Hall v. Sorrell
Filing
26
OPINION AND ORDER Adopting 14 Report and Recommendation granting 8 Respondent's Motion to Dismiss, dismissing 1 Petitioner's Motion for Writ of Habeas Corpus and denying 10 Petitioner's Motion to Appoint Counsel. Signed by Chief Judge Christina Reiss on 8/13/2015. (pac)
U.S. CdSTFdCT COURT
DISTRICT OF VERI•iOtH
FILED
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
VICTOR G. HALL
Petitioner,
v.
WILLIAM H. SORRELL,
Attorney General of Vermont,
Respondent.
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20JS AUG 13 PH 1: 55
CLERK
Case No. 5:14-cv-84
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
(Docs. 1, 8, 10 & 14)
This matter came before the court for a review of the Magistrate Judge's
September 24, 2014 Report and Recommendation ("R & R"). (Doc. 14.) Pursuant to 28
U.S.C. § 2254, Petitioner Victor G. Hall filed a petition for a writ of habeas corpus
against Respondent William H. Sorrell, Attorney General of Vermont. (Doc. 1.) In
response to the petition, Respondent filed a motion to dismiss (Doc. 8), which Petitioner
opposed in three filings. Petitioner also filed a motion to appoint counsel. (Docs. 9, 10,
12 & 13.)
The R & R recommends denying Petitioner's motion for a writ of habeas corpus
because it is untimely and because Petitioner is unable to establish that he is entitled to
equitable tolling. After the court granted Petitioner several extensions, on June 8, 2015,
Petitioner filed his objection to the R & R. On June 15, 2015, he filed an addendum to
his objection, stating, among other things, that the time granted was insufficient and that
1
the actual innocence standard is unfair and insurmountable. Respondent has not
responded to Petitioner's objections and has not filed any of his own.
1
See Doc. 23 at 1 ("I haven't had 7 years to prove my innocence- I've had 7 years of being
ignored, or led on and given hope and THEN ignored, while courts and their officers insist that
I'm a piece of garbage to be discarded and forgotten. Furthermore, how am I supposed to prove
I.
Factual and Procedural Background.
Petitioner seeks a writ of habeas corpus, alleging that he was denied his right to a
speedy trial, he received ineffective assistance of counsel, he entered into involuntary
guilty pleas, 2 and that there is insufficient evidence to support his 2007 convictions for
two counts of aggravated sexual assault on a child under ten years of age arising out of
sexual conduct with his stepdaughter. Petitioner requests the appointment of counsel to
assist in preparing and arguing his petition.
Respondent seeks dismissal, arguing that this petition is barred by the applicable
statute of limitations set forth in 28 U.S.C. § 2244(d). Respondent further argues that
Petitioner is not entitled to equitable tolling.
The procedural history of this case is recited at some length in the R & R and thus
is merely summarized here. On or about May 5, 2006, Petitioner was charged with two
counts of aggravated sexual assault on a victim less than ten years old; one count of lewd
and lascivious conduct with a child; and one count of obstructing justice. His case was
set for a jury draw on June 18, 2007, July 23, 2007, August 20, 2007, October 22, 2007,
and November 26, 2007. On November 26, 2007, Petitioner pleaded guilty to two counts
of aggravated sexual assault and agreed to a sentencing range of 10 to 50 years on both
counts to run concurrent. As part of the plea agreement, the State agreed to dismiss the
charges of lewd and lascivious conduct with a child and obstruction of justice at
sentencing. On January 22, 2008, the date scheduled for Petitioner's sentencing,
Petitioner sought to withdraw his guilty pleas which request was denied. The case
proceeded to sentencing and Petitioner was sentenced to serve 10 years to 50 years on
my innocence in the first place? Against charges like mine?").
2
Parts of the record submitted by Respondent indicate that the undersigned presided over
Petitioner's change of plea. Respondent submitted an exhibit that states: "The cover page and
page 3 ofthe transcript indicate that the presiding judge was the Hon. Christina Reiss. However,
the presiding judge was, in fact, the Hon. Linda Levitt." (Doc. 7-3 at 28, n.l.) Petitioner does
not dispute this representation. The undersigned confirms she did not preside over Petitioner's
change of plea, sentencing, or post-conviction relief.
2
each count of conviction, to run concurrent, and with credit for time served. The
remaining charges were dismissed.
On February 21, 2008, Petitioner filed a notice of appeal. On February 26, 2008,
Petitioner filed a motion to reconsider his sentence which was denied as the case was on
appeal. On November 5, 2008, the Vermont Supreme Court found "no basis to disturb
the judgment[,]" and did not permit Petitioner to withdraw his guilty pleas because of his
"multiple prior admissions of guilt and the substantial delay in coming forward with the
evidence in question[.]" State v. Hall, 2008 WL 4906948, at *2 (Vt. Nov. 1, 2008)
(unpublished mem.). In reaching this conclusion, the Vermont Supreme Court noted the
following:
In May 2006, defendant was charged with two counts of aggravated sexual
assault against his stepdaughter, who was under the age often at the time,
and one count of lewd and lascivious conduct with the same victim. The
affidavit of probable cause in support of the charges recounted that
defendant had revealed the offenses to his wife several years after their
occurrence; that defendant and his wife subsequently disclosed the
incidents to the Department for Children and Families, which contacted the
police; and that defendant thereafter acknowledged having sexual contact
with his stepdaughter during an interview with the Chittenden Unit for
Special Investigations investigating officer. Defendant was later charged
with several additional counts of possession of child pornography and one
count of obstructing justice based upon a threatening letter to his wife.
