Teleguz v. Pearson
Filing
222
OPINION. Signed by Judge James P. Jones on 6/17/2013. (lml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
IVAN TELEGUZ,
Petitioner,
v.
EDDIE L. PEARSON, WARDEN,
SUSSEX I STATE PRISON,
Respondent.
)
)
) Case No. 7:10CV00254
)
)
OPINION
)
) By: James P. Jones
) United States District Judge
)
)
Michael F. Williams, K. Winn Allen, Kenneth Jenq, and Megan Lacy,
Kirkland & Ellis LLP, Washington, D.C., Matthew C. Stiegler, Philadelphia,
Pennsylvania, and Elizabeth Peiffer, Virginia Capital Representation Resource
Center, Charlottesville, Virginia, for Petitioner. Katherine B. Burnett and
Matthew P. Dullaghan, Senior Assistant Attorneys General, and Alice T.
Armstrong and Benjamin H. Katz, Assistant Attorneys General, Office of the
Attorney General, Richmond, Virginia, for Respondent.
This capital habeas corpus case is before me on remand from the court of
appeals, which instructed me to conduct a thorough analysis of whether the
petitioner has made a gateway showing of actual innocence sufficient to excuse the
procedural default of certain constitutional claims. An evidentiary hearing was
originally scheduled for June 13-15, 2013, in order to determine the reliability of
any new evidence proffered to show the petitioner’s actual innocence. The parties
filed a number of motions in contemplation of the hearing, including motions
seeking discovery and a continuance.
I orally ruled on these motions following
oral argument on May 24, 2013. This Opinion sets forth the reasons for my
rulings.
I
The court of appeals summarized the facts of the case as follows:
On February 9, 2006, a jury convicted [Ivan] Teleguz of capital
murder for hire after his former girlfriend, Stephanie Sipe, was found
dead in the apartment she shared with Teleguz’s infant son. Although
DNA evidence linked Michael Hetrick to the murder, Hetrick testified
at Teleguz’s trial that Teleguz had hired him to commit the crime.
Hetrick’s allegations were corroborated by two additional witnesses:
Edwin Gilkes and Aleksey Safanov. Gilkes testified that he had been
present at a birthday party where Teleguz hired Hetrick to commit the
murder. Gilkes also testified that he accompanied Hetrick to Sipe’s
apartment and waited outside for Hetrick during the murder. Gilkes
further claimed that he was afraid of Teleguz because he had heard
rumors that Teleguz was a member of the Russian mafia, as well as a
specific account of a murder committed by Teleguz in Ephrata,
Pennsylvania. According to Gilkes, Teleguz had shot a Russian
criminal in the street outside the Ephrata Recreation Center.
Safanov testified that Teleguz attempted to hire him to murder
Sipe so that Teleguz would no longer be required to pay child support.
Safanov also testified that Teleguz had spoken to him after the
murder, complaining that “the black man” he had hired to kill Sipe
had left blood at the scene, and offering Safanov money if he would
“eliminate [the] killer.” J.A. 325. Although other evidence was
presented at trial, the Supreme Court of Virginia explained that, “in
order to return a guilty verdict, the jury had to believe the testimony of
Safanov, Gilkes, and Hetrick.” Teleguz v. Commonwealth, 273 Va.
458, 643 S.E.2d 708, 728 (2007) (“Teleguz I ”).
On February 14, 2006, the jury recommended a death sentence
after finding that two statutory aggravating factors were present:
vileness and future dangerousness. Following Teleguz’s appeal, the
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Supreme Court of Virginia affirmed his conviction and sentence.
Teleguz I, 643 S.E.2d at 732. He then filed a petition for writ of
habeas corpus in state court, which the Supreme Court of Virginia
dismissed. Teleguz v. Warden of Sussex I State Prison, 279 Va. 1, 688
S.E.2d 865, 879 (2010). On November 12, 2010, Teleguz filed a
petition for writ of habeas corpus in the United States District Court
for the Western District of Virginia, asserting various grounds for
relief. Some of Teleguz’s claims had been adjudicated on the merits
by the Supreme Court of Virginia, while others had been procedurally
defaulted. Teleguz argued that, pursuant to the Supreme Court’s
decision in Schlup[v. Delo], 513 U.S. 298, 115 S.Ct. 851 [(1995)], the
district court should consider the merits of his procedurally defaulted
claims because new and reliable evidence established that he was
actually innocent of Sipe’s murder (“Schlup gateway innocence
claim”).
