Teleguz v. Pearson
Filing
318
OPINION SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge James P. Jones on 7/17/14. (ejs)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
IVAN TELEGUZ,
Petitioner,
v.
KEITH W. DAVIS, WARDEN,
SUSSEX I STATE PRISON,
Respondent.
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Case No. 7:10CV00254
OPINION SETTING FORTH
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Michael F. Williams, K. Winn Allen, William Kimmitt, and Maryam
Mujahid, Kirkland & Ellis LLP, Washington, D.C., Matthew C. Stiegler,
Philadelphia, Pennsylvania, and Elizabeth Peiffer, Virginia Capital
Representation Resource Center, Charlottesville, Virginia, for Petitioner;
Matthew P. Dullaghan, Senior Assistant Attorney General, Alice T. Armstrong,
Senior Assistant Attorney General, and Benjamin H. Katz, Assistant Attorney
General, Office of the Attorney General of Virginia, Richmond, Virginia, for
Respondent.
This opinion sets forth the court’s findings of fact and conclusions of law
relating to a petition for habeas corpus by a state prisoner under sentence of death.
The petitioner, Ivan Teleguz, was convicted by a Virginia jury in 2006 of
murder-for-hire. The jury heard testimony that in 2001 Teleguz had hired two
petty criminals, Edwin Gilkes and Michael Hetrick, to kill 20-year-old Stephanie
Sipe, his former girl friend and mother of his young child, to whom he was paying
child support.
Gilkes and Hetrick testified that Teleguz drove them the 200-plus miles
from Lancaster, Pennsylvania, to Harrisonburg, Virginia, where Sipe lived, showed
them her apartment, and then left them so that he could return to Pennsylvania to
establish an alibi. After waiting a few hours, and while Gilkes waited outside,
Hetrick surprised Sipe in the apartment and slit her throat, as Teleguz had directed.
Sipe fought back and in the struggle, Hetrick’s hand was cut with his own knife.
Afterwards, while cleaning his wound in the apartment’s bathroom, he discovered
the couple’s 21-month-old son Zachary in the bathtub, where Sipe had been
bathing him. Hetrick turned off the water and left. Sipe’s dead body was not
discovered for two days. The child was miraculously unharmed.
Although Teleguz was an immediate suspect based upon accusations from
Sipe’s family, the murder remained a cold case until a third man, Aleksey Safanov,
a Russian emigrant in trouble with federal authorities in Boston, confided to a
deputy U.S. marshal that Teleguz had told him that he had hired someone to
murder Sipe. This information led Harrisonburg police to Gilkes, who implicated
Teleguz and Hetrick. Upon being questioned, Hetrick in turn confessed to having
been hired by Teleguz to commit the murder.
Gilkes and Hetrick thereafter
entered into plea agreements in which they promised to cooperate in the
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prosecution of Teleguz in return for agreed sentences for their participation in the
murder.
In accord with the agreement, Gilkes was sentenced to 15 years
imprisonment and Hetrick, who had actually murdered Sipe, received a life
sentence. Gilkes, Hetrick, and Safanov all testified against Teleguz at trial.
Teleguz’s direct appeal was unsuccessful, Teleguz v. Commonwealth, 643
S.E.2d 708 (Va. 2007), and after exhausting his state post-conviction remedies,
Teleguz v. Warden of the Sussex I State Prison, 688 S.E.2d 865 (Va. 2010), he filed
the present federal habeas petition pursuant to 28 U.S.C. § 2241. I denied relief,
finding that Teleguz’s claims had been either properly decided by the state court,
or were unavailable for review in federal court because they had not been raised in
the earlier state court proceedings. Teleguz v. Kelly, 824 F. Supp. 2d 672 (W.D.
Va. 2011).
Teleguz noted an appeal and the court of appeals granted a certificate of
appealability and remanded the case to this court for consideration of Teleguz’s
contention that his actual innocence of the crime allowed him to present new
claims that had otherwise been procedurally defaulted, in accord with the
principles of Schlup v. Delo, 513 U.S. 298 (1995). The court of appeals found that
I had inadequately analyzed the Schlup gateway innocence claim and had erred in
applying the Schlup doctrine individually to each defaulted claim rather than “the
totality of the evidence.” Teleguz v. Pearson, 689 F.3d 322, 329 (4th Cir. 2012).
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In directing a remand, the court of appeals suggested that because Teleguz’s
Schlup argument was bottomed on his contention that two of the three principal
witnesses against him had recanted their testimony, “an evidentiary hearing may be
necessary to assess whether [the] recantations are credible.” Id. at 331.
The court of appeals further directed that upon remand this court “may
make determinations about the probative force of relevant evidence that was either
excluded or unavailable at trial, and assess how reasonable jurors would react to
the overall, newly supplemented record, but the district court may not reject the
factual findings of a state court absent clear error.” Id. at 332 (internal quotation
marks and citations omitted).
In his appeal, Teleguz had complained about the lack of an evidentiary
hearing on his Schlup claim, but after the remand, both Teleguz and the respondent
Warden opposed such a hearing, contending that the issues could be decided on the
existing record. Nevertheless, as suggested by the court of appeals, I scheduled an
evidentiary hearing in order that I could properly evaluate the reliability of the new
evidence. Teleguz v. Pearson, No. 7:10CV000254, 2012 WL 6151984, at *2
(W.D. Va. Dec. 11, 2012). That hearing was held on November 12 through 14,
2013. 1 Hetrick, the actual killer, confirmed his trial testimony that he had been
1
A delay in the hearing occurred because Teleguz obtained additional counsel
following the remand. I take this opportunity to thank not only Teleguz’s initial federal
habeas counsel, who remained in the case, but also the major national law firm that
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hired by Teleguz. Gilkes appeared but refused to testify. Safanov, now a resident
of Kazakhstan in Central Asia and not amenable to subpoena, refused to appear
either by deposition, Skype, or telephone.2
After preparation of the hearing transcript, the parties have briefed the issues
and the case is now ripe for decision.
In summary, I find that Teleguz has not shown that he is actually innocent of
the murder-for-hire of Stephanie Sipe. Based upon my consideration of all of the
new evidence, and without regard to whether it would necessarily be admissible
under the rules of evidence, see Wolfe v. Johnson, 565 F.3d 140, 170 (4th Cir.
2009), I find that it is not likely that any reasonable juror would have had a
reasonable doubt as to Teleguz’s guilt of this crime.
In addition, I find that Teleguz’s alternative ground for removing the bar on
one of the defaulted claims — his state habeas attorney’s failure to raise an issue as
to Teleguz’s trial counsel’s handling of an implication that Teleguz had been
involved in another murder — is insufficient.
joined the case on a pro bono basis after remand. It has provided essentially unlimited
legal and investigative resources on Teleguz’s behalf. Not only is work by all of these
attorneys in the highest traditions of the legal profession, but it assures the court that no
stone has been left unturned.
2
Prior to the hearing, and over Teleguz’s objection, I appointed counsel for
Hetrick and Gilkes, in light of the possible penal consequences to them of their testimony
at a hearing in this court. Because of Safanov’s location out of the country and reported
refusal to cooperate, I did not appoint counsel for him.
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Finally, I find that Teleguz has not demonstrated cause sufficient to
overcome the procedural default of his claim that the prosecution knowingly used
false testimony.
I. THE MURDER OF STEPHANIE SIPE.
The following facts surrounding the murder and its investigation and the
resulting prosecution of Teleguz are undisputed.
On Monday, July 23, 2001, Stephanie Sipe’s mother, Pamela Woods, went
to her daughter’s apartment after she had been unable to reach her by telephone
that day or the day before. Woods discovered Sipe’s body in the entryway and
found her grandson unharmed in the bathroom.
Harrisonburg Police Detective Michael Whitfield was assigned to lead the
homicide investigation. His first and primary suspect was Teleguz. Whitfield
based this lead on reports from Sipe’s family of a strained relationship between
Sipe and Teleguz, primarily precipitated by a court order requiring Teleguz to pay
child support. On July 24, 2001, Whitfield interviewed Teleguz at his home in
Pennsylvania, and he denied involvement in the murder. He claimed that he been
staying at his current girlfriend’s apartment in Pennsylvania from July 20 through
July 23, but could not establish an alibi from 10:30 p.m. on July 21, 2001 until
8:30 a.m. on July 22, 2001.
On December 14, 2001, Investigator Whitfield
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executed a search warrant, collecting samples of Teleguz’s blood, hair, and saliva.
The blood evidence from the crime scene did not match the samples taken from
Teleguz.
Despite canvassing Sipe’s apartment complex and collecting DNA
samples from other individuals of interest, more than one year passed without any
major developments.
On February 3, 2003, Deputy United States Marshal Mike Nelson in
Springfield, Massachusetts, contacted Whitfield and told him that a confidential
informant had come forward with information about a murder in Harrisonburg.
The informant was Aleksay Safanov, who had been charged and detained in
connection with a federal gun trafficking case in Springfield. Nelson was not
involved in the investigation of the Sipe murder, nor was he involved in the
prosecution of Safanov in Massachusetts, and he and Safanov had “developed a
relationship where [they] talked about family, hockey, girlfriends, [and] life in
general.” (Hr’g Tr. 142:16-17, Nov. 13, 2013.) Safanov had approached Nelson
with information that “indicated that [Safanov] had some information that may
assist in a homicide investigation in Harrisonburg, Virginia.” (Resp’t’s Ex. 3, at
1.) According to Whitfield’s report of the investigation, Safanov said that
Teleguz told Safanov that on or about 07-01 he had hired a
black male from the Lancaster, Pennsylvania, area to kill Sipe because
he, Teleguz, was angry about having to make child support payments
to Sipe. The information regarding child support payments had never
been released to the public or to the news media.
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(Pet’r’s Ex. 198, at 7.) Safanov returned a few days later and added that “the black
male from Lancaster, PA lives on the same one way street as the Lancaster County
Jail,” which was East King Street. (Resp’t’s Ex. 3, at 1.) Whitfield later delivered
telephone records to Nelson, who uncovered five calls from Teleguz’s known
number to an East King Street address. It turned out to be the residence of Edwin
Gilkes, who had a prior criminal record. After Safanov identified Gilkes from a
photographic array, Whitfield questioned Gilkes on July 17, 2003. He claimed no
personal knowledge of the murder but said that he had heard that Teleguz had paid
Hetrick to travel to Virginia and kill Sipe.
In May 2004, Hetrick was initially interviewed by the Pennsylvania State
Police and denied involvement.
Right before Whitfield interviewed Hetrick on
June 30, 2004, Whitfield served him with a search warrant for a blood sample and
DNA cheek swabs. After reviewing the attached probable cause affidavit, which
detailed Safanov’s and Gilkes’ statements implicating him and Teleguz, Hetrick
confessed that he and Gilkes had been hired by Teleguz to murder Sipe for $2,000.
In this interview, he never confirmed the child support motive but instead claimed
that “[Teleguz] stated that [Sipe] had been robbing him of drug money and drugs,
and there would be drugs on the premises, and I would be able to get money and
drugs and stuff to [inaudible] my losses in the situation.” (Pet’r’s Ex. 20, at 68.)