!d. at *1.
Petitioner sought reargument before the Vermont Supreme Court which rejected
the request as untimely. Petitioner then requested reconsideration of the denial which
was also denied based upon a conclusion that Petitioner had failed to establish a
compelling reason to overturn or disturb the Vermont Supreme Court's decision.
Petitioner again sought reconsideration. On November 5, 2009, the Vermont Supreme
Court denied this request and advised that it would not consider any further motions from
Petitioner seeking reconsideration or reargument of the matter.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
there is a one year statute of limitations to file "an application for a writ of habeas corpus
3
by a person in custody[.]" 28 U.S.C. § 2244(d)(1). The limitations period runs from the
latest of: the date the judgment became final; the date an impediment to filing was
removed; the date the constitutional right was recognized; or the date that the new
evidence could have been discovered. See id. §§ 2244(d)(l)(A)-(D).
On December 18, 2009, Petitioner filed a petition for post-conviction relief in the
Vermont Supreme Court. Five days later, on December 23, 2009, he filed an application
for a writ of habeas corpus in this court which contained claims for which Petitioner had
exhausted his state court remedies and others for which he had not. Petitioner expressed
a desire to withdraw his habeas petition so that he could exhaust his claims in Vermont's
state court and, on that basis, the petition was dismissed without prejudice. In doing so,
the Magistrate Judge provided guidance to Petitioner regarding how the limitations
period would be calculated. See Hall v. Sorrell, 2010 WL 1740816, at *2 (D. Vt. Apr. 7,
2010), report and recommendation adopted, 2010 WL 1740819 (D. Vt. Apr. 28, 2010).
The Vermont trial court subsequently denied Petitioner's claim for post-conviction
relief on the basis of ineffective assistance counsel and denied Petitioner's motion to
reconsider. On December 18, 2013, the Vermont Supreme Court affirmed the denial of
Petitioner's request for post-conviction relief. See In re Hall, 2013 WL 9055937, at *3
(Vt. Dec. 18, 2013). On January 13, 2014, the denial became final when the Vermont
Supreme Court denied Petitioner's motion for reargument because he "fail[ed] to identify
points oflaw or fact overlooked or misapprehended by this Court." (Doc. 7-13 at 1.)
Petitioner filed his request for a writ of habeas corpus on April28, 2014, over a
month past the applicable limitations period. Petitioner appears to concede that his filing
was untimely and he does not the challenge the Magistrate Judge's calculation of the
applicable deadline as set forth in the R & R. He nonetheless asks the court to excuse his
late filing on the basis of equitable tolling.
II.
Conclusions of Law and Analysis.
A.
Standard of Review.
A district judge must make a de novo determination of those portions of a
magistrate judge's report and recommendation to which an objection is made. See 28
4
U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b); Cullen v. United States, 194 F.3d 401, 405 (2d
Cir. 1999). The district judge may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate [judge]." 28 U.S.C. § 636(b)(l);
accord Cullen, 194 F.3d at 405. In his objections to the R & R, Petitioner asserts that the
Magistrate Judge erred in finding equitable tolling did not apply and in finding
Petitioner's evidence of actual innocence insufficient.
B.
Whether Petitioner is Entitled to Equitable Tolling Based on his Lack
of Knowledge of the Deadlines and the Alleged Refusal to Provide
Advice or the Provision of Incorrect Advice.
The Magistrate Judge recommended rejecting Petitioner's claims that he failed to
file a timely habeas petition because he was uncertain of the applicable deadlines and
because the Vermont Defender General and Prisoners' Rights Office refused to give him
advice. The court agrees that, without more, this will not excuse an untimely petition.
See Cordle v. Guarino, 428 F.3d 46, 49 (1st Cir. 2005) ("While [the petitioner] argues
that she lacked knowledge of the law and the filing deadline, it is well settled in this
circuit that [i]gnorance of the law alone, even for incarcerated prose prisoners, does not
excuse an untimely [habeas] petition.") (internal quotation marks omitted).
In his objection to the R & Rand his addendum to that objection, Petitioner
reiterates the arguments he raised before the Magistrate Judge and more fully explains the
reasons for his noncompliance with the AEDPA's limitations period. He asserts that he
is not an attorney, should not be held to procedural deadlines, and that it is unreasonable
and unjust to expect him to understand and adhere to the complexities of the AEDPA.
Courts have generally rejected such claims as a basis for equitable tolling. See, e.g., Doe
v. Menefee, 391 F.3d 147, 175 (2d Cir. 2004) (observing that "prose status does not itself
constitute an extraordinary circumstance meriting tolling"); Royal v. Lee, 2012 WL
7009773, at *5 (S.D.N.Y. Dec. 13, 2012), report and recommendation adopted, 2013 WL
465331 (S.D.N.Y. Feb. 6, 2013) ("[Petitioner's] argument that he is not an attorney and
should not be penalized for his ignorance of the law also does not justify equitable
tolling.").