In support of his Schlup gateway innocence claim, Teleguz
offered several categories of evidence. First, he presented affidavits of
third-party witnesses who claimed that Teleguz did not attend the
birthday party during which he was alleged to have hired Hetrick to
kill Sipe. Second, he offered police reports and affidavits to establish
that no murder occurred outside the Ephrata Recreation Center, that
no murder that occurred in Ephrata prior to Teleguz’s trial remains
unsolved, and that the only murder involving a Russian victim
occurred at a private residence. Third, Teleguz presented affidavits in
which Gilkes and Safanov recanted the testimony they offered at
Teleguz’s trial. Gilkes now claims that he was coerced into testifying
against Teleguz by the prosecutor, who “made clear that if [he] did
not, [he] would have been the one on death row today, not Teleguz.”
J.A. 1281. Gilkes executed affidavits in both 2008 and 2010 denying
that Teleguz hired Hetrick to kill Sipe. Safanov currently resides in
Kazakhstan, but was contacted by lawyers from Teleguz’s defense
team. According to their affidavits, Safanov now insists that he never
discussed Sipe’s murder with Teleguz and agreed to testify during
Teleguz’s trial only because he believed that if he cooperated with the
prosecutor, he would be eligible for a visa allowing him to stay in the
United States despite pending federal gun charges.
Teleguz v. Pearson, 689 F.3d 322, 325-27 (4th Cir. 2012).
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I denied Teleguz’s petition for habeas relief on August 1, 2011. The court of
appeals granted a certificate of appealability to determine whether I abused my
discretion in denying Teleguz an evidentiary hearing on his Schlup gateway
innocence claim. After argument, the court of appeals remanded the case so that I
might conduct a “rigorous Schlup analysis.” Id. at 330. Though both the petitioner
and the respondent argued that I should conduct this analysis based solely on the
written record, I disagreed and ordered an evidentiary hearing to assess the
reliability of the new evidence offered by Teleguz.
Teleguz v. Pearson, No.
7:10CV00254, 2012 WL 6151984 (W.D. Va. Dec. 11, 2012).
In his first discovery motion, the Warden sought leave to subpoena a copy of
the file of Gilkes’s trial counsel, which Teleguz’s counsel had already received.
Teleguz responded that disclosure of the file to the Warden would violate the
attorney-client privilege and work product doctrine, and Gilkes should be given the
opportunity to invoke the privilege prior to the issuance of a subpoena.
I have
previously appointed counsel for Gilkes, who has filed on Gilkes’s behalf an
objection to disclosure of his prior’s counsel file.
Teleguz, in his initial discovery motion, sought leave to serve document
requests and interrogatories on eleven law enforcement, prosecutorial, and
correctional entities. These proposed discovery requests concerned:
(i) communications that Edwin Gilkes, Aleksay Safanov, or Michael
Hetrick had with law enforcement officials; (ii) communications that
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David Everhart or Latesha Everhart [the hosts of the birthday party]
had with law enforcement officials, including any communications
related to a birthday party for David Everhart on June 27, 2001;
(iii) information regarding the Commonwealth’s knowledge of a prior
murder that allegedly involved Teleguz; and (iv) information about
inmates who have been housed with or near Edwin Gilkes or Michael
Hetrick.
(Pet’r’s Br. in Supp. of Mot. for Leave to Conduct Disc. 1.) In his supplemental
motion, the petitioner sought a subpoena to the United States Attorney for the
District of Massachusetts for any records relating to Aleksay Safanov. The Warden
opposed Teleguz’s request for discovery, arguing that the proposed discovery
represents an impermissible fishing expedition, that Teleguz had more than
adequate time to obtain the information sought before the late date on which he
filed his motion, and that Teleguz had not articulated how any of the facts he
hoped to find would be relevant to the only claim currently at issue, which is his
gateway claim of actual innocence.
The Warden also filed a motion to exclude Teleguz from offering expert
testimony at the hearing. In addition, the Warden moved for the appointment of
counsel for potential witnesses Hetrick and Safanov, and to strike a reply brief that
was filed by the petitioner without prior permission of the court. Finally, the
petitioner moved to continue the hearing in light of the pending discovery requests
and a scheduling conflict. I granted the motion to continue, the motion to strike,
and the motion to appoint counsel for Hetrick, and denied all other motions.
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II
Discovery is not available as a matter of right in habeas corpus cases. Bracy
v. Gramley, 520 U.S. 899, 904 (1997). Rule 6(a) of the Rules Governing § 2254
Cases provides, in relevant part, “A judge may, for good cause, authorize a party to
conduct discovery under the Federal Rules of Civil Procedure and may limit the
extent of discovery.” A federal habeas petitioner establishes the requisite good
cause to conduct discovery “where specific allegations before the court show
reason to believe that the petitioner may, if the facts are fully developed, be able to
demonstrate that he is . . . entitled to relief.” Bracy, 520 U.S. at 908-09 (internal
quotation marks and citation omitted). Rule 6 does not permit a petitioner to
embark on a fishing expedition by issuing broad discovery requests based on
conclusory allegations. See, e.g., Teti v. Bender, 507 F.3d 50, 60 (1st Cir. 2007);
Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004); Ward v. Whitley, 21 F.3d
1355, 1367 (5th Cir. 1994); see also Lenz v. Washington, 444 F.3d 295, 304 (4th
Cir. 2006) (“An evidentiary hearing is not a fishing expedition for facts as yet
unsuspected, but is instead an instrument to test the truth of facts already alleged in
the habeas petition.”) (internal quotation marks and citation omitted).