He further reported that Teleguz “had a friend that was going to cover for him, say
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he was there all night or something. Whatever the time period that he drove us
down there and came back.” (Pet’r’s Ex. 20, at 71.) The samples taken from
Hetrick that day were later matched to blood found at the crime scene.
Teleguz was arrested in Pennsylvania on July 1, 2004, and extradited to
Virginia. He was represented by two court appointed attorneys, lead counsel Paul
A. Maslakowski, the acting head of the Virginia Capital Defender office for
northern Virginia, and co-counsel John S. Hart, Jr. The prosecutor was Marsha L.
Garst, the long-serving Commonwealth’s Attorney for Rockingham County and
the City of Harrisonburg.
After a four-day trial in the Circuit Court of Rockingham County the jury
found Teleguz guilty of capital murder-for-hire on February 9, 2006. Following a
penalty phase proceeding on February 13 and 14, 2006, the jury fixed Teleguz’s
punishment at death, finding that the Commonwealth had proved the aggravating
factors of “future dangerousness” and “vileness” beyond a reasonable doubt. The
trial court entered judgment on July 20, 2006, sentencing Teleguz to death in
accordance with the jury’s verdict.
II. ACTUAL INNOCENCE CLAIM.
The governing statute, 28 U.S.C. § 2254, as amended by the Antiterrorism
and Effective Death Penalty Act of 1996, generally bars federal habeas relief
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unless a petitioner has first properly exhausted available state court remedies. 28
U.S.C. § 2254(b)(1). Proper exhaustion requires that the petitioner provide the
state court with the “opportunity to correct the constitutional violation in the first
instance” by presenting to the state court “the operative facts and the controlling
legal principles associated with each claim.” Longworth v. Ozmint, 377 F.3d 437,
448 (4th Cir. 2004) (internal quotation marks and citations omitted).
If the
petitioner’s claims were not presented to the state court, they are generally
procedurally defaulted, and a federal court cannot adjudicate them. See Vinson v.
True, 436 F.3d 412, 417 (4th Cir. 2006). A federal habeas claim is also barred
where procedurally defaulted because a state court relied upon an adequate and
independent state procedural rule to deny relief on that claim.
See Gray v.
Netherland, 518 U.S. 152, 162 (1996).
Accordingly, a federal court generally cannot review such claims in a habeas
proceeding in the absence of cause and prejudice. See Coleman v. Thompson, 501
U.S. 722, 750 (1991). However, “in appropriate cases, the principles of comity
and finality that inform the concepts of cause and prejudice must yield to the
imperative of correcting a fundamentally unjust incarceration.” Murray v. Carrier,
477 U.S. 478, 495 (1986) (alterations, internal quotation marks, and citation
omitted). In accord with this principle, the Schlup Court concluded that as an
alternative to the cause and prejudice standard, a petitioner may reach procedurally
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defaulted claims if he can “establish sufficient doubt about his guilt to justify the
conclusion that his execution would be a miscarriage of justice unless his
conviction was the product of a fair trial.” 513 U.S. at 316. A habeas petitioner
may demonstrate a “miscarriage of justice,” through “[a] proper showing of actual
innocence.” Wolfe, 565 F.3d at 160.
A credible claim of actual innocence “requires petitioner to support his
allegations of constitutional error with new reliable evidence — whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence — that was not presented at trial.”3 Schlup, 513 U.S. at 324.
The Supreme Court has held that those petitioners claiming innocence as a
gateway to their defaulted claims must demonstrate that, given their newly
presented evidence, “it is more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt.” Id. at 327. As such, a claim
of actual innocence will succeed only in a “severely confined category [of] cases.”
McQuiggin v. Perkins, 133 S. Ct. 1924, 1933 (2013). In evaluating the evidence,
“[t]he court’s function is not to make an independent factual determination about
what likely occurred, but rather to assess the likely impact of the evidence on
reasonable jurors.” House, 547 U.S. at 538.
3
This is a nonexhaustive list of appropriate evidence that a petitioner may
produce in support of his allegation of constitutional error. See House v. Bell, 547 U.S.
518, 537 (2006) (“the habeas court’s analysis is not limited to such evidence.”).
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In this case, Teleguz has offered three categories of new evidence in support
of his Schlup gateway innocence claim:
(1) affidavits in which Safanov and Gilkes recanted their trial
testimony and claimed to being coerced into testifying falsely; (2)
affidavits of multiple third-party witnesses who affirmed that Teleguz
did not attend the birthday party at which he allegedly hired Hetrick;
and (3) police reports and affidavits establishing that — contrary to
the evidence presented at his trial — Teleguz was not involved in a
murder in Ephrata, Pennsylvania.
(Pet’r’s Post-Hr’g Br. 10.) The petitioner also has provided a fourth category of
evidence that he contends further undermines the trial testimony of Hetrick. Each
category will be addressed in turn.4 First, however, I will summarize the testimony
4
Although an evidentiary hearing was held, the bulk of the evidence in support of
the petitioner’s actual innocence claim is proffered as affidavits. Indeed, neither Safanov
nor Gilkes — the recanting witnesses — testified at the hearing. The Warden has
objected to the admissibility of all of the affidavits submitted by the petitioner. It is
certainly true that Teleguz’s nearly exclusive reliance on affidavits, while not wholly
devoid of probative value, may be “disfavored because the affiants’ statements are
obtained without the benefit of cross-examination and an opportunity to make credibility
determinations.” Herrera v. Collins, 506 U.S. 390, 417 (1993) (discussing the use of
affidavits to support a free-standing claim of actual innocence); see Raines v. United
States, 423 F.2d 526, 530 (4th Cir. 1970) (“When the issue is one of credibility [in a §
2255 action], resolution on the basis of affidavits can rarely be conclusive, but that is not
to say they may not be helpful.”) All of the affidavits relied upon in the instant
proceedings were prepared by third parties, including counsel, and only Jennifer Givens,
one of Teleguz’s state habeas counsel who prepared the Everhart affidavits, was called to
testify at the evidentiary hearing as to their preparation. Michael Millay also
authenticated his affidavit but was unable to recount its preparation. Furthermore,
because they serve primarily as recantations of prior testimony, the pivotal affidavits
executed by Safanov and Gilkes may be “looked upon with the utmost suspicion.”
United States v. Johnson, 487 F.2d 1278, 1279 (4th Cir. 1973) (internal quotation marks
and citations omitted). While I am “not bound by the rules of admissibility that would
govern at trial,” Schlup, 513 U.S. at 327, I must consider the evidence “with due regard to
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of state’s principal witnesses linking Teleguz to the murder — Michael Hetrick,
the actual killer; his accomplice, Edwin Gilkes; and the informant who ultimately
led investigators to the conspirators, Aleksay Safanov.
A. THE KEY WITNESSES.
Aleksay Safanov.
Safanov testified at Teleguz’s trial through a Russian language interpreter. 5
He testified that he had met Teleguz in 1998 while both were working in
construction. He stated that in the spring of 2001 Teleguz had asked him to kill
Sipe in order to avoid his child support obligation. They discussed a fee between
$3,000 and $5,000, but Safanov “took this as a joke and [he] declined.” (J.A. at
2660:15.) 6 Safanov also had a discussion with Teleguz after the murder, in which
Teleguz was concerned about “blood evidence” left at the scene of the crime. (J.A.
at 2661:12.) Teleguz told Safanov that he had paid the “black man,” and that he
had “to be taken out.” (J.A. at 2661:17.) This was a reference to Gilkes, whom
Safanov later identified in a lineup.
On cross-examination, defense attorney
Maslakowski suggested that Safanov “told [investigators] this story because [he]
any unreliability of it,” id. at 328. Accordingly, I will overrule the Warden’s blanket
objection to the affidavits, although for the specific reasons stated in this Opinion, I have
given little or no weight to certain of the evidence presented solely by affidavits.
5
It appears that Safanov speaks some English, but is more comfortable in
Russian.
6
The reference is to the Joint Appendix in Teleguz’s direct appeal to the Virginia
Supreme Court, which is part of the record in this case.
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wanted to get out from under the charges,” and Safanov agreed. (J.A. at 2681:1718.)
Edwin Gilkes.
According to his testimony, Gilkes had known Teleguz for four years, but
saw him infrequently. At the time of the murder, Gilkes was living at his sister
Latesha Everhart’s house on East King Street in Lancaster, Pennsylvania. Teleguz
approached him and “said he wanted a murder done. He didn’t specify who,
female, or where it was going to be . . . [and] he offered a price from $3,000.00 to
$10,000.00.” (J.A. at 2820:15-16;18-19.) Gilkes refused the offer and that was the
last the two men spoke of a murder-for-hire scheme. However, in June or July
2001, Gilkes overheard a conversation in his home “about a murder,” in which
Teleguz “was speaking of a price from $3,000.00 to $4,000.00 and Hetrick was
basically trying to get him to go up and down.” (J.A. at 2821:25; 20-22.) When
Teleguz realized that Gilkes was listening, he warned Gilkes to remain silent, and
this concerned him because he had heard “that [Teleguz] had ties with the Russian
mob at the time.” (J.A. at 2822:24-25.) He noticed Teleguz and Hetrick speaking
once again at his brother-in-law David Everhart’s birthday party but he “didn’t
hear them talking about anything that had to do with the murder.”
2825:21-22.)
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(J.A. at
On some later date around 10:00 or 10:30 p.m., Teleguz appeared at Gilkes’
residence. Gilkes claimed that he was unaware that Sipe’s murder was the true
intention of that evening’s trip, because “Hetrick . . . said that he wanted [Gilkes]
to go with him to watch his back on a drug run because it was the first time [he
was] doing a drug run with the Russians.” (J.A. at 2826:12-14.) Gilkes recalled
that Teleguz was driving, and that he did not know where they were going but
eventually arrived at a Walmart in Harrisonburg, Virginia. Both Hetrick and
Gilkes entered the store but Gilkes did not see what was purchased. When they
returned to the car where Teleguz was waiting, Hetrick opened the shopping bag to
reveal “a hard plastic container with a handle.” (J.A. at 2828:10.) Teleguz then
dropped the two men off at an apartment complex and handed Hetrick a picture of
what “looked to be a female.” (J.A. at 2828:21.) After realizing the true purpose
of the trip, Gilkes panicked. Hetrick attempted to persuade him to assist in the
murder of Stephanie Sipe, but Gilkes refused to participate. Hetrick and Gilkes
returned to Walmart by taxi, and Gilkes did not understand why Hetrick was
waiting to commit the murder. Once back at the apartment complex, Hetrick
removed a knife and clothes from the Walmart shopping bag, approached Sipe’s
apartment, and returned “about fifteen minutes later and [had] a shirt wrapped
around his hand.” (J.A. at 2835:15-16.)
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When Gilkes asked how they were to get back to Pennsylvania, Hetrick told
him that Teleguz had already returned to Pennsylvania to establish an alibi.
Hetrick and Gilkes called a taxi from a local restaurant, which took them to a train
station but no train was running. However, “[t]here was a white male there with
three young females and they were telling [Hetrick and Gilkes] about some bus
that was supposed to be coming so they drove [them] to the bus station.” (J.A. at
2837:20-23.)
