Magistrate Judge Robert E. Bacharach for preliminary review and preparation and
submission of proposed findings of fact and conclusions of law. Judge Bacharach issued
those proposed findings on September 7, 2011. Petitioner and Respondent have both filed
objections to the proposed findings.
The first step in determining if Petitioner is entitled to relief is to determine if her
claims are time-barred. Pursuant to 28 U.S.C. § 2244(d)(1), Petitioner must present her
habeas case within one year of the time her conviction became final. Thus, absent some
exception to the limitations period, Petitioner’s case is subject to dismissal as untimely.

Recognizing this barrier, Petitioner argues the time bar should be set aside as she is actually
innocent of the charges. Judge Bacharach’s proposed findings recommend the Court find
Petitioner has demonstrated grounds to excuse operation of the time bar and allow her case
to proceed. The Court now considers the parties’ objections.
Petitioner argues that the Magistrate Judge’s determination that a reasonable jury
could still find that the child died of shaken baby syndrome cannot be supported. According
to Petitioner, the overwhelming evidence now before the Court demonstrates that finding
cannot be supported by the evidence, and that she is actually innocent. Respondent objects
to the proposed findings, arguing that the Magistrate Judge ignored controlling or persuasive
law and failed to properly apply Tenth Circuit precedent in reaching his proposed findings
and conclusions.
Petitioner’s objection is premature. Judge Bacharach did not propose, nor would it
be proper to make, a determination of actual innocence. Rather, under the relevant standards,
Judge Bacharach determined that Petitioner had made a sufficient showing of the probability
of actual innocence sufficient to permit her case to overcome the limitations bar. Thus,
Petitioner’s objection to the proposed findings and recommendations will be overruled.
Respondent’s argument fares no better. The majority of Respondent’s objection to
the proposed findings hinges on the determination as to whether Petitioner’s evidence was
newly discovered or just newly presented. Relying on two unpublished Tenth Circuit cases,
and in particular United States v. Starr, 275 F.App’x 788 (10th Cir. 2008), Respondent
argues that the evidence presented to the Magistrate Judge cannot be properly classified as
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newly discovered evidence because it was in existence at the time of the trial. Rather,
Respondent argues, the evidence should be construed solely as newly presented and,
according to Respondent, evidence that is merely newly presented is insufficient to warrant
tolling of the time bar. Thus, Respondent argues, because Petitioner’s claim is clearly time
barred, it must be dismissed.
Respondent’s argument is unpersuasive. While the Tenth Circuit in Starr did suggest
that evidence which was merely newly presented would be insufficient to create an equitable
tolling issue, Respondent fails to consider the Tenth Circuit’s holding in Lopez v. Trani, 628
F.3d 1228 (10th Cir. 2010), cert. denied, ___ U.S. ___, 2011 WL 4536097 (Oct. 3, 2011).
In that case, the Tenth Circuit recognized that “a sufficiently supported claim of actual
innocence creates an exception to procedural barriers for bringing constitutional claims,
regardless of whether the Petitioner demonstrated cause for the failure to bring these claims
forward earlier.” Id. at 1230-31. While the Court was addressing the question of whether
the claims had been diligently pursued, its analysis and reasoning is particularly applicable
in this case. The Circuit determined that due diligence was not a necessary showing in an
actual innocence claim because the innocence argument is premised on a fundamental
miscarriage of justice exception which should be given a broader scope than the typical
equitable tolling case. While a finding of actual innocence is rare and can only be applied
in extraordinary cases, the Circuit was clear that where the finding of actual innocence is
made, it should be given an extensive effect on addressing procedural bars to the bringing
of a claim.
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Accordingly, the Court finds that under application of Lopez the evidence presented
by Petitioner demonstrating her actual innocence is sufficient to overcome the time bar which
would otherwise bar her claim. Therefore, the Court will adopt in full the proposed findings
fact and conclusions of law issued by the Magistrate Judge. To the extent Respondent argues
that Judge Bacharach misconstrued the evidence or failed to properly evaluate it in light of
an actual innocence claim or the standards governing such a claim, the Court finds
Respondent’s arguments unpersuasive. The Magistrate Judge’s proposed findings and
recommendations are thoroughly reasoned and well set forth and follow the applicable law.
Accordingly, the Court adopts, in full, the Proposed Findings of Fact and Conclusions
of Law of the Magistrate Judge (Dkt. No. 135) and recommits this matter to Magistrate Judge
Bacharach for further proceedings consistent with the original Order of Referral. The
Objections of Petitioner (Dkt. No. 137) and Respondent (Dkt. No. 136) are overruled.
IT IS SO ORDERED this 28th day of October, 2011.

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