5
Petitioner further asserts that he received "bad legal advice" from the Vermont
Department of Corrections ("VTDOC") which apparently arises out of his use of "a
number of computers containing searchable legal resources, provided by VTDOC for
inmates' research and reference." (Doc. 23 at 2.) He contends that VTDOC's
instructions (which he does not provide) led him to miscalculate the deadline for his
habeas petition and that he "didn't seek corroboration from other sources." ld. He does
not explain the manner in which VTDOC's instructions misled him and he does not assert
that he had no means of obtaining correct information from other available computerized
resources. He also does not allege that he was unaware of the AEDPA's existence, its
limitations period, or the consequences of non-compliance with its deadlines. Cf
Killimayer v. Rock, 2013 WL 5586651, at *10 (S.D.N.Y. Oct. 9, 2013) ("Petitioner's
allegation that a prison law clerk's failure to advise him of AEDPA's existence does not,
without more, constitute a violation of the state's obligations, because he has failed to
show that this omission prevented him from filing a federal habeas petition.").
In his addendum, Petitioner asserts that the Supreme Court's ruling in Martinez v.
Ryan, 132 S. Ct. 1309 (2012), applies and excuses his untimely filing. In Martinez, the
State of Arizona required the petitioner to raise an ineffective assistance of counsel claim
as a collateral attack to his conviction. The petitioner failed to raise this claim in a timely
manner because his appeals counsel did not inform him that he had to file a petition for
post-conviction relief within forty-five days. The trial court then dismissed the
petitioner's motion for post-conviction relief, which the appeals court affirmed. In
rejecting the petitioner's habeas petition, the District of Arizona ruled "that Arizona's
preclusion rule was an adequate and independent state-law ground to bar federal
review[,]" which the Ninth Circuit affirmed. ld. at 1315. The Supreme Court reversed,
concluding:
Where, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the initial-review collateral
6
proceeding, there was no counsel or counsel in that proceeding was
ineffective.
!d. at 1320.
This case is distinguishable from Martinez because Petitioner was able to present
his petition for post-conviction relief to the Vermont courts, including his claim of
ineffective assistance of counsel. The Vermont Supreme Court affirmed the denial of
post-conviction relief, not because Petitioner missed a deadline, but because he could not
present a legal expert to support his ineffective assistance of counsel claim. See In re
Hall, 2013 WL 9055937, at *3 ("We concur with the superior court's conclusion that this
is not one of those rare cases in which petitioner could prove ineffective assistance of
counsel without the benefit of expert testimony."). Accordingly, unlike in Martinez,
Petitioner suffered no procedural default in the state courts due to ineffective assistance
of counsel.
After carefully reviewing Petitioner's arguments and submissions, the Magistrate
Judge concluded that Petitioner is not entitled to equitable tolling because he has not
shown that he diligently pursued his rights or that an extraordinary circumstance
prevented his timely filing. See Rivas v. Fischer, 687 F.3d 514, 538 (2d Cir. 2012)
("[T]he limitations period in§ 2241(d) is subject to equitable tolling in appropriate
cases-specifically, where the petitioner shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing.") (internal quotation marks omitted). For purposes of equitable tolling,
"[t]he term 'extraordinary' refers not to the uniqueness of a party's circumstances, but
rather to the severity of the obstacle impeding compliance with a limitations period."
Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011). The focus is thus not on "how
unusual the circumstance alleged to warrant tolling is among the universe of prisoners,"
but rather on the magnitude of the obstacle that prevented compliance with the AEDPA's
limitations period. Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008).
"As a general matter, [the Second Circuit] set[s] a high bar to deem circumstances
sufficiently 'extraordinary' to warrant equitable tolling." Dillon v. Conway, 642 F.3d
7
358, 363 (2d Cir. 2011 ). "The burden of demonstrating the appropriateness of equitable
tolling" lies with Petitioner. Bolarinwa v. Williams, 593 F.3d 226, 232 (2d Cir. 2010).
Here, Petitioner identifies the same obstacles that any unrepresented individual
would face in filing a habeas petition. He identifies nothing "extraordinary" that
prohibited him from overcoming these obstacles or which rendered the time allotted to do
so insufficient. He acknowledges that he had access to computerized legal resources, that
he was aware of the AEDPA's existence, and that he knew that there was a filing
deadline that he was expected to meet. Although Petitioner alleges that the Magistrate
Judge adopted a "bullying approach[,]" (Doc. 23 at 2), by concluding that ignorance of
the law is no excuse, the Magistrate Judge in fact provided assistance to Petitioner
beyond what was required. Even assuming Petitioner acted diligently, he has failed to
sustain his burden to demonstrate that an "extraordinary circumstance stood in his way
and prevented timely filing." Rivas, 687 F.3d at 538. The court thus agrees with the
R & R that equitable tolling is not available on this basis.
C.
Whether Petitioner is Entitled to Equitable Tolling on the Basis of
Actual Innocence.
As an alternative ground, Petitioner asserts that he is entitled to equitable tolling
on the basis of actual innocence. "[A] credible showing of actual innocence may allow a
prisoner to pursue his constitutional claims (here, ineffective assistance of counsel) on the
merits notwithstanding the existence of a procedural bar to relief." McQuiggin v.
Perkins, 133 S. Ct. 1924, 1931 (2013).