On cross-examination, Gilkes admitted that he had initially told Detective
Whitfield that he had not been involved in the murder and that he had only learned
of it through two Russians — Eugene Popov and Anatoly Rymarenko. Defense
counsel then asked, “Do you remember telling the investigators that you were at
the recreation center in this small town and that Ivan Teleguz and two other people
came in, walked up to some guy, blew him away and told you they’ll be back for
the other two?” (J.A. at 2852:6-10.) Gilkes said that he did not so recall. On
redirect, Gilkes explained that he did not actually witness a murder at the
recreation center in Ephrata but, rather, witnessed the following:
Well, there was two males that got out of the car. And the one walked
up and said that, told Gene Papov [sic] if his boys didn’t have the
money at a certain time that in a couple of days that some of them
would be killed. And then after they left Gene explained the situation
to me a little bit. But at the time I did not realize that, I didn’t know
Teleguz so I didn’t know that that was him at the time until he showed
up at the party for the first time.
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(J.A. at 2870:7-15.) Gilkes testified that it had not been Teleguz who had made the
threat although he had been present. He reported that “[s]ome other Russian” was
murdered on Main Street in Ephrata approximately three days to one week after the
confrontation, remarking that “you can check the records on that.” (J.A. at 2871:45;10.)
Michael Hetrick.
Hetrick testified that he had met Teleguz about three months before the
murder. At that time, he was living with David Everhart, Latesha Everhart, and
Gilkes on East King Street in Lancaster, Pennsylvania. According to Hetrick, in
June 2001, at David Everhart’s birthday party, Gilkes “had approached [him] in the
living room, [and] stated that [Teleguz] had this murder for hire that he wanted
done and he’d stated that he was offering a thousand dollars.” (J.A. at 2879:2325.) Moving the conversation to the back porch, “Teleguz then stated to [Hetrick]
that he would give [Hetrick and Gilkes] a thousand dollars to murder his exgirlfriend.” (J.A. at 2880:3-4.) Hetrick stated that Teleguz had been motivated to
murder the mother of his child because “she had robbed him of some drugs and
money [and because] she had asked him for child support, but that . . . didn’t seem
like the main point at the time.” (J.A. at 2880:6-9.) Teleguz told Hetrick that he
“wanted her dead, that he wanted her throat cut” and Hetrick and Teleguz bartered
for a period of time.” (J.A. at 2880:14-17.) The men ultimately arrived at a $2,000
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fee for Gilkes and for Hetrick. They did not decide on a specific date, but Teleguz
stated that “he would contact [them] whenever he was prepared.” (J.A. at 2881:4.)
Hetrick stated that he had been under the impression that he was to “oversee” the
murder and that Gilkes actually intended to commit the crime. (J.A. at 2881:14.)
However, if Gilkes failed to follow through, Hetrick would murder Sipe in his
place, because “[i]t was understood that the act was to be done one way or
another.” (J.A. at 2881:18-19.)
Hetrick recalled that Teleguz came to the East King Street residence about a
month after this conversation, on July 21, 2001, at approximately 9:00 or 10:00
p.m. He gave Hetrick $1,000 in advance, which Hetrick split evenly with Gilkes,
and they began their trip to Harrisonburg. Hetrick claimed that he had never been
to Harrisonburg nor did he know Stephanie Sipe. Arriving at the Harrisonburg
Walmart, Gilkes and Hetrick purchased a gym bag, rubber gloves, a filet knife, a
pair of shorts, and a pair of shoes. 7 Hetrick showed Teleguz the knife and supplies
upon returning to the car, and “he indicated that they were adequate for what was
to be done.” (J.A. at 2889:17-18.)
According to Hetrick, they subsequently drove to Deer Run Apartments
where Teleguz pointed out Sipe’s residence.
7
Teleguz “wanted [Hetrick and
The trial court admitted a photocopy of a receipt obtained from a Walmart store
in Harrisonburg listing these purchases and dated July 22, 2001, at 3:58 a.m. (J.A. at
1864.)
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Gilkes] to wait until he had time to get back to Pennsylvania so that he could meet
up with a friend or whatever he had planned to do from there and establish his
whereabouts at the time of the actual murder.” (J.A. at 2891:23–2892:2.) Teleguz
then dropped them about a quarter of a mile from the apartment and began his trip
back to Lancaster.
While they waited, Hetrick and Gilkes shopped at a nearby
convenience store and returned to Walmart by taxi. According to Hetrick, both he
and Gilkes panicked, but Hetrick felt that, if he did not murder Sipe, he “would die
in her place.” (J.A. at 2895:6.) He “was afraid of Ivan Teleguz” and “afraid that
Mr. Teleguz was affiliated with the Russian Mafia.” (J.A. at 2895:7; 20-21.)
Hetrick then collected his supplies, crossed the street, and knocked on Sipe’s
door. When she answered, he told her that his car had broken down and asked if
he could use her phone. He attacked her when she opened the door. Sipe and
Hetrick struggled, and at some point, the knife badly cut Hetrick’s hand. After
murdering Sipe, Hetrick left the knife in the kitchen sink and went to the bathroom
to clean his wound, where he discovered Zachary, Sipe and Teleguz’s child, in the
bathtub. Hetrick turned off the water, tried to drain the tub, and left the child. He
recalled fleeing the apartment and nearly colliding with “a brown skinned
gentleman.” (J.A. at 2901:21.) He estimated that it was “[e]arly morning” and
“[r]ight around church time.” (J.A. at 2901:23.)
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Hetrick ran back to where Gilkes had been waiting, disposed of his clothing,
and changed into the new clothes he had purchased at Walmart. The two men
called a taxi from a nearby Exxon station and asked it to meet them at an adjacent
restaurant. According to Hetrick, a middle-aged black taxi driver drove them to
the train station but no train was running, so he then delivered them to a bus station
in a nearby city, where they boarded a bus to Pennsylvania.
Hetrick and Gilkes phoned Teleguz the next day, and once he had received
confirmation of Sipe’s death, they were paid the balance of their fee. Hetrick
recounted that Teleguz “noticed that [his] hand had been cut . . . [and] [h]e seemed
upset by that.”
(J.A. at 2906:21-22.)
Hetrick recalled being upset as well,
“because [he] didn’t expect the kid to be in the apartment. And [Teleguz] asked
what was done and [Hetrick] said that [he] just left the child there. And there was
really no concern for [the child].” (J.A. at 2907:13-16.)
On cross-examination, Teleguz’s counsel highlighted that in his statement to
Detective Whitfield, Hetrick had stated that he had been surprised to discover a
child at Sipe’s apartment and that Teleguz never mentioned his child support
obligations as his motive. Hetrick also confirmed that he had asked Whitfield why
Sipe had been killed and Whitfield then provided his theory of the case before
Hetrick admitted any involvement.
Additionally, state prosecutor Garst was
telephoned during the interview, and she proposed a deal in exchange for Hetrick’s
-20-
cooperation. She would not seek the death penalty if he fully cooperated in
providing his “role and the role of Mr. Teleguz.” (J.A. at 2950:22.) Hetrick
estimated that it was approximately two hours into the interview before he
recounted his version of Sipe’s murder.
The prosecutor attempted to combat these assertions on redirect. Hetrick
stated that, rather than having first heard of the child support motive from the
detective, he had heard it from Teleguz but believed the primary motivation to be
Sipe’s alleged theft of drugs and drug money. According to Hetrick, Teleguz
“seemed angry” when discussing the child support obligation at the Everhart party,
“but . . . he was angry throughout the entire conversation.” (J.A. at 2959:3-4.)
B. RECANTATIONS OF GILKES AND SAFANOV.
Because they both refused to testify, I did not have the opportunity to hear
and observe, subject to cross-examination, any recantations by Gilkes or Safanov.
A central question therefore is whether their affidavit recantations foreclose the
likelihood that a reasonable juror could find the defendant guilty beyond a
reasonable doubt.8 The court of appeals counseled that this court “is permitted
8
Teleguz points to the Supreme Court of Virginia’s statement in its opinion in his
direct appeal that, “in order to return a guilty verdict, the jury had to believe the
testimony of Safanov, Gilkes, and Hetrick.” Teleguz v. Commonwealth, 643 S.E.2d at
728. The petitioner interprets this language as a finding that no reasonable juror would
have found him guilty beyond a reasonable doubt without finding the trial testimony of
all three witnesses credible. The Warden disputes the petitioner’s characterization of the
Virginia court’s decision, insisting that it did not foreclose the possibility of a reasonable
-21-
under Schlup to ‘make some credibility assessments’ when, as here, a state court
has not evaluated the reliability of a petitioner’s ‘newly presented evidence [that]
may indeed call into question the credibility of the witnesses presented at trial.’”
Teleguz v. Pearson, 689 F.3d at 331-32 (quoting Schlup, 513 U.S. at 330). Of
course, an ideal credibility determination is not possible here in the absence of incourt, cross-examined testimony. In any event, considering the affidavits with the
limited ability to judge their truthfulness, and based upon all of the circumstances,
I find that the petitioner has not shown that it is more likely than not that no
reasonable juror would have convicted him.
Teleguz argues that Gilkes testified falsely at trial in exchange for favorable
treatment from the prosecution. In two affidavits, one dated April 21, 2008, and
the other September 24, 2010, obtained by Teleguz’s habeas counsel, Gilkes
recanted several pieces of his trial testimony, which he said were the product of
coaching and intimidation. He recanted his claim that Teleguz was present at
David Everhart’s birthday party, where Hetrick contended that the murder-for-hire
scheme was hatched. Gilkes further averred that he “never heard or overheard Ivan
Teleguz hiring Michael Hetrick to kill his ex-girlfriend,” (Pet’r’s Ex. 22 ¶ 3) and
juror finding the petitioner guilty beyond a reasonable doubt by relying on the testimony
of less than all three witnesses. Because I find the recantations of Safanov and Gilkes not
to be credible and Hetrick’s testimony to be reliable, it is not necessary to resolve this
dispute, but I agree with the Warden in any event.
-22-
did not “know who hired Hetrick to kill Ms. Sipe, or if anyone hired him.” (Pet’r’s
Ex. 34 ¶ 6.)
He also stated that Teleguz did not transport the two men to
Harrisonburg but he could not affirmatively identify the driver of the car.
Gilkes claimed that “[m]ost of [his] testimony was fabricated,” (Pet’r’s Ex.
34 ¶ 2.) and that he “said those things because Marsha Garst told [him] that she
was only interested in information that put this murder on Ivan Teleguz. . . . and
she told [him] to give her as much about Ivan Teleguz as [he] could.” (Pet’r’s Ex.
22 ¶ 4.) In his second affidavit, he alleged, “Before I testified, Marsha Garst and
Investigator Whitfield told me that I should say that Teleguz was responsible for
Ms. Sipe’s murder.” (Pet’r’s Ex. 34 ¶ 2.) At the evidentiary hearing before me,
both prosecutor Garst and Detective Whitfield denied Gilkes’ accusations of
coaching and intimidation.
The recantations contained in Gilkes’ affidavits are incomplete at best and at
worst are contradictory. While Gilkes retracted his trial testimony implicating
Teleguz, he failed to provide any explanation why he and Hetrick traveled to
Harrisonburg to murder Sipe, who drove them there, or how they ultimately
located Sipe.
