Carl v. Hatch

• Decision Date: 12 April 2013
• Docket Number: No. 11–2094.,11–2094.
• Citation: 731 F.3d 1015
• Parties: Carl CASE, Petitioner–Appellee, v. Tim HATCH, Warden, Guadalupe County Correctional Facility, Respondent–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

731 F.3d 1015

Carl CASE, Petitioner–Appellee,

v.Tim HATCH, Warden, Guadalupe County Correctional Facility, Respondent–Appellant.

No. 11–2094.

United States Court of Appeals,Tenth Circuit.

April 12, 2013.

James W. Grayson, Assistant Attorney General (Gary K. King, Attorney General of New Mexico, and Nicole Beder, Assistant Attorney General, with him on the briefs), Office of the Attorney General of New Mexico, Santa Fe, NM, for Respondent–Appellant.

Todd A. Coberly, Coberly Law Office, Santa Fe, New Mexico (Marc M. Lowry, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Albuquerque,NM, with him on the brief) for Petitioner–Appellee.

Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.

ORDER

TYMKOVICH, Circuit Judge.

This matter is before the court on the appellee's Petition for Rehearing and Suggestion for Rehearing En Banc. We also have a response from the appellant. Upon consideration by the judges assigned to this appeal originally, the petition for panel rehearing is granted in part to the extent of the amendments found in the Opinion now attached to this order. The petition for panel rehearing is otherwise denied. The Clerk is directed to vacate the court's original decision and concurrence, and to replace it with the Opinion and concurrence attached to this order.

The petition, response and amended Opinion were also transmitted to all of the judges of the court who are in regular active service. As no member of the panel and no judge in regular active service requested that the court be polled, the request for en banc rehearing is denied.

In this appeal we consider our gate-keeping role for second or successive habeas petitions under 28 U.S.C. § 2244. We conclude that petitioner Carl Case has not met the legal requirements for challenging his conviction, and therefore reverse the district court's conditional grant of habeas relief.

This appeal arises from a crime committed over thirty years ago—the rape and murder of a teenager near an isolated dam outside of Carlsbad, New Mexico. Several young men were convicted of the crime, including Case. Those convictions were upheld by the state courts in New Mexico both on direct and collateral review, and Case's first habeas petition in federal court was denied.

In 2008, Case filed an application for permission to file a second habeas petition in this court. He claimed constitutional error occurred at trial based on the discovery of new and previously undisclosed evidence involving a trial witness, and the recantation of trial testimony by two prosecution witnesses nearly twenty years after the trial.

In this appeal we are required to review what happened at trial. Through that perspective we are satisfied that Case's due process rights were not violated and that he received a fundamentally fair trial. We are also satisfied that the newly discovered evidence he points to does not require a new trial, a point of agreement we have with the New Mexico Supreme Court.

Case cannot therefore satisfy the requirements of § 2244(b)(2)(B) that he “establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” Because of that, his application for permission to file a second or successive habeas petition must be denied.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we VACATE the district court's conditional grant of habeas relief and remand for the court to DISMISS for lack of jurisdiction.

I. Background

On January 30, 1982, the body of Nancy Mitchell, a local teenager, was discovered in Eddy County, New Mexico, near an area known locally as Six Mile Dam, just outside of Carlsbad, New Mexico. The medical evidence at trial indicated she died of exposure and had been dead for several weeks prior to the discovery of her body. She had bruises on her upper body and a fractured skull.

Mitchell ran away from her Carlsbad home in early December 1981, staying with friends and occasionally in motels in Carlsbad. Throughout the month of December there were a number of sightings of Mitchell around town, but the last uncontested sighting took place on December 21. On December 21, Mitchell was seen at Ricky and Mary Worley's apartment; they were trying to convince Mitchell that she should return home to her parents, and they believed she was planning to do so later that evening. Mitchell eventually left the apartment with Bobby Autry, who drove around with her for some time until he dropped her off at a Dairy Queen in Carlsbad.

Although some of the events after December 21 are disputed, Case testified at trial that he was at Six Mile Dam with four other young men and Mitchell on New Year's Day 1982. While there, he said, several of the men attacked Mitchell, attempting to engage in sexual intercourse with her, but she resisted and the attack eventually ceased. Case further testified that Mitchell walked onto the dam a few minutes later to go to the bathroom, where she fell and rolled down the side. When she did not reemerge from the bushes and underbrush at the dam's base, Case and his friends left and drove back to town.

