Baker v. Coursey
Filing
51
Opinion and Order - The Petition for Writ of Habeas Corpus (#1) is dismissed. The court does, however, grant a Certificate of Appealability on the issue of whether petitioner has made a sufficient showing of actual innocence to excuse his untimely filing. Signed on 7/30/2015 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ERNEST H. BAKER, III,
Case No. 2:13-cv-01612-SI
Petitioner,
v.
RICK COURSEY,
OPINION AND ORDER
Respondent.
Anthony D. Bornstein, Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Nick M. Kallstrom, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
SIMON, District Judge.
Petitioner brings
u.s.c.
§
2254
this
challenging
conviction for Murder.
habeas
the
corpus
legality
case pursuant
of
his
to
28
state-court
Because petitioner is unable to excuse the
untimely filing of this
case,
the
Petition for Writ of Habeas
Corpus (#1) is dismissed.
BACKGROUND
The State of Oregon charged petitioner with one
count
of
aggravated murder in March 2004 based on the death of his six-month
old
son,
hereinafter
Exhibit 102.
referred
to
as
Ernest
IV.
Respondent's
Where petitioner appeared to face long odds at trial
and claimed he could not recall the events of that day clearly, he
As a
agreed to enter a no-contest plea to intentional murder.
result, the trial court dismissed the aggravated murder charge and
sentenced
minimum.
him
to
a
term
of
life
imprisonment
with
a
2 5-year
Respondent's Exhibits 101, 104.
On March 28, 2006, petitioner filed for post-conviction relief
("PCR")
Respondent's Exhibit
in Umatilla County Circuit Court.
106.
Petitioner's appointed attorney in the PCR action felt that
trial
counsel
had performed well
negotiated plea."
Petitioner's
and
achieved
Exhibit
1.
an
PCR
"outstanding
counsel
also
advised petitioner that in the unlikely event they could find a
meritorious claim so as to secure relief and proceed to a criminal
trial,
he would once again face the possibility of receiving a
2 - OPINION AND ORDER
death sentence.
Id.
not
with
to
proceed
Counsel therefore strongly urged petitioner
the
PCR
challenge.
As
Id.
a
result,
petitioner voluntarily dismissed his PCR action on November 14,
2006.
Respondent's Exhibits 107, 108.
On August 21, 2008, petitioner filed his first federal habeas
corpus action challenging his murder conviction.
Court
dismissed the
certificate
of
case
as
untimely
appealability.
The District
and declined to
Respondent's
issue
Exhibit
a
118.
Petitioner appealed those decisions, but the Ninth Circuit Court of
Appeals
also
denied petitioner's
request
for
a
certificate
of
appealability.
On May 6,
2010,
petitioner filed a second state PCR action
which the PCR trial court dismissed as untimely and improperly
successive.
Respondent's Exhibit 111.
The Oregon Court of Appeals
affirmed that decision without opinion,
Court denied review.
and the Oregon Supreme
Baker v. Coursey, 250 Or. App. 144, 281 P.3d
685, rev. denied, 352 Or. 377, 290 P.3d 813 (2012).
On March 15, 2013, petitioner applied to the Ninth Circuit for
permission to bring a successive 28 U.S.C.
this
District.
The
Court
of
Appeals
§
2254 habeas action in
granted
petitioner's
application and directed the Clerk to transfer the Petition to this
court.
to
Petitioner's Exhibit D, p. 16.
dismiss
the
Petition
concedes that the
because
it
Respondent asks the court
is
Petition is untimely,
3 - OPINION AND ORDER
untimely.
but asks
Petitioner
the court to
conduct an evidentiary hearing where he can establish his actual
innocence so as to overcome the timeliness bar.
DISCUSSION
Habeas corpus petitioners must generally file their federal
challenges to their state convictions within one year of the time
those convictions become final by the conclusion of their direct
review.
28 U.S.C. 2244 (d) (1) (A).
A petitioner who fails to comply
with this deadline may overcome such a default if he is able to
show
that
conduct.