Furthermore, during his initial interview with Whitfield, Gilkes denied any
involvement in the murder but still implicated Teleguz with purported second-hand
information from Rymarenko. Tellingly, in his second affidavit, Gilkes stated,
-23-
During questioning, police told me that the Russian guy from
Massachusetts was the one who told them about me. Since I only met
that guy once, I figured Teleguz was the one who told that guy about
me. That made me really angry at Teleguz. It was easier to make
stuff up about Teleguz, because I believed that Teleguz threw me
under the bus by telling police.
(Pet’r’s Ex. 34 ¶ 3.) Thus, after all of his supposed recantations, I infer from this
statement that, at a minimum, Teleguz had sufficient prior knowledge of the
murder for Gilkes to suspect that he had led police to his door.
For these reasons, I find Gilkes’ affidavits unreliable.
The petitioner also contends that Safanov gave false testimony at trial.
Before Teleguz’s habeas counsel contacted him, Safanov was deported and living
in Kazakhstan.
Therefore, all interactions with Safanov have been remote.
Teleguz has proffered an affidavit made by a person identifying himself as Safanov
in 2012, in which it was claimed, “Ivan has never told me that he had arranged to
have Stephanie Sipe killed, and my testimony at his capital murder trial, that he did
tell me this, was false.” (Pet’r’s Ex. 48 ¶ 4.) 9 In addition to promises of favorable
treatment, Safanov also pointed to ill will he had felt for Teleguz, who had
previously left him “stuck in jail for several months” after refusing to “put together
money for [Safanov’s] $2,500 bail.” (Pet’r’s Ex. 48 ¶ 8.) Safanov claimed that his
9
Safanov’s affidavit was in Russian, and the quotations are taken from the English
translation of that affidavit; both were admitted as a single exhibit.
-24-
lies were primarily motivated by the prosecutor’s representations that she would
assist him in avoiding deportation:
I was pressured by Marsha Garst, the Virginia prosecutor in Ivan’s
capital case, to testify that Ivan had arranged the murder so that Ivan
would get the death penalty. In exchange for my testimony, Garst
offered to help me in a number of ways, including help getting a good
deal on federal criminal charges I was facing at the time.
(Pet’r’s Ex. 48 ¶ 4.)
Teleguz’s present counsel has represented that these statements are
consistent with telephone conversations in 2010, when Safanov had expressed
regret that he “did a bad thing,” in testifying falsely against Teleguz. (Pet’r’s Ex.
37 ¶ 10.) Lindsey Tripp, a lawyer with Virginia Capital Representation Resource
Center, which has represented Teleguz in these proceedings as well as in the state
habeas action, stated in an affidavit that Safanov told her on the telephone that he
gave false testimony because “Marcia [sic] Garst . . . guaranteed she would get
Safanov an S Visa.” (Pet’r’s Ex. 37 ¶ 4.)
At the evidentiary hearing, prosecutor Garst testified that no such promise
was made.
She denied discussing the possibility of securing an S visa, or
Safanov’s immigration issues generally, prior to his testimony at Teleguz’s trial,
but she did confirm that she had made an effort to prevent his deportation because
“if there would be any sort of need within post-trial [she] wanted him present in the
United States for the ability to call him as a witness.” (Hr’g Tr. 242:3-5, Nov. 13,
-25-
2013.) Garst also testified that Safanov “was told up front there was no agreement.
If he testified truthfully [she] would contact the U.S. Attorney’s Office [about
consideration in sentencing] in the form of Kevin O’Regan.” (Hr’g Tr. 226:12-24,
Nov. 13, 2013.) O’Regan was an assistant United States attorney in Springfield,
Massachusetts, where Safanov was facing gun trafficking charges.
I find Garst’s testimony to be credible. Garst’s version of the events is
reasonable and consistent with the other facts. She is an experienced prosecutor
and is not likely to have made such an extravagant promise to Safanov. As with
most cooperating witnesses, the prosecutor held out to Safanov the advantages of
cooperation. Of course, Safanov naturally hoped for assistance in his own case,
which doubtless motivated him to contact Deputy Marshal Nelson in the first
place.
Safanov also claimed in his affidavit that Deputy Marshal Nelson “visited
[him] in jail” and “told [him] all the details about the arrest of accomplices in [the]
murder of Stephanie Sipe. . . . in order to keep [him] informed.” (Pet’r’s Ex. 48 ¶
8.)
At the evidentiary hearing, Irina Krokhmalyuk, Safanov’s former girlfriend,
testified that Nelson had assured her that Safanov was “not going to be deported
and he should be out of the jail” after cooperating in the Teleguz prosecution.
(Hr’g Tr. 43:23-24, Nov. 13, 2013.) When Safanov was not released from prison
as promised, Krokhmalyuk attempted to contact Nelson several times but was
-26-
unsuccessful. Deputy Marshal Nelson testified at the hearing, and denied having
had any discussions with Safanov about an S visa, stating that he had had no
knowledge at the time of this program. 10 That testimony, like prosecutor Garst’s,
is reasonable under the circumstances and I find it also credible.
Even assuming the authenticity of his affidavit, the reliability of Safanov’s
recantation is suspect, given that it fails to explain how Safanov possessed
information necessary to rejuvenate the stale investigation. Before speaking with
anyone related to the investigation of Sipe’s murder, Safanov provided information
to Nelson, an uninterested party, which information was neither publicly available
nor provided to him by any law enforcement officer. In particular, Safanov gave
Nelson information that was unknown even to investigators assigned to the Sipe
homicide — that “a Russian male hired a black male from Pennsylvania,
Lancaster, Pennsylvania to kill his wife.” 11 (Hr’g Tr. 143:9-10, Nov. 13, 2013.) A
10
“An S nonimmigrant is an individual who has assisted a law enforcement
agency as a witness or informant. A law enforcement agency may submit an application
for permanent residence (a green card) on behalf of a witness or informant when the
individual has completed the terms and conditions of his or her S classification. Only a
federal or state law enforcement agency or a U.S. Attorney’s office may submit a request
for permanent residence as an S nonimmigrant on behalf of a witness or informant.”
Green Card for an Informant (S nonimmigrant), U.S. Citizenship and Immigration
Services, Official Website of the Department of Homeland Security, http://www.uscis.
gov/green-card/other-ways-get-green-card/green-card-informant-s-nonimmigrant
(last
visited June 24, 2014).
11
Teleguz points out that Safanov described the perpetrator as a Russian male,
rather than a Ukrainian, and that he described the victim as the Russian’s wife. The
Warden suggests that cultural and linguistic differences may likely explain these
-27-
few days later, Safanov reported to Nelson that “the black male from Lancaster,
PA lives on the same one way street as the Lancaster County Jail.” (Resp’t’s Ex.
3, at 1.) A cross-reference of the Lancaster County Jail address with Teleguz’s
phone records led law enforcement to Gilkes, who in turn implicated Hetrick as the
murderer.
Safanov also confirmed investigators’ non-public suspicion that Teleguz’s
murder-for-hire scheme was motivated by his anger over court-ordered child
support payments. While it is certainly true that Safanov may have been motivated
to cooperate in order to avoid deportation, he first approached Nelson with this
information before any such assurances could have been made. Moreover, Nelson
could not have provided “details about the arrest of accomplices” to Safanov
before he led investigators to Gilkes in the first instance. Thus, while his trial
testimony could have contained information fed to him by law enforcement, I find
the pivotal information that he initially provided to Nelson — implicating Gilkes
and Teleguz — was independent and reliable.
mischaracterizations. I agree that the inaccuracy of this statement is of little moment to
the actual innocence claim. In his confession, Hetrick confirmed that Teleguz referred to
Sipe as his wife. (Pet’r’s Ex. 20, at 66 (“Ivan said he wanted someone killed for
[PAUSE] — he said it was his wife that he wanted killed. [inaudible] is how he said
it.”).) Safanov’s statement referring to Sipe as Teleguz’s wife was not included in the
probable cause affidavit nor was it otherwise available to Hetrick at the time of his
confession. Moreover, Safanov had made clear earlier that he was referring to Teleguz
when he indicated that court-ordered child support was the motive.
-28-
C. DAVID EVERHART’S BIRTHDAY PARTY.
At Teleguz’s trial, Hetrick testified that he and Teleguz had negotiated the
terms of the murder-for-hire scheme at David Everhart’s birthday party. In his trial
testimony, Gilkes also confirmed Teleguz’s presence at the party but “didn’t hear
[Hetrick and Teleguz] talking about anything that had to do with the murder.”
(J.A. at 2825:21-22.) The petitioner has proffered affidavits in an effort to rebut
this claim. In an affidavit from 2008 prepared by habeas counsel, David Everhart
averred that “Ivan Teleguz was not at the party.” (Pet’r’s Ex. 11 ¶ 9.) Latesha
Everhart also stated in an affidavit dated the same day, that “Ivan Teleguz was
definitely not at [her] husband Dave’s birthday party.” (Pet’r’s Ex. 10 ¶ 7.)
Prior to the evidentiary hearing in this court, the Everharts indicated that
they would not appear and testify voluntarily. Because they resided outside of the
geographical limits of a witness subpoena, I allowed Teleguz’s counsel to take
their depositions in Pennsylvania for possible use at the hearing. Neither side
introduced David Everhart’s deposition at the hearing, but the Warden introduced
Latesha’s. In it, Mrs. Everhart expressed suspicion that her affidavit had been
altered “[b]ecause half of the stuff in [the affidavit] isn’t true.” (Resp’t’s Ex. 26, at
57:4-5.) She stated, “I don’t know if Ivan [Teleguz] was at the party or not. . . .
Edwin [Gilkes] could have let him in upstairs without coming through the front
door.” (Resp’t’s Ex. 26, at 63:1-2; 20-22.)
-29-
As to the preparation of the affidavits, Mrs. Everhart recalled that a young
lady had visited her and her husband in regard to the affidavits (presumably
Jennifer Givens, an attorney with the Virginia Capital Resource Center, Teleguz’s
state and federal habeas counsel). The young lady “wrote some things down and
she left. And about two, three weeks later she came back and had us sign a paper.
And that was it.” (Resp’t’s Ex. 26, at 88:7-10.) Mrs. Everhart claimed that she
simply “glanced over [the affidavit] and signed it,” but was never given her own
copy. (Resp’t’s Ex. 26, at 89:19, 20-23.) She also raised doubts about the accuracy
of her husband’s own affidavit when she asserted that David Everhart “was really
drunk” at his birthday party. (Resp’t’s Ex. 26, at 83:21-22.)
Steven Corbally, an investigator who had assisted Teleguz’s trial attorneys,
testified at the evidentiary hearing that he had interviewed Mr. and Mrs. Everhart
in 2005 together at their home in Pennsylvania, and they had told him that they
“never saw Ivan [Teleguz] at this party.” (Hr’g Tr. 62:25-63:1, Nov. 14, 2013.)
However, this statement is significantly weaker than the assertion made in the later
affidavits obtained by Ms. Givens that Teleguz was not present at the party.