Mitchell's body was discovered four weeks later, on January 30, 1982. A police investigation resulted in the arrest of six young men, including Case, for the rape and murder of Mitchell.

A. Pre–Trial Statements and Trial Testimony

At Case's trial, three local teenagers—Audrey Knight, Bobby Autry, and Paul Dunlap—testified they had seen Mitchell with Case and a group of local young men on the night of January 1, 1982. While other witnesses testified they had seen Mitchell before and after this date, at the time of trial, the majority of evidence indicated that she was present at Six Mile Dam on New Year's Day with a group that included Case.

During the course of the initial investigation and at trial, the three eyewitnesses told inconsistent stories, but all three stated that Case was present at Six Mile Dam and participated in a physical attack and sexual assault on Mitchell. The inconsistent stories were explored at trial during both direct and cross examinations.

1. Audrey Knight

Audrey Knight was a friend of several of the men implicated in the attack. Knight gave two statements to the police implicating six men in Mitchell's death. Her initial statements and her trial testimony varied slightly, but the essence of her testimony was that, at a party the night of January 1, she heard Curtis Worley, Carl Case, Mike Tweedy, Joe Brown, Paul Dunlap, and Randy Davis talk about “gang banging” Mitchell. R., Vol. IV, Doc. 9, Trial Transcript at 819. Shortly thereafter, she saw the six men and Mitchell leave the party in Worley's car. Knight, concerned for Mitchell's safety, left the party about fifteen minutes later in her truck, in an attempt to find the group. She saw Worley's car parked near Six Mile Dam and pulled up to it. When she stopped, she saw Mitchell with her shirt off, pinned across the seat of the car by Mike Tweedy. Case then walked up to Knight's truck and told her to leave. Knight said that Mitchell saw her and called out for Knight's help, but Knight left and spent the rest of the evening by herself.

The next day, she heard Case and Worley talking about stabbing and raping Mitchell. She denied seeing Autry leave the party with the other six men, and denied seeing him at the scene of the rape. Knight also said that she had received anonymous phone calls threatening her if she told anyone what she had seen. She believed these calls came from Case.

2. Bobby Autry

Bobby Autry was an 18–year old friend of Mitchell and several of the men implicated in the attack. Autry was interviewed by police four times—January 30, February 3, March 5, and March 12, 1982.¹ The crux of Case's claim of undisclosed evidence discussed below concerns the February 3 interview. Although each of the interviews was tape recorded, Case argues that at the time of trial, only three of the interviews had been transcribed, and the February 3 interview had not been. In the interviews, Autry originally denied having any knowledge of the crime, and denied ever having any sexual encounters with Mitchell. But in his February 3 statement, he admitted that he and Mitchell had gotten undressed in his car on December 19, and that he had partially penetrated her before she pushed him away. Autry told the police that he lied initially because he was unsure whether Mitchell had been raped, but if she had been, he did not want to be implicated. In both his January 30 and February 3 statements, Autry stated that the last time he saw Mitchell was when he dropped her off at the Dairy Queen in Carlsbad on December 21. In his March 5 statement, Autry stated that he might have seen Mitchell in town a few days later, but was unsure. On March 12, Autry took and failed a polygraph examination. After receiving the results and consulting with his father, Autry agreed to give a truthful statement in exchange for immunity.

Autry's final statement, on March 12, was that he was in town on January 1 when Curtis Worley picked him up in his car. Also in the car were Case, Mitchell, Tweedy, Brown, and Dunlap. After driving around town, they drove to Six Mile Dam to drink beer. Autry denied that they went to a party before arriving at the dam. Once at the dam, Worley hit Mitchell with his fist, knocked her to the ground, and tore her pants open. Autry did not see anyone remove Mitchell's shirt. Someone else, possibly Brown, hit Mitchell in the back of the head with a stick or pipe. At this point, Autry ran away, but heard Mitchell yelling for help and saw the others on top of her. Autry did not see anyone else arrive at the scene, including Knight, but did see the others attacking Mitchell on the ground and then putting her back into the car. Autry also stated that he received threatening phone calls telling him not to discuss what he had seen.

3. Paul Dunlap

Paul Dunlap was...