Carter v. Bigelow

• Decision Date: 02 June 2015
• Docket Number: No. 12–4203.,12–4203.
• Citation: 787 F.3d 1269
• Parties: Douglas Stewart CARTER, Petitioner–Appellant, v. Alfred C. BIGELOW, Warden, Utah State Prison, Respondent–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

787 F.3d 1269

Douglas Stewart CARTER, Petitioner–Appellant

v.Alfred C. BIGELOW, Warden, Utah State Prison, Respondent–Appellee.

No. 12–4203.

United States Court of Appeals, Tenth Circuit.

June 2, 2015.

Paula Harms, Assistant Federal Public Defender (and Jon M. Sands, Federal Public Defender; David A. Christensen, Assistant Federal Public Defender, Salt Lake City, UT, on the briefs), Phoenix, AR, for Petitioner–Appellant.

Thomas Brunker, Assistant Attorney General, (and Erin Riley, Assistant Attorney General, Salt Lake City, UT; Sean D. Reyes, Utah Attorney General, on the brief), Salt Lake City, UT, for Respondent–Appellee.

Russell P. Butler (and Victor Stone with him on the brief) of Maryland Crime Victims' Resource Center, Inc., Upper Marlboro, MD, for Victim Gary Olesen.

Before KELLY, LUCERO, and MORITZ, Circuit Judges.

Opinion

KELLY, Circuit Judge.

In this capital case, Petitioner–Appellant Douglas Stewart Carter, a Utah inmate, appeals from the district court's denial of his petition for writ of habeas corpus challenging his conviction and death sentence. Carter v. Bigelow, No. 2:02–CV–326, 2012 WL 3964819 (D.Utah Sept. 11, 2012). Mr. Carter was convicted of the murder of Eva Olesen in Provo, Utah in 1985 and subsequently sentenced to death. Mr. Carter appeals the district court's denial of habeas relief on seven of his claims: (1) ineffective assistance of guilt-phase counsel; (2) ineffective assistance of appellate counsel; (3) ineffective assistance of sentencing counsel at his 1992 resentencing; (4) denial of due process and right to remain silent based on two of the prosecutor's comments at closing argument; (5) denial of Confrontation Clause rights at resentencing; (6) denial of Fifth Amendment rights based on the admission of an involuntary confession; and (7) cumulative error.

In addition, Mr. Carter appeals from the district court's earlier denial of his motion to amend or supplement his habeas petition with claims based on newly discovered evidence of prosecutorial misconduct. Carter v. Bigelow, 869 F.Supp.2d 1322 (D.Utah 2011). In 2011, two key witnesses that corroborated Mr. Carter's confession at trial, Epifanio and Lucia Tovar, executed declarations stating that the Provo Police Department provided them with rent money, groceries, and other favorable treatment in advance of their testimony. These declarations are in part corroborated by declarations from members of the Provo Police Department. Mr. Carter contends that the district court should have allowed him to amend or supplement his habeas petition to include claims of prosecutorial misconduct and suppression of evidence based on this evidence. He further argues the district court should have granted him a stay pursuant to Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), to exhaust these claims in Utah state court.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We conclude that the district court abused its discretion in refusing to allow Mr. Carter to supplement his habeas petition with claims based on newly discovered evidence of prosecutorial misconduct and suppression of evidence. Because the district court did not address whether a stay of these claims to permit exhaustion was appropriate, we remand to allow this determination in the first instance.

As to Mr. Carter's remaining claims, with the exception of his claim of cumulative error, we affirm the district court's denial of habeas relief. We conclude that these claims can be resolved even given the possibility of future evidentiary development of his prosecutorial-misconduct and suppression-of-evidence claims. Further delay and subsequent re-briefing of the other claims is not justified given the protracted time period—now over thirteen years—Mr. Carter's federal habeas petition has been pending. As to Mr. Carter's claim of cumulative error, we vacate the denial of relief and remand to the district court based on the possibility that Mr. Carter's supplemental claims could alter the cumulative error analysis.

Background

Specific facts regarding Mr. Carter's claims are discussed alongside each claim. The general facts surrounding Mr. Carter's conviction and sentence are as follows:

On the evening of February 27, 1985, Eva Olesen was found dead at her home in Provo, Utah. Her hands were tied behind her back with a telephone cord, and she was nude from the waist down. A kitchen knife was found on the floor next to her body. She had been stabbed eight times in the back, once in the abdomen, and once in the neck, and she had suffered a fatal gunshot wound

to the back of the head. The markings on the slug removed from her body were consistent with those produced by a .38 caliber handgun.