Two other affiants made relevant statements but both are similarly weak
denials of Teleguz’s presence at the party. Sarah Deaver, Gilkes ex-girlfriend and
the mother of his two oldest children, did not remember seeing Teleguz at the
party, but could not “remember it very well because [she] drank a lot that night.”
-30-
(Pet’r’s Ex. 105 ¶ 9.) Popov also reported simply that he “did not see Ivan at the
party.” (Pet’r’s Ex. 100 ¶ 14.)
Teleguz has not offered any evidence to establish that he was elsewhere
during the party but instead has relied upon the affidavits of these attendees.
According to Mr. Everhart’s affidavit, only days after the murder, Hetrick
“admitted that he had killed someone, and that while he was killing her, she turned
the knife on him and he got cut,” and Mr. Everhart relayed the confession to his
wife. 12 (Pet’r’s Ex. 11, ¶ 13.) The Everharts knew for years that Hetrick and
Gilkes had been involved in a murder. They did not alert authorities, but instead
merely “told Hetrick that he would have to leave very soon.” (Pet’r’s Ex. 11. ¶
14.) This alone challenges their credibility, without considering the inability of
Latesha Everhart to maintain a consistent account of who was present at her
husband’s birthday party.
The petitioner asserts that “[n]o reasonable juror who heard the evidence
demonstrating that Teleguz was not present at David Everhart’s birthday party
would find Teleguz guilty beyond a reasonable doubt.”
(Pet’r’s Reply 21.)
However, Gilkes testified at trial that Teleguz hired Hetrick at an earlier meeting,
and in fact, he had not heard Teleguz and Hetrick discuss the murder at the
12
In her deposition, Mrs. Everhart also claimed that these allegations of being told
about the murder — contained in both her and her husband’s affidavit — were false.
-31-
Everhart party.
Thus, even if the allegations of the attendees were credible,
Teleguz’s presence at the birthday party was not central to his murder-for-hire
conviction.
D. TELEGUZ’S INVOLVEMENT IN AN EARLIER MURDER.
On August 7, 2003, in an interview with officers with the Russian Organized
Crime Task Force, Gilkes recounted that Teleguz had been involved in a 2001
murder outside of the Ephrata Recreation Center. 13 According to the interview
notes, he reported that Teleguz, along with two other men, approached a group of
Russian individuals at a “rec center” in Ephrata “because of a drug deal gone bad.”
(Resp’t’s Ex. 2 ¶ 17.) Gilkes recounted that he, Popov, Rymarenko, and others
looked on as “the male with the pistol fired, killing the other guy.” Teleguz then
left with the shooter and the other man, but before leaving told those present,
“‘Tell your boys we’ll be back for the other two.’” (Resp’t’s Ex. 2 ¶17.)
On a pretrial motion by defense counsel, the court excluded any such
evidence at the guilt phase of the trial, but not the penalty phase. (J.A. at 1819-20.)
Nevertheless, in the trial’s guilt phase Teleguz’s lead counsel Maslakowski asked
Gilkes during cross-examination, “Do you remember telling the investigators that
you were at the recreation center in [Ephrata] and that Ivan Teleguz and two other
13
The Russian Organized Crime Task Force was comprised of ATF agents
supervised by the Boston Field Office who were investigating illegal firearms trafficking
involving Safanov, Teleguz, and others.
-32-
people came in, walked up to some guy, blew him away and told you they’ll be
back for the other two?” (J.A. at 2852:6-10.) Gilkes denied making such a
statement, and explained on redirect as follows:
Q.
At the rec center. And if you would tell the jury about the
situation. What occurred at the Ephrata rec center?
....
A.
Yes. What I stated is I didn’t recall me being there watching
them walk up inside of the rec center and shoot a dude in the
head as you stated. What I recall is I was down in Ephrata one
day with Gene and . . .
Q.
Gene Papov [sic] ?
A.
Gene Papov [sic] and [Rymarenko] and a couple of other
Russians on Main Street were outside the parking lot of the rec
center. There was two men that got out of the car. We figured
they were both, they were both Russians to the best of my
knowledge.
....
A.
Okay. Well, there was two males that got out of the car. And
the one walked up and said that, told Gene Papov [sic] if his
boys didn’t have the money at a certain time that in a couple of
days that some of them would be killed. And then after they
left Gene explained the situation to me a little bit. But at that
time I did not realize that, I didn’t know Teleguz so I didn’t
know that that was him until he showed up at the party for the
first time.
....
Q.
And he was the one that made the statement?
A.
No.
Q.
He was present during the statement.
-33-
A.
Yes, he was present.
Q.
To the respect that, excuse me, that if your boys don’t get the
money someone’s going to be killed.
A.
Yes.
Q.
Was someone killed?
A.
Yes.
Q.
How much after that?
A.
It was about I would say a week, three days to a week after that
in Ephrata Street, on Main Street and you can check the records
on that.
(J.A. at 2869:4-2871:5.)
At the evidentiary hearing before me, David Lloyd, the director of the
recreation center from 1992 until 2012, James Karl, the Chief Public Defender of
Lancaster County, and local police detective Donald Brown all confirmed that
there had never been such a murder at or near the Ephrata Recreation Center.
Nonetheless, I find the petitioner’s attempt to use this evidence to impeach Gilkes’
trial testimony is unsuccessful. Gilkes did not testify at trial that he had witnessed
a murder or that Teleguz had made a threat. He testified instead that Teleguz was
present with another person who had made a threat and that he understood that an
unidentified murder had later occurred.
In the Gilkes affidavits relied upon by Teleguz, Gilkes did not fully recant
this portion of his trial testimony but in his second affidavit, revealed that his
-34-
knowledge of the purported murder was second-hand: “Gene Popov told me that
Teleguz was involved in the rec center shooting. I remember hearing that someone
got shot in Ephrata on the news. . . . I didn’t actually witness anything. I was just
trying to give the police more bad things on Teleguz.” (Pet’r’s Ex. 34 ¶ 8.)
In fact, Gilkes’ testimony is consistent with the account introduced at the
evidentiary hearing about the murder of Yevgeniy “John” Belyy, which occurred
on April 6, 2001, in nearby Elizabeth Township, Pennsylvania.
Belyy was
murdered by Valeriy Mezentsev. Gerard Sauers of the Pennsylvania State Police,
who investigated the Belyy homicide, testified at the evidentiary hearing that it was
suspected that the murder was a “preemptive strike against the victim,” (Hr’g Tr.
170:16, Nov. 13, 2013) and appeared to be linked to another event by “various
individuals who talked about a fight or embarrassment at the Ephrata Rec Center or
in that vicinity.” (Hr’g Tr. 170:21-22, Nov. 13, 2013.) Sauers also testified that
“Ivan Teleguz first came to light in the homicide investigation that we conducted
regarding a victim named Evgeni [sic] Belyy.” (Hr’g Tr. 169:17-19, Nov. 13,
2013.) He could not recall how Teleguz was involved in the investigation.
Several affiants have recounted rumors that Teleguz had supplied a gun used
in that murder or aided Mezentsev in some manner. In his affidavit, Popov, who
was present at the party, recalled “[r]umors [ ] that someone told told Mezentsev
that [Popov’s] group was at the party, and that Ivan was the one who told
-35-
Mezentsev where we were.” (Pet’r’s Ex. 100 ¶ 7.) He claimed this rumor “is what
everyone [he knew] believed.”
(Pet’r’s Ex. 100 ¶ 7.)
He also claimed that
“[p]eople said that Ivan gave Mezentsev one of the guns that was used to kill
Belyy.” (Pet’r’s Ex. 100 ¶ 8.) Rymarenko also stated in his affidavit that he saw
Mezentsev with two guns at the party, and “the one that was not registered was
assumed to have been obtained from Ivan.” (Pet’r’s Ex. 101 ¶ 5.) In his affidavit,
Dimitriy Schwartz, a friend of Mesentsev, reported hearing after the murder that
Ivan had warned Mesentsev of a threat from Belyy, and he recalled that Belyy’s
family “considered Ivan responsible for [Belyy’s] death.” (Pet’r’s Ex. 104 ¶¶ 4-5.)
Based on this background, Gilkes’ testimony about a murder is likely the
repetition of rumors and does not substantially undermine the portions of his trial
testimony related to the murder of Stephanie Sipe.
These rumors have also been cited in support of a theory urged on behalf of
Teleguz that Rymarenko and Popov were involved in Sipe’s murder. In his brief to
the Fourth Circuit, the petitioner speculated that “Popov and Rymarenko wanted to
kill Teleguz because they believed (wrongly) that Teleguz was behind the death of
Rymarenko’s cousin [Belyy] less than four months prior to Sipe’s murder.”
(Appellant’s Br. 58.) Steven Corbally, the trial investigator, proposed a theory
“that Gene Popov and Anatoly [Rymarenko] had hired Hetrick to rob or kill
Stephanie Sipe, knowing that Ivan Teleguz, the ex-boyfriend, would be the prime
-36-
suspect.” (Pet’r’s Ex. 60 ¶ 21.) However, the expanded record does not disturb my
earlier finding that this alternative theory lacks evidentiary support. Teleguz v.
Kelly, 824 F. Supp. 2d at 714-715. There is simply no evidence to indicate that
Hetrick and Gilkes were hired by anyone other than Teleguz and this alternative
theory does not support the petitioner’s claim of actual innocence.
E. OTHER GROUNDS SEEKING TO IMPEACH HETRICK.
The petitioner contends that Hetrick’s testimony “was utterly unreliable and
rife with inconsistencies.” (Pet’r’s Post-Hr’g Br. 33, ECF No. 310.) The petitioner
attempts to undermine Hetrick’s credibility by pointing to the tactics used when he
was interrogated and by introducing several categories of so-called “independent
evidence.” In addition to Teleguz’s alleged absence from the Everhart birthday
party, the petitioner asserts that Hetrick’s timetable is implausible, given evidence
as to Sipe’s time of death and Teleguz’s alibi.
I also find these efforts to be
unsuccessful.
Interrogation Tactics.
The petitioner contends that “[d]uring the first two hours of the
interrogation, Whitfield and Garst . . . provided Hetrick with all the information
and motivation he needed to implicate Teleguz — regardless of whether Teleguz
actually was involved.” (Pet’r’s Post-Hr’g Br. 34.) At the evidentiary hearing, Dr.
Richard Leo, “a nationally known expert on the science of false interrogations and
-37-
police psychology” (Hr’g Tr. 18:9-10, Nov. 12, 2013), and James Trainum, “a
detective with 17 years [of] experience in homicide interrogations” (Hr’g Tr.
18:18-19, Nov. 12, 2013), opined that, due to improper interrogation tactics,
Hetrick’s confession and subsequent testimony were more likely to be unreliable. I
disagree and do not accept their opinions.
