Cleveland v. Bradshaw

• Decision Date: 28 November 2012
• Docket Number: No. 11–3162.,11–3162.
• Citation: 693 F.3d 626
• Parties: Alfred CLEVELAND, Petitioner–Appellant, v. Margaret BRADSHAW, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

693 F.3d 626

Alfred CLEVELAND, Petitioner–Appellant,

v.Margaret BRADSHAW, Respondent–Appellee.

No. 11–3162.

United States Court of Appeals, Sixth Circuit.

Argued: May 29, 2012.

Decided and Filed: Sept. 10, 2012.

Rehearing and Rehearing En Banc Denied Nov. 28, 2012.

ARGUED:Jennifer Paschen Bergeron, Ohio Innocence Project, Cincinnati, OH, for Appellant. Jerri L. Fosnaught, Office of the Ohio Attorney General, Columbus, OH, for Appellee. ON BRIEF:Jennifer Paschen Bergeron, Ohio Innocence Project, Cincinnati, OH, for Appellant. Jerri L. Fosnaught, Office of the Ohio Attorney General, Columbus, OH, for Appellee.

Before: MARTIN, GILMAN, and WHITE, Circuit Judges.

OPINION

HELENE N. WHITE, Circuit Judge.

Petitioner Alfred Cleveland is currently serving a term of life imprisonment for the 1991 murder of Marsha Blakely. On January 21, 2010, Cleveland filed a habeas petition in the United States District Court for the Northern District of Ohio asserting six claims for relief.¹ Although Cleveland did not file his habeas petition within the applicable limitations period, he argued that his “actual innocence” of the crime mandated equitable tolling of the limitations period and that the discovery of a new factual predicate for his habeas claims entitled him to statutory tolling under 28 U.S.C. § 2244(d). The district court disagreed and dismissed the petition as untimely without reviewing the merits of the underlying claims. On appeal, Cleveland argues that the district court erred in not finding him entitled to statutory and equitable tolling and seeks remand of his habeas petition for review on the merits. For the reasons set forth below, we reverse.

I.

The following facts are taken from the Ohio Court of Appeals decision denying Cleveland's direct appeal:

Marsha Blakely's body was discovered in an alley in Lorain during the summer of 1991. She had fractured ribs and a broken neck. Her throat had also been cut, and she had torture-type wounds on the side of her neck and head. A witness to the murder eventually came forward, describing in detail the events of that fateful night. The witness' statement implicated the group of men responsible, one of whom was Defendant. Defendant was indicted for the aggravated murder of Ms. Blakely. He was arrested and arraigned in May of 1995.

...

Trial began as scheduled. It lasted six days, and included the foregoing witness' testimony explaining Defendant's participation in the death of Ms. Blakely.

...

After two days of deliberations, Defendant was found guilty as charged in the indictment.

Although Cleveland was charged with Blakely's murder only, another person, Floyd Epps, was murdered on the same night as Blakely and the police believed the murders were related. Epps's body was discovered at approximately 1:25 a.m. on August 8, 1991, and Blakely's body was discovered almost eight hours later at approximately 9:18 a.m. After the police investigation into these murders stalled, the Lorain County prosecutor offered a $2,000 reward. In response, William Avery, Sr. (“Sr.”), a longtime police informant, contacted the police on September 10, 1991, with information about the murders. The police informed Sr. that the reward would be given only to someone with firsthand information. The following day, Sr. brought his son, William Avery, Jr., to the police and informed them that Avery had firsthand information to provide. Avery then implicated four persons in Blakely's murder—Lenworth Edwards, Benson Davis, John Edwards, and Cleveland. According to Avery, all four men were drug dealers from New York who came to Lorain, Ohio to sell crack-cocaine. Avery informed the police that he owed Cleveland money for drugs and that he had offered to assault someone to pay off the debt. Cleveland then took Avery to Epps's apartment and told Avery to assault Blakely, who was there at the time. However, Avery refused to assault Blakely because he knew her personally. Avery and Cleveland then watched while Edwards, Davis, and John Edwards assaulted Blakely for twenty minutes. Avery told the police that although he was present only at the assault, Cleveland came to his apartment an hour or two after the assault and told him, “We took care of the junkie, we knocked her off.”

As a result of providing the above information, Avery received the $2,000 reward, an additional $2,000–$3,000 for his deposition testimony, and a relocation stipend.