(2013).
he
is
actually
innocent
of
his
underlying
criminal
U.S. ----, 133 S.Ct. 1924, 1928
McQuiggin v. Perkins,
In order to make a gateway showing of actual innocence, a
petitioner
must
present
"new
reliable
evidence--whether
it
be
exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence--that was not presented at trial"
which
establishes
reasonable
juror
reasonable doubt."
that
would
"it
have
is
more
found
Schlup v. Delo,
likely
than
petitioner
not
guilty
that
no
beyond
a
513 U.S. 298, 324, 327 (1995).
In the context of a habeas petitioner who seeks to introduce
new evidence in an evidentiary hearing to establish his claim of
actual innocence,
"the court may consider how the timing of the
submission and the likely credibility of the affiants bear on the
probable
reliability
of
that
evidence."
Id
at
331-32.
" [A]
federal habeas court, faced with an actual-innocence gateway claim,
should count unjustifiable delay on a habeas petitioner's part, not
4 - OPINION AND ORDER
as an absolute barrier to relief, but as a factor in determining
whether actual innocence has been reliably shown[.]"
McQuiggin v.
Perkins, 569 U.S. ----, 133 S.Ct. 1924, 1928 (2013).
Where petitioner opted to forego his trial in favor of a nocontest plea,
trial. 1
State
the court cannot weigh any evidence adduced at a
However, during petitioner's entry of plea hearing,
indicated that
had
the
case
proceeded to
trial,
it
the
was
prepared to present the following evidence:
The baby in this case was almost seven months
old.
His throat had been cut. [D'Ann Honea],
the mother of the victim, would have testified
that she want over to the home of the
defendant to retrieve a dresser and when she
arrived there, she noticed the defendant had
an injury to his own neck, that she tried to
get him to get medical attention for that, to
go with her to the hospital or a doctor, that
he refused.
That she then placed the baby in
a car carrier in the back seat of her car and
she lost track of where the defendant was.
She went looking for the defendant and while
she was
looking for the defendant,
the
defendant had come around and gotten the baby
out of the back seat of the car and taken the
baby inside the house.
She saw them head
inside the house.
The door was locked, she
was unable to get inside.
She could hear the
infant crying.
She heard the crying suddenly
stop. She was pounding on the door, screaming,
trying to get inside.
She went around back,
she got inside through a back sliding glass
door.
The defendant was no longer in the
In this way, application of the Schlup actual innocence
test to cases such as this one is difficult.
See Smith v.
Baldwin, 510 F.3d 1127, 1140 n. 9 (9th Cir. 2007) (en bane)
(recognizing "a potential incongruity between the purpose of the
actual innocence gateway announced in Schlup and its application
to cases involving ... no contest[ ] pleas.").
5 - OPINION AND ORDER
home, nobody was in the home at that time, and
she saw that the infant was injured, grabbed
the baby, put it in the car and took it to
Rogue River where she tried to obtain some
medical assistance and got 911 and so forth,
but the baby did die of the injury of loss of
blood at the hospital.
A sword was found in
the residence, that was determined to be the
cause of the injury.
That sword, witnesses
would
have
testified,
belonged
to
the
defendant, it had the baby's blood on that
sword. The defendant, when he returned to the
residence, made a statement to the police that
he had taken a life today and someone took his
life today.
There would have been numerous
other witnesses that would have further just
filled in and corroborated [D' ann Honea' s]
statement as to her actions.
Neighbors who
heard her screaming, saw her running to the
car with the infant.
Respondent's Exhibit 104, pp. 5-6.
Against
this
backdrop,
petitioner
asserts
that
he
can
establish his innocence so as to overcome the untimely nature of
this habeas action.
Writ
of
Habeas
In his Brief in Support of the Petition for
Corpus,
petitioner
specifically
"Evidence Supporting Innocence" to consist of:
identifies
his
( 1) the fact that
his own blood was not on the murder weapon;
(2) the victim's blood
was found to be on the right leg of Honea;
(3) his statements to
the
circumstances
police
questioning;
were
not
reliable
given
the
of
the
(4) Honea had said "How could I have done this to my
baby"; and (5) Dash Terry, an investigator with the Federal Public
Defender's Office, discovered new evidence when petitioner's sister
told him that she had seen Honea place a pillow over the Ernest
6 - OPINION AND ORDER
IV' s
face
( # 3 8)
r
in the weeks before the homicide.