Allegations of police intimidation and manipulation of this sort are often
raised to challenge a self-incriminating statement by the accused. But here Hetrick
has never challenged his confession to authorities and confirmed it later when he
had counsel and testified at Teleguz’s trial, a confirmation that continues to this
day. Hetrick undisputedly murdered Sipe and I find that he confessed not because
his will was overborne by improper police interrogation tactics, but because he
understood that, in his words, he “was pinned into a corner, and everyone else had
already snitched.” (Hr’g Tr. 101:9-10, Nov. 13, 2013.) Leniency for government
cooperators is common, and absent evidence of other misconduct, their motivation
to help themselves does not render their statements necessarily unreliable. As for
potential contamination, maximization, and minimization, Dr. Leo conceded that
use of these techniques “might increase the risk, but they’re not dispositive on the
accuracy or inaccuracy of the resulting statements.” (Hr’g Tr. 184:6-8, Nov. 12,
2013.)
-38-
The petitioner argues that it was Whitfield’s single-minded focus upon
Teleguz that forced Hetrick to falsely implicate him.
Trainum opined that
Whitfield “became obsessed with this theory of his, especially when he received
information from Mr. Safanov, that confirmed, that seemed to confirm his theory.”
(Hr’g Tr. 220:13-16, Nov. 12, 2013.) He also challenged Safanov’s credibility,
calling him a “jailhouse snitch . . . inclined to either try to manipulate the truth or
give information that they really didn’t have.” (Hr’g Tr. 220:20-221:3, Nov. 12,
2013.) However, Safanov, who was not subjected to the interrogation tactics at
issue here, provided non-public facts to investigators that implicated Teleguz and
provided the first viable lead in the investigation for over a year. Whitfield was
pursuing the only viable, corroborated lead in the investigation, and there is no
indication that, had Hetrick provided another viable alternative, Whitfield would
not have pursued it.
The petitioner further contends that “the jurors did not hear Dr. Leo and
Detective Trainum describe the improper interrogation tactics used against Hetrick
and the ways and extent to which those improper tactics rendered Hetrick’s
statement and testimony unreliable.” (Pet’r’s Reply 20.) Nonetheless, Teleguz’s
trial counsel emphasized that Whitfield had provided his theory of the case to
Hetrick before his confession. His trial counsel further cross-examined Hetrick
regarding the inconsistencies between his trial testimony and his prior statements
-39-
to police. Thus, the jury did consider and ultimately rejected similar arguments of
contamination, self-preservation, and inconsistency. As such, the expert opinions
would have had little additional impact on the jurors.
The jury’s credibility
determination, in light of Hetrick’s responses to rigorous cross-examination, is not
unsurprising.
The fact is that Hetrick was a highly creditable witness, providing a coherent
and complete narrative of the crime. Indeed, having observed his demeanor and
testimony first-hand, I believe that Hetrick’s evidence alone was sufficient to have
convinced the jury of Teleguz’s guilt. He indicated that he confessed because he
felt he had no other choice: “Well, after I realized that I was pinned into a corner,
and everyone else had already snitched, I had [Whitfield] get [Garst] on the
phone.” (Hr’g Tr. 101:9-11, Nov. 13, 2013.) Hetrick recalled that, based on his
reading of the probable cause affidavit, he had understood that Teleguz had “spoke
to his cousin, Aleksay Safanov, . . . and told him the exact parameters of the crime
except [his] name, but he did give up Edwin, . . . and whenever they went to talk to
Edwin, he led them right to [him].” 14 (Hr’g Tr. 102:9-13, Nov. 13, 2013.) Hetrick
claimed that he was not supplied information about Teleguz’s child support
obligations by the probable cause affidavit, because “that was the reason [Teleguz]
gave for hiring [him] was the child support payments.” (Hr’g Tr. 128:22-23;
14
There is no evidence, other than Hetrick’s statement, to indicate that Safanov
and Teleguz are in fact cousins.
-40-
129:2-3, Nov. 13, 2013.)
Indeed, as previously discussed, the child support
motivation had not been concocted by Whitfield but based on the suspicions of
Sipe’s family and independently corroborated by Safanov.
For these reasons, I find that the petitioner has not shown that even armed
with the opinions of Dr. Leo and Detective Trainum, no reasonable juror would
have convicted him.
The Victim’s Time of Death.
The petitioner also challenges Hetrick’s trial testimony that he murdered
Sipe on the morning of July 22, 2001, pointing to medical reports and to interviews
of Sipe’s neighbors. These allegations and evidence were before the Supreme
Court of Virginia in connection with an ineffective assistance of counsel claim, and
the court remarked, “Sipe’s precise time of death was not relevant to whether
petitioner hired the killers.” Teleguz v. Warden, 688 S.E.2d at 870. I agree with
this finding, and I also conclude that the evidence cited by the petitioner does not
undermine Hetrick’s testimony such that no reasonable juror would have convicted
him in light of it.
In an investigative report the medical examiner concluded that Sipe’s
“[t]ime of death [was] believed to be around 20:00 [8 p.m.] on Jul 22, based on
decedent’s clothing, evidence that she was about to bathe child, condition of body
and condition of child.” (Pet’r’s Ex. 13, at 75.) The report also indicated that Sipe
-41-
was last seen alive on the afternoon of July 22, 2001. In a statement to police,
Jesenia Diaz, a neighbor of Sipe, recalled that she last had seen Sipe outside of
Deer Run Apartments with her child on “the day before the mother found her . . . a
few minutes before 3:pm,” and she was confident in her recollection “because
that’s what time [Diaz’s boyfriend] had a break.”
(Pet’r’s Ex. 4.)
Another
neighbor, Debra Price, told investigators that “she was sure she had seen the victim
at approximately 6:pm [1800 hours] on 07-22-01.” (Pet’r’s Ex. 14 (brackets in
original).)
However, there is testimony and documentation to the contrary, which is
corroborative of Hetrick’s testimony. In a Certificate of Death, Dr. Folsom lists
Sipe’s time of injury as “unknown,” and instead of stating a time of death, he noted
the time that the body was discovered. (J.A. at 2711.) Moreover, Victor Sampson,
a Harrisonburg taxi driver, testified at trial that he had “picked up two gentlemen at
the Shenandoah Grille somewhere between 9:30 and 10:00” on the morning of July
22, 2001. (J.A. at 2997:14-15.) He subsequently identified them as Hetrick and
Gilkes in a lineup. Sampson recalled first taking them to the Staunton train station,
but no trains were running, so he delivered them to Charlottesville. He described
the passengers as “both fairly thin, close cropped hair, both of them, one black, one
white, medium height, somewhere between five seven and five ten.” (J.A. at
2999:8-10.) He reported that he was paid by the white passenger, who had one
-42-
hand wrapped with a bandage, indicating that the murder had already occurred.
His testimony aligned with Hetrick’s trial testimony, and there is no reason to
doubt his credibility or reliability. Neither Diaz, Price, nor the medical officials
testified at the evidentiary hearing, and the petitioner’s attempt to rely upon their
unsworn statements fails in the face of sworn testimony and documentation to the
contrary.
Teleguz’s Failed Alibi.
The petitioner also challenges Hetrick’s trial testimony that Teleguz drove
the perpetrators to Harrisonburg and then returned to Pennsylvania on the evening
of July 21, 2001, in order to establish an alibi. The Virginia Supreme Court
considered this argument in the state habeas proceeding and found that “[l]eaving
Harrisonburg at 4:15 a.m. and making a purchase at the Wal-Mart in Ephrata at
approximately 8:14 a.m is not implausible, particularly in light of petitioner’s
contention that the trip takes under four hours if obeying all speed limits.” Teleguz
v. Warden, 688 S.E.2d at 869. Moreover, the court found that the inquiry “was not
relevant to whether he had hired the killers, because no one contended that the
petitioner was at the scene of the murder when it took place or otherwise
participated in the actual killing.” Id. It is well-established that “when a state
court has made a factual determination bearing on the resolution of a Schlup issue,
the petitioner bears the burden of rebutting the presumption by clear and
-43-
convincing evidence.” Teleguz v. Pearson, 689 F.3d at 331 (internal quotation
marks and citation omitted). The petitioner has not produced any such evidence.
On Saturday, July 21, Teleguz attended a cookout at Blue Marsh Park in
Leesport, Pennsylvania, with his work supervisor, Michael Millay and Millay’s
family. Millay’s affidavit was considered by the Virginia Supreme Court in the
state habeas proceeding and he testified before me at the evidentiary hearing.
Teleguz and Millay spent the day fishing and preparing the cookout. At the
evidentiary hearing, Millay estimated that they had left the park, in separate
automobiles, “after 9:30 [p.m.] even because . . . I pulled my headlights on and the
sky was doing that dark purple thing.” (Hr’g Tr. 53:20-22, Nov. 13, 2013.) Millay
also estimated that the travel time from Blue Marsh Park to Lancaster was “better
than an hour.” (Hr’g Tr. 50:12, Nov. 13, 2013.) He recalled that Teleguz had
appeared “in no hurry,” and “never indicated to me that . . . anything was
pressing.”
(Hr’g Tr. 53:24-25, Nov. 13, 2013.)
From this testimony, the
petitioner’s counsel concludes that “Teleguz could not possibly have picked
Hetrick and Gilkes up in Lancaster, Pennsylvania before 10:30 p.m.” (Pet’r’s PostHr’g Br. 71.)
Even if a correct assumption, it does not materially conflict with
Hetrick’s and Gilkes’ trial testimony that Teleguz arrived at their East King Street
residence between 9:00 and 10:30 p.m. that evening.
-44-
Hetrick and Gilkes also testified at Teleguz’s trial that their initial stop in
Harrisonburg had been at the Walmart store, and this testimony was corroborated
by a Walmart receipt time-stamped at 3:58 a.m. Therefore, Teleguz had more than
adequate time between at least 10:30 p.m. and 3:58 a.m. to drive from Lancaster,
Pennsylvania, to Harrisonburg, Virginia.
Teleguz’s mother, Ira, testified at the evidentiary hearing that she had seen
her son in the kitchen of her home at “[a]pproximately 8:00 a.m.” on Sunday, July
22, 2001. (Hr’g Tr. at 69:14, Nov. 13, 2013.) Teleguz’s bank records also
establish that he made a purchase at the Ephrata, Pennsylvania, Walmart store no
later than 8:14 a.m. that morning. Therefore, Teleguz also had adequate time to
drive from the Harrisonburg Walmart to Deer Run Apartments and then return in
time to make a purchase at the Ephrata Walmart at 8:14 a.m. 15 Neither Michael
Millay’s testimony nor that of Ira Teleguz have altered the timeline that was
considered and deemed plausible by the Supreme Court of Virginia.
F. SUMMARY.
The seminal cases in actual innocence jurisprudence relied on extremely
compelling exculpatory evidence. In Schlup, a prison surveillance video “showed
conclusively that Schlup was in the dining room 65 seconds before the guards
15
In a Google Maps printout in the appendix to Teleguz’s federal habeas petition,
the estimated travel time from Deer Run Apartments in Harrisonburg, Virginia, to the
Walmart store in Ephrata, Pennsylvania, is four hours, zero minutes. (App. 63-67.)
-45-
responded to the distress call,” as a result of the charged murder, so at trial, “a
critical element of Schlup’s defense was determining when the distress call went
out.” 513 U.S. at 303. In support of his claim of actual innocence, the white
petitioner supported his claim of actual innocence with (1) affidavits of black
inmates all professing his innocence in a racially motivated murder and some
identifying another inmate as the actual assailant; (2) the affidavit of an inmateclerk who confirmed that the distress call sounded quickly after the murder
establishing that Schlup physically could not have travelled from the crime scene
to the dining room in that time; and (3) the affidavit of a prison lieutenant who
observed Schlup on his way to the dining room, and who remarked that Schlup did
not appear hurried or as if he had been rushing from the incident to the dining
room.