[T]o demonstrate actual innocence in a so-called collateral proceeding, a
petitioner must present new reliable evidence that was not presented at trial
and show that it is more likely than not that no reasonable juror would have
found [him] guilty beyond a reasonable doubt. Where the defendant
pleaded guilty (as in the instant case), and therefore did not have the
evidence in his case evaluated by a jury, the standard nevertheless remains
the same-i.e., the petitioner still must show that, in light of all the
evidence, it is more likely than not that no reasonable juror would have
convicted him.
Lucidore v. NY State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000) (citation and
internal quotation marks omitted). Petitioner's burden is thus "extraordinarily high" and
8
must consist of a "truly persuasive demonstration[] of 'actual innocence[.]'" Herrera v.
Collins, 506 U.S. 390, 426 (1993).
As the R &R observed, "[f]or the claim to be credible, it must be supported by
new reliable evidence-whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence-that was not presented at trial."
(Doc. 14 at 13-14) (quoting Rivas, 687 FJd at 541) (internal citation and quotation marks
omitted). In the proceeding before the Magistrate Judge, Petitioner relied on proffers of
evidence including his own statements that he falsely admitted to committing the crime
because he was threatened by his wife, the results from a polygraph examination, and
statements that he contends the minor victim told police officers that exonerate him from
the crime. The Magistrate Judge concluded that this evidence would be insufficient to
show "that more likely than not any reasonable juror would have reasonable doubt." !d.
(internal quotation marks omitted).
In his objection to the R & R, Petitioner concedes: "There is no new evidence that
I'm innocent." (Doc. 23 at 9.) He questions why new evidence should be required and
why "old" evidence of his alleged innocence should not suffice. In terms of "old"
evidence, Petitioner submits a number of exhibits which he argues demonstrate his
innocence. Specifically, Petitioner asks the court to examine the docket sheet from his
criminal case; the affidavit of probable cause in support ofthe charges which led to his
convictions; two notes from a defense investigator stating that there was evidence that the
victim recanted; a statement from a witness indicating that the victim had stated she did
not remember the crimes; excerpts from the victim's deposition testimony; his own
handwritten note asserting his innocence on the date of his change of plea; excerpts from
his change of plea and sentencing hearings; and the results oftwo polygraph
examinations. It is not clear whether these submissions were all presented to the
Magistrate Judge. In order to foreclose further argument on this point and to ensure full
consideration of the merits of Petitioner's arguments, the court will consider these
9
submissions as part of Petitioner's objection to the R & R, regardless of whether they
were presented to the Magistrate Judge. 3
In support of his claim of actual innocence, Petitioner submits the May 3, 2006
affidavit of probable cause which recites that when Petitioner and his wife approached a
DCF representative with a report of sexual abuse, Petitioner:
"went into a lengthy discussion regarding how the family has 'healed'
themselves on their own and assured them that nothing else has happened
within the last five years. Hall revealed to DCF that 4-5 years ago, he
showered with his five (5) year old daughter and that during the shower his
daughter [name and date of birth deleted] touched his penis. He allowed
this contact to occur and it progressed to [the daughter] touching his penis
with her mouth. Victor advised that he reciprocated this action and touched
[the daughter's] genitals with his mouth.
(Doc. 23-3 at 2, ~ 1.) DCF reported the sexual abuse to the police which interviewed
Petitioner, his wife, and the victim. The affidavit of probable cause indicates that
Petitioner called law enforcement and agreed to a second interview which was
surreptitiously recorded. According to the affidavit of probable cause, in this second
interview, Petitioner provided the following information:
12. Hall explained that 4-5 years ago he had "inappropriate contact" with
his daughter. He told us this information came out in July of 2002 when
[the victim] shared this information with his wife and her mother Melissa.
He advised they came up with a safety plan for him and [the victim] and
that there was no neglect when dealing with the "issue." Hall stated that he
has worked hard to "recover" from what happened. Hall explained that
due to Melissa wanting to disclose this information to a therapist, he
decided to volunteer to report this to DCF.
13. Hall explained they were an "open" family and would sleep in the
nude and be nude around the house. Hall told us that he would allow [the
victim] to sit on his lap while they were both nude, but that his penis never
3
"[A] district court will ordinarily refuse to consider evidentiary material that could have been,
but was not, presented to the magistrate judge in the first instance." Taylor v. Astrue, 32 F. Supp.
3d 253, 260 (N.D.N.Y. 2012). However, ifthe interests of justice so require, a district court
retains the authority to exercise its discretion and consider the new evidence in a de novo review
of an R & R. See Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998) ("[T]he district court
[has] discretion to consider evidence that had not been submitted to the Magistrate Judge.").
10
went into her vagina. He advised there may have been incidental contact,
but nothing sexual in nature.
14. Hall advised that when they lived in Burlington with his wife's family
the first sexual contact occurred with [the victim]. He recalled that [the
victim] would lift the waistband to her underwear and "direct" his hand to
her vaginal area. He would scratch her back and rub her stomach. Hall
explained that he "consented" to this touching. This contact continued to
their Colchester residence, but progressed when they showered together.
Hall explained "oral contact was allowed." He told us that his daughter
[the victim], who was approximately 5-6 at the time, asked for him to
"reciprocate" the oral sex onto her. Hall assured us there was never any
"grooming or coercion."
15. Hall admitted, "I was the one letting this happen." He explained
there were less then twelve separate incidents that occurred within a one
year time frame. He told us that there were times that he would rub the
outside of [the victim's] vaginal area with the tips of his fingers while both
he and his wife were in the same bed with [the victim]. [His wife] Melissa
was not aware of this and [the victim] was awake during the rubbing. He
told us there was no digital penetration, but the contact was skin on skin.