The State tried Edwards first in 1991. At the behest of Sr., Avery demanded $10,000 more from the prosecutor for his trial testimony. When the prosecutor refused, Avery refused to testify at the trial. The court then put Avery in jail for contempt. At some point, Avery returned to court and testified under oath that he had lied about witnessing any acts involving Blakely. This resulted in a mistrial and Avery's imprisonment for perjury. While in jail, Avery decided to withdraw his recantation and again state that Cleveland, Edwards, Davis, and John Edwards were involved in Blakely's murder. At this time, Avery also informed the prosecutor for the first time that instead of going home after Blakely's assault, as he previously stated he did, he went with all four defendants and Blakely to the back of a shopping plaza where he saw a fifth male, known as “Justice,” repeatedly beat Blakely with a shiny object.

During Edwards's retrial, Avery testified that he had lied about not being a witness during Edwards's first trial and that he had seen part of the second assault that eventually caused Blakely's death before he ran away. Avery repeated this version of events at the trials of Davis, Cleveland, and John Edwards, who was tried last. During Cleveland's trial, Avery explained that he had recanted his testimony in Edwards's first trial because he had been threatened by Edwards while in the county jail for his contempt charge. Avery also admitted on cross-examination that he had lied to the police on at least two occasions regarding what he witnessed that night.

Cleveland maintained his innocence throughout the trial and presented several witnesses who testified that he was in New York throughout the week of August 5–12, 1991. Based on evidence that Cleveland had met with his probation officer on the morning of August 7, 1991, the government conceded Cleveland's presence in New York at that time. Cleveland also presented evidence that he was in New York at approximately 10 a.m. on August 8, 1991, the morning Blakely's body was discovered. Nonetheless, the jury convicted Cleveland of aggravated murder on January 31, 1996.

The court sentenced Cleveland to life imprisonment with the possibility of parole after twenty years. Cleveland filed a timely appeal to the Ohio Court of Appeals on February 27, 1996. The Ohio Court of Appeals affirmed Cleveland's conviction on March 6, 1997. Cleveland filed a pro se notice of appeal and a motion for leave to file a delayed appeal to the Ohio Supreme Court on May 9, 1997, which the Ohio Supreme Court denied on July 2, 1997. On July 15, 1997, Cleveland filed a delayed application to re-open his appeal in the Ohio Court of Appeals to assert a claim of ineffective assistance of appellate counsel. The Ohio Court of Appeals dismissed Cleveland's application as untimely on July 29, 1997. Cleveland then filed a timely appeal to the Ohio Supreme Court on September 8, 1997 and, on November 12, 1997, that court dismissed his appeal as not involving any substantial constitutional question.

In the interim, on December 3, 1996, Cleveland filed a motion for a new trial in state court and a motion for leave to file a delayed motion for a new trial based on an affidavit from Jeremiah Abdullah Charlton. Abdullah attested in his affidavit that Cleveland was not involved in the murder and that Abdullah had tried to inform law enforcement and the prosecutor of this fact prior to trial. Abdullah further declared that Avery stated that he had fabricated the story about the four defendants' involvement in Blakely's murder. The court held a hearing on June 9, 1997, but denied the motion for a new trial because Cleveland produced no evidence at the hearing in support of his motion. Cleveland filed a timely appeal to the Ohio Court of Appeals on July 8, 1997, and that court affirmed the trial court's decision on April 8, 1998.

Between 1998 and 2006, Cleveland searched for Avery. Cleveland's family hired a private investigator, Martin Yant, who located Avery in 1998. However, Avery fled when Yant and Cleveland's wife attempted to meet with him to discuss the case. Students from the Innocence Project at Northwestern University also hired a private investigator who unsuccessfully searched for Avery for two years.

On November 24, 2004, Avery, unbeknownst to Cleveland, contacted FBI Agent William Beachum and informed him that he had lied during the trials of Cleveland and the other defendants. Avery also informed Agent Beachum that Avery's father had committed the murders and that Sr. had pressured Avery to come forward so that Sr. could collect the reward money and cover up his guilt. This information was not communicated to Cleveland.

Cleveland's wife learned that Avery was in Detroit in late 2005 and traveled there to find him but was unsuccessful. Cleveland's father then went to Detroit in January 2006 and informed Avery's mother that he wanted to speak with Avery. Avery called Cleveland's father a week later and said that he would meet with Cleveland's attorney, Bruce Ellison, and private investigator, Paul Ciolino. Avery then spoke with Ellison telephonically and admitted that he had lied during Cleveland's trial. Ellison informed Cleveland of this fact during a jailhouse conversation on February 5, 2006.

On February 9, 2006, Avery met with Ellison and Ciolino and signed an affidavit recanting his trial testimony. In this affidavit, Avery also averred that during Edwards's trial he informed the prosecutor that his earlier statements about witnessing the...