The sole purpose of the upcoming hearing is to assess Teleguz’s gateway
innocence claim. A Schlup actual innocence claim allows a habeas petitioner to
overcome procedural defaults by presenting reliable new evidence tending to show
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that he is innocent of the crime for which he was convicted. To succeed on his
Schlup claim, Teleguz must show that it is more likely than not that no reasonable
juror could have found him guilty beyond a reasonable doubt in light of the new
evidence he has proffered. Schlup, 513 U.S. at 327. The new evidence Teleguz
identified in his habeas petition consists of the following: (1) affidavits of thirdparty witnesses indicating that Teleguz did not attend the birthday party where he
allegedly hired Hetrick; (2) police reports and affidavits to establish that the
alleged Ephrata murder, which was referenced in Gilkes’s trial testimony and
during the penalty-phase proceedings, never occurred; and (3) affidavits from
Gilkes and Safanov in which they recant their trial testimony.
Teleguz requested several categories of discovery, which I will address in
turn. First, Teleguz sought to propound interrogatories and document requests
concerning communications between law enforcement and Gilkes, Safanov, and
Hetrick. Teleguz argued that the credibility of these three witnesses will be crucial
to my determination of whether he has made an adequate showing of actual
innocence, and he must therefore be permitted to develop facts regarding any
promises or threats the police made to these witnesses. Both Gilkes and Hetrick
explained their false testimony in part by recounting their interactions with law
enforcement, and Hetrick, though he has not recanted, also mentioned in 2004 that
the police had spoken with him on several occasions. The Warden countered that
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Teleguz’s requests for discovery were speculative, not sufficiently specific, tardy,
and irrelevant to Teleguz’s contention that he is actually innocent of murder for
hire. The Warden further asserted that it is improper for Teleguz to seek through
interrogatories information that he himself knows or should know.
I find that Teleguz did not establish good cause for conducting the discovery
he requested regarding communications between law enforcement and Gilkes,
Safanov, and Hetrick. While credibility of these witnesses is a key issue in the
upcoming Schlup hearing, Teleguz did not specifically identify what he expected
to find from the broad discovery requests he sought to propound. Safanov and
Gilkes will presumably testify at the upcoming hearing, which will allow me to
assess their credibility.
Teleguz speculated that he might find some further
evidence that would bolster the statements Safanov and Gilkes have made in their
affidavits, but that contention is impermissibly speculative, and the requests
Teleguz suggested represented a fishing expedition.
Moreover, the evidence
Teleguz sought to uncover, if it exists, would be cumulative of the evidence he has
already offered in support of his actual innocence claim. Therefore, I denied
Teleguz’s motion with respect to Requests for Production 1, 2, 3, 7, and 10, and
Interrogatories 3, 4, 7, and 10.
Second, Teleguz requested discovery relating to interactions between law
enforcement and David and Latesha Everhart, who allegedly hosted the birthday
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party at which Teleguz hired Hetrick to kill Sipe. The Everharts have executed
affidavits claiming that Teleguz did not attend that party. The Warden objected to
these requests on the ground that the Everharts are the petitioner’s witnesses, and it
is improper for Teleguz to seek through interrogatories information that he himself
knows or should know.
For the same reasons stated above, I find that Teleguz did not establish good
cause to propound the proposed requests regarding the alleged birthday party and
the Everharts’ communications with law enforcement.
The credibility of the
Everharts will be a key issue in the upcoming Schlup evidentiary hearing, but the
Everharts will presumably testify at the evidentiary hearing, which will allow me
to assess their credibility.
Any additional evidence bolstering the Everharts’
statements that Teleguz did not attend the birthday party would be cumulative, and
evidence regarding what the police knew about Teleguz’s attendance is irrelevant
to a determination of the Schlup actual innocence issue. Therefore, I denied the
petitioner’s motion for discovery with respect to Requests for Production 4, 5, and
11 and Interrogatories 5, 6, and 9.
Teleguz also requested discovery relating to the purported Ephrata,
Pennsylvania murder that Teleguz allegedly committed. As the petitioner noted in
his reply brief, counsel for the Warden admitted during oral argument before the
Fourth Circuit that the Commonwealth did not have any evidence that the
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purported Ephrata murder ever occurred. In light of this admission, I find that
Teleguz failed to establish good cause to conduct discovery related to the Ephrata
murder. These requests appear to have been made with the hope of developing a
claim of withheld evidence under Brady v. Maryland, 871 U.S. 812 (1963), but no
Brady claim is presently before the court. Therefore, I denied Teleguz’s request
for discovery with respect to Request for Production 12 and Interrogatories 11 and
12.