Hall explained touching [the victim] was not for the purpose of
"stimulation."
16. While in the Colchester residence, a game was played in the shower
when [the victim] would catch water dripping off parts ofHall's body to
include his "elbows and penis" with her mouth. He explained this is when
the "tip" of his penis penetrated [the victim's] mouth and that this occurred
3-6 separate times. He admitted that he had a "partial erection", and that
he never "climaxed." Hall described this sexual action as a "novelty and a
curiosity." He told us that he never thought of [the victim] as a "sex aid."
17. Hall explained that he had "poor judgment" and that he has a "[debt]
to pay" to [the victim] and Melissa, but nobody else. Hall expressed that
he was "embarrassed and ashamed" for what he did but that it was
"probably" nice to have the attention from [the victim].
18. Hall further told us of times when he would put [the victim] to bed and
she would ask, "Will you lick me?" Hall recalled there were times that he
would not and then there were other times when he would. He told us that
he did not recall [the victim] having a sexual reaction when he performed
oral sex on her. Hall admitted "There was a sexual component", "There
was physical enjoyment", and stated, "I did not think of her as a sex
object." Hall told us that he never masturbated after having sexual contact
with his daughter.
11
19. Hall agreed the fact that [the victim] came forward to her mother is
what stopped the continued sexual abuse and that if [the victim] had not
disclosed that it is possible the abuse would have continued.
!d. at 4-5, ~~ 12.,.19.
Petitioner does not deny making these recorded statements and concedes that
he in fact admitted to more sexual contact than the victim actually reported. He asks the
court to compare his version of the sexual contact with the victim's version of events and
find the alleged lack of consistency evidence of his innocence. He argues that if a jury
heard from his stepdaughter's eleven year old friends that she disavowed her accusations
against him, and if he and the victim both "admitted that [their statements] were untrue
and coerced[,]" (Doc. 23 at 9), he would have been acquitted at trial. Not only does this
amount to pure speculation, it discounts the impact of Petitioner's confessions at trial.
4
The Supreme Court has recognized that:
A confession is like no other evidence. Indeed, "the defendant's own
confession is probably the most probative and damaging evidence that can
be admitted against him. . . . [T]he admissions of a defendant come from
the actor himself, the most knowledgeable and unimpeachable source of
information about his past conduct. Certainly, confessions have profound
impact on the jury, so much so that we may justifiably doubt its ability to
put them out of mind even if told to do so."
Arizona v. Fulminante, 499 U.S. 279, 296 (1991).
Contrary to Petitioner's contentions, there is no requirement under Vermont law
that his confessions dovetail precisely with the victim's accusations in order for a jury to
find him guilty beyond a reasonable doubt. See State v. FitzGerald, 683 A.2d 10, 16 (Vt.
1996) ("The purpose of the corpus delicti rule is to foreclose the possibility of a
conviction based on false confession where, in fact, no crime has been committed. The
rule mandates that where the State's case is based on a confession, the corpus delicti must
4
Petitioner does not argue that his confessions were the product of police coercion and thus his
claims that his wife forced him to falsely confess would not preclude the admission of his
confessions at trial. See Yarborough v. Alvarado, 541 U.S. 652, 667-68 (2004) (holding that "the
voluntariness of a statement" depends on whether "the defendant's will was overborne" by
police coercion) (quoting Lynumn v. Illinois, 372 U.S. 528, 534 (1963)).
12
be corroborated by independent evidence. The corroborating evidence need not
independently prove the commission of the crime beyond a reasonable doubt, however;
even slight corroboration may be sufficient.") (internal citations omitted); State v.
Stocker, 2002 WL 34423560, at *2 (Vt. May Term 2002) (unpublished entry order)
(applying corpus delicti rule to confession to sexual assault on a minor and finding that
"at least slight corroborative evidence" is necessary "but that slight corroboration need
not independently establish the defendant's guilt beyond a reasonable doubt, or even by a
preponderance of evidence").
In Petitioner's case, the victim's accusations provided sufficient corroboration to
satisfy the corpus delicti doctrine. When interviewed by the police in 2006, after
confirming that she knew the difference between the truth and a lie, the victim told the
police that "[i]t happened" when she was "[t]aking showers with" Petitioner. (Doc. 23-3
at 3, ~ 5.) The affidavit recites that the victim had a difficult time explaining what "it"
was because her voice would become soft and her eyes would become watery. The
victim told the police that the sexual contact occurred in her bed and in the shower. She
stated that Petitioner touched her in her vaginal area with his penis, that she felt his penis
"go in," and that she put her mouth on his penis. At the time, the victim denied that
Petitioner performed oral sex on her. She described the appearance of Petitioner's penis,
instances in which he touched her vaginal area, and instances in which she and Petitioner
would have their pants off and their shirts on. She appeared to take responsibility for
some of the conduct by repeatedly telling the police that it occurred because she was
"curious." The victim indicated that Petitioner touched her because her parents were
having marriage problems and Petitioner "was in a 'sad mood."' !d. at 3, ~ 7. She further
explained that she slept in the same bed as Petitioner but only engaged in "'good
cuddling"' not '"bad cuddling."' !d. at 3,
~
9. The victim reported that Petitioner had
admitted to her that the abuse occurred and promised it would never happen again after a
"family talk" about the abuse.