Brief In Support
pp. 8-11.
Before assessing this evidence of innocence, the court first
notes that petitioner's second PCR Attorney, Manuel Perez, hired an
investigator,
Bowen. 2
Mark Stephens,
who met with a
woman named Erica
According to the contents of Stephens'
unsworn letter,
Bowen related the following to him when he met with her on June 10:
[Erica Bowen]
has known D'Ann Honea for
sometime. Approximately three days after the
baby was killed she saw D'Ann Honea sitting on
the hood of her car at the Shell gas station
on Morgan Lane in Grants Pass.
She recalled
it being about 2: 0 0 am.
The car was a blue
car with a white racing stripe.
She asked D'Ann how she was doing and D'Ann
replied "I am doing good I am high".
Erica
replied to D' Ann that she thought that was
understandable after what she had been though.
D'Ann then got in the car and began crying.
Erica then bent down to speak to D'Ann through
the window of the car, at which time she saw
the backseat of the car covered in blood.
Erica asked her what the blood was from and
she said it was from her son.
She then asked D'Ann why she did not wash it
off and D'Ann told her it was the only memory
she had of her son.
Erica asked her how the
blood got there and D'Ann told her she put her
son in the car to go get help and drove around
for four hours because she was afraid to get
help.
Erica then asked her what had happened and
D'Ann told her that she and Ernie were
fighting and that Ernie attacked her. At the
2
In his report, Stephens refers to the woman as both Erica
Bowen and Erica Baker.
Petition Exhibit A, p. 2.
7 - OPINION AND ORDER
time he was holding the baby in his arms and
refused to give the baby back. D'Ann said she
had a knife and swiped at Ernie and when she
did that she cut Ernie and the baby.
Erica then asked D'Ann what was going on with
Ernie
and she
told her
that
Ernie
is
protecting her because Ernie does not want her
to go to jail.
D'Ann then became very
hysterical and said she wanted help at which
time Erica told her if it was an accident God
would forgive her.
Petition Exhibit A, pp. 2-3.
In his Brief in Support, petitioner alludes to this document
but does not argue its contents, reference it within the "Evidence
Supporting Innocence" section of Brief, or state that he would like
to produce Bowen at any evidentiary hearing.
As a result, on June
25,
file
2015,
the
court
ordered petitioner to
a
Supplemental
Memorandum specifically addressing whether he anticipated calling
Bowen as
a
witness
if the
court were
to allow an evidentiary
hearing.
Petitioner responded, "Upon thorough investigation of the
case, Ms. Bowen would not be called at the hearing in this case,
should the
Court
grant
Memorandum (#48), p. 2.
an
evidentiary hearing."
Supplemental
As a result, the court views the Stephens'
unsworn letter containing triple-hearsay a nullity for purposes of
the actual innocence analysis.
With respect to the evidence of innocence petitioner does
argue, he points to a single piece of new evidence: Dash Terry's
interview with petitioner's sister, Amanda Baker.
Amanda Baker
informed Terry that in the weeks prior to Ernest IV's murder, Honea
8 - OPINION AND ORDER
attempted to smother his face with a pillow.
4, p.
Petitioner's Exhibit
Petitioner asserts that Ms. Baker should be allowed to
2.
testify at an evidentiary hearing about this episode to assist him
in meeting his burden under Schlup.
He asserts that this testimony
is especially important in light of the following inconsistences in
the existing record:
(1) despite having bloody hands from his own
neck wound his blood was never found on Ernest
weapon,
IV,
or in the room where the murder took place;
the murder
( 2)
Honea' s
initial statement in the wake of the crime was incriminating when
she said,
times;
"How could I have done this to my baby" four or five
( 3)
Honea had Ernest
IV' s
blood on her clothes whereas
petitioner did not; and (4) the prosecutor's statement of the case
to the trial court appears to be internally inconsistent where it
has petitioner taking Ernest IV from the back of Honea's car, and
also wresting control of the baby from Honea's grasp.