Finally, Teleguz requested discovery regarding inmates who had been
housed near Gilkes and Hetrick. The Warden argued that this request was based
on pure speculation and represented a fishing expedition.
I agree with the Warden.
The petitioner’s requests relating to inmates
housed near Gilkes and Hetrick were not supported by specific allegations, as Rule
6 requires. As noted above, Rule 6 does not sanction fishing expeditions. Thus, I
denied Teleguz’s motion with respect to Requests for Production 6, 8, and 9, and I
also denied the petitioner’s motion to serve Interrogatories 1, 2, and 8.
To summarize, I denied all of the petitioner’s proposed Requests for
Production and Interrogatories — all directed to eleven different entities —
because they were overbroad and not sufficiently specific, and because the
petitioner unnecessarily delayed in making his request for discovery.
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The petitioner filed a later motion in which he sought a subpoena directed to
the Massachusetts United States Attorney’s Office ordering production of records
regarding potential witness Safanov. Again, while Safanov’s credibility is a key
issue in the upcoming Schlup hearing, Teleguz did not specifically identify what he
expected to find in the records he requested.
Based on representations by
Teleguz’s counsel, Safanov has been located and is likely to testify at the
upcoming hearing, which will allow me to assess his credibility.
Teleguz
speculated that he might find some further evidence that would bolster the
statements Safanov made in his affidavits, but that contention is impermissibly
speculative. Moreover, the evidence Teleguz sought to uncover, if it exists, would
be cumulative of the evidence he has already offered in support of his actual
innocence claim. I find that the request for this subpoena was merely a fishing
expedition, and Teleguz did not establish the requisite good cause for issuance of
the subpoena. Therefore, I denied the motion.
The Warden, in his Motion for Leave to Conduct Discovery, asked that I
permit him to subpoena a copy of the file of Gilkes’s trial counsel, which Teleguz
had already received. The Warden contended that because Gilkes’s trial counsel
was directly involved in negotiating his plea agreement, the file likely contains
information that directly bears on the reliability of the assertions in Gilkes’s
affidavit. Teleguz responded that disclosure of the file to the Warden would
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violate Gilkes’s attorney-client privilege. Gilkes, through his appointed counsel in
this case, moved for a protective order, asserting that disclosure of the file would
violate his attorney-client privilege.
I need not address the privilege issue, because I find that the Warden did not
establish good cause for the discovery request. As noted above, discovery in
habeas corpus cases is not the norm, and a party seeking discovery must satisfy the
burden of establishing good cause for the request. The Warden speculated that
Gilkes’s trial counsel’s file might contain statements by Gilkes that contradict his
recanting affidavit, which the Warden could use at the hearing to impeach Gilkes.
This conjecture is no less speculative than those made in support of Teleguz’s
requests. The Warden should have ample material for cross examination of Gilkes,
as his affidavit clearly contradicts his sworn trial testimony. Any other relevant
statements in the file, if they exist, would likely be cumulative. For these reasons,
I denied the Warden’s motion for discovery, and I denied Gilkes’s motion in
limine and for a protective order as moot.
I denied the Warden’s motion to exclude expert testimony because following
the filing of the Warden’s motion, the petitioner made the required expert
disclosures pursuant to the Federal Rules of Civil Procedure.
I granted the
Warden’s motion to appoint counsel for Hetrick, as his location is known, he is
accessible to appointed counsel, he may testify at the hearing, and such testimony
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could impact his obligations under his plea agreement. I denied the Warden’s
motion to appoint counsel for Safanov because, though Teleguz’s counsel indicates
he has been located, his location has not yet been disclosed and his accessibility to
appointed counsel is somewhat doubtful, as is his ability to testify at the hearing.
In the future, if it becomes clear that Safanov will indeed testify, the Warden may
again move for appointment of counsel.
I granted the Warden’s motion to strike Teleguz’s reply brief on his
supplemental discovery motion because I previously ordered that the parties were
not permitted to file reply briefs unless directed to do so by the court. Finally, I
granted Teleguz’s motion to continue the hearing because Teleguz’s lead counsel
in this matter had an irreconcilable scheduling conflict with another case.
III
For the foregoing reasons, I ruled that both parties’ respective motions for
discovery, the Warden’s motion to exclude expert testimony, and Gilkes’s motion
in limine and motion for a protective order were denied. I further ruled that the
Warden’s motion for appointment of counsel was granted as to Hetrick but denied
as to Safanov. Finally, I ruled that the petitioner’s motion to continue the hearing
and the Warden’s motion to strike were granted.
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DATED: June 17, 2013
/s/ James P. Jones
United States District Judge
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