Petitioner submits an excerpt from the victim's September 19, 2007 deposition
testimony in which the victim testified that she recalled two episodes of sexual conduct
13
with Petitioner: one time was "in the shower ... he abused me there. And one time in the
bed." (Doc. 23-7 at 4:9-4:1 0.) She testified that Petitioner was nude around her "a lot"
when she was being abused but not after the abuse ceased. !d. at 12:19-12:23. She also
recalled an instance in which she was with Petitioner and they had their pants off and
their shirts on.
The victim further testified that she understood that she had actually been sexually
abused six times, but that she did not remember the other events because "it was so long
ago[.]" !d. at 4:14. She heard from her therapist that it was six times, and noted that she
was "5 or 6" at the time. !d. at 4:19. She testified that she was sure that it happened
because she heard that it happened from a lot of people that she trusted, "[e]specially
from Victor. He says it happened." !d. at 5:21. Petitioner has not provided the pages of
the deposition transcript wherein the victim repeats Petitioner's "exact words[.]" !d. at
5:23. The victim further testified that Petitioner told her "[h]e was sorry for what he did.
And I know that won't cut it." !d. at 6:6. She noted that she reported to the police that
she had sexual intercourse with Petitioner twice but that she did not recall those events.
She recalled telling the police that she was "curious" and discussing "good cuddling and
bad cuddling." !d. at 8:5-8:7; 8:19-22.
Both the victim and Petitioner's accounts of the sexual abuse focus on events that
occurred in the shower and in the victim's bed when she was approximately five or six
years old. Each account indicates that Petitioner engaged in oral sex with the victim; that
Petitioner's penis and hands touched the victim's genital area; that the victim allegedly
contributed to the abuse by being "curious;" that Petitioner was nude in the household
and the family slept in the same bed at times; that there was a "family talk" about the
abuse during which Petitioner apologized; and that the abuse ceased thereafter. The
victim thus corroborated key components of Petitioner's confessions. Any discrepancy
between the victim's accounts and Petitioner's more detailed confessions is easily
explained by the marked differences in their ages and the passage of time. Moreover, any
discrepancies merely serve to underscore that Petitioner was only charged, pled guilty to,
and convicted of crimes to which he admitted. See Doc. 23 at 8 ("I was charged for only
14
what elements were in my version of the story; my daughter's story had different
elements. That means that she didn't accuse me of everything that I claimed
responsibility for."). A comparison of Petitioner's confessions and the victim's
accusations thus does not contribute materially to a claim of actual innocence.
Petitioner's other submissions do not alter that conclusion.
Exhibit C, dated March 29, 2007, is a report from E. Guy Paradee, a defense
investigator, documenting an interview with approximately eleven year old Teremy Lee
Garens and her parents who reported that they were "completely satisfied" that Petitioner
had not molested their daughter, who expressed criticism of Petitioner's wife, and who
noted that they would be willing to testify on Petitioner's behalf at trial. The report
recites that the victim told Teremy Garens that Petitioner did not sexually assault her and
that the victim stated that her mother had told her to "say bad things about" Petitioner.
(Doc. 23-4 at 3.) In her deposition testimony, the victim admits that Teremy Garens is
her best friend, but denies telling her that she lied about the sexual abuse and denies
telling her that her mother asked her to lie about it.
Exhibit D, dated September 10, 2007, is an email from Mr. Paradee stating that the
victim told the McSweeneys that she was forced to lie about the sexual assaults. When
the victim was asked in deposition if she knows the McSweeney's daughter, the victim
testified she "think[s] so." (Doc. 23-7 at 6.)
The statements in question are not under oath and the credibility and reliability of
the declarants is unknown. It is clear from the statements that the parents of the children
in question are supporters of Petitioner and are critical of his wife. Each statement
contains multiple levels of hearsay. Petitioner does not contend these statements would
be admissible at trial.
Although Petitioner is correct that evidence indicating that the eleven year old
victim claimed to have lied about the abuse when talking to her friends would tend to
undercut her credibility, the courts have noted that recantations of sexual abuse are
common and must be viewed in the context of the abusive relationship. See, e.g., State v.
DuffY, 605 A.2d 533, 535 (Vt. 1992) ("The admissibility oftrustworthy early
15
communications is particularly crucial because of 'the high probability of a child victim
recanting a statement about being abused sexually."'). Moreover, most courts, including
the Vermont courts, permit expert testimony to explain why a victim may recant. See
State v. Lumumba, 2014 VT 85, ~~ 4-9 (ruling it was not reversible error to allow expert
testimony to explain the behavior of the victim which may include "a delay in reporting,
recantation, or a continued relationship with an abuser."); State v. Weeks, 628 A.2d 1262,
1268 (Vt. 1993) ("The expert, as the State's last witness, testified that delayed reporting
of sexual abuse and recantation are not unusual phenomena.").
5
Exhibit G is a handwritten note by Petitioner, dated November 26, 2007, in which
he states that he intends to plead guilty despite his innocence. Petitioner alleges that he
gave this note to his defense investigator before pleading guilty but he does not claim that
he gave it to his attorney, the prosecutor, or the judge or asked that the defense
investigator do so on his behalf. Petitioner does not contend this note would be
admissible at trial.