The Schlup Court held that the habeas court should consider this evidence to
determine whether it “raised sufficient doubt about Schlup’s guilt to undermine
confidence in the result of the trial without the assurance that that trial was
untainted by constitutional error.” Id. at 317. In House, “the central forensic proof
connecting House to the crime — the blood and the semen — ha[d] been called
into question, and House ha[d] put forward substantial evidence pointing to a
different suspect.” 547 U.S. at 554. In conjunction with testimonial evidence that
the victim’s husband had admitted to several people that he had in fact murdered
-46-
his wife, the Court found that, although it was a close question, the petitioner’s
evidence satisfied the gateway standard set forth in Schlup. Id. at 555.
Here, the evidence proffered by the petitioner does not rise to such a level.
Teleguz has not submitted compelling exculpatory evidence to raise sufficient
doubt about his guilt and undermine confidence in his conviction.
Gilkes’
affidavits are incomplete insofar as they provide no reasonable explanation for his
involvement in the murder, and Safanov’s affidavit fails to explain how he
possessed the information necessary to reinvigorate a cold case, if his testimony
implicating Teleguz was in fact false. Hetrick, the murderer, confirmed his trial
testimony at the evidentiary hearing before this court and presented the only
complete and coherent account of the murder. The affidavits of Safanov and
Gilkes, assessed without the benefit of cross-examination and an opportunity to
make a credibility determination, do not provide sufficient support for the
petitioner’s claim of actual innocence, particularly in comparison with Hetrick’s
consistency and impressive testimony before me. And as previously discussed
above, the other evidence attempting to undermine Hetrick’s testimony is
insufficient.
The evidence of Stephanie Sipe’s murder is incomplete without Teleguz’s
involvement, and he has offered no evidence to establish a credible alternative
scenario. Speculations that the murder was the result of a drug robbery gone bad
-47-
or that it was conceived by others in order to cast the blame on Teleguz are simply
farfetched. The idea that a jury would believe that two petty criminals like Gilkes
and Hetrick would drive 200 miles to a strange city in another state to rob a 20year-old they had never met of her drugs or money — or that Teleguz’s Russian
Mafia enemies would, instead of killing him, direct the murder of his former girl
friend in the hope that it would get him in trouble — is unlikely at the least.
In short, the steep hill that the petitioner must climb to show his actual
innocence has two peaks — Hetrick’s powerful, credible testimony and the lack of
any reasonable alternative to Teleguz’s instigation of the murder.
I cannot
conclude that more likely than not, given the “overall, newly supplemented
record,” Schlup, 547 U.S. at 538, no reasonable juror would have found Teleguz
guilty beyond a reasonable doubt. As such, the petitioner has not made a threshold
showing of actual innocence to permit review of his procedurally-defaulted claims.
III. The MARTINEZ CLAIM.
In a new argument, not presented earlier, the petitioner relies on the
Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), to
overcome a procedural bar to his sentencing-phase ineffective assistance claim
relating to a murder in Pennsylvania.
-48-
As explored earlier in Part I.D. of the this Opinion, Gilkes was asked in the
guilt phase of the criminal trial on cross examination by Teleguz’s attorney about
his alleged statement to investigators that Teleguz had been an accomplice to a
2001 murder outside of the recreation center in Ephrata, Pennsylvania. Gilkes
explained that he had not witnessed any such a murder, but only that he had
observed Teleguz at the recreation center accompanying an unidentified individual
and that the unidentified individual had made a threat that Gilkes believed had later
resulted in a murder elsewhere. No mention was made of this incident in the
closing arguments of the guilt phase, but in her closing argument to the jury in the
sentencing phase, prosecutor Garst briefly referred to this and related evidence as
follows:
Future dangerousness, you heard the background of the defendant,
how Gilkes told you about this issue in Ephrata, how they had this
situation with the Russian folks approaching and posturing about
killing someone, and someone ends up dead. How he talked about
robbing Popov. How you heard from Safanov’s mouth that after
Gilkes did this and was involved with this act he wanted Gilkes killed.
That’s how he solves problems. . . . How would he be dangerous in
prison? At any time he can pick up a phone when he has access to a
phone and dial up a murder because he can call another Aleksey
Safanov or another Edwin Gilkes or another Michael Hetrick.
(J.A. at 3454:9-3455:2 (emphasis addded).) While the jury was permitted in the
sentencing phase of the trial to consider the evidence presented in the guilt phase
(J.A. at 3344:1-7), Gilkes did not testify at the sentencing phase and there was no
-49-
other evidence presented — from either the prosecution or the defense —
concerning another murder.
In his Amended Petition for a Writ of Habeas Corpus in this court, Teleguz,
as one of his many claims, asserted in his Claim II that his trial counsel had failed
to “reasonably address evidence of future dangerousness . . . at the sentencing
phase.” (Am. Pet. 55.) In one of several particulars of this claim, he contended
that counsel had failed to “expose[] the prosecution’s Pennsylvania murder story as
pure fiction.” (Am. Pet. 61.) In my opinion initially denying Teleguz’s habeas
petition, I rejected this claim on the ground that it had not been raised in state court
and thus was procedurally defaulted. Teleguz v. Kelly, 824 F. Supp. 2d at 695.
In his appeal to the Fourth Circuit, Teleguz again raised this claim, as his
Issue II. He conceded that the claim was procedurally defaulted, but contended
that the court erred in not granting a Schlup evidentiary hearing to allow him to
show his actual innocence in order to reach this defaulted claim. (Br. of Appellant
40.) The court of appeals did not grant a certificate of appealability as to Teleguz’s
Issue II, but instead granted a certificate of appealability as to Issue I, relating to
the failure to grant a Schlup evidentiary hearing, and Issue III, relating to
ineffective assistance of counsel claims at the guilt phase. Teleguz v. Kelly, No.
-50-
11-9, Order (4th Cir. Feb. 8, 2012.) Teleguz made no mention in Issue III of the
Pennsylvania murder. 16
In its opinion remanding the case for further consideration of the actual
innocence claim, the court of appeals stated, “We also granted a certificate of
appealability on Teleguz’s guilt phase ineffective assistance of counsel claim.
Because this claim may be more fully developed on remand, we have not
addressed that claim and will, accordingly, reserve judgment.” Teleguz v. Pearson,
689 F.3d at 327 n.1. This clearly meant that if on remand, I found that Teleguz
had shown a case of actual innocence, I could then proceed to decide on their
merits those issues relating to guilt phase ineffective assistance of counsel asserted
as his Issue III. Of course, since I have determined that Teleguz has not shown his
actual innocence, the court of appeals’ direction in this regard does not apply.
16
Claim III provided three bases for ineffective assistance in the guilt phase: (1)
trial counsel’s failure to use a federal agent’s representations that Safanov was a liar and
would be unable to give credible testimony; (2) trial counsel’s failure to rebut accounts of
Teleguz’s presence at the Everhart party; and (3) trial counsel’s failure “to uncover and
present readily available, powerful evidence pointing to Anatoly Rymarenko and Eugene
Popov, not Teleguz, as responsible for the murder.” (Br. of Appellant 55.) It should be
noted that Teleguz has never made a claim — and still does not — that his trial attorney
was constitutionally ineffective in the guilt phase by asking Gilkes concerning his prior
statement to investigators about the Ephrata murder. Instead, it has been asserted that the
alleged ineffective assistance occurred at the sentencing phase, by failing to find and
present evidence at that phase that Teleguz was not involved in any such murder. It
seems clear that the question was asked to try to impeach Gilkes by showing that he had
made a false claim to police about Teleguz. While doubtless a mistake, as hereafter
discussed, it did not prejudice Teleguz.
-51-
Relying on Martinez, Teleguz now wishes to resurrect a portion of Issue II
— the failure of defense counsel to show that there was no Ephrata murder.
A federal court sitting in habeas cannot consider a petitioner’s procedurally
defaulted claim “unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law.” Coleman, 501
U.S. at 750. Until Martinez, the ineffective assistance of counsel in state postconviction proceedings could not serve as cause to excuse the procedural default of
a claim. However, under the “narrow exception” elaborated in Martinez, the
Supreme Court provided a habeas petitioner with a previously unavailable avenue
to demonstrate such cause, as follows:
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 initialreview collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.
132 S. Ct. at 1320. Ineffective assistance of counsel claims in Virginia fall within
the Martinez holding, since they can only be raised in an initial-review collateral
proceeding. See Lentz v. Commonwealth, 544 S.E.2d 299, 304 (Va. 2001).
The Warden contends that “[t]he Martinez argument is beyond the scope of
the hearing and the remand” and thus is not properly before this court. (Resp’t’s
Post-Hr’g Br. 43.)
Martinez was decided by the Supreme Court on March 20,
-52-
2012, prior to oral argument in Teleguz’s appeal to the Fourth Circuit, but was not
raised there nor mentioned in the court’s decision.
In response, Teleguz contends that because the court of appeals did not
expressly forbid me from entertaining other issues, I am free to do so. (Pet’r’s
Reply Br. 22-23.) At the hearing before me, counsel for Teleguz indicated that the
petitioner wished to present evidence relevant to the holding of the “new case” of
Martinez (Hr’g Tr. 7, Nov. 12, 2013) and while I initially expressed reluctance in
that regard, I eventually did allow the petitioner to present such evidence. It came
in the form of the testimony of Jennifer Givens, one of Teleguz’s attorneys in his
state habeas proceedings. In summary, Givens testified that she could not explain
why she and his other state habeas attorneys had not investigated whether Teleguz
had been involved in a murder in Ephrata; that the issue had been simply
overlooked.
Contrary to Teleguz’s argument, I think the consideration of this new issue
does implicate the so-called mandate rule, a “more powerful version of the law of
the case doctrine.” Invention Submission Corp. v. Dudas, 413 F.3d 411, 414 (4th
Cir. 2005). The mandate rule restricts a district court on remand from considering
any issue decided by the court of appeals as well as “any issue that could have
been but was not raised on appeal.” Doe v. Chao, 511 F.3d 461, 465 (4th Cir.
-53-
2007) (internal quotation marks and citation omitted). Here, the court of appeals
declined to grant a certificate of appealability as to the Ephrata murder claim.
Nevertheless, in order to prevent any possible injustice, 17 I will consider
Teleguz’s argument that Martinez allows a gateway to the otherwise defaulted
claim that his trial counsel was constitutionally deficient in failing to present
evidence about the Ephrata murder.
Under Martinez, the petitioner must make two showings to demonstrate
cause and prejudice sufficient to excuse the procedural default. First, to establish
“cause,” the petitioner must show that his counsel in state habeas proceedings was
ineffective under the two-prong test announced in Strickland v. Washington, 466
U.S. 668 (1984). Second, to demonstrate “prejudice,” the petitioner must make
“only a showing that the trial-level ineffective assistance of counsel claim was
‘substantial.’” Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014).