With the exception of his sister's statements to Terry, all of
the evidence of innocence petitioner points to is old evidence that
was
available
to
him when
he
entered his
no-contest
plea
and
voluntarily dismissed his PCR action when his appointed attorney,
following
feared
investigation
that
any
with
"victory"
a
would
possibility of a capital sentence.
seasoned
expose
capital
him
to
investigator,
the
very
real
In addition, the discrepancies
petitioner points to are somewhat difficult to evaluate in the
absence of a trial record.
9 - OPINION AND ORDER
Nevertheless, the inconsistencies can
be largely explained insofar as:
( 1)
petitioner's blood may not
have been found everywhere, but it was found at the scene of the
crime, including on the baby seat in which Ernest IV was murdered;
(2)
Honea explained that her statements concerning how she could
have done "this" to her baby pertained to the fact that petitioner
had been able to wrestle Ernest IV away from her before taking him
inside the residence where the murder took place
Exhibit 3, p. 15);
her
clothes
where
( Petitioner's
(3) Honea predictably had Ernest IV's blood on
she
carried
him
out
of
the
residence
and
accompanied him to the hospital before he died of loss of blood;
and (4) consistent with the prosecutor's statement of the case to
the
trial
court,
Honea
stated
to
authorities
that
petitioner
removed Ernest IV from the car, but she had him in her arms before
petitioner grabbed the baby away from her, and saw him go into the
house.
Id.
Petitioner fails to effectively explain:
(1) his statement to
police that he had "taken a life" that day; 3 (2) how Honea came to
use
his
sword to murder
petitioner,
Ernest
IV when the
sword belonged to
and where she was no longer living with petitioner
following a recent separation; and (3) why multiple witnesses were
3
While petitioner claims this was a delusional response to
the officer's question, this was a highly incriminating statement
a jury would have been hard-pressed to disregard, especially in
light of the other evidence tending to show petitioner's guilt.
10 - OPINION AND ORDER
prepared to testify that Honea's actions on the day of the murder
were consistent with her own statements.
Moreover, while Amanda Baker obviously recounted a troubling
story to the
investigator,
minimal where:
of
years
(2)
Baker
could be
considered
to
be
a
biased
(3) and she is offering her story for the first time nine
after her brother's
variety
impact of that new evidence is
(1) the events do not directly bear upon the crime
conviction;
witness;
the
of
unsuccessful
conviction.
evidence
original plea
state
and
and in the wake of a
federal
challenges
to
his
See McQuiggin, 133 S.Ct. at 1936 (delay in presenting
of
actual
innocence
"should
seriously
undermine
the
credibility of the actual-innocence claim.").
For these reasons, even if Ms. Baker were to testify during an
evidentiary hearing in a manner consistent with the investigator's
Affidavit,
likely than
petitioner would be unable to
not
that
convict him of murder.
evidentiary hearing.
1940 (2007)
no
reasonable
As such,
show that
it is more
juror would have
voted to
the court declines to hold an
See Schriro v.
Landrigan,
127 S.Ct.
1933,
(where the record in the case precludes habeas relief,
a district court is not required to hold an evidentiary hearing) .
Because petitioner is unable to make a gateway showing of actual
innocence, the court dismisses this case because it is untimely.
Ill
Ill
11 - OPINION AND ORDER
CONCLUSION
For the reasons identified above ,
Habeas Corpus (#1) is dismissed .
the Petition for Writ of
The court does , ho wever , grant a
Certificate of Appealability on the issue of whether petitioner has
made
a
sufficient
showing
of
actual
innocence
to
e x cuse
untimely filing .
IT IS SO ORDERED .
DATED this
"Ji) """"'
day 4 uly, 2~:.0
~~
United States District Judge
12 - OPINION AND ORDER
his
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?