Exhibit H contains excerpts from the change of plea hearing on November 26,
2007. In the hearing, the State stated that Petitioner performed oral sex on the victim and
the victim performed oral sex on Petitioner. Petitioner did not contest the facts at the
time, he did not claim he had been manipulated by his wife into a false confession, and he
did not make any claim that his guilty pleas were involuntary. To the contrary, he made
5
A common defense strategy in child sexual abuse cases is to undermine the
child's credibility by pointing out that the child delayed reporting, gave
inconsistent versions of the abuse over time, or recanted. Of course, this is
entirely legitimate impeachment. When the defense adopts this strategy,
however, it is fair for the prosecution to rehabilitate the child's credibility with
expert testimony. An expert may testify that it is not uncommon for sexually
abused children to delay reporting, be inconsistent, or recant. . . . Frequently
when children finally disclose, they give slightly different versions of the abuse to
different interviewers. Finally, although there is debate about how many sexually
abused children recant, it is undisputed that some children recant and some recant
their recantation.
John E.B. Myers, Expert Testimony in Child Sexual Abuse Litigation: Consensus and Confusion,
14 U.C. Davis J. Juv. L. & Pol'y 1, 44-46 (2010) (footnotes omitted).
16
an affirmative representation that he wanted to take responsibility for his crimes. See
Doc. 7-10 at 7 ("I want to take responsibility for what happens, the other is not wanting
to put my stepdaughter through continued stress in the legal process, Your Honor.").
Exhibit I contains excerpts from the January 22, 2008 hearing on Petitioner's
motion to withdraw his guilty pleas and his sentencing. At that proceeding, the following
colloquy occurred:
The Court: Doesn't it seem to you like an about-face when you said to me
you wanted to accept responsibility and not put your child through the
stress of a trial?
Mr. Hall: Exactly. I want to accept responsibility for what happened.
These things did not happen. I'm not trying to manipulate [t]he Court,
Your Honor.
The Court: Then why did you tell me that it did happen?
Mr. Hall: I agreed to what the State had said during the, the change of plea
hearing. I agreed to her reading the charges before [t ]he Court, that's the
charges that were pending, I did not feel that I was actually admitting to
having done those things. This has been one long prolonged episode of
mitigating damages, of damage control, by trying to preserve my liberties[.]
(Doc. 23-10 at 4:7-4:25.)
Exhibit E, dated January 9, 2008, is a signed letter by Cristalee McSweeney that
describes statements the victim allegedly made to Ms. McSweeney's daughter that "she
was being forced by her mother to take a side and that her mother was pushing her into
believing a story that she did not remember." (Doc. 23-6 at 3.) Ms. McSweeney's
daughter also asked her if the victim "could live with [them] because [her mother] was
forcing her into telling lies about" Petitioner. !d. The letter is supportive of Petitioner
and critical of his wife. It purports to have been written after Petitioner's guilty pleas, but
before the hearing on his motion to withdraw those pleas. Petitioner presented the letter
to the court in support of his motion to withdraw and thus it was in the record before the
17
state courts. In rejecting the McSweeney letter as fabricated, 6 Judge Levitt cited the
following admissions by Petitioner:
You admitted you abused your child to your ex-wife, you admitted you
abused your child to the DCF worker, you admitted that you abused your
child to the police officer, and you admitted you abused your child to me in
court during the change of plea, and to claim that all you were admitting
was that [was what] the charges were, as the State's attorney said, is putting
form over substance. You admitted the facts ofthe case as explained by the
State's attorney, and when I asked you ifthere is anything that needed
correcting or changing, you said, "No."
(Doc. 23-10 at 10:2-10:14.) Petitioner does not contend that Judge Levitt inaccurately
described his admissions, nor does he contend that the McSweeney letter would be
admissible at trial.
As part of this same exhibit, Petitioner submits the partial testimony of a witness
at his sentencing hearing who describes what the victim told her about Petitioner's sexual
abuse. Petitioner identifies the witness as the victim's pediatrician. It is not clear how
this testimony would exonerate Petitioner as it indicates that the victim described sexual
intercourse and oral sex with Petitioner. The witness further testified that the victim
described the sexual abuse perpetrated by Petitioner in at least one interview outside her
mother's presence. It appears that Petitioner seeks to use this testimony as further
evidence of inconsistencies between his confessions and the victim's accusations.
Exhibit J contains the results of two polygraph examinations conducted on
December 20, 2012 (approximately five years after Petitioner pled guilty and
approximately ten years after the crimes). The examinations reveal that Petitioner denied
that he "ever allow[ed] [the victim] to perform oral sex on" him, that he "perform[ed]
oral sex on her[,]" and that he "commit[ed] any kind of sex act with her[.]" (Doc. 23-11
at 2.) The examiner found Petitioner showed no signs of deception while making these
statements. The same examiner also found no deception when Petitioner denied that he
took "that photo of [the victim's] butt for pornographic purposes[.]" Id. at 3. It appears
6
Petitioner does not include the full transcript ofthe sentencing hearing, but Judge Levitt found
"this piece of paper, letter to be fabricated and in further manipulation of the system, which you
have been attempting to do throughout." (Doc. 23-10 at 10:15-10:18.)