Strickland requires the petitioner to satisfy two prongs.
“First, the
defendant must show that counsel’s performance was deficient. . . . Second, the
defendant must show that the deficient performance prejudiced the defense.”
17
In its opinion remanding this case, the court of appeals expressly directed me
to “consider the ‘heightened need for fairness in the administration of death[,] . . . born of
the appreciation that death truly is different from all other punishments a society inflicts
upon its citizens.’” Teleguz v. Pearson, 689 F.3d at 331 (quoting Callins v. Collins, 510
U.S. 1141, 1149 (1994) (Blackmun, J., dissenting from denial of certiorari)). One
recognized exception to the mandate rule is to correct a serious injustice. See Chao, 511
F.3d at 467. No explanation has been given as why Martinez was not argued to the
Fourth Circuit by Teleguz’s counsel as an alternative gateway claim.
-54-
Strickland, 466 U.S. at 687. Teleguz contends that his state habeas counsel was
deficient, insofar as they failed to investigate and raise the penalty-phase
ineffective assistance of trial counsel claim as it related to the Ephrata murder
allegations. Because I find that the underlying claim was not substantial, I also
find that the error of state habeas counsel was not prejudicial.
To establish deficiency, the petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466
U.S. at 688. In evaluating the performance of the petitioner’s counsel, I must
“indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance,” id. at 689, and “the defendant must overcome
the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. “Strickland does not guarantee perfect
representation, only a reasonably competent attorney.” Harrington v. Richter, 131
S. Ct. 770, 791 (2011) (internal quotation marks and citations omitted).
As noted, state habeas counsel Jennifer Givens testified at the evidentiary
hearing that no one from the petitioner’s team had investigated the allegations
surrounding the Ephrata Recreation Center. She lamented, “We clearly missed this
issue, and I can’t figure out how or why.” (Hr’g Tr. 20:20-21, Nov. 14, 2013.)
She admitted that state habeas counsel’s failure to investigate the allegations and
raise a claim had no strategic or tactical basis. However, she declined to call the
-55-
state habeas representation deficient and testified that she had “pursued the claims
that [she] spotted in the record.” (Hr’g Tr. at 25:14-15, Nov. 14, 2013.) Even
assuming that state habeas counsel did not provide reasonable professional
assistance, I find that the error was not so prejudicial as to create a reasonable
likelihood that the outcome of the case would have otherwise been different.
To establish prejudice, “Strickland asks whether it is ‘reasonably likely’ the
result would have been different.”
Harrington, 131 S. Ct. at 792 (quoting
Strickland, 466 U.S. at 696). In other words, “the difference between Strickland’s
prejudice standard and a more-probable-than-not standard is slight and matters
only in the rarest case.” Id. (internal quotation marks and citation omitted). In
Clabourne, the Ninth Circuit noted that there is “overlap between the two
[Martinez] requirements,” 745 F.3d at 377, and as in that case,
[d]etermining whether the result of the post-conviction proceedings
would have been different will require consideration of the underlying
claim of ineffective assistance by . . . counsel and the questions of (a)
whether . . . counsel performed deficiently, and (b) whether there was
a reasonable probability that, absent deficient performance . . . , the
result of the . . . proceedings would have been different.
Id. at 382. Thus, the facts that bear on the Strickland prejudice analysis and the
Martinez substantiality analysis will be largely the same.
Much of the Ephrata murder argument is founded on a misconception of the
evidence. Of course, while an investigative report stated that Gilkes claimed to
have witnessed a person being shot by a companion of Teleguz at the recreation
-56-
center in Ephrata over a drug deal after which Teleguz told the group present,
“‘Tell your boys we’ll be back for the other two’” (Resp’t’s Ex. 2 ¶ 17), at trial
Gilkes denied making such a statement and claimed only that Teleguz had been
present at the recreation center when a companion made a threat and that a murder
later occurred elsewhere.
Teleguz thus incorrectly claimed, in his Amended
Petition, that “Gilkes also told jurors that Teleguz was responsible for a murder in
Pennsylvania,” (Am. Pet. 58) and now argues that “[e]vidence that a capital
defendant was responsible for a prior murder is ‘the most powerful imaginable
aggravating evidence.’” (Pet’r’s Post-Hr’g Br. 85 (quoting Wong v. Belmontes, 558
U.S. 15, 28 (2009).)
At the evidentiary hearing, attorney Givens appeared remorseful about what
she perceived as a devastating oversight. Givens opined that she would be “hard
pressed to come up with a worse [mistake] than this because evidence that my
client would have been involved in another alleged murder that was presented at
the guilt and the penalty phase of a capital murder trial was unbelievably
prejudicial.” (Hr’g Tr. 20:24-21:3, Nov. 14, 2013.) However, she could not
actually recall Gilkes’ trial testimony concerning the Ephrata murder allegations.
During oral argument from the court of appeals, a question from the court
indicated a similar misconception of this evidence. (Oral argument at 30:32,
Teleguz
v.
Pearson,
No.
11-9
-57-
(May
16,
2012),
available
at
http://www.ca4.uscourts.gov/oral-argument (“Do you think it’s not negligent for a
lawyer to put before a jury in a capital case evidence that his client committed an
uncharged murder in another jurisdiction?”).) This misunderstanding was repeated
in the court’s subsequent opinion.
Teleguz v. Pearson, 689 F.3d at 326
(“According to Gilkes, Teleguz had shot a Russian criminal in the street outside
the Ephrata Recreation Center.”).
The omission of a guilt-phase claim based upon the Ephrata murder
allegations — by both state and federal habeas counsel — is understandable given
the fact that, at most, the evidence before the jury demonstrated that Teleguz was
present when another individual threatened to murder someone at the Ephrata
Recreation Center, and a murder did occur in the following week. At no point was
it alleged that Teleguz was responsible for another murder. It was otherwise clear
to the jury that Teleguz kept disreputable company, and that he accompanied an
individual who would make such a threat would likely come as no surprise. Given
Gilkes’ and Hetrick’s testimony tying Teleguz to the Russian Mafia, the
introduction of Teleguz’s federal gun trafficking convictions, and his obvious
associations with convicted criminals, the actual content of Gilkes’ testimony
concerning the Ephrata Recreation Center was minimally prejudicial.
While the introduction of the alleged murder certainly did not aid the
petitioner, it is not so prejudicial that the outcome of the trial or the sentence would
-58-
have been different. The allegations do not bear on the murder-for-hire scheme
itself and their single mention in the penalty phase was in conjunction with other
evidence in support of a finding of future dangerousness. In addition, the jury
found that the Commonwealth had demonstrated beyond a reasonable doubt an
alternative aggravating factor, vileness, in their recommendation of a sentence of
death. (J.A. at 3532.)
Furthermore, trial counsel’s failure to investigate the allegations was not
unreasonable, given that Gilkes never accused Teleguz of actually committing an
uncharged murder, and even more, any investigation would likely have been
unhelpful to the petitioner’s defense. Although it has been established that a
murder as described by Gilkes did not occur, there are multiple statements that
reveal contemporaneous rumors that Teleguz had supplied a gun used in the Belyy
murder. Indeed, in his second affidavit, Gilkes did not admit that he had fabricated
the allegations but that “Gene Popov told [him] that Teleguz was involved in the
rec center shooting.” (Pet’r’s Ex. 34 ¶ 8.)
The petitioner argues that if his trial counsel or state habeas counsel had
investigated the allegations of a murder in Ephrata, “there is no question that they
would have found a similar and utter lack of evidence.” (Pet’r’s Post-Hr’g Br. 87.)
As discussed above, however, an investigation would only have led to the weaker
conclusion that Gilkes’ account at trial was likely based upon a rumor that Teleguz
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was complicit in the Belyy murder.
For these reasons, the performance of
Teleguz’s counsel at trial was not so deficient as to fall below the wide range of
reasonable professional assistance.
For the same reasons, the second Martinez requirement, demanding a
showing that the ineffective assistance of trial counsel claim is “substantial,” has
not been satisfied. As such, Teleguz’s request for relief under Martinez is denied.
I will also deny the petitioner’s request for additional discovery related to
this claim. It is certainly true that the equitable relief created by Martinez would
be hollow if a petitioner’s only opportunity to develop a record of ineffectiveness
was in the very proceedings in which the ineffective counsel represented him.
However, the evidentiary hearing before me generated a substantial record on the
veracity of the Ephrata murder allegations and on the failure of both trial counsel
and state habeas counsel to investigate and rebut these allegations.
Further
discovery will not aid in the evaluation.
VI. NAPUE CLAIM.
This court previously found that Teleguz’s claims arising under Napue v.
Illinois, 360 U.S. 264 (1959), were procedurally defaulted and that the petitioner
had not established cause to excuse the default. However, the petitioner now
contends that “new evidence,” in the form of Detective Donald Brown’s testimony,
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excuses procedural default as it applies to the Ephrata murder portion of his Napue
claim.
He argues that the new evidence establishes cause for his failure to raise
the evidence previously, insofar as its delayed discovery is the result of “the State’s
suppression of the relevant evidence.” Banks v. Dretke, 540 U.S. 668, 691 (2004).
However, there is no evidence that the Commonwealth was aware of Brown’s
investigation.
At the evidentiary hearing, Brown testified that he “called down to Ephrata
to ask has there been a murder at the Ephrata Recreation Center. . . . Their response
was no.” (Hr’g Tr. 165:4-7, Nov. 13, 2013.) He could not recall with whom he
talked or what office he called.
Brown mentioned his findings to Richard
Winfield, the case agent for the illegal firearms trafficking investigation in
Massachusetts, but did not recall reporting the information to anyone else other
than his partner. He was under the impression that his report was forwarded to
prosecutors involved in the Teleguz case because Winfield “had a working
relationship with the prosecutors in Virginia.” (Hr’g Tr. 163:8-9, Nov. 13, 2013.)
The petitioner asks the court to make the inferential leap that, because of this
“working relationship,” Winfield must have provided Brown’s findings to Garst or
her office.
This testimony is simply insufficient to establish that the
Commonwealth knew of, much less suppressed, information refuting the Ephrata
murder allegations. Garst testified at the evidentiary hearing that she was always
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under the impression at trial that Gilkes was testifying truthfully and had no
information to the contrary. I find her statement credible.
For the same reasons, the petitioner’s Napue claim would fail even if he
were to overcome procedural default. In Napue v. Illinois, the Supreme Court
reaffirmed the principle that “a State may not knowingly use false evidence,
including false testimony, to obtain a tainted conviction.” 360 U.S. at 269. A
Napue claim requires a showing of both (1) the falsity and materiality of the
testimony and (2) the prosecutor’s knowledge of the falsity. Basden v. Lee, 290
F.3d 602, 614 (4th Cir. 2002). As discussed, there is an insufficient showing of the
prosecutor’s knowledge of the falsity of Gilkes’ testimony to justify further
consideration of this claim.
VII. CONCLUSION.
For the foregoing reasons, I must reject the arguments made on behalf of
Teleguz. The Amended Petition for a Writ of Habeas Corpus will again be denied.
A separate order will be entered forthwith.
DATED: July 17, 2014
/s/ James P. Jones
United States District Judge
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