Mr. Carter became the primary suspect in Mrs. Olesen's murder in April 1985 when his wife, Anne Carter, provided the police with information about her husband's possible involvement. Mrs. Carter told the police that, on the night of the murder, Mr. Carter went to visit his friend Epifanio Tovar and met two of Mr. Tovar's friends. One of these friends held a grudge against Provo Police Chief Swen Nielsen, a relative of Mrs. Olesen. The three men decided to go to Mrs. Olesen's residence to steal her gold necklace. According to Mrs. Carter, Mr. Carter waited in the car while the other men knocked and entered the home, and Mr. Carter did not know that Mrs. Olesen was dead until the men returned to the car and told him. Mrs. Carter agreed to a search of her home, and the police recovered .38 caliber ammunition. Although Mrs. Carter suspected that her missing .38 caliber handgun was the murder weapon, no weapon was recovered.

Based on the information provided by Mrs. Carter, the police turned their attention to Epifanio Tovar. Mr. Tovar told the police that Mr. Carter had left Mr. Tovar's home on the night of the murder with the intention of stealing money and returned two hours later very nervous and wearing different clothes. Mr. Carter told him he had knocked on the Olesens' door, entered the home, stabbed Mrs. Olesen roughly ten times, and, because she did not die, shot her in the back of the head. Finally, Mr. Tovar told the police that Mr. Carter brought a .38 caliber firearm to Mr. Tovar's house some time after the murder and that Mr. Tovar disposed of the gun at Mr. Carter's request.

On June 11, 1985, police arrested Mr. Carter in Nashville, Tennessee. At the time of his arrest, Mr. Carter was living with JoAnne Robins, who was also taken into custody. Mr. Carter was first interrogated by Sergeant Cunningham of the Nashville Police Department and, the next day, by Lieutenant George Pierpont of the Provo Police Department. After speaking with Lt. Pierpont for a short time, Mr. Carter confessed to entering Mrs. Olesen's home, stabbing her several times, and shooting her in the back of the head.

Mr. Carter was charged with first-degree murder under Utah Code Ann. § 76–5–202. No physical evidence or eyewitness testimony placed Mr. Carter at the scene of the murder of Mrs. Olesen. See Carter, 2012 WL 3964819, at *2 n. 21. The only evidence corroborating Mr. Carter's confession was the testimony of Epifanio and Lucia Tovar (Epifanio's wife), whom the Utah Supreme Court described as the “key witnesses.” State v. Carter, 888 P.2d 629, 645 (Utah 1995) (Carter II ). Mr. Tovar described to the jury his conversation with Mr. Carter in which Mr. Carter described how he killed Mrs. Olesen. Mrs. Tovar testified that she overheard the conversation, though they were speaking in English and Mrs. Tovar only spoke Spanish. She testified that Mr. Carter demonstrated how he bound and stabbed Mrs. Olesen and was laughing. Notably, the Tovars testified they took the stand free of inducement, with the exception of court-ordered witness fees of $14 each.

On December 18, 1985, the jury found Mr. Carter guilty of first-degree murder and, the following day, sentenced him to death. The Utah Supreme Court affirmed Mr. Carter's conviction, but reversed his death sentence. State v. Carter, 776 P.2d 886 (Utah 1989) (Carter I ). In 1992, Mr. Carter was resentenced to death, and the Utah Supreme Court affirmed. Carter II, 888 P.2d 629.

Mr. Carter filed his first petition for state post-conviction relief in October 1995. The state trial court dismissed all of his claims, and the Utah Supreme Court affirmed. Carter v. Galetka, 44 P.3d 626 (Utah 2001) (Carter III ).

Mr. Carter's federal habeas proceedings began in April 2002.¹ On March 25, 2004, Mr. Carter filed his initial petition for habeas relief in the district court, raising nearly fifty claims and various sub-claims. Mr. Carter subsequently withdrew several of his claims and filed a Second Amended Petition on March 1, 2006. The district court granted Mr. Carter's request for a stay pursuant to Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), which authorizes a “stay and abeyance” procedure where a petitioner presents a “mixed petition”—one including both exhausted and unexhausted claims—and other requirements are satisfied.

On April 28, 2008, the district court granted Utah's motion to vacate the stay and re-open the case. On July 20, 2010, the court issued an order granting in part Utah's motion to dismiss, finding that a number of Mr. Carter's claims, including his claims that the prosecution improperly suppressed evidence, were procedurally barred.²

On August 18, 2011, Mr. Carter filed a new motion for a stay to exhaust claims of prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), based on newly discovered evidence that Epifanio and Lucia Tovar received cash payments and other favorable treatment from the Provo Police Department in advance of testifying. The district court denied Mr. Carter's motion on the grounds that no Brady or Napue claims remained in his petition and suggested that he could move to amend or...