18
that the polygraph results were available for Petitioner's post-conviction relief
proceedings and were thus considered by the state courts. Although Petitioner appears to
acknowledge that the results would not be admissible at trial, see United States v. Kwong,
69 F.3d 663, 668 (2d Cir. 1995), he erroneously contends that they are reliable evidence
of actual innocence. See Olivares v. Ercole, 975 F. Supp. 2d 345,353 (S.D.N.Y. 2013)
("[A] polygraph test is not reliable evidence of actual innocence.").
In his June 15, 2015 addendum, Petitioner attaches a notarized letter from Nadine
Holbrook-Andersen as his "new" evidence of his actual innocence. Ms. HolbrookAndersen reported that she spoke with the victim, who is now twenty years old, on May
15-16, 2015. She reported that the victim maintained her accusations of sexual abuse. In
response, Ms. Holbrook-Andersen told the victim that she may have been closer to the
truth when she said she did not remember the events, which caused the victim to cry.
Exhibit A is a docket sheet from Petitioner's criminal case in the Vermont District
Court which he offers to show that he did not cause the delays that contributed to Judge
Levitt's denial of his motion to withdraw his guilty pleas. The docket sheet reveals a
series of continuances at least some of which are attributable to Petitioner and some of
which arise from his requests to represent himself which were then followed by his
requests that counsel be appointed for him. Petitioner's change of plea, which was
originally scheduled for June 9, 2006, took place on November 26, 2007. It took place
only after a jury draw was scheduled on five occasions. Against this backdrop,
Petitioner's claims that he "never got the chance to put [his] case PROPERLY before a
jury," (Doc. 23 at 9), that he "repeatedly insisted on taking [his] case to trial," (Doc. 23-2
at 1), and that he was "denied a trial" (Doc. 23-10 at 1) are without support in the record.
Judge Levitt's observation that the "record is filled with [Petitioner's] requests for
continuance after continuance after continuance in front of Judge Kupersmith, who had
this case on for jury trial three, four times" (Doc. 23-10 at 3:17-3:21 ), was thus not
unfounded. Moreover, it is clear that Judge Levitt did not deny Petitioner's motion to
withdraw his guilty pleas on this basis alone, but relied upon Petitioner's multiple
admissions of his guilt.
19
Individually and collectively, Petitioner's submissions do not satisfy the exacting
standard of actual innocence because they do not render it more "likely than not that no
reasonable juror would have convicted him." See Lucidore, 209 F.3d at 114. His
repeated confessions of his guilt to the victim, his wife, DCF, and the police would be
"probably the most probative and damaging evidence that can be admitted against him"
as they "come from the actor himself." Fulminante, 499 U.S. at 296. The victim, despite
her youth and obvious reluctance, corroborated key elements of those confessions and the
victim, now an adult, has apparently confirmed her allegations that the sexual abuse
occurred. Petitioner had numerous opportunities to present his case to a jury and ample
time in which to build a defense. The evidence that he points to which he claims
establishes his innocence is either inadmissible or would depend on the testimony of two
eleven year olds who have no personal knowledge of the events. See Rivas, 687 F.3d at
541 (explaining that "[f]or the claim to be credible, it must be supported by new reliable
evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence") (internal citation and quotation marks omitted).
A rational jury could hear their testimony and still find Petitioner guilty beyond a
reasonable doubt-especially if the State presented an expert witness to testify that
recantations by victims of sexual abuse are common when the abuser is a close family
member. Petitioner's new and old evidence of actual innocence therefore falls far short
of establishing his actual innocence. The Magistrate Judge thus properly rejected
equitable tolling on this basis.
D.
Whether Petitioner is Entitled to Appointment of Counsel.
Petitioner requests the appointment of counsel to assist him in his habeas petition.
He points out that he does not have legal training and requires counsel to adequately
argue his position. He has, however, demonstrated an ability to cite to the record and to
the case law in support of his arguments. See Evans v. Tilton, 2008 WL 506196, at *1
(S.D. Cal. Feb. 22, 2008) (noting that a petitioner's ability to discuss relevant facts and
cite cases diminished his argument that he is unable to understand the law). Moreover,
appointed counsel cannot change the facts and circumstances which render equitable
20
tolling unwarranted. 7 In such circumstances, appointment of counsel is properly denied.
See Clark v. Kuhlman, 2009 WL 87507, at *4 (E.D.N.Y. Jan. 12, 2009).
CONCLUSION
In his R & R, the Magistrate Judge carefully reviewed the record and properly
determined that Petitioner is not entitled to relief from judgment under 28 U.S.C. § 2254.
The court finds the Magistrate Judge's recommendation well-reasoned and adopts it in
full.
For the foregoing reasons, the court hereby ADOPTS the Magistrate Judge's
R & R, as supplemented herein, as the court's Order and Opinion (Doc. 14), GRANTS
Respondent's Motion to Dismiss (Doc. 8), DISMISSES Petitioner's Petition (Doc. 1),
and DENIES Petitioner's Motion to Appoint Counsel (Doc. 10).
SO ORDERED.
Dated at Burlington, in the District of Vermont, this }J 1'---day of August, 2015.
~
Christina Reiss, Chief Judge
United States District Court
7
For example, Petitioner cites no grounds on which his confessions could have been suppressed.
Accordingly, appointed counsel could not alter the likelihood that a jury would hear that
Petitioner confessed to the crimes on multiple occasions to multiple individuals.
21
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